Professor Hansungule vows to continue speaking against human rights abuses in Zambia

University of Pretoria law professor Michelo Hansungule has vowed to continue speaking against human rights abuses and other malpractices in Zambia and says he won’t be silenced by Zambia’s High Commissioner to South Africa Emmanuel Mwamba.

In a lengthy post, in which he apologised for the error in judgment, Prof Hansungule said that he told Mr Mwamba that the only way to silence him is to kill his and as long as he lived, he will speak my mind and assist people regardless.

Below is the post

By Professor Michelo Hansungule

In relation to Prof. Nicholson and Prof. Frans’ questions, I aver as follows:

For reasons I shall elaborate on in more detail below, I have since withdrawn the letter from the two recipients and replaced it with one not on CHR headed paper attached herein[1].
Without prejudice to 1 above, I sincerely apologise for the use of the CHR headed paper and personally commit that it will never happen again.
As elaborated on below, in the incident aqua, it was an error of judgment that CHR letter head was used and it is regrettable.

Historical context

For a long time now, I have been participating in public discourse on human rights and governance in Zambia and Africa generally in Zambian media. I did so while I was based at the University of Zambia, Raol Wallenberg Institute of Human Rights and Humanitarian Law at the University of Lund in Sweden and since I joined the Center for Human Rights, here at the University of Pretoria. At the University of Pretoria, I was inspired to take an even more active participation in canvassing public issues on learning that academics were required to engage in community service as part of their conditions of service. Besides making presentations to various stakeholders in and outside Africa including politicians, government officials, judges, lawyers, law teachers, students, non-governmental organizations, journalists, faith based organizations, women’s groups and others, I keenly wrote opinion papers making plain my views on critical social, political, economic and issues

In addition, as part of this community engagement, I represent individual victims of human rights violations before various treaty bodies including the defunct SADC Tribunal, African Commission on Human and Peoples’ Rights, African Court on Human and Peoples’ Rights, Human Rights Committee at the United Nations, African Committee on the Rights of the Child, and as in the case aqua, non-conventional United Nations bodies and institutions.

For example, I have three communications before the African Court on Human and Peoples’ Rights I filed on instructions from Rwanda community members against Rwanda. In one such case yet to be determined by Court, several Rwandans living in South Africa had their passports arbitrarily cancelled by Rwanda government on suspicion they belonged to opposition which is a crime (divisionism) in Rwanda. Acting together with my LLM students, I was first person to bring the maiden communication (Hansungule versus Uganda) before the African Committee of Experts on the Rights of the Child seeking remedies against the child in northern Uganda which was affected by a long war in which children were forcibly recruited into armed conflict or forcible marriages both by rebel and government forces, Committee found in our favour and made a series of recommendations against Uganda. On instruction, I brought a communication before the African Commission against Swaziland (now eSwatin) in which I demanded reinstatement of a High Court judge who was arbitrarily dismissed from the bench by the King on trumped up charges by a former Chief Justice who had a born to chew with him and whom (Chief Justice) later the King dismissed.

As spirited public defender, I have submitted complaints to the Zambian Chief Justice, Zambian Director of Public Prosecutions, Speaker of the Zambian Parliament, Zambia’s Permanent Human Rights Commission, Lusaka City Council, Zambia’s Anti-Corruption Commission, Zambia’s Commission of Lands, Zambia’s Electoral Commission, Human Rights Council in Geneva, etc. These complaints raised public issues or issues affecting members of the public including tribalism in Zambia fostered by current government, alleged corruption of senior officials in government, alleged commission of treason by current president when he breached the constitution and refused to hand over power to the Speaker of Parliament after opposition filed an election petition challenging the outcome of the 2016 presidential election, as provided by the constitution, three Constitutional Court Judges repudiating their own unanimous judgment delivered in an open Court just two days earlier [without the courtesy to invite two of their colleagues including the Court president], etc.

In all these and similar cases I’ve not mentioned, I acted in my personal capacity or on behalf of clients I represented, even then in my personal capacity. Petitions filed in Zambia were widely reported in Zambian media which assisted generate wide discourses on governance, democracy, rule of law, constitutionalism and human rights. Of course government has not liked most of the discourse because my petitions and submissions either were against them, their officials or persons or questioned their decisions and in any case did not praise them.

