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RAPPORTEUR
23rd Session: Commissioner Nyameko Pityana
24th Session: Commissioner Nyameko Pityana
25th Session: Commissioner Nyameko Pityana
26th Session: Commissioner Nyameko Pityana
27th Session: Commissioner Nyameko Pityana
28th Session: Commissioner Nyameko Pityana
29th Session: Commissioner Nyameko Pityana
SUMMARY OF FACTS
1. The Complainant, an NGO that has Observer Status with the African
Commission and is based in Zambia, is bringing this complaint against a
State Party to the Charter, Zambia.
2. The Complainant alleges that the Zambian Government has enacted into law,
a constitution which is discriminatory, divisive and violates the human
rights of 35 percent of the entire population. The Constitution (Amendment)
Act of 1996, it is alleged, has not only violated the rights of its
citizens, but has also taken away the accrued rights of other citizens,
including the first President, Dr. Kenneth Kaunda.
3. The Complainant alleges that the said Constitution of Zambia Amendment
Act of 1996 provides inter- alia, that anyone who wants to contest the
office of the president has to prove that both parents are/were Zambians by
birth or descent.
4. Article 35 of the said Constitution Amendment Act further provides that
nobody who has served two five-year terms as President shall be eligible for
re-election to that office.
5. Complainant alleges that the amended constitutional provisions are in
contravention of international human rights instruments in general and the
African Charter on Human and Peoples' Rights in particular.
6. Complainant has taken the case to the Supreme Court of Zambia between May
and August 1996 seeking:
� A declaration that Articles 34 and 35 of the amended Constitution are
discriminatory.
� A declaration that Parliament lacks the power to adopt a new constitution;
and
� An injunction restraining the President from assenting to the
constitution.
7. Complainant alleges that while the case was pending in court, the ruling
party dominated parliament went ahead to adopt and enact the controversial
constitution which the President assented to one week later.
8. The Complainant's case was therefore thrown out of court.
9. The Supreme Court of Zambia is the highest Court of jurisdiction in the
land, thus all local remedies have been exhausted.
COMPLAINT
10. The Complainant alleges that the following provisions of the African
Charter have been violated;
� Article 2 - which prohibits discrimination of any kind including place of
birth, social origin and other status;
� Article 3 - which provides for the equality of all individuals before the
law;
� Article 13 - which guarantees every citizen the right to participate
freely in the government of his or her country;
� Article 19 - which provides for the equality of all peoples, irrespective
of their place of origin etc.
PROCEDURE
11. The communication is dated 12th February 1998.
12. On the 10th March 1998, the Secretariat sent a letter acknowledging
receipt of the complaint.
13. At its 23rd ordinary session held in Banjul, The Gambia from 20th to
29th April 1998, the Commission decided to be seized of this case and
requested further information in order to decide on admissibility at the
next session.
14. On 25th June 1998, the Secretariat sent letters to the parties notifying
them of the Commission's decision.
15. At its 24th ordinary session held in Banjul, The Gambia from 22nd to
31st October 1998, the Commission postponed consideration of admissibility
of the communication to the 25th ordinary session and instructed the
Secretariat to request more information from the Parties.
16. On 26th November 1998, the Secretariat informed the Parties of the
decision accordingly.
17. At its 25th ordinary session held in Bujumbura, Burundi, the Commission
declared the communication admissible and postponed its consideration on the
merit to the 26th ordinary session.
18. On 13th May 1999, the Secretariat of the Commission notified the parties
of this decision.
19. At the 26th ordinary session of the Commission held in Kigali, Rwanda,
the Commission considered the communication and invited parties to present
oral arguments o the merits of the case.
20. Letters conveying this decision were dispatched to the parties by the
Secretariat on 18th January 2000.
21. Reminders to this effect were sent on 14th March 2000, with a copy to
the Embassy of the Republic of Zambia in Addis Ababa.
22. On 30th March 2000, the State Party responded to the above request.
23. On 31st March 2000, the Secretariat of the Commission acknowledged
receipt of the document, but reminded it of the necessity of it sending the
relevant sections of the Constitution together with the Supreme Court's
decision on the case, as soon as possible. A copy of this Note was forwarded
to its Embassy in Addis Ababa. A copy of the State Party's submission was
also forwarded to the Complainant in Lusaka.
24. On 7th April 2000, the State Party sent a fax to the Secretariat
requesting for a copy of the report of the 26th ordinary session.
