Prof Muna Ndulo
Prof Muna Ndulo


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

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33 COMMENTS

  1. I wish Professor Muna Ndulo was also able to give us such lectures when Dean Namulya Mungomba, Princes Nakatindi Wina and others were incarcerated. How come he comes out to give us such lectures only when his tribesman Hakainde Hichilema is incarcerated?

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    • Why have you concentrated on Zambia and not USA where you’re hiding? Can the levels of torture done by the USA be compared to those done in Zambia? Let’s talk about the killing of blacks by white police officers, water boarding, Iraq, Afghanistan e.t.c who can equal the USA in atrocities done to innocent people? You well know that America is above the International law that you want to invoke on Zambia and that’s why you’ve chosen to be selective with the truth you economic refugee. Zambias human rights record is far much better than the USA where you’ve chosen to hide.

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    • @zedoc, Is the professors’ argument valid? I think it is time all patriotic and intelligent Zambians stood up for what is right, regardless. We are a Christian nation after all….or is it just on paper?

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    • Funny that when HH is incarcerated, every Jim and Jack wants to talk about police brutality and human rights. The author is a professor at Cornell University in the USA but not once did I see an article from him criticizing US government about its prisoners being tortured day in and day out at Guantanamo for years without any charges, or police brutality concerning black men or Donald Trump telling the whole world torture was “good”. These are the people that think anything foreign is good but anything Zambian is bad! Bu Mumbwa Mumbwa naku USA!

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    • Mr. Ndulo, which citizen has been tortured? And where should treason suspect be kept – 5 star hotels? So professors can also suffer from tribalism?

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  2. The Zambian police routinely engage in cruel, inhuman, and degrading treatment, including torture, to extract confessions.

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  3. Just list the names down of all those fanning human rights abuses. When the time to account comes, we must not leave out anybody. I am non partisan myself but obviously I cant ignore the nonsense. This is a Police State

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    • Moses have balls. Don’t pretend to be non partisan when your tone is clearly UPND.

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    • @ Kabova
      According to PF Gospel you preach, anybody who cherish freedom and rule of law must be UPND? If that is the case, you are in minority.

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  4. Is it a mere coincidence that Prof Ndulo has taken his lectures to the media during HH’s troubled times?

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  5. The narrative is missing. Lest we forget, the contextualization is critical to arriving at an objective and rational conclusion. One, the immediate past presidential election was decided in favor of PF. That is what ECZ observed, stated and announced. The EU also concurs with that position. Congratulatory messages continue to pour in from Heads of State and Government. Exercising its democratic right to challenge an election outcome, UPND took the matter to court (CC). When CC ruled in favor of PF, lawyers exercised the right to appeal the manner in which the ruling was arrived at. This is the matter that needs to be separated from the Mongu Road incident involving the police escort motorcade. In this one situation, it is necessary to exercise maximum restraint and withhold sentiments…

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    • This is the matter that needs to be separated from the Mongu Road incident involving the police escort motorcade. In this one situation, it is necessary to exercise maximum restraint and withhold sentiments that are inciting, provocative, arrogant, stubborn or inflammatory.

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  6. sometimes we ought to think critically even when you a simple stone thrower, think before you throw that stone, why and what am i doing? this goes to PF & UPND. We only have one Zambia

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  7. The article is nice. The professor has a point and he is not tribal. Every reasonable person will pick the best advice without prejudice from the article.
    In life learn to be objective and listen more even from your enemy….
    In Accountancy , there is a principle of benchmarking which helps one to compare ones performance with others. In Zambia there is need for us to compare our governance framework with our nations. For example can we do it as the Israel nation in terms of agriculture, or UK or South Korea in terms of governance. Or Japan. Above all we need development of all areas of our life. Are we happy with the status quo ? Why do we need the IMF to help us if we are of the status quo? Why do we need to fine tune the constitution barely two years have passed when we amended…

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  8. the 1996 constitution ?
    I would prefer advice from learned people even if they are not my tribemen to seeking only counsel from praise singers, my political cadres or relatives.
    Your politeness and considerations for others , especially your enemies is like investing pennies and getting dollars back.

