THE High Court has declared a section of the Immigration Act permitting officers to detain a person for 14 days without a court appearance invalid and inconsistent with the provisions of the Constitution of Zimbabwe.
In a landmark ruling, High Court judge Justice Christopher Dube-Banda said under international and regional conventions ratified by Zimbabwe, arbitrary detentionswere impermissible.
The judge said the conventions underscored that a detained person should promptly be brought before a court for the determination of the legality of the arrest and the detention.
Justice Dube-Banda said in Zimbabwe, promptly means within 48 hours.
“The extent that s8(1) permits 14 days detention without judicial oversight actually authorises arbitrary detention.
“Whether it is called administrative detention or arbitrary detention, it is prohibited under international and regional conventions. In the circumstances, it is clear that s8(1) is in violation of both international and regional conventions,” he said.
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He was ruling in the case of Tatenda Chakabva, who had sued Justice, Legal and Parliamentary Affairs minister, chief immigration officer, Home Affairs and Cultural Heritage minister and the Attorney-General.
Chakabva had filed a constitutional application for an order to declare section 8(1) of the Immigration Act invalid, arguing that it was inconsistent with the Constitution.
He anchored his standing on s85(1d) of the Constitution, which allows any person acting in the public interest to approach a court alleging that a fundamental right or freedom enshrined in the Bill of Rights has been, is being or likely to be infringed.
Chakabva was represented by Brighton Sadowera and Zimbabwe Lawyers for Human Rights members Tinashe Chinopfukutwa and Kelvin Kabaya.
He argued that section 8(1) of the Immigration Act deals with a unique and delicate issue of suspected illegal foreigners and the manner in which they are denied their right to liberty.
Chakabva also argued that the values embedded in the Constitution are undermined if the rights, freedom and dignity of foreign nationals are violated under the guise of immigration control.
He submitted that under such limiting circumstances, it is difficult for the affected foreign nationals to mount a constitutional challenge of s8(1) of the Act.
He argued that the impugned provision is constitutionally invalid, saying it will mean there exists in our statute books an invalid provision causing prejudice to persons suspected to be prohibited immigrants, in partucular those detained under its authority.
The chief immigration officer opposed the application, with the other respondents deciding to abide by the court’s determination.
He argued that s8(1) only applies to persons who not only entered Zimbabwe illegally, but whose identity, nationality and antecedents are unknown and also reasonably suspected to be prohibited persons.
Foreigners lawfully in Zimbabwe, those who have overstayed, those who have committed administrative violations of the Immigration Act and refuges are excluded from this category, he argued.
He said the section protected Zimbabwean citizens from harm emanating from foreigners entering the country illegally without identity, nationality and known antecedents saying such persons were said to be a threat to the security of the State.
He also argued that persons of known and verified identities and antecedents, suspected to be in the country illegally were arrested, detained and brought before a court as soon as possible and not later than 48 hours.
He submitted that the section is a necessary tool to counter transnational organised crime like terrorism, human trafficking, espionage committed by persons of concealed and/or falsified identities and antecedents.
However, Justice Dube-Banda said 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.
“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 contention that s8(1) constitutes administrative detention cannot withstand closer scrutiny. I say so because administrative detention for the purpose of making inquiries or investigation may not be accepted in an open and democratic society anchored on freedom, dignity and the rule of law.
“To detain a human being, no matter his or her nationality for 14 days without judicial oversight cannot be lawful in a country where the Constitution is supreme and the law is a founding value. I take the view that no system of justice can countenance such a patent injustice,” he said.
Justice Dube-Banda added: “My view is that administrative detention is a simple euphemism for arbitrary detention and such is an anathema to the constitutional principles of freedom, liberty, human dignity and the rule of law that this country stands on.”
He noted that the Constitution does not distinguish whether one is a Zimbabwean or an immigrant.
“I take the view that while the arrest and detention of illegal immigrants targeted by s8(1) might be inspired by security concerns of protecting the community, it cannot pass constitutional muster.
“In other words, it cannot be accepted as a justification for infringing this right in an open and democratic society based on human dignity, equality and freedom. In addition, less restrictive means could have been used to achieve the stated purpose,” Justice Dube-Banda said.