Chitengi v Attorney General (SCZ Appeal 41 of 1995) [1997] ZMSC 51 (7 February 1997)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 41/1995 HOLDEN AT LUSAKA ' ■ ■ II ■ a • I* I ■■ ■ ■ ■ ■ (Civil Jurisdiction) B E I W E E N; CHARLES MUKINKILA CHITENOI Appellant and THE ATTORNEY-GENERAL Respondent Coram: Bweupe D. C. J., Cnaila and Chirwa JJs on 25th May, 1996 and 7th February, 1997. For the Appellant : Mr. C. K. Banda of Chifumu Banda and Associates For the Respondent: Mr. D. K. Kasote, Assistant Senior State Advocate JUDGMENT Chi rwa J. S. delivered the judgment of the Court. This is an appeal by the appellant against the judgment of the High Court that ruled that the appellant was not a Zambian and therefore could be deported by the Minister of Home Affairs under Section 26(2) of the Immigration and Deportation Act, Cap. 122. The history of the matter is that on 2nd day of March, 1990 the appellant was apprehended by tne Chief Immigration Officer from Inter-Continental hotel and detained at Lusaka Central Prison. On 17th March, 1990 he was served with a deportation order signed by the Minister of Home Affairs on 16th Maren, 1990 pursuant to Section 26(2) of the Immigration and Deportation Act, Cap. 122 and taken to Kasumbalesa border post for his deportation to Zaire. The Zairean authorities refused to accept tne appellant, alleging that he was not a Zairean and ne was re-detained. 2/ . . . \ \ Following thia, he obtained leave to iw»u,s a writ of harbcas corpus* At too hearing of the urit there was both affidavit eriden^w and viva voce evidence by the appellant and State witnoavci. Iha avxdonca of tna appellant wzs to the affect that ne was born at KallMi vill®i;ef Kipuohi, Zaire of Zaubian parents* Ha went to uahool there* and upon thv demlaa of both parents, th® first was bin ftobher when ha waa vary youn^t and hia father last tn 196?) ho wan oolleoted by hia uncle Bernard Muklnkila who was hl* vitneaa at ths. hearing of the writ of habeas oorpua Hie father’s nene wee Patrick MuuLnkHa Kachoba froa Kasampa and his mothsr as Harriet (Selenga fro* Chibole. Ort arrival in Zambia ba started worKirn; for <2?Ui»». in/'.aun of cat mines. In 1934 he was detained at uu^aKa'A Central Frisson for 1^ days but no reasons u®re ijivon, hut they qu^atloned him about where he can* from* Ha also told the cuurt that whilst In Zambia he had been working for State Houa^ xi an agent traainji smugglers art* ille,$3t. miners and for thin. n and his frinde were given 3KW oip» and houses-. H« said if they doubted his origins they could not have employee1 hi® in ruth sensitive J&ba, On the Natlon»l Xagistration Card whl,?b obtained in Kites in 1968 bearing the particulars that he aa? born at Xamwala village Chief Kal,Hale in 3olwe«i $1 suri rt, the appellant oatd that it was not him who gave the particulars but his aunt, the wife of his witness but she bed since died. Ao far as ho is oonoernod, he was born in Zaire of Zambian parents. The appellant's wlinass was flamed Muk:(nkils who claimed that the appellant was his "son* and im was the son of hio elder brother who died in Zaire and that he left for Zaire in 1934. Sie come to know tbs appellant in 194t in Zaire where no was born. He further told the court that hie aether w«n Mangi and that Habinenu wac the eltler aiat^r to His (PHS) mother. He said that If Sebmehu says twat *he only had baby girls, she would bo telling lies a« aha was chu tsothai’ of uhaaph Chitengl and was born at Hundaki village, Chief Kaseape, Kaseapa district. - 43 - For th* respondent, 8 wltnessae gave evldene*. The first 4 are relatives of FW2, Barnard Muklnklla. PHI wa* one of the five daughters of Babinonu and that the father was Hgangula and that they had no boy In their family, and that there wan no Joseph Chit anal. Sho oonfiraed that PW2 was a aon of young sister of her nother and oho never know th* appellant. DM2 confirmed the evidence of DW1 in respect of the number and sea of the obildren of Babinenid that they wore only five Kiris. He also know the fatally of PW2 that there wore T children, 5 girl* and 2 boys and of th* 2 boys only PW2 is