HUMAN RIGHTS COMMITTEE CONTINUES CONSIDERING ZAMBIA'S SECOND REPORT
Press Release
HR/CT/461
HUMAN RIGHTS COMMITTEE CONTINUES CONSIDERING ZAMBIA'S SECOND REPORT
19960327 Expert members of the Human Rights Committee this morning questioned the sentencing of two Zambian journalists to indefinite detention on charges of contempt of Parliament, as it continued its consideration of Zambia's second periodic report on its compliance with the International Covenant on Civil and Political Rights. The action, taken by the Speaker of Parliament without judicial participation, represented a serious violation of the Covenant and of Zambia's own laws, Committee members said. The expert from India considered it "monstrous" that the journalists could be held indefinitely until an apology was offered, while the expert from the United States said the Government should take the only acceptable course and order their immediate release. The expert from Mauritius said that while Zambian law was fully in accord with the Covenant, those laws were not being effectively implemented. On the same theme, the expert from France noted that, under Zambian law, when an offence was identified by the Speaker, he was to bring it to the public prosector. How could the Parliament act as both judge and jury in this case? Other issues addressed this morning included circumstances in which trials in serious sexual cases were held in camera, adherence to international instruments on genocide and torture, procedures to address allegations of police misconduct, overcrowding in Zambian prisons, application of the death penalty, and the need for the Government to send qualified legal experts to present Zambia's periodic reports to the Committee. Also participating in the discussion were the experts from Israel, Chile, United Kingdom, Germany, Ecuador, Australia, Jamaica, Chile, Egypt and Hungary. Responding to some of the questions raised, representatives of Zambia said that criminal and administrative actions could be taken against police who committed offences. Difficulties in Zambia's prisons were largely attributable to economic problems, and the Government had instituted a general amnesty programme to deal with overcrowding. Although judges leaned against the death penalty, public opinion very much supported it as a deterrent. The Committee will meet again at 3 p.m today to hear the delegation's response regarding the two journalists and to conclude its consideration of Zambia's second periodic report.Human Rights Committee - 2 - Press Release HR/CT/461 1488th Meeting (AM) 27 March 1996
Committee Work Programme
The Human Rights Committee met this morning to continue consideration of Zambia's second periodic report on its compliance with the International Covenant on Civil and Political Rights (document CCPR/C/63/Add.3). (For background information on the report, see Press Release HR/CT/460, of 26 March.) Discrimination, Equality of Sexes, State of Emergency
PETER L. KASANDA (Zambia) drew attention to a transcript, made available to Committee experts this morning, of the announcement by the Speaker of the Parliament on the ruling against three journalists for breach of Parliament privilege and gross contempt of the dignity of the House.
Zambia had a very progressive legislation concerning abortions, he said. A Zambian minister had been one of the chief negotiators at the Cairo International Conference on Population and Development. Zambia approved legal abortions on medical grounds, if the life of the mother was in danger. There had been a lot of improvement in maternity and pre-natal care. Illegal abortions had been reduced. It was difficult to talk in terms of figures because an illegal abortion would very likely not be reported and would be considered a miscarriage.
DAVID KRETZMER, expert from Israel, said he had not received an answer to questions relating to discrimination in the private field, employment and housing.
Mr. KASANDA (Zambia) said there was no legislation promoting discrimination in the private sector. People could find employment freely.
Mr. KRETZMER, expert from Israel, said the Covenant obliged governments to prevent such discrimination by private parties, businesses and so on. Was there legislation which forbade discrimination in employment -- on the grounds of sex and on other grounds as well? The same applied to housing. Were there laws preventing such discrimination by employers or property owners?
Mr. KASANDA (Zambia) said Zambian law prohibited such discrimination.
PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, said he had not received an answer to his question as to whether the human rights commission of Zambia had been set up under a statute or an administrative order. What was its mandate? Also, Zambia had signed an instrument of the International Labour Organisation (ILO) which prohibited discrimination in employment. Had anything further been done on that matter?
