‘Police at times abuse law in enforcing Immigration Act’

RENOWNED human rights lawyer advocate Gabriel Shumba has weighed-in on this week’s arrest of at least four Boksburg members of the SAPS on charges including assaulting and torturing a foreign national who could not produce his documents.

On Friday, the Independent Police Investigative Directorate, which arrested the four at their workplace, said the accused officers were in court.

Shumba said that in enforcing South Africa’s Immigration Act, police officers have the right “on reasonable grounds” to request to see identification from community members.

“Section 41 of the Immigration Act gives the police and immigration officials the power to request identification on ‘reasonable grounds’ that a suspect is an illegal foreigner or a non-national.

“What is reasonable or not reasonable depends on the circumstances of each case. There are exceptions in that if the officials do not properly identify themselves, there is no obligation to comply.

“This power must also be exercised on the basis of reasonable suspicion, not arbitrarily or based on xenophobia and discrimination because if that happens, such action becomes unconstitutional and ipso facto reviewable.”

Shumba said in other countries, the requirement to carry identity documents at all times has been declared unconstitutional and irrational.

“Identification should just be easily accessible when needed. This is, of course, different from a driving licence, which has to be present when one is driving.

“In the main, proper procedures have to be followed, but unfortunately, there are reports of police destroying asylum documents and carrying out unauthorised stoppages, searches and detention,” he said.

“There is need for more education and training in order to cultivate a more human rights-friendly police force so that we wean ourselves from our apartheid past.

“There is absolutely no excuse for assaulting a suspect, unless there is resistance and the force used is proportionate to the threat.”

The Nigerian consulate in Joburg has welcomed the arrest of the four police officers who allegedly assaulted and tortured a Nigerian national identified as Clifford Iroka Onyedikachi.

The diplomatic mission said the torture of the Nigerian resulted in his hospitalisation and he remained in a coma for nine days, before he eventually regained consciousness.

Earlier this week, the Pretoria News reported that overzealous conduct of police officers in arresting a Congolese national on unsubstantiated charges of being unlawfully in the country and fraud, would cost the taxpayer dearly, after he turned to the courts.

The court ordered the police to pay him R300 000 in damages.

Geophonse Mabiala, who hails from Brazzaville, turned to the Western Cape High Court after he was unlawfully arrested and detained for a week.