VI. HUMAN RIGHTS COMMISSION

Summary

Given Zambia's generally poor human rights record, the establishment of a permanent Human Rights Commission (HRC) in March 1997 was, in principle, a welcome development. The Zambian government is to be applauded for creating an institution to hear individual claims of human rights abuse and maladministration of justice.

Yet there are substantive problems with it, and its creation raises many questions. Does this commission represent change? Or is this a mirage of legal change?

Although the Zambian government has portrayed the Human Rights Commission as a permanent and autonomous human rights "watch dog," the most pressing question is whether the commission really has "muscle," as well as the will to use it.

Background

In August 1996, three months before the election, the MMD published its revised manifesto, the party's political platform for its election campaign. Echoing presidential campaign rhetoric in the United States, President Chiluba described the manifesto as a blueprint to take the country into the 21st century. The document's preamble claimed that since 1991, the MMD-government had made numerous steps towards observing and protecting fundamental human rights and stated that one of its major challenges was to "to institutionalize what has beenachieved so as to make Zambia the haven of human rights, not subject to disruption even in the change of government."189

Beyond 1996, the revised manifesto pledged the government's commitment to establish a Human Rights Commission; to ratify international treaties on human rights; and to provide for the protection of human rights as declared in the constitution. On other human rights issues, the manifesto also promised to improve the criminal justice system; to reform the police and prisons systems by improving training and de-politicizing them; to intensify training in human rights generally, including in areas related to violence against women, gender issues, and child abuse; and to strengthen civic education bodies and other NGOs involved in human rights propagation. On paper, the government renewed its commitment to human rights recognitions, but in reality, the 1996 manifesto shared much with the 1991 manifesto. The best that could be said was that the government set into motion progress towards some of its earlier goals.

Three years earlier in May 1993, the Munyama Human Rights Commission, named after its chairman, Lusaka-based lawyer Bruce Munyama, had been appointed by President Chiluba. Its mandate was to investigate and establish violations of human rights during the Second Republic years (1972 to 1991) as well as violations that occurred in the Third Republic (after October 30, 1991 when the MMD came to power). Initially the MMD had opposed investigation of violations during its term, but yielded to internal and international pressure to widen the remit.190

The commission operated for two years in a generally favorable and cooperative climate until July 1995. In the findings it submitted to the president in September 1995, the commission recommended that certain parts of the Public Order Act, Zambia's Security Intelligence, and the State Security Act be amended. The report exposed the existence of secret detention centers throughout the country where human rights abuses took place in both the Second and Third Republic years. Close to 1,000 people had been detained between 1972 and 1993 under the public security regulations. Significantly, the commission's findings also highlighted that violations of human rights and torture were occurring on a significant scale in the MMD Third Republic years.191 The commission recommended that victims of state security abuses be compensated, but it did not propose that offenders be prosecuted.

The government's White Paper response was not released until a year later, October 1, 1996.192 In it, the government announced its intention to establish a permanent human rights commission that would submit annual reports to the president and parliament. It granted the commission the power to investigate complaints of violations freely, visit jails and detention centers and make recommendations to the president and parliament on effective measures to promote human rights and provide compensation.193

Although the White Paper was released on October 1, copies were difficult to obtain. When Human Rights Watch/Africa visited the Government Printer in Lusaka on February 19 and asked the Sales and Advertisements official for copies of the Summary of the Munyama Human Rights Commission, Human Rights Watch/Africa wasinformed that it had not been printed yet. When Human Rights Watch responded that we had already received one copy in London, the official reluctantly admitted that they had been printed but that the "Office of the president had taken them all." At the dispatch section of the Government Printer, another official admitted that they had plenty of copies, that we should ask for Government Paper No.2 of 1996 and that it cost K2,500 (U.S.$1.90). The official of the Sales and Advertisements department who refused to give his name, when confronted with this information, said he was under State House orders only to sell summaries to diplomats. 194 Likewise, it was difficult to obtain a copy of the law that established the Human Rights Commission, which had been circulated to diplomats in Lusaka in late February by the State House. After being told they were unavailable at the Government Printer, Human Rights Watch/Africa obtained a copy from a foreign diplomat in Lusaka.195

After the publication of the White Paper, there was little official talk about the Human Rights Commission. The November 1996 elections and their outcome clearly monopolized the government's attention until late March 1997 when the Human Rights Commission Act was signed into law. The opposition did not submit nominees, as part of its boycott of the election and subsequently, the workings of the National Assembly. A parliamentary select committee was responsible for the nomination process.

