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SHADOW REPORT ON ZAMBIA’S INITIAL STATE REPORT TO THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
submitted by the
CENTRE FOR HUMAN RIGHTS, UNIVERSITY OF PRETORIA
MAY 2007
BACKGROUND
This is a shadow report on the initial report submitted by the government of Zambia, in fulfilment of its obligations under article 62 of the African Charter on Human and Peoples’ Rights (Charter).
(a) Late submission of report
Zambia ratified the Charter in 1987. This makes its report 17 years late. The state party did not give any reason for the late submission or any problems that it may have encountered in not honouring its obligations. We call upon the Commission to note the state party’s laissez-faire attitude towards its obligations under the Charter, and to establish the reasons for the late submission.
(b) International obligations
Zambia is yet to become a state party to the following AU treaties:
1. The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, 1998 (Court Protocol)
2. The African Charter on the Rights and Welfare of the Child (1990)
We call upon the Commission to urge the government to ratify the above treaties, and to make a declaration under article 34(6) of the Court Protocol recognising the right of individuals to approach the Court directly.
(c) Lack of domestication of African Charter
As a ‘dualist’ state, Zambia is required to enact legislation to give full effect to the African Charter. In line with the Commission’s jurisprudence, the lack of domestication constitutes a violation of article 1 of the African Charter.[1] The Commission should recommend that Zambia fully domesticated the African Charter – in particular by enacting as justiciable guarantees the socio-economic rights that are included in the African Charter.
1. Right to life
Article 4 of the Charter guarantees the right to life. There are presently 220 prisoners on death row, one of whom is a woman, Joyce Kasongo. She was sentenced to death by the Ndola High Court and is held in isolated confinement in Mukobeko Maximum Prison in Kabwe. In another case, Mabvuto Jere, aged 27, was sentenced to death for stealing a bicycle. The death sentence is mandatory in Zambia for armed robbery and he had threatened to assault the owner of the bicycle. On 23 February 2007, the government stated that it intends to retain the death penalty.[2] We urge government to abolish the death penalty in toto, or, at the very least, to limit the imposition of the death penalty to only the most serious crimes, in line with the Commission’s ‘Resolution urging the States to Envisage a Moratorium on the Death Penalty’ (1999).
2. Torture and degrading treatment
Article 5 of the African Charter, in addition to the Zambian Constitution, prohibits slavery and forced labour. Furthermore, the state party has ratified the Convention Against Torture and Inhuman, Degrading Treatment or Punishment (CAT) 1984. Despite the above, article 5 of the Charter is grievously violated in Zambia. Torture and excessive use of force continue to be used by the police. Below is a summary of notable infringements of article 5:
· In May 2003, police in Lusaka tortured for three days, Webster Mfula, whom they had arrested on suspicion of aggravated robbery. Interrogators reportedly stretched Mfula's legs atop a metal bar, crushed his feet, and subsequently denied him medical treatment; two of Mfula's toes were subsequently amputated because of his injuries.[3]
· In March 2004, police officers in Munali allegedly tied one Aliyele Sakala to a grille for three days and beat him until he fainted. His offence was failing to repay a debt. He reportedly suffered long-term paralysis.[4]
· In September 2005, Kennedy Zulu died in police custody in Lusaka after he was arrested in connection with a theft in his workplace. A post mortem established that death was a consequence of injuries sustained during a beating with a blunt object.[5]
· In June 2005 Catherine Mubiana was beaten by the police in Livingston for refusing to reveal the whereabouts of her brother who was a suspect in a crime. To date there has never been any disciplinary action taken against the police officials.[6]
· On February 3, police in Lusaka shot and killed three men who attempted to rob a shopkeeper; police stated that the men fired on them first. On 19 March 2005, police shot and killed Joseph Phiri as he ran from officers seeking to question him in connection with a theft.[7]
· In December 2005 the Police Inspector General was quoted in the media as saying that the police had a ‘shoot-to-kill’ policy.[8]
· On 1 March 2007, Jennifer Sakala was allegedly raped and killed in the Chinda police post. She had gone to the police to complain about physical abuse from her husband, but strangely ended up in a cell. The police claimed she committed suicide. Local NGOs and the victim’s family refuted this claim on the ground that it is impossible to commit suicide in the cell.[9]
We are concerned with the use of torture by law enforcement agencies and we recommend that workshops be held to educate them about human rights issues. Further, we call on the state to conduct inquiries into cases of torture and take actions against those who are responsible. The state should abide by its obligations in accordance with the African Charter and the UN Convention on torture. The question of torture was raised at the examination of the Zambian state report on implementation of the International Covenant on Civil and Political Rights and we urge the state to follow up the issues raised by the Human Rights Committee.
3. Liberty and freedom of movement
Article 13 of the Zambian constitution provides for the right to liberty and the conditions under which it may be limited. Like most governments in Africa, the state party routinely infringes the right to personal liberty of its citizens. On 24 July 2005, opposition leader Michael Sata was labelled a terrorist, arrested and charged with sedition and espionage for supporting striking mine workers.[10] The case is still pending.
In May 2005, the Legal Resources Foundation, a Zambian NGO, filed a petition for bail on behalf of John Chishimba Mutale, who had been held in custody without trial since he was arrested and charged with murder in 1994. On 8 June 2005, the Kasama High Court granted Mutale bail on the condition that he report to the police twice a month and appear in court as required.[11]
We call upon government to abolish the Public Order Act which violates the provisions of the Charter on freedom of movement and assembly.
