| |
RAPPORTEUR
23rd session: Commissioner Pityana
24th session: Commissioner Pityana
25th session: Commissioner Pityana
SUMMARY OF FACTS
1. The communication is submitted by Amnesty International on behalf of
William Steven Banda and John Lyson Chinula.
2. Complainant alleges that Zambia has violated the provisions of African
Charter in that:
(1) Mr. William Steven Banda was served with a deportation order on 10
November 1991. The reason given was that �in my opinion by his presence he (is)
likely to be a danger to peace and good order in Zambia�. He contested the
order through the courts of Zambia.
(2) On 25 October 1994, William Steven Banda was deported to Malawi
unlawfully, wrongfully and out of political malice. He alleges that he was
blindfolded and drugged, driven by Zambian immigration service and
para-military police officers. He entered Malawi through Mchinji border post
and later dumped at Lilongwe Police station.
(3) John Luson Chinula was removed from his home in Ndola on 31 August 1994.
He was driven to Lusaka International Airport with the intention of
deporting him. He was served with a deportation order signed by the Minister
of Home Affairs alleging that he was a threat to Zambia�s peace and security.
He was forcibly sedated and later found himself at Lilongwe Police station
in Malawi. His Warrant of Deportation also alleged that he was �by his
presence, likely to be a danger to peace and good order in Zambia�. No
reason in law or in fact was advanced for this finding.
(4) Both complainants were prominent political figures in Zambia. They were
leading members of UNIP, the party that had been in power since Independence
in 1964. UNIP was defeated by MMD in the first multi-party elections of
November 1991.
3. William Steven Banda exhausted all domestic remedies in that, his matter
went to the Supreme Court of Zambia. John Lyson Chinula could not effect any
remedies through the Zambian courts because he was deported and was given no
opportunity to approach the Zambian courts.
4. It is alleged by the complainant that prior to his forcible expulsion
from Zambia under order of deportation, William Banda exhausted local
remedies through his appeal to the High Court of Zambia in 1992 and the
Supreme Court of Zambia in 1994.
5. Complainant alleges that the Zambian government�s deportation of the two
men amounted to �forcible exile�.
6. Complainant alleges that attempts to seek redress through existing
national legal remedies both in Zambia and in Malawi have been futile.
7. Complainant also charges that John Chinula was not allowed recourse to
the national courts of Zambia. He was prevented from returning to Zambia by
threats of imprisonment by the Zambian authorities.
8. Complainant states that Banda and Chinula have obtained two judgements at
the High Court of Malawi confirming that they were not citizens of Malawi.
The government of Malawi has failed to comply with the judgement of the
Court wh . Complainant states that Banda and Chinula have obtained two
judgements at the High Court of Malawi confirming that they were not
citizens of Malawi. The government of Malawi has failed to comply with the
judgement of the Court which ordered that they be assured to return to
Zambia. They have therefore exhausted all available local remedies at their
disposal.
9. Complainant prays that the Commission adopt interim measures to allow the
deportees to return to Zambia immediately. Complaint:
10. Complainant alleges that Articles 2, 5, 7(1)(a), 8, 9, 9(2), 10, 12(2),
13(1), 18(1), 18(2) of the African Charter have been violated. Procedure:
11. Communication is dated 6 March 1998 and was sent by mail.
12. On 18 March 1998, a letter was sent to the complainant acknowledging
receipt.
13. At its 23rd ordinary session held in Banjul, The Gambia, the Commission
decided to be seized of this matter and declared the communication
admissible. The Commission also requested that provisional measures be
adopted by the Government of Zambia, namely to allow the burial of Mr. John
L. Chinula, in Zambia and the return of Mr. William S. Banda to his family
in Zambia pending the finilization of the matter by the Commission.
14. On 10 July 1998, the Secretariat of the Commission wrote to the Ministry
of Foreign Affairs, Zambia, informing them of the decision of the 23rd
Ordinary Session, drawing attention to the request for provisional measures
to be taken by the government of Zambia.