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  9. This Tongito Professor is still upset because his tribesman lost the elections. He was one of those who were heavily promised controlling powers over the functioning of a UPND government.
    This tribe lot would bring about ethnic cleansing in Zambia, were they to be given the keys to PLOT 1.

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  10. Zambian Police Service or Force which ever you decide to call though armed cadres at this point seems appropriate, anyways i wish to opinion the embarrassment i feel towards this former respectable profession.
    It is a shame right now to be mentioned in the same sentence with Zambia Police, instead of walking with their
    heads high they choose to walk fully armed with all sorts. we have seen police men in other countries but their never armed like ours. president lungu are we at war so that we can also arm ourselves??? people where quiet when the police budget sky rocketed.

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  11. people where quiet when the police budget sky rocketed. now we know why? instead of fighting corruption and poverty PF decides to oppress the rights of its own citizen. we know you didn’t have vision but even after years in power this is the only vision ba lungu which you have decided to persue with all your energy. you should be embarrassed Ba Lungu with the things you do, you are an adult hence you should behave like one, we all know you don’t deserve to called president but please be sensible. we know you stayed in chawama for a long time but that doesnt mean you should expose to the world the worst manners which you learnt whilst their.

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  12. An excellent informative article that Police Officers who are being shielded should take note of.That Sgt Mark Choonga was killed by Police at Woodlands Police is in Public domain. That torture and thefts occurred in arresting HH have never been denied,they’ve been JUSTIFIED. I’m not UPND but the killing of individuals in 21st Century by Police in risky,they may be tried in a Free African State 30 years from now long after PF and UPND is gone and police officers are resting in retirement.

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  13. I thought HH is a citizen of Zambia, who is supposed to take responsibility regarding the laws of this country. Are you telling me that those Zambians under incarceration are not protected by the same human rights?

    Let us not be selective when it comes to rule of law, because Zambia is for all of us. What HH did in Mongu was stupid and wicked, therefore should not be supported.

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  14. Muna Ndulo wears lenses that opens to see only on issues that concerns Hichilema. Strange isn’t it?

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  15. @Kev Munde
    You are very much on the right track, that’s the wisdom we need for this country, THINK WIDE AND NOT NARROW.

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  16. The article of Professor Ndulo is good… Even late Pro Alfred Chanda could have agreed. Dr Kalombo Mwansa can also agree.. There is nothing tribal about this article.. The only tribal aspect is us bloggers… If this article is written either by Dr Mushota(PHD based in UK) or Professor Mvunga , we easterners or my cousins northerners, muchingas luapulas could say it is a good article void of tribal tone.

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  17. Ladies and Gentlemen, a wrong will always be a wrong. In this case, HH, to me was wrong on whatever he was doing and it is up to the courts of Law to determine. I was going to support whoever is asking for the release of HH from remand prison to first of all say whether, the blocking of Presidential motorcade was lawful or not. Then, if it was unlawful, all what we need to do is to comment based on the circumstances and not creating acrimony. If you have wronged someone and you still want to add salt on the wound, I do not think that that person can forgive you. Therefore, I would urge colleagues to sober-up as they advocate for the release of our colleague HH. Supposing HH was the one in the driving seat and such incident occurs, what would you have felt? To me, I am surprised how HH has…

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  18. HH was wrong. He is uncultured. Thats the problem of Bastards. Where is the man who impregnated the mother?

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  19. Mweemba , are you also a bastard? who impregnated your mother? How do you feel when you read such comments against you?
    Do unto others as you want them do to you.

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  20. In Zambia, there is no enabling Legislation to prosecute and convict perpetrators of Torture.
    The Zambian Human Rights Commission, recently decried about this omission and that it is only now the Human Rights Commission is working on a draft bill against torture.
    I’m a victim of Torture and Gross Human Rights Violations being perpetuated by the Zambian Intelligence also infamously known as the Office of the President (OP).
    I have contacted a number of International Human Rights Organizations and have received responses in the line of your article.
    Your article should be made available to all victims of Torture and concerned people in Zambia.

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