ZAMBIA

VIOLATIONS OF THE HARARE DECLARATION BY THE GOVERNMENT OF PRESIDENT MICHAEL SATA AND THE PATRIOTIC FRONT PARTY
Submission to the Secretary-General of the Commonwealth Secretariat for Referral to the Commonwealth Ministerial Action Group (CMAG) Prepared by the Coalition for the Defence of Democratic Rights (CDDR)

Officially Filed 25 January 2013

President Michael Sata’s government has cracked down on basic civil rights

1. EXECUTIVE SUMMARY
In September 2011, Michael Chilufya Sata contested the presidential elections of Zambia on a populist mandate and won by a narrow margin over the incumbent President Rupiah Banda. Since taking over as president, Sata has embarked on an aggressive agenda to re-impose his vision of a one-party state, positioning his family and personal allies at the center of the economy while damaging Zambian democracy, human and civil rights, and rule of law. Running under the slogan “more money in your pockets,” President Sata was elected based on ambitious promises to relieve poverty, cut taxes, and redistribute wealth all within 90 days. However, the president has failed to deliver on any of these promises and instead has opened a broad attack against the judiciary, the opposition, and Zambia’s frail institutional system of checks and balances to ensure that his party remains in power indefinitely. The Patriotic Front government has repeatedly violated the constitution by jailing opposition leaders, circumventing parliament by creating ministries and new regions, and manipulating ethnic violence including the threat of military force against the civilian population. The independence of the judiciary has been virtually eliminated, as President Sata has intervened to pursue a false anti-corruption campaign against

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  1

opponents while accused officials within his own government escape accountability. Under Sata, the Zambian economy has been captured by private sector elites and several members of President Sata’s own family, who have orchestrated unlawful expropriations, re-nationalisations, and regulatory violations of banking law that place personal interests above the public interest. Owners of the private media have been politically and financially compromised and transformed into an extension of the state propaganda machine. We bring this pattern of conduct to the attention of the Secretary-General of the Commonwealth Secretariat for referral to the Commonwealth Ministerial Action Group (CMAG), as policies undertaken by the current Zambian government represent serious and persistent violations of the Harare Declaration and the Commonwealth Values and Principles re-affirmed in November 2009 (Appendix I). Representing a broad coalition of opposition political parties, civil society organisations, and private citizens whose rights have been infringed by the ruling Patriotic Front government, the Coalition for the Defence of Democratic Rights (CDDR) is calling on the Secretary-General to fulfill its enhanced duties as expressed in the 2011 CMAG report1 to “act as a custodian of the political values set out in the 2009 Affirmation” and initiate the process of appointing an envoy to gather facts of these serious and persistent violations for urgent referral to the CMAG for consideration. We are appealing on an urgent basis given the stark implications of these violations on the basic rights of Zambian citizens, requiring a firm and unwavering position on behalf of the international community before it is too late.

2. BACKGROUND: RETURN TO THE ONE-PARTY STATE
Located on the Zambezi River in the Southern region of Africa, to the east of Angola and to the south of the Democratic Republic of Congo, Zambia has long been considered an island of stability among other violent, authoritarian, strife-torn states in the region. With a population of 13.4 million people from 73 different tribal groupings, Zambia is rich in mineral resources but poor in terms of development. The country has defied the odds among its neighbors to build a successful multiparty democracy reaching across diverse ethnic lines capable of pursuing national projects in a lawful, institutionalized 1. “Strengthening the Role of the Commonwealth Ministerial Action Group (CMAG),” Report of CMAG as adopted by the Commonwealth Heads of Government Meeting, 2011.

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  2

framework. But it did not attain this status easily, nor is it guaranteed to maintain it in the challenging circumstances that have surfaced under President Michael Sata. Upon achieving independence from Britain in 1964, Zambia was ruled by President Kenneth Kaunda of United National Independence Party (UNIP). Before the end of Kaunda’s second presidential term, a new constitution was put in place formerly transforming Zambia into a repressive “One-Party Participatory State” which would last for 17 more years. Opposition parties were banned, critics were jailed, and the only person allowed to stand for the office of the presidency was the UNIP candidate selected at the party’s general conference, while Kaunda’s personally appointed Central Committee formulated national policies. In 1991, power finally changed hands with the victory of President Frederick Chiluba of the Movement for Multiparty Democracy (MMD) party, ending the one-party state. The MMD first emerged as a broad-based multi-ethnic social movement with the stated goal of returning Zambia to multiparty democracy and repairing the damage left behind by Kaunda. However, these principles were abandoned during Chiluba’s second term when a controversial attempt was organized to alter the constitution to allow for a third term.2 The third term effort, which was ultimately blocked leading to the election of President Levy Mwanawasa, was overseen by Chiluba’s Minister without Portfolio, Michael Sata. Michael Sata’s rise from relative obscurity is largely owed to the specific types of tasks he was able to accomplish for Chiluba, which created a certain level of co-dependency between the two politicians. During Chiluba’s push for a third term, Sata recommended which constitutional measures could be twisted, which laws could be introduced to break up the opposition, and, most importantly, he was in charge of managing the violent machete-wielding “cadres” of young men that terrorized Zambian cities throughout the 2001 by-elections, in particular the violent attacks against members of the Forum for Development and Democracy (FDD) party in Chawama.3 After being put aside by Chiluba, Sata contested the 2001, 2006, and 2008 presidential elections before winning by a narrow margin in 2011. Sata’s established history of violence and constitutional violations has continued since coming into power. As detailed below, the Patriotic Front government has been 2. Lise Rakner (2011): Institutionalizing the pro-democracy movements: the case of Zambia’s Movement for Multiparty Democracy, Democratization,18:5, 1106-1124. 3. IRIN News, July 18, 2001 (http://www.irinnews.org/printreport.aspx?reportid=23370)

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  3

President Sata has violated judicial independence by giving specific instructions to the AntiCorruption Commission and the Director of Public Prosecutions.

involved in some of the worst kinds of violations within the system (using violent cadres, no horizontal accountability, and frequent constitutional tampering) that would later be repeated as he entered the presidency in 2011.

3. INCITEMENT OF ETHNIC VIOLENCE
According to the 2009 Affirmation of Commonwealth Values and Principles (Appendix I), member states are obliged to uphold “equality and respect for protection and promotion of civil, political, economic, social and cultural rights for all without discrimination on any grounds.” The Affirmation further requires that member states recognise “tolerance, respect, and understanding to strengthen democracy and development; recognising also that respect for the dignity of all human beings is critical to promoting peace and prosperity.” However, these principles are persistently violated by the Patriotic Front government of President Michael Sata through a determined policy to manipulate tribal and ethnic conflicts for political gain. In a country of no fewer than 73 different tribal groupings, there has always been a precarious balance to manage the representation of different groups through informal

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  4

and formal means, especially in the ethnic make up of the cabinet. From Presidents Kaunda to Chiluba to Mwanawasa to Banda, the cabinets have always historically been diverse, however, for the first time in history under President Sata the cabinet is dominated by at least 10 Bemba members from his homeland in the Northern Province, raising dangerous tensions among excluded groups.4 On several occasions President Sata has sought to weaken the opposition by inciting tribal conflicts, using hate speech in false news stories spread via the pro-government media. On 3 September 2012 state-owned ZNBC broadcast a hoax story concerning a letter from an invented terrorist group known as “Tongas Under Oath,” which claimed that the Southern ethnic grouping had plans to murder Bembas in Zambia.5 It would later be revealed that the fake letter originated from within State House as part of an effort to attack the opposition United Party for National Development (UPND). On 20 July 2012 another hoax article citing an “anonymous source” was published in the pro-government Post newspaper, claiming that former President Rupiah Banda was determined to prevent the Bemba tribal grouping from nominating a president.6 Three days later, the PF Secretary General Wynter Kabimba publicly denounced former President Banda, claiming that “tribalism runs in his blood”7 in an effort to cause divisions within the opposition Movement for Multiparty Democracy (MMD). However, the most egregious provocation of ethnic violence by President Sata occurred on 30 November 2012, when he publicly ordered the Army to fire upon Lozi activists from the enclave seeking self-determination in Barotseland. Addressing Army Commander Lt. General Erick Chimense during a graduation ceremony for the SADC Region Defence Command, Sata made specific ethnic references to the Lozi language, commenting, “When you go there, just fire, when they say ‘Fa’ you fire, when they say ‘enisha’ just fire at them, do not hesitate.”8 President Sata’s incitement of the military to kill Lozi citizens falls within the ambit of Crimes against Humanity. The Zambian government’s attempt to provoke tribalism has been widely denounced by civil society groups and international observers. On 6 September 2012, several foreign diplomats, including U.S. Ambassador Mark Storella, are reported to have met 4. “Sata Stirs the Tribal Pot in Zambia,” by Open Society for Southern Africa, Sept. 12, 2012 (http://www.osisa.org/general/blog/sata-stirs-tribal-pot-zambia) 5. http://globalvoicesonline.org/2012/09/09/zambia-tonga-terror-claim-real-orfake/ 6. http://zambiareports.com/2012/07/20/president-sata-plays-the-ethnic-cardagainst-rupiah-banda/ 7. http://www.postzambia.com/post-read_article.php?articleId=28682 8. http://zambiareports.com/2012/11/30/sata-orders-killing-of-barotse-activist/

