This Communication was submitted by Amnesty International on behalf of William Steven Banda and John Lyson Chinula and decided at the African Commission on Human & Peoples’ Rights 25th ordinary session in May 1999. Banda and Chinula were prominent political figures for the United National Independence Party (UNIP) who were in power since 1964. UNIP were defeated by the Movement for Multiparty Democracy (MMD) in Zambia’s first multiparty elections. On 10 November 1991, Banda was served with a deportation order on the grounds that his presence was ‘likely to be a danger to peace and good order in Zambia.’ Banda contested this order in the courts of Zambia however he was deported to Malawi on 25 October 1994. Chinula was removed from his home in Ndola on 31 August 1994. He was served with a deportation order also alleging he was ‘likely to be a danger to peace and good order in Zambia.’
The Commission found that the right to receive information under Article 9(1) of the Charter had been denied to Banda and Chinula. The Commission also found that Zambia contravened Article 7 of the Charter (right to fair trial) in that Banda was not allowed to pursue the administrative measures which were open to him in terms of the Citizenship Act. The question of Banda’s citizenship status in Zambia was questioned by the Zambian authorities. The Commission stated that the status had been accepted and he had made a contribution to the politics of the country. The provision of Article 12(4) of the Charter (the mass expulsion of non-nationals is prohibited) had been violated.
The Commission noted that the government of Zambia had relied on the ‘claw-back’ clause of Article 12(2) that stated the right to leave and return to their country ‘may only be subject to restrictions provided for by law for the protection of national security, law and order, public health or morality.’ The Commission held that ‘claw-back’ clauses must not be used as a means of giving credence to violations of the express provisions of the Charter. The Commission stated that it is important to caution against too easily resorting to the limitation clauses in the African Charter. It asserted that ‘the onus is on the state to prove that it is justified to resort to the limitation clause.’
The Commission held that there were violations of Articles 2, [5], 7(1)(a), [7(2)], 8, [9(1)], 9(2), 10, [12(4)], 18(1) and (2) of the Charter.
Download the judgment