By Muna Ndulo
The late Nigerian author Chinua Achebe in his book The Trouble with Nigeria, observed that:
“One of the commonest manifestations of under-development is a tendency among the ruling elite to live in a world of make-believe and unrealistic expectations.
This is the cargo mentality that anthropologists sometimes speak about-a belief by backward people that someday, without any exertion whatsoever on their own part, a fairly ship will dock in their harbor laden with every goody they have always dreamed of possessing.”
Listening to some Zambian politicians defend the current situation in the country reminds one of Achebe’s observation. Zambians in the midst of the governance decay that is apparent to the whole world, talk about the country as an oasis of peace and a beacon of democracy in Africa and the world.
One wonders what their definition of democracy and peace is. Perhaps it is the peace of the grave that Martin Luther King much derided. If Zambia is an example of democracy then most certainly democracy has reached its demise.
Surely in a country that detains its citizens indefinitely, that allows its police to use force and torture cannot call itself peaceful or democratic.
Neither democracy nor peace is present when citizens are denied freedom of assembly or safety from harassment within the confines of one’s own home. This in itself is torture which has many dimensions and need not necessarily involve physical injury.
Anyone who criticizes what is obviously a tragic situation is labeled unpatriotic and a friend of the opposition.
Non-citizens are told not to interfere in the affairs of a sovereign state, conveniently forgetting that sovereignty entails both rights and responsibilities. Under the doctrine of state responsibility, a state is required to guarantee human rights to its citizens.
Besides, both the doctrine of sovereignty and human rights are creatures of international law. An international norm cannot be a defense for violating international law. This is especially so for civil and political rights. Moreover, torture is a peremptory norm in international law and has implications both at the national and individual level. At the national level it delegitimizes any executive, judicial or legislative action that encourages torture. At the individual level, the position or circumstances of office cannot insulate those who are responsible for such violations.
Of course, it is not the duty of office of any state authority to authorize, approve, engage in or in any other way cause the torture of a citizen. We should not forget that history teaches us that in 19th century fascists rejected reason in the name of the people, denying objective truth in favor of a glorious myth articulated by leaders who claimed to give voice to the people. To abandon facts is to abandon freedom.
The use of torture by the Zambian police has become almost endemic. It has become informally institutionalized in the police force as a means of obtaining false confessions and of administering extra judicial punishment and humiliation on all those perceived to be opponents of the government. Detention has become synonymous with torture and should be a concern for all citizens. Typically, the worst forms of torture and humiliation are reserved for persons who are victims of politically motivated arrests.
The treatment of the leader of UPND and those arrested with him is a clear violation of their human rights as guaranteed in the Zambia constitution and international and African human rights instruments.
The unacceptable behavior of the police is encouraged by high ranking government officials who make belligerernt speeches and offer encouragements of such actions.
There is no known case of a Zambian police officer charged with torture.
The problem of police brutality and torture, is so common that it is inadequate for a government to limit its response to claims of torture by stating “there is no policy “and “these are isolated incidents.”
The Zambian Government is directly responsible for the violence that characterizes the police force.
Analysis of police brutality that assumes individual abuse within an otherwise professional and orderly institution is dangerously misplaced.
The Police are a crucial part of the justice machinery and unfortunately at present, an abusive part. Indeed, there is a responsibility on the state to protect her citizens and to do otherwise is to abdicate the legitimate expectations of its citizens.
The collective humanity of a nation’s citizens is betrayed when its people are forced to live in state induced fear.
In this article, I argue that since torture is an international crime and using the international law concept of universal jurisdiction every state in the world has jurisdiction to punish torture regardless of where it occurs.
The principle behind universal jurisdiction is that certain crimes are so universally recognized as being abhorrent, that a state is entitled or even obliged to prosecute regardless of where the crime was committed or the nationality of the perpetrators or the victim.
Additionally, because it is an international crime there is no statute of limitation. Which means that torture perpetrators can be prosecuted by future governments of Zambia and by any state anywhere in the world that is willing to do so.
The way to end torture is to end impunity. The challenge is for Zambian NGOs to secure and preserve the evidence of the commission of torture and engage with international NGOs such as Human Rights Watch, Amnesty International and the Southern African Litigation Centre and work with them to bring international prosecutions against perpetrators of torture.
The targets for prosecution should be the perpetrators as well as their civilian superiors who are guilty as accomplices and abettors of the commission of torture.