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  5

with President Sata to urge him to abstain from inciting ethnic conflict.9 On 22 October 2012, the CDDR wrote an open letter to President Sata and other top officials citing these cases of violence and demanding that the PF government halt their unlawful use of violence against the democratic opposition (See Appendix II). The ruling party has also engaged in the practice of deploying paid youth cadres to harass, intimidate, and violently attack the opposition.10 Upon winning the election, one of Sata’s first actions as President was to order the release of a convicted felon, Judge Ngoma. Mr. Ngoma formerly served as Sata’s personal bodyguard and was a known organizer of violent youth cadres. Ngoma had been convicted of assault and sentenced to three years in prison for an incident in 2009 in which he publicly dragged two former PF members, Samson Zulu and Mubanga Chileshe, out into the street and commenced to violently beat them in full view of television cameras and witnesses.11 During the 2011 presidential campaign, several high ranking PF officials openly incited their cadres to take up machetes and arms and go for blood. Party Secretary General Wynter Kabimba, who would later become Minister of Justice, in particular was caught on camera ordering the cadres to violently attack members of the MMD. This state-sponsored violence by the Patriotic Front has caused numerous serious injuries, especially among members of the opposition UPND party. One PF cadre member, Mr. Menyani Zulu, was even allegedly murdered as a result of these activities during the Rufunsa by-election of November 2012. However, despite the fact that police on the scene ruled out any participation by opposition cadres, President Sata immediately laid blame on the MMD and UPND, and ordered the jailing of several activists who were not even near the scene of the crime.12

4. PERSECUTION OF DEMOCRATIC OPPOSITION
According to the 2009 Affirmation of Commonwealth Values and Principles, member states must uphold “the inalienable right of the individual to participate by means of free and democratic political processes in shaping the society in which they live; 9. http://zambiareports.com/2012/09/06/donors-warn-zambian-president-stoppotential-tribal-war/ 10. http://allafrica.com/stories/201211291098.html 11. “Sam Zulu Continues Seeking Sata’s Arrest for Assaulting Him,” Zambian Watchdog, Aug. 24, 2011. (http://www.zambianwatchdog.com/2011/08/24/sam-zulu-continues-seeking-satas-arrest-for-assaulting-him/) 12. http://cddr-zambia.org/2012/11/21/michael-satas-false-arrests-over-rufunsaviolence-are-politically-motivated-says-cddr/

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  6

During a UPND rally held on January 28, 2013, numerous supporters were beaten and injured by armed cadres sent by the ruling party.

underlining that not only governments but all political parties and civil society also have responsibilities in upholding and promoting democratic culture and practices as well as accountability to the public in this regard.” These principles with respect to democracy have been seriously and persistently violated by President Sata and the PF government through the repeated arrests of opposition figures on false pretenses, defamation, and fictitious accusations of criminal activity levelled against opponents of the state. Immediately following the 2011 election, the PF government embarked on a revanchist campaign of score settling against members of the former government, using the pretext of the “anti-corruption fight” to eliminate political competition. Apart from a few isolated cases which went forward to trial, the PF’s accusations against opposition members have come up empty. In some cases, the bogus prosecutions have been abandoned, but in others, the government continues to press on depite an absence of evidence. On 16 November 2011, former MMD Minister of Mines Maxwell Mwale was arrested and interrogated by the police, initially based on accusations of involvement in the disappearance of seized gold (the “gold scandal” has subsequently been discredited,13 13. http://bistrita24.wordpress.com/2011/12/16/president-michael-sata-offers-an-

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  7

while President Sata has been forced to apologize to a Swiss businessman).14 Mr. Mwale was again investigated and charged on Dec. 28, 2011, while police searched his home and seized his privately owned tractor and trailer, along with 261 bicycles owned by the MMD (despite receipts of purchase). Mr. Mwale was again arrested in February 2012 on charges of “stealing” 20 bicycles, and is currently awaiting his next hearing on an absurd case that has been brought to trial. Former MMD Finance Minister Situmbeko Musokotwane has been the target of repeated harassment and threatened investigations regarding his role in extending a tax deferment arrangement to an Indian foreign investor, Varun Beverages. On Jan. 25, 2012, Mr. Musokotwane was formally “warned and cautioned” by the investigative wings, charged with “abuse of office” for having made the arrangement with the foreign investors.15 However, local counsel point out that there are clear provisions under the Zambia Development Agency Act that provide the Ministry of Finance with the powers to extend such arrangements. On Feb. 22, Mr. Musokotwane was again interrogated for several hours by the police, this time over the seizure of bicycles from his home.16 MMD spokesperson Dora Siliya was charged and arrested for abuse of authority of office, allegedly for actions taken when she was Transport and Communications Minister in the MMD administration.17 The cases against Siliya are based on the conclusions of a report by a Commission of Inquiry appointed by the PF government. The Provincial Task Force on Corruption arrested MMD Mbala Central Member of Parliament and former Northern Province permanent secretary Mwalimu Simfukwe, charging him with unspecified claims of abuse of authority.18 (Update: On 1 February 2013, Simfukwe was acquitted by the court, with the Magistrate commenting that the case was “very poorly investigated”.) Former Minister of Agriculture and Cooperatives Peter Daka was investigated, subjected to seizure of property, and “warned and cautioned” by the Anti-Corruption Task Force on the allegation of using a residential electricity tariff to run a brick-manufacturing

apology/ 14. http://www.lusakatimes.com/2011/11/16/maxwell-mwale-arrested-denied-bail/ 15. http://www.lusakatimes.com/2012/01/25/police-warn-caution-situmbeko-musokotwane/ 16. http://www.lusakatimes.com/2012/02/22/dr-situmbeko-questioned-bicycles/ 17. “Dora Siliya arrested and denied Bail,” Lusaka Times, April 2, 2012. 18. “MMD MP arrested for abuse of authority,” Lusaka Times, April 11, 2012 (http:// www.lusakatimes.com/2012/04/11/mmd-mp-arrested-abuse-authority/)

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  8

commercial business.19 On May 15, 2012, a civil servant, Kasama District Culture Officer Patrick Mubanga, was sentenced to three months imprisonment for allegedly defaming President Sata, violating his right to free speech. Throughout much of 2012, the PF government has falsely accused Henry Banda, the son of the former president who had served as a campaign manager. With the aim of discrediting former President Banda and pushing toward the eventual aim of stripping his immunity, the police issued a summons for questioning to Henry Banda over unclear allegations of “corruption” in relating to the Zamtel privatization (detailed below). As the anonymous editorials in The Post and the Zambia Daily Mail proliferated, the government went so far as putting out a red alert on Interpol and engaging in a diplomatic dispute with Kenya. Despite Henry Banda’s full cooperation, the Zambian government has repeatedly refused to indicate the nature of the allegations. The leader of the opposition United Party for National Development (UPND), Hakainde Hichilema, has endured repeated harassment and unspecified threats of investigation, including an alleged attack upon his home by a group of Patriotic Front cadre youths that the police neglected to prevent.20 He is the target of at least three lawsuits from President Sata seeking millions in compensation. Mr. Hichilema also suffered significant injuries on 9 August 2012 when he was called in for questioning at Lusaka Central police station, when he and his supporters were teargassed indoors by the police, causing a violent stampede. Two days later, despite his injuries, Mr. Hichilema was arrested and later charged with “publication of false news” related to comments he made to a newspaper regarding the Patriotic Front’s agreement with the ruling party of Sudan to train their youth cadres. The media outlet which published these comments was not charged. On 4 October 2012, Zambian police fired live rounds inside court grounds during Mr Hichilema’s court hearing, causing panicked citizens to flee from the scene. On 17 January 2013, Mr. Hichilema was arrested yet again by the police for alleging insulting the president, while a week earlier police had controversially disrupted a court hearing and attempted an arrest, prompting a furious response from the magistrate before this breakdown in the rule of law.21 19. “Security Officers Caution Former Minister Peter Daka,” Times of Zambia, Jan. 28, 2012, (http://allafrica.com/stories/201201300201.html) 20. “HH dares Sata to have him arrested,” Zambia24, Jan. 16, 2012 (http://zambia24. com/latest-news/hh-dares-sata-to-have-him-arrested.html). 21. “Attempt by Police to Arrest HH in Court over another Offense is Condemned,” Lusaka Times, Jan. 15, 2013 (http://www.lusakatimes.com/2013/01/15/attempt-bypolice-to-arrest-hh-in-court-for-another-offence-condemned/)

