HUMAN RIGHTS COMMITTEE CONCLUDES CONSIDERATION OF ZAMBIA'S SECOND REPORT
Press Release
HR/CT/462
HUMAN RIGHTS COMMITTEE CONCLUDES CONSIDERATION OF ZAMBIA'S SECOND REPORT
19960327 The Permanent Representative of Zambia to the United Nations, Peter L. Kasanda, announced this afternoon that two Zambian journalists who were under indefinite detention on charges of contempt of Parliament were released today by order of a high court judge. The fate of a third journalist, who was currently subject to an arrest order by Parliament, had yet to be determined.He made that announcement as the Human Rights Committee met to conclude its consideration of Zambia's second periodic report on its compliance with the International Covenant on Civil and Political Rights. Mr. Kasanda stressed that today's action demonstrated the rule of law in Zambia and that even the actions of Parliament could be examined by the judiciary.
According to documents distributed today by the delegation, the journalists in question -- Fred M'membe, Editor-in-Chief of The Post of Zambia, and Bright Mwape, Managing Editor -- were released under a writ of habeaus corpus after 24 days detention in maximum security jails. Lucy Banda Sichone of The Post, the third party cited by Parliament, had yet to appear before that body.
Addressing the position that journalists must be able to substantiate derogatory stories about public officials, the expert from Australia said that those who entered public life must have "broadness of back and thickness of skin.... It's the price of a free society, and it's worth paying". The expert from the United States said it was particularly noteworthy that the journalists had been released prior to any presentation of views on the matter by the Committee.
On the issue of discrimination against women, the expert from Mauritius said it was impermissible to enact laws or accept the validity of customary laws which restricted women's rights. The expert from Israel stressed that the law must guarantee to all persons equal protection from discrimination, whether practised by State agencies or private actors.
Statements were also made by the experts from Chile, United Kingdom, Germany, Cyprus, India, France, Ecuador and Jamaica. Mwila Chigaga, a Counsellor, also spoke as part of Zambia's delegation.
The Committee will meet again at 10 a.m. Thursday, 28 March, to resume its consideration of the initial report of Guatemala on its compliance with the Covenant.
Committee Work Programme
The Human Rights Committee met this afternoon to conclude its consideration of the second periodic report of Zambia on its compliance with the International Covenant on Civil and Political Rights. (For background, see Press Release HR/CT/460 of 26 March.)
Discussion of Right to Life; Detainees' Treatment; Fair Trial
PETER L. KASANDA (Zambia) drew attention to concerns which had been expressed about the detention of two journalists under an action by Parliament. Those journalists had today been released by the order of a high court judge. The lawyers for the journalists had taken their case to court today. That demonstrated the rule of law in Zambia. Even the actions of Parliament could be examined by the judiciary, as an independent arm of the State.
Responding to an issue which had been raised at an earlier meeting, he said that harassment of journalists and the closing down of newspapers did not happen at all under the current regime. Zambia had more independent journalists now than at any time over the past 30 years. However, those who made accusations and allegations in the press must be brought to account for their truthfulness. Journalists, therefore, sometimes appeared in court for libel and for publishing contemptuous articles.
In response to another question, he said that no civil proceedings could be taken against the President in his private capacity. One might disagree with that law. "It may be a bad law, but that's what it is." It was also true that minors could be charged with adults. However, their identity would, in certain cases, be kept confidential. Confessions made to a police officer were admissible if they were determined to have been made freely and fairly. He did not have the figures on how often the death sentence had been commuted to life imprisonment.
CECILIA MEDINDA QUIROGA, expert from Chile, said it was a matter of relief that the two journalists had been released. Was there further information on the third person? Had the parliamentary order for her arrest been dropped? If she appeared before Parliament, as had been requested, would she be arrested?
Lord JOHN MARK ALEXANDER COLVILLE, expert from United Kingdom, said he wished to make public information he had received from the delegation. Contrary to what had been stated during the morning meeting, if a defendant claimed a confession had been made under duress or as a result of favours, it was for the prosecution to prove that had not occurred.
Human Rights Committee - 3 - Press Release HR/CT/462 1489th Meeting (PM) 27 March 1996
ELIZABETH EVATT, expert from Australia, also wished to be assured that the third party in the case that had been cited would not be subject to arrest if she appeared before Parliament. Did a woman have the right to stand bail in her own recognizance? Could should she stand monetary bail in relation to another person?