2016 Elections

Currently, there are serious political tensions in Zambia. Only yesterday, leader of the main opposition Hakainde Hichilema (HH) called on SADC to intervene in Zambia ‘to protect people from political killings orchestrated by president Edgar Lungu’s government….’. This report is trending now at the time of writing. To cut a long story short, basis of the crisis was the 2016 elections including the period during campaigns. In Zambia, there is the Public Order Act, a colonial piece of legislation which has been widely condemned by most stakeholders. The Public Order Act regulates the holding of public assemblies, meetings and peaceful demonstrations.

While the ruling political party does not apply for ‘permission’ to meet, assemble or demonstrate, other stakeholders especially opposition cannot do so without this ‘permission’ from police the regulating authority. Previously, this statute was challenged before the Supreme Court as unconstitutional as the rights to assembly, meetings and peaceful demonstration were constitutional and the Court in both Christine Mulundika versus the Attorney General and Medical Doctors Association versus Attorney General, unanimously declared certain sections of the statute unconstitutional, and ordered that police had no right to issue or decline the permit but to protect the applicants to ensure their meetings were not disrupted by others. These rulings have never been heeded by government and police continue to declare meetings or opposition parties unlawful. During the 2016 election campaigns opposition were literary banned from campaigning or canvassing for votes in Lusaka in particular and other parts of the country. Some of opposition members such as a young lady Mapenzi Chibulo (https://www.lusakatimes.com/2016/07/09/police-shoot-dead-female-upnd-supporter-lusaka/) who tried to go ahead and campaign nevertheless were shot dead by police and ruling party members. I have written various articles condemning these barbaric acts and calling on culprits to be brought to book, all this, however, was futile.

After the 2016 elections and announcement by the Electoral Commission that current president Edgar Lungu had won the presidency, the opposition United Party for National Development (UPND) filed a petition in the Constitutional Court (CC) to challenge the declaration as mandated by the constitution. The Constitution provides that once any person files a petition to challenge the declaration of the election, the Speaker of Parliament should act in place of the immediately past incumbent head of state, a fair provision to ensure justice is seen. Current president Edgar Lungu who was declared winner of the 2016 presidential election refused to hand over power to the Speaker of Parliament.

I petitioned the Speaker demanding to know why he abrogated the constitution by not taking power as provided? Speaker responded to me saying he was constrained from commenting or responding to my question as the matter was before court. There was no matter before Court because just four days into the election petition by opposition, the CC dismissed the case saying it {the Court) had no jurisdiction to hear the matter on the grounds of rationale temporis i.e. that the fourteen days prescribed in the Constitution for a presidential election petition to be heard by Court had expired.

I wrote the media and the Chief Justice protesting this unjust decision by three of the five Court judges and demanded the Chief Justice took action. The three were part of the five judges of the Court who in the middle of the night on Friday decided that petitioners would he heard the following Monday and Tuesday and respondents Wednesday and Thursday. On Monday, just before the case started, three of the five judges who were part of the Friday night decision insisted to address the Court against the Court President’s direction that that they were ready to hear the petitioners. In their shocking address, the three judges said they met over the weekend without the President and the other judge and decided their unanimous decision on Friday was illegal for want of time and declared that since the petition is out of time, there was no petition before them to hear. I bitterly criticized this decision and also demanded the Chief Justice act in the case which to me clearly exhibited unethical and even criminal behavior. All my petitions to the Speaker and to the Chief Justice were in public media as well written opinion pieces.

After voting, I returned to South Africa three days after the August 2016 elections. At the Lusaka Airport after security check, I sat down to put on my belt, my shoes and pack my laptop. While I was doing so, two young men came to where I was seated and in English with an East African accent started chatting among themselves saying ‘we were very luck elections were declared in our favour, and there is not going to be a run off, we are lucky the money were going to use in a run off has been saved…………… this was on Sunday before all election results were announced and before the Electoral Commission declared the winner which it did the following Monday. I heard it all myself. Unfortunately, I am illiterate in the use of my phone and could not record it. On the SA aircraft from Lusaka to Johannesburg, a man greeted me in business class and introduced himself as Emmanuel Mwamba, Zambia’s High Commissioner to South Africa. He said he knew me from long time through my writings in the media which he said he thoroughly enjoyed and looked forward to. We agreed to meet in Pretoria and exchange notes on issues in Zambia.