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  9

MMD President Nevers Mumba was arrested along with four others for “unlawful assembly” on December 10th 2012

Dr. Nevers Mumba, the current President of the MMD, has suffered unrelenting unlawful persecution. Dr. Mumba was “warned and cautioned” on 27 January 2012 in relation to unspecified and unsupported “corruption investigations.” Dr. Mumba has also suffered violent attacks from PF cadres while campaigning in Musanzala, Eastern Province as well as in Kasama, Northern Province, in April 2012. Dr. Mumba also suffered a mysterious home invasion in which his laptop computer and banking documents were stolen, but not other valuable possessions on 9 April 2012. By invoking the colonial era Public Order Act, the PF government has arrested Dr. Mumba on two occasions, once on 10 December 2012 during a visit to political supporters on the Copperbelt,22 and again on 26 December 2012 while distributing Christmas gifts to needy citizens in Kitwe.23 Dr. Mumba was arrested and jailed for the third time in less than six weeks on 8 January 2013, and was then charged with four counts of “abuse of office” based on allegations relating back to his service as High Commissioner to Canada more than a year and a half earlier.24 22. http://cddr-zambia.org/2012/12/11/political-crisis-in-zambia-worsened-by-arrests-of-key-opposition-figures-says-robert-amsterdam/ 23. http://www.lusakatimes.com/2012/12/26/nevers-mumba-arrested-issuingalarming-statement-breach-peace/ 24. http://cddr-zambia.org/2013/01/09/zambia-must-halt-false-arrests-of-journalists-and-opposition-figures-says-cddr/

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  10

President Sata has also repeatedly abused the colonial-era Public Order Act to prevent the opposition from functioning. Actions undertaken by the PF government prevented the MMD from operating in the Mufumbwe by-election, which took place place in early November 2012. On Oct. 3, the MMD Vice President Michael Kaingu was suspended from parliament for tearing in half a printed copy of President Sata’s opening speech, which contained no public policy statements and instead only jokes. by police under the pretext of “national security.” The government has also attempted to manipulate bureaucratic technicalities to forcefully disband the main opposition party. These efforts culminated on the 14th of March 2012, when the Chief Registrar of Societies made the historically unprecedented move to force the de-registration of the MMD (the country’s former ruling party, which also holds the largest number of opposition Parliamentary seats), immediately ordering the removal of the party’s 53 seats in the National Assembly. “By copy of this order signed under my hand this day, the Movement for Multiparty Democracy shall cease to operate as a political party in the Republic of Zambia,” the Registrar stated in a press statement.25 “The effect of this decision is also to nullify 53 seats in Parliament held by the Movement for Multiparty Democracy (MMD) as of today.” Two days after this announcement the Lusaka High Court moved to stay the proceedings pending the MMD’s opportunity to appeal the case. According to party officials, the MMD has fully paid all national registration fees on time and has the receipts to prove it, but what the Patriotic Front is targeting is the registration of branch offices, specifically in Lusaka, which were taken over by the ruling party years ago. Later meetings planned by the MMD to be chaired by Kaingu in Mufumbwe were repeatedly blocked

5. JUDICIAL INTERFERENCE
According to the 2009 Affirmation of Commonwealth Values and Principles, member states are obliged to uphold “that each country’s Legislature, Executive and Judiciary are the guarantors of the rule of law and emphasising that access to justice and an independent judiciary are fundamental to the rule of law, enhanced by effective, transparent, ethical and accountable governance.” In Zambia, rule of law and judicial independence face an existential threat from the 25. http://www.scribd.com/doc/85994831/Zambia-Registrar-Press-Release-to-Suspend-MMD

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  11

current government. In order to execute the Patriotic Front’s agenda, Sata has used executive powers to appoint political loyalists to key positions, such as the Director of Public Prosecutions (DPP), as well as deployed more Commissions of Inquiry in the first six months of office than were created in the past 10 years of government in Zambia. As clearly stated in the Patriotic Front’s 2011-2016 Manifesto under Section 22, page 42, the government declares its intention to install PF members throughout all positions of the judiciary, which by definition contravenes the principle of judicial independence.26 In the first year that Sata has been in office, there have been numerous instances of executive interference in judicial matters, as the president has sought to circumvent due process through politically appointed commissions of inquiry, persecuting opponents with false cases, tribunals, and calling for the removal of independent judges. This worrying confrontation between the executive and the judiciary was highlighted in May 2012, as President Sata invited a Malawian judge to Zambia to chair a judicial review tribunal aimed at eliminating selected members of the judiciary. Even before the Tribunal could sit, and providing no stated reason, Sata suspended one Supreme Court judge and two High Court judges for their involvement in a ruling in the case of Development Bank of Zambia (DBA) vs. JCN Holdings, Nchito, Nchito, and M’membe. One of these judges had found that the defendants, which include Post newspaper editor Fred M’Membe – Sata’s close political ally – and the DPP Mr. Nchito – were liable for the repayment of a 14 billion kwacha debt to the publicly owned financial institution following the bankruptcy of Zambian Airways. The president intervened to suspend the judges for this “unfavourable” judicial finding, and appointed a Tribunal to remove the judges despite the fact that the case in question had not yet gone through the appeals process, representing a constitutional violation. On May 17, a High Court judge issued an injunction on Sata’s Tribunal pending the outcome of two of the suspended judges’ appeals for judicial review. Following deliberations, on May 24th, the court ruled that the stay of the tribunal would continue until the courts ruled on whether or not the tribunal had been legally formed by the 26. Under Section 22 of the Manifesto, the ruling party declares its intention to “Deploy government sponsored law graduates to public legal institutions, such as the magistrates courts, attorney-General’s and DPP’s chambers, Public Defender’s chambers as well as local authorities.” Source: http://www.scribd.com/ZambianEconomist/d/52257938-Patriotic-Front-2011-16-Manifesto

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  12

On Dec. 3 2012 Minister of Justice Wynter Kabimba openly flaunted impunity before the ACC by arriving with hordes of violent cadres, refusing to answer questions

president. In response, the Patriotic Front’s Minister of Justice Sebastian Zulu lashed out at the judiciary with pointed threats, saying that they had acted out of “panic.”27 Amid calls by Patriotic Front members for the Chief Justice and other members of the judiciary to resign en masse and then “reapply” for their positions, Justice Minister Zulu remarked “This growing trend where we are having a dictatorship of the judiciary is a recipe for anarchy, and if not nipped in the bud may lead to serious problems in this country.”28 Representatives of the Patriotic Front government made numerous additional statements in the press intended to threaten the judiciary. The Deputy Minister of Mines Richard Musukwa was quoted in The Post Newspaper on June 4, 2012,29 arguing for the complete dissolution of the judiciary, leaving Zambia entirely without any legal system for a period of months while a new politically loyal judiciary would built anew. Days earlier, Justice Minister Zulu threatened that the Patriotic Front would 27. “The Judiciarcy is Panicking – Zulu,” The Post, May 17, 2012. (http://www.postzambia.com/post-read_article.php?articleId=27286) 28. “Zambia court halts probe into judges,” AFP, May 18, 2012. (http://www.gulftimes.com/site/topics/article.asp?cu_no=2&item_no=506338&version=1&template_ id=39&parent_id=21) 29. “‘Dissolution of Judiciary only way to cleanse it,’” The Post, June 4, 2012 (http:// www.postzambia.com/post-read_article.php?articleId=27609)

