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MUZYAMBA, W.M.,J.:delivered the judgment of the court.
By this Motion filed on 7th May, 1991 the applicant seeks a Court Order for the release of his documents being held by the respondent's servants and/or Agents, the Anti-Drug Commission.
The evidence consists of an affidavit by the Plaintiff dated 6th May, 1991 and an affidavit, in opposition, dated 3rd July, 1991 by Louis Kalugwagwa Nyirongo, the Registrar-General, Department of National Registration, Passports and Citizenship, Ministry of Home Affairs. Paragraphs 3 to 10 of the Plaintiff's affidavit reads as follows:
3. That on the 8th of November, 1990 I was charged with being in possession of dangerous drugs commonly known as Indian hemp
4. That on the 12th of November, 1990 I was granted Bail in the sum of K5000.00 and was released on the 16th of November, 1990
5. That on the 12th February, 1991 I was fined K7000 which sum I duly paid
6. That prior to being arrested and charged, the Anti-Drug Commission who had conduct of this matter took possession of my belongings namely:-
a. Passport No. ZA 58368
b. Driver's licence No. 155346
c. Carrier bag containing toiletries
7. That ever since my case was disposed in court on the 12th of February, 1991 I have made endeavours personally and through my lawyers to secure their release to no avail.
8. That I instructed my Advocates Messrs Kasoma & Lumina who wrote a letter which letter is attached hereto, marked exhibit "CNN 1".
9. That several endeavours were made by my advocates and personal calls were made on Anti-Drug Commission for purposes of releasing the documents to no avail.
10. That I now crave the indulgence of this Honourable Court to Order that the said documents be released for I have greatly been inconvenienced for 5 months and all efforts to settle the matter outside court have proved futile."
And paragraph 5 of 9 of Mr. Nyirongo's affidavit read:
"5 That I have read the Originating Notice of Motion filed by the applicant and the purported affidavit in support thereof
6. That the Government had, through the Head of State, issued a highly classified document on the policy pertaining to the issuance, withdrawal and cancellation of passports at any time, for any reason or for none, and is not obliged to disclose the reasons for so doing.
7. That the contents of the highly classified document on Passport Policy are matters of National Security and cannot therefore be divulged.
8. That passports, to all intents and purposes are and remain the property of the Government of the Republic of Zambia.
9. That in line with the dictates of the Passport Policy aforesaid, the Government has decided to withdraw and cancel this particular Passport which was issued to the applicant herein."
The respondent does not deny any of the Plaintiff's allegations. The Court therefore accepts his evidence and finds as a fact that prior to his arrest and subsequent conviction on a charge of being in possession of dangerous drugs the Anti-Drug Commission confiscated his Passport No. ZA 58368, Driving Licence No. 155346 and Carrier bag containing toiletries and that these items have not been released to him though demanded.
In their submissions before the Court both Counsel relied on their respective affidavits. In addition, and although not stated in the affidavit in opposition, Counsel for the respondent submitted that the applicant was told to collect the driving licence and carrier bag but declined saying that he would not collect them without his passport. This part of the submission narrows the issue to the passport only and the only question for the determination of this Court is:
Is it competent for a Court to order the Government to surrender and/or release a passport to the passport holder once the passport has been confiscated by any arm of the Government.
I have read part II of the existing Republican Constitution, Cap 1 on Citizenship, the Citizenship Act, Cap 121 and the National Registration Act, Cap 434 and found no provision relating to applications for or the issuing of or withdrawal, revocation and/or cancellation of passport. Neither have I found any regulations or rules regulating the same. I have also looked at the English Law, in particular paragraph 568 of Halsbury's Laws of England, 3rd Edition, Volume 7 at pages 264 to 265 and it reads:
"Passports may be granted by the Crown at any time, to enable British subjects to travel with safety in foreign countries, but such passports would clearly not available so as to permit travel in an enemy's country during war. Passports are issued by the foreign office or by diplomatic officers abroad.
