I wish to welcome you to this Press Briefing on the need to use a Human Rights-Based Approach to managing, and participating in, the electoral process. The Human Rights Based Approach deals with the root causes, rather than effects or symptoms of a problem.
As you may be aware, on Thursday 11th July 2019, political party candidates will be filling in their nomination papers for the 30th July 2019 Parliamentary by-elections in Katuba Constituency in Central Province.
The Commission, therefore, wishes to share its deep reflections, on some of the challenges affecting various stakeholders during the electoral process, particularly during election campaigns.
However, before I delve into that matter, I wish to explain to the nation, through you, the mandate and role of the Human Rights Commission in national elections, whether by-elections or periodic elections.
As you are aware, the Human Rights Commission (HRC/Commission) is a National Human Rights Institution (NHRI) established under Article 230 (1) of the Constitution of Zambia [Amendment] Act No. 2 of 2016 with a broad mandate of promoting and protecting human rights in Zambia. In addition to the Constitutional mandate, as an NHRI, the Commission is guided by the United Nations Paris Principles establishing and guiding the functioning of NHRIs.
Further the Commission is guided by various human rights instruments in its work. I should state that so far, the Government of the Republic of Zambia is compliant with the UN standards and principles relating to the establishment and functioning of NHRIs as demonstrated by the continued granting of an “A” status to the Commission by the Global Alliance for National Human Rights Institutions (GANHRIs), an international association of all NHRIs, which among other functions, facilitates the accreditation of NHRIs to the UN in accordance with the Paris Principles.
The “A” status grants special recognition to the work of the Commission by the UN through the Office of the High Commission for Human Rights (OHCHR).
The “A” status also grants the Commission the right to participate in, and to SPEAK in UN human rights meetings.
Over the last six months, the Commission has continued to execute on its mandate of protection and promotion of human rights, in line with its Constitutional and Statutory mandate, specifically investigations of complaints having received over 400 complaints, work on rights of suspects and business and human rights.
With this necessary background, I wish to state that elections are a fundamental human right and freedom. The Universal Declaration of Human Rights (UDHR), the mother of all major UN human rights instruments, clearly states under Article 21(3) that:
“The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.
Further, the International Covenant on Civil and Political Rights (ICCPR) under Article 25 stipulates that:
“Every citizen shall have the right and the opportunity, without any of the distinctions…. and without unreasonable restrictions (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”.
Ladies and Gentlemen,
It is in view of the clear human rights jurisdiction in election matters that the Commission has been, and will continue observing and monitoring the electoral process with a view of ascertaining the promotion and protection of human rights of the electorate, the candidates and all the participating stakeholders.
In the recent past, the Commission had an opportunity to observe three by-elections in Sesheke Constituency in Western Province, Bahati Constituency in Luapula Province and in Roan Constituency on the Copperbelt Province. These three by-elections have given the Commission the experience relating to challenges in managing elections in an environment that respects the rights and freedoms of everyone and also in a peaceful and non-violent manner.
Therefore, the Commission wishes to highlight some of the observations from the previous by-elections with a view of ensuring that unfortunate incidences are not repeated during the forthcoming 30th July 2019 Parliamentary by-election in Katuba Constituency in Central Province.
Inadequate respect for and protection of human rights and freedoms has been the major source of conflict, violence and in some cases individuals have suffered serious injuries while accusations of murder during the previous by-elections campaigns have occurred.
The right to equal participation and non-discrimination is fundamental in a competitive process such as an election. Therefore, failure to accord all competing parties and their candidates equal protection of the law and freedom to peacefully participate always prompts those who may feel suppressed to claim their rights.
The demand for rights and freedoms such as equal protection of the law and freedom of assembly has sometimes manifested itself in conflict, breakdown of law and order and violence. Thus, the breakdown of law and order and violence are usually off-shoots or effects of an underlying problem, which is failure to promote and protect the rights and freedoms of everyone without any form of discrimination.
To this effect, the Commission is calling for a human rights-based approach to managing the Katuba Parliamentary by-election and many other future elections. This, among others, entails equal and inclusive participation and rejection of violence and intimidation by everyone. All stakeholders must strive towards creating an inclusive democratic environment that will enhance the participation of all political players in Katuba by-election. This demands that there should be respect for the rule of law, human rights and constitutionalism.
In this respect, the Commission is specifically, but not exclusively, encouraging the following:
i. The rights of all participating parties to freedom of assembly and expression must particularly be promoted and protected as a foundation for non-violence and conflict prevention during the forthcoming Katuba Parliamentary by-elections.
Allow me to give an example of the gruesome effects of suppressing the rights and freedoms of individuals and groups of individuals. As a result of the arbitrary decisions by the police of intercepting the UPND convoy in Maondo and Mulimambango areas during the Sesheke Parliamentary by-elections, PF, UPND and police clashed violently resulting in loss or damage to property and injuries being sustained by all parties involved.
