´Abusing Citizenship in Zambia—Again´, Sebastian Kohn

Abusing Citizenship in Zambia—Again

October 17, 2011 | by , Open Society Institute

Over the last couple of decades, in many places around the world, the manipulation of citizenship laws for political purposes has been a popular way of excluding opponents and silencing critics. Even though international law provides strong protections against arbitrary deprivation of nationality, many governments have resorted to the practice, sometimes with disastrous consequences.

Governments in countries like Tanzania, Botswana and Swaziland have on various occasions deprived political opponents and high profile media figures of nationality in attempts to get rid of their critical voices. And in Ivory Coast, the annulment of incumbent president Alassane Outtara’s nationality certificate in 1999 contributed to years of civil war.

Last week the AFP reported that Robert Chiseke from the Movement for Multiparty Democracy (MMD), the main Zambian opposition party, has been arrested for allegedly “faking his nationality.”

A spokesperson for the immigration authorities, Kennedy Simmenda, said "Where we suspect there is something illegal we are obliged to arrest and that is within our mandate. It is not witch-hunting as some people may think."

Unfortunately, witch-hunting is exactly what it looks like to an outsider, especially in a country which has a history of politicians abusing citizenship for political purposes. The MMD itself has been responsible for political manipulation of citizenship in the past. In 1996 they adopted a new constitution which required that both parents of any presidential candidate be Zambian by birth. This was an obvious move to disqualify former president Kenneth Kaunda from running in the 1996 elections (Kaunda’s citizenship was later on reviewed by the courts, but finally confirmed in 1999).

While Kaunda was the most high-profile case, two years prior—in 1994—the MMD was also responsible for abusing citizenship laws to deport two members of the opposition United National Independence Party (UNIP). William Steven Banda and John Lyson Chinula were deported to Malawi on the basis that they were not citizens and “likely to be a danger to peace and good order in Zambia.” The case was brought to the African Commission on Human and People’s Rights (ACHPR) which decided that the deportations had in fact been politically driven and that the lack of due process in both cases was a violation of the African Charter on Human and People’s Rights. Despite the ruling, William Banda was not allowed to return to Zambia until after the 2002 elections, and John Chinula died in exile in Malawi.

In August of this year, there was yet another row, this time involving former president Rupiah Banda of the MMD. The opposition Patriotic Front (PF) brought a case to court arguing that Rupiah Banda’s father was born in Malawi and that as a result he was ineligible to stand in the 2011 elections—the case is quite similar to the Kauda case. In fact, even the MMD president who took office after Kaunda—Frederik Chiluba—experienced the opposition brining a citizenship claim of this kind to court against him, ironically using the same arguments he had used himself against Kaunda, namely that his parents were born outside Zambia.

Of course, the current PF government denies that the move against Chiseke is yet another political spectacle following the elections of last month where the PF party won. But let’s consider the principles at play.

Under international law, states determine who their nationals are. However, they can only play around with the rules “in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality” (Convention on Certain Questions relating to the Conflict of Nationality Laws, 1930, article 1). This means that denial or deprivation of nationality are subject to certain restrictions—due process is certainly one of them, as Zambia learned.

In all these cases, with the possible exception of Chiseke, there was clear evidence that Zambia had previously considered these people as nationals. In Kaunda’s case he had been president of Zambia—the first president in fact, between 1964 and 1991—a clear indication that he was a citizen. In the case of William Banda, he fought the deportation arguing that he had had a Zambian national ID card and passport for many years. And in the recent case of Chiseke, he was elected as a member of parliament in 2011 but his nationality was only questioned after the first day of parliamentary proceedings. Chiseke, too, holds/held a national ID card. In those cases that resulted in stripping of nationality—Kaunda (albeit only briefly in 1999), William Banda and John Chinula, maybe Chiseke—the action was clearly illegal. Not only was there no due process, but discrimination on the basis of political opinion is prohibited under human rights law. And where deprivation of nationality results in statelessness it is per definition arbitrary.

Chiseke allegedly obtained his Zambian ID fraudulently, and lied during his registration as a contestant in the September elections. Whether or not there is any truth to these claims (in which case he was never Zambian to begin with), Zambian practice in this area has been so problematic in the past that any allegations of this kind against political opponents need to be taken with a large pinch of salt. The jury is still out on Chiseke, but unfortunately I wonder if a Zambian jury is able to make a fair decision in a case like this.