REFUGEES ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY PROVISIONS

   1.   Short title

   2.   Interpretation

PART II
THE COMMISSIONER FOR REFUGEES

   3.   Establishment of Office of Commissioner for Refugees

   4.   Functions of Commissioner

   5.   Establishment of Refugee Status Determination Committee

   6.   Functions of Committee

   7.   Sub-committees

   8.   Authorised officers

PART III
RECOGNITION OF REFUGEES

   9.   Designation of refugee resettlements

   10.   Restrictions relating to refugee settlements

   11.   Application for recognition as refugee

   12.   Consideration of application by Committee

   13.   Recognition of refugees

   14.   Exclusion or refusal to grant recognition as refugee

   15.   Appeal against refusal of grant of recognition as refugee

   16.   Declaration of refugee status by statutory order

   17.   Cancellation or revocation of recognition

   18.   Appeal against cancellation or revocation of recognition

   19.   Effect of cancellation or revocation of recognition

   20.   Cessation of recognition

   21.   Expulsion of recognised refugee

   22.   Detention of refugee pending expulsion

   23.   Prohibition of expulsion, extradition or refusal of entry of asylum seeker or refugee

   24.   Register of refugees

PART IV
RIGHTS AND DUTIES OF RECOGNISED REFUGEES

   25.   Rights and duties of recognised refugees

   26.   Provisional measures for national security

   27.   Maintenance of public order

   28.   Right to life

   29.   Non discrimination

   30.   Freedom of person

   31.   Security of person and protection from inhuman treatment

   32.   Protection from slavery, servitude and forced labour

   33.   Protection of privacy of person, home, property and communication

   34.   Freedom of conscience, belief and religion

   35.   Freedom of expression

   36.   Freedom of association and assembly

   37.   Personal status

   38.   Settlement

   39.   Acquisition of moveable and immovable property

   40.   Access to courts

   41.   Employment and study permits

   42.   Self-employment

   43.   Practice of professions

   44.   Rationing of supplies

   45.   Residence in Zambia

   46.   Prohibition of proceedings against refugees

   47.   Administrative assistance

   48.   Fiscal charges

   49.   Naturalisation

   50.   Travel documents

   51.   Identity documents

   52.   Transfer of assets

   53.   Refugee women and children

   54.   Vulnerable groups

PART V
THE REFUGEES FUND

   55.   Establishment of Refugees Fund

   56.   Administration of Fund

   57.   Accounts and audit

   58.   Annual report and statement of income and expenditure

PART VI
OFFENCES AND PENALTIES

   59.   Restrictions on possession of weapon, firearm or ammunition by refugee

   60.   Sending of offensive messages on radio apparatus and electronic communication

   61.   Prohibition of inciting or engaging in war activity

   62.   False declaration

   63.   Residence outside refugee settlement and illegal residence

   64.   Failure to apply for recognition

   65.   Forging, alteration, destruction and unlawful possession of identification documents

   66.   Alteration and destruction of register

   67.   Obstruction of officer

   68.   Disclosure of confidential information

   69.   General penalty

PART VII
GENERAL PROVISIONS

   70.   Places of entry or departure

   71.   Requirement to reside in reception area or refugee settlement

   72.   Regulations

   73.   Repeal of Cap. 120

 

      SCHEDULE

An Act to establish the office of the Commissioner for Refugees and provide for its functions; provide for the recognition, protection and control of refugees; provide for the rights and responsibilities of refugees; establish the Refugees Fund; domesticate the United Nations Convention relating to the Status of Refugees, 1951 and its Protocol of 1967, and the Organisation of African Unity Convention Governing the Specific Aspects of Refugees Problems in Africa, 1969; repeal and replace the Refugees (Control) Act, 1970; and provide for matters connected with, or incidental to, the foregoing.

[13th April, 2017]

Act 1 of 2017.

