With all the doubts and misgivings that I have about justice emanating out of the International Criminal Court (ICC) because that court seems to only target Africans and in reverse, only African dictators invoke that court against the opposition, it looks likely that that court may have a role to play in Post-election Zambia because of the violence that may accompany this important election. The perpetrators of the violence are known by name by many authorities, including the police, intelligence, army, the President, the media, the opposition and many individuals. There is photographic evidence as well.
Thus when the case or if the case gets to the ICC, there will be no problem of evidence. The Kenya case at the ICC arising out of post-election violence collapsed among other reasons because the Court failed to access evidence that was in the hands of the government. The government refused to release the requested evidence and further intimidated the witnesses and the case was derailed. That will not be the case in the case of Zambia and to the named defendants. The evidence is in so many hands and the government even if in power post election cannot claim that they did not know about the violence or the perpetrators. The government has been told repeatedly about this violence, that the violence is in the hands of the government and that only the government can control this violence as it is in their hands. The defence by government leaders and party leaders that they personally did not know about the violence or did not personally engage in political violence has been abolished in international criminal law. Willful or reckless ignorance by the President and his ministers or security apparatus is no defence now.
The police and the army can also not plead that they were following official orders in not preventing the violence or in not arresting the perpetrators. The defence of following orders has been abolished in international criminal law.
The governing party has the primary responsibility of providing peaceful elections and preventing violence from their cadres as well as those of the opposition. The government controls the army, the police, intelligence and all other official security apparatuses. Some governments have fifth column security apparatuses that secretly kill people. The government controls that too.
The days of non-accountability of sovereign states in international criminal law are over. Presidential immunity doesn’t apply. The reader should be aware of the General Pinochet of Chile, Tailor of Liberia, al Bashir of Sudan cases where these leaders faced accountability before foreign and international tribunals for acts they committed as Heads of their governments. The Ivorian and Kenyan election violence cases are also precedents where the Presidents as perpetrators of election violence under their watch were criminally charged at international tribunals.
The opposition leaders anywhere are also the subject of international criminal law and are prosecutable if there is evidence of their perpetration of violence during or out of the ambit of the election. Joseph Kony of Uganda is a case in point. His case was before the ICC and he was held accountable. The Optional Protocol to the Geneva Conventions of 1977 also provides an avenue for the opposition to be held accountable. This explains how a liberation movement like the African National Congress (ANC), fighting a justifiable war of self-determination, found itself participating in the Truth and Reconciliation Commission. The ANC had signed the Optional Protocol in order to set the stage for the future prosecution of then Apartheid Criminals. They wanted future equality before the law.
The perpetrators in Zambia who are known will not get away with murder. Zambia also has precedents where two of its presidents were stripped of immunity and prosecuted. Thus Zambia doesn’t even have to invoke international criminal law. It has its own precedents. No Zambian no matter how high or mighty they may be before elections, will not get away with murder after the election. Either they will face the force of the law domestically or they will face international criminal law at the ICC. Kenyatta and Rutto looked deflated and devoid of power when they appeared in the courtroom of the ICC. The world has changed.
Lastly, there are many serious crimes in modern law. One of the most serious crimes in the Canadian and American legal systems is an attempt to bring down an aircraft or bringing down an aircraft causing death or injury to people entombed therein. This crime now is elevated to a terrorism offence. Terrorism is an elevated criminal offence and the consequences on conviction are dire. There was once an attempt to bring down an aircraft in Zambia, an aircraft carrying the opposition members exercising their constitutional right to campaign for power in the then election. That is a serious offence. That terrorism crime is not statute barred. The President never commented on this terroristic act despite the circumstantial evidence of his knowledge through media reports. The culprits must be brought to book. The police know them. The government leaders have been told who the perpetrators are. The opposition knows them. The media knows them. Individuals know them. There probably is photographic evidence.
If these criminals are not charged and prosecuted, they must be handed over to the international criminal court for prosecution. In Canada and the US, these criminals would be called terrorists and they would be behind bars now. The rule of law will eventually be achieved in Zambia during our lifetime. Justice is not revenge. Revenge is not justice.
Dr. Munyonzwe Hamalengwa is the author of “Getting Away With Murder: International Criminal Law and the Prosecution of South African Apartheid Criminals”