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ZAMBIA PRE-ELECTION HUMAN RIGHTS SITUATION IN ZAMBIA AUGUST 2021
ZAMBIA PRE-ELECTION HUMAN RIGHTS SITUATION IN ZAMBIA AUGUST 2021 American Bar Association Rule of Law Initiative American Bar Association Center for Human Rights
ABOUT ABA RULE OF LAW INITIATIVE
ABA CENTER FOR HUMAN RIGHTS
The ABA Rule of Law Initiative promotes justice, economic opportunity and human dignity through the
rule of law. Enhancing access to justice and promoting human rights and fundamental freedoms for
all, are among the principal aims of ROLI.
The ABA Center for Human Rights promotes and protects human rights worldwide by defending human
rights advocates facing retaliation, rallying thought leaders on crucial issues, and holding abusive
governments accountable under the law.
ACKNOWLEDGMENTS
This report was prepared by staff of the American Bar Association, Rule of Law Initiative and the
Center for Human Rights. It reflects their views and has not been approved by the House of Delegates
or the Board of Governors of the American Bar Association and therefore should not be construed as
representing the policy of the American Bar Association as a whole. Further, nothing in this report
should be considered as legal advice in a specific case.
All photos are modified and credited accordingly under Creative Commons (CC0 1.0)
Copyright © 2021 by the American Bar Association
All rights reserved.
1050 Connecticut Ave. N.W., Suite 450, Washington, D.C. 20036
ivTABLE OF CONTENTS
EXECUTIVE SUMMARY............................................................................................................................1
I. INTRODUCTION.....................................................................................................................................3
II. WHY THE BACKLASH AGAINST DEMOCRACY IN ZAMBIA:
CONTEXT AND LEGAL FRAMEWORK............................................................................................3
III. INTERNATIONAL AND REGIONAL HUMAN RIGHTS OBLIGATIONS...................................6
IV. OVERVIEW OF THE HUMAN RIGHTS SITUATION....................................................................7
A. THE RIGHT TO LIFE AND POLICE EXTRAJUDICIAL KILLINGS.......................................................7
B. FREEDOM OF EXPRESSION/PRESS FREEDOM.............................................................................9
C. RIGHT TO PERSONAL LIBERTY........................................................................................................12
D. FREEDOM OF ASSOCIATION AND ASSEMBLY ............................................................................13
E. ACCESS TO JUSTICE, REMEDY AND IMPUNITY.......................................................................15
F. IMPACT OF COVID-19 MEASURES ON THE ENJOYMENT OF
CIVIL AND POLITICAL RIGHTS......................................................................................................16
V. IMPACT OF NEW LEGISLATION ON HUMAN RIGHTS............................................................18
A. FREEDOM THE CYBER SECURITY AND CYBER CRIMES ACT 2021...............................................18
B. THE ELECTORAL PROCESS (AMENDMENT) ACT 2021..............................................................21
VI. IMPLICATIONS OF THE HUMAN RIGHTS SITUATION ON THE
AUGUST 2021 GENERAL ELECTION............................................................................................22
VII. CONCLUSION AND RECOMMENDATIONS...........................................................................24
vEXECUTIVE
SUMMARY
Zambia is scheduled to hold general elections • Lack of access to justice and effective
on 12 August 2021. The election will be held remedies for citizens whose rights have
in the context of democratic backsliding and been violated and court cases around the
autocratisation, which has been characterized elections;
by shrinking political space and an escalation • Misuse of COVID-19 interventions by the
of human rights violations. In addition, the government to target the opposition and
election is taking place in the midst of a global civil society organisations as well as restrict
COVID-19 pandemic, whose impact on Zambia has the exercise by these groups of rights such
been exacerbated by an ailing economy further as freedom of assembly and association;
burdened by a sovereign debt crisis, all of which and
have contributed to wide public discontent • The enactment of new legislation such as
against government. This report has researched the Cyber Crimes and Cyber Security Act
increased tensions between the government and the Electoral Process (Amendment) Act
and citizens, particularly those protesting the to further limit fundamental human rights.
situation, and documented the government’s
response which has been to crack down on the Zambia is a state party to all the core United Nations
fundamental freedoms traditionally used by human rights treaties, except the International
citizens in a democracy, to engage in matters of Convention on the Protection of the Rights of All
public interest. The major violations covered in Migrant Workers and Members of Their Families.
this report are: At regional level, Zambia has been a member of
the African Union (AU), and its predecessor, the
• Violation of the right to freedom of Organisation for African Unity (OAU) since 1964
expression and the media, demonstrated when it attained its independence. It ratified the
through arbitrary arrests of people African Charter on Human and Peoples’ Rights in
particularly under charges of criminal 1984; African Charter on the Rights and Welfare
defamation and insult laws. Reports of of the Child in 2008; the Protocol to the African
physical violence against journalists, Charter on Human and Peoples’ Rights on the
arbitrary closure of media houses and the Rights of Women in Africa in 2006 and the African
raiding and intimidation of radio stations. Charter on Democracy, Elections and Governance
In addition, recent reports of possible in 2012.
internet shutdowns.
• Violation of the right to personal liberty The UN and AU human rights treaties which Zambia
through the arbitrary arrest of opposition has ratified are legally binding, and provide for
politicians, human rights defenders, and the protection of fundamental civil and political
other citizens critical of government; rights, which are essential to holding democratic
• Violation of the rights to freedom of elections. These include the right to life, freedom
assembly and association through the of expression, association, and assembly and the
brutal crackdown of peaceful protesters, right to participate in public life on an equal
including opposition parties and their basis. On this basis, the Zambian government
supporters and the disruption of civil has a duty to respect, protect, promote and fulfil
society meetings; these rights.
• Violation of the right to life, manifest
through several cases of extrajudicial Leading up to the August 2021 elections, the
killings by State security forces including deterioration of the human rights situation
the police. These concerns have been has undermined the ability of citizens to
recently heightened by reports of the effectively engage in key matters of public
deployment of the military ahead of the interest, and ultimately the political process.