15. A copy of the Note was also sent to the Embassy of Zambia in Addis Ababa.
When there was no reply, the Secretariat sent a reminder on 17 September
1998. The Embassy replied on 21 September that the Note Verbale was received
but did not enclose the communication referred to.
16. The representative of the Government of Zambia appeared before the
Commission on 26th and 27th of October 1998 at the 24th ordinary session. He
presented a statement in response to the communication.
17. At the 24th ordinary session, the Commission postponed consideration of
this for a decision on the merits to the next session.
18. On 26th November 1998, the Secretariat conveyed the decision of the
Commission to the parties concerned.
19. In preparation for a hearing on this matter, the Rapporteur for this
communication requested the parties to address only some of the critical
matters he had identified. Mr. Ahmed Motala represented Amnesty
International. Mr. Clifford Msika of the Centre for Human Rights and
Rehabilitation, Lilongwe, Malawi, assisted him. Mr. William Steven Banda was
also present. The Zambian Government was represented by Mr. Palan Mulonda,
Senior State Advocate in the Ministry of Legal Affairs accompanied by Mr.
K.K. Nsemukila, Deputy Permanent Secretary, Home Affairs Department and Ms.
Lucy M. Mungoma of Foreign Affairs Department with responsibility for Africa
and OAU relations. The Commission also heard testimony from Mr. William
Steven Banda.
THE ARGUMENT:
20. Mr. Motala argued that Zambia was bound by the African Charter which it
ratified in 1984. It, therefore, was obliged to extend the rights in the
Charter to �every individual� except where political rights are specifically
indicated as in Article 13 for example. He argued that Zambia was in
violation of Article 12 especially sub article 2 which provides that �every
individual� has a right to leave one�s country and to return. It also says
that a �non-national legally admitted in a territory of a State Party may
only be expelled from it by virtue of a decision taken in accordance with
the law��. He alleged discrimination on the basis of ethnic group and social
origin (Article 2) and on the basis of political opinion. The treatment the
complainants received violated the victims rights to human dignity and
freedom of movement. In the case of Chinula, he was deprived of the right to
have his cause heard (Article 7). He insisted that the actions against
complainants were politically motivated. They have been left in a strange
country destitute.
21. Mr. Mulonda, for the government, stated that the government did not act
with political malice. It acted within the law. The investigations against
Banda began in 1976 and against Chinula in 1974 long before the present
regime came into power. He denied that the deportees were drugged and dumped
across the border. He stated that the Malawi authorities received them. The
government of Zambia was acting within its sovereign rights in ordering its
internal affairs, regulating immigration and was within the provision or
limitation of the right stipulated in Article12: �This right may only be
subject to restriction as provided for by law for the protection of nation
security, law and order, public health and morality�.
LAW
ADMISSIBILITY:
22. Admissibility of communications under the African Charter is governed by
Article 56, which sets out conditions that must be met before they are
considered by the Commission.
23. Article 56 of the Charter reads:
�Communications � shall be considered if they: � (5) are sent after
exhausting local remedies, if unless it is obvious that this procedure is
unduly prolonged�
24. This provision of the Charter is necessarily first considered before any
substantive consideration of a complaint.
25. In the present case all local remedies have been exhausted and there is
documentary evidence made available to the Secretariat of the Commission in
support of this claim. As already stated in the case of Chinula, the
arbitrary deportation prevented him from exercising this right.
26. The complainant has attached to the communication copies of the
following judgements/orders obtained by William Banda and John Chinula;
i. Consent Order of 13 March 1995, High Court of Lilongwe, in Miscellaneous
Cause No. 2 of 1995;
ii. Judgement of 30 June 1997, High Court of Malawi in Lilongwe, in
Miscellaneous Cause No. 2 of 1995;
iii. Judgement No. 16 of 1994, Supreme Court of Zambia in Lusaka, in Banda
vs. Chief Immigration Officer and Attorney General;
iv. Judgement No. JH/12 of 1991, High Court of Zambia in Chipata, in Banda
vs Chief Immigration Officer and Attorney General.
