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Police killed Nsama and Kaunda, Former Police Commissioner Nelson Phiri should be charged for murder of duo- HRC findings reveal

Columns Police killed Nsama and Kaunda, Former Police Commissioner Nelson Phiri should be...

SUMMARY FINDINGS AND RECOMMENDATIONS OF THE HUMAN RIGHTS COMMISSION’S INVESTIGATIONS INTO THE KILLING OF MR. NSAMA NSAMA CHIPYOKA AND MR. JOSEPH KAUNDA DELIVERED TO THE MEDIA BY THE HYMAN RIGHTS COMMISSION CHAIRPERSON, MR. MUDFORD. Z. MWANDENGA AT THE COMMISSION’S HEAD OFFICE IN LUSAKA ON 4TH MARCH 2021

Members of the Press

The Commission has invited you to this Press Briefing on the summary findings of its independent investigations to the shooting to death of Mr. Nsama Nsama Chipyoka, former National Prosecution Authority (NPA) Prosecutor and Mr. Joseph Kaunda who was a sympathizer of the opposition United Party for National Development (UPND).

As you already aware, the two were shot dead on 23rd December 2020 between 10:00 hours and 11:00 hours in Lusaka, during the violent dispersal of UPND supporters who had accompanied their leader, Mr. Hakainde Hichilema, to offer him solidarity when he appeared at Police Headquarters for questioning.

Following the fatal incident, the Commission on its own volition, instituted its own independent investigations.

  1. The Commission’s Investigations

The investigations into the shooting incident were instituted in accordance with the Commission’s constitutional and statutory mandate. Pursuant to Article 230 (3) of the Constitution of Zambia (Amendment) Act No. 2 of 2016, the Commission is mandated to, inter alia, investigate and report on the observance of rights and freedoms and to take necessary steps to secure redress for victims of human rights violations or abuses.

Furthermore, Section 10(1) of the Human Rights Commission Act, Chapter 48 of the Laws of Zambia empowers the Commission to investigate any human rights violation(s) or abuses by instituting investigations under the following circumstances– “(a) on its own initiative; or (b) on receipt of a complaint or allegation under the Act by – (i) an aggrieved person acting in such person’s own interest; (ii) an association acting in the interest of its members; (iii) a person acting on behalf of an aggrieved person; or (iv) a person acting on behalf of and in the interest of a group or class of persons to institute investigations.”

The Commission wishes to acknowledge that, while its investigations were underway, it also received a formal complaint letter from the UPND President Mr. Hakainde Hichilema on the alleged police shooting to death of Mr. Nsama Nsama Chipyoka and Mr. Joseph Kaunda on 23rd December 2020.

1.1 Objectives of the Investigations

The inquiry sought to:

  1. Examine the circumstances under which the fatal shootings occurred and to determine whether there was violation of any of the rights guaranteed under the Bill of Rights under the Zambian Constitution, Chapter 1 of the Laws of Zambia particularly the right to life guaranteed under Article 12 and the freedom of assembly and association guaranteed under Article 21 of the Constitution;

  1. Establish whether it was justified for the Police to use live ammunition against the alleged protesters and whether, therefore, the killings qualified for excusable homicide to diminish criminal liability of the person(s) that fired the fatal bullets;

  1. Establish whether the use of force was authorized by a superior officer proclaiming the situation as a riot requiring the use of firearms in compliance with Sections 77 and 78 of the Penal Code Act, Chapter 87 of the laws of Zambia, and whether the use of fire power was the only and ultimate option available to the police;

  1. Establish whether the use of force by the Police was in accordance with our national legislation as well as the international norms namely, the United Nations Basic Principles on the Use of Firearms by Law Enforcement Officers adopted on September 7 1990, herein referred to as the “Basic Principles”;

  1. Find out whether the Police officers took any measures to decrease the risk of unnecessary harm especially that the shooting occurred near public buildings and a restaurant where the risk of harm to innocent people was highly probable; and

  1. Make the necessary recommendations on how to redress the problem as well as to prevent further or similar future incidences, as well as the prosecution or punishment of those found culpable, if any, and also the compensation of the family of the deceased by the state.