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  13

be willing to dissolve the judiciary in the event that they are unable to accomplish their agenda. Such statements are deeply troubling to foreign investors and cause significant damage to Zambia’s reputation of stability and sanctity of contracts. As a result of his failure to purge the judiciary of judges seen as “disloyal” for having enforced the repayment of Mr. M’membe and Mr. Nchito’s debt to DBZ, Sebastian Zulu was eventually replaced by Wynter Kabimba as Minister of Justice. However, the government’s hostile attitude toward the judiciary remained unchanged. On 3 December 2012, Kabimba was called before the Anti-Corruption Commission (ACC) for an interview regarding allegations he had influenced oil supply contracts. In a brash show of impunity, he arrived accompanied by dozens of violent, threatening youth cadres, causing chaos which prevented the ACC from conducting the interview.30 A few days later, President Sata, who appeared to condone Kabimba’s provocative conduct, publicly confronted ACC Director General Rosewin Wandi, telling her that she must request permission from him before investigating his ministers.31 This led the Law Association of Zambia (LAZ) to issue a strongly worded statement raising their objections that this attempt to harass the ACC has no basis in law, and represents an attack on the independence of the judiciary by the Zambian government (see Appendix III). The LAZ statement was supported by the well-regarded civil society group OASIS Forum.32 The Patriotic Front’s spotty record on anti-corruption has attracted criticism of the international donor community, including the United Kingdom, which provides all the funding for the operation of the ACC. On 10 December 2012, the UK High Commissioner to Zambia James Thornton offered a rare criticism when he pointed to the controversial acquittal of Henry Kapoko, a former human resources manager at the Ministry of Health who is also a relative of President Sata.33 In response, Kabimba decreed that no diplomats will be allowed to make statements at public state functions without first approving the statement with the Cabinet Office. In addition to the Patriotic Front’s soft stance on corruption, the Sata government has placed direct influence over the investigatory bodies. During the swearing in

30. http://www.lusakatimes.com/2012/12/03/acc-fail-interview-kabimba-refusedinterviewed-absence-pf-cadres-media/ 31. http://cddr-zambia.org/2012/12/07/cddr-deplores-president-satas-doublestandards-on-anti-corruption/ 32. http://www.lusakatimes.com/2012/12/14/oasis-forum-urge-zambians-uniteresisting-pfs-government-attempt-country/ 33. http://www.postzambia.com/post-read_article.php?articleId=29833

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  14

ceremony of Mr. Nchito to the position of Director of Public Prosecutions,34 President Sata violated the constitutional separation of powers by giving specific instructions regarding prosecution. President Sata stated the following: “Today we have the most deadly legal joint. Attorney general, the solicitor general and yourself. We expect you to assist the judiciary because don’t blame the judiciary if they are acquitting people if you don’t prepare your cases properly. If you have half-baked cases, you have to improve. Look at some of the old cases privatisation of Roan Mine, privatisation of Kagem, privatisation of Lima Bank, privatisation of Intercontinental Livingstone. All of those are cases stinking with corruption. You have all been called back. Your former chairman is now permanent secretary and the minister of home affairs and I’m sure that with the attorney general who was once harassed because they didn’t like his hands stinking or that he was going to round them up, we expect to leave Zambia better than we found it. There are still some Chinese companies, there are still some Chinese companies which are funding MMD If you get in touch with the people the drug enforcement they’ll give you the details, and they will give you the names, and when you go to Zamtel don’t look at Zambians only. These Libyans is the one who corrupted Zambians so don’t go for Zambians you must also go for the Libyans from “Lap Green” They are the ones who have dirty money and dirty hands. Sort them out!” (emphasis added)35

In the first eight months of the Patriotic Front’s administration, no fewer than eight separate Commissions of Inquiry have been appointed. These handpicked commissions have served as a convenient tool to circumvent normal judicial processes to justify both the seizure of assets and persecutions of opponents. Concluding that “President [Sata] had a pre-determined idea” in establishing his commissions of inquiry, Zambia’s Centre for Policy Dialogue has found that “the commissions of inquiry constituted by President Michael Sata to investigate the alleged corruption activities by the MMD are a waste of public funds.”36 The credibility of several of these Commissions of Inquiry has been called into question for the independence of the appointed chairpersons. The commissions are rarely 34. “Sort Out Lap Green, Sata Orders Nchito,” The Post, Jan. 14, 2012 (http://www. postzambia.com/post-read_article.php?articleId=24703) 35. The video of President Sata’s comments to the Director of Public Prosecutions Mutembo Nchito was uploaded by MuviTV on January 12, 2012 (http://youtu.be/Pz46kPD1t9Q) 36. “Simuntanyi: All commissions of inquiry by Sata waste of public money”, Zambia Watchdog, April 11, 2012 (http://www.zambianwatchdog.com/?p=33330).

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  15

On August 9 2012 police fired teargas indoors at supporters of Hakainde Hichilema who were protesting his arrest, causing numerous injuries

chaired by politically neutral judicial figures. The commission studying oil supply deals is chaired by the aforementioned Mr. Kabimba of the Patriotic Front party, while the commissions on the Zambia Revenue Authority and Zamtel (which was already expropriated) were chaired by Kingsley Chanda and Justice Minister Zulu, respectively. Another Commission of Inquiry has investigated the sale of Zanaco bank, which has raised fears that another expropriation could be forthcoming.37 These commissions of inquiry are chaired by neither credible nor independent figures, and, as members of the ruling party, the commissions are seen as an attempt to override the judicial system to produce the desired outcomes. There have also been several instances in which the Patriotic Front government has openly ignored court rulings, most notably with the granting of permission by the Lusaka High Court to the opposition UPND party to hold a rally at Kanyama in September 2012.38 Despite the court order allowing for the UPND’s constitutional right to peaceful assembly, President Sata deployed 200 police officers to block the rally and prevent the opposition from functioning. Other court orders, such as a 37. As recently as May 18, 2012, President Sata threatened to expropriate Zanaco bank from its private owners. Source: http://www.postzambia.com/post-read_article.php?articleId=27313 38. http://cddr-zambia.org/2012/09/08/despite-court-order-police-block-upnd-rallyat-kanyama/

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  16

ruling by the Ndola High Court Judge Lisimba which found the takeover of Zambezi Portland Cement unlawful by an ally and financial backer, have also been routinely ignored by the state. In early January 2013, President Sata has also personally intervened in an attempt to directly install his own relative, Judge Lombe Chibesakunda, as Chief Justice. The forced nomination of Judge Chibesakunda represents a violation of Article 98 (1) of the Constitution requiring that chief justice nominees be 69 years of age and under. Despite statements from both the Law Association of Zambia (LAZ) and Transparency International Zambia (TIZ) declaring the nomination illegal, President Sata continued to press forward to place his family member in a position of control in the judiciary.

6. CONSTITUTIONAL VIOLATIONS, LEGISLATIVE INTERFERENCE
The 2009 Affirmation of Commonwealth Values and Principles states that members shall recognise “the importance of maintaining the integrity of the roles of the Executive, Legislature and Judiciary.” The Patriotic Front government of President Michael Sata has regularly violated these values through its disturbing routine of creating new districts (gerrymandering), new ministries, and other flagrant manipulations of legislative independence. According to the Zambian constitution, the president requires parliamentary approval in order to create new districts, provinces, or ministries, as there is a corresponding impact on the state budget. The circumvention of parliamentary authority represents a breach in the separation of powers which has not been addressed by any court in Zambia. Shortly after his election in September 2011, President Sata unilaterally decreed without parliamentary approval the creation of Muchinga Province, in an area known as a stronghold of the opposition MMD.39 Sata has also decreed the creation of more than a dozen new districts and several new ministries, often without any consultation, let alone parliamentary approval as required by law. Many of the new districts appear to be concentrated in Sata’s home province, where he will allegedly concentrate more financial resources to reward some Zambians over others. campaign has been criticized for lacking in infrastructure.40 39. http://www.ukzambians.co.uk/home/2011/10/15/muchinga-the-zambias-10thprovince-choma-capital-of-southern-province/ 40. http://www.thelondoneveningpost.com/africa/sata-criticised-for-creating-unnecThe decentralization

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  17

Opposition politician Charles Milupi has been highly critical of Sata’s unlawful creation of new districts: “President Sata is merely making pronouncements so that he can get political mileage which has no practical use,” Milupi said. “That is his problem; he thinks he has to do things like that. Ever since he went in the job, he has been creating this, creating that, with no planning, no budget to effect those things. And if there is no budget, the plans are hopeless. If you look at the previous districts that were created and physically go there and see what is happening…go to Mulobezi and check what is happening, there is nothing.”41 Furthermore, the Patriotic Front has regularly interfered with the integrity of opposition seats in the legislature by appointing numerous MMD members as Deputy Ministers in the cabinet, leading them to vote along the ruling party lines instead of with the opposition. In many cases, these turncoat MPs were facing corruption investigations, but when they began working with the PF the cases were abandoned. According to Former Works and Supply Minister Mike Mulongoti, President Sata’s move to appoint opposition Members of parliament as deputy Ministers was not in good faith but that it was aimed at silencing the opposition’s voice in Parliament.42 The current situation of the ruling party pressuring the opposition out of their elected positions is unprecedented in Zambia’s history. Following the 2011 elections, the ruling party petitioned almost every seat they lost to the opposition, bringing an unbearable caseload before the courts. In theory, the government was demanding the removal of every opposition seat in parliament and the holding of more than 50 by-elections for parliament – a hypothetical event that would bankrupt the country. Patriotic Front Secretary General has put enormous pressure on opposition MPs, asking them to join the ruling party, which would force more by-elections and erase political competition in the country.43