August 12 elections;
1It is therefore imperative that regardless of the outcome of August 12, 2021, the emerging government from
this election must make a concerted effort to put an end to the ongoing decline in human rights violations
referenced in this report. Civil society, which includes non-governmental organisations, opposition
political parties, religious organisations and ordinary citizens play an important role in holding all arms
of government to account, ensuring that citizens’ concerns are communicated to decision makers. During
this COVID-19 pandemic, and as the Zambian government works to eradicate high levels of corruption and
turn around the economic crisis, it should encourage a marketplace of ideas which is characterised by full
citizenship engagement without retaliation. Zambian civil society is not the enemy. In line with Zambia’s
own Constitution, as well as its regional and international human rights obligations and undertaking to
uphold recognised democratic principles, this report makes the following recommendations:
The Zambian authorities, including the Police Service should allow citizens to freely exercise
1 the rights to freedom of expression and the media, peaceful assembly and association,
without facing arbitrary arrests and detentions. Furthermore, the government must refrain
from internet shutdowns, which not only disrupt the economy, but violate freedom of
expression, access to information and online assembly. The duty of the government is to
ensure that there exists a conducive environment for the enjoyment of key rights.
Government should recognize the important role of civil society actors, and as such must
2 respect, protect and promote human rights defenders, civil society activists, journalists
and media houses and ensure that they can operate without threats, intimidation and
harassment.
The government should issue unambiguous public orders that under no circumstances
3 will extrajudicial killings by police be tolerated and that prompt, thorough and impartial
investigations will be carried out to ensure that perpetrators, regardless of rank will be held
accountable.
4
COVID-19 interventions should be applied fairly across the political spectrum and designed
with the sole purpose to protect the population from the COVID-19 contagion. The pandemic
should not be used as an excuse to crackdown on civic space, or to target certain groups.
Any limitations of human rights by the government should adhere to the strict requirements
5 as outlined under regional and international law, following the principles of (1) legality; (2)
serve a legitimate purpose; and (3) must be necessary in a democratic state.
The Government must refrain from implementing any new legislation in conflict with
6 recognized human rights standards, particularly the Cyber Security and Cyber Crimes Act
2021 and the Electoral Process (Amendment) Act 2021. The new government after the
general election should repeal and or revise these laws and other pieces of legislation in
order to reconcile them with the Constitution, and Zambia’s regional and international
human rights obligations.
All arms of government, especially the judiciary should ensure the respect and protection
7 of the right to a fair trial and legal redress. In addition, courts must facilitate access to
justice, which includes hearing human rights and constitutional matters efficiently and
meritoriously.
2I. INTRODUCTION
Zambia is scheduled to hold general elections rhetoric and an undermining of the rule of
on 12 August 2021. The election will be held law. The COVID-19 pandemic has worsened the
in the context of democratic backsliding and situation, both politically and economically.
autocratisation. Several fundamental rights Zambia is no exception, and as shall be detailed
such as freedoms of expression, assembly in this report, the violations of key human rights
and association have been routinely violated is not isolated or sporadic but seemingly reflects
primarily by State security forces and the a broader and more systemic part of an ongoing
supporters of the ruling party. This report gives autocratisation process. Further, there is a clear
a detailed exposition of the pre-election human pattern of growing impunity for violations which
rights situation in Zambia, especially from a further emboldens the State, particularly the
regional and international human rights lens. security sector.
This report particularly highlights human rights The report concludes with recommendations to
violations that have occurred since 2016, with the next government of Zambia, calling upon all
greater focus on more recent violations in the arms of the government, including the executive,
months leading to the election. As noted across legislature, and judiciary, to take the necessary
the globe, elections are periods of heightened steps to halt the continued deterioration of
emotions as matters of public interest are Zambia’s human rights record and ensure that
spotlighted and incumbent governments placed the nation respects, protects and promotes the
under greater scrutiny. Globally, democracy is on respect for human rights as guaranteed under
the decline with autocratic regimes intensifying the Constitution, and Zambia’s regional and
their crackdown on civic space, while traditionally international obligations.
democratic countries have seen a rise in populist
II. WHY THE BACKLASH
AGAINST DEMOCRACY IN ZAMBIA:
CONTEXT AND LEGAL FRAMEWORK
Zambia gained her independence from Britain of young persons from exploitation.2 Although
in 1964. Its 1964 Constitution contained an the Bill of Rights does not include economic,
enforceable Bill of Rights modelled on the social and cultural rights, the Supreme Court has
European Convention on Human Rights 1950 and held that these could be enforced where they
the Universal Declaration of Human Rights 1948 are relevant ingredients of the rights listed in
(UDHR).1 The rights protected in the Bill of Rights the Constitution.3 The attempt to amend the
include the right to life, personal liberty, protection Constitution to include social economic and
from slavery and forced labour, protection from cultural rights in the Bill of Rights failed when
torture, cruel or inhuman treatment, protection the Constitution Amendment Bill was defeated
from the deprivation of property, the right to in a referendum in August 2016.
privacy, right to a fair trial, religious freedom,
freedom of expression, freedom of movement, Although the Constitutional Court was established
protection from discrimination, and protection in 2016, the mandate for enforcing human rights
