Kenya (Sitamze) v Minister for Home Affairs

• Jurisdiction: Kenya
• Date: 18 April 2008
• Court: High Court (Kenya)

Kenya, High Court

(Nyamu J)

Republic of Kenya

and

Minister for Home Affairs and Others

ex parte Sitamze

Relationship of international law and municipal law — Treaties — International human rights treaties and instruments — International Covenant on Economic, Social and Cultural Rights, 1966 — International Covenant on Civil and Political Rights, 1966 — Declaration of Human Rights of Individuals Who Are Not Nationals of the Country In Which They Live, 1985 — Constitution of Kenya 1963 — Interpretation — Whether Constitution of Kenya capable of giving effect to provisions of international human rights instruments to which Kenya a State party — Whether Constitution capable of giving effect to rights not expressly mentioned — Enforceability of rights by non-nationals

Human rights — Right to work and right to family life — Protection of rights to work and to family life under Constitution of Kenya 1963 and international human rights instruments — Enforceability of rights by non-nationals — Refusal of work permit — Whether refusal of work permit to non-national married to Kenyan national a breach of right to work and right to family life — Protection of fundamental rights in accordance with domestic law — Sections 5 and 8 of Immigration Act 1967 — Whether abuse of discretionary powers by executive — Whether reason and effect of denial of work permit a breach of applicant's rights — Separation of powers — Role of executive in maintaining public order and acting in the public interest — The law of Kenya

Summary: The facts:—The applicant, a national of Cameroon married to a Kenyan woman, sought judicial review of the Ministry of Immigration's decision to refuse him a work permit required by foreign nationals wanting to engage in economic activity in Kenya. Permits were granted by immigration officers acting with discretionary powers provided by Section 5 of the Immigration Act 1967 (amended 1972).

The grant of the permit had been refused by the Principal Immigration Officer and, following the lack of a timely appeal, a deportation order had been issued against the applicant. Although the deportation order was subsequently challenged successfully in court, the applicant's passport and travel documents had been confiscated by the police, who he complained had subjected him to intimidation, harassment and inhuman treatment on the pretext of his apparent failure to possess valid immigration documents.

The applicant sought an order of mandamus to compel the grant of the permit and an order of prohibition to prevent the police from harassing him or hindering his free movement in Kenya. The applicant claimed that the refusal to grant the permit was discriminatory, unjust and unfair and affected his right to the enjoyment of his property under Section 75 of the Constitution of Kenya 1963 (‘the Constitution’), his right to found a family under Article 5 of the Declaration of the Human Rights of Individuals Who Are Not Nationals of the Country In Which They Live (1985) (‘the Declaration’)1 and his right to work as protected by Article 6(2) of the International Covenant on Economic, Social and Cultural Rights, 1966 (‘the ICESCR’).2 He further contended that the confiscation of his passport was also in breach of his right to property under Section 75 of the Constitution and that his treatment by the police amounted to inhuman and degrading treatment contrary to Section 74(1) of the Constitution, Article 5 of the Declaration and Article 17 of the International Covenant on Civil and Political Rights, 1966 (‘the ICCPR’).3

The respondents replied that the discretionary powers under Section 5 of the Immigration Act entitled the Immigration Officer to refuse the applicant a permit. Since no appeal had been made, the Minister was entitled under Section 8 of the Act to declare the applicant a prohibited immigrant for the purposes of his removal from Kenya. The respondents also produced a classified document claiming the applicant was a threat to national security.

Held:—The application was dismissed.

(1) The Constitution of Kenya could be generously interpreted to recognize and give effect to fundamental rights provided for under international instruments or other treaties to which Kenya was a State party. However, these rights were not unlimited and, in the absence of express incorporation, international instruments or treaties could only be applied where ambiguities or gaps in the domestic law existed and where the instruments or treaties were not inconsistent with the Constitution (pp. 364–71).

(2) The respondents were entitled to use the discretionary powers under Section 5 of the Immigration Act to deny the applicant a permit. In doing so, they had not breached his right to work or to a family life.

(a) Under a broad interpretation of the Constitution and under Article 5(1)(d) of the Declaration, Article 6(1) of the ICESCR and other international instruments, the applicant had the right to work as regulated by domestic law (pp. 364–5).