7. VIOLATIONS OF FREEDOM OF EXPRESSION
The 2009 Affirmation also upholds that member states of the Commonwealth must maintain “peaceful, open dialogue and the free flow of information, including through a free, vibrant and professional media, enhance democratic traditions and strengthen democratic processes.” essary-districts/ 41. http://www.postzambia.com/post-read_article.php?articleId=29748 42. http://www.zambianwatchdog.com/?p=48700 43. http://allafrica.com/stories/201211200627.html

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  18

Journalists flee Lusaka Central Police station after teargassing (August 9 2012)

However the Zambian government has shown a persistent record of intolerance for freedom of expression. As explained above, Fred M’membe, the owner and editor of the only private national daily newspaper, has been compromised allegedly via tax arrears to be strictly loyal to the government. The other state-owned newspapers, The Daily Mail and the Times of Zambia, have been rigorously censored, while no fewer than 10 former Post journalists have been given well paying government jobs with the PF, including former reporter

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  19

and presidential spokesman George Chellah and Ministry of Information Permanent Secretary Amos Malupenga, who both formerly held senior positions at the Post newspaper. Now reporters and editors reportedly regularly receive phone calls from State House demanding that certain stories are killed before they are printed.44 Journalists are under constant pressure and intimidation by the government. On April 14th, the PF government ordered the firing of six journalists from the stateowned Times of Zambia over their political views. President Sata himself has filed defamation lawsuits against the only independent newspaper, The Daily Nation, amounting to more than $3 million. On December 10, four journalists attempting to cover the story of Mumba’s arrest were arrested themselves. With broadcast and radio media outlets cowed into submission, the only space left for journalists is online – however these outlets are under constant attack. On 23 July 2012, Defence Minister Geoffrey Bwalya Mwamba threatened to shut down news website Zambian Watchdog. On 2 October 2012, Registrar of Societies Clement Andeleki threatens to “de-register” the website. Most recently, in early January 2013, the government threatened to charge the owners of the Zambian Watchdog website with treason, a charge carrying the death penalty. On 9 January 2013, the Zambian police arrested and jailed the journalist and filmmaker Chanda Chimba III, the former managing editor of the state-owned Daily Mail Davis Mataka, his editorial assistant Ngande Mwanajiti, as well as the former MMD Minister of Information Ronnie Shikapwasha. Several of the individuals had been involved in the production of a documentary film series titled “Stand Up for Zambia” which was heavily critical of then-opposition leader Michael Sata. Although the documentaries were made almost two years earlier, the arrests were rumored to have been provoked by the appearance of these films on YouTube.45 The government has also shown zero tolerance toward a number of civil society groups. Those targeted include the Young African Leaders Initiative (YALI), which is supported by the administration of U.S. President Barack Obama. YALI works to encourage a vibrant generation of young leaders in private, public sectors and civil society who effectively promote change, justice, peace and economic development and contribute to democratic governance. However, according to Andrew Ntewewe, President of YALI, the group has been subjected to intense government pressure simply for having formed a group to debate and 44. http://zambiareports.com/2012/04/19/journalists-under-pressure-in-zambia/ 45. http://www.zambianwatchdog.com/?p=48857

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  20

study the drafting process of the new constitution. Justice Minister Wynter Kabimba wrote to YALI informing it that any future forum hosted without a government official present would result in the arrest of those concerned. In the letter Kabimba stated that “I am informing the Inspector General of Police to take stern action in future against anybody from your organization who shall organize or conduct such a forum outside the supervision og the Technical Committee.” Such intimidation, which in itself is a breach of the current constitution of Zambia, is entirely unacceptable.46 The non-governmental organisation Foundation for Democratic Process (FODEP) has also faced pressure. On 26 December 2012, the Office of Registrar of Societies, which was also used in the attempt to de-register the MMD, informed FODEP that their registration would be discontinued in 28 days. The accused FODEP of unfounded organisational misconduct and other technicalities. Observers believe that the Registrar of Societies was allegedly acting on instructions from State House to persecute FODEP members such as Executive Director McDonald Chipenze, who in the past had exercised his right to free speech in criticising the practise of defecting MPs from the opposition to the ruling party.

8. CAPTURED ECONOMY
According to the 2009 Affirmation, Zambia must show a “commitment to promote the rule of law, ensure transparency and accountability and root out, both at national and international levels, systemic and systematic corruption.” However since the election of President Michael Sata, Zambia’s economy has been dominated by an oligopoly of family members, close allies, and financial supporters of the Patriotic Front, while the government has begun reversing privatisations and expropriating private property. In order to accomplish this, President Sata has practiced nepotism by appointing his uncle, Alexander Chikwanda, as Minister of Finance; his nephew, Miles Sampa, as Deputy Minister of Finance; and as Secretary to the Treasury, the third position in the hierarchy of the Ministry of Finance, Sata has installed a brother-in-law, Fredson Yamba. He also appointed Robert Sichinga as Minister of Commerce, whose son is married to his daughter, as well as another nephew, Godfrey Bwalya Mwamba, as Minister of Defence. 46. http://zambia.co.zm/news/headlines/2012/12/15/kabimba-orders-police-toarrest-yali-officials-for-meetings-over-constitution/

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  21

MMD President Nevers Mumba was jailed on Dec. 26 2012 while giving away christmas gifts

The installation of members of the president’s family to key economic posts has also resulted in highly controversial public procurement awards. For example, President Sata has recently awarded a 600 million kwacha no-bid contract for the renovation of State House to a company owned by Finance Minister Chikwanda. The ownership of the company and the single-sourced nature of the contract is not disputed by the government. A company owned by Sata’s relative and Minister of Defence, appropriately titled “GBM,” has procured a lucrative contract for the provision of foodstuffs to the armed forces, and is alleged to be involved in other questionable contracts. In addition to these conflicts of interest, President Sata has begun personally rewarding his political cadres with positions in state-owned companies, when by law the candidates for such positions should be nominated and selected only by the board of directors. At several key public companies, such as ZESCO, ZNBC, the Zambian National Building Society (ZNBS), Food Reserve Agency (FRA), National Pension Scheme (NAPSA), and the Workers Compensation Fund, Sata has appointed new chief executive officers and other positions. The competency of the individuals chosen for these important positions has been called into question – for example, Sata appointed the secretary general of the party, Wynter Kabimba, to act as interim head of Zamtel, the re-nationalized telecom, despite a total absence of any experience in

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  22

telecommunications. Contributing to the crisis of confidence in Zambia’s public institutions was President Sata’s rushed decision to repossess Finance Bank from its South African owners, First National Bank, and hand the financial institution back to the bank’s former owner, one of Sata’s largest financial supporters.47 This transaction was executed on October 3, 2011 – just ten days after Sata’s inauguration – while two charges of forgery against President Sata’s benefactor, Dr. Rajan Mahtani, were mysteriously dropped without reason by the new government. The seizure of Finance Bank by the Patriotic Front government calls into question the independence of banking regulation in Zambia. On December 31, 2010, the Bank of Zambia (BOZ), whose Governor is tasked with public oversight of the country’s financial institutions, issued a Government Gazette outlining all the violations of law by the management of Finance Bank that prompted the State to intervene. The findings of the BOZ investigation of Finance Bank, which included fraudulent representation of shareholdings and numerous violations of the Banking and Financial Services Act, CAP 387 (BFSA), have never been disputed or retracted. The repossession of Finance Bank and transfer back to the former owner was conducted in violation of normal judicial process. Dr. Caleb Fundanga, the highly regarded Governor of the Bank of Zambia,48 was removed from his post by President Sata. The position was left vacant for a period of three months, essentially rendering Zambia in the unique position of having no acting regulator over the banking sector for a considerable period of time. In late November 2012 the news website Zambian Watchdog published (and later removed) a confidential forensic report prepared by the prestigious South African law firm Edward Nathan Sonnenberg looking into the true shareholding structure of Finance Bank which served as the basis for BOZ to intervene. The report, which was prepared for the Drug Enforcement Commission (DEC) in June 2010, concludes that just one person owns at least 56.5% of the bank, which is a violation of Zambian law requiring that no single shareholder exceed 25% of bank 47. The identity of financial supporters to Sata’s campaign was first acknowledged in a newspaper advertisement following the 2008 elections, in which Sata thanked his financiers for all their generous support. 48. Dr. Fundanga was named the 2008 Central Bank Governor of the Year by Annual Meetings Daily. A citation by the Annual Meetings Daily stated: “Zambia’s monetary policy, in the past half a decade has been designed to have a positive impact on the country’s economy. Today, the economy is buoyant, thanks to (…) sound macro economic policies managed by the Bank of Zambia (BoZ).”

