Refugees Caught in Legal Crossfire

By Isaac Mwanza

ON November 15, 2023, a coalition of 10 civil society organizations, led by the Zambian
Civil Liberties Union (ZCLU), appeared before a parliamentary committee on legal affairs,
governance, and human rights to express their support for the Citizenship of Zambia
(Amendment) Bill No. 23 of 2023.

It is crucial to note that the enactment of this bill will consequentially and significantly
impact the implementation of the Refugees Act No. 1 of 2017.

In Zambia, both the Constitution and the Refugees Act opened new doors for refugees to
obtain Zambian citizenship. However, this opportunity was unintentionally restricted by the
Citizenship of Zambia Act No. 33 of 2016, which inadvertently made the door to appear
closed.

During the tenure of the previous administration under Dr. Edgar Lungu, the law was made
to provide for refugees to lose the refugee status upon acquiring Zambian citizenship.
Section 20(1)(c) of the Refugees Act provides as follows:

“20. (1) (c) A person shall cease to be a recognised refugee for purposes of
this Act if that person becomes a citizen of Zambia…and enjoys the protection
of the country of that person’s new nationality.”

For refugees, the route to Zambian citizenship is exclusively through registration under
Article 37 of the Constitution and Section 17 of the Citizenship of Zambia Act. This process
is contingent upon the refugee applicant meeting the specified standards outlined in Article
37 of the Constitution and Sections 17, 18, and 19 of the Citizenship of Zambia Act.

Additionally, Section 49 of the Refugees Act empowers the Minister of Home Affairs and
Internal Security to naturalize refugees, thereby conferring upon them Zambian citizenship. It
is worth noting that Section 49(2) directs the Commissioner for Refugees in the following
instructive manner:

“49. (2) The Commissioner shall assist a person who has ceased to be
recognised refugee who has met the conditions for the acquisition of Zambian
citizenship to acquire citizenship.”

However, as stated above, this constitutional door for refugees to acquire the citizenship
appear to have been closed by the Citizenship of Zambia Act when it introduced limitation
which were not envisaged or required by the Constitution.

Foreign nationals who hold resident permits, excluding refugees, are the only ones
categorized as eligible to apply for Zambian citizenship.

As the reader may now, Refugees in Zambia are not provided with resident permits but
refugee permits which lawfully makes them to ordinarily reside in Zambia.

Residence permits are issued to economic migrants such as investors or those coming to
work in gainful employment and are holders of employment permits.

The determination of citizenship application eligibility in Zambia currently hinges on the
possession of a residence permit, as stipulated by the definition of “ordinarily residence” in
the Citizenship of Zambia Act.

This particular provision overlooks a crucial aspect: the 2017 Refugees law, which rightfully
recognizes refugees as ordinarily residing in Zambia, even in the absence of residence
permits.

The above oversight creates a disparity that impacts refugees, who, despite being
recognized as ordinarily resident, are excluded due to the specific requirements of the
Citizenship Act.

It is crucial to reiterate that the exclusive avenue for refugees to acquire Zambian
citizenship, as outlined in Section 20(1)(c) of the Act, is through the application process for
citizenship by registration.
Given that refugees who possess refugee permits and fulfill the criteria specified in Article
37 do not hold residence permits, the hope for rectifying this situation lies in the potential
enactment of the Citizenship of Zambia (Amendment) Bill into law.

This bill, if passed, promises to synchronize the definitional aspects of the Citizenship of
Zambia Act No. 33 of 2016 with those of the Constitution of Zambia.

Such alignment could pave the way for a more inclusive and equitable process,
acknowledging the unique circumstances of refugees and facilitating their path to Zambian
citizenship.

Notably, when the Citizenship of Zambia Act was formulated in 2016 incorporated a
specific definition of the term “ordinarily resident,” which is different from the definition
provided in the Constitution.

In defining the words “ordinarily resident,” the Act enacted that a person should have been
“a resident in Zambia and is a holder of a residence permit issued under the Immigration and
Deportation Act, 2010.”

This definition in the Act amended the definition of ordinarily resident as contained in the
Constitution itself. In defining the words, ordinarily resident, Article 266 of the Constitution
expressly states:

“266. In this Constitution, unless the context otherwise requires—
‘Ordinarily resident’ means residing in a place for a prescribed period of
time.”

In this definition, the determination of whether an individual has ordinarily been a resident
in Zambia is based on the period during which the person has been residing in a place,
rather than on whether the person holds a residence permit.

When using the term “prescribed,” this definition would typically imply that the timeframe
within which a person must have been living in Zambia should be specified by an Act of
Parliament.

However, it is essential to clarify that prescribing the period of time for which one has been
residing in Zambia does not extend to amending the definition in the Constitution itself, which
includes the requirement of holding a residence permit.

Given that an individual must reside in a place for “a prescribed period of time,” the
question arises: where should the period within which a person would be entitled to apply for
registration as a citizen be specified?

The term “prescribe” is defined by Article 266 of the Constitution, indicating that, unless the
context requires otherwise, “prescribed” means provided for in an Act of Parliament.

