In the last five years, Zambia has witnessed escalating levels of political violence. The violence is typically perpetrated against those expressing opposite views to those of the Patriotic Front party (PF) and its government.
Persons perceived to be opponents of the government are brutally assaulted, and their meetings disrupted. Cadres use violence against customers to demand levies from markets and bus stops. Shamefully, the police are at times the targets of these vigilantes. Horrendous acts of violence in the form of gassing innocent citizens have taken place without any serious investigation by the police. The police with impunity have killed opposition party members. Those perpetrating the violence publicly state their intentions to harm their opponents without attracting any sanction from the police whatsoever. All this is happening while an incompetent and highly compromised police command looks on. Indeed, the deterioration of the police as an institution affects all aspects of Zambian life.
When recently Sishuwa Sishuwa , Archbishop Teleshpore Mpundu and the recent pastoral letter by the Catholics aptly attributed this state of affairs to partisanship on the part of the police and the collapse of the police as an institution for enforcing law and order, they were labelled unpatriotic and guilty of treason by the ever busy PF surrogates who on a daily basis seem to have nothing better to do than hurl insults at whoever they perceive to be a political opponent. What clearer evidence of the collapse and partisanship of the police do you need than a police force which instead of ensuring that citizens are enjoying their rights deploys its resources on pursuing a private allegation of fraud against an opposition leader at the behest of a delusional new ‘lawyer’ in town who defines fraud in a manner that even a first-year law student would recognise as fundamentally flawed.
The truth is the Zambia police service is dysfunctional and has lost credibility with the public. It is perceived as weaponised by the government in their efforts to harass and intimidate opponents. As a caveat, I must say that the majority of police men and women in the Zambia Police Service are good people, unfortunately, they are let down by poor and mediocre leadership.
The government reaction to the violence when not blaming the victims for the violence has been to disclaim any responsibility for the actions being perpetrated by vigilantes and party cadres. Surprisingly, some civil society organisations and church leaders are afraid to call out the police and the government for the violence and instead call for restraints on both sides. It is not explained how a victim can exercise restraint against armed and brutal assailants. Unless what is meant is that, the victims should forego their rights to freedom of expression and assembly and there will be peace. This is what Reverend Jesse Jackson called the ‘peace of the grave’. That unfortunately would be to let tyranny triumph.
Paradoxically, senior government officials go round proclaiming Zambia as the most peaceful country on the African continent. The absurdity of the claim is only exceeded by ineptitude of those that proclaim it. What kind of peace is this where citizens are afraid to exercise their political rights? This is not a peaceful country and as Archbishop Mpundu has eloquently reminded us, this is a dictatorship per exemplar where everybody occupying a position of influence in the country is appointed by one individual without a process that ensures competence and independence of the appointee. Forget about the ratification by parliament. Without a process, approval by parliament is a mirage whose only purpose is to legitimise evil doing.
The police and security services are mandated to enforce the law in the country. They should play an important role in this regard since it is their responsibility to serve and protect people and communities and, in particular to prevent and detect crime, to maintain public order and to protect and assist people in need. When fulfilling their obligations in that respect, they are duty bound to respect international human rights law and the international legal framework applicable to law enforcement.
Commanding officers have to ensure that institutional ethics are formulated, promulgated and constantly upheld, thus clearly establishing full respect for the law as the fundamental standard to be met at all times. Only lawful policing is good policing, bending or violating laws, rules or regulations will in the end affect not only the judicial process but also the law enforcement institutions as a whole, including its acceptance and support among the people. To foster a culture of respect for the rule of law requires a set of measures to be taken at all levels – policies and procedures, education, training and equipment-as well as an effective system of sanctions to enforce respect for the rules and regulations.
Zambians must remember that tyranny, once allowed to establish itself deprives the people of the capacity to resist because of the pervasive atmosphere of terror, fear, tension and insecurity created in them by repeated arrests, police harassment, unlawful detentions, and unwarranted prosecutions. It cows them, and induces in them a mood of cautiousness so as not to risk one’s life or liberty, an attitude of resignation, submissiveness and even timidity.
As one of Africa’s leading constitutional scholars Benjamin Nwabueze has observed; ‘’absolute power corrupts a people and its cherished values and virtues. The wilder of power is of course the first to be corrupted. Those around the wilder of power are also corrupted into fawning sycophants.” Indeed, as he further observes one of the worst tragedies of absolute power is the large number of people it turns into sycophants and praise singers and the longer, a dictatorship endures, so do more and more people take to sycophancy as a way of feathering their own nest.
The Zambian Constitution in article 11 and International Human Rights law is very clear on whom to place the responsibility for the violence going on in Zambia. The Zambian Constitution, the International Covenant on Civil and Political Rights, and the African Charter of Peoples and Human Rights all guarantee the right to participate in one’s country’s governance, free speech, liberty and freedom of movement.
In article 2(1) of the Covenant of the Civil and Political Rights Covenant state parties to the covenant undertake to: “respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present covenant, without distinction of any kind, such as race, colour, sex language, religion, political or other opinion, national or social origin, property, birth or other status.”
In article 2(2) the state parties undertake to: ‘’take the necessary steps in accordance with its constitutional process and with the provisions of the present covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present covenant.” In article 2(3) each state party undertakes to (a) ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding the fact that the violation has been committed by persons acting in an official capacity. Article 2 (3) further states that states undertake to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy and to ensure that the competent authorities shall enforce such remedies when granted.
The African Charter on People and Human Rights has similar wording in article 1 and it states that: ‘’member states of the Organisation of African Unity parties to the present Charter shall recognise the rights, duties and freedoms enshrined in this charter and shall undertake to adopt legislative or other measures to give effect to them.” This means that states have to ensure that law enforcement is carried out in a way that respects the states’ obligations under its constitution and international human rights instruments. The states’ obligations encompass the duty to respect, protect, ensure, not to discriminate and promote human rights.