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  23

ownership. But what is interesting about the report are the strong indications that in fact the PF financier may actually own 96.5% of Finance Bank, using an $80 million personal loan from Credit Suisse that was disguised as an equity transaction, allowing him to defraud Zambian banking authorities and operate his bank illegally. The forensic report concludes that two other shareholders who are listed as nominees, Clarkwell Limited and Joe Albert T. Samuel, together accounting for 31.5% of the bank’s shares, actually served as fronts for the financier. The report revealed that when it came time to pay out dividends, all payments were deferred by the other shareholders and directed solely toward Finsbury. The Edward Nathan report raises some obvious questions on Credit Suisse’s role in Finance Bank. Why would a major international bank take a strategic shareholding in Zambia, and then waive its right to dividends to a supposedly minority shareholder? Why would owners of 40% of shares accept less than 1% of the value? Why would the principal extend a personal guarantee on 100% of a loan to a bank he supposedly only owns 25% of? What Credit Suisse has done in this deal is not necessarily illegal, banks act as a nominee for a variety of reasons. But what is not legal is the way that Finance Bank has misrepresented Credit Suisse as though they are real shareholders in order to violate Zambian banking law. In addition to the questionable handling of Finance Bank, there have been a number of highly irregular expropriations and threats of expropriation, including the expropriation of Zamtel, the reversal of the concession to Railway Systems of Zambia, and the taking over of management of the Roads Development Agency directly under control of State House, posing significant corruption risk. The Patriotic Front evidently believes it has the right to seize whatever property it chooses beyond the limits of law. Speaking on 11 September 2012, Minister of Justice Wynter Kabimba said the government “will not shy away from repossessing all previous state firms,” which in theory, would even imply the takeover of privatized mines at the center of the Zambian economy.49 These expropriations, which have been executed outside the normal legal process under presidential fiat, have contributed to a flight of foreign investment, and were cited by Fitch Ratings as one of the primary reasons for Zambia’s downgrading.50 49. http://www.zambianwatchdog.com/?p=41544&cpage=3 50. “Fitch revises Zambia outlook to negative,” Reuters, March 2, 2012. (http:// af.reuters.com/article/investingNews/idAFJOE82105320120302)

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  24

On June 6 2012 police brutally supressed a protest rally by UPND with numerous beatings and arrests

9. CONCLUSION: A PRAYER FOR RELIEF
Zambia’s serious and persistent violations of the Commonwealth’s core values and principles is not a matter over which there can be reasonable disagreement. President Sata and his Patriotic Front party have acted with clear impunity since coming into power. The international community has been slow to intervene, a fact the Patriotic Front government has exploited. The Commonwealth Secretariat and its Commonwealth Ministerial Action Group bears a special responsibility to intervene. The Commonwealth holds special status in subSaharan Africa, with the promise of increased international attention should it see fit to take action and investigate these grievances. We are of the view that the case for intervention is clear and unambiguous and respectfully make the following prayers for relief: •An immediate public expression by the Secretary-General of the Commonwealth’s collective expression of concern and disapproval;

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  25

•Immediate contact by the Secretary-General with the Government of Zambia to coordinate the arrival and examination by a Commonwealth Special Envoy; •Immediate referral to the Commonwealth Ministerial Action Group for review and action on the full range of effective remedies for sustaining the Commonwealth’s core values and principles in Zambia; •The use of the Secretary-General’s good Office to encourage bilateral demarches by members of the Commonwealth with the Government of Zambia, both to express disapproval and to support the restoration of the Commonwealth’s core values and principles; •Provisional suspension of Zambia from the Commonwealth subject to the report of the Commonwealth Special Envoy to Zambia; •Any and all such further action that the Secretary-General and the CMAG sees fit to implement. There are few international organizations which have the prestige and influence to take a stand for these important values. We stress the timeliness of our appeal, as the current leadership is rapidly moving forward with a process to gain more seats in parliament in order to pass constitutional changes to cement their position in power indefinitely. These violations of Commonwealth values without impunity are destroying the constitutional separation of powers and its check and balances on the power of the presidency, creating real fears and uncertainty over Zambia’s future as a democracy. We await your valued consideration.

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  26

APPENDIX I
AFFIRMATION OF COMMONWEALTH VALUES AND PRINCIPLES (2009)
1. We, the Heads of Government of the Commonwealth, meeting in Port of Spain in this the 60th anniversary year of the modern Commonwealth, take pride in our collective achievements over the past six decades and, as we look to the future, reaffirm our strong and abiding commitment to the Commonwealth’s fundamental values and principles. 2. We reaffirm that the special strength of the Commonwealth lies in the diversity of its membership, bound together not only by shared history and tradition but also by an ethos of respect for all states and peoples, of shared values and principles, and of concern for the vulnerable. 3. We reaffirm our belief in the Commonwealth as a voluntary association of sovereign independent states whose pursuit of common principles continues to influence international society to the benefit of all. We are resolved to make the Commonwealth an even stronger and more effective international organisation as we look ahead to the rest of the 21st century. 4. We recall earlier statements through which the Commonwealth’s values and principles have been defined and strengthened over the years, including the Singapore Declaration, the Harare Declaration, the Millbrook Action Programme, the Latimer House Principles and the Aberdeen Principles.

Our Values and Principles 5. We solemnly reiterate our commitment to the Commonwealth’s core values: •International peace and security: believing firmly that international peace and security, economic growth and development and the rule of law are essential to the progress and prosperity of all; and expressing our commitment to an effective multilateral system based on inclusiveness, equity and international law as the best foundation for achieving consensus and progress on major global challenges; •Democracy: reaffirming our belief in the inalienable right of the individual to participate by means of free and democratic political processes in shaping

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  27

the society in which they live; underlining that not only governments but all political parties and civil society also have responsibilities in upholding and promoting democratic culture and practices as well as accountability to the public in this regard; and recognising that parliaments and representative local government and other forms of local governance, are essential elements in the exercise of democratic governance; •Human rights: reaffirming our commitment to the Universal Declaration of Human Rights and human rights covenants and instruments; and recalling our belief that equality and respect for protection and promotion of civil, political, economic, social and cultural rights for all without discrimination on any grounds, including the right to development, are foundations of peaceful, just and stable societies, and that these rights are universal, indivisible, interdependent and interrelated and cannot be implemented selectively; •Tolerance, respect and understanding: recognising that tolerance respect and understanding strengthen democracy and development; recognising also that respect for the dignity of all human beings is critical to promoting peace and prosperity; •Separation of powers: recognising the importance of maintaining the integrity of the roles of the Executive, Legislature and Judiciary; •Rule of law: reiterating that each country’s Legislature, Executive and Judiciary are the guarantors of the rule of law and emphasising that access to justice and an independent judiciary are fundamental to the rule of law, enhanced by effective, transparent, ethical and accountable governance; •Freedom of expression: emphasising that peaceful, open dialogue and the free flow of information, including through a free, vibrant and professional media, enhance democratic traditions and strengthen democratic processes; •Development: stressing the importance of economic and social transformation to, inter alia, eliminate poverty and meet the basic needs of the vast majority of the people of the world; seeking the removal of wide disparities and unequal living standards, guided by the Millennium Development Goals; reiterating that economic and social progress enhances the sustainability of democracy; •Gender equality: reaffirming gender equality and empowerment as an essential component of human development and basic human rights, and acknowledging the advancement of women’s rights as a critical precondition for effective and

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  28

sustainable development; •Access to health and education: reaffirming our commitment to health and education for all citizens, both as human rights and as instruments for poverty alleviation and sustainable development; and •Good governance: reiterating our commitment to promote the rule of law, ensure transparency and accountability and root out, both at national and international levels, systemic and systematic corruption. •Civil society: acknowledging the important role that civil society plays in our communities and nations as partners in promoting and supporting Commonwealth values and the interests of the people.

6. We reiterate our commitment to the core principles of consensus and common action, mutual respect, inclusiveness, transparency, accountability, legitimacy, and responsiveness.