Suspected PF cadres took advantage of the Police teargassing of the UPND leaders and supporters in Maondo and beat up UPND supporters in the area. Suspected UPND cadres also attacked the PF campaign centre in Maondo and set ablaze some shops of suspected PF supporters. At least 12 victims were treated at Yeta Mission Hospital as a result of the violence in Maondo.
The above mentioned situation aptly depicts of the following advice of one unnamed international police expert that “There is no bigger recipe for violence than police disrupting a large peaceful meeting”.
To this end, the Commission calls upon the Zambia Police Service to always administer the Public Order Act in a non-discriminatory manner and afford equal opportunities to all participating political parties to canvass for votes without unreasonable and unjustifiable restrictions. It is regrettable that there is systemic suppression of the right to freedom of assembly, particularly for individuals and groupings with dissenting or divergent views from those of the ruling party.
The Commission wishes to remind the nation that the suppression of the right to freedom of assembly was one of the human rights concerns raised to the Zambian Government during the Universal Periodic Review (UPR) under the auspices of the UN Human Rights Council in Geneva in December 2017. The Government of the Republic of Zambia voluntarily accepted to review the Public Order Act and also to stop its discriminatory implementation by the police.
Regrettably, some individuals and groups continue being denied the exercise of this constitutional and human right, in abrogation of the Government’s national and international obligations and commitment to respecting the right to freedom of assembly.
ii. Another right that is violated during political and public gatherings is the right to protection against torture and other forms of cruel, inhuman or degrading treatment or punishment. This violation was vivid with the police brutality of PF cadres in Sesheke, during which at least 12 victims were treated for various injuries at Yeta Mission Hospital.
The international human rights law is instructive that the Right to Protection against Torture and Other forms of Cruel, Inhuman or Degrading Treatment or Punishment is absolute, and under no circumstances, even under a state of political instability, should it be violated.
The Commission, therefore, calls upon the police to refrain from excessive application of the law but to instead adhere to the fundamental principles of proportionality and legality during their execution of their constitutional mandate and obligation of maintaining law and order, which is necessary for the enjoyment of human rights and freedoms.
iii. There should be equal protection of the law and respect for the Rule of Law for all participating parties and stakeholders. Selective or discriminatory application of the law is a violation of human rights.
The UN has in the past, through its then UN Secretary General, Mr. Kofi Annan, guided member state countries on their obligation to respect the Rule of Law.
In providing guidance, the Rule of Law was described as:
“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”
No one is, and should be seen to be, above the law. The Commission is therefore calling upon all stakeholders participating in the Katuba Parliamentary by-election to respect the Constitution; the Electoral Process Act and Code of Conduct; the Public Order Act and other laws and regulations governing the electoral process by strictly adhering to their provisions and/or implementing them in a fair and non-discriminatory manner.
Failure to respect the laws and regulations and attempts to administer the laws and regulations to either facilitate or frustrate selected individuals or groups of individuals is a violation of human rights and a recipe for political conflict.
The Commission is rendering this advice based on the experience from the past by-elections. During the Roan Constituency Parliamentary by-elections, the Commission received complaints that the police were either failing, neglecting, unwilling or refusing to act on complaints reported by the opposition political party members or leaders against individuals associated with the ruling party. For instance, four National Democratic Party (NDC) members were brutally assaulted in Roan Constituency on 11th April 2019. On 6th April 2019, NDC complained about an alleged shoot out at the resident of its leader, Dr. Chishimba Kambwili.
In both instances, the expectations of the complainants, which were consistent with the due process of the law, was to see police action by either summoning the suspects for investigations or even arresting and/or charging them if there were reasonable grounds linking them to the reported crimes.
To the contrary, an NDC member who was accused of causing malicious damage to one of the vehicles to the same group that was reported to have shot at the residence of Dr. Kambwili was swiftly arrested and detained for almost a week until after the by-election voting day.
Clearly, in addition to selective application of the law, some individuals are illegally punished through extra-judicial means such as over-detention.
iv. Arbitrary Arrests and Over-detention: The Commission has over the years observed that Arbitrary Arrests and Over-detention or detention without being taken to the courts of law within the legally prescribed period was being used as some form of extra-judicial humiliation and punishment of individuals.
This is a violation of human rights and must be stopped. Those arrested must be charged and taken to court within 24 hours in accordance with Section 33 of the Criminal Procedure Code Act Chapter 87 of the Laws of Zambia or as is reasonably practicable in line with Article 13 of the Constitution of Zambia which protects the right to liberty.
v. Breaching of Law and Order: Maintaining Law and Order is a fundamental human rights responsibility and duty. The interrelationship between maintenance of law and order and enjoyment of human rights and freedoms on one side cannot be over-emphasised. It is practically impossible to enjoy human rights and freedoms in an environment where there is breakdown of law and order.