1.2 Investigations Methodology

The Commission’s investigations involved a visit to the scene of the shooting, personal interviews with eye witnesses, relatives to the deceased persons as well as the Police authorities. The Commission also interviewed persons that witnessed the autopsy (postmortem) examination of the deceased persons which autopsy reports were not availed to the Commission at the time of carrying out the investigation despite a formal request to that effect.

In addition, the Commission considered the applicable international, regional and domestic human rights standards relating to the protection of the right to life and the circumstances when the right to one’s life may be taken away without violating the Constitutional guarantee of the right.

Specifically, the Commission examined relevant provisions of the Constitution of Zambia, the Zambia Police Act, the Penal Code Act as well as the Basic Principles in the Use of Firearms by Policing Agencies which were adopted by the by United Nations Member States.

3.0 The Commission’s Findings

The findings of the Commission’s investigations are summed up, as follows:

3.1 The Police killed Mr. Nsama Nsama Chipyoka and Mr. Joseph Kaunda

  1. The Commission’s investigations established that there was violation of the right to life by Agents of the State which amounts to extra-judicial killing.

  1. The findings of the autopsy conducted on the remains of the deceased persons by a State Pathologist confirmed that Mr. Nsama Nsama Chipyoka and Mr. Joseph Kaunda died from bullet wounds. The source of the fatal bullet was identified as a rifle firearm. It is the Commission’s opinion that the said firearm fired from west to east direction of Cabinet Office premises.

  1. The evidence recorded from witnesses and the Commission’s own scene visit corroborated with the findings of the autopsy pointing to police officers who were stationed near Cabinet Office as having been responsible for firing the fatal bullet.

  1. It was observed that the bodies of the two deceased persons were found lying about ten (10) meters apart and directly adjacent to each other near the National Prosecution Authority (NPA) offices, giving a strong likelihood that they were killed by one bullet.

  1. Mr. Nsama Nsama Chipyoka was shot whilst standing at the main entrance to LAFE Restaurant near the NPA offices, whereas Mr. Joseph Kaunda was hit by the bullet as he was walking along the road separating LAFE Restaurant and NPA offices.

  1. According to the preliminary findings of the State Pathologist, Mr. Nsama Nsama Chipyoka) was shot on his right side of the chest through the fourth (4th) rib and the bullet perforated the upper part of his heart then liver and lungs before coming out of the body through the area between the 7th and 8th ribs. No bullet was found in the body of Mr. Nsama Nsama Chipyoka. It was concluded that the deceased died of injury to the vital organs caused by a sharp object that pierced the heart, the lungs and liver. He suspected that the affected organs were pierced by a bullet, and on closer examination concluded that a rifle was used.

  1. On the other hand, the late Mr. Kaunda was shot on his head. The bullet entered through the right part of his head just above the right ear and was found lodged on the left part of the head. On the part where the bullet was lodged, the skull had cracks and that resulted in traumatic shock that killed the victim. There was no other part of the body that had any injury that could cause death of the victim. The bullet found in the head of Mr. Joseph Kaunda was deformed on its tail end. From this, the Doctor concluded that before the bullet went into the head of the deceased, it could have hit or passed through some object thereby reducing its power. Considering that the bodies of the two deceased persons lay about ten (10) meters apart and directly adjacent to each other, there was a strong likelihood that the two victims were killed by one and the same bullet

3.2 The Police Command gave orders to inter alia fire live bullets

  1. The Commission found that the orders given by the Police Command were directly linked to the indiscriminate use of live ammunition, the discharge of tear smoke, the display of warfare tactics and the excessive use of force by the Police that was witnessed on the day of the shooting incident.

  1. Witnesses informed the Commission that former Lusaka Province Commissioner of Police, Mr. Nelson Phiri, gave orders to police officers to fire at the people that had gathered. On the orders of the former Lusaka Province Commissioner of Police, police officers started firing gunshots and tear gas canisters indiscriminately.

