Source: The Herald – Breaking news.
Fidelis Munyoro, Chief Court Reporter
In a landmark ruling, the High Court has declared unconstitutional a section of the Immigration Act allowing immigration officers to detain people for up to 14 days without a court appearance and has ruled that those detained by immigration officers of being suspected illegal immigrants must be brought to court within 48 hours.
Justice Christopher Dube-Banda declared Section 81(1) of the Immigration Act unconstitutional, citing violations of international and regional conventions, as well as the Constitution.
The decision was made in response to Tatenda Chakabva’s arguments that the section infringed upon the rights of suspected illegal foreigners, denying them liberty and undermining the Constitution’s values.
Chakabva had sued the Justice, Legal and Parliamentary Affairs Minister, chief immigration officer, Home Affairs and Cultural Heritage Minister and the Attorney-General.
In his ruling, Justice Dube-Banda stated that detained individuals should be brought before a court within 48 hours to determine the legality of their arrest and detention.
“The extent that section 8(1) permits 14 days’ detention without judicial oversight actually authorises arbitrary detention,” ruled Justice Dube-Banda stressing that whatever term it was called, administrative or arbitrary detention, it was prohibited under international and regional conventions.
“In the circumstances, it is clear that section 8(1) is in violation of both international and regional conventions,” he said.
Chakabva’s submissions highlighted the difficulties foreigners faced in mounting a constitutional challenge due to limiting circumstances.
He argued that section 8(1) was constitutionally invalid, causing prejudice to suspected prohibited immigrants.
In contrast, the chief immigration officer defended Section 8(1), arguing it only applied to individuals who entered Zimbabwe illegally, remained in the country illegally, and were suspected of being prohibited immigrants.
The officer also claimed the provision aimed to maintain national security and public interest.
However, Justice Dube-Banda, in his judgment, noted that the Constitution was the supreme law of Zimbabwe, adding that any practice, custom or conduct inconsistent with it was invalid.
“The right of an arrested person to be placed promptly under the judicial authority of a court, with 48 hours being the outer limit, determines the lawful duration of detention in the hands of the police,” he said.
“This period is calculated from the moment of arrest. After the expiry of this period, the detention becomes unconstitutional. A detention beyond the 48-hour limit without judicial oversight is unlawful and infringes the detainee’s rights to dignity and freedom and security of the person.
“It is an affront to the rule of law. It undermines the values and principles that are enshrined in s46 of the Constitution.”
Justice Dube-Banda said in the eyes of the law, there was no confirmed prohibited immigrant at arrest, further indicating that a confirmed prohibited immigrant only exists after due process and conviction.
The ruling underscored the importance of protecting human rights and upholding constitutional values.
It also sets an important precedent for immigration laws in the country, ensuring that foreign nationals are treated with dignity and respect and while it is also a crucial step towards ensuring that immigration laws align with constitutional values, while still allowing the arrest of suspected illegal immigrants and their processing after a court appearance.
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