Legal Resources Foundation v Zambia

Parties (including notable third parties)

Legal Resources Foundation; Dr Kenneith David Kaunda

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Summary of Facts

Zambia enacted amendments to provisions of its constitution under the Constitution of Zambia Amendment Act 1996.

The effect of the amendments included that candidates (including the first President, Dr Kenneth Kaunda) to the office of president were required to prove that both their parents were Zambian by birth or descent, and placed a limit of two five year terms on the presidency.

The central issue was whether the amendments contravened international human rights and violated the African Charter on Human and Peoples’ Rights, which Zambia acceded to on 9 July 1996.

The Complainant, Legal Resources Foundation, a Zambian-based NGO with Observer Status before the African Commission, took the case to the Supreme Court of Zambia (being the highest court of jurisdiction in the land). However, while the case was pending the amendments were adopted and enacted and the Complainant’s case was dismissed.

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Legal Arguments

Legal arguments by the Complainant

The Complainant organisation argued that the amendments deliberately violated and took away the accrued human rights of 35% of the population of Zambia, specifically disenfranchisement from standing as candidates in future elections.

In particular, the Complainant argued that the new Article 34 and Article 35 of the amended Constitution violated the following Articles of the African Charter:

• Article 2 (prohibiting discrimination);
• Article 3 (equality for all individuals);
• Article 13 (the right of every citizen to participate freely in the government of his or her country); and
• Article 19 (equality of all peoples, irrespective of their place of origin).

This was because the amendments required persons proposing their candidacy for president to prove that both of their parents were Zambian. The Complainant argued this was discriminatory on the basis of birth, social origin and other status under Article 2 of the African Charter in respect of the right to participate in government guaranteed by Article 13.

The Complainant also submitted it was a violation of the equality of all peoples regardless of their place of origin assured by Article 19.

The Complainant contended this was discriminatory on the basis of birth and social origin and undermined citizens’ rights to freely participate in government, including the right of the first President, Dr Kenneth Kaunda.

Legal arguments by the State Party

The Government argued that, pursuant to a poll conducted, it was the desire of the Zambian people to save and preserve the office of president for Zambians with traceable descent.

The Government further argued that there was no contravention of Article 2 or Article 13 of the Charter and that the limitations were reasonable and within the law.

In response to the position put forward by the Complainant in relation to Article 19, the Government noted that the Charter relates to the principle of “self-determination” by the mention of the term “peoples” and that the peoples of Zambia were equal. It was argued that the alleged discrimination under Articles 34 and 35 was not unlawful and reflect the popular desire of the majority of the Zambian people.

Outcome

The Commission considered the rules as potentially depriving the country of potential resources and leadership and also considered, from an individual point of view, being able to vote but not to stand for office.

The Commission also considered that there were a number of Zambian citizens whose parents were not born in the Republic of Zambia.  This was because before the breakup of the Central African Federation, free movement existed between Malawi, Zambia and Zimbabwe.

Zambian citizenship was granted to all residents at the time of independence, but this meant that the following generation would not have parents who were born in Zambia (even though they may have citizenship).

The Commission considered that this limitation was arbitrary and its retrospective application was not justified.

The free choice of representatives was also considered to be violated by the restrictions and the statement ‘in accordance with law’ within Article 13 is to permit the regulation of how that right is exercised not the removal of the right. While acknowledging that limitations on rights may be lawful, the Commission held that any limitation must not be used to subvert rights already guaranteed.

In relation to Article 19 of the African Charter, the Commission found that the argument that there was a violation was mistaken in that ‘peoples’ is not relevant unless there is a particular identified group with common ancestry and heritage.

The Commission concluded that the amendments to the Constitution violated articles 2, 3(1) and 13 of the African Charter.

The Commission further reasoned that member states have a duty to give effect to the rights guaranteed under the African Charter in national law (para 62).

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	The Constitution (Amendment) Act 1996	Article 34 Article 35
Regional	African Charter on Human and Peoples’ Rights	Article 1 Article 2 Article 3 Article 13 Article 19 Article 45 Article 60 Article 61
Domestic	Constitution of Zambia	Article 11 Article 23(1) Article 23(5) Article 34 Article 35 Article 79 Part III
International	Vienna Convention of the Law of Treaties	Article 27

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

M Cherif Bassiouni, ‘The Protection of Human Rights in the Administration of Criminal Justice in Islamic (Sharīʿa) Law’ (1982) 3(1) Saint Louis University Public Law Review 33.

• This article examines the right to nationality within the context of collective peoples' rights in Africa, emphasising the need to address statelessness through a communitarian approach. It references the case to illustrate how the legal status and identity of individuals are intertwined with the rights of the group to which they belong. The case is used as an example of how African human rights jurisprudence can advocate for the collective right to nationality, reinforcing the argument for a broader understanding of nationality that encompasses both individual and group rights.

Makau Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’ (1998) 20(1) Virginia Journal of International Law 42.

• The author examines the African human rights system, focusing on the challenges faced by minorities in Africa and the protections available under the African Charter on Human and Peoples' Rights. It discusses the case, highlighting how the African Commission addressed issues of discrimination based on national origin, and underscoring the need for greater recognition of minority rights within the framework of the Charter.

Martin Scheinin, ‘Justiciability and Human Rights Courts’ (2017) 7(1) Human Rights and International Legal Discourse 1.

• This article assesses the achievements and challenges of the Commission in protecting human rights in Africa from 1987 to 2018. It discusses the case to highlight how the Commission affirmed that international treaties impose obligations on states.

Francis Ssekandi, ‘Reflections on the African Court on Human and Peoples’ Rights’ (2004) 4(1) African Human Rights Law Journal 151.

• The article reflects on the establishment and functioning of the African Court on Human and Peoples' Rights, addressing challenges in ratification and the court's relationship with the African Commission. It discusses the case to illustrate how the Commission emphasized that international treaties impose obligations on states, even if those treaties are not part of domestic law.

Manisuli Ssenyonjo, ‘Responding to Human Rights Violations in Africa: Assessing the Role of the African Commission and Court on Human and Peoples’ Rights (ACHPR and ACtHPR)’ (2019) International Human Rights Law Review

• This article explores the complexities and contradictions of citizenship laws in postcolonial African states, particularly focusing on Kenya's shift to a jus sanguinis system that emphasizes descent over birthplace, which leads to exclusionary practices and ongoing debates about national belonging. It discusses the case to exemplify the tensions surrounding citizenship and the moral questions of legitimacy and belonging that arise from such legal frameworks.