IMMOGRATION LAW NOTES

2.8 Migrant situation in detention facilities

The Immigration and Deportation Act has placed a mandate on the department of
immigration to detain any person who is suspected of being a prohibited migrant for
the purposes of investigating the matter1, and the said detention should not exceed
fourteen days, however, this is not the case as migrants tend to spend more than
fourteen days in detention without being informed even of the offence that they are
charged with and are not not brought before courts of law.
One of the functions of the Human Rights Commission is to conduct monitoring of
detention facilities (police stations and correctional facilities), the Commission’s main
focus during its monitoring visits is to check on compliance within detention facilities
where the Nelson Mandela rules are concerned. During the reporting period the
commission found that most detention facilities were over crowded which is against
the Nelson Mandela Rules, looking at the inmate situation at the Lusaka Central
Correctional facility which was built to hold a capacity of 300 inmates which by the
reporting period held more than one thousand inmates. During the reporting period
the Commission observed that it was very difficult and impossible for some of the
detention facilities to comply with the Nelson Mandela rules regarding the separation
of inmates according to their categories that is separating juveniles from adult
inmates, separating convicted inmates from remandees.
The Commission as well reported on the complaints that they received from different
groups of inmates in detention facilities. Migrants were one group from which the
Commission received complaints from in order to bring such complaints to the
relevant institutions for their action. During the monitoring period, the Commission
observed that migrants spent undefined periods of time in detention facilities pre and
post trial which is a violation of their rights of secure protection of the law and a
violation to their personal liberty.
During monitoring, the Commission received complaints from Shafie Ahmed and 7
others against the Department of Immigration. These were migrants of Ethiopian
descent being held at Kamwala Remand Correctional Facility, they entered Zambia on
a one month’s permit in April 2019 as delegates to a workshop in want was suspected
to be a case of human trafficking. These migrants were being kept in the correctional
1
Section 25 of the Immigration and Deportation Act
facility as witnesses. Upon the Commission’s intervention the migrants were moved
to a home of a member of the Ethiopian Community in Zambia until they testified in
court. After the court proceedings they were later repatriated to their country of
origin.
During the monitoring period the Commission also received a complaint from
Abuddalah Hassan against the Department of Immigration. Mr Abuddalah Hassan
complained on his behalf and on the behalf of his fellow Somalian inmates in the
facility most of whom had already completed serving their sentences but were still
being held in the facility and not deported. Holding these migrants even after they had
served their prison sentences was a violation of their right to personal liberty which is
against the provisions of the constitution.

2.9 Rights applicable to migrants under international conventions

The Africa Charter on Human and People’s Rights provides rights is a regional
convention that gives guidelines to all its member states and parties to the convention
to recognize the rights, duties and freedoms in adopting legislative or other means to
give effect to them.
The Charter provides that every individual shall be equal before the law and that they
shall be entitled to equal protection of the law2. This entails that the law should be
applied equally to all people regardless of their origin, culture, race, gender or any
other attributes. Therefore, migrants are to be treated equally before the law.
The Charter also provides for the right to liberty and security of person, the charter
states that no person shall be deprived of his freedom except for reasons or conditions
laid by law. Under this article the charter further states that no one may be arbitrarily
arrested or detained3. Migrants just as citizens in a particular country sho

2
Article 3 of the Africa Charter on Human and People’s Rights
3
Ibid, Artcle 6