NASSAU, BAHAMAS — The Privy Council yesterday ruled that it was ‘unlawful’ for a Kenyan man to have been detained for more than two working days pending a deportation order, awarding him an additional $50,000 with interest for the initial three month period he was held awaiting repatriation.
The Privy Council made the ruling on the appeal of 51 year old Kenyan national Douglas Ngumi, who was detained at the Carmichael Road Detention Centre for more than six years after being convicted of overstaying back in 2011.
During his time in detention Ngumi was badly beaten on several occasion and subjected to “appalling and degrading treatment.” Ngumi testified that he was housed with 500 hundred persons in a dormitory meant for only 50 persons and as a result contracted diseases. He also recounted several raids while he was held at the facility, during which time tear gas was often used on him and other detainees.
Ngumi was initially awarded over $640,000 in damages for his unlawful arrest, detention and inhumane treatment at the Detention Centre and subsequently saw that sum increased to 750,950 by the Court of Appeal, although it was still less than 10 percent of the $11 million he was seeking.
Local NGO Human Rights Bahamas yesterday welcomed the “landmark” Privy Council ruling which it said has clarified, once and for all, that the current detention practices of the Bahamas Immigration Department are illegal.
“The ruling affirms what HRB has stated repeatedly; the authorities have no lawful right to detain a person suspected of violating the Immigration Act for more than 48 hours at absolute maximum. They must either bring such individuals before the courts, or release them immediately, or deport them,” the group stated.
Human Rights Bahamas also noted that the ruling further confirms that even after a person pleads guilty and is convicted of violating the Act, and a recommendation for deportation is made by the courts, the authorities cannot continue to hold that individual for more than two working days in the absence of a signed Deportation Order.
“Human rights defenders, both at home and abroad, have repeatedly condemned the excesses and unlawful actions of the Immigration Department which regularly deprives individuals of their constitutionally-protected liberty for weeks, months and even years at a time, subjecting them to cruel beatings, torture and appalling conditions in the meantime. This ruling draws a line in the sand. The status quo cannot be allowed to continue. HRB calls for an immediate, transparent and complete review and overhaul of the protocols and policies governing Immigration enforcement with the aim of finally bring the activities of the Department in line with national law, international best practices and universal standards of common decency,” the group stated.
The Privy Council noted that Nguni’s appeal raised questions about the proper construction of provisions relating to detention for the purposes of effecting deportation in the Immigration Act 1967, and the proper approach to the assessment of damages for a lengthy period of unlawful detention.
The Privy Council in its decision noted that although the law empowered the Ngumi’s detention for the purposes of making a decision to deport him, and thereafter (if authorised by the Governor- General) pending his removal from The Bahamas, no deportation order was ever made.
The Privy Council stated that there was no doubt that the appellant was lawfully arrested and his initial detention was lawful. “He should have been brought before the Magistrates’ Court within 48 hours, but this was not done and he was detained unlawfully in the days that followed. He was convicted on his guilty plea of overstaying on January 18th (2011) – an immigration act offence – and detained pending sentence. That was lawful. On January 20th, the Magistrates’ Court made an order recommending deportation. The appellant’s detention was thereafter authorised by section 41(4) Immigration Act but only for up to two working days absent special circumstances. In the absence of any deportation order in that time or at all, his detention after the expiry of the two day period was and remained unlawful. It follows that he falls to be compensated for the period just short of three months that was deducted by the courts below from the overall unlawful detention period,” the Privy Council noted.
“Indeed, nothing was done in the initial three month period by way of arranging either step. Accordingly, there was no basis for the judge’s finding that there was a period of detention, assessed as three months, that was lawful. This period of detention (less a couple of days) was unlawful. The Court of Appeal was wrong to hold otherwise,” the Privy Council ruled.
It added, “Damages for this period fall to be assessed accordingly. Since no other aspect of the award is to be remitted, the Board has concluded that it should assess damages for this period. Acknowledging that this is not an initial shock case, and taking into account the findings made by the judge about the appellant’s appalling treatment in, and the conditions of, his unlawful detention (including the fact that he suffered assaults, that the treatment was malicious and oppressive and that his constitutional rights were breached) the global award for this three month period is assessed as $50,000. There will be interest payable on that sum in accordance with the Court of Appeal’s judgment.” Interest is payable from the date of the writ at the rate of 6.25 percent.
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