  1. The officers on an armored police vehicle were the first to fire live gun shots before a sporadic gun fire ensued leading to the shooting incident in which the two deceased men were caught up in the crossfire and killed in the process.

The Commission wishes to stress that, in line with Principle number 26 of the Basic Principles on the Use of Force and Firearms, obedience to superior orders shall be no defence if the law enforcement officer or officers knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had reasonable opportunity to refuse to follow it. In any case responsibility rests on the superior who gave the unlawful orders.

3.3 The indiscriminate use of force and live ammunition by the Police was alarming

  1. The Commission’s investigations revealed that Police fired teargas canisters and live ammunition to disperse an unarmed crowd that had gathered at the Police Headquarters to offer solidarity to the UPND President, Mr. Hakainde Hichilema, when he was summoned by the Police.

  1. Several witnesses informed the Commission that there was no riot proclamation declared to warn the crowd to disperse prior to the use of force and live ammunition by the Police.

  1. As a result, there was commotion when the Police charged towards the crowd as people scampered in all directions while heavily armed police officers patrolled the area between the High Court and Cabinet Office.

  1. Some armed police officers closed up on UPND sympathizers who had gathered peacefully near the High Court premises and started firing live ammunition indiscriminately while discharging tear gas canisters at the crowd.

  1. The Commission had itself also witnessed the police firing tear smoke canisters, physically chasing individuals around Cabinet Office area and heard sounds similar to those of live bullets at the time the shooting incident took place.

3.4 Comments by some members of the Executive may have contributed to police violence on unarmed citizens

  1. A few days before the fatal shootings, the Minister of Home Affairs, Hon Stephen Kampyongo, MP issued a statement warning that no person or groups of persons would be allowed at or near the premises of the Zambia Police Service Headquarters where the opposition leader would appear for interviews. He warned that those who would defy the order would be met with police force.

  1. Lusaka Province Minister Hon. Bowman Lusambo,MP specifically directed the Lusaka Commissioner of Police, Mr. Nelson Phiri to deal with anyone who would offer solidarity to Mr. Hichilema. During the virtue 2020 4th Quarter Provincial Development Co-ordinating Committee (PDCC) meeting which he was chairing on 22nd December 2020, Mr. Lusambo directed as follows:

Let me take this opportunity through you Permanent Secretary, to Lusaka Police Commissioner if he is here or if his representative is here, Mr. Nelson Phiri, that tomorrow, I don’t want any noise in Lusaka Province or Lusaka District.

I have heard that there are some people who are planning to come to Lusaka, to offer solidarity to the suspect who has been called by the police. I want to urge you, and I direct you Commissioner of Police Lusaka Province that police have only called one person, they have only called one person, and we expect only one person to come alone. And if they want to come bring confusion, you know your job very well, you know your job very well”.

The Commission strongly believes that such statements from some members of the executive could have contributed to arbitrary action by the police which resulted into the shoot to death of the duo.

3.5 There was blatant violation of the right to freedom of assembly

  1. The use of excessive force by the Police in the name of maintaining law and order violated the Constitutionally guaranteed right to freedom of assembly and was inconsistent with the Constitutional mandate of the Zambia Police Service of upholding the Bill of Rights as enshrined under Article 193 (2) (e) of the Constitution of Zambia [Amendment] Act No. 2 of 2016.

  2. There was no justification for the Police to use force and firearms to disperse an assembly of people who were peaceful and unarmed.

  1. Even if an assembly may have been considered to be illegal or a violation of the principles of law and order, it did not warrant the use of excessive force in the manner that the Police handled UPND sympathizers who were offering their solidarity to their party President when he was summoned at Police Service Headquarters.

  1. The Commission is cognizant of the fact that the Police are by law authorized to use force and firearms in particular circumstances and only under conditions of absolute necessity and in accordance with the principle of proportionality, while paying due regard to the respect for human life as a fundamental human right. Thus, it is a solemn duty of the Police to protect life and property in all circumstances while maintaining law and order.