An examination of Sections 17 to 19 of the Citizenship of Zambia Act reveals no explicit
prescription of the period. Notably, Section 17 of the Act refers back to the Constitution,
stating that a person qualifying for registration as a citizen under Article 37 of the
Constitution may apply to the Board under this Part. Section 17 reads:

“17. A person who qualifies to be registered as a citizen by registration in
accordance with Article 37 of the Constitution may apply to the Board under this
Part.”

Article 37 of the Constitution autonomously establishes the duration for which an individual
must reside in a place to qualify for citizenship registration. The constitutional provision
imposes a mandatory age requirement, stipulating that the applicant must have attained the
age of 18.

Upon meeting the age prerequisite, Article 37 further delineates the specific periods of
residence required for different scenarios outlined in clauses (a) to (c).

For instance, an 18-year-old born in Zambia only needs to have resided in the country for a
minimum of five years to qualify, without the necessity of holding a residence permit, as
suggested by the Citizenship of Zambia Act’s definition of “ordinarily resident.”

In another scenario, an 18-year-old born outside Zambia but with an ancestor who is or
was a citizen is also required to have resided in Zambia for at least five years.

The Constitution itself prescribes the timeframe in the third instance, where a person
attains the age of eighteen and has been continuously residing in Zambia for at least ten
years, making them eligible to apply for citizenship.

Despite the use of the term “prescribed” in the definition of “ordinarily resident” in Article
266, the Constitution independently prescribes timeframes on multiple occasions. For

example, Article 66(6) specifies that if the President does not assent to a Bill within the
periods “prescribed in clauses (1) and (4),” the Bill is considered assented to upon the expiry
of those periods.

It is important to note that, in certain instances, the term “prescribed” in the Constitution
implies the act of prescription by the Constitution itself, unless a constitutional article
explicitly states “as prescribed” in which case reference must be made to an Act of
Parliament.

Before we leave this topic, Article 37 introduces an additional nuance, stating that a person
meeting the qualifications in Article 37(a)(b)(c) is entitled to apply to be registered as a
citizen “immediately preceding that person’s application for registration, as prescribed.”

In this context, the term “as prescribed” pertains to the application for registration. The
process and requirements for submitting an application for registration are mandated to be
specified by an Act of Parliament.

This emphasizes that the legislative framework, rather than the conditions of ordinary
residence or length of stay, must govern the application process.

As a result of legislative changes between 2016 to 2017, there exists a category of foreign
nationals in Zambia who are now eligible to apply for citizenship, even if they do not possess
resident permits such as refugees who are ordinarily resident but are holders of refugee
permits.

It is evident at this point that the definition of “ordinarily residence” in the Constitution was
carefully crafted to accommodate various categories of individuals, including refugees, who
may apply for citizenship through registration.

The Refugees Act explicitly acknowledged this new opportunity for refugees to acquire
Zambian citizenship. However, the realization of this provision has been hindered by the
conflicting definition of “ordinarily residence” in the Act, which contradicts the constitutional
definition.
The previous Patriotic Front (PF) administration, despite enacting these provisions in the
Refugees Act, appeared hesitant to implement the changes they had introduced.

Between 2017 and the PF exit from power in 2021, no refugees were naturalized, and
none were assisted in acquiring Zambian citizenship by the former President and his team,
consisting of the Ministers of Home Affairs, Justice, and the Commissioner for Refugees.

The upcoming consideration of the Citizenship of Zambia (Amendment) Bill No. 23 in
Parliament on November 29, 2023, along with the Committee’s Report, will be a crucial
moment.

It will be interesting to observe the level of debate and whether the new administration,
under the leadership of Republican President Hakainde Hichilema, will demonstrate the
courage that was seemingly lacking in the previous regime to swiftly implement changes and
uphold the spirit of the law.

The parliamentary proceedings will also shed light on whether the Members of Parliament
are well-informed about the legal requirements placed on the government, particularly the
Minister of Home Affairs and the Commissioner, to facilitate refugees in acquiring Zambian
citizenship.

This legislative development will play a key role in determining the practical implications
and enforcement of the law in this regard.

It is essential for our parliamentarians to recognize that refugees should not be treated as
fugitives. Neither are they investors or economic migrants. Refugees should not be subject
to the requirement of possessing resident permits as defined in our Immigration law.

Refugees, who have established ordinary residence in Zambia and fulfill the criteria
outlined in both Article 17 of the Constitution and Sections 17, 18, and 19 of the Citizenship
of Zambia Act, deserve the opportunity to apply for citizenship.

The evaluation of citizenship applications by refugees should be conducted on a case-by-
case basis, acknowledging the unique circumstances and challenges faced by refugees. Re-
opening doors for refugees to make applications for citizenship would signify a commitment
to fairness, justice, and the humane treatment of those who have sought refuge in our
country.

[The author is Executive-Director for the Zambian Civil Liberties Union (ZCLU). For
any contributions, write to [email protected]]