PART I
PRELIMINARY PROVISIONS

1.   Short title

This Act may be cited as the Refugees Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

“adverse effect” has the meaning assigned to it in the Environmental Management Act, 2011;

“asylum” means shelter and protection granted by the Government to persons seeking refugee status in accordance with the provisions of this Act;

“asylum seeker” means a person seeking refugee status in accordance with the provisions of this Act and whose refugee claim is not determined;

“authorised officer” means a police officer, an immigration officer or a public officer appointed as such under section 8;

“child” has the meaning assigned to it in the Constitution;

“Civil Service Commission” means the Civil Service Commission established by the Constitution;

“combatant” means a member of a regular or irregular force or armed group or a person who has been participating actively in military activities or recruitment to military activities;

“Commissioner” means the Commissioner for Refugees appointed under section 3;

“Committee” means the Refugee Status Determination Committee established under section 5;

“country of nationality” in relation to a person who has more than one nationality, means each of the countries of which that person is a national;

“country of origin” means the country of nationality of the refugee or asylum seeker, or if the refugee or asylum seeker has no country of nationality, the country of former ordinary residence;

“crime against peace” means an act relating to the planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements and assurances on peace, or participation in a common plan or conspiracy for the accomplishment of any of these acts;

“crime against humanity” means any of the following acts committed as part of a widespread or systematic attack directed against a civilian population—

   (a)   murder;

   (b)   extermination;

   (c)   enslavement;

   (d)   deportation or forcible transfer of population;

   (e)   imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

   (f)   torture;

   (g)   rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;

   (h)   persecution against an identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as impermissible under international law, in connection with an act referred to in this definition;

   (i)   enforced disappearance of persons;

   (j)   the crime of apartheid; or

   (k)   other inhuman acts of a similar character intentionally causing great suffering or serious injury to the body or to mental or physical health;

“dependant” in relation to a refugee, means—

   (a)   a spouse, parent or grandparent of the refugee; or

   (b)   a son, daughter, grandson or grand daughter, brother, sister, nephew or niece of the refugee who is of, or below, the age of 18 or is below the age of 25 and undergoing full time education and is wholly dependant on the refugee;

“electronic communication” has the meaning assigned to it in the Information and Communication Technologies Act, 2009;

“electronic communications apparatus” has the meaning assigned to it in the Information and Communication Technologies Act, 2009;

“electronic communication network” has the meaning assigned to it in the Information and Communication Technologies Act, 2009;

“environment” has the meaning assigned to it in the Environmental Management Act, 2011;

“Emoluments Commission” means the Emoluments Commission established under the Constitution;

“Fund” means the Refugees Fund established under section 55;

“member” means a member of the Committee;

“naturalisation” means the legal process by which a refugee becomes a citizen of Zambia;

“public interest” means—

   (a)   the general welfare of the public that warrants recognition and protection;

   (b)   something in which the public as a whole has a stake, especially an interest that justifies governmental regulation;

   (c)   an interest relating to the general welfare of the community as a whole as opposed to individual interest;

“radio apparatus” has the meaning assigned to it in the Information and Communication Technologies Act, 2009;

“recognised refugee” means a person who—

   (a)   is recognised as a refugee under section 13; or

   (b)   is a member of a class of persons declared as refugees under section 16;

“refugee” means a person who owing to—

   (a)   a well-founded fear of being persecuted for reasons of race, religious beliefs, nationality, membership of a particular social group or political opinion is outside the country of nationality and is unable, or owing to that fear is unwilling, to be protected by that country;

   (b)   not having a nationality and being outside the country of that person’s former habitual residence is—

      (i)   unable to return to that country; or

      (ii)   unwilling to return to that country due to a well-founded fear of being persecuted for reasons of race, religion, membership of a particular social group or political opinion;

   (c)   external aggression, occupation, foreign domination or serious disturbance of public order in part or the whole of that person’s country of origin or nationality, is compelled to leave that person’s place of habitual residence in order to seek refuge in a place outside that person’s country of origin or nationality; or

   (d)   internal conflict, generalised violence, massive violation of human rights or other circumstances that have seriously disturbed public order in that person’s country of origin, that person’s life, safety or freedom has been threatened;

“refugee officer” means a person appointed as a refugee officer under section 3;

“refugee reception area” means a place or area designated as a refugee reception area under section 9;

“refugee settlement” means a place or area designated as a refugee settlement under section 9;

“Register” means the Register of Refugees established pursuant to section 24;

“serious non-political crime” means a felony as defined in section 4 of the Penal Code;

“subversive acts” means acts directed towards the overthrow of a government, and includes the crimes of treason, sedition, sabotage or an act likely to cause tension through the use of arms, press and radio in a member State of the United Nations or the African Union;

“sustainable management” has the meaning assigned to it in the Environmental Management Act, 2011;

“sustainable use” has the meaning assigned to it in the Environmental Management Act, 2011;

“travel document” has the meaning assigned to it in the Passports Act, 2016; and

“war crimes” means grave breaches of the Geneva Conventions of 12 August, 1949, such as—

   (a)   wilful killing;

   (b)   torture or inhuman treatment, including biological experiments;

   (c)   wilfully causing great suffering or serious injury to body or health;

   (d)   extensive destruction and appropriation of property, which is not justified by military necessity and carried out unlawfully and wantonly;

   (e)   compelling a prisoner of war or other protected person to serve in the forces of a hostile power;

   (f)   wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

   (g)   unlawful deportation or transfer or unlawful confinement; and

   (h)   taking of hostages.