25. In view of the requirements of Article 59 of the Charter, the
Secretariat instead sent to the State Party a copy of the Final Communiqué
of the said session. It also intimated it of the decision of the Commission
during that session.
26. On 30th April 2000, the Respondent State submitted additional arguments
to its initial response of 30th March 2000.
27. On 2nd May 2000 while at the session, the Secretariat received a letter
from the Complainant expressing its desire to continue with the case.
28. At the 27th ordinary session held in Algeria, the Commission heard
representatives of the Respondent State. It decided that parties should
address it on specific issues, particularly on whether or not the provisions
of the amended Constitution were in conformity with the Republic of Zambia's
obligations under the Charter. In addition, the Secretariat was requested to
seek an independent legal expert opinion on the issues raised for
determination.
29. Parties were informed of the above decision on 7th July 2000.
30. On 31st August 2000, the Secretariat of the Commission wrote reminders
to the parties and emphasised the necessity for them to furnish it with
their submissions as soon as possible for use in the preparation of the
draft decision for the 28th session.
31. On 26th September 2000, the Secretariat received a response from the
Respondent State on the issues raised by the Commission during the 27th
ordinary session.
32. On 2nd October 2000, the Secretariat of the Commission acknowledged
receipt of the submission and also forwarded a copy of it to the Complainant
for its comments
33. At the 28th Ordinary session in Cotonou, Benin the communication was
considered and further consideration of the merits was deferred until the
29th Ordinary session.
34. The parties were informed of this decision on the 14th November 2000.
35. A Note Verbale was sent to the Government of Zambia requesting a copy of
the Commission of Inquiry report on the 5th April 2001.
STATE PARTY'S RESPONSE
36. The matter concerns the Republican Constitution of Zambia and is
therefore an open matter for discussion. The background to the Constitution
of Zambia (Amendment) Act of 1996 is attributable to the desire of the
Zambian people to save and preserve the Office of the President for Zambians
with traceable descent.
37. The position was arrived at in the Mwanakatwe Commission of Inquiry
Report commissioned to gather views on the content of the Republican
Constitution. The amendment to the Constitution was not targeted at any
person in the country.
38. Zambia welcomes views expressed on its Republican Constitution as a way
of building a strong democracy. It is open to expert opinions on the issue,
and will continue to listen to views expressed on it.
39. Zambia views the complaint filed by the Legal Resources Foundation as an
opinion on the Constitution. The variance of opinion of the Complainant from
that of the majority therefore is in accordance with democratic principle of
freedom of opinion. Despite this difference, democracy entails the rule of
the majority. Hence the amendment to the Republican Constitution
incorporating the views expressed in the Mwanakatwe Commission of inquiry
Report for an indigenous Zambian to hold Office of President.
40. Zambia is prepared to co-operate with the Commission and to elaborate
further on the issues, if necessary.
ADDITIONAL ARGUMENTS FROM THE RESPONDENT STATE TO ITS INITIAL RESPONSE
41. The Government avers that although the communication is vague as to the
details of the judicial process that was exhausted, Zambia would however
assume that the issues raised by the Complainant were finally settled by the
Supreme Court in Zambia Democratic Congress and the Attorney General SCZ
Appeal No. 135/96, SCZ Judgement No. 37/99.
42. The Zambian Parliament has the power to adopt an alteration to the
Constitution and the President may assent to a Constitution that has been
altered. However, if Parliament had amended the entire Constitution, there
would have been a mandatory need for a national referendum in respect of
Article 79 and Part III of the Constitution, which contains the Bill of
Rights.
43. The Government contends that the powers, jurisdiction and competence of
Parliament to alter the Constitution of Zambia are extensive provided that
Parliament adheres to the provisions of Article 79 of the Constitution. The
constitutional history of Zambia has shown that the alteration of the
Constitution has depended on who controls the majority in Parliament. The
ruling Party dominated Parliament could therefore adopt the altered
Constitution.
44. All individuals in Zambia are equal before the law and everyone enjoys
the protection of his/her human rights and fundamental freedoms as provided
for by the law.
45. Zambia abhors any type of discrimination. Article 23(1) of the
Republican Constitution provides that:
Subject to clauses (4), (5) and (7) a law shall not make any provision that
is discriminatory either of itself or in its effect.
This Article, however, needs to be read and understood with the provision of
Article 23(5), which states that:
Nothing contained in any law shall be held to be inconsistent with or in
contravention of clause (1) to the extent that it is shown that it makes
reasonable provision with respect to qualifications for service as a public
officer.