After the declaration of results on Monday, we met the following Monday at a restaurant in East Gate. By then opposition UPND had filed its presidential election petition on Friday the week the results were declared. During our meeting, I told Mwamba that President Edgar Lungu was committing treason clinging on to power. I explained that by the Constitution, the Speaker of Parliament had to act as president immediately after any person has filed a petition challenging the declaration. Mwamba tried to argue that president Lungu’s decision to continue in office was motivated by security concerns but I reminded him that the Constitution was clear on the issue and that if security was concern in the minds of drafters, they would have reflected it.

In May last year, NOMUSA, a South African Trade Union decided to demonstrate at the Zambian High Commission here in Pretoria to protest rising dictatorship in Zambia. Before that, NOMUSA invited me to their branch meetings across Gauteng and the North West province to address their members and make them understand the political situation there. NOMUSA explained that they were acting under their constitution which provided for ‘international solidarity’ to reach out to Zambia and to Zimbabwe where regimes were reportedly oppressing their citizens including their members and their families. I duly visited NOMSA branches and made several addresses.

Specific instances had happened by that time. First, leader of the Democratic Alliance Mmusi Maimane had not only been refused entry into Zambia after he had flown there. He was prevented from coming out of the aircraft that took him to Lusaka and forced to return to Johannesburg with it. Maimane had gone to Lusaka to observe the court appearance of HH who was charged with treason. I also learnt while at these NOMUSA meetings that Secretary General of NOMUSA was also harassed by Zambian immigration officers when he had gone to Zambia to meet his counterparts, Zambian trade unions. During my briefings, I explained that Zambia was a disaster case faced with a serious case of ethnic tensions fostered by senior political leaders including the president, then Secretary General of the ruling PF party (now defence minister) and his deputy, then minister of Information, who has since been sacked from government for personal differences and is now in opposition, etc.

I said government is openly inciting Zambians to hate certain ethnic groups particularly the Tonga group perceived to support opposition and that people speak openly on radio, newspapers and television about how to deal with Tongas. I told them how government has become so dictatorial closing down independent media, listening to private communications of private citizens including social media, high levels of intolerance and open police and police brutality meted out against opposition party members hundreds of whom are languishing in jail merely for trying to organize their parties or convene peaceful meetings of their parties, impotent judiciaries intimidated by ruling party cadres and officials; that judges receive instructions on how to decide particular cases and threatened with unspecified or specified actions against them or their family members if they did not comply; that ruling party cadres and officials even camped day and night outside the High court to intimidate independent-minded judges and police would do nothing about it, etc

After these meetings, NOMUSA in their numbers held a demonstration at the Zambian High Commission premises at which they condemned the government of president Edgar Lungu and demanded unbanning of the media, release of all political prisoners including HH threatening to moblise its members across the country to not clear Zambian goods at both ports and other parts of the country. I addressed the demonstration and condemned president Edgar Lungu and his government. I repeated various acts of brutalities perpetrated against Zambian people by government simply for holding independent views. When Mr. Mwamba started speaking he claimed that Zambia was a democracy which attracted loud booing from NOMUSA members. He tried to enlist my support and said I agreed with what he said despite what I had just said. He asked me to go stand next to him but of course I refused and told him so. NOMUSA members also told him I cannot stand next to him.

