Law Admissibility 26. Admissibility of communications under the African Charter is governed by Article 56, which sets out conditions that must be met before they are considered by the Commission. 27. Article 56 of the Charter reads: Communications ... shall be considered if they: ...(5) are sent after exhausting local remedies, if unless it is obvious that this procedure is unduly prolonged. 28. This provision of the Charter is necessarily first considered before any substantive consideration of a complaint. 29. In the present case all local remedies have been exhausted and there is documentary evidence made available to the Secretariat of the Commission in support of this claim. As already stated in the case of Chinula, the arbitrary deportation prevented him from exercising this right. 30. The Complainant has attached to the communication copies of the following judgements/orders obtained by William Banda and John Chinula; 31. Consent Order of 13th March 1995, High Court of Lilongwe, in Miscellaneous Cause No. 2 of 1995; 32. Judgement of 30th June 1997, High Court of Malawi in Lilongwe, in Miscellaneous Cause No. 2 of 1995; 33. Judgement No. 16 of 1994, Supreme Court of Zambia in Lusaka, in Banda vs. Chief Immigration Officer and Attorney General; 34. Judgement No. JH/12 of 1991, High Court of Zambia in Chipata, in Banda vs Chief Immigration Officer and Attorney General. For these reasons the Commission declares the communication admissible. Merits 35. Zambia ratified the African Charter on Human and Peoples' Rights in January 1984. 36. A number of supporting documents were submitted: On Banda, the transcript of the Judgement by Kakusa J in the High Court of Zambia held at Chipata; the judgement on appeal by Bweupe DCJ in the Supreme Court in Lusaka. The various decisions of the Malawi Court and affidavits submitted in support. The Government also submitted documents on Banda and Chinula. 37. Regarding William Steven Banda, the judgement of Justice Kakusa in the High Court is instructive. The judge found that there was no evidence, on a balance of probabilities, to prove that Banda was born in Zambia of Zambian parents. He found that Banda was an unreliable witness. He, however, refused to rule as to where Banda originated from. He dismissed all evidence that suggested that Banda was from Malawi, as inadmissible and hearsay. He also noted that the government had failed to produce the alleged Malawian father of Banda. The judge also made the following obiter dictum without justifying his opinion, that "once it is shown on a balance of probabilities that a petitioner is not a citizen of this Republic he becomes a deportable person even if the country to which he must proceed is unknown ... possession of a National Registration Card ... does not confer citizenship..." (at p J25). It appears that the authorities relied on this statement in deporting William Steven Banda. 38. The judge also expressed himself in sympathy with Banda's predicament. He said "the petitioner has been in Zambia for a long time and has, in his own way, contributed in the political arena ... Zambia has become almost the petitioner's only home - a de facto situation - upon which the executive may exercise its discretion and, maybe, consider normalising the status of petitioner should he apply... If this court were empowered to declare persons like petitioner be Zambians, the petitioner would have received a favourable declaration considering his long stay in Zambia and the role he played" (J25). 39. It is not denied that on the day of the judgement, William Steven Banda was taken into custody and deported to Malawi. In addition, Banda charges that his pleas that he be taken to South Africa were ignored including his request for a five-days stay of execution of the warrant. 40. It is evident that the Malawi Courts are irrelevant for purposes of deciding this matter against Zambia. The fact that they declared Complainants not to be Malawi citizens is neither here nor there. Secondly, the Commission is not competent to substitute the judgements of the Zambian courts, especially on matters of fact. It must be accepted that the legal processes were appropriate and conducted in a manner that 3