1 Alfred Chanda, Human Rights Law in Zambia: Cases and Materials (Lusaka: University of Zambia Press, 2007) 4.
2 Part III Constitution of Zambia.
3 George Mwanza and Melvin Beene v Attorney General Selected Judgment No. 33 of 2019.
3still vests in the High Court.4 This anomalous corruption, which coincided with a renewed
position is due to the fact that the draft Bill of decline in Zambia’s democratic indicators. While
Rights which would have given the Constitutional Banda’s successor, Michael Sata, had a mixed
Court the mandate to preside over matters arising legacy as he showed some commitment against
from the Bill of Rights, failed to pass in the 2016 corruption, his government had very limited
referendum. The Constitution also establishes the respect for civil and political rights such as
Human Rights Commission with a broad mandate to freedom of expression and assembly.10 Zambia’s
promote human rights.5 The Commission, however, democracy has continued to plummet under the
lacks effective enforcement of its mandate as its presidency of Edgar Lungu (2015 to date).11 As a
recommendations are not binding. result of the decline in democracy and the rule of
law, Varieties of Democracy in 2020 named Zambia
The country’s return to multiparty democracy among the top ten most autocratizing countries in
and abolishment of the one-party state in 1991 the world.12 The fact that Lungu faces a tight re-
commendably set the country on a democracy election contest in August 2021, in the midst of an
consolidation trajectory. Indeed, from 1991 to economic crisis, an uncertain COVID-19 pandemic
1993, Freedom House rated Zambia as “free.” and sovereign debt crisis, this has increased
Politically, Zambia has long been an oasis of peace occasions of conflict between government and
in the sub-region and an example of respect citizens protesting the situation. As a result of hard
for human rights and democratic transition, economic times coupled with public corruption,
having peacefully changed government twice increased cost of living, regular power cuts, civil
since independence.6 These credentials have, society organisations and individuals have turned
however, been eroding over the last few years.7 to peaceful protest online and offline, to demand
Although Zambia was never a fully developed accountability and good governance, heightening
liberal democracy,8 available data points to public criticism of the government. For example,
increased autocratisation, with the consequence 75.7 per cent of the Zambian respondents to the
of escalating human rights violations and shrinking Afrobarometer survey in 2020 believed that the
political space.9 country was “going in the wrong direction” while
the voting preference for the ruling Patriotic Front
Increased intolerance, corruption and abuse of (PF) has dwindled from 45 per cent in 2017 to 23
power under former President Fredrick Chiluba, per cent in 2020.13 As a result, opposition parties
saw Zambia’s Freedom House rating slide to “partly have seemingly gained traction and in response
free” from 1993 onwards. While the presidency of to this, the government of president Lungu has
Levy Mwanawasa (2001-2008), promised a strong responded with a cocktail of repressive tactics to
anti-corruption crusade and respect for human contain the mounting discontent, which has been
rights, as well as promising a democratic revival, characterized by increased violations of human
this was undercut by his untimely demise in 2008. rights. These include the excessive use of force
by the police; deployment of ruling party carders
President Mwanawasa’s successor, Rupiah Banda, to intimidate and sometimes attack perceived
reportedly abandoned the crusade against opponents; extrajudicial killings; closure of media
4 Article 28 Constitution of Zambia.
5 Article 230 Constitution of Zambia.
6 In 1991 from the UNIP to MMD and in 2011 from MMD to UNIP.
7 Alastair Fraser, “Post Populism in Zambia: Michael Sata’s Rise, Demise and Legacy,” (2018) 34 International Political Science
Review, 456-472.
8 Tinenenji Banda, Marja Hinfelaar, O’Brien Kaaba, Muna Ndulo (2020) Democracy and Electoral Politics in Zambia. Africa Studies
Centre Series, Brill: Leiden.
9 Varieties of Democracy, “Autocracy Surges- Resistance Grows: Democracy Report 2020,” (2020). See also Freedom House,
“Freedom in the World: Zambia Country Report 2020,” < https://freedomhouse.org/country/zambia >
10 Alastair Fraser, “Post Populism in Zambia: Michael Sata’s Rise, Demise and Legacy,” (2018) 34 International Political Science
Review, 456-472. See also Freedom House, “Freedom in the World- Zambia Country Report 2015,” (2015).
11 Freedom House data shows a gradual decline since 1993, with a steep decline in recent years.
12 Varities of Democracy Institute, Autocracy Surges- Resistance Grows: Democracy Report 2020 (2020), 6
13 Afrobarometer Round 8 Survey Zambia 2020. See also Jeremy Seekings and Hangala Siachiwena, “Voting Preferences Among
Zambian Voters Ahead of the August 2021 Elections,” IDCPPA Working Paper No. 27 June 2021.
4houses; arrests and prosecution of pro-democracy become inevitable casualties of the systematic
and anti-corruption activists and enactment undermining of democratic norms and institutions.
of legislation intended at further limiting the This is exacerbated by the fact that independent
enjoyment of human rights. and professional institutions, such as the judiciary,
the legislature and the state security forces, which
It is in this context of autocratisation that ought to be the bulwark of democracy and the rule
the current gross violations of human rights in of law, have been seemingly co-opted and used as
Zambia should be understood as human rights tools for further consolidating power.III. INTERNATIONAL AND REGIONAL
HUMAN RIGHTS OBLIGATIONS
Zambia joined the United Nations on 1 December association, and assembly and the right to
1964. It is a state party to all the core United participate in public life on an equal basis. The
Nations human rights treaties, except the Zambian government has a duty to respect,
International Convention on the Protection of protect, promote and fulfil these rights.
the Rights of All Migrant Workers and Members
of Their Families. Zambia has entered only one Because of Zambia’s common law heritage,
reservation which is in relation to the Article ratified treaties do not become directly
13(2)(a) of the International Covenant on applicable in the domestic sphere as the legal
Economic, Social and Cultural Rights 1966, which effect of such instruments is dependent on
relates to the provision of free and compulsory their domestication. This, however, does not
primary education.14 divest it of its international obligations as under
international law, municipal law is not a defense
At regional level, Zambia is a member of the for failing to fulfil an international obligation. In
African Union (AU), and its predecessor, the the case of Legal Resources Foundation v Zambia,
Organisation for African Unity (OAU) since 1964 the African Commission, in its interpretation of
when it attained its independence. It ratified the the African Charter on Human and Peoples Rights,
African Charter on Human and Peoples’ Rights for example, considered the approach that
of 1980 in 1984;15 African Charter on the Rights Zambia was taking to its responsibilities under
and Welfare of the Child of 1992 in 2008;16 the regional law.19 The case challenged Article 34(3)
Protocol to the African Charter on Human and (b) in the 1996 Zambian Constitution which barred
Peoples’ Rights on the Rights of Women in Africa presidential candidates who could not prove that
of 2003 in 200617 And the African Charter on both of their parents were Zambian citizens by
Democracy, Elections and Governance of 2007 in birth or decent. It was held that the provision
2012. At sub-regional level, Zambia is a founding violated Articles 2, (non-discrimination), 13
member of the Southern African Development and 19 (political participation). Despite the
Community (SADC), whose treaty enjoins member Commission’s recognition that international
states to respect “human rights, democracy and agreements are not self-executing in Zambia and
the rule of law.”18 despite finding that Zambia was not avoiding its
treaty responsibilities, it asserted its position
The UN and AU human rights treaties that that ‘international treaties which are not part
Zambia ratified provide for the protection of of domestic law and which may not be directly
fundamental civil and political rights, which are enforceable in the national courts nonetheless
essential to holding democratic elections. These impose obligations on states parties’.20
include the right to life, freedom of expression,
14 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations
Treaty Collection < https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_
en#EndDec > accessed on 16 July 2021.
