The refugee claim of Gregory Chifire

By Dr. Munyonzwe Hamalengwa

The Refugee Claim of Gregory Chifire.

In the Immigration and Refugee Board of Canada.

Board Chair:  We are now ready to hear the refugee claim of Gregory Chifire from Zimbabwe. 

Counsel: Mr. Board Member, the country of claim is Zambia and not Zimbabwe. 

Board Chair: For some unexplained reason I had Zimbabwe in mind  as I was reviewing this file. We have had a lot of claims from Zimbabwe in the last 20 years. Other Board Members can confirm but we haven’t had a claim from Zambia that I recall.

Nonetheless before I proceed, I wish to welcome all the world’s experts on modern Contempt of Court in constitutional democracies, jurists from England, the European Union, Australia, Israel, Kenya, South Africa, the US and of course Canada. Some of these experts have been cited for contempt of court and want to share their experiences with us. Some lawyers and some former lawyers who defended or prosecuted  these cases or were themselves victims of this particular charge are here with us to bring real life stories. There is an expert from the Ontario Court of Appeal who sat on that famous case of Harry Kopyto charged with scandalizing the court and why and how that case was disposed of.

This case has generated a lot of interest. We thank the public that has packed the gallery to listen to this case. The Board has discretion to reject or allow the claim after hearing opening statements. We have read the voluminous expert reports and case law. If the claim is manifestly ill-founded it will be dismissed without hearing further evidence. If we assess that the claim has significant merit with a high probability of success, we will allow the claim without hearing any further evidence. We have read the claim and its supporting documents and case law and as I said, we have read the experts reports and case law. We will start with the Government Case Presenting Officer, then we will hear from Counsel for Gregory Chifire. I hope I am pronouncing the last name of the claimant correctly.

Counsel for the Claimant: yes Board Member, your grasp of the name is excellent.

Case Presenting Officer from the Government: My name is Cannon Wiltshire. I represent the Government in this matter. The government doesn’t take an adversarial role but to simply inform the Board Members the salient points to consider in the evidence that is meant to help in your deliberations. This claim of Mr. Gregory Chifire to refugee status is manifestly ill-founded. My expert witnesses will point out amply why that is so. There is no nexus between this claim and the convention refugee grounds. Mr. Gregory Chifire has not presented any evidence that he sought the protection of his government from the perceived fear of persecution and that the government was unable or unwilling to protect him. He can’t even demonstrate that he considered internal flight alternative (IFA). 

Mr. Chifire is simply a bald-faced fugitive from justice. He fled not persecution by prosecution. In fact he was already convicted after prosecution and he then fled from the six -year sentence that was imposed on him on conviction on four counts of contempt of court. 

A country’ s legal system is presumed to be fully legal and constitutional and Canada should not develop a precedent for second -guessing other countries’ legal systems lest we be judged ourselves. Mr. Chifire didn’t go to some lower kangaroo court, he was tried by the Supreme Court of Zambia, the highest court in the land. He had a fair trial before the most experienced of Zambia’s judiciary. He was represented by three experienced lawyers though they had no experts as we have here on the jurisprudence of Contempt of Court practices historically and around the world. Mr. Chifire was given every opportunity to defend himself. But instead of going to serve the six-year sentence, he flees Zambia. He could have gained credibility if he had fled Zambia before the trial alleging persecution but he didn’t. He has even continued with contempt if court statements abroad. He should not be allowed to use his after the fact contempt of court to now claim that he cannot avail himself of the protection of his ccountry! He is not coming to this Refugee Board with clean hands.

The people who flee prosecution and sentence are not entitled to refugee claim. They are fugitives and must be handed back to commence serving their sentences.

To buttress what I am saying here that there is no basis for this claim, I wish to point out that even the Law Association of Zambia, the governing body of lawyers in Zambia celebrated the conviction and sentence of Mr. Chifire. This Board must defer to the learned reaction of the Law Association of Zambia. A prominent constitutional lawyer who was a witness in the trial wrote a letter to the judiciary congratulation them on the excellence of the Supreme Court decision. These are people in the know up close and personal and this Board should not second -guess such learned opinion. 

A popular newspaper called the Daily Nation went wild in celebration of the decision as did many lawyers, particularly young scholars who are the future of Zambia’s legal system. They know that this was not persecution. Our expert witnesses will pour more meat to this opening statement. Thank you.

Chairman of the Board: Thank you Mr. Wiltshire. Now counsel for the claimant, your floor.

Counsel for the Claimant: Good afternoon Board Members. My name is John Moore. I represent Mr. Gregory Chifire, who is here not because he is a fugitive from justice. He is not here because of fear of persecution and the excessive-out-of-this-world-unheard-of sentence even by Zambian standards.He is here because of the fear of persecution, Judicial persecution to be exact. Judicial persecution will be defined. We have witnesses who will testify that there are instances and case law to the effect when prosecution becomes persecution. This case is a recent teachable moment for that. And that partly explains this world-wide interest in this case. In Zambia, this case is the talk of town. 