Working Together to Strengthen our Values and Principles: Looking to the Future 7. We reaffirm our full support for the Good Offices role of the Secretary-General in supporting adherence to Commonwealth principles; in conflict prevention and resolution; and as an instrument to protect and promote the Commonwealth’s fundamental values. 8. We recognise the vital role of the Commonwealth Ministerial Action Group (CMAG) as the custodian of the Commonwealth’s fundamental political values. We call on CMAG to explore ways in which it could more effectively deal with the full range of serious or persistent violations of such values by member states and to pronounce upon them as appropriate. 9. We also express our continuing support for the Commonwealth Secretariat’s work on strengthening democratic institutions, processes and culture. In this context, we welcome the Secretariat’s collaboration with the Commonwealth Parliamentary Association (CPA), the Commonwealth Local Government Forum (CLGF) and other relevant organisations to promote best practice and democratic culture. 10. We underscore the importance of coherence in order to protect the Commonwealth’s image and credibility. We urge all Commonwealth organisations to subscribe and adhere to Commonwealth values and principles in every possible way, including by

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  29

acting in conformity with the letter and spirit of the decisions of CMAG. 11. Acknowledging the key role of elections in furthering and entrenching democratic processes and accountability, and affirming our commitment to the Commonwealth Secretariat’s work in strengthening democratic institutions, processes and culture through election observation, we endorse the proposed Commonwealth Network of National Election Management Bodies, which would facilitate experience sharing and serve to create support mechanisms, promote good practices and facilitate opportunities for peer support across the Commonwealth, thus enhancing member countries’ capacity to hold credible elections which enjoy the confidence of the people. Through this Network, we envisage the Commonwealth advancing the norm of the highest electoral standards. 12. We welcome forward-looking, contemporary and innovative initiatives that generate and strengthen creative networking and partnerships within the Commonwealth community, and that underpin adherence to the Commonwealth’s fundamental values and principles, mindful especially of the theme of the 2009 CHOGM, Partnering for a More Equitable and Sustainable Future. In that regard, we endorse the proposed Commonwealth Partnership Platform Portal, and encourage support for it. 13. We note the need to strengthen Commonwealth processes, institutional frameworks and capacities for delivering collective action and global public goods as highlighted by the Report of the High Level Group in 2001/02 and the ‘Commonwealth Conversation’. We call for the creation of an Eminent Persons Group to undertake an examination of options for reform in order to bring the Commonwealth’s many institutions into a stronger and more effective framework of cooperation and partnership. We are committed to securing a greater level of coordination and collaboration between all Commonwealth contributors and stake-holders, particularly including governments, civil society, business, the diversity of Commonwealth professional and other associations that bring together our citizens, academia and others. 14. We call for the Commonwealth Secretary-General to consolidate and further strengthen ongoing efforts to improve the Secretariat’s governance, its responsiveness to changing priorities and needs, and its ability to enhance the public profile of the organisation. We commit ourselves to supporting the Secretariat in this endeavour. We also underline the importance we attach to intensifying the Secretariat’s commitment to strategic partnerships with other international organisations and partners in order to promote the Commonwealth’s values and principles. 15. We call for the Eminent Persons Group to examine, inter alia, the format, frequency,

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  30

and content of Ministerial meetings in order to ensure that these continue to support the Commonwealth’s values and principles, and provide the greatest possible addition of value and cost-effectiveness. We affirm that such meetings should also continue to have mandates that are focused; time-bound; affordable; of the highest possible relevance at the national level and in international exchanges; and are delivered. 16. By these and other practical measures, we believe that the Commonwealth will build a stronger and more resilient and progressive family of nations founded on enduring values and principles. By such measures, we also believe that the Commonwealth will remain relevant to its times and people in future. Port of Spain Republic of Trinidad and Tobago 29 November 2009

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  31

APPENDIX II
COALITION FOR THE DEFENCE OF DEMOCRATIC RIGHTS COMMUNIQUÉ #1 October 22, 2012
Open Letter Addressed to: President of the Republic of Zambia Michael Chilufya Sata Minister of Justice Wynter Kabimba Director of Public Prosecutions Mutembo Nchito Inspector General of Police Stella Libongani RE: URGENT DEMAND TO CEASE AND DESIST UNLAWFUL VIOLATIONS OF

FREEDOMS OF SPEECH, ASSEMBLY, ASSOCIATION, EQUALITY AND DEMOCRATIC RIGHTS

Dear Sirs and Madam, We are writing to you regarding our growing concerns over the Zambian government’s illegal harassment and repression of members of the political opposition. As announced in a recent statement, the Coalition for the Defence of Democratic Rights (CDDR) represents a broad array of opposition figures and citizens whose rights to freedom of speech, assembly, association, and equality have been violated by the Patriotic Front government. This unlawful conduct by the government, which includes but is not limited to the violent dispersal of peaceful rallies, arrests of protesters, police blocking meetings of opposition parties, threats of violence and intimidation through manipulation of ethnic tensions, trumped up investigations, censorship of media, and attempts to deregister a party, all contribute to a pattern of unlawful harassment of representing breaches of Zambian law and Zambia’s obligations under international law. The CDDR is calling upon the President Michael Sata, Minister of Justice Wynter Kabimba, Director of Public Prosecutions Mutembo Nchito, Inspector General of Police Stella Libongani and other officials of the Patriotic Front government to halt with immediate effect these violations of rights and to uphold their obligations under

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  32

Zambian and international law. The rights to freedom of expression, assembly, and association are clearly articulated under Articles 11, 20, 21, and 22 of the 1991 Zambian Constitution. The Constitution is unambiguous on these rights, reading under Article 20, “no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.” The Republic of Zambia is also internationally obliged to uphold these basic civil rights. As a State Party to the African Charter on Human and Peoples’ Rights,51 the principal African human rights treaty, Zambia must respect all of its African Charter commitments. Among others, Zambia is obligated to respect the freedoms of its people to express and disseminate opinions (Article 9), their right of free association (Article 10), their right freely to assemble (Article 11), and the right of every citizen “to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law” (Article 13(1)). The African Charter further guarantees every Zambian the enjoyment of all these rights and freedoms, without permitting any discrimination on the basis of “political or any other opinion” (Article 2), and guarantees that all Zambians shall be equal before the law and are entitled to the equal protection of the laws (Article 3). Zambia is also a State Party to the United Nations International Covenant on Civil and Political Rights, which requires Zambia to respect all the same rights and freedoms without discrimination (Articles 2, 14.1, 19, 21, 22 and 25). There exists a long series of documented incidences in which the Patriotic Front government violated the rights of the opposition, and/or abused powers of the state and police to exercise prejudicial treatment toward these groups based upon their beliefs. This pattern of abuse of democratic rights of the opposition is exemplified by just two incidences this month: •October 5, 2012 – Zambian Police in Mongu blocked the Movement for Multiparty Democracy (MMD) from holding an indoor meeting of provincial leaders under the pretext of “security concerns.” The meeting was to be chaired by MMD 51. See http://www.achpr.org/instruments/achpr/

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  33

Party Vice President Michael Kaingu, who was recently unlawfully suspended from parliament for two weeks and threatened with the removal of his seat for having criticized a speech by President Michael Sata. Kaingu has broken no law, has not been charged nor tried of any wrongdoing, making this suspension a violation of his rights. •October 4, 2012 – Zambian police discharged live rounds above a crowd of supporters of opposition leader Hakainde Hichilema of the United Party for National Development (UPND). This event followed upon an unlawful blocking of a UPND rally at Kanyama in early September, which was subsequently violently repressed, as well as a tear-gassing of Mr. Hichilema, UPND supporters, and journalists inside the Lusaka Central Police Station on August 9, resulting in a number of injuries. These events build upon a number of unlawful persecutory actions undertaken by the Patriotic Front government against the opposition, including the opening of false investigations against leaders (including MMD President Nevers Mumba and Mr. Hichilema), flagrant abuse of defamation laws, illegal seizures of property and vehicles used by the parties in campaigns despite an absence of court convictions, threats to censor and shut down online media outlets supportive of the opposition, and attempts to de-register parties. President Sata, Justice Minister Kabimba, and Director of Public Prosecutions Mutembo Nchito have made a mockery out of the government’s much-touted “anti-corruption” drive, focusing instead on building politically motivated cases against former members of government while ignoring the flagrant corruption among its own ranks. It is a wellknown fact that the government has attempted to interfere in the judiciary in order to help DPP Nchito avoid paying a K14 billion debt to a state-owned bank, while Kabimba himself stands accused of several acts of corruption. Meanwhile, an internal power struggle within the ruling party between Mr. Kabimba and the Minister of Defence has revealed serious corruption allegations that have little chance of being prosecuted. Judging by the more than dozen appointments of family members throughout his cabinet, in addition to the appointment of his campaign manager to head up the lucrative Zambia Roads Agency (ZRA), President Sata has failed to distinguish private good from public good, breaching his responsibilities of office. The constitutional violations committed by this administration are too numerous to recount in full here, but simply consider the number of new ministries created without parliamentary approval, or the appointment of a Speaker of the National Assembly, Patrick Matibini,