15 Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights, (“Banju Charter”), 27 June 1981 <
https://www.achpr.org/legalinstruments/detail?id=49 > accessed on 16 July 2021.
16 Organization of African Unity (OAU), African Charter on the Rights and Welfare of a Child, 11 July 1990 < https://au.int/
sites/default/files/treaties/36804-treaty-african_charter_on_rights_welfare_of_the_child.pdf > accessed on 16 July 2021.
17 Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 11
July 2003 < https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf > accessed
on 16 July 2021.
18 Article 4(c) Treaty of the Southern African Development Community 1992.
19 African Commission on Human and People’s Rights (2001) Comm. No. 211/98 Legal Resources v Zambia < https://
africanlii.org/afu/judgment/african-commission-human-and-peoples-rights/2001/31 > accessed on 26 July 2021.
20 African Commission on Human and People’s Rights (2001) Comm. No. 211/98 Legal Resources v Zambia < https://
africanlii.org/afu/judgment/african-commission-human-and-peoples-rights/2001/31 > accessed on 26 July 2021.
6IV. OVERVIEW
OF THE HUMAN RIGHTS SITUATION
The deteriorating human rights situation in All these human rights instruments recognize
Zambia is often marked by police extrajudicial that the right to life is supreme and permit no
killings, clamping down of press freedom and derogation.25 General Comment 36 (on the right
freedom of expression, suppressing freedom of to life), asserts that State parties “…must respect
assembly and association and the enactment of the right to life and have the duty to refrain
new pieces of legislation arming the State with from engaging in conduct resulting in arbitrary
further repressive powers. In order to appreciate deprivation of life” and “must also ensure the
the scope of the problem, the violations are right to life and exercise due diligence to protect
discussed below under six clusters. That is, the the lives of individuals against deprivations
right to life and police extrajudicial killings; caused by persons or entities, whose conduct
freedom of expression and the media; freedom is not attributable to the State.”26 Although
of association and assembly; the lack of access life is not absolute, it cannot be taken away
to remedies; the impact of COVID-19 on the arbitrarily.27
enjoyment of civil and political rights; and the
impact of new legislation on the enjoyment of Concern over Zambia’s autocratisation has been
civil and political rights. heightened by the increased militarization
of the police and the concomitant decline in
a. The Right to Life and Police professionalism and gross violation of human
Extrajudicial Killings rights by police and other security forces. The
police are increasingly deployed as a weapon
Life is considered the bedrock of all other rights. of repression particularly against peaceful
It is sacred and the right to life is provided for by protesters which has contributed to the shrinking
numerous human rights treaties, including the of civic space. It is in this context that the police
Universal Declaration of Human Rights 1948,21the have seemingly been carrying out extrajudicial
International Covenant on Civil and Political killings with near impunity.28 The investment in
Rights 1966,22 and the African Charter on Human the militarization of the police and strengthening
and Peoples’ Rights 1981.23 The African Charter, of other security sectors is evidenced by the
for example, provides: “Human beings are government’s increasing police and military
inviolable. Every human being shall be entitled spending over the years. From $38 million in
to respect for his life and the integrity of his 1996, the government spent $212 million in 2020
person. No one shall be arbitrarily deprived of on the police and military.29 In relation to the
his life.” The right to life is equally protected police, huge sums of money went into procuring
under the Zambian Constitution.24 deeply alarming military-like equipment such as
tankers, combat vehicles, grenade launchers,
21 Article 3 Universal Declaration of Human Rights 1948.
22 Article 6 International Covenant on Civil and Political Rights 1966.
23 Article 4 African Charter on Human and Peoples’ Rights 1981.
24 Article 12 Constitution of Zambia 1991.
25 Paragraph 2 General Comment No. 36 (2018) on Article 36 of the International Covenant on Civil and Political Rights, on
the Right to Life.
26 Ibid, paragraph 7.
27 Ibid, paragraph 10.
28 Amnesty International, “Ruling by Fear and Repression: The Restriction of Freedom of Expression, Association in Zambia,”
(2021).
29 Sipilisiwe Ncube , ‘Continuous budget increments for defence police indicates militarization ahead of polls ‘ News Diggers
(Lusaka, 10 August 2020) < https://diggers.news/local/2020/08/10/continuous-budget-increments-for-defence-police-
indicates-militarization-ahead-of-polls-kakubo/ > accessed on 28 July 2021.
7camouflage uniforms and other seemingly non- surreptitious gassing or chemical spraying
civilian policing weapons.30 of homes, schools, offices and other places
using an unknown injurious chemical.34
The impunity of the police for past abuses, seems This led to public protests and mob justice
to have further emboldened them to carry out leading to the killing of more than 50
rights violations, including extrajudicial killings people, by both lawless mobs and police
without facing justice. The following are some officers.35 Although senior police officers
examples of extrajudicial killings the police have were implicated in the gassing, there has
been implicated in: been no investigation or public inquiry into
the phenomenon.36 Whether killed by police
• On 23 December 2020 the police shot at or third parties, the Zambian government
and killed two individuals, Nsama Nsama bears responsibility for these deaths as it
and Joseph Kaunda, and injured several is the duty of the state to “ensure the right
others from a group of people who had to life and exercise due diligence to protect
accompanied opposition leader Hakainde the lives of individuals against deprivations
Hichilema to police headquarters.31 This caused by persons or entities, whose
was when police summoned opposition conduct is not attributable to the State.”37
leader for questioning relating to a civil • A 14-year-old boy, Frank Mugala, was shot
matter (already in court) relating to how he dead in school uniform on 13th February
procured one of his farms. The police and 2020 near his school gate in Chazanga
the president initially blamed the opposition Township. 38
but following public pressure, announced • On 6th October 2019, Lawrence Banda,
the arrest of one police officer.32The a United Party for National Development
arrested officer is yet to be tried. There has (UPND) youth member was reportedly shot
been no further investigation of the killings. twice in the head by a known PF cadre
• On 26 September 2020 police in Lusaka during local government by-elections in
shot and killed a seventeen-year-old boy Zambia’s Western Province.39 His killers
during police enforcement of COVID-9 have not been brought to justice, despite
regulations.33 being publicly identified.
