The Supreme Court of Appeal (SPA) Justice John Katsala on Tuesday rejected an application by a national of Rwanda, Joseph Nsabimana who was seeking an order granting him leave to commence judicial review proceedings in the High Court and an interim injunction restraining the Department of Immigration from deporting or removing him from Malawi
Through his lawyer Khumbo Bonzoe Soko, Nsibamana argued that since his Business Residence Permit is still valid, the department does not have the liberty to conduct themselves in a manner that is inconsistent with the rights he has under the Permit.
He was issued the permit on 23 August 2019 which is valid for a period of five years; meaning it will expire on 22 August 2024.
Nsibamana was arrested on June 24, 2023 on suspicion that he is committing the offence of money laundering, before he was handed over to the Immigration Department.
On June 29 2023, he filed a similar application ex parte in the Civil Division of the High Court before the Justice Msiska who directed that the application must come inter partes on Monday, 10 July 2023 at 8:30 o’clock in the forenoon.
However, before the hearing, Nsibamana made a fresh application before the SCA alleging that the department of immigration is in the course of transporting the him to the airport with the intention of deporting him from the country
He argued that if he is deported from Malawi before the hearing, his application will be moot and academic.
According to Nsibamana, the police searched his house and premises allegedly for fire arms, foreign currency and an “underground bunker”, but none of these was found.
“He was taken into custody where he has been interviewed by different state agents before being handed over to agents of the 2nd respondents. The applicant says that he is informed that the respondents intend to drive him to one of the borders of Malawi and deport him from the country.
“It is also alleged by the applicant that this is the practice that the respondents have adopted since the 1st respondent announced an operation to relocate refugees to Dzaleka purportedly to rid the country of “warlords” who have escaped from other countries and have sought refuge in Malawi,” reads part of the affidavit sworn by counsel Soko.
In his ruling, Justice Katsala refused to grant the order saying since the High Court has not yet heard and determined the applicant’s application, it is incompetent for Nsabimana to come to the SCA with a similar application.
“As per the established practice of this Court, the applicant must first have his application determined by the court below before he can come to this Court. The rush to this Court before the application is determined by the Judge in the court below was unwarranted and erroneous.
“It is something that this Court cannot applaud. The applicant should wait for his appointment before the Judge in the court below scheduled for Monday, 10 July 2023 or any other date that may be set for the hearing of his application.
“I do not agree that the hearing before the Judge will be moot and academic. In my view, even if by that time the applicant may be out of the country, he can still prosecute the proceedings and be free to return to Malawi in the event that the court finds in his favour and makes the declarations he seeks in his intended judicial review proceedings,” reads part of the ruling dated July 4, 2023.
Picture: Justice Katsala
