Court name
High Court General Division
Case number
19 of 2006
Case name
Ex Parte Nsabimana & Ors.; S v the Department of Poverty and Disaster Management Affairs & Anor.
Law report citations
Media neutral citation
[2008] MWHC 79

IN
THE HIGH COURT OF MALAWI


LILONGWE
DISTRICT REGISTRY


Misc.
Civil Application No. 19 of 2006








BETWEEN





THE
STATE





-and-





THE
DEPARTMENT OF POVERTY AND


DISASTER
MANAGEMENT AFFAIRS


AND
THE COMMISSIONER FOR DISASTER PREPAREDNESS, RELIEF AND


REHABILITATION
RESPONDENT








EXPARTE:
FRODOVARD NSABIMANA


AND
83 OTHERS APPLICANTS

















CORAM: HON.
JUSTICE CHINANGWA



Chinoko,
for Applicant


Kachule/Kahaki,
for Respondent


Njirayafa,
Law Clerk


Mthunzi,
Court Reporter






RULING






The applicant
Frodovard Nsabimana and 83 others brought this application for
judicial review under Order 53 r.3 RSC. In



2



essence they are
praying to this court to review the decision of the respondent
ordering all refugees and asylum seekers who are
in Malawi, but
residing outside designated areas to return to the appropriate camps.
The applicants challenge the decision as
being unlawful and
unconstitutional. They pray that the order be quashed.







On 6th
February, 2006 the respondent issued an order that all refugees and
asylum seekers (refugees/asylum seekers) residing outside
Dzaleka and
Luwani camps should return to these camps. Dzaleka camp is situated
in Dowa district whereas Luwani camp is situated
in Neno district.
Since this order is the one which triggered this legal battle. It
is important at this early stage to reproduce
it:







‘ NOTICE TO ALL
ASYLUM SEEKERS AND REFUGEES







All asylum
seekers and refugees residing outside Dzaleka and Luwani refugees
camps are being ordered to return to camp, in Dowa
and Neno districts
respectively, are the designated places of residence for all asylum
seekers and refugees. The government of
Malawi has, however,
observed that







3



some asylum
seekers and refugees have settled elsewhere without any
authorization.







All asylum
seekers and refugees are therefore, ordered to return to camp by 28
th
February, 2006. Those that were issued with identity cards must go
to Dzaleka camp and those that were not issued with the same
must go
to Luwani camp.







SGD Dr. M.D
NOWA PHIRI.



COMMISIONER
FOR REFUGEES IN MALAWI







The order is
marked ex FN1.











The applicant
Frodovard Nsabimana filed an affidavit on 27
th
February, 2006 in protest of the above mentioned order. He deponed
that he is the chairman of the Urban Resident Refugees of Rwanda.

That he applied to the respondent’s sub-committee on Urban
Residence and was granted authority and issued an identity card to
be
residing in urban areas. He exhibited a letter from respondent ex
FN2 and identity card ex FN3.











4



He further deponed
that FN3 is indorsed “Camp not assisted” to indicate that he is
not resident in a refugees camp and does
not get any assistance from
the designated camp. He deponed that the permit would expire on 31
st
December, 2007. He and others were alarmed to learn of the order.
He contends that many refugees residing outside camps have
lived in
Malawi up to periods of ten years. Have property and children at
school. The 22 days allowed was insufficient to organize
and return
to camp.







Perhaps at this
point I should briefly allude to the affidavit sworn by Mr Samuel
Malowa a Senior Administrator in the office of
the respondent. He
deponed that it was in 2002 that the respondent began granting
permission to refugees/asylum seekers, to reside
outside camps (para
4). Such permission was/is granted on medical, educational and other
related grounds which justify one to reside
outside a refugees camp
(para 6). On paragraph 7 he depones that only those with express
permission from the respondent to reside
outside refugees camps can
stay in urban areas. There is a copy of a permission exhibited marked
MK1.







According to Mr
Malowa the order to return to camps affected only those without the
requisite authority to reside outside camps.
Mr Malowa further
deponed that the identity cards



5



were issued on the
insistence of the World Food Programme(WFP). It was indorsed “camp
not assisted” to show that the holder
was not entitled to receive
basic provisions from WPF because he was not residing in a camp. By
issuing the IDs the respondent
did not expressly authorize the holder
to reside outside camp. This is the exact position regarding the
applicant. Applicant
had applied for permission to reside outside
camp on 25
th
July 2003 but it was not granted.