   (2) A person who has more than one nationality shall not be deemed to be lacking the protection of that person’s country of nationality if, without any reason based on a well-founded fear, that person does not benefit from, or avail oneself of, the protection of one of the countries of which that person is a national.

PART II
THE COMMISSIONER FOR REFUGEES

3.   Establishment of Office of Commissioner for Refugees

   (1) There is established the Office of the Commissioner for Refugees within the Ministry responsible for home affairs.

   (2) The Civil service Commission shall appoint the Commissioner for Refugees as a public officer.

   (3) The Civil Service Commission shall appoint, as public officers, the Deputy Commissioner for Refugees, refugee officers and such other staff as it considers necessary for the proper administration of this Act.

   (4) The Commissioner shall provide a refugee officer with an identification card which shall be prima facie evidence of the refugee officer’s appointment as such.

   (5) A refugee officer shall, in performing any function under this Act—

   (a)   be in possession of the identification card referred to in sub-section (4); and

   (b)   show the identification card to a person who requests to see it or is subject to an investigation under this Act.

4.   Functions of Commissioner

   (1) The Commissioner is responsible for the recognition of refugees and ensuring the provision of adequate facilities and services for the reception into and care for refugees within Zambia.

   (2) Without prejudice to the generality of sub-section (1), the functions of the Commissioner are to—

   (a)   co-ordinate activities and programmes for refugees and the provision of security, protection and assistance for refugees in refugee settlements;

   (b)   co-ordinate measures necessary for promoting the welfare of refugees and advise the Minister on all matters relating to refugees;

   (c)   manage refugee reception areas, refugee settlements and other facilities for refugees;

   (d)   receive and process applications for the recognition of refugees;

   (e)   issue refugee identification documents and process and recommend applications for the issuance of refugee travel documents;

   (f)   issue movement passes to refugees for travel outside the refugee settlements within Zambia;

   (g)   issue visitors permits for entry into refugee settlements;

   (h)   register and maintain a register of asylum seekers and refugees;

   (i)   ensure that refugee economic and productive activities do not have an adverse effect on host communities or the environment;

   (j)   ensure the sustainable use and sustainable management of the environment in refugee hosting areas;

   (k)   protect and assist vulnerable asylum seekers and refugees, especially women and children;

   (l)   ensure treatment of asylum seekers and refugees in compliance with the law;

   (m)   facilitate the safe return of Zambians living as refugees in other countries;

   (n)   administer and manage the Fund;

   (o)   co-operate with organisations and institutions with similar functions within and outside Zambia; and

   (p)   exercise such other functions as are incidental to the functions of the Commissioner or as may be assigned to the Commissioner by or under this Act.

   (3) The Commissioner shall, in the performance of the Commissioner’s functions under this Act, be subject to the general or special directions of the Minister that are consistent with the provisions of this Act.

   (4) The functions of the Commissioner under this Act may be exercised and performed by the Commissioner personally or by the Deputy Commissioner or a refugee officer on such terms and conditions as the Commissioner may determine.

5.   Establishment of Refugee Status Determination Committee

   (1) There is established the Refugee Status Determination Committee which consists of the following members appointed by the Minister—

   (a)   the Chairperson, who shall be a person with expertise in refugees matters; and

   (b)   one representative each of the—

      (i)   Attorney-General;

      (ii)   Zambia Police Service;

      (iii)   Ministry responsible for foreign affairs;

      (iv)   Immigration Department;

      (v)   Special Division of the Office of the President;

      (vi)   Department of National Registration, Passport and Citizenship; and

      (vii)   United Nations High Commissioner for Refugees, as ex-officio member.

   (2) The members shall elect the Vice-Chairperson from amongst themselves.

   (3) The Commissioner shall assign officers to perform such secretarial and administrative functions for purposes of or in connection with the Committee as may be necessary for the performance of its functions.

   (4) The provisions of the Schedule apply to the Committee.

6.   Functions of Committee

The functions of the Committee are to—

   (a)   receive and consider applications for the recognition of refugees referred to the Committee under section 11; and

   (b)   perform such other functions as may be assigned to the Committee by or under this Act.

