A sad indictment of heartless Home Affairs...

Source: Article written by Carmel Rickard, 01/07/2015

When a judge, writing in July 2015, says the treatment of an
individual in a case he`s been hearing is one of the worst since the
advent of democracy, you pay attention. Who is this person who has
been treated so badly? What happened, and who was responsible for
abuse that shocked even a hardened judge? Emeka Christian Okonkwo is a
Nigerian trader. It`s an undisputed fact that he`s in South Africa
quite lawfully. He had a little shop in East London where he sold
cellphones and gold chains for which he was properly licensed. But on
3 August 2012 his world turned upside down: He was summarily picked up
and detained by officials of the Department of Home Affairs, long a
byword for high-handed abuse of individuals and of an equally
high-handed disregard for the law.

They pretended that they had a warrant for his arrest – a blatant lie
as it turned out. Then they locked him up in Fort Glamorgan prison,
turned their backs and walked away. For 75 days he languished there,
completely cut off from family and friends. No one except the
officials who incarcerated him knew where he was. He wasn`t charged or
taken to court. He wasn`t told why he was being locked up or what he
was supposed to have done wrong. In fact, as Judge Phakamisa Tshiki
said later, those who locked him up never had any intention to take
him to court, and it was the clearest case he had seen of malicious
arrest and detention. Okonkwo might still be there if it hadn`t been
for an alert prison warden – someone who should be nominated for a
human rights award – who took an interest in this man, imprisoned for
no apparent reason. Thanks to that intervention Okonkwo was ultimately
simply let go, without ever having appeared in court or being informed
of what sin he was supposed to have committed. But the abuse of
Okonkwo continued even after his release. Not surprisingly he sued the
Department of Home Affairs, but did the department admit its officers
were culpable and offer to make amends? No way. They fought the case
as though some high principle were at stake, forcing Okonkwo to go
through every legal hoop until the matter was about to be heard as a
full trial. Only then, with court dates settled and the matter about
to proceed, did they cave in and admit that his arrest and detention
were unlawful and that they were liable to pay damages of whatever
amount a court found appropriate, as well as his legal costs. When the
question of the actual damages was argued, the two parties couldn`t
agree on the appropriate compensation he should be awarded and the
issue had to be decided via a full-blown trial. Okonkwo was the only
witness. The department, despite fiercely defending the matter, led no
evidence whatsoever. Okonkwo told a sorry tale of how his life as
fallen apart as a result of his unlawful detention. His wife and child
are both lost to him. She left him and his child has gone, too,
because he couldn`t take care of them while he was locked up. The
arrest in his shop was made more humiliating as it was witnessed by
his family, neighbours and others. His experience in the cells was not
only humiliating, it was terrifying as well, with other prisoners
attempting to rape him.

For 75 days he had no bed, he couldn`t eat the food provided, there
was competition for the toilets. The whole place stank. Perhaps the
most outrageous part of the whole story, however, is the two-part
argument put up on behalf of the department to explain why Okonkwo
should be paid far less in damages than he claimed: The court was
`dealing with public funds`, said counsel for the department; moreover
the court had to weigh up what was appropriate to award as damages
considering Okonkwo`s `standing in society`. The implication of the
second part of the argument was that he was a nobody, a mere Nigerian
trader, and he should therefore be satisfied with less compensation
than would be awarded to an important person. Such an argument speaks
volumes about the department`s understanding of the Bill of Rights and
the guarantee of equality in our Constitution. As for the first part
of the argument, that public funds that would be used to pay damages
to Okonkwo – there is a solution to the problem, namely that the
responsible officials pay the damages out of their own pocket. In the
end Judge Tshiki, who heard the case in the High Court, East London,
called the way the department handled the litigation `reprehensible in
the extreme`, awarded Okonkwo damages of R750 000 plus legal costs.
There`s deep irony to the timing of judgment in this case. It was
delivered 800 years, to the very month, after the signing of the Magna
Carta, that charter which has so fundamentally shaped our views of
human rights over the centuries, and which is one of the influences
that led ultimately to such other documents as South Africa`s
Constitution. Here, for example, is Chapter 39 of the Magna Carta: No
man shall be taken or imprisoned, or dispossessed or outlawed or
exiled or in any way ruined, nor will we go or send against him except
by the lawful judgment of his peers or by the law of the land. For 800
years that has been a touchstone by which a government could be
judged. In the case of Okonkwo, however, you see a man taken and
imprisoned, dispossessed of his family not to mention his financial
losses, completely without sanction by the law of the land.

It`s a damning indictment of the Department of Home Affairs, its
officials and the broader government that continues to allow this
department to behave as though the Constitution did not exist.
Actually, since our money will pay for this atrocity, it`s also an
indictment of the public.

Unless we speak up, urging that officials who flagrantly defy the law
pay for their misdeeds out of their own pockets, and that legal action
is taken against them where appropriate, we are unavoidably complicit
in their crimes. That, at any rate, is my view. and in this, the first
of what will be a fortnightly column, I put it forward for debate. My
intention in A Matter of Justice is to highlight judgments and other
legal issues through which we can see more clearly where we`ve come
from and where we`re going. My hope is that these columns, with the
discussion that hopefully follows, will help contribute to a better
understanding and appreciation of our Constitution as well as the
democratic society, founded on the rule of law, that we want to create.

Okonkwo v Minister of Home Affairs & another
Article written by Carmel Rickard