Returning Abdul: An Analysis of Justice Mchenga’s Ruling in Simwaya v Attorney General (2013)
By E Munshya wa Munshya
On 12th December 2012 Zambia’s Home Affairs Minister issued a deportation order to one Abdul Simwaya. Referring to him as a “foreign national”, Hon. Edgar Lungu declared that Simwaya had become “a danger to national security”. Mr. Lungu further stated, “Government will not hesitate to deport foreigners that breach Zambian laws”. In a December 15 edition of the Zambia Daily Mail (a newspaper owned by the government), Lungu is further reported to have linked Simwaya to “terrorist activities in East Africa and sponsoring political parties in Zambia”.
There were some problems, however, with the assertions from Mr. Lungu. The man the honorable minister had claimed to deport was actually a naturalized citizen of Zambia having been granted citizenship by the Citizens Board of Zambia on 17th October 1986. Abdul Simwaya came to Zambia in 1966 at age 21. He has lived in Zambia since then. He married a Zambian woman and has several children and grandchildren.
After his deportation to Rwanda in December 2012, Simwaya retained lawyer Maureen Mwanawasa and commenced judicial review procedures. Judicial review is a process by which courts check the exercise of executive power. As a court process, it is concerned with the process rather than the merits of the decision taken by a government officer or body. As such, when Mrs. Mwanawasa took up this case – she argued that the Honorable Minister had disregarded the law in first, depriving Simwaya of his Zambian citizenship and secondly, in his subsequent deportation from Zambia. Judicial review can be sought on at least three grounds: illegality, procedural impropriety, and or irrationality/unreasonableness.
A decision of the executive could be illegal if an officer makes a decision outside his powers. For example, if a statute requires Hon Lungu to take electricity to Milenge but neglects to do so but uses the same law to instead electrify Ikeleng’i, this exercise of power would be illegal. Additionally, if a relevant statute empowers a Minister to do something but he does another, his decision could be illegal. When it comes to procedural impropriety, if a statute states the procedure that a government official is supposed to follow before making a decision, but such an officer ignores that procedure, the courts could invalidate that decision.
Irrationality comes in as a third limb to judicial review. Granted that the executive has satisfied both legal and procedural requirements a decision could still be found wanting if it is deemed to be unreasonable or irrational. The law imposes the duty to be reasonable upon all public officers in the exercise of their responsibility. Actually, in the case of the Kachingwe (MMD) v Registrar of Societies & Attorney General (2012), Madame Justice J. Kabuka found that while Mr. Andeleki’s decision to deregister the MMD had met both legal and procedural requirements, the decision was reversed due to irrationality and unreasonableness. As a rule, statute authority is not a license for senseless decision-making.
Simwaya’s advocates led by Mrs. Maureen Mwanawasa argued before Justice Chalwe Mchenga that Hon Lungu’s decision was both illegal and procedurally defective. In his ruling Justice Mchenga agreed. He provided several reasons for his decision. First, referring to Section 22 (3) (d) of the Citizenship Act, Justice Mchenga ruled that the said Act does empower the Citizenship Board to deprive a naturalized citizen of Zambian citizenship, if:
…the registration as a citizen was obtained by means of fraud, false representation, the concealment of any material fact or through some other corrupt practice;
The major problem discovered by Justice Mchenga, however, was that there was no record that the decision to revoke Simwaya’s citizenship was taken by the Citizenship Board. The Board never sat and as such the minister made the decision alone. This was therefore, illegal, to the extent that the relevant statute never empowered Lungu to act in the manner he did. Hon Lungu could not at law be the Citizenship Board. If an act of parliament categorically states who is to carry out a particular function, it would be illegal if someone who is not empowered to do so usurps that function. On this ground Hon Lungu lost.
The second reason is closely connected to the first. Before the Board makes the decision to deprive someone of citizenship – it is required to follow a clear procedure. The Board is supposed to write the person concerned. Within seven days, that individual could request for an inquiry into the matter.
If a person notified in pursuance of the provisions of sub-section (6) applies for an inquiry within such time and in such manner as may be prescribed, the Board shall refer the case for inquiry and report to a commissioner appointed by the Board for the purpose – S. 22 (7) of the Citizenship Act.