For these reasons the Commission declares the communication admissible.
MERITS
27. Zambia ratified the African Charter on Human and Peoples� Rights in
January 1984.
28. A number of supporting documents were submitted: On Banda, the
transcript of the judgement by Kakusa J in the High Court of Zambia held at
Chipata; the judgement on appeal by Bweupe DCJ in the Supreme Court in
Lusaka. The various decisions of the Malawi Court and affidavits submitted
in support. The Government also submitted documents on Banda and Chinula.
29. Regarding William Steven Banda, the judgement of Justice Kakusa in the
High Court is instructive. The judge found that there was no evidence, on a
balance of probabilities, to prove that Banda was born in Zambia of Zambian
parents. He found that Banda was an unreliable witness. He, however, refused
to rule as to where Banda originated from. He dismissed all evidence that
suggested that Banda was from Malawi, as inadmissible and hearsay. He also
noted that the government had failed to produce the alleged Malawian father
of Banda. The judge also made the following obiter dictum without justifying
his opinion, that �once it is shown on a balance of probabilities that a
petitioner is not a citizen of this Republic he becomes a deportable person
even if the country to which he must proceed is unknown � possession of a
National Registration Card � does not confer citizenship�� (at p J25). It
appears that the authorities relied on this statement in deporting William
Steven Banda.
30. The judge also expressed himself in sympathy with Banda�s predicament.
He said �the petitioner has been in Zambia for a long time and has, in his
own way, contributed in the political arena � Zambia has become almost the
petitioner�s only home - a de facto situation - upon which the executive may
exercise its discretion and, maybe, consider normalising the status of
petitioner should he apply� If this court were empowered to declare persons
like petitioner be Zambians, the petitioner would have received a favourable
declaration considering his long stay in Zambia and the role he played�
(J25).
31. It is not denied that on the day of the judgement, William Steven Banda
was taken into custody and deported to Malawi. In addition, Banda charges
that his pleas that he be taken to South Africa were ignored including his
request for a five-days stay of execution of the warrant.
32. It is evident that the Malawi Courts are irrelevant for purposes of
deciding this matter against Zambia. The fact that they declared
complainants not to be Malawi citizens is neither here nor there. Secondly,
the Commission is not competent to substitute the judgements of the Zambian
courts, especially on matters of fact. It must be accepted that the legal
processes were appropriate and conducted in a manner that showed respect for
the rule of law. The legal processes in Zambia did not violate the
principles of the Charter. The Commission must, therefore, accept that
William Steven Banda was not a Zambian by birth or descent.
33. This does not mean, however, that the Commission should not raise
questions of law especially as the Zambian courts did not consider the
obligations of Zambia under the African Charter. The court also failed to
rule on the alleged reason for the deportation, namely, that his presence
was likely �to endanger peace and good order in Zambia��. There was no
judicial inquiry on the basis in law and in terms of administrative justice
for relying on this �opinion� of the Minister of Home Affairs for the action
taken. The fact that Banda was not a Zambian by itself, does not justify his
deportation. It must be proved that his presence in Zambia was in violation
of the laws. To the extent that neither Banda nor Chinula were supplied with
reasons for the action taken against them means that the right to receive
information was denied to them (Article 9(1)).
34. The Rapporteur invited the parties to give guidance on the authority of
the Charter where it was in contradiction to domestic law. That seems
relevant because Zambia ratified the Charter by Executive Act. That means
that there is legislative process that domesticates international human
rights treaties. Mr. Mulonda affirmed Zambia�s commitment to abide by the
treaties it is party to. He also confirmed that Zambia operated a dual legal
system and that the Charter is not considered to be a self executing measure.
Nonetheless, Zambia accepted the binding character of the Charter in Zambia.
