July 1997 Vol. 9, No. 3 (A)

ZAMBIA

THE REALITY AMIDST CONTRADICTIONS

Human Rights Since the 1996 Elections

I. SUMMARY AND RECOMMENDATIONS 3

Recommendations to the Zambian Government 4

Recommendations to All Political Parties 5

Recommendations to the International Community 5

II. BACKGROUND 6

III. THE RIGHT TO FREEDOM OF EXPRESSION 9

Summary 9

The MMD Government's Policies and Positions: on the Record 9

The MMD Government vs. the Independent Press 12

Freedom of Expression since November 1996 14

The Media Council Bill 23

IV. HARASSMENT OF GOVERNMENT CRITICS AND INDEPENDENT VOICES 28

Background 28

After the Elections 29

The MMD Government and the Opposition: Theory vs. Practice 31

Harassment of the Opposition 33

Harassment of Witnesses in the Presidential Petition 37

The MMD Government and NGOs: Theory vs. Practice 39

Harassment of Civil Society and NGOs 40

Harassment of the Church 47

Intimidation of the Judiciary 47

V. THE DEATH PENALTY 49

VI. HUMAN RIGHTS COMMISSION 51

Summary 51

Background 51

The Human Rights Commission Act (1997) 53

The Commission Members 55

The Commission's Budget 57

VII. THE INTERNATIONAL RESPONSE 58

Background 58

International Reaction to the Elections, Human Rights Conditions and the Political Impasse 61

Human Rights and Economic Assistance 66

The Importance of Conditionality 69

VIII. ACKNOWLEDGMENTS 71

I. SUMMARY AND RECOMMENDATIONS

On November 18, 1996 presidential and parliamentary elections were held in Zambia, five years almost to the day after the first multiparty elections in November 1991. But these were very different elections. The 1996 election results returned President Frederick Chiluba and his Movement for Multiparty Democracy (MMD) to power with the majority of the contested seats in what was presented as a landslide victory; but, in reality, it was a hollow defeat of an opposition that had chosen to boycott the electoral process. Numerous human rights violations before the vote-centered on the MMD's manipulation of the constitutional reform process-had seriously undermined the democratic process by tilting the process strongly in favor of the MMD. As the fairness of the elections was seriously in question, President Chiluba took his second oath of office in a climate of intense hostility and resentment. International ambivalence over rights conditions in the run-up to the election had resulted in a decision by the major donors to maintain the aid freeze that specifically targeted balance of payments support. Discredited and facing near bankruptcy, the Chiluba government has made some attempts in the six months since its re-election to improve its human rights record, with a view to addressing this obstacle to aid flows being resumed. The advances on rights issues, however, have been in large part superficial.

President Chiluba has made and continues to make statements of commitments to the principles of freedom of expression. But there is a disjuncture between what he espouses and his government's current practice. While there were fewer incidents of harassment and intimidation of the independent media in the post-election period, those incidents that did occur were in blatant violation of the norms of freedom of expression. The patterns of criminalizing freedom of expression persisted in the charges before the courts against The Post newspaper; the three-month imprisonment in February of journalist Masautso Phiri for a newspaper column he wrote; and the imprisonment of three journalists from The Chronicle newspaper.

Zambia Information Service acting deputy director Mundia Nalishebo was suspended with five other journalists working for the state media on November 25 after allegations were made that they had collaborated with an election monitoring group that had found the elections neither free nor fair. Most ominously, the state tried to introduce legislation in the form of the Media Council Bill, which, by forcing journalists to register with the state, would have stripped ineligible journalists of the right to work. Those who continued to work but were not in compliance would face jail terms and fines. After considerable controversy and international outcry, the state suspended consideration of the bill in April. It has yet to be tabled.

The MMD government's record on respecting the right of assembly and association has been poor, although there was some insignificant improvement following the November 1996 elections. At his inauguration speech on November 21, President Chiluba warned nongovernmental organizations (NGOs) that they should not "instruct" the authorities, and in the following days, the government threatened to pass anti-NGO legislation if NGO's continued to act in an "anti-patriotic" manner. Following the announcement by the Committee for a Clean Campaign that the elections had not been free and fair, the situation deteriorated. On November 24 and 25, police raided the Lusaka offices of the Zambia Independent Monitoring Team (ZIMT), the Committee for a Clean Campaign (CCC), and the offices of the Inter-Africa Network for Human Rights and Development (AFRONET). Despite the intervention of lawyers who insisted that the search warrants (to look for "stolen" goods) were not valid, police seized files, documents, bank books and statements, computer diskettes and pamphlets. Many of these still have not been returned, and charges of receiving financial and material assistance from foreign governments and organizations were brought against these organizations .

The Foundation for Democratic Process (FODEP), which also concluded that the elections were not free and fair, was also targeted by the government. FODEP had received tax exempt status from the Zambia Revenue Authority (ZRA) because it was operating on a grant aimed at strengthening the democratic process, including election monitoring of parliamentary and local government elections. But On December 19, it received a tax demandfor outstanding tax arrears for K27 million (approximately U.S.$21,000): shortly afterwards, tax authorities confiscated all of the funds in FODEP's bank account.

The opposition has also been harassed in the immediate post election period. For example, the main opposition party, the United National Independence Party (UNIP), found its attempts to hold a peaceful rally in Ndola in February blocked by the police. Relatives of senior UNIP officials have also been subject to harassment: Vida Ngoma, the eighty-year-old aunt of Betty Kaunda, former President Kenneth Kaunda's wife, was detained and kept in a cell for two days-with a man's corpse-after police searched her house without a warrant.

