Taxpayers to carry costs of midnight arrest

POLICE and immigration officers who took part in a sweep for illegal immigrants in which a Namibian-born woman was caught up in their dragnet were rapped hard over their knuckles in a judgement of the High Court this week.

The arrest and detention of Luiza Lomba, a Namibian-born Ondangwa resident who found herself detained as an alleged illegal immigrant in December 2000, is now set to cost the Minister of Home Affairs – or, in effect, the Namibian taxpayer – N$12 000. It is this amount in compensation for damages that Lomba suffered as a result of her experience at the hands of Police and immigration officials on December 7 2000 that the High Court awarded to Lomba in a judgement handed down on Monday.The judgement was the result of an appeal that the Home Affairs Minister had lodged against a Windhoek Magistrate’s Court decision, in which he had also been judged to be accountable for Lomba’s wrongful arrest and detention, and was ordered to pay her N$15 000 in compensation.The High Court, in a judgement written by Judge Petrus Damaseb and with which Judge President Peter Shivute concurred, dismissed the bulk of the Minister’s appeal, but lowered that amount to N$12 000, based on a finding that Lomba had to some extent exaggerated the hardships she suffered in the about 11 hours that she had been locked up in a Police cell before she could prove that she was a Namibian citizen.The officials who had detained her had acted arbitrarily and unreasonably, judge Damaseb commented in his judgement.In fact, in his view part of their conduct during those early morning hours of December 7 2000 represented the height of unreasonableness, Judge Damaseb stated in a scathing comment in the judgement.He was referring to evidence by both immigration and Police officials who had testified on behalf of the Minister in the Magistrate’s Court, to the effect that they would arrest anyone that they found without proper proof of his or her identity – even if they knew that such a person was a Namibian citizen.Lomba was just such a person.She was detained after a party of Police and immigration officers taking part in a night-time operation supposed to be aimed at finding illegal immigrants in Namibia had knocked on the door of her flat at Ondangwa.When she was unable to produce her Namibian birth certificate quickly enough, she was bundled off to a Police cell, only to be released about half a day later when she found the certificate after she had been allowed to return to her flat to look for it.There had not been reasonable grounds on which Lomba could be arrested as a suspected prohibited immigrant, the Judge found.The fact that a person could not produce an identification document on demand was not enough to warrant the arrest of that person, he indicated.Before an official took such a step, the judge said, there was a host of other enquiries that could first be made – and that had to be made – by an official that suspected that a person may 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 Damaseb noted.”(I)t is therefore not a matter to be treated without some deliberation and a measure of foreboding,” he cautioned.While the court, for the most part, dismissed the appeal on behalf of the Minister, it also ordered that the Minister should bear Lomba’s legal costs in the appeal.She had been represented by Norman Tjombe from the Legal Assistance Centre.Steven Nkiwane, from the Directorate Civil Litigation (Government Attorney) in the Office of the Attorney-General, appeared for the Minister in the High Court.It is this amount in compensation for damages that Lomba suffered as a result of her experience at the hands of Police and immigration officials on December 7 2000 that the High Court awarded to Lomba in a judgement handed down on Monday.The judgement was the result of an appeal that the Home Affairs Minister had lodged against a Windhoek Magistrate’s Court decision, in which he had also been judged to be accountable for Lomba’s wrongful arrest and detention, and was ordered to pay her N$15 000 in compensation.The High Court, in a judgement written by Judge Petrus Damaseb and with which Judge President Peter Shivute concurred, dismissed the bulk of the Minister’s appeal, but lowered that amount to N$12 000, based on a finding that Lomba had to some extent exaggerated the hardships she suffered in the about 11 hours that she had been locked up in a Police cell before she could prove that she was a Namibian citizen.The officials who had detained her had acted arbitrarily and unreasonably, judge Damaseb commented in his judgement.In fact, in his view part of their conduct during those early morning hours of December 7 2000 represented the height of unreasonableness, Judge Damaseb stated in a scathing comment in the judgement.He was referring to evidence by both immigration and Police officials who had testified on behalf of the Minister in the Magistrate’s Court, to the effect that they would arrest anyone that they found without proper proof of his or her identity – even if they knew that such a person was a Namibian citizen.Lomba was just such a person.She was detained after a party of Police and immigration officers taking part in a night-time operation supposed to be aimed at finding illegal immigrants in Namibia had knocked on the door of her flat at Ondangwa.When she was unable to produce her Namibian birth certificate quickly enough, she was bundled off to a Police cell, only to be released about half a day later when she found the certificate after she had been allowed to return to her flat to look for it.There had not been reasonable grounds on which Lomba could be arrested as a suspected prohibited immigrant, the Judge found.The fact that a person could not produce an identification document on demand was not enough to warrant the arrest of that person, he indicated.Before an official took such a step, the judge said, there was a host of other enquiries that could first be made – and that had to be made – by an official that suspected that a person may 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 Damaseb noted.”(I)t is therefore not a matter to be treated without some deliberation and a measure of foreboding,” he cautioned.While the court, for the most part, dismissed the appeal on behalf of the Minister, it also ordered that the Minister should bear Lomba’s legal costs in the appeal.She had been represented by Norman Tjombe from the Legal Assistance Centre.Steven Nkiwane, from the Directorate Civil Litigation (Government Attorney) in the Office of the Attorney-General, appeared for the Minister in the High Court.