35. By all accounts, though, Banda was in possession of Zambian national
registration certificate and a passport. For many years he freely used these
without challenge. Immediately following the verdict of the Supreme Court,
he voluntarily presented himself to the police but he was forcibly deported.
This meant that he was denied the opportunity to pursue the option of
applying for citizenship by naturalisation in terms of the Citizenship Act.
Granted, the government argues that Banda had obtained the documents of
registration and Passport by making false claims about his place of birth.
He could not therefore, be approaching the court with clean hands. The
unstated implication being that the chances of his obtaining naturalisation
were negligible. In truth, of course, the Court did not say that Banda was
an illegal immigrant. It simply disputed his claims to being Zambian by
birth. It was not proved, therefore, that Banda was in Zambia illegally. It
was not proved, therefore, that Banda was in Zambia illegally.
36. Zambia has contravened Article 7 of the Charter in that he was not
allowed to pursue the administrative measures, which were opened to him in
terms of the Citizenship Act. More importantly, Zambia is in breach of
Article 7(2) which says that �no one may be condemned for an act or omission
which did not constitute a legally punishable offence at the time it was
committed�� By all accounts, Banda�s residence and status in Zambia had been
accepted. He had made a contribution to the politics of the country. The
provisions of Article 12(4) have been violated.
37. The allegations of violations of Articles 2, 4, 5, 6, 9 and 10 may now
be addressed. The evidence that William Steven Banda was a political
opponent of the ruling MMD cannot be lost sight of. The manner in which he
was treated was demeaning of the dignity and status of somebody of his
standing in society. It appears that he was singled out for action because
of his ethnic origin, which incidentally, is also found in Zambia. The
authorities insisted on deporting him to Malawi even though, he told them
that he knew nobody there. There was no compelling evidence that he had
roots in Malawi having lived in Zambia, by their own admission, since about
1964. Counsel for Zambia argued that Banda was �accepted� by the Malawi
immigration authorities. Whatever may have been the �legal� basis for such �acceptance�,
Malawi courts have ruled that they were not citizens of Malawi. In addition,
unlawful deportation could not be said to obliterate their rights in Zambia.
38. John Lyson Chinula was in an even worse predicament. He was not given
any opportunity to contest the deportation order. Surely, government cannot
say that Chinula had gone underground in 1974 having overstayed his visiting
permit. Chinula, by all account, was a prominent businessman and politician.
If government wished to act against him they could have done so. That they
did not, does not justify the arbitrary nature of the arrest and deportation
on 31 August 1994. He was entitled to have his case heard in the Courts of
Zambia. Zambia has violated Article 7 of the Charter. Having made that
finding, the findings in para 30 of above also obtain in this circumstance.
39. The Commission had requested provisional measures in terms of Rule 111
of the Rules of Procedure. Zambia must be required to allow the return of
William Steven Banda with a view to making application for citizenship by
naturalisation. No evidence was led before the Commission for compensation.
The evidence is that Banda had lost his job as governor after the 1991
elections. No award for compensation is called for.
40. John Lyson Chinula died in Malawi. He was a prominent businessman. His
deportation must have caused prejudice to his business interests. His family
is requesting the return of his body for burial in Zambia. The Government of
Zambia should be required to grant that wish.
41. The Government of Zambia has relied on the �caw-back� clause of Article
12(2): �This right may only be subject to restrictions, provided for by law
for the protection of national security, law or order, public health or
morality��
42. The deportation order also stated that the deportees were considered � a
danger to peace and good order to Zambia�. The Commission is of the view
that the �claw-back� clauses must not be interpreted against the principles
of the Charter. Recourse to these should not be used as a means of giving
credence to violations of the express provisions of the Charter. Secondly,
the rules of natural justice must apply. Among these are in the audi alterm
partem rule, the right to be heard, the right of access to the Court. The
Court in Zambia, in Banda�s case failed to examine the basis of
administrative action and as such, it has not been proved that the deportees
were indeed a danger to law and order. In any event the suggestion that they
were �likely� to be a danger was vague and not proved. It is important for
the Commission to caution against a too easy resort to the limitation
clauses in the African Charter. The onus is on the state to prove that it is
justified to resort to the limitation clause. The Commission should act
bearing in mind the provisions of Articles 61 and 62 of the Charter.
