The Tribune

By RASHAD ROLLE

Tribune News Editor

rrolle@tribunemedia.net

THE Bahamas must pay Douglas Ngumi another $50,000 after the Privy Council ruled that immigration officials had no lawful basis to keep the Kenyan man locked up for nearly three months while they did nothing to obtain the deportation order that could have justified his continued detention.

The award comes on top of the $750,950 the Court of Appeal had already ordered the government to pay.

The ruling deepens the legal condemnation of one of the country’s most notorious unlawful detention cases: a six-and-a-half-year imprisonment at the Carmichael Road Detention Centre, where Mr Ngumi was beaten, exposed to disease, held in degrading conditions, and left for years in a system that failed to deport him, release him, or respect his constitutional rights.

The country’s final appellate court rejected the Supreme Court and Court of Appeal’s conclusion that immigration officials were entitled to detain Mr Ngumi for three months while arranging his deportation. The Privy Council said that the period could not be treated as lawful because no deportation order was ever made and no meaningful steps were taken to arrange one.

“Although the law empowered the appellant’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 Board said. “Indeed, nothing was done in the initial three-month period by way of arranging either step.”

The Board awarded Mr Ngumi $50,000 for that additional period of unlawful detention, with interest from the date of the writ at 6.25 per cent.

Mr Ngumi, who was arrested by immigration officers on January 12 2011 and released on August 4 2017, had asked the Privy Council to go much further. His lawyers argued that the courts below undervalued the gravity of his detention and abuse, and that the global award should have been far higher. He had previously sought more than $11m, arguing that the damages awarded did not match the scale of what the state had done to him.

The Privy Council rejected most of his challenge, including his complaints about the handling of damages for assault and battery, constitutional breaches, aggravated damages, exemplary damages, interest and costs. However, it sided with him on the central legal point that the first three months of detention should not have been deducted from the period for which he deserved compensation.

The decision clarifies that once a court recommends deportation, immigration officials do not have an open-ended window to hold someone while the bureaucracy idles. The minister must act quickly to decide whether to make a deportation order, and the Governor-General must act quickly to decide whether detention should continue for the purpose of removal.

The Board said that, absent special circumstances, such decisions should ordinarily be made within one or two working days. If the authorities cannot justify a longer period, the legal basis for detention falls away, and the person must be released.

That finding strikes at the heart of the state’s defence of the initial period of Mr Ngumi’s detention. The Supreme Court had found that three months was a reasonable time to organise his deportation. The Court of Appeal upheld that view. The Privy Council said both courts were wrong.

The Board found that Mr Ngumi was lawfully arrested, and that his initial detention was lawful. However, he was not brought before a magistrate within 48 hours, making the days that followed unlawful. After he pleaded guilty to overstaying, the Magistrates’ Court recorded that he was ordered deported to Kenya, though the Privy Council said the court had no power to order deportation and the record should be treated as a recommendation for deportation.

That recommendation allowed only a short period of detention while the proper authorities acted. They did not.

“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,” the Board said.

Mr Ngumi’s case has long stood as a grim indictment of immigration detention practices in The Bahamas.

Justice Indra Charles, who first awarded him damages in 2020, accepted his evidence that he suffered cruel and inhumane treatment while detained. He said that on one occasion, officers took him from the dormitory into the kitchen, stripped him naked, tied him, handcuffed him under a table and beat him with a PVC pipe. His back wounds became infected.

He also testified about severe overcrowding, dirty water, a toilet that would not flush, illness, disease, raids and the use of tear gas. Justice Charles accepted that he was badly beaten on several occasions by officers and subjected to cruel, inhumane and degrading treatment.

The government filed no witness statements at trial. Justice Charles found that the respondents did not produce evidence to rebut Mr Ngumi’s description of what happened to him.

In 2020, she awarded him $641,950, the largest Supreme Court award of its kind at the time. That included $386,000 for false imprisonment, assault and battery, $50,000 in aggravated damages, $100,000 in exemplary damages, $105,000 in constitutional damages and $950 in special damages.

The Court of Appeal later increased the global award to $750,950 after finding the Supreme Court’s compensatory award too low. However, it rejected Mr Ngumi’s push for millions, saying his claim was in “fantasyland”.

The Privy Council did not disturb that broader conclusion. It said local courts are better placed to assess compensation based on Bahamian conditions, and that damages for long unlawful detention should not be calculated by simply multiplying a daily rate by the number of days a person was held.

Instead, courts must consider the detention in the round, including its length, the conditions, the treatment suffered, the misery endured, and whether separate awards are needed for false imprisonment, assault and battery, aggravated damages, exemplary damages or constitutional damages.

The Board said Justice Charles had not overlooked the assault and battery claim, even though a separate award would have been preferable. It found that her global award did include compensation for the beatings and mistreatment Mr Ngumi endured.

The ruling also rejected Mr Ngumi’s bid for interest from the first day of unlawful detention, saying that would overcompensate him because only one day of damage had accrued at that point. The Board also refused to interfere with the lower courts’ refusal to award indemnity costs.

Still, the judgment leaves the government with a larger bill and a sharper legal warning.

For years, Mr Ngumi’s case has raised questions not only about unlawful detention, but about whether damages awards are strong enough to deter abuses by state agencies. The Tribune previously reported that after winning his Supreme Court case, Mr Ngumi said he was still sleeping in a borrowed vehicle, going hungry and bathing outside. “From 2017, I’ve never slept in a bed or locked a door,” he said at the time.

Attorney General Ryan Pinder said after the Privy Council ruling that the decision would not change current immigration detention practices because reforms had already been implemented. He said the Office of the Attorney General meets weekly with the detention centre to ensure people are detained and deported according to law and that their constitutional rights are protected.