Case Summary and Outcome

The African Commission on Human and Peoples’ Rights (“ACmHPR” or “the Commission”) held that Zambia violated the right to freedom of expression under Article 9.2 of the African Charter on Human and Peoples’ Rights (“the Charter”) by unlawfully deporting two prominent members of an opposition party. William Steven Banda and John Lyson Chinula were two prominent political figures who were irregularly deported to Malawi after being served with deportation orders. The Commission found that Zambia failed to justify these deportations and that they were, in fact, politically motivated. The Commission also held that Zambia violated the right to freedom from discrimination, the right to appeal before a competent organ, the right to freedom of conscience and association as well as the protection of the family enshrined in Articles 2, 7(1)(a), 8, 10, 18(1), and 18(2) of the African Charter, respectively.

Facts

William Steven Banda and John Lyson Chinula were two prominent political figures as leading members of the United National Independence Party (UNIP). The UNIP had been in power since 1964 until it was defeated in 1991 by the Movement for Multiparty Democracy (MMD) in Zambia’s first multiparty elections. On 10 November 1991, Mr. Banda received a deportation order that cited as its reason that “by his presence he (is) likely to be a danger to peace and good order in Zambia” [para. 3] Mr. Banda challenged the order in the Zambian Courts; however, he was deported to Malawi on 25 October 1994. In its communication, he contended that his deportation was illegal, unjust, and politically driven. He alleged that he was blindfolded, drugged, and taken away by officers of the Zambian Immigration Service and the paramilitary police.

As per John Lyson Chinula, on 31 August 1994, he was removed from his home in Ndola and taken to Lusaka International Airport for deportation. In a deportation order signed by the Minister of Home Affairs, it was alleged that “by his presence, likely to be a danger to peace and good order in Zambia” without advancing any legal or factual reasoning for such finding [para. 5]. He found himself at Lilongwe Police Station in Malawi after being forcibly sedated.

While Mr. Banda had the opportunity to exhaust all available domestic remedies in Zambia, this was not the case for Mr. Chinula. As a result of his deportation, Mr. Chinula did not have the opportunity to file a complaint to the Zambian Courts. Furthermore, he was not allowed to return to his country under threat of being thrown in prison. The victims contended that their legal efforts in Malawian and Zambian courts were futile and that their deportations constituted “forcible exile.”

Decision Overview

Concerning freedom of expression in the instant case, the ACmHPR had to decide whether the politically motivated deportations of Mr. Banda and Mr. Chinula constituted a violation of article 9.1 of the African Charter.

The Communication alleged that the deportations were ordered “out of political malice” [para. 4]. In this regard, the Commission noted that both claimants were leading politicians and members of the UNIP, an opposition party to the ruling party MMD. Furthermore, it considered that although deportation action had been initiated against the victims in 1974 and 1976, it was not until the MMD government took office in 1991 that the deportation processes were accelerated. The Commission was “therefore persuaded that the deportations were politically motivated” [para. 54].

The Commission highlighted the essential nature of the right to freedom of expression “to an individual personal development, political consciousness and participation in the public affairs of his country” [para. 54]. In that sense, the Commission referred to the freedom of conscience under Article 8, implying that this right was denied to the victims as a result of their politically driven deportation [para. 54]. The Commission continued its analysis of the facts to conclude that in addition to freedom of expression, Zambia violated the right to freedom from discrimination, the right to appeal before a competent organ, the right to freedom of conscience and association as well as the protection of the family enshrined in Articles 2, 7(1)(a), 8, 10, 18(1), and 18(2) of the African Charter, respectively.