4.
At any rate, the decision to deport the Applicant (Respondent) on this set of facts is clearly ultra vires Article 20 of the Republican
Constitution. It cannot be reasonably supported in a democratic country such as Zambia.
The Minister filed an Affidavit in Opposition to the Respondent’s applicant for Judicial Review. In his Affidavit, the Minister
deposed that the article in question was not satire but in fact it was a direct insult on the government, its leaders and the people
of Zambia. The Minister also deposed that he was not influenced by the Permanent Secretary, in making his determination in accordance
with his statutory powers. Regarding the statement he made to the protesting MMD party members, the Minister said by that time he
had already issued the warrant to deport the Respondent. The Minister said that his opinion was that the Respondent by his presence
in Zambia is likely to be a danger to peace and good order. The Minister said that the Respondent’s reference to the people
of Zambia as animals, monkeys, hippos etc has excited and encouraged hatred in Zambia and it is also a recipe for violence in the
country. The Minister further deposed that in law, he is not obliged to give reasons for his decision to deport the Respondent. Furthermore,
the Minister deposed that under the Immigration and Deportation Act, he is not bound to hear the Respondent before issuing a warrant
of deportation. He said that, even if the Respondent was entitled to be heard, the insulting statements are obvious and serious to
render the discretion to quash the decision on account of the right to be heard not appropriate. The Minister denied that the Respondent’s
right or any fundamental right as alleged or at all has been infringed. He said that there has been no illegality, irrationality
and/or procedural impropriety in the decision making process.
The Respondent replied to the Affidavit in Opposition saying the article was satire, which is a form of social or political criticism,
which takes the form of metaphor or allegory as a vehicle of pointing out hypocrisy, pomposity and absurdity. He said a satire is
a textual version of a cartoon; that the meaning of satire is not explicit and largely depends on the interpretation put on it by
the reader; that the lowest level of interpretation of satire is to take the metaphor literally and thereby overlook or misinterpret
the deeper critical insights; that in view of this, the article did not insult, nor was it intended to insult the government or the
citizens of Zambia; that the Minister in his affidavit says he was influenced to deport the Respondent by the satirical article in
question, that the article in question is humorous, albeit critical, and is not a recipe for violence in the country; that the decision
to deport him was explicitly taken partly on grounds of his origin, nationality and race, and therefore in violation of the Constitution;
that his presence in Zambia and the exercise of the freedom of expression is not a danger to the peace and good order in Zambia;
that the administrative decision to deport him is calculated at imposing penal sanctions against him; that the decision to deport
him on account of the satirical article he wrote is a clear violation of the right of expression and freedom of the press and that
the article in question was published by the Post Newspapers Limited and the paper is entirely responsible and accountable for the publication. The Respondent is an established resident and has chosen
Zambia as his residence or place of abode.
On this evidence, the learned trial Judge found that the Respondent was deported as a result of a satirical article of the first of
January, 2004 which appeared in the Post Newspaper; that Mr. M’membe, Managing Director Editor of the Post Newspaper published the article and nothing has been done to Mr. M’membe
the Editor-in-Chief and Publisher; that satirical articles have appeared in the Zambian Newspapers for decades, even the Applicant
(Respondent) has written several articles of such a nature and that the article in question was an overstretched satire, irritating
and offending.
After these findings, the learned trial Judge reviewed the law relating to Judicial Review as we know it. The learned trial Judge
then considered the provisions of Section 26(2) of the Immigration and Deportation Act (3) and held that the words “in the opinion of the Minister” as used in the section mean that the Minister’s action
cannot be challenged on the merits; that the power is subjective. For reasons, which we cannot easily discern from the pleadings
in this case, the learned trial Judge, citing foreign authorities, dealt with issues of equality before the law and held that the
Respondent had been singled out for negative individualized treatment; while the Editor-in-Chief and publisher has not been sanctioned.
After dealing with the concept of equality before the law, the learned trial Judge, again citing several foreign authorities, discussed
the importance of freedom of the press and expression and held that the discretion to deport aliens should not be exercised in violation
of the prescribed guarantees of equality and liberty. Further, the learned trial Judge, again, for reasons we cannot easily discern
from the record, said that if the authorities deport those aliens against whom they bear some prejudice or whose protected liberties
they wish to curtail, such a deportation is discriminatory. The learned trial Judge was critical of the Zambian authorities treatment
of the Respondent by deporting him for reasons forbidden by the Constitution, i.e. constriction of the freedom of expression and
discriminating against him as an alien because of his origin and race. The learned trial Judge then discussed deportation and characterized
it as a grave sanction and went into the negative effects of deportation, which, for the purposes of determining this appeal, it
is not necessary for us to recite.
