Zambia’s “deportation” of Zimbabwean opposition leader Tendai Biti: is someone to blame?

Author: Cristiano d’Orsi
Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg

Zimbabwean opposition figure Tendai Biti was on Thursday August 9 2018 charged with inciting public violence and declaring unofficial election results[1] as fears grew about a government crackdown following the disputed July 30 election.[2] The court appearance followed dramatic events in which Biti fled to Zambia, was denied asylum and was handed over to Zimbabwean security forces in defiance of a Zambian court order.[3] UNHCR quickly expressed concern.[4] A joint statement by the heads of missions in Zimbabwe of the European Union, the United States, Canada and Australia urgently called on Zimbabwean authorities to guarantee Biti’s safety and respect his rights.[5]

On August 8, Mr Biti first resisted arrest at the Chirundu Border Post arguing that he was protected by International law since he had already crossed the Zambezi River and was in the process of applying for Asylum from Zambia. Then, after an interview with Mr Biti the Zambian authorities at the border refused to hand him over stating that they wanted to consult with their superiors in Lusaka, since Biti had indicated that he was running away from political persecution.[6] Zambia’s Minister of Information and Broadcasting Services and Chief Government Spokesperson, Dora Siliya has said that her government denied asylum to Tendai Biti because there is no threat to the lives of citizens in Zimbabwe. She also said that the country was stable and that the elections had been declared free and fair by SADC.[7]  In addition, she added that Mr Biti has been handed back to the Zimbabwean authorities and not deported because he was not in Zambia illegally but he had been denied entry into the country and was being held at the boarder pending consultations.[8]

However, she did not explain why the Zambian government had defied a court order from its own High Court and handed over Biti to the Zimbabwean authorities.[9] In effect, the Government of Zambia has defied a High Court order, which was issued by Justice G.C. Chawatama of the High Court of Zambia. Justice Chawatama had ordered Zambia Immigration officers not to deport Biti until he had appeared in court. However, Biti has been handed over to Zimbabwe’s Criminal Investigations Department (CID).[10] Part of the order from High Court reads:

The Applicant seeks leave to apply for judicial review pursuant to Order 53 of the Rules of the Supreme Court 1999 Edition. Having perused the ex-parte summons for judicial review and the affidavit in support of the same I allocate the matter to Judge P Yangailo. In the meantime the applicant is to remain in the custody of Zambian Immigration officers who will facilitate his appearance before Judge Yangailo at the High Court in Lusaka at 8:00 hours on the 9^th day of August, 2018 for the application for leave to be heard.[11]

Zambia’s Foreign Minister Joe Malanji said that Biti has been denied asylum because

 …the grounds under which he would want to seek asylum are not meritorious. So basically he has not been arrested, all we are doing is keeping him in safe custody and waiting for the Zimbabwean authority to help him get back to Harare. The grounds do not merit asylum. He is not in danger. He is only going to answer charges to legitimate courts of law.[12]

In his order, Justice Chawatama mentioned several documents, one of them being the SADC Protocol on Extradition entered into force in 2006.[13] Article 4 (a) of this Protocol stipulates that extradition shall be refused ‘if the offence for which extradition is requested is of a political nature…’[14] Mr Biti, in effect, seems to be wanted by the Zimbabwean authorities for crimes that are political in nature. Section 31 of the Immigration and Deportation Act, 2010 stipulates that an immigration officer may issue an asylum seeker’s permit to any person seeking refuge or asylum in Zambia and the permit shall be valid for a period not exceeding thirty days.[15] It is not clear whether  Mr Biti was issued this permit. Justice Chawatama also mentions in his order the 1971 Refugee Control Act, section 11 of which clearly stipulates that

an authorised officer shall not refuse a refugee a permit under this section if the officer has reason to believe that the refusal of a permit will necessitate the return of the refugee to the territory from which he entered Zambia and that the refugee may be tried, or detained or restricted or punished without trial, for an offence of a political character after arrival in that territory or is likely to be the subject of physical attack in that territory.

The section, however, provides further that ‘such authorised officer may in his discretion and without assigning any reason refuse to issue a permit’.[16] This section is most likely what the Zambian authorities relied on to summarily deny Mr Biti asylum. Moreover, Section 17 of the same Act stipulates that “[n]o act or thing done or omitted to be done by any authorised officer or other person shall, if the act or omission was done or omitted bona fide while acting in the execution of his duty under this Act, subject him personally to any liability, action, claim or demand whatsoever.” So, the Officers may also use of the concept of bona fide to justify their rejections.

