The appellant argued that the Refugee (Control) Act was contrary to international convention and that the Act was unconstitutional insofar as it deprived or sought to deprive him of his freedom of movement and residence in Zambia.
The appellant also challenged his status as a proper refugee under the provisions of the Act given that he arrived in Northern Rhodesia, now Zambia, in 1964. It was a prerequisite under the Act that for one to be charged with the offence in terms of the Act, they needed to be a refugee.
The main question to be determined by the Court was whether the appellant was a refugee.
Constitutional law, human rights, freedom of movement, non-citizens, rights of refugees, rights of non-citizens
This was an appeal against the conviction for contravening Section 15(1) of the Refugee (Control) Act, 1970 in the Subordinate Court of the First Class for the Lusaka District. In terms of section 15(1) of the Act, any refugee who fails to obey a lawful order of the Commissioner shall be guilty of an offence and liable to up to three months’ imprisonment.
The appellant, being a refugee from South Africa, was ordered by the acting Commissioner of Refugees to report back to him and he failed to do so. He was convicted and sentenced to one month’s simple imprisonment suspended for twelve months on condition that he was not convicted of any similar offence during the period of suspension.
The court held that the it was bound to give effect to the laws of Zambia subject to the Constitution, and that it was not the appropriate platform to argue variance with international conventions.
It also held that if the appellant was not a Zambian citizen, he could not rely on the protection of section 24 of the Constitution, and the act was not unconstitutional.
The Court then held that it had not been adequately proved that the appellant was a refugee. The appeal was ultimately upheld and the conviction and sentence were set aside and ordered that an acquittal be entered.
Section 24 of the Constitution which provides that no person shall be deprived of his freedom of movement. This includes the right to move freely throughout Zambia, the right to reside in any part of Zambia, the right to enter Zambia and, immunity from expulsion from Zambia.
Sections 2,3 and 15(1) of the Refugee Control Act which provide that deprivation of one’s liberty is only permissible if it is sanctioned by the law.