Sitamze [2008] eKLR
High Court at Nairobi, Justice J.G. Nyamu, April 18, 2008.
The High Court has declined to reverse the decision of the Principal
Immigration Officer to refuse to issue a work permit to a foreign
national.
Leonard Sitamze, a Cameroonian national, had filed an application in
the High Court seeking a judicial review of the decision of the
Minister for Home Affairs and the Principal Immigration Officer in
which his application for a Class "H" work permit was declined. A
Class H permit is one of several types of work permits which an
Immigration Officer may issue to a foreigner. The discretionary power
to issue the permits is given to the Immigration Officer by section 5
of the Immigration Act.
Sitamze had told the court that he had been running a successful
company in Kenya with the aid of his wife, Josphine, a citizen of
Kenya, and that he had been issued with both a trading license by and
a certificate of good conduct. He stated that the police had
wrongfully accused him of not being in possession of valid
immigration documents and subjected him to intimidation, harrassment
and inhuman treatment. Sitamze termed the decision of the Minister
and Immigration Officer as discriminatory and unjust and amounting to
a denial of his right to the quiet use and enjoyment of his property,
his right to found a family as enshrined in Article 5 of the
Declaration of the Human Rights of Individuals Who Are Not Nationals
of the Country on Which They Live and Article 6(2) of the
International Covenant on Economic, Social and Cultural Rights
(ICSR).
He asked the High Court to issue the special order of mandamus to
compel the Minister to issue him with a class "H" work permit and an
order of Prohibition to forbid the Commissioner of Police from
harassing him, arresting him or hindering his free movement in Kenya.
The Minister, the Commissioner of Police and the Principal
Immigration Officer, who were named as the respondents to the court
action, all opposed Sitamze's application. They relied mainly on the
argument that they had acted in accordance with the provisions of the
Immigration Act empowering the Minister to issue a permit to a
foreigner after all the conditions for the issuance had been
satisfied and to direct the removal from Kenya of any person whose
presence is found to be unlawful. A classified document was produced
to the Court on behalf of the state as part of the Immigration
Department's evidence that Sitamze's presence in Kenya posed a threat
to national security.
Judge J. Nyamu agreed that indeed, the Minister for Home Affairs is
authorized by law to issue work permits to foreigners and in that
regard, the Minister would the best person to decide whether a
foreigner who seeks a permit has met the requirements provided by
law. In the Judge's view, it would be wrong for the Court to
interfere with the decision made by the Minister unless it is shown
that the decision has been made in abuse of discretion or of a legal
duty. The same considerations applied to the actions and decisions
taken by the Kenya Police who had a legal mandate to maintain law and
order and to detect and prevent crime. "Work permits are not an
automatic entitlements and have to be issued in accordance with the
domestic law" the Judge further noted. "They could be refused on
reasonable grounds and in the national interest". In any case, the
Court was satisfied that even though the fundamental rights enshrined
in the Constitution of Kenya were to be enjoyed by both citizens and
foreigners, Sitamze had failed to establish that he had been
subjected to torture or inhuman punishment by the police.
The Court appreciated that under the ICSR, to which Kenya was a
party, the right to work is a fundamental right. Sitamze was entitled
to the right to work and to seek redress if the right was infringed.
Further, under the Declaration on The Human Rights of Individuals Who
Are Not Nationals of The Country in Which They Live, he was entitled
to the right to choose a spouse, to marry and to found a family.
However, as an alien, the same Declaration obliged him to observe the
domestic laws of the State in which he was present and to regard with
respect the customs and traditions of the people of that State.
Sitamze had failed to prove that he had been discriminated against or
that his right to found a family had been violated.
Justice Nyamu was satisfied that the State had adduced sufficient
evidence to demonstrate that Sitamze's presence was a threat to
national security and this was a valid reason to decline to issue him
with a work permit. It would be wrong, he further observed, to
discriminate against a foreigner where he has created legitimate
employment for himself and his family but where there are national
security concerns, the Minister would be entitled to decline to issue
a work permit or to renew an existing one. Such a decision would not
constitute a violation of the constitutional and international human
rights to work and to establish a family life. The foreigner would
have a choice to emigrate with his family to his country of origin.
In this case, however, the Court was satisfied that Sitamze had
failed to prove that his right to family had been breached and that
in any event, the national interest would prevail.
Ultimately, the Court found that there was no merit in Sitamze's
application and it was dismissed.
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Reported by Michael Murungi, Advocate
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