In respect of the Respondent, the learned trial Judge said that the Respondent’s deportation will mean the Respondent staying
away from his wife, children and grand children who are Zambians, and who will be indirectly denied Zambian citizenship by forcing
them to go and live with the Respondent in England. We must observe here that we have searched the record of evidence and we find
nothing to the effect that the Respondent is married to a Zambian, has children and grand children in Zambia.
The learned trial Judge was of the opinion that the Minister having used his discretion under Section 26 (2) to deport the Respondent
because of the article the Respondent published, that amounted to constricting a Constitutional right. He said to discriminate against
an alien is not acting fairly. The learned trial Judge, again after citing foreign authorities, talked about when national security
may be acted upon and said that the philosophy behind Section 26 (2) is security of the State against those who are bent on destroying
the country. But we must say here that the reasoning and the situations cited by the learned trial Judge are irrelevant to this case.
The Minister was not talking about matters of state security properly so called, but about the likelihood of such articles as the
Respondent wrote leading to discord and possible violence in the country. The learned trial Judge then said that the Minister should
have taken into consideration International Human Rights Instruments to which Zambia is a signatory when deciding the deportation
of the Respondent, who, according to the learned trial Judge, has contributed 40 years of his life to the development of this country
and has raised a family. It was the learned trial Judge’s opinion that, the fact that an article irritates, offends or shocks
the State does not mean that Article 20 (3) of the Constitution does not apply.
In conclusion, the learned trial Judge held that the Respondent’s rights to freedom of expression under Article 20 of the Constitution
and protection of the law under Article 23 of the Constitution (1) were contravened in relation to the Respondent. The learned trial
Judge said that there was procedural impropriety; that the facts were remotely connected to Section 26 (2), which was invoked by
the Minister. He said that deportation in this case was unlawful and an excessive measure.
The learned trial Judge then expressed his personal opinions on the negative effects of deportation and talked about Zambian Christian
values etc. We must say here that we disapprove of this kind of approach by a Judge. A Judge must decide the case on the evidence
before him and must not devote part of his judgment to talking about himself or his personal views. In his views the learned trial
Judge said that said officials should unlearn (whatever that may mean) the negativity of satire and the Applicant (Respondent) should
learn the positivity of cultural accommodation and sensitivity.
Dissatisfied with this judgment, the Appellant now appeals to this court. The Appellant advanced four grounds of appeal.
The first ground is that the learned Judge misdirected himself in determining that the powers of the Minister under Section 26 (2) of the Immigration and Deportation Act (3) is confined to national security.
The second ground of appeal is that the learned Judge erred in law that the Respondent’s Constitutional rights, that his freedom
of expression and the right not to be discriminated under Article 20 and 23 of the Constitution (1), were violated by the Minister
invoking Section 26 (2) of the Immigration and Deportation Act (3).
The third ground of appeal is that the learned Judge misdirected himself in law in determining that the Minister’s decision
to deport the Respondent was not respective of our Christian values as Christian nation.
The fourth ground of appeal is that the learned Judge misdirected himself in law in determining that the Respondent succeeded on all
three grounds of illegality, procedural impropriety being Wednesbury unreasonableness and for violating the Constitution.
Counsel filed detailed heads of argument which they augmented with oral submissions.
The argument on ground one is that the wording of Section 26 (2)(3) is such that even matters which are not of national security per se can be a basis for deportation under Section 26 (2). It was argued that acts by aliens like engaging in immoral behaviour, which has the potential to destroy the fabric of social life
and norms, or advocating nudism can fall under Section 26 (2)(3). It was argued that the Respondent fell into this category.
