INTRODUCTION

The purpose of this chapter is to assess the role of children's rights in decision- making with special focus on asylum-seeking children in Botswana. This topic is significant because in 2017, the Court of Appeal considered two applications brought by men and women, who had been detained along with their minor children, following failed applications for asylum. The first of these decisions was Marie Iragi and 2 others v. The Attorney General. This case concerned two women who sought asylum in Botswana accompanied by three minor children. The second case was Egama Ngezi and 165 others v. The Attorney General. This case concerned 166 adult asylum seekers and 195 children who were also under detention pending status determination or removal following rejection of their claims for asylum.

In each case, the asylum seekers brought an application for habeas corpus. They alleged that they had been subjected to lengthy and indefinite detention, with their children, following their failed applications for asylum. The particular focus of this chapter is the Court's approach to protecting the rights of the child asylum seekers who were detained along with their parents.

The chapter begins with a discussion of the rights of child asylum seekers in light of the Convention on the Rights of the Child which Botswana has ratified and domesticated followed by a discussion on Botswana's children's rights framework in the context of refugees and asylum-seeking children. The chapter then considers the Court of Appeal decision in the consolidated appeal in the Iragi and Ngezi cases with particular focus on the Court's posture towards asylum-seeking children. The chapter ends with a discussion of the salient points that the Court should have considered in deciding the cases and some recommendations on law and policy reform.

THE OPERATION OF THE CONVENTION ON THE RIGHTS OF THE CHILD IN BOTSWANA

Botswana acceded to the Convention on the Rights of the Child (UNCRC) in 1995 and the African Charter on the Rights and Welfare of the Child (ACRWC) in 2001. A further 14 years would pass before the UNCRC was incorporated into Botswana law. In 2009, Botswana amended the Children's Act 1981 and promulgated the new Children's Act 2009 (the Act) ostensibly to implement the UNCRC.