46. The Government points out that it is in this context that Zambian people
were of the view that it was reasonable for the Office of the President to
be subject to other qualifications i.e. an indigenous Zambian candidate of
traceable descent. Therefore there was no contravention of Article 2 of the
Charter.
47. To ensure Zambia' s policy of non-discrimination, Article 11 of the
Constitution provides that:
It is recognised and declared that every person in Zambia has been and shall
continue to be entitled to the fundamental rights and freedoms of the
individual, that is to say, the right, whatever his race, place of origin,
political opinions, colour, creed, sex or marital status, but subject to
limitations...
The limitations being reasonable within the law, the Government avers
further that there has therefore been no violation of Article 2 of the
Charter as the limitations provided for by Article 34 of the Republican
Constitution are within the law. Zambia also submits that there is no
violation of Article 13 of the Charter, which guarantees every citizen the
right to participate in government. If anything, there is a proviso that
such should be "in accordance with the provisions of the law."
48. It underscores the fact that Articles 34 and 35 of the Constitution are
within Zambia's laws and therefore there is no violation of Article 13 of
the Charter.
49. It stated that Zambia considers the inclusion of a violation of Article
19 of the Charter by the Complainant as not being within the purview of the
present communication. It is of the opinion that Article 19 of the Charter
relates to the principle of "self-determination" by the mere mention of the
term "peoples". This position notwithstanding, the peoples of Zambia are
equal. It urges the Commission not to entertain this ground, as it is
inappropriate to the issues raised in the communication.
50. It argues that the discrimination alleged in Articles 34 and 35 of the
Constitution is not unlawful and it reflects the popular desire of the
majority of the Zambian people to save and preserve the "Office of the
President" for Zambians. The Constitution of Zambia (Amendment) Act, 1996,
therefore, seeks to give effect to the will of the people.
THE LAW
ADMISSIBILITY
51. Having considered that the communication satisfied the provisions of
Article 56 of the Charter, the communication was declared admissible.
MERITS
52. The allegation before the Commission is that Respondent State has
violated Articles 2, 3 and 19 of the Charter in that the Constitution of
Zambia Amendment Act of 1996 is discriminatory. Article 34 provides that
anyone who wishes to contest the office of President of Zambia had to prove
that both parents were Zambian citizens by birth or descent. The effect of
this amendment was to prohibit a Zambian citizen, former President Dr
Kenneth David Kaunda from contesting the elections having been duly
nominated by a legitimate political party. It is alleged that the effect of
the amendment was to disenfranchise some 35% of the electorate of Zambia
from standing as candidate Presidents in any future elections for the
highest office in the land.
53. The enactment of the amendment to the Constitution is not in dispute.
Neither is it denied that Dr Kenneth Kaunda was thus denied the right to
contest the elections for the office of President. Respondent State,
however, denies that some 35% of Zambian citizens would be constitutionally
denied the right to stand as President and alleges that in any event such
facts have no relevance to the matter at hand. It nevertheless argues that
the said amendment was constitutional, justifiable and not in violation of
the Charter.
54. In the matter of Zambia Democratic Congress v The Attorney General (SCZ
Appeal No: 135/1996), the Zambia Supreme Court was petitioned to declare the
then proposed amendments to the Constitution unconstitutional in that the
amendments contained in Articles 34(3)(b) and 35(2) of the Constitution
(Amendment) Act bar persons qualified to stand for election as President of
the Republic under the 1991 Constitution and deny them the right to
participate fully without hindrance in the affairs of government and shaping
the destiny of the country and undermine democracy and free and fair
elections which are the basic features of the Constitution of 1991.
55. It is alleged that the matter was rushed through parliament by the
ruling party and enacted into law while the legal and constitutional
principles were before the courts for adjudication. In the event, the court
dismissed the appeal for the reason that the petition was "attacking an Act
of Parliament on the ground that it violated Part III of the Constitution
relating to Fundamental Rights. We are satisfied that the application was
commenced by a wrong procedure and that in our jurisdiction the application
was untenable" (per Sakala JS at 292).
56. The following provisions of the African Charter have relevance:
Article 1:
The Member States of the Organisation of African unity parties to the
present Charter shall recognise the rights, duties and freedoms enshrined in
this Charter and shall undertake to adopt legislative or other measures to
give effect to them.
Article 2:
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 or social origin,
fortune, birth or other status.