(b) As a non-national, the applicant did not have an absolute right to a work permit, which had to be issued in accordance with domestic law (p. 367).

(c) The executive was best placed to take account of the State's national interests, including security concerns, and to regulate immigration matters. Under the Immigration Act, the Immigration Officer was entitled to a margin of appreciation on the issuance of work permits and the respondents had sufficiently demonstrated to the Court via the classified document that the applicant posed a security risk (pp. 367–70, 373).

(d) Although not expressly mentioned therein, the applicant's right to a family life was protected by the Kenyan Constitution. However, the effect of the denial of the work permit by the respondent had not constituted a breach of the applicant's right to a family life because the applicant could choose to emigrate to his country of origin and live there with his family (pp. 367–8, 371–2).

(3) Although the applicant was entitled to protection under Section 74(1) of the Constitution and Article 7 of the ICCPR, there was no evidence of torture or inhuman treatment by the Kenyan police. The right under the Constitution and ICCPR not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment applied to all persons in Kenya, not just Kenyan citizens. However, the applicant had failed to show that the alleged infringement was tangible or had amounted to torture or inhuman treatment as envisaged by the Constitution or the ICCPR (pp. 361–3, 372).

(4) The applicant's passport was part of the right to liberty and the freedom of movement covered by Sections 72(1) and 81(1) of the Constitution. The confiscation of the passport was not therefore a breach of the applicant's right to property under Section 75 of the Constitution as claimed (pp. 363, 372).

The following is the text of the judgment of the Court:

The application before the court is dated 16 December 2004. The Applicant is a Cameroonian national married to a Kenyan lady. As a foreigner, the Applicant can only engage in economic interests after obtaining a work permit from the Ministry of Immigration. According to the statement, the Applicant has complied with the requirements of Rule 22 of the Immigration Act Chapter 172 Laws of Kenya.

The Minister for Home Affairs and the Principal Immigration Officer have refused to positively consider the applicant's request for a class ‘H’ permit.

The Applicant contends that he has been running his company Sileo Company Kenya Ltd with the aid of his wife Josephine Nyambura Thuo as exhibited by the trading licence, Articles of Association and certificate of analysis produced in this case. The applicant's company has employed many Kenyans and it is financially healthy. The Applicant was also issued with a certificate of good conduct on 23 June 2003 by the Kenya police and as such the 1st Respondent has no good reason to deny the Applicant the class ‘H’ permit.

The Applicant has also been constantly intimidated, harassed and subjected to inhuman treatment by the police on the pretext of failure to possess valid immigration documents.

The grounds upon which the reliefs are sought are:

• 1. The decision by the 1st and 3rd Respondents is discriminatory, unfair and unjust.

• 2. The Applicant has been deprived of his right to enjoy his property quietly in contravention of Section 75 of the Constitution of Kenya.

• 3. The Applicant shall be deprived of his right to found a family if he is deported, which is in contravention of Article 5 of the Declaration of Human Rights of Individuals Who Are Not Nationals of the Country In Which They Live.

• 4. The harassment and arrest of the Applicant by the 2nd Respondent amounts to inhuman and degrading treatment contrary to Section 74 of the Constitution as well as Article 5 of the Declaration of Human Rights.

• 5. The decision by the 1st Respondent to refuse the Applicant a class ‘H’ permit contravenes Article 6(2) of the International Covenant on Economic, Social and Cultural Rights.

• 6. The Applicant has been deprived of his right to own and retain his property in contravention of Article 9 of the Declaration of Human Rights.

• 7. The decision of the 1st Respondent contravenes Article 1 of the Code of Conduct for Law Enforcement Officials.

The Applicant has sought reliefs as follows:

• (a) An order of mandamus to compel the 1st Respondent to issue the Applicant with a class ‘H’ work permit to enable the applicant to carry out his business lawfully.

• (b) An order of prohibition to forbid the 2nd Respondent by himself and/or his servants and agents from intimidating, harassing, arresting and or hindering the applicant's free movement on pretext of not being in possession of valid immigration documents.

The application is opposed by the Minister for Home Affairs, the Commissioner of Police and the Principal Immigration Officer, who are the three Respondents. All the parties...