The starting point
is to remind myself that these are judicial review proceedings. The
purpose is not to examine the merits or
demerits of a decision. The
focus is on the decision making process. Whether rules of natural
justice on fairness were observed
as stated in
Chief
Constable of North Wales Police vs Evans

(1982) 3 ALLER 141. In the present application whether the
applicant(s) had an opportunity to be heard or were fairly treated

considering the circumstances as a whole. Whether the order is
consistent with the Constitution.







There are many
issues which have been raised in this application. I now proceed to
determine them. However I will bear in mind
that I am determining the
application based on affidavit evidence.







6



The first issue to
determine is the contention by respondent that applicant lacks
sufficient interest in the matter. It is observed
that in the court
record there is a ruling by Justice Mrs Kamanga in
The
State Vs Attorney General & Others
,
Exparte
Urban Resident Refugees of Rwanda

Misc. Civil Application No. 19 of 2006 on locus standii and
sufficient interest. She ruled among other things:







(ii)“The
identity of applicants is ambiguous and if the proceedings are to
proceed the applicants’ identity should be articulated
with clarity
within 30 days.








  1. When the
    particulars and identity of the applicants is/are indicated, any
    other issue with regard to sufficient interest should
    be indicated
    during the substantive hearing.”








At first the
application was made in the name of the Urban Resident Refugees of
Rwanda. It was a collective group.







Following the
ruling of Justice Mrs Kamanga the application was later styled
Frodovard Nsabimana and 83 others. He is a Rwandan
granted refugee
status in Malawi. He is presently







7.



residing outside
the designated camp for refugees/asylum seekers. It appears to me
that he is directly affected by the



said order.
Therefore I find that he has sufficient interest to be a party in
these proceedings. I so find.







However, the
difficulty is whether the other 83 named persons do also have
sufficient interest to have a standing in this application.
It is
observed that apart from the names, there is no other detailed
information in respect of each applicant. Are they Rwandans?
Where
are they residing presently? I find that the 83 purported applicants
do not qualify as parties in these proceedings because
of
insufficient disclosure about their personal particulars. It is
therefore ruled that they do not have any locus standii.







Of particular
interest is that the order being challenged is not directed to
Rwandan refugees/asylum seekers only. It is directed
to all
refugees/asylum seekers irrespective of their nationality who are in
Malawi, but reside outside the designated camps. I
would therefore
proceed on this premises.







The second issue
to determine is on applicant’s claim that he has a permit
authorizing him to reside outside the camp. The said
permit was
issued by the Malawi government in



8.






conjunction
with UNHCR. Therefore, he cannot be forced to return to camp.
Counsel Chinoko submitted that the fact that



respondent issued
an ID to applicant who has to fend for himself meant that in a way
authorized him to live outside camp. Whereas
counsel Kachule
submitted that the ID was issued by respondent on the insistence of
WFP so that those residing outside camp should
not receive free
provisions.







The applicant
exhibited FN3 being an ID issued to him. On the face of it are the
following details:








  1. Government of
    Malawi



  2. Refugees Identity
    Card



  3. UNHCR Logo



  4. Malawi Coat of
    Arms



  5. Surname:
    Nsabimana



  6. First Name:
    Frodovard



  7. Sex: Male



  8. DOB: 02/10/1970



  9. Nationality:
    Rwanda



  10. Temp: Address:
    Camp not Assisted



  11. RC NO: U000203



  12. 00ML00020301








9.






It
should be noted that below the coat of arms is the holder’s reduced
passport size photo.







Backside:








  1. This identity
    document is issued by the Government of Malawi under the 1951
    Convention relating to the Status of Refugees









  1. 1969 OAU
    Convention and 1998 Malawi Refugee Act in order to facilitate all
    administrative formalities in connection with the protection
    of
    refugees and asylum seekers.









  1. Government of
    Malawi – Commissioner for Refugees









  1. United Nations
    High Commissioner for Refugees-valid until 31
    st
    December, 2007.








Observably there
are no signatures for the Commissioner for Refugees and also UNHCR
authorities to augment its authority.











10.







On the temporary
address its written “Camp Not Assisted”. The applicant
interprets the statement as giving him authority to
reside outside
camp where he fends for himself for a living. Whereas the respondent
argues that the statement bars the holder
to receive free provisions
from WFP through UNHCR.







To strengthen its
case the respondent has exhibited a letter ex MK1 to show the court
the format of an official permit which it
issues to refugees/asylum
seekers authorized to reside outside camps.







The relevant part
reads:-







Ref. No.
C4/01/33/Vo.II 10
th
March, 2006.







Mr Venutse
Misago







Through: The
Camp Administrator



Dzaleka
Refugee Camp



P.O. Box 16



Dowa.







Dear Sir,







11.







