- December 4, 2022
- |Law Everyday
There is a common occurrence that I have observed in Namibia of people being found without proper or legal documents. The archives are literally littered with such reports as I illustrate hereunder. What I also intend to illustrate is the fact that this common occurrence is a serious statutory offence that has dire consequences, and as such, it must not be a common occurrence at all.
In April 2016 two dancers who were Angolan Nationals were arrested backstage of the NAMAS by immigration officials on allegations that they had fake Namibian birth certificates. On 10 June 2022, New Era reported a case of a 41-year-old Zambian witchdoctor who was brought in Namibia by a family who needed his services. He was issued with a letter by a traditional authority to help the family and go back, but after that he continued conducting healings from village to village for a fee. The said witchdoctor was arrested and charged with contravening the Immigration Control Act, 7 of 1993 (the Act) by working without a valid work permit, and he was fined an amount of N$6 000.00 on conviction.
During my early years of practicing law in Rundu, I personally dealt with a matter where some residents wanted their witchdoctor ‘bailed out’ after he was arrested by immigration officials. What I recall mostly is their persistence that this was a simple matter whereby a lawyer could just go and say a few words to the immigration officers and their man would be out and back to business, but alas, that was not the case. I learnt then that contravening the Act does not have straightforward legal solutions.
A recent case in point is that involving two senior counsels from South Africa who got involved in a legal quagmire of cinematic proportions. The two advocates were roped in to represent some of the accused persons in the Fishrot matter. When they arrived via Hosea Kutako International Airport, they sought entry into Namibia and made certain declarations to immigration officials upon which they were granted visitors’ permits in terms of section 29(1) of the Act. However, it turned out that they sought entry into the country to represent their clients in a bail application.
Subsequently, the two were charged with of contravention of section 29(5) and section 54(e) of the Act. They pleaded guilty in the Magistrate’s Court, convicted, and sentenced, each to a fine of N$6 000 or one year’s imprisonment on the first charge and a fine of N$4 000 or six months’ imprisonment on the second charge. Thereafter they brought an appeal against their conviction and sentence before the High Court, but on 4 September 2020, two justices of that court rejected the grounds of appeal and dismissed the appeal. They subsequently sought and were granted leave to appeal to the Supreme Court. However, in June 2021, the High Court nevertheless reviewed and set aside their arrest, conviction, and sentences.
Fast forward to this year, the Namibian of 1 September 2022 carried a story of two South African musicians who were arrested in the middle of their performance at Walvis Bay and charged with contravening the Act. The two appeared in the Walvis Bay magistrates court where, through their legal representative pleaded guilty, and were accordingly found guilty and sentenced to a fine of N$3 000.00 each.
The point I want to bring home is that even though it is foreign nationals who can contravene the Act in the sense described above, it so happens that Namibians are involved in bringing those foreign nationals into the country mainly for work. Such was the case in respect of all the cases reported above. It is those Namibians who would go around looking for legal practitioners to launch bail applications for the accused foreign nationals, only to realize that bail may not be an option in those cases. Upon such realization, the justice system and the lawyer involved is usually seen in a bad light, not of its/their own making, but perhaps for lack of understanding on the part of the bail-seeking clients.
Here is what you should know, according to Immigration Law expert, Kalundu Kamwi of K Kamwi Law Chambers Incorporated, the procedure is as follows. Once a foreign national is found in Namibia without proper documentation, they will be arrested by immigration officials and detained for 14 days, pending a hearing by an Immigration Tribunal, duly constituted, to decide on the next steps. The Immigration Tribunal may decide to declare the person an immigrant and order their deportation, as case may be. But it can be weeks before the tribunal sits, if at all. In the meantime, such a person will be held in custody, and their chances to be granted bail are little to none because they are essentially in the country illegally. Where will they go if they are released on bail? As a result, it has become a practice that these foreign nationals rather plead guilty in the magistrates’ courts, sentenced, and pay fines, or serve their term of imprisonment, and then deported.
Therefore, next time you want to bring that witchdoctor or artist to ‘perform’ in Namibia, make sure that that they have all the necessary documents.
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