Angla†esŠ national still in Œail after acquittal

MBABANE - A Bangladesh national is languishing in jail despite his acquittal on an immigration charge.

Hossain Delowar Gazi was acquitted on August 5, 2022 after he was accused of unlawfully entering and remaining in Eswatini without valid documents.

However, he has been kept in prison after the Crown filed a notice of appeal a few minutes after his acquittal.

It should be noted that it is not the first time that Gazi’s joy was short-lived. He was re-arrested and charged for contravening Section 14 (2) (c) of the Immigration Act of 1982, shortly after he was granted bail in the sum of E50 000 by the High Court on a murder charge. Gazi is accused of killing Sawar Hossain at Park View Heights Flats in Mbabane.

He is also accused of robbing Sawar of cellphones valued at E19 000. During his re-arrest and being charged for contravening the immigration laws, he was awaiting his release after paying the bail amount of E20 000 cash and providing surety for the balance of E30 000.

Acquittal

Information gathered was to the effect that Gazi’s former employer, only identified as Forhad, went to Sidwashini Correctional Services facility with the intention of fetching him immediately after he learnt of his acquittal. However, upon arrival at the Correctional Services facility at around noon on the day, Forhad was requested to wait as some issues were being sorted out.

After some time, he said he received information to the effect that the Correctional Services facility had received an instruction from the authorities not to release Gazi, as the Crown was working on certain issues.

It is said that while still at the Correctional facility, Forhad was informed about a notice of appeal that had been filed by the Crown.

This publication had an opportunity to meet Forhad, who confirmed his visit to the Correctional Services facility. He stated that his intention was to fetch Gazi. Forhad shared that he knew Gazi from his village in Bangladesh.

“I know Gazi from my village in

Bangladesh. He comes from a poor family, so my intention is to assist him get the required documents and also to rehire him. However, I was told that the Crown had filed a notice of appeal after his acquittal. What else should we do in order to have Gazi out of prison? Should we engage the Human Rights Commission?” wondered Forhad.

There were suspicions that Gazi might flee the country should he get out of prison. When the suspicions were put to Forhad, he stated that there was no way Gazi would flee the country.

Village

“As I have stated before, I know Gazi from my village. His family is not in a good financial standing, so he cannot leave Eswatini for Bangladesh. I am helping him because I want to rehire him in my business,” Forhad said.

Gazi’s acquittal came after Acting Mbabane Principal Magistrate Sifiso Vilakati dismissed the application by the defence in terms of Section 174 (4) of the Criminal Procedure and Evidence Act. However, the defence elected not to take the witness stand, resulting in the court inviting both parties to make submissions.

In its final submissions, the Crown contended that it had proven its case beyond reasonable doubt after parading three witnesses. Principal Crown Counsel Macebo Nxumalo drew the court’s attention to the evidence of Chief Immigration Officer Makhosi Simelane, who told the court that Gazi had contravened the provisions of Section 14 (2) (c) of the Immigration Act of 1982 by being unlawfully present in the country.

The Crown contended that even though Gazi was in custody, he ought to have requested his relatives or his employer to apply for a permit since his passport had expired.

The Crown, however, conceded that Gazi had entered the country lawfully in 2016.

The Crown further argued that Forhad had indicated in his evidence that given the opportunity, he could re-employ Gazi since he was able to post bail of E20 000 and further provided surety, meaning his relatives could assist him in obtaining the necessary residential documents.

The Crown submitted that Gazi had committed a status of affairs offence in that he was in a place where he was prohibited to be at.

It was the Crown’s submission that Gazi had failed to terminate the status of affairs within reasonable time.

The Crown then drew the court’s attention to the intention of the Legislature in enacting the Immigration Act and that was to regulate the movement of emaSwati and foreigners from the country to other countries and vice versa. The Crown submitted that it was for that reason a resident and work permit were necessary.

However, the defence, on the other hand, argued that Gazi had been charged for unlawfully entering and remaining in the country. Derrick Jele, who represents Gazi in the matter, argued that his client lawfully entered the country in 2016 in that his passport was stamped by an immigration officer upon entry. Jele contended that Gazi did not jump the fence but was duly authorised to enter the country through the border gate.

It was the defence’s contention that the issue of Gazi remaining in the country without a permit should fall away in that Section 4 (2) of the Immigration Act states: subject to this section, the presence in Swaziland of any person who is not a citizen of Swaziland shall, unless otherwise authorised under this Act be unlawful unless that person is in possession of a valid entry permit or valid pass.”

Argued

The defence argued that Gazi was permitted by the immigration officer to be in the country and that there was no provision in the Immigration Act, which required one to apply for a resident permit upon being lawfully allowed entry into Eswatini and that the situation was different for one who was in the country for work or study purposes. The defence argued that the entry and remaining in Eswatini was not governed by any period in terms of the Act.

Jele drew the court’s attention to the obtaining position in South Africa and Mozambique, which gave anyone entering those countries 30 days within which to apply for a resident permit.

Jele further argued that Section 14 was a penal statute in the same penalty clause.