APPLICATION
FOR URBAN RESIDENCE







Thank you for
your application for Urban Residence dated 22
nd
February, 2002.



I am pleased to
inform you that during its meeting held on 23
rd
February, 2006 the Sub-Committee on refugees urban residence approved
your application.







Accordingly,
you are authorized to reside away from Dzaleka Refugee Camp on the
following terms:








  1. Acquisition of
    Temporary Employment Permit: Your employer UN (International
    Criminal Tribunal for Rwanda) to apply on your behalf
    to the
    Immigration Department for the Permit within three months.









  1. New Location
    Area 49 Township, Lilongwe city.









  1. Duration: From
    24
    th
    February, 2006 to 22
    nd
    February, 2007.









  1. Grounds for
    Relocation Employment with Arusha Tribunal as Defence Team
    Investigator required to








12.




  1. operate from
    urban setting. This permit is subject to replacement and renewal at
    the end of the duration of its validity.








Yours
faithfully







SGD:S.D Malowa



For: SECRETARY
AND COMMISSIONER FOR POVERTY AND DISASTER







On examination of
this letter it is noted that:








  1. gives purpose for
    the permit holder to live outside camp- because of employment



  2. Specific location
    – Area 49 in Lilongwe.



  3. Advises applicant
    to obtain through the employer an employment permit from Immigration
    Department.



  4. Duration of the
    permit – 24
    th
    February, 2006 to 22
    nd
    February, 2007.








Further the
respondent acknowledges that applicant applied for a permit to reside
outside camp. The respondent did write applicant
to acknowledge
receipt of the application under exFN2 which reads:







13.





Ref.
No. C4/01/33A/1 25
th
July, 2003







Mr Nsabimana
Frodovard







Through: The
Camp Administrator



Dzaleka
Refugee Camp



P.O. Box 16



Dowa







Dear Sir/Madam







APPLICATION
FOR URBAN RESIDENCE







Thank you for
your application for Urban Residence dated 17
th
June, 2003 submitted through the Camp Administrator. I write to
inform you that your application is receiving attention of the

sub-committee on Urban Residence whose decision will be communicated
to you in due course.







Meanwhile, take
note that the deadline on which all asylum seekers and refugees are
required to have returned to Dzaleka has been
extended from 31
st
July 2003 to 31
st
August, 2003.







14.



By copy of this
letter, members of the subcommittee on Urban Residence Committee are
informed of the extension of the deadline which
follows the
sub-committee’s resolution passed during its meeting held on the
4
th
July, 2003 and confirmed on 24
th
July, 2003.







Yours
faithfully







SGD: S.D.
Malowa



For: SECRETARY
AND COMMISSIONER FOR POVERTY AND DISASTER







This letter FN2 is
proof that applicant applied for urban residence. There is no follow
up to FN2 to show that permission was eventually
granted to applicant
to reside outside.







Comparing FN3 and
MK1, I am persuaded to accept that MK1 is the format of a permit
issued to a refugee/asylum seeker granted authority
to reside outside
camp. Indeed no favourable interpretation of FN3 (identity card) can
be construed that it is a permit for the
purpose claimed by the
applicant. I find that the identity card issued to applicant was











15.







not permission for
him to reside outside camp. He was not granted such permit.







The third issue
to determine relates to the contention that the order was
discriminatory and in breach of sections 20(1) and 44(2)
of the
Constitution. The provisions are reproduced:




“20(1)
Discrimination of persons in any form is prohibited and all persons
are, under any law, guaranteed equal and effective protection
against
discrimination on grounds of race, colour, sex, language, religion,
nationality, ethnic or social origin, disability, property,
birth or
other status.”







44(2) without
prejudice to (1), no restrictions or limitation may be placed on the
exercise of any rights and freedoms provided
for in this Constitution
other than those prescribed by law, which are reasonable, recognized
by international human rights standards
and necessary in an open and
democratic society.”











16.



It has been
submitted for applicant that this court should take cognizance of the
judgment
A
Den Abdihaji & 63 others v Republic

Criminal Appeal No. 74 of 2005 (Lilongwe Registry-unreported). I
have carefully read the judgment. The case was in respect of
illegal
entry into Malawi and a consequent order of deportation. It is a
well reasoned judgment in the circumstances obtaining
in that case.






The
order under consideration in the present application relates to
refugees/asylum seekers residing outside designated camps.
I am
reluctant to apply the reasoning in the Den Abdihaji case to the
present application.







