MUPENZI v THE CHIEF IMMIGRATION OFFICER N. O and OTHERS (429 of 2025) [2025] ZWHHC 429 (16 July 2025)

2 HH 429-25 HCH 3155/25 BENOIT OMBENI MUPENZI versus THE CHIEF IMMIGRATION OFFICER N. O and THE MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE N.O and THE COMMISIONER GENERAL PRISONS AND CORRECTIONAL SERVICES N.O HIGH COURT OF ZIMBABWE MAXWELL J Harare,9 July 2025 & 16 July 2025 Urgent Chamber Application R Matsikide, & P Mupambadzi, for the Applicant A Zikiti, for the respondents MAXWELL J: At the hearing of this matter, I dismissed it with no order as to costs. Reasons for that decision have been requested. These are they. The Applicant approached the court on an urgent basis seeking his immediate release from detention and a declaratory order that the conduct of the First Respondent in detaining him at Harare Remand Prison without furnishing him with the reasons thereof is unlawful. He submitted that he was detained without charge or explanation and was not aware of any offence or reason for his detention. He further submitted that the arrest contravenes the Constitution and the Immigration Act [Chapter 4:02] which mandates that he must have been informed of the reason for his arrest or detention promptly. He also submitted that he was not furnished with the warrant of detention and that his liberty and right to justice is being arbitrarily restrained causing irreparable harm. Applicant stated that he is a refugee from the Democratic Republic of Congo who acquired a Zimbabwe National Registration Card and that and that all his particulars were taken on detention. In paragraph 4.1 and 4.2 of the Founding affidavit Applicant gave the basis of the application as that: He must be informed of the reasons for the arrest or detention forthwith as no reasons were given to him or to his legal practitioners. He is still detained and is not aware of the reasons, and that there is no warrant of detention. The First Respondent stated that the Applicant’s identity and nationality status have been questioned by the country’s security apparatus. Further that when the Applicant was picked up by officers from her office, they were working in collaboration with other security agencies. First Respondent also stated that none of the documents retrieved from the Applicant pertained to his refugee status and that when being questioned he was asked to furnish definitive evidence of his nationality claims he failed. It seems to me that Applicant is relying on documents issued in Zimbabwe by the Government of Zimbabwe. In my view, that is not sufficient where the nationality antecedent to acquiring the Zimbabwe Nationality Registration card is required. First Respondent indicated that Applicant’s arrest and detention was in terms of s8 (1) of the Immigration Act, [Chapter 4:02]. At the time of the hearing of the matter, the 14 days allowed for ascertaining the arrested person’s identity, nationality, antecedents and other factors had not expired. The detention of the applicant is in terms of a law which remains in our statute books. See Portillo v Chief Immigration Officer and others HH 229/20. Until and unless section 8 of the Immigration Act is declared unconstitutional and such declaration is confirmed by the Constitutional Court, the court’s hands are tied. Whilst Applicant might have a genuine grievance that he was not furnished with reasons for the arrest and detention forthwith, I am not persuaded that the remedy for that is his immediate release. In terms of section 6 of the Administrative Justice Act [Chapter 10:28] the relief where reasons were not furnished is to seek an order compelling the administrative authority to supply same For the above reasons, I dismissed the application with no order as to costs. Matlaw Applicant’s, Legal Practitioners Civil Division of the Attorney Genaral’s Office, Rspondent’s Legal Practitioners 2 HH 429-25 HCH 3155/25 2 HH 429-25 HCH 3155/25 BENOIT OMBENI MUPENZI versus THE CHIEF IMMIGRATION OFFICER N. O and THE MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE N.O and THE COMMISIONER GENERAL PRISONS AND CORRECTIONAL SERVICES N.O HIGH COURT OF ZIMBABWE MAXWELL J Harare,9 July 2025 & 16 July 2025 Urgent Chamber Application R Matsikide, & P Mupambadzi, for the Applicant A Zikiti, for the respondents MAXWELL J: At the hearing of this matter, I dismissed it with no order as to costs. Reasons for that decision have been requested. These are they. The Applicant approached the court on an urgent basis seeking his immediate release from detention and a declaratory order that the conduct of the First Respondent in detaining him at Harare Remand Prison without furnishing him with the reasons thereof is unlawful. He submitted that he was detained without charge or explanation and was not aware of any offence or reason for his detention. He further submitted that the arrest contravenes the Constitution and the Immigration Act [Chapter 4:02] which mandates that he must have been informed of the reason for his arrest or detention promptly. He also submitted that he was not furnished with the warrant of detention and that his liberty and right to justice is being arbitrarily restrained causing irreparable harm. Applicant stated that he is a refugee from the Democratic Republic of Congo who acquired a Zimbabwe National Registration Card and that and that all his particulars were taken on detention. In paragraph 4.1 and 4.2 of the Founding affidavit Applicant gave the basis of the application as that: He must be informed of the reasons for the arrest or detention forthwith as no reasons were given to him or to his legal practitioners. He is still detained and is not aware of the reasons, and that there is no warrant of detention. The First Respondent stated that the Applicant’s identity and nationality status have been questioned by the country’s security apparatus. Further that when the Applicant was picked up by officers from her office, they were working in collaboration with other security agencies. First Respondent also stated that none of the documents retrieved from the Applicant pertained to his refugee status and that when being questioned he was asked to furnish definitive evidence of his nationality claims he failed. It seems to me that Applicant is relying on documents issued in Zimbabwe by the Government of Zimbabwe. In my view, that is not sufficient where the nationality antecedent to acquiring the Zimbabwe Nationality Registration card is required. First Respondent indicated that Applicant’s arrest and detention was in terms of s8 (1) of the Immigration Act, [Chapter 4:02]. At the time of the hearing of the matter, the 14 days allowed for ascertaining the arrested person’s identity, nationality, antecedents and other factors had not expired. The detention of the applicant is in terms of a law which remains in our statute books. See Portillo v Chief Immigration Officer and others HH 229/20. Until and unless section 8 of the Immigration Act is declared unconstitutional and such declaration is confirmed by the Constitutional Court, the court’s hands are tied. Whilst Applicant might have a genuine grievance that he was not furnished with reasons for the arrest and detention forthwith, I am not persuaded that the remedy for that is his immediate release. In terms of section 6 of the Administrative Justice Act [Chapter 10:28] the relief where reasons were not furnished is to seek an order compelling the administrative authority to supply same For the above reasons, I dismissed the application with no order as to costs. Matlaw Applicant’s, Legal Practitioners Civil Division of the Attorney Genaral’s Office, Rspondent’s Legal Practitioners