The Human Rights Commission Act (1997)

The Human Rights Commission Act of 1997 was passed by the Zambian parliament on March 13 and signed into law by President Chiluba the next day. On the same day, the Electoral Act of 1997 was made law. Both acts took effect on March 31, 1997.

The Human Rights Commission Act has been billed as a central pillar of the MMD's efforts of legal reform. The state-run Zambian press described the bill as "two democratic legislatures [sic] which are being set into law for the first time," whose purpose is to "enhance and consolidate foundations of democracy."196 Commenting on his government's reform efforts, President Chiluba said, "The rule of law was not popular in the Second Republic in which leaders were above the law, but in less than six years of our reign, we have set into motion the law reform programme which we promised."197 The Zambia Daily Mail credited the government with setting up an autonomous judicial system and a Human Rights Commission and creating a Parliamentary and Ministerial Code of Conduct Act.

Quoted on ZNBC radio, Vice-President Godfrey Miyanda said the creation of the commission to investigate human rights abuses was an indication of the government's effort to uphold democracy and the rule of law in the country. He said that the opposition parties "were also invited to send representatives to the commission but they declined because of alleged mistrust between the government and the opposition.198

In a section on the Human Right Commission that the government included in its brief to the donors before the pre-Consultative Group meeting, the Government portrayed the commission as part of its "institutionalframework" that indicated the "substantial and irreversible progress" the government had made. According to Section 10(d):

Human Rights Commission (HRC)-Parliament passed a Human Rights Act (No. 39 of 1996) to provide for the establishment of a permanent and autonomous Human Rights Commission to be a watch dog on human rights violations and maladministration of justice. It will also oversee the implementation of the recommendations of the temporary Human Rights Commission which was appointed in 1994, under the chairmanship of Mr. Bruce Munyama. The President signed the enabling Statutory Instrument (No. 34 of 1997) on March 14, 1997. The Commissioners, led by an eminent judge, have been ratified by Parliament and were sworn in on 4 April, 1997.

Finance and Economic Development Minister Penza, in his speech at the pre-Consultative meeting in London on April 25, highlighted the Government of Zambia's creation of the Human Rights Commission as a measure of its commitment to human rights.199

The real test of the commission will be in its actions. The commission's record over its first year will go some way toward answering the following pivotal questions:

* Does the HRC possess real investigatory capacity?

* Can the HRC institute real and serious investigations?

* Will the HRC go beyond perfunctory investigations and pursue an agenda that encompasses issues of national importance?

* Does the HRC have the requisite budget and infrastructure?

* Does the HRC have the independence required to investigate the government's actions and make public its findings?

To sum up the questions differently, one might ask, does the commission have the will and the means to perform the tasks given it by law?

According to Section 9 (a-f) of the Human Rights Commission Act (1996), the commission's functions are to:

(a) investigate human rights violations;

(b) investigate any maladministration of justice;

(c) propose effective measures to prevent human rights abuse.

Its investigatory powers include the power to investigate any rights abuse. According to section 10 (2), the commission is empowered to:

(a) issue summons or orders requiring the attendance of any authority before the Commission.

However, the weak link is in section 13 (1), "Recommendations" which grants the commission the power to:

(a) send written reports of its findings to the parties concerned; and

(b) dependent on the findings made, make such recommendations as it considers necessary to the appropriate authority.

In short, the act gives the commission no power to enforce its findings beyond that implicit in its capacity, should it choose to use it, to make public its findings. Instead, it has the power to make recommendations to the appropriate authority, which has the power to enforce or reject its recommendations. A human rights commission that does not have the necessary investigative capability and the will and means to make its findings and recommendations heard may prove to be a paper tiger.

The creation of a human rights regime with clout represents a law-making process whereby the participants limit "some of their own future options by establishing a set of criteria under which they could henceforth be criticized" by public opinion and possibly be removed from power in terms of the legal symbols established by the human rights regime.200

The HRC may indeed prove to be an institution that was never expected to perform its watchdog function. Should the commission fail to show independence and energy in the defense of human rights, its efforts to create the impression that it effectively protects human rights will be subject to challenges.

