Human rights lawyers want proper safeguards for detained foreigners

Human rights lawyers have asked the Constitutional Court to clarify its earlier order concerning detained foreigners, to prevent persistent misunderstandings in lower courts.

As it stands, lower courts appear to be ignoring legal safeguards to protect detained foreigners’ rights because of a 2017 Constitutional Court ruling.

The apex court began hearing argument on Thursday as to why it must clarify its earlier ruling to prevent infringement of detained foreigners’ rights.

In 2017, the Constitutional Court declared sections of the Immigration Act, dealing with the deportation and detention of illegal foreigners, unconstitutional. It held that this section afforded “drastic powers” to officials in detaining people without a warrant. While there were safeguards in legislation to prevent abuse of powers, Lawyers for Human Rights (LHR) had argued these were inadequate.

The safeguards are twofold: first, the detained foreigner could request a warrant if they were arrested without one; second, if the detained person was to be kept for more than 30 days, officials had to obtain a court order to do so.

But LHR argued that these safeguards were insufficient. The Constitutional Court agreed in 2017. LHR identified three inadequacies in the safeguards.

First, while the section allowed for someone to be detained without a warrant for 30 days, there was no automatic judicial review during this time. A foreigner could be detained without a warrant for a month. While detainees could request that a warrant be issued by a court, it was not mandatory for an official to obtain a warrant.

Second, the 30 days of detention could be extended to 90 days by court order.

However, there was no requirement that a detained person had to appear in person before a court could make its extension order. This meant someone could be detained for 90 days without having been afforded an opportunity to make their case. Third, the detention power operated, says LHR in heads of argument “without any objectively determinable conditions or guidance for the exercise of that power”.

The court said in its 2017 judgment that, as it stood, this section of the Immigration Act “offends against the rule of law by failing to guide immigration officers as to when they may arrest and detain illegal foreigners before deporting them”. This was made worse, it said, “because this power may be exercised without the need for a warrant of a court”.

The Constitutional Court ruled that the section was invalid and gave the government two years to fix it. At that time, detained foreigners had to be brought before a court within 48 hours. However, since 2017 the government has done nothing to remedy the legislation. On Thursday, the home affairs minister was due to return to the apex court to seek an extension to implement the court’s order, after already being given an extension in 2022.

Despite the order being in its favour, LHR is using this same opportunity to ask for a clearer order. It also argues that the minister has no legal basis to request an extension.

More important to LHR is that lower courts have apparently operated as though the safeguards do not exist. This is because the wording in the Constitutional Court’s 2017 ruling appears confusing. It seems to imply that if parliament does not fix the safeguards in time, the safeguards — the right to request a warrant and obtain a court order before detention beyond 30 days — do not exist at all.

LHR noted several high court judgments which demonstrated this interpretation.

While LHR argues that, in reality, the safeguards are not removed, the human rights group nevertheless asks the court to provide clarity so that other courts do not continue misinterpreting the order.

Increased hardship

Foreign nationals may soon be facing increased hardship. The end of the Zimbabwean exemption permit regime is ending, leading to legal uncertainty for almost 180,000 people pending a high court judgment, xenophobic attacks are increasing and draconian legislation gives wide powers to officials.

LHR often litigates to protect human rights in the immigration space. This is why, on Friday, in addition to opposing the minister’s request for an extension, it will argue that the original 2017 Constitutional Court ruling does not deal with all the concerns identified. LHR will ask the court to deal with the deficits in its own order.

The minister has argued that the delay in giving effect to the original 2017 order is a result of government procedures in introducing a bill, the fire at parliament in 2022, and Covid-19.

moosat@businesslive.co.za