The court noted that although the appellant had enjoyed the status of an established resident, he was not immune from being the subject of a deportation order, and as a non-citizen once he was convicted of a criminal offence the prosecution was duty bound in terms of s. 33 of the Penal Code to forward particulars of the conviction to the Minister in terms of s. 26 (1) of the Immigration and Deportation Act, and it was mandatory on the part of the Minister at the expiration of the sentence to sign a deportation order.
The warrant signed by the Minister required the deportee to be deported from Zambia to Uganda. However due to prevailing circumstances between Uganda and Tanzania the court was bound to inquire whether the order was effectively executed against the appellant.
The court averred that the provisions of the Immigration and Deportation Act required a deportee who was not a citizen to be sent to his country of origin, or country of which he was a citizen. He could not be convicted of the offence unless such actual deportation was proved.
Illegal immigrants; deportation order
The appellant, a citizen of Uganda and a resident in Zambia, was convicted of a criminal offence. After the expiry of his sentence the Minister, after receiving the particulars of the conviction under s. 33 of the Penal Code, signed a deportation order in terms of s. 26 (1) of the Immigration and Deportation Act for the appellant to be deported to his country of origin. The appellant was then escorted by immigration officials and handed over to the Tanzanian officials at the border between Zambia and Tanzania for them to deliver the appellant to Uganda immigration officials on behalf of the Government of Zambia.
The appellant was convicted of returning to Zambia after a deportation order had been made against him contrary to ss. 29 (3) and 30 of the Immigration and Deportation Act.
From the provisions of s. 26 (1) and (6) of Cap. 122, as well as the form of the deportation warrant, it became apparent that the order for deportation was to ensure that the person was repatriated from Zambia to his country of origin or country of which he was a citizen. The evidence concerning the deportation of the appellant in the case had to be supported by documentary evidence and could not be resolved on the basis of credibility of witnesses alone.
It was quite clear therefore that the trial Magistrate had misdirected himself both on the law and on the facts when he held that the appellant had been effectively deported from Zambia.
The statutory provisions concerning the order for deportation had not been fully complied with and the appellant had not been legally deported from the Republic of Zambia to Uganda. The appeal was hence allowed.
In terms of s. 26 (1) of the Immigration and Deportation Act, Cap. 122, it was mandatory on the part of the Minister at the expiration of the sentence to sign a warrant to deport such convicted person who was not a citizen from Zambia.
For the purpose of establishing in relation to a person liable to be deported under this section his identity, his citizenship and the country of his origin, an immigration officer may require such person -
(a) in writing or otherwise to answer such questions as the immigration officer may put to him;
(b) to produce any passport and any other pertinent document in his possession.