For much of early 1997, a petition challenging the fairness of the elections and President Chiluba's constitutional right to the presidency before the Supreme Court has been a focus of Zambian political life. The petition, being heard in the Supreme Court and brought by the opposition against President Chiluba, challenges the elections and President Chiluba's constitutional right to the presidency. Some of the witnesses brought to testify in this case have been harassed, with death threats being reported by some witnesses. One witness, Theresa Mulenga Kalo, was arrested and held for several days by police after she testified, three other witnesses reportedly went into hiding, apparently out of fear of arrest.

The establishment of a permanent Human Rights Commission in March 1997 was, in principle, a welcome development. The Zambian government was to be applauded for creating an institution with a mandate to hear individuals' claims of human rights abuse and the maladministration of justice.

The commission's composition and its limited resources and powers still raise many questions. The hasty process by which the government appointed its members, most of whom lack robust human rights credentials, has drawn broad domestic criticism, and to date the commission appears to have no program and no activities to report. The commission also lacks premises and resources. The promotion of the commission's creation internationally, with a view to improving Zambia's image, has also contrasted with its public profile in Zambia. Officials of the government printing office there told Human Rights Watch that the documents concerning commission were available "only to diplomats," after initially denying they had ever been printed. These documents have, however, been widely distributed to international donors; indeed there is reason to believe that the creation of the commission was rushed so that it would be in place prior to the April 25 preliminary meeting of the Consultative Group of donors, in London. The commission has not had an auspicious start.

The international community's efforts towards seeking improved human rights and good governance practice in Zambia have been exemplary. The resolve to employ the stick and carrot approach of offering renewed balance of payments support in return for positive actions by the Zambian government has had some results. At the forthcoming July 10-11 Consultative Group meeting in Paris, agreed balance of payments resumption needs to be phased in tandem with built-in conditionality so that these minor improvements are likely to become meaningful and sustainable.

This report, based on two Human rights Watch/Africa investigative missions to Zambia in February and April, looks at the human rights record in Zambia since the 1996 elections.

Recommendations to the Zambian Government

Based on the findings of this report, Human Rights Watch/Africa calls on the Zambian government to:

* Facilitate debate of the proposals of the 1995 Mwanakatwe Constitutional Review Commission 1995 proposals that major constitutional reforms first be agreed to by a constituent assembly and be subjected to a referendum;

* Facilitate the establishment of a truly independent Electoral Commission and an accurate and credible register of voters;

* Call fresh elections to a constituent assembly to review and, as appropriate, amend the Constitution of 1991 and the Constitutional Amendment Act of 1996;

* Ensure that all Zambians have the opportunity to participate meaningfully in the constitution-making and reform process through open, public debate and analysis until consensus is reached;

* Re-appoint commissioners on the permanent Human Rights Commission through a process that is transparent and open to national debate and dialogue. Ensure that commissioners are elected in a manner that is objective and nonpartisan and that is not subject to political bias;

* Abide by the international human rights treaties to which Zambia is a party, notably the International Covenant on Civil and Political Rights, taking action to this effect to:

* guarantee the independence of the judiciary as required by Zambian and

international law;

.

* respect freedom of expression, lifting arbitrary restrictions on the print media

and public broadcasting and ceasing harassment and arbitrary detention of

journalists, political commentators and others solely for the expression of their

opinions;

* respect freedom of assembly, lifting the arbitrary restrictions imposed by law and

in practice on public meetings and halting arbitrary police actions to ban or

disperse such meetings and demonstrations;

* respect freedom of association, halting arbitrary arrests, intimidation and acts of

violence targeting participants in nonviolent civil organizations;

* recognize the rights of human rights defenders in Zambia to monitor, investigate,

and speak out on human rights concerns and freely to associate with others

nationally and internationally in the promotion and protection of human rights;

* investigate allegations of police abuse and improper treatment of those in detention and hold those found responsible accountable before the law;

* provide government officials and police with special training about human rights standards and protection, while instituting procedures that ensure the effective investigation and criminal prosecution of violations of human rights, especially through the permanent Human Rights Commission.

* Abolish the death penalty in any of its forms.

Recommendations to All Political Parties

Human Rights Watch/Africa recommends all Zambian political parties to:

* Publicly advocate the protection and respect for human rights in their platforms and promise to hold party members who commit human rights abuses accountable.

Recommendations to the International Community

Human Rights Watch/Africa recommends the international community to:

* Maintain the pressure and continue to tie assistance, particularly balance of payments support, to the achievement of clear and firm benchmarks that lead towards democratic and human rights progress. This strategic use of aid to ensure compliance is all important;

* Ensure a linkage of balance of payments support to cooperation between the government of Zambia and all national stakeholders and a respect for human rights and the rule of law;

* Utilize conditionality as a human rights instrument; but also use policy dialogue and positive measures as incentives not only to encourage change but also to maintain and perpetuate improvement in human rights observance;

* Provide further moral, financial and technical support to the efforts of organizations of civil society such that they may play an active role, particularly in monitoring, lobbying and campaigning for improved human rights standards;

* Target aid to support an independent judiciary, the development of a robust and independent Human Rights Commission and the independent media;

* Leave humanitarian or development aid unrestricted. Poverty alleviation projects should be furthered and encouraged.

Human Rights Watch/Africa calls on The World Bank's Consultative Group for Zambia to:

* Continue the Bournemouth meeting's agreed pressure on the Zambian government for "tangible progress on the governance issue," and include specific reference to human rights as integral to this;

* Maintain unity in the continual pressure for an improved Zambian government performance on human rights as integral to good governance.

Human Rights Watch/Africa calls on Canada, E.U. member states, Japan, Norway, and the United States to:

* Encourage their diplomatic representatives in Lusaka to continue their commitment to the vigorous promotion of human rights in Zambia by meeting regularly with the Zambia human rights community, publicly denouncing human rights abuses and using their bilateral assistance to Zambia to achieve maximum leverage on human rights.