Online Reporter
Zvikomborero Parafini
A Chinese national, Quijun Yu, held at Mutoko Remand Prison is fighting for his freedom in the High Court after being kept in custody despite being granted bail on a charge of murder.
He is challenging an alleged government policy to detain Chinese nationals accused of murder, even if bail is granted by superior courts, a policy which he believes is discriminatory as it is not applying to other foreigners in the country.
Yu has cited among others the Chief Director of Immigration, Minister of State security, Minister of Home Affairs and the Attorney General as respondents seeking answers over the policy.
The High Court granted him U$5 000 bail and also ordered him to surrender his passport and title deeds until the matter is finalized.
Through his lawyer Admire Rubaya, Yu avers that when he was granted bail he expected to go out of prison but was detained further after the director of immigration “unilaterally” cancelled his work permit on the basis of the policy that keeps murder accused Chinese nationals locked up.
He believes he is being discriminated only by being Chinese as such policy is not applying to other foreigners in the country and wants the High Court to declare it unlawful.
“Following full compliance with the bail order, I reasonably expected the prisons to release me from custody or facilitate such release. To my dismay, however, I was advised that my release could not be effected without authority from the Chief Director Immigration and minister of State security on account of a purported standing government security cluster policy that any Chinese national charged with murder should not be released from custody even where bail pending trial has been granted by the Courts,” he said in his application.
It is their argument that Immigration cannot cancel a foreigner’s work permit without direction from the Ministry of Home Affairs which is the sole entity with such powers.
It is their further argument that an affected party should be notified of such developments prior to cancellation and be accorded an opportunity to make representations, which did not happen in this circumstances.
“The law clearly provides that the decision to cancel a permit without notice is the sole preserve of the Minister Of Home Affairs who has to give the directive to the 1st Respondent (Chief Director of Immigration). In the circumstances, it is manifest that the 1st Respondent usurped the powers of the 5th Respondent, and did so without affording me the necessary prior notice,” he said.
“The purported cancellation of my permit was not only self-serving, but also unilateral, grossly
irrational, and purely unlawful. It was a nullity in law, devoid of any legal effect and cannot stand.
“In view of this self-serving, unilateral, grossly irrational and purely unlawful conduct I approach this Honourable Court seeking relief. I do so to ensure that the impugned conduct is expressly declared unlawful, and that my consequential release is granted so as to give full effect to the extant bail order of this Court,” the application reads.
He says the Chief Director by cancelling his employment permit has convicted him yet he is still presumed innocent until proven otherwise.
“The 1st Respondent has illegally interfered with my right to use and rely on the temporary employment permit as the basis for my stay in this country, as l am presumed innocent at this stage whilst the 1st Respondent has treated me as I have been convicted already and I should be punished.
“Such conduct was brazenly actuated by malice, as the 1st Respondent’s decision is unsupported by law and instead premised on an alleged policy targeting Chinese nationals accused of criminal offences. This stands in stark contrast to the treatment of other foreign nationals who, upon being granted bail, are released from custody with the concurrence of the 1st Respondent,” his papers read.
He said dragging ministers in his application is a way to seek clarification of this is indeed government policy that Chinese should not be released from custody despite being granted bail.
“I have accordingly cited the 2nd, 5th and 7thRespondents to clarify whether it is now government policy that once a Chinese national is charged with a criminal offence, particularly murder, they should never be released from custody even in the face of a bail order issued by the High Court. It is trite that l am merely charged, and am not a convicted murder criminal, and it would be arbitrary to treat me as the later,” he said.
Mathew Masinge