The Tribune

By RASHAD ROLLE

Tribune News Editor

rrolle@tribunemedia.net

ATTORNEY General Ryan Pinder said a new Privy Council ruling would not change current immigration detention practices because the government has complied with the law in recent times - despite the ruling being hailed as a “landmark” by Fred Smith, KC. 

The Privy Council ruled yesterday that Kenyan national Douglas Ngumi was unlawfully detained for all but two days while officials organised his deportation, breaking with the Supreme Court and the Court of Appeal, which found it was reasonable to detain him for at least three months while arranging his removal from the country.

Mr Ngumi’s lawyers, including Human Rights Bahamas’ (HRB) Fred Smith, hailed the ruling as “landmark”, saying it clarifies the parameters around which people can be detained pending deportation.

“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,” HRB said in a statement.  

 “Further, it 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.” 

 However, Mr Pinder, in a statement to The Tribune, suggested detention practices have been reformed since Mr Ngumi was in custody. 

 “We accept that there were issues in the past with detentions outside the required period but that is not the case today,” he said. “Since coming to office, the OAG has implemented specific reforms to address this. We meet weekly with the Detention Centre and ensure that persons are detained and deported in accordance with the law and their constitutional rights are protected at every stage.”

 Meanwhile, the Privy Council rejected Mr Ngumi’s request for substantially more than the $750,000 the Court of Appeal awarded him as damages for the torture, unlawful detention and rights violations he experienced, finding the assessment of local judges reasonable.

 Immigration officials arrested Mr Ngumi on January 12, 2011, holding him in detention until they released him on August 4, 2017. Mr Ngumi tearfully testified during his Supreme Court trial of the harm he experienced in custody —beatings with a PVC pipe, teargas, and exposure to diseases, among other trials.

 The Supreme Court and the Court of Appeal agreed that he was unlawfully detained for more than six years.

 The Privy Council, however, has sided with Mr Ngumi’s lawyers on whether it was reasonable for him to be held for at least three months while officials arranged his deportation.

 The judgement of the final appellate court said: “Given that the liberty of the subject is at stake, there is an implied public law duty on the Minister to act with due diligence and expedition in making such a decision (on deportation) within a reasonable time and a similar implied public law duty on the Governor-General to act with due diligence and expedition in deciding within a reasonable time whether to authorise detention. Absent special circumstances, such decisions should ordinarily be made within a matter of one to two working days.

 Unless the Minister or the Governor-General, as the case may be, can show that longer than this is required for due consideration to be given to the making of their respective decisions, after that time the lawful basis for the continued detention of the detainee will fall away and he must be released at that point.”

 “The Board has no hesitation in concluding that the order made by the Magistrate’s Court in this case was a recommendation for deportation. First, Charles J found as a fact that the Magistrate’s Court made a recommendation, and this finding was not among the findings challenged by the appellant in the Court of Appeal. Secondly, the Magistrate’s Court plainly had no power to order deportation but did have power to make a recommendation for deportation. In the circumstances, what was recorded as an order for deportation is properly to be construed as a recommendation for deportation.

 “Nonetheless, no deportation order was ever made in the appellant’s case, as the Court of Appeal emphasised. Thus the appellant’s detention quickly became unlawful and the question of a reasonable period in which to make arrangements to effect his removal did not even arise. Both the Judge and the Court of Appeal erred in reaching the contrary conclusion.

 “There is no doubt that the appellant was lawfully arrested and his initial detention was lawful. He should have been brought before the Magistrate’s 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 18 – an immigration act offence - and detained pending sentence. That was lawful. On January 20, the Magistrate’s 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.”

 Mr Smith argued Mr Ngumi was entitled to as much as $11m, but the Privy Council rejected his arguments.

 “The Board,” according to the judgement, “has emphasised on many occasions that it will not interfere with the Court of Appeal’s assessment of damages unless satisfied that there was an error of principle or that the award was manifestly too low or too high and therefore plainly wrong. This reticence is informed by ordinary principles of appellate restraint, and by the recognition that what is a reasonable sum must reflect local conditions and expectations. The assessment of compensation in The Bahamas is primarily a matter for the Bahamian courts, familiar with local conditions and the society they serve, who are better placed than the Board to say what is appropriate by way of damages. Guidance from other jurisdictions can provide insight but cannot be a substitute for the Bahamian courts’ own assessment of what levels of compensation are appropriate for their own jurisdiction where it exists.”