7.   Sub-committees

   (1) The Committee may, for the purposes of performing its functions, establish such sub-committees as it considers necessary and delegate to any of those sub-committees any of its functions under this Act.

   (2) The Committee may appoint as members of a sub-committee persons who are or are not members of the Committee, except that at least one member of the Committee shall be a member of a sub-committee.

   (3) Despite the generality of sub-sections (1) and (2), the Committee may appoint special sub-committees, composed of some members of the Committee and persons representing relevant agencies, to carry out functions under this Act or perform such other functions that require collaborative effort with other agencies.

   (4) A person serving as a member of a sub-committee shall hold office for such period as the Committee may determine.

   (5) Subject to any specific or general direction of the Committee, a sub-committee may regulate its own procedure.

8.   Authorised officers

   (1) The Minister may, by notice in the Gazette, appoint a public officer or a class of persons as authorised officers for the purposes of this Act on such terms as the Minister may determine.

   (2) An authorised officer or refugee officer may, for the purpose of exercising that officer’s power or performing that officer’s duties under this Act and subject to sub-sections (3) and (4)—

   (a)   search a person or property;

   (b)   take the fingerprints, palmprints and photograph or other biometric information of a refugee or person who claims to be a refugee for the purposes of this Act or a dependant of that person; or

   (c)   question a refugee or person who claims to be a refugee for the purposes of this Act or any dependant of that person.

   (3) An authorised officer or refugee officer may search a person or property with or without a warrant under sub-section (2)(a) where the authorised officer or refugee officer has reasonable grounds to believe that the search is necessary for the prevention, investigation or detection of—

   (a)   a contravention of the provisions of this Act; or

   (b)   a fraudulent misstatement or concealment, by a recognised refugee or dependant of that recognised refugee, of any fact relevant to that recognised refugee’s or dependant’s identity or status for the purposes of this Act.

   (4) A person shall only be searched by an authorised officer or refugee officer of the same sex.

PART III
RECOGNITION OF REFUGEES

9.   Designation of refugee resettlements

   (1) The Minister may, by notice in the Gazette, designate places and areas in Zambia as—

   (a)   refugee reception areas, in which the following persons shall be received and temporarily accommodated—

      (i)   asylum seekers; and

      (ii)   persons who have applied for recognition as refugees under section 11 and dependants of those persons; and

   (b)   refugee settlements, where the following persons shall reside—

      (i)   recognised refugees and their dependants; and

      (ii)   any other class of persons as may be specified in the notice.

   (2) The Minister may establish, in a refugee reception area or other place, a refugee settlement and appoint a refugee officer to be in charge of that refugee settlement.

   (3) The Minister may make rules, and the Commissioner may issue directions consistent with the rules, for the control of refugee settlements and the rules and directions may make provision in respect of all or any of the following matters—

   (a)   the organisation, safety, discipline and administration of the refugee settlements;

   (b)   the reception, treatment, health and well-being of refugees; and

   (c)   the powers of refugee officers in respect of the refugee settlements.

   (4) A refugee officer may give such orders or directions, orally or in writing, to a refugee as may be necessary or expedient to—

   (a)   ensure that a refugee settlement is administered in an orderly and efficient manner;

   (b)   ensure the performance of any work or duty necessary for the maintenance of essential services in a refugee settlement or for the general welfare of the refugees;

   (c)   ensure that all proper precautions are taken to preserve the health and well-being of the refugees in the refugee settlement; and

   (d)   preserve orderly conduct and discipline in a refugee settlement.

   (5) A refugee commits an offence who, in a refugee settlement—

   (a)   disobeys a rule made by the Minister, a direction of the Commissioner or an order or direction of a refugee officer, made or given under this Act; or

   (b)   behaves in a manner prejudicial to good order and discipline in a refugee settlement.

10.   Restrictions relating to refugee settlements

   (1) A person, except a recognised refugee required to reside in a refugee settlement or a person employed in a refugee settlement, shall not enter or be within the refugee settlement without the general or special permission of the Minister, the Commissioner or a refugee officer.

   (2) A person shall not, in a refugee settlement, address an assembly or meeting of 10 or more recognised refugees without the permission of the Commissioner.

   (3) A person who contravenes this section commits an offence.

11.   Application for recognition as refugee

   (1) An asylum seeker or a person who is within Zambia, whether that person has entered Zambia lawfully or otherwise, and wishes to remain in Zambia as a recognised refugee under this Act may, within seven days of entering Zambia, apply for recognition as a refugee to the Commissioner or an authorised officer.