Mr. KASANDA (Zambia) said the answer to both questions regarding bail was "yes". The members could not give assurances as to whether the woman in question would be subject to arrest if she appeared before Parliament. One could assume that Parliament would take into account the high court's decision. However, the entire incident might not have occurred if the journalists had appeared before Parliament when they were called. It is not possible to say what would have happened if they had appeared as called.
DAVID KRETZMER, expert from Israel, said no answer had been provided to his question about investigating complaints of violence by the police.
MWILA CHIGAGA (Zambia) said the Deputy Public Prosecutor wore two hats, as he was also the senior officer of the police force. One could lodge a complaint with him, at which point he would take the action he considered appropriate.
Rights to Privacy, Opinion, Expression, Association and Others
Mr. KASANDA (Zambia) said the rights to privacy, opinion, expression, association and assembly were all guaranteed under the Constitution. Juveniles were not referred to under their real name, he said, citing other measures aimed at protecting them. The employment of a child was forbidden and the Constitution also prohibited traffic in children, cruelty and exploitation, but the economic situation of the country resulted in the employment of minors.
Illegal immigrants were not documented and as such did not pay taxes, although they had some benefits from the Government, he said. There was a problem of criminality in Zambia related to illegal immigrants, especially in precious stones. Mining was a major sector in the country's economy. The right to privacy was protected by the Constitution; however, there were certain limitations. In Zambia, 99 per cent of the population were Christians, although Zambia was a secular State. There was intense debate going on the role of the media, which was interlinked with the protection of freedom of expression. He stressed that there were no media restrictions.
The Constitution contained criteria and procedures for the registration of political parties and trade unions, he said. To date, Zambia had well over 130 political parties and there were no restrictions on the formation of political parties.
Human Rights Committee - 4 - Press Release HR/CT/462 1489th Meeting (PM) 27 March 1996
ECKART KLEIN, expert from Germany, recalled the discussion this morning on the case of the persecuted journalists. Even if they now had been released, the issue of article 19 was still valid, because the Parliament might ask the Deputy Police Prosecutor for further action. According to the Covenant, the limitations to the right to freedom of expression must be provided by law. When dealing with that case the Zambian authorities should have a careful look into whether the law was being used in conformity with the Covenant.
Ms. MEDINA QUIROGA, expert from Chile, reiterated the written question related to freedom of religion and the rights of minors.
Ms. EVATT, expert from Australia, sought further information on freedom of assembly. She cited a case related to giving police permits to the holding of assemblies, which had apparently being denied, although that was a violation of Zambians' constitutional rights. She asked for further information on the matter. She also asked about freedom of expression and censorship, and whether there were provisions concerning that in the Constitution.
Mr. KRETZMER, expert from Israel, also asked for further information on freedom of expression. He was concerned about reports of charges being pressed against journalists based on criminal defamation of the President and of the press attache to the President. "Shouldn't that be left to criminal proceedings?", he asked.
Mr. KASANDA (Zambia) said the case under discussion was not a question of harassing the journalists, but of asking them to substantiate the stories which they published in their newspaper. They had taken the President and his family as the first target of their articles, and they were very well financed. For instance, when the President was on official travel, they questioned why he took his personal assistant instead of his wife. "The President is just as human as any other person. So why not ask them to substantiate what they say?"
He said the new Public Order Act required that the police be given two weeks notice of a planned meeting. The police had no discretion as to whether or not to allow such a meeting. There were now some 30 political parties in Zambia and some regulatory process was needed in order to avoid confusion. The Act was not intended to prevent the work of a political party, but was purely regulatory.
He said freedom of expression was only limited in instances regarding: defence; public order, morality and health; or protecting the rights of other persons. In the case regarding the singing of the national anthem, a "Watchtower" follower instructed his children not to sing the anthem as their
Human Rights Committee - 5 - Press Release HR/CT/462 1489th Meeting (PM) 27 March 1996
religion permitted no allegiance to earthly institutions. However, at the same time, they accepted the privileges received from the Government.
One could not have one's cake and eat it too, he said. There were cases in which religion impeded the development, health and education of children, who were prevented by their parents from attending school. "They may have a right not to sing the national anthem, but it does not look very very nice.... This is not how we live in society. Society is reciprocity."