The Commission is therefore urging all political party leaders, to counsel and direct their members and supporters to refrain from all forms acts of violence and any form of lawlessness during the Katuba Constituency Parliamentary by-election.
Political Party leaders must specifically educate their supporters that under the Public Order Act:
“Any person who in any public place or at any public meeting uses threatening, abusive or insulting words with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence”.
It is equally an offence to carry offensive weapons and to attempt to, or to actually usurp the powers of the police.
Therefore, the militaritalisation of party cadres must stop because an election is not a war zone, but an exercise of the constitutional right to vote for candidates of one’s choice.
Further, political parties should always refrain from causing social strife and disharmony in areas where elections are being held. It should be appreciated that after elections, the residents will continue living together and depending on each other for livelihoods while those who cause divisions and fighting will have left the area, in some cases until the next election.
This is a fact, local communities where elections are taking place should bear in mind and refuse to be pitted against each other for political expedience.
And in this regard we urge all political parties to stop or desist from exporting cadres to places where elections are scheduled to take place for purposes of either intimidating the electorate and opponents or for unlawful and illegal activities such as violence.
vi. Intimidation and abuse of Authority: Humiliation, punishment, intimidation of political players and the electorate, as well as abuse of authority undermine the free participation of citizens during elections. Therefore, the Commission recommends the following:
Stop Cruelty against, and Intimidation of, Political Players and Electorate by the Zambia Police Service:
The Police should not fire teargas in enclosed buildings such as houses and other dwelling places during their duty of maintaining law and order. Such action is usually disproportionate and unnecessary and is likely to result in injuries and/or loss of life. This was the case in Mulilambango area in Sesheke Constituency where at least 67 people were treated at Yeta Mission Hospital in one day as a result of police action when they were preventing UPND supporters from attending a cancelled rally.
Firing teargas in enclosed buildings is dangerous, cruel and inhuman. It mostly affects innocent and vulnerable individuals such as children, women, older persons and persons with disabilities. Equally, the police should only use gunfire where it is absolutely necessary to counter the threat at hand. The Police should refrain from unnecessary demonstration of warfare techniques when dealing with peaceful and unarmed individuals.
The use of heavy presence of armed police officers in military motor vehicles particularly on polling day should be discouraged as it has the potential to discourage voters from turning up to cast their vote thereby violating their Constitutional right to vote.
Stop Victimisation of Police Officers:
There is need to insulate Police Officers who implement the Public Order Act in a professional and non-discriminatory manner from all forms of victimisation such as political victimisation reflected in either demotions, unjust transfers or retiring them under the veil of national interest.
During various engagements between the Commission and Police Officers countrywide over the recent years, Officers have complained of political interference and victimization in the professional administration of the Public Order Act.
There is need for various stakeholders to defend police officers who may be politically victimized for refusing to carry out unlawful orders, and in some cases, from outside the police command.
On the other hand, the Government has a primary obligation to respect and protect the rights and freedoms of everyone without any form of discrimination, including on account of one’s political affiliation or opinion.
Stop Electoral Corruption Bribery and other Malpractices
The Commission wishes to urge all participating political parties to desist from engaging in acts of electoral corruption, bribery and other forms of malpractices during the forthcoming Katuba Parliamentary by-elections. Electoral malpractices undermine the free will of the electorate to vote for candidates of their own choice. Such vices also undermine the legitimacy of leaders who are elected through flawed elections. Above all, disputed elections are a source of political conflict and instability, which results into violations of a wide range of human rights.
Therefore, the Commission is urging everyone to report any cases of corruption and bribery to the Anti-Corruption Commission (ACC). We will also be ready to receive such complaints for referral to the ACC and other relevant bodies in the electoral process.
Ladies and Gentlemen,
Having expressed our observations of underlying causes of conflict, violence and violation of human rights, we wish to state our observations on some of the best practices that should be enhanced to improve the administration of elections in Zambia.
Submission of Campaign Schedules:
The submission of campaign schedules by political parties to police has in the past contributed to promotion and protection of the right to freedom of assembly. This is important because it helps to prevent clashes and facilitates dialogue to reach a consensus based on written campaign plans.
Campaign schedules enable the police to adequately plan and prepare for effective policing of the scheduled public gatherings or campaigns in accordance with the provisions of the Public Order Act.
Further, campaign programmes provide guidance to other stakeholders such as the Commission who would like to monitor the adherence to the agreed campaign schedules by all the participating parties and the police and also assess whether there is arbitrariness or not in the administration of the Public Order Act.
To this effect, all stakeholders notifying the police for public meetings, processions or demonstration should keep records of their notices and police responses as documentary evidence of how the right to freedom of assembly is being promoted and protected on Zambia.