Article 3:
1. Every individual shall be equal before the law.
2. Every individual shall be entitled to equal protection of the law.
Article 13:
1. Every citizen shall have the right to participate freely in the
government of his country, either directly or through freely chosen
representatives in accordance with the provisions of the law.
2. Every citizen shall have the right of equal access to the public service
of his country.
3. Every individual shall have the right of access to public property and
services in strict equality of all persons before the law.
57. The African Commission on Human and Peoples' Rights is a creature of the
Charter (Article 30). It was established "to promote human and peoples'
rights and ensure their protection in Africa." The functions of the Charter
are spelt out in Article 45 of the Charter, inter alia, as follows:
� Give its views or make recommendations to Governments;
� Formulate and lay down principles and rules aimed at solving legal
problems relating to human and peoples' rights and fundamental freedoms upon
which African Governments may base their legislation;
� Ensure the protection of human and peoples' rights under the conditions
laid down by the present Charter;
� Interpret all the provisions of the present Charter at the request of a
State Party...;
58. In the task of interpretation and application of the Charter, the
Commission is enjoined by Articles 60 and 61 to "draw inspiration from
international law on human and peoples' rights" as reflected in the
instruments of the OAU and the UN as well as other international standard
setting principles (Article 60). The Commission is also required to take
into consideration other international conventions and African practices
consistent with international norms etc.
59. Although international agreements are not self-executing in Zambia, the
government of Zambia does not seek to avoid its international
responsibilities in terms of the treaties it is party to (vide Communication
212/98 Amnesty International / Zambia). This is just as well because
international treaty law prohibits states from relying on their national law
as justification for their non-compliance with international obligations
(Article 27, Vienna Convention on the Law of Treaties)[FN1]. Likewise an
international treaty body like the Commission has no jurisdiction in
interpreting and applying domestic law. Instead a body like the Commission
may examine a State's compliance with the treaty in this case the African
Charter. In other words the point of the exercise is to interpret and apply
the African Charter rather than to test the validity of domestic law for its
own sake. (vide cases of the Inter American Commission against Uruguay (Nos
10.029, 10.036, 10.145, 10.10.372, 10.373, 10.374, 10.375 in Report 29/92,
October 2, 1992).[FN2]
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[FN1] Vide General Comment No 9 (XIX/1998) on The Duty to Give Effect to the
Covenant in the Domestic Order. The UN Committee on Economic and Social
Rights has established that "legally binding international human rights
standards should operate directly and immediately within the domestic legal
system of each State Party, thereby enabling individuals to seek enforcement
of their rights before national courts and tribunals." The Committee argues
that States have an obligation to promote interpretations of domestic laws
which give effect to their Covenant obligations" (COMPILATION OF GENERAL
COMMENTS AND GENERAL RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS TREATY BODIES;
HR1/GEN/Rev.4; February 2000; pp48-52.
Although directed at the application of international law in domestic
courts, Benedetto Confortu's note of caution is appropriate:
In our view, it is necessary to take a cautious approach in accepting the
existence of an exceptional category of international norms that owe their
non-executing nature to their substantive content. Such an exception must
not lead to political manoeuvring in the form of non-implementation of rules
found to be �undesirable', either because they are considered contrary to
national interest, or because they entrench progressive values, or finally,
because they are viewed suspiciously by an internal judge purely by reason
of their origins.
With F Franscioni (Eds) in ENFORCING INTERNATIONAL HUMAN RIGHTS IN DOMESTIC
COURTS; 1997: The Hague; Martinus Nijhoff; 8.
[FN2] The Commission held in respect to the amnesty laws promulgated by the
Government of Uruguay: where it had been argued that these were valid and
legitimate in terms of domestic law and the constitution and that they had
approval by the democratic majority in a referendum:
...it should be noted that it is not up to the Commission to rule on the
domestic legality or the constitutionality of national laws. However, the
application of the Convention and the examination of the legal effects of a
legislative measure, either judicial or of any nature, insofar as it has
effects compatible with the rights and guarantees embodied in the Convention
or the American Declaration, are within the Commission's competence.
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60. What this does mean, however, is that international treaties which are
not part of domestic law and which may not be directly enforceable in the
national courts, nonetheless impose obligations on State Parties. It is
noticeable that the application of the Charter was not part of the argument
before the national courts.
