ACADEMICIAN Sishuwa Sishuwa says asking students to pay K1,500 as a penalty for alleged damage to property is unconstitutional and it should be quashed immediately.
Dr Sishuwa, in an open letter to the Copperbelt vice- chancellor Professor Naison Ngoma, said if the school had failed to identify the culprits, that was no justification enough, under the law, to subject all students to collective punishment.
“Dear Vice-Chancellor, I write in relation to media reports that the institution that you lead, the Copperbelt University (CBU), has directed all returning students to pay K1,500 as a penalty for alleged damage to property that occurred when a number of students protested, for whatever reasons, earlier this year. Why does the university think that collective punishment is justified? Are all students accused of participating in the destruction of property?” he asked.
“While I do not in any way condone the behaviour of students who are suspected to have damaged property, I also do not support the decision to punish all the students for the behaviour of the unknown few because doing so is against the rule of law and violates Part III of the Constitution of Zambia on the protection of fundamental rights and the freedoms of the individual. Article 18 (8) of the Constitution, which deals with protection of law, stipulates that ‘No person shall be convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law’.”
He said damage to property was an offence of a criminal nature under the laws of Zambia.
“If it is your claim that some students damaged property during the protests that rocked the university a few months ago, over which they should be penalised, the law requires you and CBU to prove your assertion either through an administrative process or by a court. During this process, you will be availed an opportunity to identify the property that was damaged and the students who you think were responsible for that act of criminality,” Dr Sishuwa argued.
“If you have failed to identify the culprits, I am afraid that is no justification enough, under the law, to subject all students to collective punishment. As citizens, the students should be offered the protection of law including a trial or admission of guilt procedure set by a written law or administrative rule. If it is the latter, it must be enabled by written law and subject to the constitution.”
Dr Sishuwa argued that not all students participated in the said protests.
He said the students should therefore not be made to suffer punishment until they have admitted guilt or are proven guilty by a court or any other appropriate administrative authority.
“You may argue that as an institution, CBU administration may have the right to impose fines or surcharges on erring students. That may be true. What the institution certainly lacks, however, is the authority to override a constitutional provision for whatever reason,” he said. “One of the key principles of the rule of law is that no individual should suffer punishment unless a law provides for it and procedural safeguards are in place. In other words, law, not people, should be the authority that prescribes punishment for a distinct breach of it.”
Dr Sishuwa said administrative procedures should be authorised by law and should never contravene individual liberties offered and protected by the Constitution.
“If any penalty in form of fine or surcharge, as your institution wants to call it, should be imposed for damage to property, a written law should define it. Any administrative rule that liberally imposes penalties on everyone is invalid based on the constitutional test of legality,” said Dr Sishuwa.
“I have read remarks attributed to the Minister of Higher Education Dr Brian Mushimba promising to engage you further on the issue so that the extortionate amount can be reduced. My argument is not the amount you have imposed on all the students; it is the fact that the proposed action by CBU is unconstitutional. As a result, I implore you to quash it immediately.”