Mr. KASANDA (Zambia) said the human rights commission was established under the Enquiries Act. Its mandate was to look into alleged cases of human
Human Rights Committee - 3 - Press Release HR/CT/461 1488th Meeting (AM) 27 March 1996
rights abuses, including torture. Once it issued its report, its mandate expired and it ceased to exist. The ILO Convention was still at the ratification stage.
CECILIA MEDINA QUIROGA, expert from Chile, said one of her questions about the state of emergency had not been answered. There were two articles in the Constitution relating to a state of emergency -- articles 30 and 31. In article 31, she had found no information on the consequences of declaring a state of emergency.
MWILA CHIGAGA (Zambia) said article 31 had to be seen in the context of article 30, which dealt explicitly with the state of emergency. Article 31 said that when there was a threat, the President could declare a state of emergency. However, under article 31, the Parliament must support that declaration with seven days if it was to continue.
Ms. MEDINA QUIROGA, expert from Chile, said she understood the approval process but wished to know about the consequences. Was the President permitted to derogate from certain rights? -- that was the question.
Ms. CHIGAGA (Zambia) said the President could only derogate from human rights under a state of emergency. After seven days, however, he would have to go to Parliament to seek support for his declaration, which would then come into effect under the terms of article 30.
Right to Life, Liberty, Security of Person and Fair Trial
Mr. KASANDA (Zambia) read out provisions of the Constitution concerning the right to life. Zambia had capital punishment for murder and treason; however, it was not mandatory for all cases. The death penalty was not frequently imposed nor carried out. There had been only one execution since 1988. There was a debate taking place on whether Zambia should continue to have the death penalty or not. There were provisions in the Constitution governing the use of weapons by the police and security forces. The use of weapons was intended to guarantee the security of the persons and an abuse of that would lead to prosecution. That was also done as a deterrent to other police officers. The Munyama Commission on Human Rights had completed work last year and submitted its report to the Government, which had not yet been issued as a white paper.
The courts had the power to consider inadmissible a confession obtained under duress, he said. Under the Prisons Act, a judge or magistrate could visit a prisoner at any time with the purpose of examining their well-being. That was a problem now due to the economic situation of the country which was affecting the prisons, where there was overcrowding. A person's family was required to be informed as soon as practicable, or reasonable, after his/her detention. Under Zambian law all, trials were held in open courts with a few
Human Rights Committee - 4 - Press Release HR/CT/461 1488th Meeting (AM) 27 March 1996
exceptions, including treason, rape and juveniles. Any member of the public could attend a trial.
Lord JOHN MARK ALEXANDER COLVILLE, expert from the United Kingdom, said he was extremely pleased to see the law had been amended in cases of murder, so that a death sentence was no longer mandatory. It would appear that life imprisonment was not mandatory either. What was the reasoning behind that change in the law? It was a "most desirable development" that judges should have a full range of remedies in cases of murder, to be determined in accordance with the facts of the case.
He understood that confessions obtained under duress or promises should, if so decided by a judge, be declared inadmissible. Which side bore the burden of proof as to whether the confession was or was not extracted by improper means? What were the circumstances in which trials in serious sexual cases were held in camera. While the position of a victim might need to be protected, it was a bad principle that such serious criminal cases should be tried in private. It was in the community's interest to see that the court was capable of dealing with such offences.
ECKART KLEIN, expert from Germany, asked whether Zambia had acceded to the Genocide Convention. If not, why had it not done so? It was unclear from the report whether or not there were laws in Zambia prohibiting genocide; some clarification was needed. The report indicated that Zambia was not a signatory to the Convention against Torture; what was the reason for that hesitation?
What were the consequences of a violation of the article 9 rights by police officers. [Article 9 of the Covenant asserts the right of every persons to liberty and security of person and that no one shall be subjected to arbitrary arrest or detention.] Under what circumstances could corporal punishment be inflicted, under the law, and to whom?
CHRISTINE CHANET, expert from France, said that, with respect to Zambia's next periodic report, it was indispensable that jurists come from the capital to take part in the Committee's dialogue. The Committee was a juridical body and required the participation of experts from the central administration. On the death penalty, she asked how many death sentences had been handed down and how many had been carried out. What inquiries had been carried out regarding any substance behind allegations of torture? How was the decision taken on contempt of Parliament compatible with Zambia's Constitution and laws? What law or laws governed arrests in such cases? How could Parliament act as both judge and jury? The laws governing the privileges of Parliament stated that when an offence was identified by the Speaker, he was to bring it to the public prosector. It appeared that, in the case in question, he had not done so.