• In the first quarter of 2020 Zambia • On 4th October 2018, a fourth year
experienced systematic incidents of University of Zambia (UNZA) student
30 ‘Militarization of Zambia Police’ Lusaka Times (Lusaka, 12 June 2020) < https://www.lusakatimes.com/2020/06/12/
militarisation-of-zambia-police/ > accessed on 28 July 2021.
31 Human Rights Commission (HRC) Secretariat , ‘Summary findings and recommendations of the Human Rights Commission’s
investigations into the killing of Mr Nsama Nsama Chipyoka and Mr Joseph Kaunda’ (Lusaka, 6 March 2021) < http://www.
hrc.org.zm/index.php/multi-media/news/376-summary-findings-and-recommendations-of-the-human-rights-commission-s-
investigations-into-the-killing-of-mr-nsama-nsama-chipyoka-and-mr-joseph-kaunda-delivered-to-the-media-by-the-human-
rights-commission-chairperson-mr-mudford-z-mwandenga-at-the-commission-s-head-office-in-lusaka-on-4th-march-2021
> accessed on 28 July 2021.
32 Ibid.
33 Mwebantu Editor, ’17 year old boy shoot dead in Lusaka as Police attempt to enforce Covid regulations’ Mwebantu (Lusaka,
27 September 2020) < https://www.mwebantu.com/17-year-old-boy-shot-dead-in-lusaka-as-police-attempt-to-enforce-
covid-19-regulations/ > accessed on 28 July 2021.
34 ‘Zambia dazed by wave of mysterious gas attacks’ France 24 (6 March 2020) < https://www.france24.com/en/20200306-
zambia-dazed-by-wave-of-mysterious-gas-attacks > accessed on 29 July 2021.
35 Ibid.
36 Sipilisiwe Ncube, ‘Top Chingola cops implicated in gassing incidences’ News Diggers (Lusaka, 19 February 2020) < https://
diggers.news/local/2020/02/19/top-chingola-cops-implicated-in-gassing-incidences/ > accessed on 30 July 2021.
37 Ibid, paragraph 7
38 Human Rights Commission (HRC) Secretariat , ‘Human Rights Commission findings and recommendations on the death of
Frank Mugala a grade 8 pupil shoot dead during police operation in Chazanga Township’ (Lusaka,13 October 2020) < http://
www.hrc.org.zm/index.php/multi-media/news/363-hrc-findings-and-recommendations-on-the-death-of-frank-mugala-a-
grade-8-pupil-shot-dead-during-the-police-operation-in-chazanga-township-in-lusaka > accessed on 29 July 2021.
39 “Murder in Kaoma: UPND Confirms One Carder Shot Dead by PF,” < https://www.lusakatimes.com/2019/10/07/murder-in-
kaoma-upnd-confirms-one-cadre-shot-dead-by-pf/ > accessed on 26 July, 2021.
8Vespers Shimuzhila died when Police General Comment No. 34 recognizes that “freedom
officers repeatedly discharged teargas in of expression is a necessary condition for the
the students’ rooms causing a fire from realization of the principles of transparency and
which the student suffocated. In relation to accountability that are, in turn, essential for the
this death, the Human Rights Commission promotion and protection of human rights.”44
in January 2019 stated: “It is clear that The Zambian Constitution provides for freedom
from the totality of the evidence obtained of expression in a manner that largely mirrors
that the Police acted in an extremely brutal Article 19 of the International Covenant Civil and
manner depicting a combative warfare Political Rights.45 The Constitution provides that
situation against unarmed students who at “except with his own consent, a person shall not
that time no longer posed any real danger be hindered in the enjoyment of his freedom
or violence to the Police officers or to any of expression, that is to say, to hold opinions
other member of the public or property.”40 without interference, freedom to receive ideas
• Mapenzi Chibulo, a female UPND supporter and information without interference, freedom
was shot in the head on 8th July 2016 by to impart and communicate ideas and information
the police. The UPND supporters were without interference.”46 The Constitution also
protesting over the decision by the police to prohibits the enactment of law that derogate from
cancel a scheduled opposition political rally freedom of the press.47
in the capital city’s township of Chawama.41
The Lusaka Police Station Officer in charge, Freedom of expression, like many other rights, has
Mr. Mwale, confirmed under oath on 23rd limits and exceptions. The Zambian Constitution
December 2016 during the inquest that contains limits to freedom of expression in line
Chibulo was shot by a Police officer who with Article 19 of the International Covenant on
he could not identify because there were Civil and Political Rights 1966. Article 20(3) of the
several that were deployed. Mr. Mwale Constitution states that the limitations to the right
further testified that he did not know why must be: (a) under the authority or contained in
live ammunition was used because officers a “law”; (b) “reasonably required” for purposes
were not allowed to use live ammunition to of protecting one of the named interests; and (c)
control protesters.42 “reasonably justifiable in a democratic society.”
As the examples cited below show, the violations
b. Freedom of Expression/Press Freedom of freedom of expression and media freedom do
not fit in any of the recognized limitations under
Freedom of expression and that of the media is the constitution and international human rights
the heartbeat of democracy. It is what draws the law. Violations such as arrests and prosecution
boundary “between relatively open and closed for defamation of leaders, closure of media
societies, between liberal democracies and houses, storming of radio stations to disrupt radio
different types of authoritarian states.”43Freedom programmes and violence against journalists are
of expression plays a cardinal role in a democracy indicative of a regime bent on shielding itself
as it enables informed decision-making, and from the scrutiny and criticism by its own people,
strengthens the capacity of citizens to participate which is not acceptable grounds for limiting
in governance and to hold officials accountable. freedom of expression and the media. In relation
40 Human Rights Commission Report (Lusaka, 29 January 2019) < http://www.hrc.org.zm/index.php/multi-media/news/320-
human-rights-commission-summary-statement-of-its-investigations-findings-on-the-4th-to-5th-october-2018-university-
of-zambia-unza-students-unrest-issued-in-lusaka-by-the-commission-chairperson-mr-mudford-z-mwandenga-on-29th-
january-2019 > accessed on 26 July, 2021.