alive, the other one toram died at DW2’s village and that ha never went to Zaire. He doos not know th* appellant* DM3 is another relative of PW2, she too doe* not know the appellant. PW4 was Chief Kalileia who denied having a village called Kamwaia In hi* area. 0M5 wee registration officer who issued the appellant with the National Seglstration Card. He gave the procedure required In giving MHC and in thia case th* appellant produced a school certificate and he endorsed at th* back of the certificate. Ths appellant gave the particulars himself as having been born on 2nd April, 1943 at House Mo. 6028 Chiaweewe, Xltwe. He issued the BBC on 18 th January, 1968 and that there was ne nesd for the appellant to be aooompanied by any guardian or parent ae ne was 25 years old and after the information he supplied was written, he was invited to go through It and he signed. DM6 was an Assistant Chief Immigration officer who gave evidence that according tc their record*, the appellant was born at Kalindl in Zaire where ho did hla schooling and thereafter did a mochanlas course in Zaire and came to Zambia in 1966. 4 / .. « * J A - They had further infornution that he oonea free Kampala village in Solwrsai and as thia information mould not be oonfirasd they concluded that ha was a Zairean and wad® arrangeaenta to deport him. DWT was Senior Suporintondent in lenbia Polina Porta who testified that in 1988 he opened a doolcet on the appellant pertaining to hi# obtaining a WHC on 18th January, 1988 at Kitwa. The offence ha w«s investigating was giving falsa Information to the Registrar, WSC office where he stated that ho ease fron Manuals village. Chief Kalilala, in Holweai. He recorded a warn and caution etatoaont from his wnion he produced in the court below* Later on 1st March, 1989 the Director of Public Prosecutions issued instructions for the investigations to close as witnesses gave oenfllotlng evidence/ stateaenta. DWfl was Senior Superintendent In tawbesi Folios Force who investigated the aspect of appellant’s olaim that ha cane from gnawsla village, Chief K&ltlda, dolwesi. Ho visited the chief who denied having any village by such a nene. The chief’s headmen also denied there been any such village. In considering this evidence the learned trial Judge looked at th® particulars as given on the national registration card which indiaatad that the appellant was born in Mltwe and ho bailed from Kanwala village, Chief KalileU, in dolwesl district. Tat His evldsnoe in court was that he was born in lairs. As to why the Information on the card is different, ths appellant stated that the particulars war® given by the now deceased aunt who wss the wife of FWT. After looking ®t the evidence of PW2 the learned trial judge found that this witness was untruthful and rejected his evidence in view of the evidence of DVs 1*8. 5/... - J5 - Tha learned trial Judge then concluded that the appellant waa net a Zambian and therefore aoenabla to Section 26(2) of the laalgratlon and Deportation Act and In essence dianissed the application for habeas corpus and It la this finding, as we earlier said, that the appellant la appealing against. In arguing thia appeal. Hr* Banda advanced one ground of appeal and that was that the appellant waa wrongly deported under Seation 26(2) of the Xnwlgratlon and Deportation Act by the Minister in that that Seation does not apply to Xamblans* A Zaubian eannot ba deported fron hie country. As the appellant alleged that he.waa a Zscbian, there should be proof that he was not but beoaua* there was no such proof the State attempted to prosecute hia far giving false Information to the Registrar which also foiled as there was not sufficient evidence. further Mr. Banda submitted that Section 13(1) of the Citlsenshlp of Zambia Ast, Cap* 121 spoiled* Xn reply on behalf of the State, Hr. Kasoto submitted that the Issue waa whether the appellant was a Zarabian or not and if he woe not then the Minister could deport bin and have him detained pending deportation. He submitted that the evidence of the appellant and hie witness was not reliable. Xn Court the appellant stated that