Superiors can be held liable for the criminal acts of their subordinates through several distinct modes of liability. The ordering of subordinates to commit offences and the failure to prevent abuses or to punish subordinates who have committed abuses constitute grounds of liability for all those involved.
Subordinates should also know that obedience to manifestly unlawful orders is evil and punishable by law. It is said that it was easy to convict the Nazis at Nuremberg because Nazis kept meticulous records of their activities. The same can be said of Zambia, with numerous justification by officials of unlawful acts in the daily newspapers.
The prohibition against torture is one of the most widely codified prescriptions under international law. Torture is the subject of its own multilateral treaty-the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Prohibitions against torture can be found in every omnibus international human rights and humanitarian law treaty as well as in each of the three regional human rights conventions including the African Charter on Human and Peoples Rights and is an enumerated war crime and crime against humanity.
The best-known exercise of universal jurisdiction is the warrants issued against General Pinochet by the Spanish courts for torture committed in Chile in the context of Operation Condor a conspiracy by Latin American dictators to cooperate in the elimination so called dissidents. General Pinochet was accused of genocide, and torture.
Pinochet was arrested in the UK while he was in the UK on a medical visit. The House of Lords ruled in favor of his extradition to Spain to face torture charges.
There are several other examples: Filartiga V. Pena-Irala was a case brought in the United States by a father of the victim Joel Filartiga who was tortured and killed in Paraguay by the police in 1976. After nothing was done in Paraguay the family received information that Penal-Irala the police chief responsible for the torture and murder was in the US.
The US court ruled that torture violated the laws of nations and applied the principle of universal jurisdiction and held that Pena-Irala was properly before US courts.
Similarly, on January 17, 2017 a Court in Italy convicted military officers from Bolivia, Chile, Peru and Uruguay for the torture and deaths of 20 Italian Americans during the 70s and 80s.Most jurisdictions e.g. UK, Austria, Belgium allow criminal proceeding against perpetrators of torture to be brought regardless of the country where the offense was committed and nationality at the time of the alleged crime, provided that the alleged offender is physically present in the country.
On December 6, 2006, the United States Department of Justice indicted Charles Taylor Jr. son of former Liberian President Charles Taylor for committing torture in Liberia.
He was convicted and is serving a long prison term in a US prison. In Liberia, he headed an Anti-Terrorist Unit (ATU) which committed torture including violent assaults and beating people to death. Nearer home in October 2014 the Constitutional Court of South Africa handed down a landmark judgment in the case of National Commissioner of the South African Police Service v. South African Human Rights Litigation Center and Another. The Court held, that South African authorities, specifically the South African police service, must investigate allegations of torture in Zimbabwe against nationals.
The Court held that the obligation is founded on South Africa’s commitments under international law and the country’s domestic legislation.
Many of those – especially those in positions of authority – who condone the torture can be charged as accomplices. In domestic legal systems , there is an important concept known as accomplice liability. This usually applies when a person, the accomplice, somehow helps the primary perpetrator to commit the crime.
While complicity is not a stand-alone crime. It is an important concept that can play an important role in the prosecution of those under whose command torture is being perpetrated. In international jurisprudence, complicit liability encompasses those who allow another to commit a crime, encourage another to commit the crime, or otherwise facilitate the commission of a crime.
Examples include procurement and counselling. Even mere moral support can be grounds for complicit liability so long as the act has a “substantial effect on the perpetration of the crime.”
This was clearly articulated by the International Criminal Tribunal for Rwanda in the Akayesu case. Mere tacit approval, support or refusal to stop the illegal actions of subordinates will suffice for criminal conviction.
The use of universal jurisdiction to punish perpetrators of torture is a significant way to end impunity and a major contribution to construct more democratic societies based on observance of the rule of law.
What victims of torture ad NGOs need to do is to compile evidence of the alleged torture into a “torture docket.” Keep a diary of the events.
Make picture or video recordings where possible. Record names and official number of law enforcement agents. These dockets should be delivered to international organizations specializing in the prosecution of international crimes.
Even getting one person prosecuted will send a clear message that there shall be no impunity for torture. Zambians are the ultimate sovereign, and they have the inalienable right to demand obedience to rule of law by those who wield state powers. It is also their supreme prerogative to express themselves freely because freedom of expression and rule of law are cornerstones of democratic societies.
To do otherwise is to surrender to tyranny. Liberty demands that all patriotic citizens should remain vigilant and unbowed because the price of unbridled dictatorship is too high to contemplate.
The Author is a Professor of Law, Cornell University, and Honorary Professor at the Universities of Cape Town, Western Cape and Free State