At the Immigration and Refugee Board of Canada, Board Room 6, Madam Mehta Nehru presiding.
Decision on the refugee claim of Madam Esther Lungu of Zambia. This is the decision on the refugee claim of Madam Esther Lungu being delivered today as I had promised when we adjourned two months ago. The hearing itself took place over a seven-day period. The hearing was heavily contested on both sides. I was presented with mountains of documents, videos, audios, books, social media accounts, newspapers and expert witnesses testified on both sides. All documents and other aids have been marked as exhibits. The testimony of the claimant, Madam Lungu and the expert witnesses have been transcribed into transcripts and are available. I also took the liberty of independently reading about Zambia and I availed counsel of the issues I discovered on my own and sent questions to counsel to answer those issues and provided links to the sources so that counsel could also read those sources I consulted, themselves. I am grateful that counsel answered fully in writing my questions.
I should state at the outset that I found the latest US Department of State Country Report on Zambia (2021) the most neutral and objective as it was written by an independent reliable source or sources. I also found reports and books on court cases and court decisions compelling. These books and reported cases done during the previous regime of Edgar Chagwa Lungu, the husband of the present claimant and the legal cases and practices of the current regime of President Hakainde Hichilema brings the central concept of this claim into broader relief, the claim as agreed upon in prehearing conferences between myself and counsel for both sides, is based on the concepts of persecution versus prosecution. Was the experience of the claimant Esther Lungu, persecution or prosecution, especially in comparing to the practices of the Edgar Lungu regime as objectively chronicled in the book by Major Richard Kachingwe entitled “HH Destined to Rule” and Mazuba Mwiinga, “Midnight Raid: Hakainde Hichilema’s brutal taste of hate, a chronicle”. There are certain instances when prosecution can turn into persecution.
The police and military like operation against Hakainde Hichilema at his house before he was charged with the underlying charge of treason compared to the laid back call-in-notice to Esther Lungu by law enforcement agencies to answer questions about the 15 unclaimed houses registered in her maiden name and built in the Lusaka area using a permit registered for Kasama in Northern Zambia is quite telling about what is persecution and what is lawful investigation for lawful prosecution purposes. This tribunal has a lot of decided cases on the differences between persecution and prosecution and both counsel are familiar with the jurisprudence or have been availed with the leading jurisprudence which I need not summarise herein as a result. Hakainde Hichilema had been summoned to attend at law enforcement agencies’ offices numerous times without fail but on this one occasion, the police raided his house as if it was a military operation to capture a big terrorist, someone who had voluntarily presented himself on numerous occasions without fail. The end result of that treason case was actually also telling. If there was truly a case of treason pursuant to Section 43 of the Penal Code of Zambia, Cap 87 of the Laws of Zambia, no nolle prosequi could have been entertained by the Zambian state. Treason involves the life and security of the nation.
The charge cannot be exchanged for anything unless it was based on political persecution rather than criminal prosecution. Esther Lungu is summoned once pursuant to the corruption statutes of that country, just once and she laments persecution. The Hakainde Hichilema regime was partly elected to vigorously vanquish the cancer of corruption and the regime has vowed to follow the rule of law in this fight, using predetermined legally constitutional anti-corruption statutes, statutes which are also germaine in international and comparative corruption statutes as ably analysed in the writings of Zambia’s eminent scholar Professor Muna Ndulo of Cornell University who was presented as an expert witness here on whether the fight against corruption in Zambia is persecution or prosecution.
The claimant Esther Lungu put in context that the fight against corruption in Zambia is targeting only members of the former ruling party, therefore the fight against corruption has turned into persecution on the basis of membership in a political or social group. She has tried strenuously to bring her experiences and those of other members of the Patriotic Front (PF) party into the definition of refugee status formulated in the “Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees”. That Handbook has been operationalised in hundreds of decisions defining each case meeting the criteria set out therein. There is plenty of jurisprudence on what is persecution and what is prosecution.
In his authoritative books, “The Law of Refugee Status” and “The Law of Refugee Status Under International Law”, Professor James Hathaway, formerly of Osgoode Hall Law School, has assembled a mass of case law encompassing the different definitions and case law on who fits into the criteria of refugee. Hathaway has been an expert witness at this hearing and was extensively examined and cross-examined by both teams of counsel. Esther Lungu’s lamentation of persecution does not come even within a thousand metres of the Convention definition of “persecution” in the context of Zambia under the current regime.
Lungu hasn’t even been prosecuted to even meet and demonstrate that that prosecution has devolved into political persecution. This is the case under tyrannical regimes such as the former Apartheid regime in South Africa. See Richard Abel, “Politics By Other Means: Law in the Struggle Against Apartheid, 1980-1994”. Expert witnesses called by the claimant, for example Mr Joseph Chirwa and Mr Isaac Mwanza failed to demonstrate that fighting corruption in Zambia now amounts to persecution on political or social group grounds. Lungu is merely being investigated. And all PF leaders who have been charged with corruption, have been granted bail. That there was massive corruption under the PF regime is indisputable as shown in the rims of documents filed as exhibits at this hearing. A commission of inquiry into corruption in Zambia under the PF regime would be apropo to expose the monstrosity of that cancer and if the government were to defeat the claim that legally fighting corruption in Zambia is persecution. It may well be that the fight against corruption in Zambia in future, if not well handled and defined, could turn out to be persecution and not prosecution. At this juncture, however, the experience of Esther Lungu is neither persecution nor prosecution. The claim of persecution advanced by Esther Lungu is manifestly ill-founded and is accordingly dismissed. The claimant has a right to apply for leave in the federal court. This proceeding is concluded.