The Commission Members

To date, the HRC appears to have no operational program, with no significant activities on record, except for the announcement of the appointment of HRC members, most of whom lack robust human rights credentials. The president appointed the commission members quickly, and a select committee of parliament approved them in one day. Many of the nominees were approached by a letter or phone call from the president on March 19 or 20, invited for an audience at the State House, or asked to attend a Select Committee hearing on March 22 with little time for briefing.201 Vernon Mwaanga chaired the committee, along with ten other parliamentarians, none of whom have had any human rights experience. According to individuals who attended the hearings, few questions related to human rights were asked, and much of the background briefing on the candidates was from the State House. Even within MMD circles, there was consensus that the ratification of the appointees had been rushed without opportunity for debate or discussion. In fact, the proceedings were so quick that many have wondered whether the government was trying to have the commissioners sworn in before the April 25 pre-Consultative Group meeting in London.202

The greatest concern is that most of the commissioners do not have human rights credentials or records of commitment to human rights. Of greater concern is that as presidential appointees, the new commissioners may not have the moral weight or authority to present or assert independence or to break away from the governmental status quo. The commissioners are on three-year renewable contracts, and renewal is subject to presidential and parliamentary approval.

An ominous sign of the probable structural and decisional dependence of the Human Rights Commission is that the cabinet office has told the commissioners that their desire to conduct a study mission on how the HumanRights Commission works in South Africa would need President Chiluba's permission. Such behavior suggests that the government does not intend to allow this commission to operate with autonomy.203

The commissioners appointed were the:

* Ndola High Court Judge, Justice Lombe Chibesakunda as chairperson

* Former UNIP MP Lavu Mulimba

* Former member of the Constitutional Review Commission John Sakulanda

* Human Rights Association of Zambia President Dixon Konkola

* Retiring Principal of Justo Mwale Theological College, and former Foundation for Democratic Process (FODEP) President Foston Sakala

* Lusaka principal resident magistrate Francis Nsokolo, who was appointed to the HRC in a letter dated March 20, signed by President Chiluba, which said that Nsokolo would take up the appointment as soon as it was ratified by parliament.204

According to the law, one additional appointment can be made. Although it was reported in the press that Lavu Mulimba is the vice-chair of the commission, his letter of appointment does not mention this; Human Rights Watch/Africa understands that the government has found it difficult to fill, and the position remains vacant. A number of people reportedly approached rejected the offer, including Alfred Chanda, president of FODEP, who was invited to be director of the commission but turned it down. Michelo Hasungule, a respected Zambian academic from the University of Lund, Sweden, was also reportedly offered the position of vice-chair and rejected it. Minister of Finance and Economic Development Ronald Penza in his address at the London pre-Consultative Group meeting on April 25, 1997, stated that:205

I wish to recall that in response to the Government's invitation to Opposition Parties and civic society to suggest nominations for membership of the Permanent Human Rights Commission, FODEP nominated a candidate who became member of the Commission. A further prominent personality with a UNIP background was also included as a permanent member in the Human Rights Commission.

However, despite an invitation to do so, all the main opposition parties, including UNIP and ZDC, refused to nominate candidates for the commission and the main NGOs too. Human Rights Watch/Africa asked FODEP whether they had nominated anybody but were told by FODEP President Chanda that, "Foston Sakala is a trustee of FODEP, but we certainly never nominated anybody to be a candidate for the Human Rights Commission. That is not true. We have many questions about how this Commission can really function."206

Human Rights Watch/Africa has also established that the Cabinet Office recently allocated K2 million (U.S.$154,560) for the setting up of the commission and an assistant director has been hired, although the commissioners estimate they need at least two billion kwacha. At the time of writing, the commission continued touse a borrowed room in the High Court; its chair, Justice Lombe Chibesakunda, still resides in Ndola and is hearing cases there, traveling occasionally to Lusaka; and the stipends to be paid to the commissioners have yet to be determined. The Cabinet Office has also told the commissioners that their desire to conduct a study mission to learn how the Human Rights Commssion works in South Africa would need President Chiluba's permission.207

Human Rights Watch/Africa interviewed a number of commissioners who wished to remain anonymous but confirmed problematic areas in the Human Rights Commission. 208 With regards to the selection process, they identified the following issues of concern:

* the parliamentary Select Committee that interviewed the commission nominees was an ad hoc body;

* the process was rushed;

* in-depth human rights questions were not asked of the nominees;

* each candidate was interviewed for only thirty minutes;

* most of the commissioners do not have human rights backgrounds or experience; and

* no provision for training has been made, although the ministry of finance has said it will find some start-up funds.