Again, Mr. Justice Mchenga found that Mr. Simwaya had responded within the stipulated time and requested for an inquiry to be conducted. However, Hon Edgar Lungu neglected this request. In disregard to Section 22 (7), Edgar Lungu decided to deport Simwaya instead. This was found to be unacceptable. Indeed, if a government official is exercising powers under a statute, he or she is bound to follow procedures delineated in that particular legislation. This applies to a government body such as the Citizenship Board as well. As such, Simwaya’s deportation was illegal to the extent that the Citizenship Board neglected to appoint a commissioner as requested by Simwaya.
It was for these reasons that Judge Mchenga ruled that Mr Lungu’s decision “in his capacity as Chairman of the Citizenship Board is null and void for want of authority.” Additionally, neither the Board nor Mr. Lungu had the authority to “revoke his citizenship because he had invoked his right to be subjected to an inquiry.” As such, Mr. Simwaya was “still a Zambian and the deportation order issued was unlawful.”
Since judicial review is concerned not with the merits of the decision but with the procedures only, there is nothing that stops the Michael Sata government from looking at this matter again. They could follow the correct procedure this time around and eventually deport Mr. Abdul Simwaya. Doing so however, might come with serious political risk.
A jurist once said “I don’t care what the law says until I know which judge is sitting to adjudicate.” This jurist might have been right. There are instances where the law is as good as the judge hearing it. Judges do affect the law and its interpretation. Therefore, it is quite significant that it was Justice Chalwe Mchenga who was called to adjudicate this matter of naturalized citizenship. Just from his middle name of Farai, it could be inferred that he has some Shona, consequently Zimbabwean heritage. Indeed in a nation like ours where some of our citizens are a collection of peoples with heritage from neighboring countries, a definition of who is Zambian and who is not cannot exclude people like Simwaya who have been domiciled in Zambia since 1966 in spite of their confusing origins. As least with a Zambian judge called Farai – the issue of delineating Zambian citizenship based on cultural heritage or tribe or origin might be getting irrelevant by the day.
Simwaya’s story cannot be very far removed from African realities. Lungu and the immigration department claimed that Simwaya had given material contradictory statements about where he was born. When applying for citizenship he stated that he was born in Bukavu in Congo DR, but when applying for an NRC and passport his birthplace was in Bugarama, Rwanda. But considering that Abdul left Congo DR in 1966 at 21 as a Rwandan refugee escaping into Zambia – this discrepancy is not unusual. In colonial Africa, when Abdul was born places of birth and indeed dates of birth became very complex to pinpoint. For example, the distance between Bukavu and Bugarama is only 37 kms, and would take 40 minutes to drive. To put it into the Zambian perspective – a person born in Milenge in 1940 could equally claim Mansa as home. Even if Milenge is considered separate from Mansa most Milengeans conceptually take Mansa as their town too. The distance between Milenge and Mansa Boma is about the same as the one between Bukavu and Bugarama. The issue of country is even more irrelevant. At the time Abdul was born – the idea that Rwanda was conceptually a separate country from Bukavu existed only in the annals of the colonizers and not among the local Tutsi or Hutus.
A 70-year old grandfather should not be deprived of Zambian citizenship simply because they misstated their place of birth. Indeed, had an inquiry been conducted about Abdul Simwaya it could have highlighted some of these discrepancies, difficulties and the implications they may have on many Zambians faced with similar issues. The questions about Abdul could be connected to the wider famous questions of a person like President Kenneth Kaunda. Where was Kaunda born? Was it at Chinsali or was it at his mother’s home village in Malawi. Or does it even matter what he stated about where he was born? What about Chiluba? Was he born in Kitwe, Musangu, or across the river?
The deportation of Simwaya, unfortunately, reflects the erosion of the rule of law in Zambia. Had it been an isolated incident, we could have given the Zambian state a benefit of doubt. But, regrettably, these deportations have happened too many times. At worst – Hon Edgar Lungu’s tenure at the Home office has been plagued by abuses of the rule of law and wanton legal recklessness. Clearly, as stated by Counsel Mwanawasa – Zambia has reached crossroads in terms of the rule of law. If indeed, Lungu cannot get it right on a simple matter such as citizenship, how could the Zambians be confident of this government?
After the hard work of Abdul’s counsel, Maureen Mwanawasa, we all should be happy that at last an injustice has been undone. And as ruled by a Zambian judge known as Farai, Abdul Simwaya will be returning to the sacred soil of our republic. Zambia is the only home he has known since landing on our shores in 1966, way before seventy-five percent of our population was even born.
(c) Elias Munshya, BA, LLB (Hons), MA, MDiv – 2013