  1. It has been established that there was a violation of people’s right to peaceful and free assembly. The crowd that had gathered at the Police Headquarters was largely peaceful and did not disrupt any business or obstruct traffic or breach public order. Those that had gathered were therefore within the purview of their fundamental right to freedom of assembly guaranteed under Article 21(1) of the Constitution of Zambia. To proceed to disperse the crowd in the manner the Police did, therefore, amounted to a debasement of people’s democratic and constitutional right to exercise their freedom of assembly.

  1. The right to freely assemble and to even demonstrate is integral to democracy and human rights. Even if acts of violence do occur during these events participants retain their rights to bodily integrity and other rights such that force may not be used except in accordance with the principles of legality, necessity and proportionality. Firearms may never be used simply to disperse an assembly.

4.0 General and specific observations

  1. More generally, the Commission is concerned that there has been a growing trend by Police to kill individuals and carry out inadequate investigations that do not necessarily lead to the identification or point out the actual persons responsible for the killings, but rather prefer that investigations take a friendlier route of Inquests.

The record so far as inquests are concerned indicate that inquests have rarely pointed to particular person or groups as culpable but have rather declared open verdicts-that a violation was committed and that State agents were responsible.

Without downplaying the important judicial function that inquests serve, it would however be desirable that in the interest of justice, the growing levels of impunity in the Police service be curbed by prosecuting the main culprits involved in the killing of innocent civilians as recommended by independent bodies such as the Human Rights Commission.

However in this matter the need for an inquest did not and does not arise because the Zambia Police investigations have led to the arrest of the alleged shooter and he has since started appearing before the Courts of the law to answer charges that have been laid against him.

  1. The desire by the Executive wing of government to suppress the right to freedom of assembly for individuals holding different views, especially the opposition parties that seem to offer effective competition is the root cause of a growing pattern of extra-judicial killings and other acts of gross human rights violations and must stop.

  2. Zambia is a constitutional multi-party democracy and pluralistic society in which various interest groups should have space to participate in the governance of the country within the provisions of the law.

  1. As the country counts down to 2021 general elections and beyond, the Commission expects that the right to freedom of assembly and its interdependent rights of association, expression and movement will be guaranteed by the state.

5.0 Recommendations and Conclusions

In view of its findings, the Commission makes inter alia the following recommendations:

i. That former Commissioner of Police for Lusaka Province Mr. Nelson Phiri must be jointly charged with the case of murder together with the subordinate police officer or police officers who took his orders to shoot Mr. Nsama Nsama Chipyoka and Mr. Joseph Kaunda;

  1. That the estates of the deceased be adequately compensated by the State.

  2. The Zambia Police Service should desist from the apparent criminalization of the right to freedom of assembly and movement; and

  3. The Zambia Police Service should also desist from taking actions which are likely to result in the gross violation of human rights such as extra-judicial killing, arbitrary arrests and detentions and cruel, inhuman or degrading treatment or punishment of participants in assemblies whether lawful or not.

29 COMMENTS

  1. This is very sad taking someone’s life. What can you expect from Hon Bowman Lusambo who dragged Major Kachingwe a number of years ago. I thought Bowman had changed being a honorable MP and minister of Lusaka. I find it hard to believe that Hon Kampongo who is suppose to be protecting the life of citizens put more fire, as a result the policeman carried the shooting in accordance with the instruction from above. What a sad story for Zambians. Mr. Kampongo playing double standards. You would think other political parties are foreign. The love of power and money is the cause of the death of the two late gentleman. If people are scared of the government where will it take Zambia. This is one of the reasons why many people are in poverty.

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  2. We hope that this Report will help PF Cadres like KZ, Sunday Chanda, Mwanza etc understand that there was nothing wrong in HH’s supporters accompanying him to the Police Station. The Crowd was peacefully exercising their freedom of Assembly and Association. The ZPS Command who gave orders to shoot unarmed Civilians with live ammunition should be held to account. It’s not only Commissioner Phiri and Constable Nyundu who should prosecuted for these killings but the whole ZPS Command Structure . There were so many heavily armed Policemen who shot live bullets at the Crowd so how wasConstable Nyundu identified without a Ballistic Report linking his Rifleto the shootings? ZPS has turned Zambia into a Police State and it must be reformed if we are to avoid more killings during the 2021…

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  3. Come Aug 12th there is work already cut out for the new govt. We cannot ever afford to have a Banana Republic of wild west trigger happy thugs masquerading as Zambia leaders. Heads must roll, from executives to the trigger man.

