’Gay Refugee’ Alleges Violation of Interdict

A YOUNG man claiming to be a refugee from the persecution of sexual minorities in Uganda is accusing Namibia’s immigration authorities of having violated a court order by deporting him from the country near the end of November last year.

Kris Kelly (21) is making the allegation in an affidavit filed at the High Court in Windhoek in a case in which he is asking the court to order his release from police custody. He also wants the court to direct that he be placed at Osire refugee camp while he tries to challenge repeated decisions to deny him refugee status in Namibia.

Kelly, who has no documentation to prove his identity, is claiming to be a citizen of Uganda, which he says he left in November 2013 because he feared persecution on the basis of his sexual orientation. He has stated in two affidavits filed at the High Court that he was in a same-sex relationship in Uganda, where lawmakers have approved stringent anti-gay legislation, before he decided to leave the country.

However, according to Namibian immigration officials who interviewed Kelly after he reported his presence in Namibia at a police station at Walvis Bay in early December 2013, he at first claimed to be from Barbados in the Caribbean, before he changed his version about his origins and alleged he was a refugee from Uganda. He initially told immigration officials that five unknown men had kidnapped him in Bridgetown, Barbados, in October 2013, that he had been kept prisoner on a boat, and that he finally managed to jump off the boat close to what turned out to be the Namibian shore.

On 7 August last year, Kelly obtained a court order in terms of which the Namibian authorities were prohibited from deporting him from Namibia. However, he is alleging in a new case lodged at the High Court that Namibian immigration officials violated that court order by taking him across Namibia’s border with Zambia on 29 November last year and transporting him to Lusaka.

He says he was later put on an aeroplane to Nairobi and from there flown to Entebbe in Uganda, where he was refused entry into the country and put back on a flight to Nairobi, before he was flown back to Lusaka. After being detained in Lusaka, he was visited by a representative of the United Nations High Commissioner for Refugees (UNHCR), who told him he would be returned to Namibia, since he had been unlawfully deported by the Namibian authorities, he also says in the affidavit.

Zambian officials escorted him back to Namibia, where he was handed over to immigration officials in the Zambezi region, on 28 February this year, he says.

With his request to be given refugee status in Namibia having been turned down, an appeal against that decision was also unsuccessful about a month ago, Kelly says.

In Kelly’s current case, in which he is suing the minister of home affairs and immigration, the commissioner for refugees, the presiding officer of the Namibia Refugees Appeal Board, the Namibia Refugees Committee, and the chairperson of the Immigration Tribunal, he is asking the High Court to order that he should be freed from detention at Seeis Police Station east of Windhoek and be taken to Osire, while he pursues a judicial review of the decisions to deny him refugee status in Namibia.

The case was postponed to 3 June when lawyer Norman Tjombe, who is representing Kelly, and government lawyers Steven Nkiwane and Mehluli Ndlovu appeared before Acting Judge Collins Parker on Wednesday.

The UNHCR’s office in Namibia has indicated to the government that it would help to find a third country in which Kelly could be settled as a refugee, with Canada a likely destination for him, the minister of home affairs and immigration, Pendukeni Iivula-Ithana, states in an affidavit also filed at the court.

According to Iivula-Ithana, Kelly is not in unlawful detention in Namibia, because the Immigration Tribunal declared him a prohibited immigrant and authorised his removal from the country at the end of February last year.

Iivula-Ithana also points out that Kelly’s nationality is in doubt, as he “has at some point changed from being Barbadian to being Ugandan”.

In the absence of confirmation of his identity and nationality, he could be a security risk in Namibia, she adds in her affidavit: “I cannot help but wonder whether we are not harbouring a fugitive from the law or [whether] he is genuinely undocumented.”

She is arguing that Kelly “is not a proper person to be unleashed on society” before the court considers his judicial review application.

Source : The Namibian