Violation of a passport is a grave breach of international law, and in England is punishable by fine and imprisonment at Common Law. A conspiracy to obtain a passport by false or fraudulent representation under circumstances tending to produce a public mischief has been held to constitute an indictable offence.
An alien abroad with a British passport enjoys the protection of the crown and extends his duty of allegiance beyond the time of his departing from the United Kingdom."
This does not in any sense answer my question.
How then are passports issued. Is it a right or privilege to posses a passport. To whom does it belong. Is it the property of the holder or the Government. The answers to these questions will help the Court resolve the main issue.
Using my own experience I would say that in order for one to obtain a passport he had to apply to the passport office.
Is it a right or privilege to possess a passport. Article 24(1) of the Constitution, supra, which guarantees an individual's right of movement and insofar as it is relevant to this case provides:
"24(1) No person shall be deprived of his freedom of movement, and for the purposes of this article the said freedom means the right to move freely throughout Zambia, the right to reside in any part of Zambia, the right to enter Zambia and immunity from expulsion from Zambia."
It would appear from this article tome that the guarantee is for free movement of an individual within and entry into Zambia and not out of Zambia and quite obviously the purpose of a passport is to enable the holder to travel to countries specified or restricted in the passport itself by the issuing authorities. Since it is not a guarantee or constitutional right for an individual to leave Zambia I conclude that it is not a right but a privilege to posses a passport and this in essence means that the issuing authority has a discretion to either grant or refuse the application .for a passport and to restrict its use by specifying the countries a holder may travel to and the period of its validity.*
Is a passport the property of the holder or of the Government. Paragraph 8 of the affidavit in opposition by Mr. Nyirongo reads:-
"8. That passports, to all intents and purposes are and remain the property of the Government of the Republican of Zambia."
No authority has been cited by Counsel for the respondent in support of this allegation. In an attempt to resolve this question, I have examined my own passport No. ZA 54210 issued on 13th February 1986 and expiring on that date in 1996 , and I would like to take judicial notice of the fact that all passports issued by Government bear same writings. On the inside of the back cover are four notes and a caution. Only the caution is relevant to the question and it reads:
"This passport remains the property of the Government of the Republic of Zambia and may withdrawn at any time.
It is a valuable document and should not be altered in any way or allowed to pass into possession of an unauthorised person. If lost or destroyed the fact and circumstances should be immediately reported to the nearest passport office, Zambian Mission or the Ministry of Home Affairs, P.O. Box 31862 Lusaka and the local police. A new passport can only be issued in such cases after exhaustive inquiries."
The first part of the caution is instructive and I have no difficulties in coming to the conclusion that a passport issued by or on behalf of the Government of the Republic of Zambia is the property of the Government and not of the holder and that the Government has a discretion to withdraw it at any time. However, I do not agree with paragraph 6 of Mr. Nyirongo's affidavit or indeed the submission by counsel for the respondent that a passport may be withdrawn for any reason or none and that the Government is not obliged to disclose the reasons for withdrawing it. In my considered view a passport, once issued, may only be withdrawn, cancelled or revoked for a valid or sufficient reason or reasons such as committing an international crime, being convicted of a crime in a foreign currency, or misconduct likely to tarnish the image of the country. I hold therefore, that the Court has jurisdiction to order the Government to release or surrender a passport to the passport holder where no valid or sufficient reason has been disclosed for withholding the passport.
In this particular case, the applicant is a self-confessed criminal who has abused the privilege by engaging himself in drug trafficking which is no doubt an international crime. He has therefore himself to blame and I find that the State is justified in withholding his passport. Consequently, his application in relation to the passport must be and is refused.
For the Driving Licence No. 155346 and Carrier bag plus toiletries, though not a document within the definition of that word, the Court orders that these items be released forthwith by the Anti-Drugs Commission to the applicant.
Each party should bear his own costs.
Application denied.
*Freedom of movement outside Zambia is now guaranteed by Article 22(1) of the New Constitution Act No. 1 of 1996
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