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  4. Kampyongo and Lusambo should be punished for inciting the Police to murder these victims. It’s high time PF Cadres appreciate that the supporters who went to the Police Station to give solidarity to HH their Leader were within their Rights to Assemble and Associate with their Leader HH. In terms of the Bill of Rights ,which is part of the Republican Constitution ,HH supporters were exercising their Right of Freedom of Assembly and Association. The culprit was the person(s) who gave orders to the Police to shoot to kill unarmed innocent Civilians with live bullets. The whole ZPS Command should be held to account. The Govt imported these Arms and Equipment to suppress the People during the upcoming August 2021 Elections. So we can expect a violent and disputed 2021 Election. The…

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  5. The PF Cadres who were blaming these Murders on HH and his Supporters must hold their Heads in shame. Now we know Nsama Nsama and Joseph Kaunda were killed by ZPS in cold blood and the ZPS Command gave orders to use live ammunition and to shoot and kill. Kampyongo and Lusambo incited these Murders so they should be punished. The HH Supporters did nothing wrong as they were exercising their Rights to freely Assemble and Associate. The PF Cadres should read the Bill of Rights which is part of the Republican Constitution.

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  6. Why is Commissioner Nelson Phiri and Constable Nyundu being singled out? Nelson Phiri is not the only person in the ZPS Command Structure. Constable Nyundu is not the only Policeman who shot at the Crowd with live Ammunition. Clearly Nelson Phiri and Constable Nyundu are being used as sacrificial lambs. Kampyongo,Lusambo and the rest of ZPS Command Structure gave the orders to use live bullets,shoot and kill. The buck stops with ECL who is Commander in Chief of the Armed Forces.

  7. Noooo, this leaves statehouse and OP operatives responsible for this off the hook

    We know HH was called out on a very malicious, desperate fake charge that was meant to keep him locked up until the new year…….that is why there was no mention of the charge to begin with. Only that backfired with the deaths and they then mention a case that was already in the courts….

    But lungu has learned nothing from this……

    he is now continuing another similar desperate chapter of pursuing HH with nawakwi

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  8. No, this leaves statehouse and OP operatives responsible for this off the hook

    We know HH was called out on a very malicious, desperate fake charge that was meant to keep him locked up until the new year…….that is why there was no mention of the charge to begin with. Only that backfired with the deaths and they then mention a case that was already in the courts….

    But Edgar has learned nothing from this……

    he is now continuing another similar desperate chapter of pursuing HH with nawakwi

  9. We know HH was called out on a very malicious, desperate charge that was meant to keep him locked up until the new year…….that is why there was no mention of the charge to begin with. Only that backfired with the deaths and they then mention a case that was already in the courts….

    But Edgar has learned nothing from this……

    he is now continuing another similar desperate chapter of pursuing HH with nawakwi

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  10. Why are PF Cadres and Bloggers not commenting on this Killing Report? KZ, Sunday Chanda, Antonio Mwanza, Ntewewe etc were blaming HH and his Supporters for the killing of Nsama Nsama and Joseph Kaunda. This Report clearly reveals that Kampyongo, Lusambo, Nelson Phiri,Constable Nyundu and the whole ZPS Command Structure played Roles in the murder of Nsama Nsama and Joseph Kaunda and should be held Responsible. The ECL Govt imported these Heavy Military Armaments for the sole purpose of suppressing voters should they protest the rigging of the the 2021 Elections. We can expect more violence and killings during the 2021 Elections. The writing is on the wall.

  11. Spilt blood of innocent people has always lived to haunt the slayers. Though law may take its course and some people shielded yet there is a divine authority which will deal with people who are responsible yet think they are untouchable today. God is watching. May the innocent souls rest in eternal peace

  12. Since when did HRC become court of law ? Take your reports and shove them up your backside. Hh is vicariously liable for that death too. Why is that not in your report. Anyway domy worry cause the courts will consider hh role in this

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  13. Truth is, if those cadres hadn’t gone there in the first place, there wouldn’t have been fatalities.