ANDREAS V. MAVROMMATIS, expert from Cyprus, addressed the question of criticisms of the private life of the head of State or deputy head of State. There might be more effective ways of dealing with that problem, such as establishment of a press council to inquire into such reports. For example, if the reports were found to be unjustified, the press council could censure the journalists or ask them to apologize.
Mr. KASANDA (Zambia) said there was such a body in Zambia, but its actions had not lived up to expectations. There was also supposed to be self- censorship by journalists in Zambia, but in actual practice it did not happen.
Concluding Observations
PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, welcomed human rights progress in several areas in Zambia. Among his concerns, he cited conflict between the Covenant and the Constitution. If there was such conflict, how were the provisions of the Covenant to be enforced? he asked. Incompatibility between the two documents existed, among other areas, in those related to states of emergency and discrimination against women. Also a matter of serious concern was the case of the journalists persecuted. He expressed satisfaction over their release by a legal authority. He also expressed concern over the conditions in prisons.
Mrs. MEDINA QUIROGA, expert from Chile, expressed sympathy with Zambia as a third world country, noting the task of the Committee to point out human rights problems. Obligations under the Covenant were not only for governments, but to all State agencies. She expressed concern over situations involving discrimination, including against non-citizens. She stressed that State power might not lend itself to support any law that was discriminatory. Measures being taken to promote women in the area of education were positive. She also expressed concern over the situation in prisons, matters related to minors and matters related to the education of pregnant girls. The procedure of contempt of Parliament was incompatible with the Covenant, she added.
Ms. EVATT, expert from Australia, thanked the delegation for the open dialogue. In regard to women, it was clear they were underrepresented in many spheres of life in Zambia and were subject to de facto and de jure
Human Rights Committee - 6 - Press Release HR/CT/462 1489th Meeting (PM) 27 March 1996
discrimination. The introduction of general anti-discrimination measures was necessary. She also expressed concern over prison conditions, adding that there was a need to decrease the number of prisoners by expediting procedures. Those in public life must be open to criticism of all sorts. That was the price of a free society and that was worth paying for. She expressed the hope the courts would guide the legal system to follow the proper line in complying with the Covenant. There was no freedom of religion if the price to pay for that was with the right to education.
THOMAS BUERGENTHAL, expert from United States, congratulated Zambia for now living under a multi-party system. It was regrettable that the delegation had not included legal officials. The ratification of the Covenant required bringing domestic law in full conformity with its provisions. Nothing justified not complying with that. He endorsed comments made by experts on the incompatibilities between the Covenant and Zambian law. A matter of concern was discrimination against women, which made them second class citizens.
He said other matters of concern were the derogation of certain rights under states of emergency, and prison conditions, particularly because they affected many people still awaiting trial. He expressed great satisfaction with the release of the two journalists. Freedom of the press played a vital role in protecting democracy. Public officials should have less, rather than more, protection in a democracy when it came to what the press had to say.
CHRISTINE CHANET, expert from France, expressed admiration over the active involvement of the delegation in the dialogue with the Committee. It was encouraging to see that multi-party democracy was in place in Zambia. The Committee could not ignore the signs of a certain fragility in the efforts towards democracy. The story of the journalists showed some of those problems. The area of freedom of the press was one where improvements were needed. Measures that allowed for discrimination against women were also a violation of the Covenant. She expressed the hope that the report, which included information on the ill-treatment of prisoners, including torture, would soon be made public.
RAJSOOMER LALLAH, expert from Mauritius, said there was a danger if reports to the Human Rights Committee were handled simply at the ambassadorial level of a country's mission. It might then be seen as merely an international public relations exercise. The obligations under the Covenant were real and were of importance to the State party. All those who exercised power in Zambia must be made aware of the obligations it had assumed under the Covenant. It was disappointing that the provisions of the Covenant did not appear to be known in the National Assembly.
Human Rights Committee - 7 - Press Release HR/CT/462 1489th Meeting (PM) 27 March 1996
It was good that Zambia's Constitution had been declared as the country's supreme law. However, if derogations from Covenant rights were made under the Constitution itself, the courts were powerless to correct it. It was undesirable and impermissible to enact laws or accept the validity of customary laws that restricted the rights of women. He had been told a woman could not even offer bail and asked the delegation to check on that again. If it was true, it represented a terrible diminution of a woman's dignity.