41 Political Oppression and Abuse of Human Rights in Zambia < http://www.ilabour.eu/political-oppression-abuse-human-
rights-zambia/ > accessed on 26 July, 2021.
42 Ibid.
43 Philip Alston and Ryan Goodman, International Human Rights (Oxford University Press,2013), 651.
44 Paragraph 3 General Comment No. 34 on Article 19 Freedom of Opinion and Expression (2011).
45 Article 20 Constitution of Zambia 1991.
46 Ibid, Article 20(1).
47 Ibid, Article 20(2).
9to criminal defamation law for example, the National Development (UPND) supporter, was
African Commission on Human and Peoples’ Rights convicted of defaming former broadcasting
has called on State parties to “repeal criminal minister, Dora Siliya, and sentenced to two
defamation laws or insult laws” as they impede years imprisonment.53
freedom of speech.48 Many countries have abolished • In February 202, ruling PF supporters
such laws either through legislative intervention or stormed a radio station in Mporokoso district
judicial interpretation. The Lesotho Constitutional and stopped a live paid for programme
Court, for example, in 2018 declared criminal featuring opposition leader Harry Kalaba.
defamation laws unconstitutional.49 No arrests were made.54
• In May 2021, the government media
Freedom of expression and the media have been regulatory authority, Independent
severely curtailed by government and supporters Broadcasting Authority, threatened to revoke
of the ruling party.50 Some of the recent and the license of Muvi TV, a private television
publicly documented examples are as follows: station over the conduct and remarks of
an interviewee in a live programme.55This
• In August 2021, days before the elections, followed an incident where Alex Muliokela
civil society organizations raised concern answered his cellular phone while featuring
over unconfirmed reports of poor network on a live TV programme.56
connectivity.51 Given Zambia’s history of • On 15 November 2020, police in Lusaka
internet shutdowns, one in 2016 following detained Kennedy Mambwe a proprietor and
the general elections and the other in 2020, CEO for a private media house (KBN TV).
civil society remains concerned that the He was detained following a live streaming
government may shutdown the internet video that he covered and broadcasted
and other social media sites, despite a on the KBN TV Facebook page. The video
recent statement from the Permanent in question showcased a potential clash
Secretary in the Ministry of Information between the ruling PF cadres and UPND
and Broadcasting Services, dismissing the cadres.57
allegations of network interference ahead
• On 24 November 2020, police in Kitwe
of the upcoming 2021 elections.52
arrested a man identified as Lawrence
• In July 2021, Cornelius Mulenga (popularly Kasonde on allegations of insulting the
known as Chellah Tukuta) a social media republican president. This was following a
activist and opposition United Party for
48 Resolution on Repealing Criminal Defamation Laws in Africa-ACHPR/Res. 169 (XLVIII) 10 (2010).
49 Ifex, ‘Lesotho Constitutional Court applauded for declaring criminal defamation unconstitutional’ (31 May 2018) < https://ifex.
org/lesotho-constitutional-court-applauded-for-declaring-criminal-defamation-unconstitutional/ > accessed on 28 July 2021.
50 Natasha Sakala, ‘Government condemns PF cadres for disrupting HH’s radio programme’ News Diggers (Lusaka 18 May 2020)
< https://diggers.news/local/2020/05/18/govt-condemns-pf-cadres-for-disrupting-hhs-radio-programme/ > accessed on 2
August 2021.
51 Committee to Protect Journalists, Open Letter to President Lungu – keep the internet open and secure throughout the
upcoming elections and thereafter, (August 5 2021) https://www.accessnow.org/cms/assets/uploads/2021/08/KeepItOn_-
open-letter-Zambia.pdf
52 Lusakatimes, There will be No Internet Shutdown in Zambia, Blackout Information False and Calculated to Cause Alarm,
(August 4 2021), https://www.lusakatimes.com/2021/08/07/there-will-be-no-internet-shutdown-in-zambia-information-is-
false-and-calculated-to-cause-alarm/.
53 Natasha Sakala, ‘Chellah Tukuta gets 2 years for defaming Dora’ News Diggers (Lusaka 15 July 2021) < https://diggers.news/
courts/2021/07/15/chellah-tukuta-gets-2-years-for-defaming-dora/ > accessed on 28 July 2021.
54 Human Rights Commission report (Lusaka, 26 February 2021) < http://www.hrc.org.zm/index.php/multi-media/news/374-hrc-
condemns-the-attack-on-democratic-party-president-harry-kalaba > accessed on 2 August 2021.
55 Committee to protect Journalists, ‘Zambia’s broadcasting regulator threatens to revoke Muvi TV’s license’ (16 July 2021) <
https://cpj.org/2021/06/zambias-broadcasting-regulator-threatens-to-revoke-muvi-tvs-license/ > accessed on 2 August
2021.
56 Muvi Television Assignment Interview (27 April 2021) < https://web.facebook.com/watch/live/?v=494364305040460&ref=wat
ch_permalink > accessed 30 July 2021.
57 Bwalya Chanda , ‘KBN TV CEO arrested for live streaming UPND rally’ Zambian News365 (Lusaka, 16 November 2020) <
https://zambianews365.com/kbn-tv-ceo-arrested/ > accessed on 27 July 2021.