I have referred to arbitrary arrests by government. UPND president HH is the most high profile individual to have suffered the fate. In the Western party of the country which traditionally votes for opposition UPND, is an annual ancient ceremony in which the local king shifts his capital from lowland to highland to escape the floods. HH and his officials decided to honour the kind’s invitation early last year. President Lungu was also invited. On the way, president Lungu’s motorcade which was coming from behind caught up with HH’s motorcade which means the two motorcades were driving towards the same direction. At one point, one of president Lungu’s escorts dangerously pushed off HH’s vehicle it came off the tar before the driver regained control. For this government charged HH with treason an unbailable capital offence which attracts death penalty. He stayed in prison including maximum prison which is used to keep death row inmates, for four months, all that time without trial. On the intervention of the Commonwealth, Edgar Lungu released HH on nolle prosequi which helped government from embarrassment had the case gone to trial. But many other UPND supporters and officials remain in prison todate others not so lucky lost their lives. Only two days ago, HH has called on the SADC especially South Africa under Ramaphosa to intervene in Zambia and prevent the slaughter of innocent citizens by president Lungu’s regime.

Two weeks ago, HH leader of opposition disclosed that United Nations Development Programme Resident Coordinator Janet Rogan had colluded with ruling party officials to rig the 2016 elections. To support this allegation, social media released an email which I still have showing how Ms. Rogan worked with the Electoral Commission to overturn the results of the 2016 popular elections. HH charged that he was aware of Ms. Rogan’s activities and her close relationships with ruling party officials in the government of president Edgar Lungu. Soon after, a group of Zambians based here in South Africa, Zambia, United Kingdom and other places drafted a letter petitioning the UNDP in New York against continued stay of Ms. Rogan in Zambia as UNDP Resident Coordinator. I have some of the names of the petitioners and their contact details. Petitioners asked me to edit the letter which I did and to send it for them to the UNDP. Because the letter revealed issues suggesting catastrophic failure of governance on an issue of paramount importance to Zambia’s democracy, and something which was at the center of current serious divisions in Zambia, I did not hesitate to look at the letter and to edit it. I then asked the individuals (still have email to that effect) under whose name and who would sign the letter to which they said they wanted it to sound as official as possible and that their chairman or other member would sign it but they preferred if I signed it. Since I could not let any of them sign the letter on a CHR letter head and because letterheads for my non-governmental organizations one is still with printers and others in Lusaka, I decided to sign it and send it. I must underline that I signed it in my individual capacity (not as Director of the Center) and this is vindicated in the letter. Also vindicated in the letter is the fact that it was not my letter. Line one clearly says ‘I was tasked with the responsibility to send the letter below….’. I sent the letter to the UNDP but did not originally author it. More importantly, I easily accepted the request to participate in the petition because upon glance, it was clear that it espoused the very issues the Center for Human Rights stands for.

Soon after the NOMUSA demonstration at the Zambian High Commission, I received a classified document from a pan Africanist with several names of both prominent Zambians and non Zambians said to have been compiled by the Zambian State Intelligence equivalent of the CIO in the United States. The document which I still have with me states that the individuals were a danger to government in Zambia. My name was prominently listed at number six. Others include some Zambian opposition leaders not least among them HH, perceived funders of opposition particularly UPND including leading executives in Anglo American empire, etc. Despite this, I continue to do my work as before ensnaring and educating especially the Zambian public of their rights and exposing government excesses. I refuse to be intimidated and silenced.

Not long ago, I received an email (still in possession) in which a man from Lusaka discloses that he was offered a job by the government Inteliigence organization in Zambia. That when he went to meet officials of that organisatiion, they offered to appoint him Third Secretary at the Zambian High Commission in Pretoria but added that his real job would be to spy on me. As indicated, I still have the email with me and even told the young man to consider accepting the offer. I asked him to not worry about me or my safety because I do what I do due to my strong convictions that what I was doing was right and for the good of Zambians. He said however poor he was, he would not take pieces of silver to harm another.

Recently, I got a whatsup message from a young man part of the group that was petitioning Ms. Janet Rogan at UNDP in which he said ruling PF members in Kasama the north of the country were planning to demonstrate against me for insulting president Edgar Liungu and for not respecting him as president. This whatsup (which I still have on my phone) came from district officials of the Kasama District who were mobilizing their members to demonstrate the following day. Indeed, the demonstration went ahead the following day.