He suggested that there should be a proper press code that gave effect to the duties and responsibilities of the press, which the Covenant recognized. Then there could be a press council, which included journalists, so they could put order in their own house and observe the law. It was important that the Covenant become better known within Zambia. Television could be used to that end, as could the public and private press. Everything said by the Human Rights Committee should be brought to the attention to those who exercised power in Zambia.
Mr. KRETZMER, expert from Israel, cited the problem of de facto discrimination on the basis of sex. Such discrimination placed the Government under an obligation to take even stronger action to correct it. The law must prohibit any discrimination and guarantee to all persons equal protection from discrimination -- whether by State agencies or private actors. Article 23 of Zambia's Constitution addressed only State agencies and not private actors. That represented a lacuna in Zambia's legal system and an area of non- compliance with the Covenant.
On freedom of speech, the law, as it was applied in Zambia, was not consistent with the Covenant, he said. While the Covenant allowed certain restrictions on the freedom of expression, they must be those deemed necessary under the Covenant. Use of the criminal process to try to make journalists accountable for what they wrote about public figures was inconsistent with the Covenant. The fear in such cases was the chilling effect they were likely to have on journalists' readiness to fulfil their task, which was primarily to criticize government and those in government.
On the question of prison conditions, he said States were not forced to keep people in prisons. In deciding who and how many people could be kept in prison, the Government was bound to take heed of the obligations they assumed under the Covenant to respect the dignity of the human person.
Mr. KLEIN, expert from Germany, congratulated Zambia for the change it had made under its new Constitution. However, there were still inconsistencies between domestic legal norms and the requirements of the Covenant. A permanent governmental body should be established to exercise a thorough check of domestic law against the provisions of the Covenant. That should include, in particular, the laws relevant to freedom of the press. The
Human Rights Committee - 8 - Press Release HR/CT/462 1489th Meeting (PM) 27 March 1996
press must be a free institution in a democratic society. Any harassment of journalists was an immediate attack on freedom of the press itself.
It was heartening that there were no obstacles to prevent Zambia from acceding to the conventions against genocide and torture, he said. The Covenant only enshrined the idea represented by those treaties. Accession to those instruments would strengthen Zambia's commitment to those ideas. The answer provided regarding corporal punishment seemed to indicate that judges had wide discretion in that area. The Government might rethink that approach to the matter.
Lord JOHN MARK ALEXANDER COLVILLE, expert from the United Kingdom, praised the performance of the delegation. He expressed satisfaction over the outcome of the case of the journalists. He hoped the Government would pursue the idea of community services for prisoners, adding that would lead to major improvements in the implementation of the Covenant in Zambia.
JULIO PRADO VALLEJO, expert from Ecuador, endorsed comments made by previous speakers. It had been an important dialogue and the delegation had made a great personal effort to reply to the Committee's concerns. He expressed satisfaction with the establishment of a multi-party system in Zambia. Certain measures were needed for the Covenant to be effectively implemented, including efforts towards putting a final stop to acts of torture. Also, effective guarantees for freedom of expression were required. In a democracy, freedom of expression was indispensable. The Parliament was not a court and could not order detention without trial. Matters concerning discrimination against women also required special attention. None the less, the dialogue had been positive, he concluded.
LAUREL FRANCIS, expert from Jamaica, thanked the delegation for its frankness. He welcomed the good news concerning the release of the journalists, adding that that incident should not have been brought about by a democratic and reformist legislature. It was encouraging to hear about the measures being taken to tackle the problem of overcrowding in prisons. He expressed the hope the authorities in Zambia would accept the Committee's comments.
Mr. KASANDA (Zambia) thanked the Committee for the compliments over the delegation's handling of its concerns. It was good to know that, although it had not been assisted by legal experts from home, the dialogue had been considered satisfactory. Very serious note had been taken of the comments made and those concerns would be conveyed to his Government. The criticisms had been constructive and that was very much welcomed, he stressed. Zambia was party to the Optional Protocol and would do its utmost to bring its laws in conformity with the Covenant. He expressed the hope the next report would be more satisfactory to the Committee and the material included would be of a higher quality. * *** *