10live Facebook video that went viral in which aired programmes critical of government,
Kasonde admonished his fellow citizens to on the pretext that its license had expired.
vote out the current government in the Efforts to renew the station’s license have
upcoming 2021 elections. Police authorities not succeeded. 62
charged Kasonde with the offence of • Human rights activist and artist Chama
defamation of the President.58 This incident Fumba (popularly known by his stage name as
is yet another example of a private citizen’s Pilato) was arrested by police in Livingstone
right of freedom of expression violated. in December 2019 and charged with
• In July 2020, unruly Patriotic Front (PF) unlawful assembly. Fumba was facilitating
supporters stormed Mafken radio station a civil society meeting to raise awareness
that was hosting opposition leader Hakainde on governance and accountability.63Activists
Hichilema, ordered the programme to stop from civil society, Laura Miti and Bornwell
and threatened to burn the radio station.59 Mwape, who went to post bail for Pilato
No arrests were made. were arrested and detained upon arrival
• In February 2020, scores of the ruling at the police station and charged with
Patriotic Front (PF) supporters stormed disorderly conduct and assault of a police
a Law Association of Zambia meeting officer.64They were subsequently acquitted
called to discuss the Bill No. 10 by which by a Magistrate Court.65
the government sought to amend the • In February 2019, ruling PF supporters
constitution and enhance presidential beat and seriously injured Grace Lungu,
powers.60 Although the police were present a journalist for Breeze FM, who had gone
at the scene, they made no attempt to to cover a by-election in Lundazi district
stop the unruly supporters. No arrests were in Eastern province. In a very rare case of
made. accountability, one of her assailants was
• In April 2019, ruling PF supporters attacked later arrested and subsequently convicted
then opposition leader Chishimba Kambwili for the offence.66
while he was live on radio Power FM in the • In October 2018, the police disrupted
town of Kabwe and ordered his interview to a meeting of pastors organized by civil
end. The police had to sneak out Kambwili society organisations to discuss the national
but no arrests were made.61 budget as a way of holding government
• In April 2020, government closed Prime TV, accountable. The pastors were arrested and
a leading private television station that detained.67
58 J Malunga ‘police nab Kitwe man for insulting Lungu ‘
59 Julia Malunga, ‘PF cadres storm and threaten to burn Mafken radio for hosting HH’ News Digger (Lusaka , 11 July 2020) <
https://diggers.news/local/2020/07/11/pf-cadres-storm-threaten-to-burn-down-mafken-radio-for-hosting-hh/ > accessed
on 2 August 2021.
60 Lusaka Times, ‘Cadres storm Intercontinental Hotel disrupt Laz Bill 10 debate’ ( Lusaka, 10 February 2020) < https://www.
lusakatimes.com/2020/02/18/cadres-storm-intercontinental-hotel-disrupt-laz-bill-10-debate/ > accessed 2 August 2021.
61 Lusaka Times, ‘PF cadres attack Kambwili during a live radio programme’ (Lusaka, 30 April 2019) < https://www.lusakatimes.
com/2019/04/30/pf-cadres-attack-kambwili-during-a-live-radio-interview-on-power-fm/ > accessed on 2 August 2021.
62 Committee to protect Journalist, ‘Zambia cancels broadcaster Prime TV’s License’ (April 13 2020) < https://cpj.org/2020/04/
zambia-cancels-broadcaster-prime-tvs-license-polic/ > accessed on 2 August 2021.
63 https://www.frontlinedefenders.org/en/case/zambian-hrd-pilato-arrested-during-youth-forum-laura-miti-bornwell-mwewa-
arrested-when
64 Front line defenders < https://www.frontlinedefenders.org/en/case/zambian-hrd-pilato-arrested-during-youth-forum-laura-
miti-bornwell-mwewa-arrested-when > accessed on 2 August 2021.
65 Lusaka Times, ‘Laura Miti , Mwewa acquitted’ (Lusaka 8 September 2020) < https://www.lusakatimes.com/2020/09/08/laura-
miti-mwewa-acquitted/ > accessed on 28 July, 2021.
66 Mirriam Chabala , ‘PF cadres attacke breeze FM reporter over Lundazi by-elections ’ News Digger (Lusaka,13 February 2019)
< https://diggers.news/local/2019/02/13/pf-cadres-attack-breeze-fm-reporter-covering-lundazi-by-election/ > accessed on
August 2021.
67 Lusaka Times, ‘Zambia Police disrupt a pastor’s meeting to discuss the National Budget’ 18 October 2018) < https://www.
lusakatimes.com/2018/10/20/zambia-police-disrupt-a-pastors-meeting-to-discuss-the-national-budget/ > accessed on
August 2021.
11• In July 2017, opposition leader for United Rights,72 the International Covenant on Civil and
Progressive People (UPP), Saviour Chishimba, Political Rights,73 and the African Charter on
was arrested and charged for defamation Human and Peoples’ Rights.74 The right to personal
of the President following public criticism liberty means that any human being has the right
made against President Lungu.68 not to be dispossessed of his or her personal
• In May 2017, Kwalela Kafunya a medical liberty unless such deprivation is justifiable at law
doctor in Western Province was arrested as a justifiable limitation. The police have been
detained and charged with defamation arbitrarily violating this right through the targeted
of the President. He was convicted and arrest and often lengthy detention of opposition
sentenced to three years imprisonment. 69 supporters and those critical of government. A
• In July 2017, Edward Makayi, an engineering few examples to highlight the problem:
student at a private university was arrested
for insulting President Lungu. This was in • In July 2021, Police in Ndola arrested and
connection with messages he had posted on detained Frank Tayali, the opposition UPND
his Facebook page criticizing the President aspiring parliamentary candidate for Ndola
for dragging the country into hatred and central constituency, following his refusal
tension and asking the President to release to stop public campaigns as demanded
the opposition leader Hakainde Hichilema by police. He was arrested following the
who was in police custody on charges of raiding of his home by armed police, who
treason.70 forcibly removed him. 75
• In June 2016, government shut down the • In May 2021, Mubita Nawa, the press aid to
Post newspaper, the country’s leading opposition leader Hakainde Hichilema, was
private newspaper which had been a critical arrested and detained without charge for
news source for many years.71 almost two weeks following his posting of
a video on his Facebook page in which he
interviewed someone who used irreverent
c. Right to Personal Liberty
language towards President Lungu.76
The right to personal liberty is a fundamental • In May 2021, the police arrested and
human right that is constitutionally protected. detained for two days Dr. Chikonde Mukula,
Article 13 of the Zambian constitution entitles the secretary general of the Resident
every person to personal liberty and requires that Doctors’ Association of Zambia following the
no person shall be “deprived of his personal liberty Association’s decision to go on an industrial
except as authorized by law.” it is also a right go slow prompted by the government’s
that is provided for under international human failure to pay them salaries, allowances
rights treaties to which Zambia is a state party. and other contractual violations. He was
These include the Universal Declaration of Human released without charge.77
68 ‘Saviour Chishimba faces defamation Charge’ Daily Nation (Lusaka, 7 March 2021) < https://dailynationzambia.
com/2021/03/07/saviour-chishimba-faces-defamation-charge/ > accessed on 2 August 2021.