What I found surprising is that I did not remember (and still do not) when I made those remarks which attracted the demonstration. The dates of the Globe Newspaper PF officials cited I allegedly published demeaning statements I was here in Pretoria and had not spoken to a journalist either then or prior to publication of the paper. I contacted the newspaper in question seeking clarification on when I made the statements and they did not respond. However, in keeping with my principles, I decided to not distance myself from the alleged remarks and to expose the newspaper.

This is because in the struggle for freedom I believe we need the media including fake media. Young people in the media often want to say something but do not know how and are too scared to do so. Though painful to me, I easily take responsibility and I did so in that case. Second, I found the choice of the northern town of Kasama by whoever arranged the demonstration strange to say the least. Until this free publicity of my name, hardly anyone knew me or my name in Kasama. A friend in Kasama who attended it later told me most demonstrators did not know who they were demonstrating against and the few who did had not even read the newspaper. He said I could have taken part in the demonstration against myself if I was there without any of the demonstrators identifying me as the subject of the demo. It was badly arranged. I later was told it was arranged by high officials in Lusaka who wanted to intimidate me.

On my part, I published an article admitting that I did not respect president Edgar Lungu because as far as I was concerned he was irregularly in office. I asked them to take any action they wanted to take against me. I told them failure by the Constitutional Court to her the president election petition and put the issue of the 2016 elections to rest was the reason I did not recognize the legitimacy of the election which was declared in favour of president Edgar Lungu (I have the response I penned in language not intellectual but intended for the demonstrators to understand me fully).

Recently, a friend based in Lusaka alerted me to the speech by Minister of Justice in Parliament while he was responding to questions on the amendments to the constitution government was working on. According to my friend, my name along with two other colleagues Professors Muna Ndulo and Beyani Chaloka were mentioned in an adverse way. I checked the relevant Parliamentary Hansard and indeed found the relevant parts where when after his speech, the Minister was asked whether he had consulted experts like Professor Hansungule, Professor Muna Ndulo and Professor Beyani on the amendments? He responded that he did not and would not consult us because our political affiliation was common knowledge

I must say though on the positive side that I bear neither grudge nor anger against anyone in government. All I want is good government and greater respect for human rights for citizens. Proof of this is that last year, I single handedly facilitated three workshops on state party reporting under the African Charter on Human and Peoples’ Rights and the Maputo Protocol. The workshops, which attracted scores of senior government and non-governmental officials were funded by the Center for human Rights and had no problem with interacting with senior politicians in negotiating relevant approvals and sanctions for the officials and events. I believe we did an excellent job finally coming up with a draft report which, however, is yet to be validated before submission to the African Commission for examination.

But according to the media, Mr. Mwamba, the Zambian High Commissioner to South Africa, is a very dangerous person. The media portrays him as one of president Edgar Lungu’s trusted allies and together with a small group is responsible for rigging the 2016 election in favour of the president. I have several times been warned to be careful about him that there wasn’t anything that he could not do. Beyond the character presented in the media, however, I don’t know him. Nevertheless, I have told myself and told him that he cannot intimidate me into silence. In my letter to him, I told him that the best he can do to silence me is to kill me. As long as I live, I will speak my mind and assist people regardless.

In the letter to the University Rector, Mr. Mwamba claimed that I continuously use my position and facilities of the University to raise things against his government suggesting that the issues I portray are personal or private. I have thought long and hard on this, and am still thinking. Besides this petition to the UNDP, I cannot remember when else I used my position and University facilities in making public my opinions? Because I am deeply troubled by this accusation, I wrote Mr. Mwamba asking him to clarify what he means?

After much thought and before he replies, I thought perhaps he is referring to CHR public statements we have made on developments in Zambia? If this is the case, then he is grossly misled. Though I agreed with them, nevertheless, I did not participate in most of the statement by the CHR issued on Zambia. The only one I participated in was when the CHR called on Zambian government to release HH from prison where as indicated he was held without trial on trumped up charges of treason. This statement was first drafted by a CHR student showed to the Director who handed it to me to edit or suggest otherwise. After my additions together with that of another of our LLD student, the statement was published to the CHR website. Because I don’t remember of any other incident, he might be referring to, I want him to assist me understand him so that I can also address it.