By Prof. Michelo Hansungule
From 1953 to 1963, Malawi, Zambia and Zimbabwe were one country. Except for someone who has a real problem in their heads, even now that they are separate sovereigns, in fact their people are one. President Kaunda’s mother and father hailed from Malawi.
In 1965, President Emmerson Mnangagwa was deported to Zambia by the then Rhodesian regime following his conviction of treason. Mnangagwa and his colleagues some of whom were executed were convicted of, inter alia, sabotaging rail lines. He himself was spared the maximum penalty due to his young age at the time as minor. He lived in Chief Shakumbila in Mumbwa.
In fact, all of them Josua Nkomo, Robert Mugabe, Sam Nujoma of Namibia, and many other nationalist freedom fighters as well as ordinary people from then Rhodesia, Namibia, Angola, Mozambique and Malawi during the brutal dictatorship of Kamuzu Banda for years sheltered in Zambia.
So what is the problem with Tendai Biti fleeing to Zambia when he has problems in Zimbabwe? Independent media had reported that security forces in Zimbabwe had surrounded his elderly mother’s house, a poor woman who is not a politician. Same sources reported that Bitihad escaped abduction by unknown people outside his law firm and later that live bullets had been fired to his car, all this after his statement in which he suggested that opposition leader Nelson Chamisa may have won this years’ disputed presidential elections.
The decision by Zambian authorities to handover Mr. Bitito Zimbabwean authorities after he had crossed into Zambian soil and in the face of a Zambian High Court Order prohibiting this deportation is a clear affront to the Zambian constitution which guarantees the independence of the judiciary. Even in the most barbaric states, a civil servant cannot overrule a judge, it is simply not possible. But here it is in Zambia. Judge Yangayilo’s order staying the deportation of Mr. Biti was overruled by an immigration officer and Mr. Biti was handed over to the Zimbabwean authorities. Yet, Zambia has had clear jurisprudence stretching to since the days of the one-party state forbidding the executive from deporting foreign nationals whose matters were pending before courts.
Many Zambians wondered why Mr. Biti’s deportation provoked such widespread anger and immediate response not only from western countries including the US State Department but from the United Nations as well? A friend had asked me how important Mr. Biti was to lead to this international outrage? Another colleague wondered whether Zambia did not act within her sovereign right in deporting Mr. Biti?
Zambia’s Ministers of Foreign Affairs and Information were reported to have said Mr. Biti had to be returned back to his country because he did not meet the minimum conditions for grant of asylum. On the other hand, a South African Broadcasting Corporation newsman travelling with President Ramaphosa to his visit in Zambia reported that his Zambian sources suggested that Biti had to be sent back in order for Zambia not worsen the already bad political situation post the harmonized elections and in particular the stand-off that followed the declaration of president Mnangagwa as winner of the presidential election.
As usual, Zambian authorities do not understand the applicable asylum laws. In basic international law, there is a distinction between immigration law and asylum law. The two are not the same and must not be confused for the other. In the Biti case, authorities invoked the immigration law yet Biti’s case did not fall under immigration law. Mr. Tendai Biti was seeking political asylum which is a human right. A human right stands on a higher pedestal than other standards. A human right is a binding obligation on the part of the state, the duty bearer. It cannot be defeated by an abuse or even if properly exercised, immigration power of a civil servant.
Unlike Zimbabwe, Zambia ratified the UN Convention against Torture on 7 October 1998. Article 3 of the Convention provides for the principle of non-refoulement according to which state parties or states like Zambia that ratify this treaty are forbidden from turning back any foreign national who crosses the border in search of asylum. General Comment Number 4 of 2017 which replaced General Comment Number 1 of the Committee against Torture has detailed the obligations of state parties not to refoul asylum seekers regardless.
The principle of non-refoulement is a cornerstone of public international human rights law. Non-refoulement is a binding obligation of states. Besides article 3 of the Convention against Torture, the same principle of enshrined in article 33 of the 1951 UN Convention on the Rights of Refugees.Both Zambia and Zimbabwe are party to the Refugee Convention. Most of the freedom fighters in the government of President Mnangagwa are beneficiaries of this principle.
Paragraph 2 of article 3 of the Convention against Torture provides that a state party shall not refoula person to a country whether it is feared she or he risks being tortured. In the current circumstances, and despite the toppling of founder president Robert Mugabe, Zimbabwe quite clearly fits the conditions described in paragraph 2 of a country which relishes the use of torture as state policy.
With this clear position of international law, why did President Edgar Lungu still deport Mr. TendaiBiti risking all the international condemnation which followed? Of course the first answer is simply because as indicated authorities don’t understand international law and its applicability on Zambia. Even with international law which Zambia has voluntarily acceded to like the two conventions above, it is typical to find so-called authorities still citing sovereignty not realizing that by signing the treaty, they have effectively signed it away.
But the main reason is political. Mr. Tendai Biti and other members of opposition in Zimbabwe had visited Hakainde Hichilema, Edgar Lungu’snemesis, in the wake of his imprisonment in 2017 on trumped up charges of treason later withdrawn in humiliation. Not only did Mr. Biti and his colleagues visit Mr. Hichilema to convalencence with him but Biti himself made statements bitterly criticizing Lungu’s decision to arrest Hichilema on trumped up charges but describing the Zambian legal system as dead as the Zimbabwean. Despite the expensive efforts to paint Edgar Lungu with the colour of a saint, in fact he is a vengeful man who believes in revenge. Mr. Tendai Biti is paying for being opposition member in his country and for exercising his fundamental right to freedom of expression on the Zambian soil.