On the second ground of appeal it is argued that the Judicial Review application did not ask to declare the deportation under Section 26 (2) (3) of the Immigration and Deportation Act as discriminatory and ultra vires Article 23 of the Constitution. It was submitted that the
grounds of ultra vires should, therefore, not have been entertained as it was caught by Order 53/6/1 RSC. It was pointed out that even assuming that the learned trial Judge had the right to make a determination of discrimination under
Article 23(1) and infringement of the freedom of expression under Article 20 (1), the finding the learned Judge came to was erroneous because freedom of expression is not limitless. Freedom of expression is subject
to the constitutional provisions in Article 20 and all other legislation including the Immigration and Deportation Act provisions
which are reasonably justifiable in a democratic society. It was emphasized that the issue of discrimination did not arise because
the undisputed evidence is that the Respondent is an alien; that the Respondent does not, therefore, stand on the same plane with
non alien’s for there to be discrimination. The case of Wandsworth LBC v Michalok(1) was cited on what amounts to discrimination. But in view of what we are going to say later; we do not find it necessary to give the
facts of this case. Suffice it to say that the thrust of the judgment in that case is that for there to be discrimination, persons
must be similarly circumstanced but given different treatment.
The submission on ground three is simply that the learned trial Judge was not invited to make a decision on the reasonableness or
otherwise of the Respondent’s deportation with respect to our Christian values as a Christian nation.
The argument on ground four is that under Section 26 (2)(3) there is no right to be heard before deportation. In support of this statement the cases of Shilling Bob Zinka v Attorney-General (2) and Mifiboshe Walulya v Attorney General (3) were cited.
Mr. Sichinga, the learned Chief State Advocate, who appeared with Col. Phiri, the learned State Advocate, made oral arguments on grounds
one, three and four.
The thrust of Mr. Sichinga’s oral submissions on grounds one and four, which he argued together, is that by determining that
the power of the Minister under Section 26(2)(3) is only confined to national security, the learned trial Judge fell into error. It is Mr. Sichinga’s submission that Section 26(2)(3) is broad enough to cover any disturbance and acts of people engaged in immoral behaviour. He pointed out that there should not always
be a crime for Section 26 (2)(3) to come into operation. He said a person can be conducting his ordinary business but in that conduct he may upset the good order
of the society. Mr. Sichinga submitted that the article the Respondent wrote was found by the Minister, in his subjective opinion,
to be an insult to the government and its leaders. It was Mr. Sichinga’s submission that by finding that Section 26(2)(3) is confined to national security the learned trial Judge put the matter into the realm of Section 26(2)(3) which deals with matters of national interest. He said that in Section 26(2)(3) the intention of the Legislature was to cater for circumstances where one has not necessarily committed an offence. He pointed out
that there is no ambiguity in Section 26 (2)(3) to suggest that it is confined to crime. Mr. Sichinga then referred us to the Independent Media Bill case (4) where we said that
the court must give effect to the literal meaning of words. For these reasons Mr. Sichinga submitted that there was no illegality,
irrationality and Sichinga submitted that there was no illegality, irrationality and unreasonableness.
On ground three Mr. Sichinga submitted that the declaration of Zambia as a Christian nation was nothing but a political declaration.
He pointed out that the learned trial Judge was never invited or asked to base his decision on the Respondent’s deportation
on the principles of our Christian nation. In any case, Mr. Sichinga argued, the learned trial Judge ought to have given guidelines
on what to do when there are compelling reasons to deport.
Col. Phiri argued ground two. He submitted that the learned trial Judge erred when he held that the Minister violated the Respondent’s
fundamental rights when he invoked Section 26(2). He pointed out that the Minister has power to deport any person who, in his opinion,
his presence in Zambia is a danger to peace or good order; he said these powers have been exercised in respect of national security
and public order. Col. Phiri submitted that freedom of expression is not limitless. He pointed out that the learned trial Judge found
the article to be overstretched satire, irritating and offending. He said the words were insulting to the government, its leadership
and the people of Zambia. He said that it is incumbent on all the citizens to accept the values of the society. He argued that the
article was not acceptable in this society and that it is the duty of the Minister to maintain public order. Col. Phiri ended by
saying that the Minister’s decision was firmly anchored on law which is required in a democratic society; that a balance must
be struck between private interest and public interest/order. He said in this case public interest/order out weight private interests.
He urged us to allow the appeal.
Dr. Matibini, learned counsel for the Respondent argued the grounds of appeal seriatim.
Dr. Matibini’s written arguments on ground one are that then learned trial Judge did not confine the provisions of Section 26(2)(3) to national security. He said the learned trial Judge properly directed himself when he said that the court was not concerned with
the merits under
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