Human Rights Committee - 5 - Press Release HR/CT/461 1488th Meeting (AM) 27 March 1996
RAJSOOMER LALLAH, expert from Mauritius, said Zambia had implemented article 9 rights to liberty and security of the person fully in its Constitution. Unfortunately, the manner in which the two journalists in the contempt of Parliament action were treated violated both the Covenant and Zambia's own laws. The Constitution limited the manner in which liberty might be restricted in Zambia to execution of a court order. It made no mention of an order of Parliament, and it did not give Parliament the power to send people to prison.
In a contempt of Parliament action, Zambian law provided for liability only upon conviction by a court of law, he said. In execution of the law, the two journalists would have been guaranteed the right to a fair trial. Under the Assembly's own rules, the offence only provided for reprimand -- not sending someone to prison. Under Zambian law, the two journalists could appeal to the Supreme Court. Zambian law was fully in accord with the Covenant, but its laws were not being effectively implemented. The case in question represented a gross violation of the Covenant. If people could not comment on what Parliament did, how could freedom of expression be ensured?
JULIO PRADO VALLEJO, expert from Ecuador, said there were serious complaints of torture which appeared to be widespread in Zambia. He mentioned a secret report that contained information on that serious situation. Something had to be done to tackle the problems of the prisons, even if that country was facing a difficult economic situation. The Government had to set up a programme to overcome the present situation in prisons.
Also, those who expressed opinions against the Government were considered as being seditious and liable to prosecution, he said. This year, several newspapers had been shut down because of their criticism of the Government. The Post had been closed down and its journalists persecuted. How could a Parliament issue arrest warrants? he asked. Was the Parliament duly authorized to do that? he further asked, adding that such a provision would make for a totally untouchable Parliament. Laws were in keeping with the provisions of the Covenant, but were not being complied with.
THOMAS BUERGENTHAL, expert from the United States, sought information on a case in which soldiers of a military training facility had attacked a village because allegedly one soldier had been killed by the villagers. Stating that no action had been taken against those soldiers, he asked what the Government was planning to do against them. There were cases of prisoners awaiting trial for more than 10 years, he said, and asked what was being done about that.
There were reliable reports that police stations in Zambia had become debt-collection centres, where debtors were held until they paid up and the policemen received a big share of the amount paid, he said. What measures were being taken to deal with that abuse? he asked. He expressed the hope
Human Rights Committee - 6 - Press Release HR/CT/461 1488th Meeting (AM) 27 March 1996
that the delegation would inform the Government that the detention of the journalists violated several provisions of the Covenant and was a matter of serious concern. Information should be provided on the cases of the persecuted journalists during the current session.
ELIZABETH EVATT, expert from Australia, noting that the delegation had stated that the economic circumstances made it difficult to improve prisons' conditions, asked whether that information could be put forward as a justification for the spread of several diseases and malnutrition in prisons. She stressed the need to take immediate action concerning the journalists, adding that a woman was also involved. That woman was in hiding with a three- month-old baby she was breast-feeding. She asked the delegation to convey immediately to the Government the Committee's concerns about those cases.
LAUREL FRANCIS, expert from Jamaica, said emergency action was required to tackle the problem of overcrowding in prisons. There was a need for the prison authorities to do something about that. Sharing the experience of his country, he referred to the possible use of the prison population as a work force. If involved in activities such as fish farming and poultry, the prisoners could become self-sufficient, as they would eat what they produced.
Referring to an unpublished report which addressed the situation in the prisons, he said that the longer it took to make the report public, the longer it would take to correct the situation described in the report. He warned against the broad powers being given to the Parliament in the case of the journalists. It was about time that the legal authorities got involved in "clearing up this mess".
Mrs. MEDINA QUIROGA, expert from Chile, asked about an article of the Constitution which conflicted with the Covenant concerning the public and private capacities of a public official. Also, was it true that a minor could be subjected to the same trial as an adult? she asked. She supported arguments previously made concerning contempt of Parliament, and also asked for the views of the Committee to be conveyed to the Government as soon as possible.
