THE SHOOTING OF NSAMA NSAMA AND JOSEPH KAUNDA AND COMMAND RESPONSIBILITY
By Muna Ndulo
(William Nelson Cromwell Professor of International and Comparative Law Cornell Law School, USA)
On Wednesday December 23, a crowd largely composed of UPND members gathered outside Police Headquarters to support Hakainde Hichilema who had been required to submit to interrogation at Police Headquarters concerning the purchase of a farm in Kalomo in 2004. At issue was a private purchase agreement concluded in Kalomo in 2004.
On the face of it, this issue, is probably time bared by the statutes of limitations. The complainant of the alleged crime is a private individual with no ownership claim to the property. Considering all this, it is bewildering the importance the police attached to this complaint. The legal appropriateness of the inquiry should be left for discussion to another day. During the interrogation, scores of heavily armed police officers arrived outside the police headquarters and at other nearby government buildings. They alighted from police vans in combat readiness formations and without any warning whatsoever began shooting at an undisputedly unarmed and peaceful crowd. Their bullets struck and killed Mr. Nsama (a public prosecutor) and Mr Joseph Kaunda (a UPND member) and injuring scores others.
The crowd did not breach any law by assembling as they were exercising their constitutionally guaranteed right to assemble. Articles 21 of the Zambian constitution states: “ Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is say, his right to assemble freely and associate with other persons and in particular to form or belong to any political party, trade union or other association for the protection of his interests.” It is also guaranteed by International Conventions such as the International Covenant for Civil Political and Rights and the African Charter on Human and People Rights. Zambia is party to both conventions. Additional facts are that, the previous day, the Inspector General of the Police, Kanganja, and the Minister of Home Affairs, Kapyongo, publicly warned that UPND supporters who would escort their leader to Police headquarters would be dealt with decisively by the police.
Further, without providing any shred of evidence they alleged that the UPND was planning violence. Mr Kanganja had similarly warned and additionally sent signals to all the police stations in Lusaka and asked them to mobilize for Wednesday. Pursuant to this order, the police deployed hundreds of heavily armed police officers. The weaponry displayed is associated with war zones and definitely not suitable for civilian policing. It reminds one of the infamous apartheid era police deployment of “Casper’s” in black townships and the violence they unleashed on black populations. The equipment displayed in most countries is reserved for armies and for combat zones.
Many organizations, Catholic Bishops, international and local human rights organizations, the Law Association of Zambia, civic society organizations have rightly condemned the shootings. Some have called on the President to dismiss Kapyongo and Kanganja from their posts and still others have called on the duo to take responsibility for the killings of Mr. Nsama and Mr Kaunda and resign on moral grounds. While I agree with those sentiments, I would like to argue that in fact on the set of the undisputed facts outline above, Mr Kanganja and Mr Kapyongo are guilty of murder and crimes against humanity and should be charged as such.
The argument that they are guilty of murder is based on a well- established principle of criminal liability in international criminal law known as “command responsibility”. This principle is well established worldwide and has been successfully employed in international as well as domestic trials. The doctrine posits that superiors, both civilian and military, can be held criminally liable for the criminal acts of their subordinates on the basis of their; (a) ordering of subordinates to commit crimes and (b) the failure to prevent abuses or to punish subordinates who have committed abuses.
The article will first show that the shooting of Mr. Nsama and Mr Kaunda in the circumstances they were killed were criminal acts prohibited by international norms and amount to extra judicial killings and crimes against humanity and will then discuss the law relating to command responsibility.
The International norms applicable on the use of force by the police is well established. The major instrument on this issue is the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
Paragraph 9, of the Principles states; “Law enforcement officials shall not use force against persons except in self-defense or in defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particular serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
The Principles have a specific provision dealing with policing of assemblies.
