The court held that abduction was not a crime in Zimbabwe and there was no crime known as abduction in the Criminal Law (Codification and Reform) Act [Chapter 9:23]. According to the court, if abduction was part of Zimbabwe’s law, it would have fallen under PART V of [Chapter 9:23]. The part related to crimes which involved infringement of liberty, dignity, privacy or reputation. If the applicant was abducted from Zambia to Zimbabwe by Zimbabwean authorities, as he put it, the latter did not commit any crime which would entitle the court to decline its jurisdiction over him on considerations of policy or disable it to try him as abduction was not a cognisable crime in Zimbabwe.
The court held that the applicant and his companions did not enter Zambia, the immigration authorities of Zambia remained constrained to issue the applicant with a deportation, or an extradition, certificate. It was for the mentioned reason, if for no other reason, that they used what was termed a hand-over/ take-over certificate which was a government document. Biti and his companions had presented Zambia’s immigration officials with a fait accompli.
Jursidiction; asylum seeker; abduction; deportation; immigration law
The applicant sought a review of the magistrate court’s decision that dismissed his application for permanent stay of proceedings relating to his alleged violation of the Electoral Act and s 36 of the Criminal Law Codification and Reform Act. The applicant also sought to review an order that placed him on remand on charges of contravening s 66 (A) (i) of the Electoral Act, and s 36 of the Criminal Law Codification and Reform.
The applicant claimed that because Zimbabwe’s authorities abducted him from Zambia to Zimbabwe, their conduct was unlawful as a result of which the court should decline to exercise its jurisdiction over him. He also claimed that his abduction from Zambia to Zimbabwe tainted the conduct of the Zimbabwean authorities with unlawfulness making the court in Zimbabwe to be deprived of the requisite jurisdiction to try him. On the other hand, the 2nd respondent described the applicant as a fugitive from justice and denied that the applicant was ever abducted and/or persecuted.
There was no law or protocol violated when the applicant found his way back to Zimbabwe. The applicant was properly before the court and the court had the requisite jurisdiction to try him.
The salutary principle of the law was that a litigant should not approbate and reprobate in one and the same matter. The applicant, as a litigant, should not therefore blow both hot and cold as he was doing. He could not assert that the court in Zimbabwe had no jurisdiction over him but the court in Zambia had jurisdiction over him when he stated, as he was doing, that both the Zambian and the Zimbabwean authorities abducted him from Zambia to Zimbabwe.