61. Conscious of the ramifications of any decision on this matter, the
Commission had invited the parties to address the question of the extent of
the jurisdiction of the Commission when it comes to domestic law including
as is the case in this instance the Constitution. Counsel for the Respondent
State argued that the Commission had no locus standi to adjudicate on the
validity of domestic law. That position is correct. What must be asserted,
however, is that the Commission has the duty to "give its views or make
recommendations to Governments.../ to formulate and lay down principles and
rules aimed at solving legal problems relating to human and peoples' rights
and fundamental freedoms upon which African Governments may base their
legislation / and interpret all the provisions of the present Charter..."(Article 45).
62. In addition, the Commission is mindful of the positive obligations
incumbent on State Parties to the Charter in terms of Article 1 not only to
"recognise" the rights under the Charter but to go on to "undertake to adopt
legislative or other measures to give effect to them" The obligation is
peremptory, States "shall undertake" Indeed, it is only if the States take
their obligations seriously that the rights of citizens can be protected. In
addition, it is only to the extent that the Commission is prepared to
interpret and apply the Charter that Governments would appreciate the extent
of its obligations and citizens understand the scope of the rights they have
under the Charter.
63. Article 2 of the Charter abjures discrimination on the basis of any of
the grounds set out, among them "language... national or social origin...
birth or other status..." The right to equality is very important. It means that
citizens should expect to be treated fairly and justly within the legal
system and be assured of equal treatment before the law and equal enjoyment
of the rights available to all other citizens. The right to equality is
important for a second reason. Equality or lack of it affects the capacity
of one to enjoy many other rights[FN3]. For example, one who bears the
burden of disadvantage because of one's place of birth or social origin
suffers indignity as a human being and equal and proud citizen. He may vote
for others but has limitations when it comes to standing for office. In
other words the country may be deprived of the leadership and
resourcefulness such a person may bring to national life. Finally, the
Commission should take note of the fact that in a growing number of African
States, these forms of discrimination have caused violence and social and
economic instability which has benefited no one. It has cast doubt on the
legitimacy of national elections and the democratic credentials of States.
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[FN3] Vide UN Committee on Human Rights General Comment No 18 (XXXVII/1989),
pp103-106) for a fuller discussion on non-discrimination in the ICCPR.
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64. All parties are agreed that any measure which seeks to exclude a section
of the citizenry from participating in the democratic processes as the
amendment in question has managed to do, is discriminatory and falls foul of
the Charter. Article 11 of the Constitution of Zambia provides that there
shall be no discrimination on the grounds of "race, place of origin,
political opinions, colour, creed, sex or marital status..." The African
Charter has "national or social origin..." which could be encompassed within
the expression "place of origin" in the Zambian Constitution. Article 23(1)
of the Zambian Constitution says that parliament shall not make any law that
"is discriminatory of itself or in its effect..."
65. The Respondent State, however, seeks to rely on some exceptions as
justification in Zambian law for the exception. It is held that the right to
equality has limitations which are justifiable and that the justifications
are based on Zambian law and the Charter.
66. Article 11 of the Zambian Constitution states clearly that the right to
non-discrimination is "subject to limitations..." Among the limitations
reference is made to Article 23(5) which provides that:
... nothing contained in any law shall be held to be inconsistent with or in
contravention of clause (1) to the extent that it is shown that it makes
reasonable provision with respect to qualifications for service as a public
officer..." It is argued that following a consultative process, the Zambian
people were of the view that the Office of President be subject to the
additional qualification that the President be "an indigenous Zambian
candidate of traceable descent."
67. There has been some persistent confusion in arguments before us between
"limitations" and "justification". Limitations refer to what may be referred
to as the statute of limitations which gives a lower threshold of enjoyment
of the right. Such limitations are allowed by law or provided for in the
Constitution itself. In the African Charter these would typically be
referred to as the �claw-back' clauses. "Justification" however applies in
those cases where justification is sought setting perimeters on the
enjoyment of a right. In other words, there has to be a two-stage process.
First, the recognition of the right and the fact that such a right has been
violated but that, secondly, such a violation is justifiable in law. The
Vienna Declaration and Programme of Action (1993) has affirmed that "all
human rights are universal, interrelated, interdependent..." and as such they
must be interpreted and applied as mutually reinforcing. It is interesting
to note for example, that Article 2 does not have a �claw-back' clause while
Article 13 limits the right to "every citizen" but goes on to state that "in
accordance with the law."
