Ex Parte: Nsabimana and Others ; S v Department of Poverty and Disaster Management Affairs and Another (Application No. 19 of 2006) [2008] MWHC 79 (17 April 2008)

Human Rights and Fundamental Freedoms - Protection of refugees and asylum seekers- discrimination based on nationality – the right to not be unfairly differentiated against based on nationality.  

Human Rights and Fundamental Freedoms - Protection of refugees and asylum seekers – the right to choose a place of residence and to have freedom of movement.

This case arose when the respondent issued an order for refugees and asylum seekers outside camps to return to their designated camps. The applicant challenged the constitutionality of the order, as per sections 20(1) and 44(2) of the Constitution. The applicants also argued that the order violated international law, which encourages states to let refugees and asylum seekers choose their places of residence. The respondent argued that the order was constitutional, asserting that a specific international instrument included a reservation allowing the government to designate residence areas for refugees and asylum seekers. The respondent also maintained that refugees and asylum seekers could reside outside camps with a permit.

The court determined five main issues. Firstly, it determined the locus standi (the right or capacity to bring an action or to appear in a court) of the applicants, concluding that only one had locus standi and sufficient interest as he was directly affected by the order and provided evidence. Secondly, the court examined whether the applicant possessed a permit to reside outside the camps, finding that the identity card given did not qualify as a permit. Thus, the applicant lacked authorization to reside outside the camp. Thirdly, the court considered the constitutionality of the order, determining that it did not discriminate on listed grounds, meeting constitutional standards. The fourth issue involved whether the order contravened article 26 of the Convention and Protocol on Status of Refugees; the court ruled it did not due to a reservation permitting the government to designate residence for refugees. Lastly, the court addressed the principle of natural justice, finding the applicant had sufficient time to prepare and was at fault for not delaying the order's implementation.

The court dismissed the application to render the order unconstitutional and granted the respondent the liberty to enforce the order.

Section 20(1) and section 44(2) of the Constitution refer to discrimination that is based on listed grounds, and the order did not discriminate against the refugees and asylum seekers on any ground including their nationality, the order passed the constitutional test.  Moreover, the court found that the order was in line with international law due to a reservation that allowed the government to designate a place for refugees.