4. Freedom of expression
The media face harassment by the Zambian government. In June 2005, Fred M’membe, editor of independent newspaper, The Post, was questioned by police about a series of editorials critical of the president. In November, he was arrested for allegedly defaming the president in another editorial in the newspaper. He was released on bail after a few hours in custody.[12] The case was dismissed in February 2006 for lack of evidence.
Security agencies crack down on public demonstrations and broadcast media. On 25 July 2006, police shot five mine workers protesting against inadequate wages at a Chinese-owned mine in Zambia's Copper belt province.[13] On 11 March 2006, Matongo Maumbi and Jyde Hamoonga, two journalists working for the Catholic-owned radio station, Chikuni, were arrested and charged under Section 67 of the Penal code with ‘publication of false news with intent to cause fear and alarm to the public.’ The radio station had broadcast a message by relatives of a young boy who had been murdered for suspected ritual purposes, calling upon the community to meet and discuss an ‘appropriate response’ to the murder.[14]
Government has ordered the police to stop issuing permits to political parties intending to hold public rallies. Government stated that this is due to attacks directed at the President and his wife by opposition parties. Government also claims its action is meant to forestall a threat to national peace and security.[15] We urge the Zambian government to lift this ban because it is a violation of the African Charter and the Zambian Constitution.[16]
Furthermore, government determines access to broadcast media, in which it has 90% control. The print media government controls include The Times of Zambia, The Zambia Daily Mail, The Sunday Mail, The Sunday Times of Zambia and The Financial Mail. State-run radio and television services dominate Zambia's broadcasting scene. Private radio stations offer little political coverage and journalists who give critical opinions of government do so at the risk of recrimination from government.
The Zambia National Broadcasting Corporation Amendment Act of 2002 was intended to transform the state-owned ZNBC into a public broadcaster, with an independent board of directors. The IBA Act provides for the establishment of an independent regulatory authority to govern all forms of broadcasting under the guidance of a transparently recruited board of directors. This included the independent media bodies to recommend members to sit on the boards of the IBA and ZNBC, respectively. The minister of information should submit the names of the recommended board members to parliament for ratification. To date, the minister of information has refused to submit the names to parliament, arguing that the names are only "recommendations," which he is free to reject.[17]
Recommendations from the Constitutional Review Commission that proposed provisions on freedom of information, as well as protection of the print media from interference and from disclosing their sources, were also rejected.[18]
To date, the ZNBC Amendment Act 2002 and the Independent Broadcasting Authority Act 2002 (IBA), have not been implemented (the matter has been before the Court since 2002)[19]. In addition to those Bills, the implementation of the Electoral Act 2006 is also pending, because of is controversial provision, which among others allow the president to decide of the date of election.[20]
The Commission should call on Zambia to implement the legislation mentioned above.
5. Equality and discrimination
Zambian legal system generally discriminates against women. A curious provision in article 23(4) of the constitution limits freedom from discrimination with respect to the following:
(a) appropriation of the general revenues of the Republic;
(b) persons who are not citizens of Zambia;
(c) adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;
(d) for the application in the case of members of a particular race or tribe of customary law peculiar to that race or tribe.
Similarly, the Criminal Procedure Code, a colonial legacy, does not recognize women as sureties in bail applications of persons charged with criminal offences. On its part, rules of evidence are generally disbelieving of female testimony and often require it to be corroborated by additional evidence. Furthermore, the country’s matrimonial laws discriminate against women in respect of maintenance orders in divorce proceedings. The worst culprit in the discrimination saga appears to be customs and traditions. Not only are widows disinherited, they sometimes also undergo humiliating ordeals such as being forced to marry their late husband’s brother.[21] The above pieces of legislation that promote inequality are unfortunate because their abolition or amendment would discourage people from widespread discrimination. The Commission’s attention is hereby drawn to them.
Zambia’s equality laws also appear to favour men over women. In several cases of spousal killings, men receive lighter sentences than women are given in similar circumstances. The case of Chrystal Denn is a good example. Chrystal, aged 26, was convicted of murdering her husband Trevor Denn. Trevor, aged 34, prior to his death regularly abused her, for which he was reported to the police eight times. On 20 June 1999, while trying to strip her naked to check if she had been having sex with another man, a fight ensured, in which Chrystal killed Trevor with a kitchen knife. During her appeal to the Supreme Court, a women’s rights group tried to compare the sentences given to men in cases of spousal killings. The Court rejected this comparison and merely reduced her sentence to 15 years.[22]
The government took noticeable measures to protect persons living with HIV/AIDS [PLWH]. However, Zambian society discriminates against women PLWH and largely undermines these measures. Zambian men often suppress women’s right to negotiate safe sex for themselves.[23]
Zambia has no specific law against discrimination against persons with physical and mental health disabilities. Persons with disabilities face considerable societal discrimination in employment and education. Public buildings, schools, and hospitals do not have facilities for persons with disabilities.[24]
Special groups
5.1 Women
Zambia has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). However, it has neither signed its Optional Protocol nor domesticated CEDAW. In January 2005, President Mwanawasa declared that new legislation would incorporate the CEDAW into Zambian law. Until date, no such legislation has been introduced. There is a marked marginalization of women in Zambia, who comprise nearly half of the country’s population. Despite their considerable population, participation of women in Zambian public life is insignificant. Since its independence in 1964, Zambia has never had a woman president, vice president, minister of defence, home or foreign affairs. A woman has headed none of the security organs like the Zambian army or police force.