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  34

who was drawn from the judiciary with absolutely no experience in legislative affairs. These violations and appointments are unprecedented in Zambian history. The CDDR also calls upon the PF government to halt its use of violence and threats of violence against the opposition. Upon his election to office, one of President Sata’s first actions was to order the release from prison of Judge Ngoma, a convicted felon, who was routinely used by the ruling party to physically harass and beat members of the opposition. Many Zambian citizens remember Sata’s role as President Frederick Chiluba’s Minister without Portfolio from 1996-2001, during which time he was alleged to have organized violent machete-wielding cadres who violently threatened and attacked opponents and voters. Given several recent confrontations of PF cadres at public events, including the funeral of Mama Betty Kaunda, an attitude of brutality continues to prevail among the current leadership. Following several arrests, the Electoral Commission of Zambia has issued a report confirming violent attacks against the MMD by hooligans linked to the ruling party in the lead up to the Mufumbwe bye-elections scheduled for November 9. The constant threat of state-sponsored violence in Mufumbwe against the opposition creates unfair conditions for an election. This proclivity for threats of violence on behalf of the ruling party was also exhibited in the circulation of two false media articles that sought to manipulate ethnic tensions to their political benefit. One article, published in the government-loyal Post Newspaper on 20 July, a fictitious anonymous source was cited claiming that former President Rupiah Banda was against the interests of the Bemba tribal grouping. Then on 3 September, state-owned ZNBC broadcast a story concerning a letter from an invented terrorist group known as “Tongas Under Oath,” which claimed that the Southern minority ethnic grouping had plans to murder other tribes in Zambia. Both news stories, revealed as hoaxes, are attributed to have originated from within the ruling party by the vast majority of observers. However Inspector-General of Police Stella Libongani has neglected to order any investigation of who was behind the inflammatory Tongas Under Oath letter. This kind of official use of threats of violence as a political instrument is nothing short of outrageous, and will soon attract the urgent concern of both the donor community as well as foreign investment. We believe that Zambia deserves better than a government that wilfully breaks the law to deny citizens their right to participate in politics. We believe that Zambia deserves to have a leadership that is accountable before the law and which uphold the country’s international commitments.

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  35

The CDDR hereby announces the opening of a comprehensive investigation and documentation of these acts of illegal persecution and violation of democratic rights by the Patriotic Front, which shall be published and distributed to key international bodies. The CDDR is joined by two highly regarded international law experts who will be assisting in the preparation of these filings. This report, which will begin the process of naming those state officials and individual members of the police, welcomes the participation of any and all citizens who feel that their rights to free expression, assembly, association, equality and participation in democracy have been violated by the state, regardless of political, ethnic, or religious persuasion. As we await your response, the CDDR reminds you of your obligation to serve the needs of the people above all else, your responsibility to conduct yourselves according to the law, and lastly, to eternally uphold the essential democratic value of accountability over impunity. Sincerely,

Robert Amsterdam Coalition for the Defence of Democratic Rights http://cddr-zambia.org

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  36

APPENDIX III
STATEMENT BY THE LAW ASSOCIATION OF ZAMBIA 11 December 2012
The LAZ is mandated under Section 4(l) and (p) of the LAZ Act Chapter 31 of the Laws of Zambia (“the Act”) to seek the advancement of the rule of law and the rights of the individual and to do all such things as may be necessary for the attainment of its objectives set out in section 4 of the Act. It is against this background that the association deemed it necessary to issue this statement in the face of recent events and occurrences in the Nation indicative of a breakdown of the rule of law. Sadly, these events and occurrences have, by and large, been orchestrated by the Executive arm of Government in apparent abuse of the power and authority vested in it. Of particular concern to LAZ are the following:

1. Corruption matters: The attention of the media and the general public has recently been drawn to the investigations being carried out by the Anti Corruption Commission (“ACC”) with respect to two very senior members of the Government, namely the Honourable Minister of Justice Mr W. Kabimba S.C. and the Honourable Minister of Defence Mr Geoffrey B. Mwamba. On 4th December 2012 we issued a statement condemning the behaviour of the Minister of Justice with respect to this investigation as it was a mockery to the justice system. Subsequently, His Excellency the President of the Republic of Zambia, Mr Michael Chilufya Sata was quoted by a wide section of the media supporting the actions of his Minister of Justice in defying the intended interview at the ACC and declaring that he would not suspend either of the two Ministers facing allegations of corruption until it is proved to him that they are guilty of the acts complained of. His Excellency further stated that senior members of the party are not to be investigated and thus prosecuted without the investigative wings first obtaining permission from him. LAZ wishes to reiterate that the actions of both the ACC and the Minister are inconsistent with what is expected of a well functioning institution charged with investigating matters of a serious nature such as the allegations the Honourable Ministers are facing. We maintain that the Honourable Minister of Justice erred by using his influence in the ruling party and in the Government to intimidate the investigating officers. This

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  37

situation does not in any way assist in the dispensation of justice and LAZ reiterates its call that the Ministers involved should proceed on leave to allow for a free investigation which it is hoped will exculpate the Ministers. We equally call on the ACC to exhibit the level of professionalism expected of them in the execution of their duties. On his Excellency’s pronouncement that permission ought to be sought from him prior to the commencement of investigations against senior members of the party (PF we assume), we wish to inform the public that no such provisions of the law exist. Even assuming that such a law by misfortune exists, LAZ wishes to state that such a state of affairs cannot be allowed to exist as it is a recipe for anarchy and is decidedly in contravention of the provisions of Section 3 of the Anti Corruption Act No 3 of 2012 by which the autonomy of the ACC is guaranteed. The assertion by his Excellency the President that the law requires ACC to get permission from him before investigating or prosecuting a party or government official is therefore misplaced and wrong. We implore the Executive, for the sake of justice and good order, to observe the rule of law and allow the investigative processes and procedures to reach their natural conclusions without any explicit or implied undue influence from the executive.

2. Recent deportations: LAZ has observed, with increasing concern, the use of the powers vested in the Minister of Home affairs seemingly to achieve ends that may not be in the wider interests of the general public. The perception that has been created by the recent spate of deportations and revocations of permits to remain in Zambia is that the power to deport is being used unlawfully against persons that are not in good standing with the ruling party or its close allies or associates. The Executive should desist from these acts if indeed they are being perpetuated for the perceived purpose. LAZ appreciates that the decision in these circumstances is made purely in the subjective approbation of the Minister of Home Affairs. While this may be as it is, it is not in the best interests of the country. This type of conduct does little to improve the perception that the investor community will have of our country if it appears that the Government of the day is in the habit of maligning personalities and targeting deportations at companies that are not seen to be in “tow” with the ruling PF party. To effect deportations without according the affected persons an opportunity to be heard flies directly in the teeth of Natural Justice. We are alive to the fact that the

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  38

Immigration and Deportation Act does give the Minister discretionary powers but we are of the considered view that such powers must be used judiciously and it appears to us that this is not the case in respect of the recent deportations which have been widely reported in the media. We have sufficient laws as a Country to deal with many scenarios and we implore the government to make use of such laws where an offence has been committed or is suspected to have been committed rather than effect unnecessary deportations. Proceeding in this suggested manner will promote the rule of law in that affected persons will be given opportunities to be heard and defend themselves. This is how we would expect Zambians to be treated should they find themselves in similar circumstances in foreign country.

3. Stakeholder Engagement The LAZ has noted that despite its numerous attempts to assist the Executive with the Governance of the Nation by offering its advice on matters of far reaching legal consequence the Executive has largely chosen to ignore LAZ on such matters in consequence of which the rule of law has either been jeopardised or put at serious risk. As a key stakeholder in the affairs of the State, LAZ finds the stance taken by the Executive most unfortunate. The above notwithstanding LAZ will continue to contribute to the development of the rule of law in this Country by whatever means allowed under the law. We will were possible strive to partner with and work closely with the Government of the day on an apolitical and non-partisan basis but we must emphasise that in the fulfilment of its mandate the LAZ will not hesitate to seek redress from the Courts of law on any matters of National concern where government actions are clearly unconstitutional and go unremedied. The LAZ is committed to fostering development and prosperity under the leadership of the Government but reiterates that the reasonable attainment of this goal can only be realised in an environment where the rule of law is respected and observed. We therefore urge the Executive to take corrective action now to avoid a total breakdown in the rule of law.

ZAMBIA: VIOLATIONS OF THE HARARE DECLARATION  39

Sign up to vote on this title
UsefulNot useful