Strangely, however, Justice Chawatama did not mention the 2017 Refugees Act, now in force in the country.[17] Section 11(4) of the Refugee Act guarantees the rights of asylum-seekers stipulating that “a person who applies for recognition as a refugee under this section […] has the right to remain in Zambia— (a) until that person is recognised as a refugee; or (b) where the application for recognition as a refugee is rejected, until that person has had an opportunity to exhaust that person’s right of appeal under section 15” (right to appeal that does not seem to have been afforded Mr Biti). On the other side, as Mr Biti seemed to have sympathised with the Zambian oppositions,[18] the Government of Zambia could have considered him as threat to the national security and the public order, according to section 23.3 of the 2017 Act. However, it seems that Mr Biti’s claim was generally considered not deserving any refugee status without any further explanations.

Thus, the decision of the Zambian authorities, has been at least incomplete given that the explanations provided to Mr Biti were not complete. Moreover, given that section 23.1 of the Act prohibits returning a person to a country where they may be subjected to persecution based on political opinion, Mr Biti should not have been returned to Zimbabwe, at least without the completion of the judicial process. Mr Biti was arrested and then freed on bail on his return to Zimbabwe.[19]

Thus, even though the Zambian authorities could make use of their discretion given by several domestic legal instruments to try to justify the rejection of the claim made by Mr Biti, they  certainly  should have granted him the right to appeal the decision, which he was not granted. It is also clear that Mr Biti was charged with crimes related to political opinion and therefore should not have been returned to Zimbabwe, where the political situation is still uncertain, even if President Mnangagwa twitted that it was thanks to him that Mr Biti was finally released because, in his words, ‘[a]t such a crucial time in the history of the new Zimbabwe, nothing is more important than unity, peace and dialogue’.[20]

[1]https://www.washingtonpost.com/world/africa/zimbabwean-opposition-official-biti-deported-from-zambia/2018/08/09/f1adc464-9bb1-11e8-a8d8-9b4c13286d6b_story.html?utm_term=.70cde0ea58f5

[2]https://www.news24.com/Africa/Zimbabwe/how-did-mnangagwa-win-zimbabwes-landmark-july-30-election-20180806

[3] https://www.bbc.com/news/world-africa-45126593

[4] https://af.reuters.com/article/zimbabweNews/idAFL5N1V03O0

[5]https://www.washingtonpost.com/world/africa/zimbabwean-opposition-official-biti-deported-from-zambia/2018/08/09/f1adc464-9bb1-11e8-a8d8-9b4c13286d6b_story.html?utm_term=.70cde0ea58f5

[6]https://news.pindula.co.zw/2018/08/08/tendai-biti-arrest-full-text-of-memo-from-cid-chirundi-explains-how-they-were-stopped-from-taking-biti/

[7]http://www.theeastafrican.co.ke/news/africa/Regional-observers-Zimbabwe-election-free-and-fair/4552902-4692254-e75fje/index.html

[8]https://www.lusakatimes.com/2018/08/09/zambias-forced-deportation-of-tendai-biti-is-a-serious-violation-of-international-refugee-law-unhcr/

[9]https://news.pindula.co.zw/2018/08/09/we-denied-biti-asylum-because-civilians-are-safe-sadc-said-elections-were-free-and-fair-zambias-chief-govt-spokesperson/

[10] https://news.pindula.co.zw/2018/08/09/zambia-defies-order-from-its-own-high-court-hands-over-biti-to-zimbabwean-authorities/

[11] https://news.pindula.co.zw/2018/08/09/zambian-high-court-grants-order-for-tendai-biti-not-to-be-deported/

[12] https://news.pindula.co.zw/2018/08/08/tendai-biti-denied-asylum-by-zambia/

[13]https://www.sadc.int/documents-publications/show/Protocol%20on%20Extradition%20(2002)

[14] https://www.sadc.int/files/3513/5292/8371/Protocol_on_Extradiction.pdf

[15]http://www.parliament.gov.zm/sites/default/files/documents/acts/Immigration%20and%20Deportation%20Act.pdf

[16]http://www.parliament.gov.zm/sites/default/files/documents/acts/Refugees%20%28Control%29%20Act.pdf

[17]http://www.parliament.gov.zm/sites/default/files/documents/acts/The%20Refugees%20Act%20No.%201%20of%202017.pdf

[18] https://www.bbc.com/news/world-africa-45126593

[19] https://www.sowetanlive.co.za/news/africa/2018-08-10-we-live-to-fight-another-day-says–zimbabwes-tendai-biti-freed-on-bail/

[20] https://www.bbc.com/news/world-africa-45126593

About the Author:
Dr Cristiano d’Orsi is a Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg. He was previously a Research Fellow and Lecturer at the Centre for Human Rights, Faculty of Law, University of Pretoria in South Africa. His expertise mainly deals with the legal protection of the people “on the move” (asylum-seekers, refugees, migrants, IDPs) in Africa. Another field of its interests includes the protection of the socio-economic rights. Cristiano holds a PhD in International Relations (International Law) from the Graduate Institute of International and Development Studies in Geneva (Switzerland).