High Court Strikes Down Unconstitutional Provision Of Immigration Act
The Zimbabwe High Court has declared that section 8(1) of the Immigration Act, which allowed immigration officers to detain foreigners suspected of committing crimes for up to 14 days without judicial oversight, is unconstitutional and invalid.
On November 12, 2024, Justice Christopher Dube-Banda ruled that section 8(1) violated section 50(2)(b) of the Constitution, which ensures the right to be brought before a court within 48 hours of detention. The ruling emphasized that this provision infringed upon human rights, including liberty, dignity, and freedom.
This case was brought to the court by Tatenda Chakabva, a resident of Harare, with the support of the Zimbabwe Lawyers for Human Rights (ZLHR).
Chakabva argued that the provision allowed for arbitrary detention, which undermined constitutional rights and international treaties ratified by Zimbabwe, such as the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights.
He was represented by lawyers Brighton Sadowero, Tinashe Chinopfukutwa, and Kelvin Kabaya.
Chakabva filed the application on May 28, 2024, seeking to have section 8(1) declared inconsistent with the Constitution.
He contended that it authorised immigration officers to detain suspects for up to 14 days without judicial oversight, violating the mandatory requirement that any arrested or detained person be brought to court within 48 hours.
The Chief Immigration Officer opposed the application, arguing that the provision was necessary to combat transnational crimes such as terrorism and human trafficking, justifying extended detention without judicial review.
Justice Dube-Banda disagreed, stating that judicial oversight is essential to protect the rights of detainees and ensure that continued detention is lawful. He emphasized that arbitrary detention without court oversight is unlawful and undermines the rule of law.
This ruling aligns with international and regional conventions, which require prompt judicial review of detention, and affirms that Zimbabwe’s immigration authorities cannot authorize prolonged detention without judicial review.
The High Court’s ruling is subject to confirmation by Zimbabwe’s Constitutional Court.
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