43. Article 2 of the Charter reads:
�Every individual shall be entitled to the enjoyment of the rights and
freedoms recognised and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion political or any other opinion, national and social origin, fortune,
birth or other status�.
44. By forcibly expelling the two victims from Zambia, the State has
violated their right to enjoyment of all the rights enshrined in the African
Charter. This Article imposes an obligation on the Zambian Government to
secure the rights protected in the African Charter to all persons within
their jurisdiction irrespective of political or any other opinion. This
obligation was reaffirmed by the Commission in Rencontre Africaine pour la
Défense des Droits de l�Homme / Zambia (Communication 71/92). The arbitrary
removal of one�s citizenship in the case of Chinula cannot be justified.
45. Article 9(2) states:
�Every individual shall have the right to express and disseminate his
opinions within the law�.
46. Both Banda and Chinula were leading politicians and businessmen. Both
had lived in Zambia for decades. Even if deportation action had been
initiated against them in 1974 and 1976, it can be safely assumed that the
action had been advanced unless it is proved that that was ction was
accelerated upon the assumption of office of MMD government in 1991, we are
therefore persuaded that the deportations were politically motivated. This
provision of the Charter reflects the fact that freedom of expression is a
fundamental human right, essential to an individual personal development,
political consciousness and participation in the public affairs of his
country. The Commission has to determine whether the "deportations", being
politically, motivated violate the provisions of Article 9(2) of the African
Charter as the two victims were denied the right to freedom of conscience as
stipulated in Article 8 of the Charter.
47. Article 8 of the African Chater states:
"Freedom of conscience, the profession and free practice of religion shall
be guaranteed. No one may, subject to law and order, be submitted to
measures restricting the exercise of these freedoms".
48. Article 10 of the Charter, which states;
"Every individual shall have the right to the free association provided that
he abides by the law".
49. In deporting the two men, the government of Zambia has denied them the
exercise of their right to freedom of association. This is so since they
have been prevented from associating with their colleagues in the United
National Independence Party and participating in their activities.
50. As the African Commission ruled in the case of John K. Modise / Botswana,
by forcing Banda and Chinula to live as stateless persons under degrading
conditions, the government of Zambia has deprived them of their family and
is depriving their families of the men's support, and this constitutes a
violation of the dignity of a human being. Thereby violating Article 5 of
the Charter, which guarantees the right to:
"the respect of the dignity inherent in a human being and to the recognition
of his legal status".
51. The forcible explusion of Banda and Chinula by the Zambian government
has forcibly broken up the family unit which is the core of society thereby
failing in its duties to protect and assist the family as stipulated in
Article 18(1) and 18(2) of the Charter;
(1) "The family shall be the natural unit and basic of society. It shall be
protected by the State�"
(2) "The State shall have the duty to assist the family which is the
custodian of morals and traditional values recognised by the community".
52. Article 7(1)(a)states that:
"Every individual shall have the right to have his cause heard�
�
(1) the right to an appeal to competent national organs against acts of
violating his fundamental rights as recognised and guaranteed�"
53. The Zambia government by denying Mr. Chinula the opportunity to appeal
his deportation order has deprived him of a right to fair hearing which
contravenes all Zambian domestic laws and international human rights laws.
FOR THESE REASONS, THE COMMISSION
holds a violation of Article 2;
holds a violation of Article 7(1)(a);
holds a violation of Article 8;
holds a violation of Article 9(2);
holds a violation of Article 10;
holds a violation of Article 18(1) and (2).
Bujumbura, 5th May 1999. |
|
