It is common knowledge that the Zambian prisons are packed with people whose stay in Zambia has been questioned. Some of them have been declared prohibited immigrants and others are suspected prohibited immigrants. The other group of people in prisons is that of criminal remandees, whose cases have taken long to be heard in the various courts.

This brings to the fore the subject of liberty of Zambians and non-Zambians. Non Zambians are in two categories namely refugees and other foreigners not in the group of refugees. Zambians are equally in two categories, those who have committed crimes and those whose citizenship is being questioned. This is so because as a matter of fact they have dual citizenship.

Domestic Law

Articles 11 and 13 of the Zambian Constitution deal with the right to liberty. This is a constitutionally guaranteed right which is available to all persons in Zambia, be they Zambians or not. No person can be deprived of his liberty without lawful authority or justification.

Article 11 provides that every person in Zambia is entitled to the fundamental rights and freedoms of the individual irrespective of his race, place of origin, political opinion, colour, sex, creed or marital status. Among the rights and freedoms covered in this article is the right to life, liberty, security of the person and protection of the law.

Article 13 provides for the protection of a person’s liberty. It states that no person will be deprived of his personal liberty except as the law may authorise. Instances where the law authorises deprivation of personal liberty are: when a person has been convicted of a criminal offence; when a person is suspected to have committed or is about to commit a crime; and for the purpose of preventing unlawful entry into Zambia, or effecting the expulsion or lawful removal of the person in question. This article requires the person who arrests or detains another to inform him about the reasons of his arrest or detention in a language that he understands.

It also provides for compensation to a person who is unlawfully detained.

International Law

Universal Declaration of Human Rights (1948)

The preamble states in part that "the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world". The Charter reaffirmed the faith in fundamental human rights.

Article 1 states: "All human beings are born free and equal in dignity and rights".

Article 3 states: "Everyone has the right to life, liberty, and security of person"

Article 9 states: "No one shall be subjected to arbitrary arrest, detention, or exile".

International Covenant on Civil and Political Rights (1966)

Article 9 states: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charge against him.

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Anyone who has been victim of unlawful arrest or detention shall have an enforceable right to compensation".

Article 13 states: "An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designed by the competent authority".

Article 14 provides in part that in the determination of a criminal charge against him, everyone is entitled to be tried without delay.

Criminal remandees

A criminal remandee is a person who has been remanded in prison by a court awaiting trail. Zambians and non-Zambians who are charged with criminal offences if remanded fall in this group.

Article 13 states that when a person is arrested or detained on suspicion of having committed a crime and he is not released he must without undue delay be taken to court. If he is not tried within a reasonable time he must be released unconditionally or upon reasonable conditions to ensure that he appears at a later time for trial.

Article 18 sets out provisions to secure the protection of the law for people who are charged with criminal offences. When a person is charged with a crime, unless the charge is withdrawn the case is to be afforded a fair hearing within a reasonable time by an independent and impartial court.

What we have in reality is a situation where people after being remanded, are left unattended to in prisons. They have no idea when next they go to court. The law in terms of Order 54 of the Rules of the Supreme Court provides for Habeas Corpus applications to challenge the continued detention of such people. Article 13 of the constitution also provides for what is popularly known as "constitutional bail", which is available when a person has been charged with a non bailable offence and the case has not been heard due to no fault of the accused person. When an accused person applies for Habeas Corpus an order for his release may be made. However, if it appears to the court that because of the application the accused person will be tried then an order for his release will not be made but he may instead be granted bail. The detention of an accused person in remand prison is initially lawful but becomes unlawful after the expiry of a remand warrant. Even when it is apparent that the continued detention is unlawful, the prison authorities will not release such a person without a lawful order which may be in the form of an order for the release of the accused person under the hand of the judge.

Refugees

Refugees are people who have left their countries for various reasons such as war, political persecution and so on. All people fleeing their countries of origin must ensure that their stay in Zambia is legal. This is done by reporting to a refugee officer within a period of seven days after entering a country.

According to the Refugee (Control) Act, the Minister of Home Affairs may declare by statutory order that any class of persons who are in Zambia or before they come in to Zambia to be refugees. This declaration does not apply to citizens of Zambia, any person entitled in Zambia to diplomatic immunity, any person in the employment of any state, government or local authority outside Zambia and any person entering Zambia in the course of his duties.

There are specified routes for entry and departure for refugees to use.

At the moment Zambia is hosting more than 230,000 refugees with the majority originating from Angola and others are from Democratic Republic of Congo (DRC), Rwanda, Burundi, and Somalia.

Prohibited immigrants

Foreigners other than refugees must enter the country after complying with the provisions of the Immigration and Deportation Act. This Act makes provision for five permits under which foreigners can legally enter the country and continue staying in the country.

These are entry, visiting, study, temporary and employment permits.

(i) An Entry permit is issued by the Chief Immigration Officer (CIO) to a person who wishes to enter the country and stay for a period in excess of three months. This permit allows the holder to enter, re-enter, and remain in the country until he becomes an established resident.

(ii) A Visiting permit is issued to a person visiting the country and this permit authorises the holder to enter and re-enter into and remain within Zambia until it expires. The period for a visiting permit is three months but it may be extended.

(iii) A Study permit is issued to a person who has been accepted for instruction by an educational institution in Zambia. That person will be allowed to be in the country until when the completion of his course.

(iv) An immigration officer may issue a temporary permit to a prohibited immigrant to stay in Zambia for a period of thirty days. The temporary permit may be for a period of two years.

(v) The CIO issues an employment permit to a person outside Zambia who wishes to work in Zambia. It specifies the area and nature of employment, in which he may engage and may cover a maximum period of five years.

A person who enters the country without any one of the above permits enters and remains in the country illegally. Such a person is without doubt a prohibited immigrant. A person who stays beyond the validity period of the permit he holds becomes a prohibited immigrant after the expiry of the permit that he holds.

People who hold dual citizenship

A person holds dual citizenship when one of his parents is not Zambian. A person born in Zambia of a Zambian parent and non Zambian parent is a Zambian by birth and Zambian by descent in the sense that one of the parents is Zambian and a foreigner by descent because the other parent is a foreigner.

The Citizenship Act requires such people to renounce one of the two nationalities that he possesses upon attaining the age of twenty-one years. Today we have people who are in prison because of having dual citizenship.

The immigration officials have suspected them of being prohibited immigrants. Attempts to deport such people have failed as the receiving countries have rejected them as not being their nationals.

As noted above, zambia is a signatory to the Refugee convention of 1951 as were as to other international instruments that seek to safeguard the the rights of persons to fair procedures in the determiation of their residence status.

The practise however suggests that matters of insufficient financial resources are permited to impede the full protection of these rights, as prohibited immigrants are left to languish for ages in prisons.

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