OMRAN EL-SHAFEI, expert from Egypt, concerning the imprisonment of the two journalists and the possible detention of a third one who was in hiding, said a case like that was unprecedented in the history of the Committee. Where was article 14? he asked, adding that apparently the Zambian authorities had not read that article. He also asked the delegation to convey to the Government the Committee's concerns, noting that it would appreciate receiving information on the matter during the current session.
Mr. BHAGWATI, expert from India, joined other Committee members in expressing serious concern over the case of the journalists. He strongly supported the analysis of the case made by the expert from Mauritius. It was "monstrous" that a person should be held in indefinite detention until he/she
Human Rights Committee - 7 - Press Release HR/CT/461 1488th Meeting (AM) 27 March 1996
apologized. He would venture to say that no other Commonwealth Parliament had passed a similar provision. That situation was unprecedented and an insult to the principles of democracy. He also asked whether Zambia still insisted on monetary bail, as that would make bail impossible to the poor.
Mr. KRETZMER, expert from Israel, associated himself with previous comments asking for action to be taken immediately on the cases of the journalists. What were the procedures for laying complaints against the police, and to investigate those complaints, in the case of police misconduct?
TAMAS BAN, expert from Hungary, said that according to information he had, there were people waiting for commutation pardon for 30 years. What was the government policy for keeping people for so long on death row? he asked. He also asked whether there was something being done to deal with that problem.
Response by Zambia
Ms. CHIGAGA (Zambia) addressed the reasoning behind giving the judge discretion as to sentencing in murder cases. She cited a case in which a woman was found guilty of the premeditated murder of her husband. However, the judge found it difficult to sentence her to death in view of her husband's brutality, and recommended leniency. At the time, he was obliged to sentence her to death.
Mr. KASANDA (Zambia) said the burden of proof that a confession extracted under duress or through inducements was on the accused. The person must describe the circumstances which had prevailed. It was then up to the trial judge to make a determination. As to why sexual cases might not be held in open court, he said that in certain cases -- such as those involving young children -- it was felt that an open trial would be traumatic.
He said Zambia opposed genocide but had not acceded to the Convention on Genocide. Neither had it acceded to the Convention against Torture. However, Zambia's Constitution prohibited torture, inhumane or degrading punishment, or other like treatment. There was no compelling reason why Zambia had not acceded to those instruments.
Regarding action to punish police officers who committed offences, he said that when a case was established, criminal proceedings were instituted. There could also be administrative action, which might result in dismissal and loss of pension. As to corporal punishment, that was at the discretion of the trial judge, who might consider "a few strokes of the cane" as preferable to sending a juvenile to prison.
While not all problems of overcrowding and food shortages in Zambian prisons could be attributed to economic problems, such factors had a
Human Rights Committee - 8 - Press Release HR/CT/461 1488th Meeting (AM) 27 March 1996
significant impact. For example, there were instances which occurred "once in a while" in which food suppliers were not paid in time and so had stopped supplying food. The Government had instituted measures to reduce the prison population, including a general amnesty every year. Last year, some 1,000 prisoners were released under that programme, and 800 more were being considered for release. The Government had also formed a national committee on penal reform.
He was not in a position at the moment to say how many death sentences had been imposed or carried out, but that information could be provided in due course. Judges leaned against the death penalty, but public opinion very much supported it, because it was considered to be a real deterrent. The law derived from the wishes of the people, rather than being imposed from the outside.
On publishing the finding of the Government's human rights commission, he said the Government had everything to lose if it sought to hide those findings. However, there was also a question of investigating the evidence, rather than merely promulgating allegations. There was a need to be able to bring actions against those concerned. During this election year, the Government had everything to gain by showing what the previous Government had done to its own people.
He said an anti-corruption commission existed to oversee allegations of official misconduct, including charges of police taking kick-backs. The penalties for such crimes, if proven, were "very severe indeed". As for diseases in prison, he agreed that economic conditions could not be given as an explanation. Wherever epidemics occurred, the Government had an obligation to treat them quickly.
* *** *