The order being
complained of applied to all refugees/asylum seekers in Malawi
irrespective of their nationalities. The applicant
is just one of
them. Those refugees/asylum seekers who were granted official
permission to reside outside camps are not affected.
However, it is
upon the individual refugee/asylum seeker to prove by means of
documentation of the existence of such permit.
I find that the order
was not discriminatory and therefore not in breach of sections 20(1)
and 44(2) of the Constitution.















17.



The fourth issue
to determine relates to Article 26 of the
Convention
and Protocol on Status of Refugees

to which Malawi is a signatory. Article 26 states:






“FREEDOM OF
MOVEMENT







Each
contracting State shall accord to refugees lawfully in its territory
the right to choose their place of residence to move within
its
territory, subject to







any regulations
applicable to aliens generally in the same circumstance”







It is argued that
applicant having been granted refugee status, he has freedom of
choice of where to go or place to live. To limit
or control his
movement or designate a place of residence for him is in breach of
this Convention.







Malawi as a State
did register its reservation on article 26 as follows:







“the
Government of the
Republic
of Malawi

reserves its right to designate the place or places of residence of
the refugees and to restrict their movements







18.



whenever
consideration of national security or public order so require.”







It has been
further argued that it has not been shown that applicant has
compromised national security or public order to require
him to
return to camp. Further, that the reservation does not apply because
the current Constitution embraces human rights.







To resolve this
issue is first to allude to section 9 of the Refugees Act cap 15:04
which states:







“Any person
granted refugee status under this Act shall be subject to the laws of
Malawi, jurisdiction of courts in Malawi and
to
all measures taken for the maintenance of public order”

Underlining Supplied.







In my view to
require refugees/asylum seekers to reside at designated camps is a
sound administrative measure to ensure certainty
of their population,
provision of basic necessities, communication of information,
protection of their persons and property, facilitation
of
repatriation etc.







The State does not
have to wait until there is an actual breakdown of national security
or public order. It is prudent



19.



upon the State to
set up appropriate security structures and measures, than to be
overtaken by events. It is my view that the reservation
is still
applicable until Malawi expressly rescinds it. As a matter of fact
section 9 of the Refugees Act in a way augments its
validity than
otherwise. The reservation is conformity with the Constitution. I
so find.







The fifth issue to
determine relates to the principle of natural justice that a person
should not be condemned without being given
an opportunity to be
heard. It is contended by applicant that he was not given an
opportunity to be heard when the decision was
made. Moreover 22
days within which he was required to return to camp from date of
order was a short period. It was further contended
that respondent
was in breach of section 43 of the constitution. In support of this
contention several case authorities were cited
among them
Mchawi
v Ministry of Education, Science & Technology
,
Misc civil cause No. 82 of 1997.
Hodges
Muhammed vs Lilongwe City Assembly

Misc Civil Cause No 548 of 2004.







It is appropriate
to reproduce section 43 of the Constitution:







“43Every person
shall have the right to:











21.




  1. lawful and
    procedurally fair administrative action, which is justifiable in
    relation to reasons given while his or her rights,






  1. freedoms,
    legitimate expectations or interest are affected or threatened, and









  1. be furnished
    with reasons in writing for administrative action where his or her
    rights, freedoms, legitimate expectations or interest
    if these
    interests are known”








This provision
received judicial interpretation in the case of
Mchawi
vs Ministry of Education, Science & Technology
.
In that case late Kumitsonyo J, as he then was said:







“It is a
fundamental rule of natural justice and therefore procedural fairness
within the meaning of section 43 of the Constitution
that every
person should be accorded an opportunity to be heard by an unbiased
tribunal in matters where his legitimate expectations
or interest are
affected or threatened”.







In the Mchawi
case the State terminated his services without explaining to him the
reason such drastic action was taken.



22.



The State’s
action was condemned. In the
Hodges
Muhammed

case
the applicants who were members of the executive committee of
Lilongwe City Assembly Workers Union were dismissed prior to
an
intended industrial strike. Court quashed the dismissals because
applicants were not given an opportunity to be heard.







What is the
position in the present application?
The
Mchawi and Hodges Muhammed
cases
were in respect to contracts of employment. The present application
it is a matter of refugees settlement. The question
to be answered
is whether applicant had no opportunity to be heard or was treated
unfairly. In search of the answer is to examine
a letter ex FN2 in
particular paragraphs 2-3. It reads:







“I write to
inform you that your application is receiving attention of the
subcommittee on Urban Residence whose decision will be
communicated
to you in due course. Meanwhile, take note that the deadline on
which all asylum seekers and refugees are required
to have returned
to Dzaleka has been extended from 31
st
July to 31
st
August, 2003.








23.