The question that arises is, what obligations do these conventions impose on Zambia as a member state? International human rights tribunals unanimously and uniformly state that the language of article 2 in the covenant and article 1 in the African Charter impose positive obligations on states. The positive obligations imposed on the states are to ensure that all individuals that are within its jurisdiction enjoy the rights guaranteed in the Conventions.
The leading case on this issue is the Velasquez vs. Honduras (1988). In this case, the Inter American Court of Human Rights held that three obligations arise. The first obligation assumed by the state under article 2 is to respect the rights and freedoms recognised by the Convention. The second obligation implies a duty of the state to organise the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of judicially ensuring the free and full enjoyment of human rights.
As a consequence of this obligation, states must prevent, investigate and punish any violation of the rights recognised by the conventions and moreover, if possible, attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.
According to article 1(1), any exercise of public power that violates the rights recognised by the convention is illegal. Whenever a state organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the convention. This conclusion is independent of whether the organ or official has contravened provisions of internal law or overstepped the limits of his or her authority.
Under international law, a state is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law. Thus, in principle, any violation of rights recognised by the convention carried out by an act of public authority or by persons who use their position of authority is imputable to the state.
Importantly, the international human rights courts have recognised an illegal act, which violates human rights and which is initially not directly imputable to a state (for example, because it is the act of a private person, e.g. vigilante or party cadre or because the person responsible has not been identified, can lead to international responsibility of the state, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the convention. What is decisive is whether a violation of the rights recognised by the Convention has occurred with the support or the acquiescence of the government, or whether the state has allowed the act to take place without taking measures to prevent it or to punish those responsible. When the state allows private persons or groups to act freely and with impunity as is happening in Zambia to the detriment of the rights recognised by the convention, those acts are attributable to the state.
The state has a legal duty to take reasonable steps to prevent human rights violations and to use every means at its disposal to carry out serious investigations of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation. The state is obligated to investigate every situation involving a violation of the rights protected by the convention.
The Zambian government cannot with any credibility claim that it is conducting serious investigations when perpetrators are captured on video and hold press conferences prior to enacting their violate acts. Where the acts of private persons that violate the convention are not seriously investigated, the government, thereby making the state responsible on the international plane, aids those parties in a sense. Whenever the state apparatus acts in such a way that the violation goes unpunished and its victims’ full enjoyment of such rights is not restored as soon as possible, the state has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction
The African Commission in the case: The Social and Economic Rights Action Center and the Center for Economic and Social rights vs Nigeria (2001) adopted the principles articulated above. In this communication, a violation of a wide range of rights guaranteed under the African Charter for Human and People’s Rights were alleged to have been violated by Nigeria in the Delta region. The Commission ruled that: ‘’internationally accepted ideas of the various obligations engendered by human rights indicate that all rights both civil and political and social generate at least four levels of duties for a state that undertakes to a rights regime, namely the duty to respect, protect, promote, and fulfil these rights.”
The commission added that at a secondary level, the state is obliged to protect right-holders against other subjects by legislation and provision of effective remedies. This obligation requires the state to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realise their rights and freedoms. The state must ensure that individuals are able to exercise their rights and freedoms.
The European Court of Human Rights has similarly held. In A vs UK (1998). Where it considered the obligations on a state under article 1 of the European Convention on Human Rights, the Court stated that, “the obligation on the High Contracting State under article 1 is to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. This requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman degrading treatment or punishment, including ill treatment administered by private individuals.”
To sum up, it is quite clear that the Zambian Constitution in article 11 and international law impose the following obligations on the Zambian government: (a) the Zambian government has an obligation to ensure that people under its jurisdiction are not subjected to political and other forms of violence; (b) Zambia should take effective and credible measures to ensure that such things do not happen; and (c) that when they do happen it should punish those that perpetrate these violations of human rights and must provide reparation to victims. It means that Zambia should organise the state apparatus and in general all the structures through which public power is exercised, in such a way, that they are capable of ensuring that political violence does not occur and that violent cadres do not operate freely.
It is appropriate now to quote from Alan Moore, who stated that; “People should not be afraid of their governments. Governments should be afraid of their people.” It is sad that in today’s Zambia the people are afraid of their government and its violent surrogates who are inflicting violence and anguish on people who are merely exercising their constitutionally guaranteed rights of freedom of speech and assembly.
As Thomas Jefferson stated in a letter to Green Mumford (18 June 1799) in reference to the freedom of speech; “To preserve the freedom of the human mind then and freedom of the press every spirit should be ready to devote itself to martyrdom, for as long as we may think as we will, and speak as we think, the condition of man will proceed in improvement.”
In terms of the future, we advocate that those that bear the gravest responsibility for the violations (the leadership in the police and government) must be held accountable if not now in the future whenever the future permits if respect for human rights is going to underpin our democracy now and in the future. As Jackson observed at the Nuremberg trials: “Commonsense demands that we should not stop with the punishment of little people. It must also reach men and women who possess themselves of great power and make deliberate and concerted use of it to set in motion evil which destroys lives of people”.
In the advent of a change of government, we must make those under whose watch violence was perpetrated and people were denied their rights accountable. That is the only way Zambia will cross the bridge from dictatorship to a new society that respects human rights and dignity of all people regardless of their tribe, colour, gender, and political persuasion. The country cannot tolerate these wrongs, because it cannot survive their being repeated.
The author is a William Nelson Cromwell professor of International and Comparative Law and director of the Berger International Studies Programme, Cornell Law School./EC