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  14. Nelson Phiri was only Deputy Commissioner in ZPS reporting to Commissioner Kanganja so why is Kanganja not being sued for murder? The entire ZPS Command including the Commander in Chief of the Armed Forces should be held accountable 4 these Murders. Former Deputy Commissioner Nelson Phiri and Constable Nyundu are just Sacrificial lambs. The real killers of Nsama Nsama and Joseph Kaunda are known and one day the truth will come out. The writing is on the wall.

  15. The former Deputy Commissioner reported to Commissioner Kanganja who inturn reported to Minister Kampyongo. U can’t charge Nelson Phiri without charging Kakoma Kanjanja and Kampyongo. Maybe Minister Kampyongo got orders from the Commander in Chief of the Armed Forces who is ECL. Then ECL gave Minister Kampyongo who passed on the orders to Commissioner Kanganja who inturn passed on the Orders Deputy Commissioner Nelson Phiri. That’s why the whole ZPS Command Structure should be held for the murders.

  16. Fired former commanding police officer Nelson Phiri issued orders to fire live fire arm and constable Yundu executed the order.
    This Mondi Operandi has been designed by PF regime headed by Stephen Kampyongo.
    So, Who is guilty on the death of the two innocent Zambians.

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  17. @ akapS
    A LOT ARE STARTING TO BE UNDER MODERATION
    THE PROBLEM IS LT HAS RUBBISH CHAPS DOING THE ALGORITHMS !!!!!!!!!!!!!!!!!!!!!!!!!

  18. A police constable has already appeared before the courts in connection with the murder of the two innocent gentlemen, The Human Rights Commission should not have released its report when somebody was already appearing in court for the alleged murder of the UPND cadre and the NPA prosecutor. It is subjudice . Surely the HRC should know this better.

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  19. Nelson Phiri can either deny having given the order to shoot and kill Nsama Nsama and Joseph Kaunda or can claim that the order to shoot and kill came from above and from his Superiors. Then what?Does the State have proof that it was Mr Phiri who gave the order?What if Constable Nyundu disputes that he is not the one who shot the two victims? Constable Nyundu can demand that the State produce evidence that the bullet(s) came from his Rifle given that other Policemen were also shooting at the Crowd with live Ammunition. Is there a Ballistic Report showing that it was Constable Nyundu who shot and killed the two victims using a Rifle allocated to him?U can tell that this Case is not going anywhere and the two accused have been set up as sacrificial lambs.

  20. What shallow ‘reasoning’ by @Zambian citizen! Blaming the unarmed victims? Supporting the barbaric unreasonable use of deadly force that was not necessary in the circumstances? You are despicable and really the low of the low.

    There is a string of people guilty in all this – almost the same chain of culpability that ran through from the Nazi command to the officers who eventually carried out the orders of mass killings

  21. #24  Harold muna
     March 5, 2021 At 10:56 pm

    “..What shallow ‘reasoning’ by @Zambian citizen! ……”

    Zambian Citizen is none other than the very dull Antonio mwanza…….

  22. #24  Harold muna
     March 5, 2021 At 10:56 pm

    “..What shallow ‘reasoning’ by @Zambian citizen! ……”

    Zambian Citizen is none other than Antonio mwanza…….

  23. @Harold-in your pseudo political world you see a “regime” out to brutalise its people?? You see a comparison with the Nazis??? Let me remind you, Zambia is a functional democracy where citizens choose their leaders. In 2011, 2015 & 2016 Zambians chose the PF. Nowhere does it say they will be in power forever. If an alternative party comes along with better policies, we will vote for them. This is something your upnd had failed to do since 2001. So let’s not create imaginary monsters, get onto the grassroots, create a strong manifesto with policies that will appease Zambians and they will vote for your upnd-demonising the PF everyday will only bring you the sorrow of loss in August!!!!

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