In a judgment handed down on Tuesday 12 November 2024, High Court Judge Justice Christopher Dube-Banda, declared section 8(1) of the Immigration Act, which permits an immigration officer to detain a person for 14 days without a court appearance, to be inconsistent with section 50(2)(b) of the Constitution and therefore invalid.
Justice Dube-Banda ruled that section 8(1) of the Immigration Act intrudes and infringes the sacred rights to human dignity, liberty and freedom, which are sacrosanct and is an invalid provision, which causes prejudice to persons suspected to be prohibited immigrants, especially those detained under its authority.
The High Court Judge’s ruling came after Tatenda Chakabva, a Harare resident, who was represented by Brighton Sadowero, Tinashe Chinopfukutwa and Kelvin Kabaya of Zimbabwe Lawyers for Human Rights, filed an application at the High Court on 28 May 2024, seeking an order to declare section 8(1) of the Immigration Act to be inconsistent with the Constitution as it authorised an immigration officer to detain a suspect for a period not exceeding 14 days without judicial oversight and hence offending section 50(2) of the Constitution, which makes it mandatory for any arrested or detained person to be brought to court within 48 hours.
In his application, Chakabva argued that the impugned provision is unconstitutional and invalid as it authorises the detention of a foreign national suspected to have committed an offence in Zimbabwe, for up to 14 days without judicial oversight.
He argued that the constitutional values embedded in the Constitution were being undermined because the rights, freedoms and dignity of people suspected to be illegal foreign nationals were being violated under the guise of immigration control.
The Harare resident also contended that the infringement imposed by section 8(1) of the Immigration Act is not reasonably justified in an open society based on the rule of law, democracy, openness, justice and human dignity.
The Harare resident argued that persons who are detained in terms of section 8(1) of the Immigration Act are vulnerable people, who suffer from language barriers, have no access to family, friends or any other support system and the vast majority of them do not understand the legal system in Zimbabwe and also lack financial resources to retain the services of legal practitioners.
Chakabva also argued that Zimbabwe ratified regional and international conventions and treaties such as the African Charter of Human and Peoples’ Rights and the International Covenant on Civil and Political Rights that outlaw arbitrary detention and hence immigration authorities cannot authorise such detentions.
During court proceedings, the Chief Immigration Officer opposed Chakabva’s application and asserted that section 8(1) of the Immigration Act was a necessary tool to counter transnational organised crime like terrorism, human trafficking and espionage committed by persons of concealed or falsified identities and antecedents, which justifies the limitation of the right to be brought to court within 48 hours.
However, Justice Dube-Banda stated that the purpose of accused persons’ right to be placed promptly under judicial authority is meant to protect the right to freedom, liberty and security of the person by ensuring that an independent and impartial body determines whether, in the interest of justice, there is any justification for continued detention and therefore, a detention beyond the 48-hour limit without judicial oversight, is unlawful and an affront to the rule of law.
The High Court Judge agreed with Chakabva’s submissions that under regional and international conventions ratified by Zimbabwe, arbitrary detentions are impermissible and ruled that section 8(1) of the Immigration Act is in violation of both international and regional conventions as these conventions underscore that a detained person must promptly be brought before a court for the determination of the legality of the arrest and detention.
Justice Dube-Banda also ruled that the right of a person, who is considered to be a suspect, to appear in court within 48 hours being a right to a fair trial, cannot be limited as this right allows for the pre-trial processes to be brought into the open and for rights to be vindicated.
Justice Dube-Banda’s court order declaring section 8(1) of the Immigration Act to be inconsistent with section 50(2)(b) of the Constitution and invalid, now awaits to be confirmed by the Constitutional Court.
ENDS
Zimbabwe Lawyers for Human Rights
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