Not carrying ID is NOT a crime

THE Ministry of Home Affairs’ threatened intention to arrest and detain Namibians who travel without identity documents could cost Government thousands of dollars in civil claims.The Ministry’s spokesperson, Kauku Hengari, told The Namibian last week that it is a requirement for all people travelling on national roads to produce identity documents whenever requested by a law enforcer.

He said people without the requested proof of identity on them would be detained until their identity could be proved. Many Namibians do not have identity documents, however, and the Ministry’s stated intention to have them detained if they are found travelling on the country’s roads “is a grave invasion into their rights against arbitrary arrest and detention and for their rights to freedom of movement”, the Director of the Legal Assistance, Norman Tjombe, said in reaction on Friday.Carrying proof of identity could help people to avoid unnecessary official hassle, but that does not mean that it is a legal requirement, it appears.If the Ministry follows through on Hengari’s warning, “such arrest and any subsequent detention will be illegal and unconstitutional for many reasons”, Tjombe said.”Firstly, there is no law in this country that requires Namibian citizens, or any one else, to carry their identity documents with them when they travel within the country.A passport is required when a person travels across the international borders,” he said.”Secondly, the Ministry of Home Affairs and Immigration is on record stating that they are behind in issuing identity documents to each and everyone in Namibia,” he added.”Now they want to arrest people for not having in possession what they could not do – to issue identification documents to citizens! That is really ridiculous.”He continued that it is common knowledge that many Namibians do not have identification documents as they never applied for them, because of a variety of reasons.”The fact that a person has no identification document does not mean he or she is a criminal, and likewise, the possession of an identification document is also not an indication of not being a criminal,” Tjombe said.”In other words, the issue of identification documents is not a fair and objective determination of criminality.An officer wanting to effect an arrest must form a reasonable suspicion that a crime has been committed – the mere non-production of an identification document cannot lead to any suspicion, let alone a reasonable suspicion.””The Ministry’s inability to fight crime should not lead to the deprivation of rights of everyone.This is a constitutional democracy, not a police state,” Tjombe commented.Only last year, Government paid dearly for arresting a Namibian-born Ondangwa resident, Luiza Lomba, because she was unable to immediately furnish proof of her identity when officials who paid a night-time visit to her flat demanded it from her.In her case, Judge President Petrus Damaseb said the fact that a person could not produce an identity document on demand was not enough to warrant an arrest.He pointed out that the Immigration Control Act allowed a Police or immigration officer to arrest someone as a suspected illegal immigrant only if the officer has reasonable grounds to suspect that the person is indeed a prohibited immigrant in Namibia.The mere fact that someone is unable to produce an identity document or some other form of identification is not in itself such “reasonable grounds” as laid down by the law, the Judge President indicated.”In fact, in my view it represents the height of unreasonableness,” he said.Before an official took such a step, the Judge President said, there was a host of other enquiries that could first be made, and that had to be made, by an official who suspected that a person might be a prohibited immigrant in Namibia.The arrest of a person was a very serious matter that not only restricted a person’s freedom, but was also an invasion of privacy and a reflection on the person’s dignity and reputation, Judge President Damaseb noted.In Lomba’s case the Namibian taxpayer, through Government, had to pay N$12 000 as compensation for damages that she suffered as a result of her experience at the hands of Police and immigration officials.Many Namibians do not have identity documents, however, and the Ministry’s stated intention to have them detained if they are found travelling on the country’s roads “is a grave invasion into their rights against arbitrary arrest and detention and for their rights to freedom of movement”, the Director of the Legal Assistance, Norman Tjombe, said in reaction on Friday. Carrying proof of identity could help people to avoid unnecessary official hassle, but that does not mean that it is a legal requirement, it appears.If the Ministry follows through on Hengari’s warning, “such arrest and any subsequent detention will be illegal and unconstitutional for many reasons”, Tjombe said.”Firstly, there is no law in this country that requires Namibian citizens, or any one else, to carry their identity documents with them when they travel within the country.A passport is required when a person travels across the international borders,” he said.”Secondly, the Ministry of Home Affairs and Immigration is on record stating that they are behind in issuing identity documents to each and everyone in Namibia,” he added.”Now they want to arrest people for not having in possession what they could not do – to issue identification documents to citizens! That is really ridiculous.”He continued that it is common knowledge that many Namibians do not have identification documents as they never applied for them, because of a variety of reasons.”The fact that a person has no identification document does not mean he or she is a criminal, and likewise, the possession of an identification document is also not an indication of not being a criminal,” Tjombe said.”In other words, the issue of identification documents is not a fair and objective determination of criminality.An officer wanting to effect an arrest must form a reasonable suspicion that a crime has been committed – the mere non-production of an identification document cannot lead to any suspicion, let alone a reasonable suspicion.””The Ministry’s inability to fight crime should not lead to the deprivation of rights of everyone.This is a constitutional democracy, not a police state,” Tjombe commented. Only last year, Government paid dearly for arresting a Namibian-born Ondangwa resident, Luiza Lomba, because she was unable to immediately furnish proof of her identity when officials who paid a night-time visit to her flat demanded it from her.In her case, Judge President Petrus Damaseb said the fact that a person could not produce an identity document on demand was not enough to warrant an arrest.He pointed out that the Immigration Control Act allowed a Police or immigration officer to arrest someone as a suspected illegal immigrant only if the officer has reasonable grounds to suspect that the person is indeed a prohibited immigrant in Namibia.The mere fact that someone is unable to produce an identity document or some other form of identification is not in itself such “reasonable grounds” as laid down by the law, the Judge President indicated.”In fact, in my view it represents the height of unreasonableness,” he said.Before an official took such a step, the Judge President said, there was a host of other enquiries that could first be made, and that had to be made, by an official who suspected that a person might be a prohibited immigrant in Namibia.The arrest of a person was a very serious matter that not only restricted a person’s freedom, but was also an invasion of privacy and a reflection on the person’s dignity and reputation, Judge President Damaseb noted.In Lomba’s case the Namibian taxpayer, through Government, had to pay N$12 000 as compensation for damages that she suffered as a result of her experience at the hands of Police and immigration officials.