High Court clips immigration office's powers

The High Court of Zimbabwe has ruled that a section of the Immigration Act, which allowed immigration officers to detain individuals for up to 14 days without a court appearance, is unconstitutional and violates both national and international law. In a landmark judgment, High Court Judge Justice Christopher Dube-Banda declared the provision in Section 8(1) of the Immigration Act invalid, emphasizing that it infringes on fundamental human rights guaranteed under the Constitution of Zimbabwe.

Justice Dube-Banda's ruling came in response to a constitutional challenge brought by Tatenda Chakabva, who sought to have the provision declared unconstitutional. Chakabva, supported by Zimbabwe Lawyers for Human Rights (ZLHR) members, argued that the provision permitted arbitrary detention, contrary to Zimbabwe's commitment to uphold the rule of law and human rights as outlined in the Constitution and international conventions ratified by the country.

The court noted that international and regional conventions prohibit arbitrary detentions, and such detentions must be reviewed by a court to assess their legality. Justice Dube-Banda pointed out that "promptly" in Zimbabwe's legal context means within 48 hours, a standard set to safeguard individual freedoms.

"The extent that s8(1) permits 14 days detention without judicial oversight actually authorises arbitrary detention," Justice Dube-Banda said in his ruling. "Whether it is called administrative detention or arbitrary detention, it is prohibited under international and regional conventions."

Chakabva, the applicant, argued that the provision violated the rights and dignity of foreign nationals, especially those suspected of being illegal immigrants. He highlighted that such a provision undermined the values embedded in Zimbabwe's Constitution and hindered the ability of foreign nationals to challenge their detention under the law.

The Chief Immigration Officer, who opposed the application, argued that Section 8(1) only applied to individuals suspected of entering the country illegally without identification or known nationality, and those suspected of being a threat to national security. The officer further claimed that this provision was vital in tackling issues such as terrorism, human trafficking, and espionage committed by individuals with falsified identities. However, the court dismissed these arguments, stating that the constitutional rights of detainees could not be compromised under any circumstances.

In his ruling, Justice Dube-Banda made it clear that arbitrary detention violated the Constitution's commitment to dignity, liberty, and freedom. He emphasized that administrative detention, as described in Section 8(1), was essentially a euphemism for arbitrary detention, which he deemed unacceptable in a democratic society.

"The Constitution is the supreme law of Zimbabwe," Justice Dube-Banda declared. "Any practice inconsistent with it is invalid. A detention beyond the 48-hour limit without judicial oversight is unlawful and infringes the detainee's rights to dignity, freedom, and security of the person. It is an affront to the rule of law."

The ruling has significant implications for Zimbabwe's immigration laws and could spark a review of detention practices nationwide. Justice Dube-Banda's judgment reinforces the importance of judicial oversight in all detention cases, asserting that no one, regardless of nationality, should be detained without the opportunity to challenge their detention in court.

The ruling marks a pivotal moment in Zimbabwe's legal history, affirming the rights of individuals under the Constitution and setting a precedent for future cases involving arbitrary detention and human rights violations.