68. In the matter before us therefore the Government of Zambia concedes that
the measures were discriminatory but then goes on to argue (1) a limitation
of the right, and (2) justification of the violation. It is argued that the
measure was within the law and Constitution of Zambia. It was stated before
the Commission that Zambia has a constitutional system of parliamentary
sovereignty hence even the Supreme Court could not "attack" an Act of
Parliament (as Sakala JS put it). The task of the Commission, however, is
not to seek to do that which even the Zambian courts could not do. The
responsibility of the Commission is to examine the compatibility of domestic
law and practice with the Charter. Consistent with decisions in the European
and Inter-American jurisdictions, the Commission's jurisdiction does not
extend to adjudicating on the legality or constitutionality or otherwise of
national laws. Where the Commission finds a legislative measure to be
incompatible with the Charter, this obliges the State to restore conformity
in accordance with the provisions of Article 1 (cf Zanghi v Italy, 194 Eur
Ct HR (Ser A) 48 (1991).
69. It is stated further that the limitation of the right is provided for in
the Zambian Constitution and that it is justifiable by popular will in that,
following the work of the Mwanakatwe Commission on the Constitution, it was
recommended that the Zambian people desired "to save and preserve the Office
of the President for Zambians with traceable descent..." Regarding the claim
that the measure deprived some 35% of Zambians of their rights under the
previous Constitution, counsel for Respondent State dismisses this as mere
speculation.
70. The Commission has argued forcefully that no State Party to the Charter
should avoid its responsibilities by recourse to the limitations and
'�claw-back'' clauses in the Charter. It was stated following developments
in other jurisdictions, that the Charter cannot be used to justify
violations of sections of it. The Charter must be interpreted holistically
and all clauses must reinforce each other. The purpose or effect of any
limitation must also be examined, as the limitation of the right cannot be
used to subvert rights already enjoyed. Justification, therefore, cannot be
derived solely from popular will, as such cannot be used to limit the
responsibilities of State Parties in terms of the Charter. Having arrived at
this conclusion, it does not matter whether one or 35% of Zambians are
disenfranchised by the measure, that anyone is, is not disputed and it
constitutes a violation of the right[FN4].
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[FN4] Vide UN Human Rights Committee General Comment No 25 (XXXVII/1996)
where it says that "Persons who are otherwise eligible to stand for election
should not be excluded by unreasonable or discriminatory requirements such
as education, residence, or descent, or by reason of political
affiliation..."
(para 15 @ p.127).
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71. The Commission has arrived at a decision regarding allegations of
violation of Article 13 by examining closely the nature and content of the
right to equality (Article 2). It cannot be denied that there are Zambian
citizens born in Zambia but whose parents were not born in what has become
known as the Republic of Zambia following independence in 1964. This is a
particularly vexing matter as the movement of people in what had been the
Central African Federation (now the States of Malawi, Zambia and Zimbabwe)
was free and that by Zambia's own admission, all such residents were, upon
application, granted the citizenship of Zambia at independence. Rights which
have been enjoyed for over 30 years cannot be lightly taken away. To suggest
that an indigenous Zambian is one who was born and whose parents were born
in what came (later) to be known as the sovereign territory of the State of
Zambia may be arbitrary and its application of retrospectivity cannot be
justifiable according to the Charter.
72. The Charter makes it clear that citizens should have the right to
participate in the government of their country "directly or through freely
chosen representatives..." The pain in such an instance is caused not just to
the citizen who suffers discrimination by reason of place of origin but that
the rights of the citizens of Zambia to "freely choose" political
representatives of their choice, is violated. The purpose of the expression
"in accordance with the provisions of the law" is surely intended to
regulate how the right is to be exercised rather than that the law should be
used to take away the right.
73. The Commission believes that recourse to Article 19 of the Charter was
mistaken. The section dealing with "peoples" cannot apply in this instance.
To do so would require evidence that the effect of the measure was to affect
adversely an identifiable group of Zambian citizens by reason of their
common ancestry, ethnic origin, language or cultural habits. The allegedly
offensive provisions in the Zambia Constitution (Amendment) Act, 1996 do not
seek to do that.
FOR THE ABOVE REASONS, THE COMMISSION
Finds that the Republic of Zambia is in violation of Articles 2, 3(1) and 13
of the African Charter;
Strongly urges the Republic of Zambia to take the necessary steps to bring
its laws and Constitution into conformity with the African charter; and
Requests the Republic of Zambia to report back to the Commission when it
submits its next country report in terms of Article 62 on measures taken to
comply with this recommendation.
Done at the 29th Ordinary Session, held in Tripoli, Libya from 23rd April to
7th May 2001. |
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