This week the Human Rights Commission woke up from its slumber and made very important pronouncements on the rights to life and the freedom of assembly.
These are pronouncements this Human Rights Commission has been failing or ducking to make for a long time. We know that complaints have been made to it but it has failed to pronounce itself in all these cases.
We can actually conclude, and without malice, that the Human Rights Commission is an accomplice in these violations of our people’s freedom of assembly and indeed expression that has resulted in these deaths.
However, one can say it’s better late than never.
The Human Rights Commission makes some very important findings: – the police killed Nsama Nsama Chipyoka and Joseph Kaunda; there was violation of the right to life by agents of the state which amounts to extra-judicial killing; the police command gave orders to inter alia fire live bullets and that the orders were directly linked to the indiscriminate use of live ammunition, the discharge of tear smoke, the display of warfare tactics and the excessive use of force; former Lusaka Province Commissioner of Police, Nelson Phiri, gave orders to police officers to fire at the people that had gathered. But the Human Rights Commission stressed that in line with principle number 26 of the Basic Principles on the Use of Force and Firearms, obedience to superior orders shall be no defence if the law enforcement officer or officers knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had reasonable opportunity to refuse to follow it and that in any case responsibility rests on the superior who gave the unlawful orders; the indiscriminate use of force and live ammunition by the police was alarming; comments by some members of the Executive may have contributed to police violence on unarmed citizens and that a few days before the fatal shootings, the Minister of Home Affairs, Stephen Kampyongo, issued a statement warning that no person or groups of persons would be allowed at or near the premises of the Zambia Police Service Headquarters where the opposition leader would appear for interviews. He warned that those who would defy the order would be met with police force.
Lusaka Province Minister Bowman Lusambo specifically directed the Lusaka Commissioner of Police, Nelson Phiri, to deal with anyone who would offer solidarity to Hakainde Hichilema. During the virtue 2020 4th Quarter Provincial Development Coordinating Committee (PDCC) meeting which he was chairing on 22nd December 2020, Lusambo directed as follows: “Let me take this opportunity through you Permanent Secretary, to Lusaka Police Commissioner if he is here or if his representative is here, Mr. Nelson Phiri, that tomorrow, I don’t want any noise in Lusaka Province or Lusaka District. I have heard that there are some people who are planning to come to Lusaka, to offer solidarity to the suspect who has been called by the police. I want to urge you, and I direct you Commissioner of Police Lusaka Province that police have only called one person, they have only called one person, and we expect only one person to come alone. And if they want to come bring confusion, you know your job very well, you know your job very well”.
The Commission strongly believes that such statements from some members of the executive could have contributed to arbitrary action by the police which resulted into the shooting to death of the duo.
[That] there was blatant violation of the right to freedom of assembly; the use of excessive force by the police in the name of maintaining law and order violated the constitutionally guaranteed right to freedom of assembly and was inconsistent with the constitutional mandate of the Zambia Police Service of upholding the Bill of Rights as enshrined under Article 193 (2) (e) of the Constitution of Zambia [Amendment] Act No. 2 of 2016; there was no justification for the police to use force and firearms to disperse an assembly of people who were peaceful and unarmed.
Even if an assembly may have been considered to be illegal or a violation of the principles of law and order, it did not warrant the use of excessive force
– it has been established that there was a violation of people’s right to peaceful and free assembly. The crowd that had gathered at the Police Headquarters was largely peaceful and did not disrupt any business or obstruct traffic or breach public order. Those that had gathered were therefore within the purview of their fundamental right to freedom of assembly guaranteed under Article 21(1) of the Constitution of Zambia. To proceed to disperse the crowd in the manner the police did, therefore, amounted to a debasement of people’s democratic and constitutional right to exercise their freedom of assembly.
– the right to freely assemble and to even demonstrate is integral to democracy and human rights. Even if acts of violence do occur during these events participants retain their rights to bodily integrity and other rights such that force may not be used except in accordance with the principles of legality, necessity and proportionality.
– firearms may never be used simply to disperse an assembly
– the desire by the Executive wing of government to suppress the right to freedom of assembly for individuals holding different views, especially the opposition parties that seem to offer effective competition is the root cause of a growing pattern of extra-judicial killings and other acts of gross human rights violations and must stop
– Zambia is a constitutional multiparty democracy and pluralistic society in which various interest groups should have space to participate in the governance of the country within the provisions of the law
– as the country counts down to 2021 general elections and beyond, the Commission expects that the right to freedom of assembly and its interdependent rights of association, expression and movement will be guaranteed by the state
– former Commissioner of Police for Lusaka Province Nelson Phiri must be jointly charged with the case of murder together with the subordinate police officer or police officers who took his orders to shoot Nsama Nsama Chipyoka and Joseph Kaunda; the estates of the deceased be adequately compensated by the State
– the Zambia Police Service should desist from the apparent criminalisation of the right to freedom of assembly and movement; and should also desist from taking actions which are likely to result in the gross violation of human rights such as extra-judicial killing, arbitrary arrests and detentions and cruel, inhuman or degrading treatment or punishment of participants in assemblies whether lawful or not.
These are things many people have been saying. We hope the police and their political masters will listen and make the necessary changes. If not, their ending will be very bad.