With regard to the commission itself, these members identified the following issues:

* the lack of a sufficient budget;

* that the only term of reference is the Human Rights Commission Act;

* that they will only be able to produce recommendations and not be able to make a proper impact.

The announcement of the HRC appointments generated intense debate. The lack of transparency and accountability in the selection process drew angry responses from civil society leaders. The government went to some length to portray the establishment of the Human Rights commission as a success and to deflect criticism. On April 2, for example, Vice-President Brigadier-General Godfrey Miyanda told Malawi's high commissioner to Zambia that as always the "armchair critics" were criticizing the recently ratified composition of the HRC. The appointees, he said, all had credible records and were "citizens of unquestionable record who would carry out their duties without being partisan." He said Zambia was among the few countries in the world that could boast of having established a permanent HRC, and that when the MMD took office, it had established a temporary commission to investigate abuses in the Second and Third Republics.209 The state-run newspapers carried a number of articles that echoed this message. The April 5 issue of The Daily Mail ran a story with the upbeat headline, "Rainbow Monitors Okays HRC."

While support for the establishment of an effective HRC was apparent, criticism of the actual process of appointments and the act creating the body was strong. John Sangwa, a lawyer who specializes on human rights issues in Lusaka, told Human Rights Watch/Africa: "The Human Rights Commission is cosmetic. It's just to keep the donors happy; it has no powers and few resources. Many of the commissioners also have questionable credentials. It is a great disappointment."210

The Commission's Budget

The issue of the HRC budget is a source of considerable concern. The commissioners that Human Rights Watch/Africa interviewed were themselves worried by the fact the commission has no budget or facilities. Theministry of finance was responsible for finding start-up funds for the commission, but such support was not present in the annual budget, and by the end of May, funds were still not forthcoming. Since the commission was formed in March, the commissioners have been temporarily housed in a small room provided for them at the High Court building. The lack of an independent financial base and the fact that provisions for funding the commission were not included in the act means that the commission is subject to government control, if not whim. To carry out its mission, the commission needs a budget and the capacity to hire supporting and investigative staff, including lawyers and researchers. It must also move into an appropriate facility with sufficient resources, such as a documentation center, in order to create and maintain institutional memory.

Until the matter of funding is resolved, it is impossible to know how these issues will be tackled. What is clear is that an underfunded commission will not be able to execute its mandate. Human Rights Watch/Africa has established that the Cabinet Office recently allocated K200,000 (U.S.$154.50) million for the setting up of the Commission and an assistant director has been hired, although the commissioners estimate they need at least two billion Kwacha (U.S. $1545.59). At the time of writing, the Commission remains squatting in a room in the High Court, its chair, Justice Lombe Chibesakunda, still resides in Ndola and is hearing cases there, traveling occasionally to Lusaka and the salaries of the commissioners have yet to be agreed.211 Comparisons with other human rights commissions across the continent also underscore the importance of funding. The African Commission on Human and Peoples' Rights, for example, established under the auspices of the Organization of African Unity (OAU) in 1986, is widely regarded as having failed to fulfill its mission to address human rights violations across the continent. The reasons are manifold, but in large part it is because it appears to have been deliberately underfunded. Financial control by governments of an institution whose purpose is to criticize and challenge their human rights conduct is one way of ensuring that the state's authority and power base are not eroded. In short, operational ineffectiveness and inefficiency need not be accidental but may be built into the design of a human rights regime, intended to not succeed.

FODEP Chairman Alfred Chanda commented to Human Rights Watch/Africa: "It will be sad if the commission will be reduced to the impotence of other commissions which have virtually become moribund due to lack of necessary resources." 212