On the other hand, the Commission wishes to urge those responsible for organizing campaign rallies for office holders exempted from the provisions of the Public Order Act such as the Republican President and the Vice–Republican President to refrain from the tendency of organizing their public meetings at short notice, on the same dates, time and venues where the opposition have scheduled to hold their meetings from.
The Commission would like to urge organisers of public meetings for the mentioned offices to include such meetings within the campaign schedules for the ruling party because they are after all campaigning for the ruling party.
It is unfair to suddenly cancel scheduled opposition rallies, which in most cases could have been organized at a huge cost, either because the Republican President or Vice Republican President has arrived in the area or will be addressing a meeting at the same proposed venue and date.
The Police must also adhere to the approved campaign schedules of political parties and endeavour to protect their public meetings or rallies, and where it becomes necessary to change the schedule, provide political parties with reasonable alternative days, venues and time to avoid disadvantaging them against their competitors, a situation that ignites violence.
Further, the exemptions of the Republican President and the Republican Vice-President from notifying the police as per Section 5 (4) and (5) of the Public Order Act should not be understood to mean that simultaneous meetings in the same constituency cannot be held.
Submission of Campaign Schedules is an important mechanism of promoting accountability and transparency in the administration of the Public Order Act and must continue because it minimizes political tension and contributes to holding of free, fair and credible elections.
Therefore, the Commission is expecting that political parties will submit their campaign schedules to the police as they kick start their campaigns in Katuba Constituency on 11th July 2019 after the nomination process.
Electoral Commission of Zambia (ECZ) Conflict Management Committees:
The ECZ’s Conflict Management Committee is an extremely important mechanism for facilitating dialogue, negotiations and resolving any misunderstanding in the management of the electoral process.
The Commission has in the past observed that in some areas where such committees were active, some political disagreements were resolved through dialogue.
The Commission maintains that this avenue of resolving conflicts should be enhanced because it is an important integral part of holding democratic and peaceful elections. The Commission is therefore urging aggrieved political parties during the forthcoming Katuba Parliamentary by-election to lodge their complaints before the Conflict Management Committee in line with Clause 13 (1) of the Electoral Code of Conduct which provides that:
“Conflict management committees established by the Commission pursuant to section one hundred and eight may resolve electoral disputes.”
Promotion and Protection of the Right to Vote
The Right to Vote in an election constitutes the practical and legitimate means of granting and transferring mandate to the elected by the electorate in a representative democracy such as Zambia. It is, therefore, necessary to the functioning of a genuine representative democracy.
The Right to Vote is enshrined under Articles 21 of the UDHR and 25 of the ICCPR as stated in the introduction of this statement. Further, Articles 45 and 46 of the Constitution of Zambia provides for the Right to Vote.
The observation of the Commission is that the Electoral Commission of Zambia (ECZ) generally organises and conducts elections in a manner that facilitates and enables the majority of eligible and willing voters to express their free will by voting for candidates of their own choice.
For instance, Polling Stations and Booths are always clearly marked; adequate election materials are distributed to all the Polling Stations, mostly on time; most Polling Stations open and close in accordance with the stipulated times; the voting is done through a transparent procedure that guarantees secret voting and the collation and announcement of results are done in accordance with the law.
However, the Commission is aware that some stakeholders have raised concerns over the perceived inability of the ECZ to enforce the Electoral Code of Conduct. The Commission agrees with the ECZ’s preferred position of resolving electoral differences and challenges through democratic means of dialogue, negotiation and consensus.
Drastic electoral sanctions such as disqualifying erring parties and candidates should be a last resort action because of the serious potential such action may have to escalate conflict, and depriving candidates, the electorate and political parties of their fundamental liberties.
The primary focus should be for all stakeholders in the electoral process to help the Police in identifying and isolating criminal elements and punish them in accordance with the law instead of taking broad-based measures that have potential to deprive the electorate of their constitutional right to vote for candidates of their own choice.
Having said this, the Commission is urging all participating political parties, their candidates and supporters to strictly adhere to the electoral laws during the Katuba Parliamentary by-elections in their own best interest as well as the residents they would be promising to serve if they won the elections.
In Conclusion, I wish to state that the Commission will continue collaborating with, and engaging all key stakeholders in the electoral process with a view of ensuring that the rights of the electorate and candidates as well as participating parties are promoted and protected.
Holding of credible, free and fair elections is the foundation of continued political stability and social harmony for inclusive socio-economic development. It must therefore be everyone’s concern.
However, unless there is an enhanced inclusive democratic system that appreciates the fact that Zambia is a multi-party democracy and dissenting views and free participation of all political parties in matters of governance are constitutional rights, the challenges in the electoral process will continue.
Therefore, to redress root causes of the symptoms of political conflicts and violence, all stakeholders must respect the Rule of Law, Human Rights and Constitutionalism.
I thank you for coming.