This is a follow-up to a previous article on possibilities of police brutality in the upcoming election.
The police enjoy impunity everywhere. The reason is that they are the defenders of the status quo and those in power would have their status threatened and disturbed if the police did not enjoy impunity. The police protect those in power. They protect the class structure and societal hierarchies.
Though the majority of ordinary police come from lower classes, they enjoy some measure of power when they get the uniform and weaponry and all of a sudden can command the attention of the citizenry by virtue of the authority invested in them. The police also enjoy access to information and they navigate by virtue of this information, who in the establishments has what wealth and power, who has what, who is corrupt, which judge convicts or acquits, which minister goes out wth whom etc. That is why Edgar Hoover, the Director of the FBI in the US could blackmail and hold to ransom just about every US president and Senator from 1921 to 1973 when he died. Access to information by virtue of his office was potent.
> The prosecution services need the police to charge individuals and get convictions. The judiciary depend on the police and prosecutors to function. The politicians need the police to maintain law and order. So police are given a zone of autonomy including licensed impunity in order for the society to function and maintain the status quo.
There are many attempts to set up systems to control police impunity and inculcate accountability. In some countries, you have civilian bodies like Special Investigations Units (SIU), civilian oversight bodies for police accountability, civil rights divisions, human rights commissions, police services Acts, etc. Some work depending on which society. Most don’t work. Police continue to enjoy their impunity.
I have suggested that one avenue to fight police impunity is to engage in massive class action lawsuits against the police services and the ministry responsible. I cautioned that the judiciary should be above board for this strategy to work. You would also need a team of dedicated advocates to propel this strategy, lawyers who are steeped in public interest litigation and constitutional law.
I wish to amplify by suggesting that any local judicial strategy must be supplemented by external remedies. I am referring to engaging the International Criminal Court, depending on the scale of police violence, police impunity, political violence and so on. It is my thesis that Kenyan democracy came back on track because of the involvement of the ICC in that country. When Odinga lost the elections in 2013 and 2017, he did not embark on violence because of the Kenyan experience with the ICC. Of course the ICC case was not successful because of state interference with witnesses. However, in future, the opposition and civil society have to independently compile evidence by interviewing witnesses, through video taping and other methods of collecting evidence so that even if the state interferes with these witnesses, this same evidence can still go in as an exception to the hearsay rule. The law of evidence has developed tremendously in the last four decades. Canada can provide leading precedents on the use of this kind of principled exceptions to the hearsay rule where sworn out of court statements not amenable to cross-examination in court can be admitted. State interference would provide an avenue to claim the exception to the hearsay rule. This evidence would have been taken contemporaneously with the events, it would be reliable, taped and visible. The witnesses need not testify because the evidence would speak for itself. It would have been taken under oath. The witnesses can recant several years later but the evidence would still go in. It would still be fresh.
This goes the same for evidence of police violence and impunity. This evidence should be carefully gathered on a continuing basis by civil society, human rights commissions, opposition parties and independent lawyers and civilians. Democracy requires eternal vigilance.
I am aware of the problems relating to the engagement of the ICC which seems to target Africans for prosecution. This question will be the subject of a separate article. I see no problem in engaging the ICC if there is evidence of police impunity with state duplicity and complicity. The state is always implicated in police brutality.
In the modern world, citizens should not be sitting ducks for police brutality.
The UN International Covenant on Civil and Political Rights and its Optional Protocol also provides for reporting of human rights violations committed by police, political parties, governments and security agencies to the UN Human Rights Council. Zambia is a signatory to the Covenant and its Protocol. The condition precedent is that local remedies would have been exhausted. Police impunity is a measure indicative of the exhaustion of local remedies. Whenever local remedies like individual litigation or class action law suits do not work and the state is unable or unwilling to reign in police impunity, external remedies have to be invoked. Many developing democracies are dependent on foreign aid and censure from the ICC or The UN Human Rights Council imposes a measure of deterrence on these regimes. Human dignity is too important to be left to the whims of local police and political forces in this our globalized world. Think outside the box. The maintenance of the rule of law and the enjoyment of our constitutional rights is no play in the park.
Dr Munyonzwe Hamalengwa teaches law and is the author of Getting Way With Impunity: international Criminal Law and the Prosecution of Apartheid Criminals.