69 Lusaka Times, ‘Mongu medical doctor jailed for insulting President Lungu’ (18 October 2018) ) < https://www.lusakatimes.
com/2018/01/10/mongu-doctor-jailed-three-years-insulting-president-lungu-facebook/ > accessed on 2 August 2021.
70 Mukosha Funga, ‘Student appears in court for defamation of the President’ News Diggers (Lusaka, 31 July 2017) < https://
diggers.news/courts/2017/07/31/student-appears-in-court-for-defamation-of-the-president/ > accessed on 2 August 2021.
71 Lusaka Times, ‘ZRA shuts down Post Newsapper’ (21 June 2016) < https://www.lusakatimes.com/2016/06/21/zra-shuts-down-
post-newspapers/ > accessed on 2 August 2021.
72 Article 3 Universal Declaration of Human Rights 1948.
73 Article 9 International Covenant on Civil and Political Rights 1966.
74 Article 6 African Charter on Human and Peoples’ Rights 1981.
75 Daniel Chansa, ‘Ndola Police arrest Tayali’ News Diggers (Lusaka, 15 July 2021) < https://diggers.news/local/2021/07/15/
ndola-police-arrest-tayali/ > accessed on 26 July, 2021.
76 Lusaka Times, ‘UPND Presidential aide Mubita Nawa arrested for defaming the President’ (Lusaka, 10 May 2021) < https://
www.lusakatimes.com/2021/05/10/upnd-presidential-aide-mubita-nawa-arrested-for-defaming-president/ > accessed 26 July
202.
77 Zambian Eye (31 May 2021) < https://zambianeye.com/rdaz-secretary-general-released/ > accessed on 26 July 2021.
12• Police arrested and detained for more than more than 120 days and kept in isolation
two weeks Chilufya Tayali, an opposition and mostly kept incommunicado. He was
politician and social media commentator for only released following the intervention of
a post on his Facebook page urging President the Commonwealth.83
Lungu not to support hooliganism. He was
charged with the crime of defamation of d. Freedom of Association and Assembly
the president.78
• In April 2021, four members of the opposition Freedom of association and assembly is the
UPND, were detained without charge (later foundation of participatory democracy. This right
charged with abduction) for almost a month. “can play a critical role in allowing participants to
This followed their role in exposing attempts advance ideas and aspirational goals in the public
at linking opposition leader Hakainde domain.”84It is provided for under article 20 of the
Hichilema to fraudulently procuring a farm, Universal Declaration of Human Rights, Article 22
by arranging for the key state witnesses of the International Covenant on Civil and Political
to speak on camera and reveal how they Rights, Articles 10 and 11 of the African Charter
were recruited by government agents to on Human and Peoples’ Rights, as well as under
implicate Hichilema.79 Article 21 of the Zambian Constitution. The right
• More recently, in June 2021, a former only allows restrictions that are “prescribed by law
police officer, Jeyson Chipepo, was violently and which are necessary in a democratic society in
arrested by police for staging a lone protest the interests of national security or public safety,
against police brutality and partisanship public order (ordre public), the protection of
outside the police headquarters.80 No public health or morals or the protection of the
apology was rendered by police for the rights and freedoms of others.”85
illegal arrest of Chipepo.81
• In March 2019, the police arrested and Political space for the exercise of freedom of
detained opposition politician Sean Tembo assembly and association has been curtailed, in the
for asserting that President Lungu suffered same manner as freedom of speech or expression.
from a mental illness which made him make A few examples can be cited to highlight the
irrational decisions.82 situation and from these examples, the authorities
• Opposition leader Hakainde Hichilema was have failed to meet the acceptable requirements/
in April 2017, violently arrested by para- justifications for restricting human rights.
military police who raided his home in the
night and subsequently charged him with • Heavily armed police blocked opposition
treason. This was based on an incident where leader Hakainde Hichilema from attending
his driver failed to give way to a presidential a church service in the town of Chingola in
motorcade. Hichilema was detained for June 2021. The police blocked the road and
78 Lusaka Times ‘Tayali arrested for defaming the President’ (Lusaka 7 May 2021) < https://www.lusakatimes.com/2021/05/07/
tayali-arrested-for-defaming-president-lungu/ > accessed on 2 August 2021.
79 Lusaka Times, ‘HRC calls for immediate release of UPND officials detained without charge’ (Lusaka, 8 April 2021) < https://
www.lusakatimes.com/2021/04/08/hrc-calls-for-immediate-release-of-upnd-officials-detained-without-charge-for-more-
than-two-weeks-now/ > accessed on 26 July, 2021.
80 Tenson Mkhala, ‘Police arrest ex-cop for staging lone protest against Inspector General of Police’ News Diggers (Lusaka,
3 June 2021) < https://diggers.news/local/2021/06/03/police-arrest-ex-cop-for-staging-lone-protest-against-inspector-
general-kanganja/ > accessed on 28 July 2021.
81 Lusaka Times, ‘Cisca condemns arrest of peacefully protesting former police officer’(Lusaka, 3 June 2021) < https://www.
lusakatimes.com/2021/06/03/cisca-condemns-arrest-of-peacefully-protesting-former-police-officer-demands-his-immediate-
release/ > accessed on 28 July 2021.
82 Lusaka Times, ‘Sean Tembo arrested for defaming President Lungu’ (Lusaka, 23 March 2019) < https://www.lusakatimes.
com/2019/03/23/sean-tembo-arrested-for-defaming-president-lungu/ > accessed on 28 July 2021.
83 O’Brien Kaaba and Babatunde Fagbayibo, “Promoting the Rule of Law Through the Principle of Subsidiarity in the African
Union: A Critical Perspective,” 2019(8) Global Journal of Comparative Law, 27- 51.
84 General Comment No. 37 (2020) on the Right of Peaceful Assembly.
85 Article 22(2) International Covenant on Civil and Political Rights 1966.
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