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Weekend Nation
15 June 2024
By Zororai Nkomo

Despite the fact that Malawi ratified regional and international treaties and conventions to protect vulnerable people such as refugees, the treatment of refugees as criminals by immigration laws and policies is unconstitutional and against international human rights law.

The government of Malawi has international and domestic legal obligations to safeguard the rights of different migrant groups. This requires migrants to be processed properly to determine if they are a member of a group that needs protection.

Southern Africa Litigation Centre (SALC) Executive Director, Anneke Meerkotter, said detaining refugees and asylum seekers is against the country’s international obligations on the treatment of migrants.

‘Applying both international and domestic law, Malawi is under an obligation to support refugees who are legal residents in Malawi. Holding such a person in detention is incompatible with these obligations. It is crucial that an adequate system of migrant screening is applied at borders and by migration officials so that those with grounds to claim asylum are provided with the necessary protection’.

‘Asylum seekers and refugees should not be detained in prisons. Migration officials must be equipped to identify asylum seekers. It should not be assumed that those seeking refugee status will be aware of their entitlement to that status. Basic immigration information should be provided to all immigrants’ she said.

Meerkotter said the government should look for alternative means to deal with refugees rather than detaining them in prisons the same way with criminals awaiting trial.

‘Considering the severe overcrowding in criminal detention facilities and the vulnerability of migrants to inhospitable conditions in prisons, the Minister should identify alternative places of custody and authorise these to detain prohibited migrants’ said Meerkotter.

The Immigration Act provides for the power to detain persons who are suspected of being Prohibited Immigrants.

The Act further provides that prohibited migrants must be treated as persons awaiting trial if they are being detained under immigration powers while waiting to be deported or removed from Malawi.

The Immigration Act of Malawi provides that any person who enters its territory without a valid passport or identification documents is a prohibited immigrant unless that person proves that he or she is a resident of Malawi.

Prominent Malawi human rights lawyer Chikondi Chijozi said the law should allow immigrants to pass through Malawi under statutory permit exemptions.

‘Immigration policy makers should consider the wide array of discretionary powers at their disposal. There is a need to create new regulations for immigrants. There is ample discretion not to detain immigrants and to allow migrants including those without documentation to pass lawfully through Malawi. Such more humane and less resource intensive alternatives are supported by Malawi’s human rights obligation’ said Chijozi.

The immigration act provides that an illegal immigrant will be detained if failed to comply with an order of the immigration officer to leave the country.

Such a legal provision has the potential to be abused and violate fundamental rights of refugees.

The law must give alleged illegal immigrants a reasonable opportunity to leave the country voluntarily than resorting to detention.

The other challenge posed by the Immigration Act is the time frame for detention of alleged illegal immigrants pending removal from the country. The law should be clear on the time period in which a person can be detained, providing that an immigrant can be detained as long as is ‘necessary’. It is unlawful and a violation of human rights to detain prohibited migrants for any period longer than necessary to arrange for their removal, which must be done at the first reasonable opportunity.

The Act further worsened the position of illegal migrants by providing in Section 10 that prohibited immigrants are responsible for incurring costs of their removal from Malawi. The challenge created by this provision is that an illegal immigrant who fails to fund for leaving the country will automatically be subjected to indefinite detention.

The practical effect of the indefinite detention is that detained illegal immigrants will not be able to work so that they can fund their exit from Malawi. Such a provision will just worsen the conditions of refugees and asylum seekers and subsequently violates their human rights through degrading and inhuman treatment they will face in detention centres.