THE state will resort to unleashing police brutality as the election draws near. The public order Act will be used on a massive scale during the elections. In a democracy, citizens have legal means to fight back.
Police brutality in Zambia is a well known fact, as are police impunity and corruption. Even the far away US Department of State Country Report on Human Rights for 2015 noted these facts. This article deals with possible remedies to deal with police impunity since the Human Rights Commission and individual litigation routes are impotent. I take a longer and broad view.
First let me deal with some issues that impinge and directly influence police brutality and impunity everywhere including Zambia. Police behaviour, like judicial behaviour everywhere, reflect the attitudes and imprimatur of the state apparatus in which the police and the judiciary operate. They mirror the attitudes of those in power. When state attitudes change, police and judicial behaviour usually change albeit with a time lag at times. There is sometimes not a one-on-one correspondence. My statement and thesis are general. Let me give just two examples of the Apartheid state in South Africa and the United States. Police and judicial behaviours reflected the approval and attitudes of the status quo.
If the Zambian police behaved contrary to the mindset of the status quo, they would have long been reprimanded and held accountable. The Zambian police would not have gotten away with impunity. The Zambian police have been filmed brutalizing innocent citizens with impunity. The police have not been sent to quell violence by political cadres. The police usually stand by and observe political cadres maim, injure and beat up innocent citizens trying to exercise their constitutional rights to freedom of assembly. The status quo has not taken action even in brazen cases of police brutality and harassment because the state approves and condones this behaviour. Thou shall know them not by their words but by their deeds.
The state has the capacity to quell decisively unruly behaviour when it wants to and when it decides to exercise will-power. The evidence is there when the state sent in the army to deal with spates of xenophobia in parts of Lusaka. That is how the state acts when it disapproves of any disorderly and criminal conduct. It impartially acts to bring peace and order. Xenophobia was short-lived as a result. The state also sent a strong message that by bringing in the army to deal with the xenophobic violence, it did not trust its own police. Why should ordinary citizens? By parity of reasoning, the state was also sending a message that the state itself cannot be trusted because police behaviour reflect state behaviour. Any time political cadres are attacking innocent citizens, the state should send in the army to act decisively against the cadres and not against the victims. That is how to win support and be truly above the fray.
Now as to the remedies. Individual litigation against police brutality is always futile and costly. I propose the introduction of class action lawsuits against the police and the ministry responsible for policing. Legislation on class actions may be a condition precedent, however the constitutional court has been created to deal with constitutional matters which police brutality and state connivance present. There may be no need for legislative action authorizing class actions. There is an Ontario, Canada precedent for class actions legislation. In terms of jurisprudence on class actions against police misconduct, New York has good precedents. Legislation and jurisprudence from other jurisdictions on class actions is simply a matter of cutting and pasting and this can be done in less than four weeks of research by two legislative interns at Parliament and two clerks at the Supreme Court of Zambia or Constitutional Court.
Class actions send immediate messages to the government and police that the old ways of doing things are over. Significant damages could be ordered upon success of a class action lawsuit.
There is one more thing to be dealt with regarding class action lawsuits. Does judicial behaviour reflect the attitudes of the state? If the answer is yes, class actions lawsuits are no remedy. A cause without a remedy is an injustice. The bigger question however, is, should innocent citizens be subjected to perpetual brutality and impunity of the police with state connivance and condonation without remedies? Not in a democracy.
Police brutality during the next election is a certainty. And that police brutality will be at the behest of the ruling part directly or circumstantially. Those who will be subjected to police brutality will need to carefully record each event, the names and badge numbers of the police involved, take contemporaneous notes, photographs, videos and interviews, lodge immediate complaints to the responsible minister and the Human Rights Commission or bring class action lawsuits in the High Court. Lawsuits or constitutional motions about the inequality and discrimination in the application of the law, the constitution and the public order Act could also be brought. These steps could very well be the basis for launching a consolidated human rights complaint to the United Nations Human Rights Council or ECOSOC’s 1503 procedure or a criminal complaint to the International Criminal Court after all domestic remedies have been exhausted.
Education is key for the undertaking of these initiatives. The Law Association of Zambia trains lawyers in human rights advocacy including strategic litigation. The Zambia Institute of Advanced Legal Education (ZIALE) occasionally conducts training of law enforcement officers in the field of human rights at the international, regional and national level. There can be no excuse that any government or law enforcement agency or the judiciary, did not know about the concept of human rights or what it entails.
The days of impunity should have been over by now. Since the Second World War, heads of state, military officers, police officers, prison guards, judges and political operatives have been held accountable for human rights violations and criminal conduct. The defence of obeying “official orders” has long been abolished.
Everyone has a legal duty to disobey an illegal official order that requires anybody to violate human rights or commit an offence.
To be forewarned is to be forearmed.
Dr Munyonzwe Hamalengwa teaches law and is the compiler of the book ‘The Case Against Tribalism in Zambia’ (2016). The book is available on Amazon.com