he wav born In Zaire and yet the particulars to the Registrar were that he was born in Cbiwweawo Kltwe but that he oones free Kaawala village. Chief Kaiilela, Bolwesi* Further the particulars of his parents are not elear and those were disputed by the respondent’s witnesses. From the avldonos, it was submitted that the appellant waa not a Zambian, the fact that investigations on his obtaining the national registration card were discontinued on instructions froa the Director of Public Prosecutions does not sake him a Zambian. We have considered the evidence and Judgment on record and the aubsiasione by counsel before us. 6/.*. - J6 - Ths evidencs adduced by the appellant and on hie behalf has to be compared with that adduced by the faepondentt With regard® to evidence in court a* to where he was born and that given to the registration officer, it la dlffloult to accept the differanees. When the appellant was obtaining the card In 1968 he was 25 years old* he did not need to have any guardian to aoconpany bin to obtain a sard* The evidence of DW5 was very straight forward and It Makos sense. The appellant is alleged to fora a before have been given an opportunity to read through he signed and if hie alleged aunt gave wrong inforoatlon as to where he was born, ha should have aadc the oorreotiona wonders why Further one before he was issued with the card. ha had to get his aunt to go with him to obtain a card when he inforwatlon and the evidence of there la ne village Kanwals in Chief Kalllela'a areas. says that it was PW2 who collected this aia- the shlsf it is olasr that On the evidence of the appailanto father and aether, it cans out very clear that PW2 wee less honest and therefore untruthful, Wo reason io apparent on record why PWl-4 should tell lies about their faallie*. DW1 - 3 do not dispute that they are related to PW2 and wo do not wee that these three witnesses could hevc conspired against the appellant so as te deny him in court as their relative, These witnesses clearly explained their connections and they denied there ever boon aoueone called Joseph Chltsngl or Joseph Muaangu Mukinklla. Xt is also of sone Interest ths naaes that the appellant gave in his warn and caution statenaatj the respondent's witnesses novar knew then. It is necessary to lock at thia evidence* firstly taking the appellant's evidence that he was born in Zaire of Zaablan parents because if it can be shown that his parents ware tanbiana and would have bean Zanbien® in 1964 but for their death, ths appellant would be a lacblan by descent and therefore cannot ba deported* 7 /... • J? - The Chief gave evidence that there was no Kauwala village in nia are** Sven village headaen Mandakl gave vary good lineage evidence which clearly above that the only brother of PV2 waa Toran who died In the village and not in Saira. Proa all thia evidence, It la clear that the appellant had not ahown that hlo parents were Zambians, therefore although no waa bora in Zaire, by virtue Seat-ion 5(2) of the Constitution of Zambia (Schedule 2 to the Zambia Independence Order, 196*) he la a Zambian by descent. The only evidence that waa acceptable and given by the appellant and hie vitneoa is that the appellant was born la Zaire. In the face of thia over* whelming evidence adduced by the respondent, we cannot fault the finding of the learned trial Judge that the appellant was not a Zambian but a Zairean, therefore the Minister oould properly deport him under deotlon 26(2) of the lanlgratlon and Deportation lot and the appellant can bo properly detained pending his deportation. On this basin wo would disales thia appeal. Thera waa one other aapoot alluded to by Mr. Banda and that la that Section 13(1) of the Cltlaonshlp of Zambia Act, Cap* 121 applies to the appellant. Ke saw no evldenoe on record that citlaenahlp was given to the appellant by the President as a token of honour* Thio appeal is therefore dismissed with coats to be agreed in default to bo taxed* »•*••******•*••«•.«**•••• *««.**•..••***•*•..••»**. O. K. Bweupe DEPUTY CHIEf JU3TICg M. S. Chaila SUPaeMg COURT JUpQg D. K. Chirva SUPREME COURT JUDQZ