   (2) The Commissioner or an authorised officer, shall, within 30 days of the receipt of an application made under sub-section (1), submit the application to the Committee.

   (3) An authorised officer to whom an application is made under sub-section (1) shall—

   (a)   where the authorised officer is not an immigration officer, within five days of receipt of the application, notify an immigration officer that the applicant is within Zambia and has made the application; and

   (b)   within 30 days of receiving the application, submit the application with any documents or information in support of the application to the Commissioner who shall, upon consideration of the application and determination that it should be referred to the Committee, submit it to the Committee.

   (4) Despite section 22 of the Immigration and Deportation Act, 2010, or any other written law, a person who applies for recognition as a refugee under this section and a dependant of that person has the right to remain in Zambia—

   (a)   until that person is recognised as a refugee; or

   (b)   where the application for recognition as a refugee is rejected, until that person has had an opportunity to exhaust that person’s right of appeal under section 15.

12.   Consideration of application by Committee

   (1) The Committee shall, within 60 days of receiving an application for refugee status, forwarded to it under section 11, consider the application and make recommendations to the Commissioner in relation to that application as it considers fit.

   (2) The Committee may, within the period referred to in sub-section (1), inquire into or investigate the applicant as it may consider necessary for purposes of this Act.

13.   Recognition of refugees

The Commissioner may, after considering the recommendation of the Committee made pursuant to section 12 on an application, recognise the applicant as a refugee if the applicant meets the requirements of this Act and shall, within seven days of the decision, inform the applicant accordingly, in writing.

14.   Exclusion or refusal to grant recognition as refugee

   (1) The Commissioner shall exclude a person or asylum seeker from recognition of refugee status under this Act if there are reasonable grounds to believe that the person or asylum seeker—

   (a)   has committed a crime against peace, a war crime or crime against humanity;

   (b)   has committed a serious non-political crime outside Zambia before that person’s arrival in Zambia;

   (c)   has engaged in subversive acts against any State;

   (d)   is receiving protection or assistance from an agency of the United Nations, other than the United Nations High Commissioner for Refugees;

   (e)   is a combatant or continues to take part in armed activities; and

   (f)   has committed acts contrary to the purposes and principles of the United Nations or the African Union.

   (2) Where the protection or assistance referred to in sub-section (1)(d) ceases without the person’s position being definitively settled, that person may apply for recognition as a refugee under this Act.

   (3) The Commissioner shall not grant a person or asylum seeker refugee status under this Act if that person or asylum seeker—

   (a)   having more than one nationality, had not availed oneself of the protection of one of the countries of which the person is a national, and has no valid reason, based on well-founded fear of persecution;

   (b)   has been granted refugee status or asylum in another country before that person’s entry into Zambia, except that a person arriving from a territory where there has been serious breach of peace shall have that person’s application for asylum considered; and

   (c)   has before that person’s entry into Zambia transited through one or more countries and is unable to show reasonable cause for failure to seek asylum in those countries.

   (4) The Commissioner shall, where the Commissioner refuses to recognise a person’s status as a refugee, state the reasons for the refusal and shall inform that person of the right to appeal to the Minister.

15.   Appeal against refusal of grant of recognition as refugee

   (1) A person aggrieved with the refusal of the Commissioner to recognise that person as a refugee may, within 14 days of the receipt of the decision of the Commissioner, appeal to the Minister, in writing.

   (2) The Minister may consider an appeal after the expiry of the period specified in sub-section (1) where the Minister determines that the appellant was prevented by justifiable cause from filing the appeal within the specified period.

   (3) The Minister may, before reaching a decision on an appeal—

   (a)   refer the matter to the Committee for further inquiry and investigation; or

   (b)   make such further inquiry and investigation into the matter.

   (4) The Minister may, in determining an appeal under sub-section (1), confirm or set aside the decision of the Commissioner, and shall notify the appellant of the Minister’s decision in the matter and the reasons for the decision.

   (5) Where a person appeals against the rejection of an application for recognition as a refugee and the appeal is unsuccessful, that person may be allowed to remain in Zambia for a period not exceeding three months, and if that person is in detention, that person shall be afforded reasonable facilities to seek admission to a country of that person’s choice.

   (6) A person may apply to the Minister to extend the period of three months specified in sub-section (5), and the Minister may extend that period if the Minister determines that there is a reasonable likelihood of the person being admitted to a country of that person’s choice within that extended period.

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