Longwe v Intercontinental Hotels

Judgment: November 4, 1992

Facts: Ms. Longwe was refused entry to a hotel bar on the grounds that no unaccompanied
women could be permitted entry. The hotel management had introduced this rule in an attempt
to stop frequent disturbances which they claim were caused by women not accompanied by
men and which had brought about a series of complaints by a hotel residents and male patrons
alleging that women were soliciting. Unaccompanied women were allowed in all other areas of
the hotel. Longwe had been turned away from one of the Intercontinental hotels on at least 2
occasions -- once when she was picking up her children from a party at the hotel and again
when she was attending a meeting of a group of women’s activists at the hotel. The
ombudsman did find that the hotel policy was discriminatory and forwarded a copy of its ruling to
the National Hotels Board, but the policy wasn’t changed. In 1992, Longwe was again prevented
from entering the same hotel, when she and a group of women’s activists tried to meet in the
hotel’s bar.

Ms. Longwe brought a petition claiming that a refusal to allow her to enter the bar, a public
space, was a violation of her right to freedom of movement and her right to be free from sex,
and marital status discrimination under 22 and 23 of the Constitution of Zambia. The court also
considered her case under Art 21 (Freedom of Association). Ms. Longwe argued that even if the
hotel were to be considered as being private premises, it was still required to observe these
constitutional provisions. Ms. Longwe claimed that her constitutional right were also reinforced
by Zambia’s international obligations under the Convention on the Elimination of all forms of
Discrimination against Women and the Afrian Charter on Human Rights and People’s Rights as
well as 1988 Bangalore Principles. However, respondent averred that petitioner had no right to
cite conventions which Zambia had not yet domesticated in local law and which the court,
therefore, had no jurisdiction to apply. However, the court was alive to its discretion to apply
undomesticated conventions which the country had ratified.

Held:
It need only look to the freedom of movement and assembly provisions of the Zambian
Constitution to determine that the hotel’s policy was illegally discriminatory. Regarding the
proper role of international treaties in domestic jurisprudence, the court stated:

“Before I end, I have to say something about the effect of International Treaties and
Conventions which the Republic of Zambia enters into and ratifies. The African Charter on
Human Rights and People’s Rights and the Convention on the Elimination of All Discrimination
against women etc (ante) are two such examples. It is my considered view that ratification of
such documents by a nation state without reservations is a clear testimony of the willingness by
that State to be bound by the provisions of such a document. Since there is that willingness, if
an issue comes before this court which would not be covered by local legislation but would be
covered by such international document, I would take judicial notice of that Treaty or Convention
in my resolution of the dispute.”

Thus, despite the Court’s avoidance of international law in its determination of the Longwe case,
the opinion emphasized the role and importance of such international obligations, including
CEDAW. In deciding an issue not covered by domestic legislation, a court could take judicial
notice of international treaties and conventions, when they had been ratified without reservation
by a state, indicating its willingness to be bound by their provisions.

Article 11 of the Constitution gives to everyone who is resident in Zambia, whether a citizen or
not, a right to be protected by the law. Therefore a person who felt that his or her rights had
been infringed was entitled to seek an appropriate order before the courts.
The provisions of the Constitution were intended to apply to everybody, public and private,
unless the context dictated otherwise.

The petitioner was discriminated against because she was a female who was not accompanied
by a male. On the other hand, a male who was not accompanied by a female was able to move
around freely and enter the bar. This was very naked discrimination against females on the
basis of their sex by the hotel.

Article 23 of the Constitution allows derogations from its provisions in respect of acts authorized
by an act of Parliament or principles of law or delegated legislation. The discriminatory rule in
question was not such an Act of Parliament, statutory instrument or a rule of law. Therefore
none of the permitted derogations applied and the discrimination in question did not fall under
Article 23. The hotel’s rule breached article 21 concerning freedom of assembly and
association, and article 22 concerning freedom of movement. The rule denied women the
freedom to go wherever and to associate with whomever they wished. The complaints of
customers did not call for the management to put in place a rule which contravened the Bill of
Rights without permission from legislation to do so.

The ratification of international treaties and conventions by a nation state without reservations
was a clear testimony of the willingness by a state to be bound by the provisions of those
documents. Where there was such willingness, when a matter came before the court which
would not be covered by local legislation but would be covered by an international document,
judicial notice should be taken of it in reaching a decision.

A meeting of jurists in an international forum could not make resolutions which were binding in
law on their respective states, and whilst it was not wrong to take note of resolutions such as the
Bangalore Principles, they should not, as a general rule, be accorded the same status as
treaties and conventions.