Legal Opinion
By Jeff Mbewe
Okay! So after Zimbabwean senior leader of the MDC-Alliance – Tendai Biti – was denied asylum into Zambia, and handed over to his country’s authorities, despite that his legal team obtained from High Court Judge Justice Gertrude Chawatama , an order for Judicial review, against the action of the Zambian Immigration officers, opinion is polarized.
Others agree with Government’s actions while others disagree. However, there is almost no legal opinion advanced by both groups over the matter but there exist rife moral and political arguments advanced.
From the moral point of view, those agreeing with Government’s verdict say Biti was rightly treated because he allegedly encouraged violence among his poor supporters while his own children are safe elsewhere and the masses are bearing bullets of the army.
Those against government are saying, the same government that denied the MDC-Alliance leader asylum offered solace to a Congolese private citizen Katumbi not so long ago, after being barred from entering his country by Joseph Kabila’s government.
Politically, the argument by those supporting government is that Biti is an opposition member and granting him asylum or giving him safe passage to another country of his choice.
This is because we heard that after Zambia’s immigration department had denied him asylum, three other countries were willing to take him in but it seems Zambia didn’t want to soar the relationship with Zimbabwe.
Those rebuking government’s actions are still insisting on Katumbi’s ‘hosting’ that he is a mere private citizen of Congo yet government hosted him, gave him space to even comment on topical political matters that “Zambians are lucky to have President Edgar Lungu as their leader” – a flawless spat against the opposition’s view.
Well, I attempt to offer a summery legal opinion and hopefully, this will answer the question as to whether or not handing over Biti to Zimbabwean authorities by the Zambian authorities “is not deportation” as Minister of Information and Broadcasting who is also Chief Government Spokesperson Dora Siliya would want to have us believe.
It must be noted from onset that should government’s treatment of Biti graduate to deportation, Siliya’s intention is to save face of her government.
But obviously, it is already undeniable that our Government does not respect our Laws following the defying of the Court order issued by Justice Ms Chawatama to Biti’s legal team against Immigration for the Zimbabwean opposition leader to be given a right to be heard in court over application of asylum.
By refusing to give Biti a day in court, Government raped our Constitution. The power of the Judiciary expressed in the constitution through the Supreme Court specifically, was raped.
It must be noted that, by virtue that our country has a written constitution, different from the United Kingdom and other Monarch countries which have unwritten constitutions but have the supremacy of their elective bodies, all laws in conflict with the constitution are null and void.
In the United Kingdom where there is no written constitution but where the country operate on practices, rules and conventions which offer a guide to governance, the doctrine of constitutional supremacy does not apply.
What applies is the doctrine of Parliamentary supremacy and sovereignty which is regarded as an organ that represents the interests of the people, as such, what they decide through Acts of Parliament, is taken as supreme above other laws and such Parliamentary decisions, with regards to law and politics, cannot be questioned by judicial reviews.
There are instances in United Kingdom where the courts are reluctant or even refuse to interfere with Acts of Parliament, regardless of how unjust they may look, for the sole reason that such Acts or laws are a formulation of the wishes of the people who are represented by those in the House of Common.
The Lords and Crown also have no mandate to question or even reject what emanates from the House of Commons whose members are persons elected on the premise of political manifestos they are supposed to fulfill.
In contrast, countries like Zambia, where we have a written constitution, Parliament laws as well as executive orders which may be political in nature must find expression in the Constitution. In this regard, the purported order by government to the poor immigration officers in Chilundu to defy a court order is against the wishes of Zambians, reflected in the constitution.
I shall waste no time to discuss whether or not government had any mandate as per Immigration and Deportation Act as well as Refugee Control Act because, the result of this would have well been established by the Supreme Court had government not defied a court order to avail Biti to court.
However, turning to the litmus issue that seem to have made our country to be in the International media for wrong reasons – has International Law been violated? Was Biti deported or not as per Siliya’s thinking?
Citizens of any country have the right to enter and leave their country. While no State may expel its nationals, it is the sovereign prerogative of states to regulate the presence of foreigners on their territory. This power is not unlimited and international human rights law places some restrictions on when and how to exercise this power.
With regard to expulsions, three types of protection are available; substantive protection against return to face grave violations of human rights, procedural safeguards during deportation procedures, and protection with regard to the methods of expulsions.
In addition to the general protection afforded to all foreigners, certain categories of foreigners, such as refugees and migrant workers may be afforded additional protection against expulsions and/or benefit from additional procedural guarantees. Let us mind that many terms are used by States to refer to “expulsions”: in some cases, these are called “deportations”, “removals”, and so on. So basically, no word other than DEPORTATION describes what happened to Biti.
Nonetheless, according to the Refugee Convention adopted in 1951 by the Office of the United Nations High Commissioner for Human Rights (OHCHR), no State party “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Since all asylum seekers are presumed to be refugees until proven otherwise, they benefit from the protection afforded by Refugee Convention unless their claim to refugee status is rejected. Even so, the Convention contain some procedural safeguard since it provides for instance, that such an expulsion can take place only in pursuance of a decision reached in accordance with due process of law, and that the refugee has the right to submit evidence to clear himself, to appeal to and be represented before a competent authority. But here we are Biti was denied such procedural safeguard of the due process of the law.
Let us kill the argument that Biti committed a felony in his country by allegedly inciting violence. The Convention against Torture provides that every person is protected against expulsion to face torture, regardless of what he or she is or may have done in the past. It can’t be denied that, handcuffing a suspect is equivalent to torture. Biti’s legs were kept in chains and his hands cuffed even in court until granted bail.
Many other International Laws which Zambia is part of may be cited to further prove the wrongs committed by President Lungu’s administration in this issue. For now, I leave it for others to discern and formulate their own judgment – mine is but just one opinion.
Peace!
Author is Law Student with vast interest in Constitutionalism, International Law, Criminal Law as well as Politics.
