In a major human rights decision, Zambia's highest court has declared that the government's deportation of a prominent industrialist was unlawful, and that his treatment by the authorities had been 'high-handed' and a flagrant breach of his human rights.
The decision is particularly significant for several reasons. The Minister of Home Affairs who authorised the 2012 deportation was Edgar Lungu, now President of Zambia. Lungu has been strongly criticised for being behind a number of deportations carried out during his term as Minister of Home Affairs, and his critics will now have the weight of the courts behind them as they challenge Lungu's continuing, dubious human rights record.
It was also significant because the judgment, written by Chief Justice Ireen Mambilima with the agreement of two Supreme Court colleagues, is clearly pushing the country's courts towards a more human rights approach. Through their decision these three top judges effectively give notice that the courts will require more accountability from government, even when the law seems to leave little room for the courts to question whether the exercise of public power has been legitimate.
The case concerns a Nigerian-born British national, Fola Esan, at the time managing director of the cement giant Lafarge in south east Africa.
He was issued with a two-year Zambian employment permit in February 2012. Less than a year later, however, he was intercepted and detained by Zambian immigration offices on his return from a trip to Malawi.
He was served with various documents to the effect that his employment permit had been revoked and that he had been declared someone whose presence in Zambia was 'inimical to the public interest'. Under circumstances that the High Court would later describe as tantamount to abduction, he was refused access to his lawyers, refused permission to collect prescription medicine from his home and given no reasons for his detention and hurried deportation.
Some time later, from outside the country, Esan challenged the action taken against him. Initially he won half his battle in the High Court, where the judge said the notice rescinding his work permit was invalid, but that the court could not set aside the notice purportedly issued by Lungu, declaring Esan a 'danger to public peace and good order' in Zambia.
The court found, however, Esan had been treated in a way that was 'shocking and unacceptable', that his rights were violated and that the law was disregarded by officials.
Esan took the outcome on appeal to the Supreme Court where the matter was argued last month. Now the Chief Justice has held that the High Court did not go far enough: the notice declaring Esan a danger to the country was also invalid and his removal from Zambia was thus unlawful.
In her decision, the Chief Justice noted the 'high handedness' by the authorities in the way they treated Esan. She agreed with the High Court that the behaviour of the officials involved was 'to say the least shocking and unacceptable', and that '(while) Zambia is a country of laws ... it is quite clear that (Esan) was treated as though he had no rights whatsoever.'
The Chief Justice said:
'We could not agree more. Clearly there was an affront to (Esan's) human rights. We must state that there is an obligation upon those entrusted with the exercise of public power to treat persons fairly and respect their human rights.'
The role of the courts was to ensure that individuals were given fair treatment by the authorities, she said. 'Persons within the boundaries of Zambia are entitled to the protection of the law and, for the Bill of Rights to have any meaning, there must be sanctions for arbitrary behaviour.'
There could be no such thing as an 'unfettered discretion immune from judicial review'. In a situation such as this, where the law appeared to grant absolute discretion and left little room for questioning the legitimacy of the exercise of public power, 'courts ought to be conscious of emerging trends towards a more open and transparent government that promotes the rule of law (and) human rights and curbs arbitrariness. The court should go behind the orders' particularly where there seemed to be evidence of arbitrary or 'perverse' actions and establish whether the law had in fact been followed.
No reasons were given for why Esan had been declared a danger to public interest, but in the 'new dispensation of open government' there was a growing school of thought advocating that reasons must be given for administrative decisions.
In fact it could be argued that
'failure to give reasons for a decision amounts to a denial of justice and is, in itself, an error of law.'
Where the Minister appeared not to be required to give reasons for deporting someone, the courts should no longer only consider whether the Minister's powers were exercised 'according to the law'.
Instead, the court ought to protect people against 'arbitrariness', even more so when 'excesses are apparent'. In doing so, the court should interpret the legislation and the relevant provisions 'strictly'.
Applying this strict approach to Esan's case the court found that the law required the Minister to state, in writing, his view that the affected person was a danger to Zambia, but that no such document was produced in court. The breach of human rights in the case was so bad that it would not be far fetched to conclude the director general of immigration alleged the Minister declared Esan's presence 'inimical to the public interest' so that no reasons needed to be provided for the detention and deportation order.
The court against stressed: 'In the face of the affront to the human rights of (Esan), the law needed to be interpreted strictly.' When the judges did so in this case it became clear that the notice served on Esan, saying that as a prohibited immigrant he had to leave the country, was a notice 'with no leg to stand on'. Exposed as procedurally improper, the notice had to be set aside. The High Court should have 'imputed bad faith' and an 'unreasonable exercise of power' to the immigration authorities and granted the original order sought by Esan.
The decision of the court below, upholding the Minister's decision as lawful, was set aside: 'We find and hold that the removal of (Esan) from Zambia was unlawful'.
Esan was one of a number of people, including a revered Catholic priest, thrown out of Zambia by Lungu without reasons during his term as minister of home affairs. At that time Lungu also famously said, in the midst of the trial of two men under Zambia's tough anti-gay laws, that those advocating gay rights 'should go to hell.' And he added: 'That is not an issue we will tolerate.'
This is not the first important decision on unfair deportations in which Mambilima has been involved. In 2011, as Deputy Chief Justice, she was a member of the Bench which ruled the government had wrongly deported hunter and artist John Eric Tolmay in 2003. Again a crucial issue was government's failure to give reasons for the deportation. This led to the appeal judges upholding the high court's finding that Tolmay's deportation had been 'unreasonable, oppressive and outrageous'.
* This article was first published in Legal Brief
Administrative law – Absolute discretion in legislation – Court must delve into circumstances in which power exercised
Immigration and deportation – Revocation of any permit issued under the Immigration and Deportation Act to be preceded by notice in writing from Director General
Civil procedure – Pleadings – Court confined to reliefs that are pleaded
Immigration and Deportation – Declaration that person’s presence is inimical to the public interest – Need to be under the hand of the Minister of Home Affairs