In paragraph 12 it states: “ As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with the principles embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Governments and law enforcement agencies and officials shall recognize that force and fire arms may be used only in accordance with the following principles: (a) in the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practical , shall restrict such force to the minimum extent necessary and (b) in the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in paragraph 9 above”. As we clearly see, the norms are very clear that firearms can only be used in exceptional situations.
In this case, there was no exceptional situation; the actions of the police were premediated as evidenced by statements from Mr Kapyogo and Mr Kanganja who without proof claimed prior knowledge that the crowd would be violent. A clear figment of their imagination, or a result of incompetent intelligence produced by incompetent intelligence services. I am not sure which one of those reasons is worse and should worry the country more.
Since the facts are not in dispute, the next question we should consider is what is the law in relation to criminal liability arising out of command responsibility.
No doubt, the officers who shot Mr. Nsama and Mr Kaunda are guilty of murder and crimes against humanity. Our argument is that in addition, Kapyongo and Kanganja are equally guilty of murder and crimes against humanity. Individuals who order a crime to be committed are individually culpable if the order achieves its purpose. Ordering the commission of a crime is thus a form of direct, rather than vicarious, liability. Superior responsibility attaches if the defendant had actual or constructive knowledge that his subordinates were committing abuses and he or she did not take necessary and reasonable measures to prevent these abuses or to punish the perpetrators.
In The Prosecutor v. Blaskic (Case No 95 Yugoslav Tribunal, 2004) , the court held that in terms of the requirement of mens reas, a necessary component of criminal liability, is established when “ ..a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite means rea for establishing responsibility .” The court went on to state that ordering with such awareness has to be regarded as accepting the crime. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. In this case, Kapyongo and Kanganja are well acquainted with the violent behavior of their police force turned a militia force towards opposition groups.
Here we cite the cases of Vespers Shimunzhila, Frank Mugala and Lawrence Banda among several civilians violently killed by the police without any effort to investigate the crimes and punishing the erring police officers.
The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his or her subordinates and the failure to exercise that power. A duty is placed upon the superior to exercise this power to prevent and repress the crimes committed, and a failure by him or her to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine. A superior’s failure to punish a crime of which he or she has actual knowledge is likely to be understood by his or her subordinates at least as acceptance, if not encouragement, of such conduct with the effect of increasing the risk of new crimes being committed.
Some of the earliest applications of this principle were during the Nuremberg trials. During the Nurember Trials, both military and civilian superiors, including high level members of the Japanese cabinet, were convicted by the Tokyo Tribunal solely on the basis of the activities of their subordinates. The most well-known cases include the trial of General Tomoyuki and Foreign Minister Hirota. More recent examples are the trial of President Milosovic (Yugoslav Tribunal; Bashir (Sudan) and Kayesu (Rwanda).
Clearly on the available facts both Kanganja and Kapyongo are guilty of premeditated murder by inciting the police to act in the manner they did. Additionally they knew of the previous conduct of the police. It is important that they are prosecuted, although it is clear that this will not happen under the current regime whose President, clearly going by his utterances on the death of Nsama and Kaunda, approves of the conduct of the police. He famously wondered why the crowds had exercised their freedom of assembly (come to the police headquarters) when only one individual was summoned, completely ignoring their constitutional right to assemble and associate with whomever they wanted to. There is however no reason why a future government should not prosecute the duo. The task at the moment therefore should be to preserve the evidence. If Zambia wants to cross the bridge from a police to a democratic state and establish constitutionalism and the rule of law, it is imperative that there should be no impunity for such heinous crimes.
It would not be a matter of revenge over a defeated regime, it would be a matter of justice and accountability. As Robert Jackson the lead prosecutor at Nuremberg observed during the trials: common sense of humankind demands that law shall not stop with the punishment of petty crimes by little people. It must reach men and women who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.”
To establish the rule of law, Zambia has to end impunity. Our nation cannot tolerate or afford to leave such heinous crimes unpunished, because doing so will lead to the crimes being repeated. Zambia’s survival as a democratic state rests on this not being repeated