By copies of
this letter, members of the subcommittee on Urban Residence Committee
are informed of the extension of the deadline
which follows the
subcommittee’s resolution passed during its meeting held on 4
th
July, 2003 and confirmed on 24
th
July, 2003”







From the extract
above it shows that the issue of refugees/ asylum seekers being
required to return to camp existed much earlier
than 4
th
July, 2003. A deadline of 31
st
July, 2003 was setdown. For whatever reason the deadline was
extended to 31
st
August, 2003.







It is not in the
affidavits either of applicant or Mr Malowa whether there were
further official extensions after 31
st
August, 2003. The fact is that applicant still continued to reside
outside camp. Yet in all these years 2003 to 2006 applicant

expressly knew or was fully aware that it was respondent’s
intention that all refugees/asylum seekers have to return to camps.

He also knew that his application to reside outside camp was not
approved. He cannot now turn round to blame respondent that
he was
not afforded an opportunity to be heard. He had more than sufficient
time (3 years) to know that he had to pack up and
return to camp.
That he was residing outside camp unlawfully. There was no



23.



need for
respondent to give him extra time or enter into negotiations because
extensions were already granted. The applicant ignored
with impunity
to make use of them. If anything the respondent is at fault for
being unnecessarily lenient to implement the order.
I so find.







On applicant’s
school going children. If the camp does not provide the type of
education, ie secondary or university education,
he may apply through
the Camp Administrator to the Chief Immigration Officer for student
permits. But he cannot be allowed to
illegally reside out of camp
on the pretext that his children are at school.







Before I conclude,
I wish to put on record my observations regarding the Refugee
Committee established under section 3 of the Refugees
Act. Its
functions and powers are provided in section 6 of the Act. The said
section provides:







“6(1) The
Committee shall receive and hear applications for refugee status and
may-








  1. grant refugee
    status



  2. deny the grant
    of refugee status; and




© cancel or
revoke its decision granting status.







24.



(2) The
Committee may, subject to sections 8 and 12, review cases of persons
granted refugee status under this Act.”







On careful
examination of the Act it is my observation that there is no
provision that creates a subcommittee to the Refugee Committee.
Of
particular importance is the fact that there is no provision which
empowers the Refugee Committee to delegate its functions
and powers
to a subcommittee or other body. Therefore it was/is unlawful for a
subcommittee to busy itself to grant permits to
refugees/asylum
seekers authorizing them to reside outside camps. Because the
purported subcommittee was/is a non existent entity.
If the
subcommittee was a mere internal administrative arrangement for
purposes of efficiency in the discharge of the Refugee
Committee’s
duties, that was in order, but only the name of the Refugee Committee
has to stand out.







Continuing with
the examination of the Act it is further observed that there is no
provision that mandates the Refugee Committee
to grant permits to
refugees/asylum seekers to reside outside camps. Unless such
additional powers are contained in another legal
instrument not
available to this court, the exercise of such powers of granting out
of camp resident permits was/is ultra vires.



25.



It is my better
view that the only competent authority to issue permits of residence
of any nature to refugee/ asylum seekers or
any other person who is
not an indigenous or naturalized Malawian is the Immigration
Department or the Minister responsible for
immigration matters under
the Immigration Act Cap 15:03 Laws of Malawi.







To clarify this
point is to examine the Immigration Act for such authority. The
provisions are listed for easy reference as follows:








  1. The
    responsible Minister is mandated to issue Permanent Residence
    Permits under section 22.









  1. An immigration
    officer is mandated to issue Temporary Residence Permits under
    section 24.









  1. The Chief
    Immigration Officer or such other immigration officer, authorized by
    the Chief Immigration Officer or Minister, may
    issue Business
    Residence Permits under section 24A.









  1. The Chief
    Immigration Officer or such other authorized Immigration Officer may
    issue Temporary Employment Permits under section
    25.




26.




  1. An Immigration
    Officer may issue Visitors’ Permits under section 26.



  2. The Chief
    Immigration Officer may issue Student Permits under section 31.









  1. The Minister
    may under section 3(2) confer or section 32 delegate immigration
    functions and powers upon any public officer or
    police officer.








Therefore, no
public officer, government office, statutory body or private body can
exercise any authority on immigration matters
of any nature unless
expressly conferred or delegated under the Immigration Act or any
other written law.







I now revert to
the substantive matter. In conclusion the application to quash the
order for being unlawful or declare it unconstitutional
has no merit.
It is accordingly dismissed. The injunction(s) against the
respondent is/are vacated forthwith. The respondent
be at liberty to
enforce the order.







Pronounced in
Chambers of this 17
th
day of April, 2008 at Lilongwe.









R.R.
CHINANGWA


JUDGE