Let me illustrate how prosecution can devolve into persecution. The Mandela conviction in 1964 for fighting for democracy comes to mind. Chifire is an anti-corruption stalwart. He is quite caught among the convention refugee grounds of membership in a particular social or political group and political opinion. Continuing with the example of Mandela. If Mandela escaped from prison after the sentence and claimed refugee status, would he have been denied refugee status because he had the privilege of going through a trial and therefore would have been a fugitive from justice for running away from serving the sentence? Using even Zambia’s own example, the conviction of Mainza Chona in 1962 for sedition. If Chona came to Canada, would he have been denied refugee status on the basis that he was a fugitive from justice?

Board Member: Mr. Moore, those examples do not apply here because those countries at the time were not democratic. The legal systems were in the control of the colonial masters and their local agents. There was no democracy. Zambia is a democracy with its own independent and autonomous judiciary, is it not?

Mr. Moore: Let me then give the example closer home. If boxer Muhammad Ali, convicted in 1967 for refusing the draft, came here to escape the sentence, what would have happened to him? Would it have been said that just because Ali was tried under a democracy, he would not have made the case that that prosecution was part of the persecution on the basis of political opinion and membership in a particular social group in a so-called democracy? Right here at home, Harry Kopyto was charged with scandalizing the court, similar to the equivalent charges in Zambia: Kopyto was convicted by the District Court but the Court of Appeal in a powerful judgment acquitted Mr. Kopyto on the grounds that “courts are no shrinking violets in the face of attacks” or words to that effect, and the Supreme Court of Canada refused to grant leave and no one has been charged with scandalizing the court/judiciary since 1987. Lawyers and others are charged with minor  offences for contempt of court for failing to attend court or using abusive language, but not for scandalizing the court/judiciary which is a higher scale charge attracting defences of the highest constitutional commands of freedom of conscience, speech, expression, judicial accountability, freedom of thought and so on. We have a Judge who participated in the Kopyto case amongst our expert witnesses.

In Zambia too, the Mulundika case laid down serious principles on forms including paralyzing forms of advocacy in a democracy which must be allowed.

My friend talked about Mr. Chifire having had a fair trial for this offence. Did he? How can one have a fair trial when the complainant, prosecutor and judge in the cause is rolled up in one: the Supreme Court of Zambia in this case. A violation of a centuries old principle that no one can be a judge in his own cause. Unlike in the Kopyto case where there was an appeal, here Chifire could not apply to a higher court because the Supreme Court of Zambia is the highest court and there is no appeal from it. Can a tribunal that is the complainant, prosecutor and judge acquit anyone that has it has targeted except at the pain of apology like Bishop John Mambo did in Zambia? A solution could have been in invoking regional judiciaries in SADC or the AU.  The Chikopa Tribunal to investigate the conduct of three Zambian Judges was constituted of a foreign jurist. There is thus a precedent already in Zambia. Justice Cory of the Supreme Court of Canada was sent to Ireland to settle a political legal dispute there. Ireland needed a foreign jurist to settle their disputes. In Ontario, if a government Minister or Prosecutor is criminally charged, a prosecutor from out of Ontario is chosen. International tribunals are constituted of jurists from different legal traditions.

What kind of fair trial could Mr. Chifire have had when his lawyers were also under cross- examination at times for trying to raise issues of procedure and substance and were suspended from practice because of representing Mr. Chifire? One of the lawyers who wrote a congratulatory letter to the judiciary was a judicial witness in the case. If LAZ celebrated the decision, could this give confidence that the claimant could have obtained protection from his government and that the Zambian government would have been willing and able to assist him from his alleged fear of judicial persecution?

A sentence can be an indicator of persecution rather than prosecution. This sentence was excessive, beyond what anybody has ever been given anywhere in the world, including in Zambia in practical terms. Experts will talk about all this.

The fact that judges have discretion to do whatever they want, including making case law as they go along does not mean that discretion cannot be abused. We have here His Honour Justice Richard A. Posner, the author of numerous books and articles on judicial behaviour who will talk about possibilities of judicial abuse of judicial discretion. Judicial discretion is not unlimited. It must respond to reasonableness, proportionality, decency and mercy as counsel Mr. Munshya Munshya has pointed out. Legal positivism has limits.

Board Member: Counsellor Moore, you seem to now be making closing arguments. You have made your points as Mr. Wiltshire has. We will take a recess to consider whether this claim must be dismissed as manifestly ill-founded or granted ab initio as having the highest probability of success after hearing all the evidence. We could also decide to hear the entire claim no matter what position we could have come to at this stage. Our decision is appealable to the Federal Court upon certification of a general question of importance beyond this case. Adjourned sine die but within today the decision will be rendered.

Dr. Munyonzwe Hamalengwa is the Acting Dean at the School of Law, Zambian Open University who thinks the Gregory Chifire case can be developed into a great comedy, or play or movie. It has great jurisprudence and history as well as other countries and jurists from around the world rolled up into this one case.