LUSAKA lawyer James Kayula says the ratification of the illegalities done by Home Affairs Minister Stephen Kampyongo and Inspector General of Police Kakoma Kanganja gives an impression that the real problem may not be the duo, but President Edgar Lungu himself.

In an article titled: “Who bears responsibility for the police extrajudicial killings?” Wednesday, Kayula wondered what law Kampyongo and Kanganja based their decision on in ordering UPND supporters to stay away from accompanying their leader, Hakainde Hichilema, as he appeared for interviews at the Police Force Headquarters.

“Zambia woke up to the cold-blooded extrajudicial killing of two citizens by the Zambia police on 23rd December, 2020. In reaction to this, President Edgar Lungu, in his press statement of 24th December, 2020, attributes the two deaths to lack of adherence by the UPND leadership to the guidance and advice of the Minister of Home Affairs, and the Inspector General, which prohibited supporters of UPND from accompanying their leader as a way of showing solidarity. The President seems to suggest that political activism is responsible for the demise of our departed brothers. It is important to understand that Zambia subscribes to the notion of rule of law. What this entails is that every decision of a public officer, be it Minister, or, indeed, the President, must be anchored and on some law,” read the article.

“The question that begs a clear answer in this discourse is: what law did the Minister of Home Affairs and the Inspector General of Police base their decision on in ordering UPND supporters to stay away from accompanying their leader, Hakainde Hichilema, as he appeared for interviews at the Police Force Headquarters? Answering this question will inevitably help us understand what law the supporters of UPND may have broken in disregarding the orders of the Home Affairs Minister and the Inspector General of Police.”

He argued that the real problem was President Lungu, not Kampyongo or Kanganja.

“What is more worrisome is the ratification of the illegalities of the two men by the President. It gives an impression that the real problem may not be the Home Affairs Minister or, indeed, the Inspector General, but the President himself. The problem may be right there in State House. Therein lies the real nemesis of the people of Zambia, who, instead of upholding and defending the Constitution of Zambia, is affirming illegal conduct of his retinues. President Lungu’s ‘Mickey Mouse’ leadership cannot detach from the culpable bloody hands of the Home Affairs Minister and Inspector General of Police. While some of the malfeasance of President Lungu may be corrected, unfortunately, the loss of innocent lives will remain an indelible scar on Zambia’s democratic credentials – perhaps as a solemn rainbow to remind the people of Zambia that never again should the bar to national leadership be lowered,” Kayula stated.

“That never again should the people of Zambia toy around with leadership! In reverence of leadership, Woodrow Wilson, the 28th President of the United States of America, once said, ‘You are not here merely to make a living. You are here to enable the world to live more amply, with greater vision, with a finer spirit of hope and achievement. You are here to enrich the world, and you impoverish yourself if you forget the errand’.”

He stated that the activities of the UPND supporters were in the exercise of their constitutionally guaranteed rights as provided for in the Bill of Rights.

“It is in the exercise of these protected rights and freedoms that supporters of the UPND stood to show solidarity to their leader. The solidarity and political activism shown by the UPND supporters to their leader, Hakainde Hichilema, is part of the broader concept of the freedom of association and assembly envisioned under Article 21. Therefore, the activities of the UPND supporters were in the exercise of their constitutionally guaranteed rights as provided for in the Bill of Rights. As mentioned above, the freedom of assembly and association attract some limitations as per clause 2 of Article 21. Be that as it may, such restrictions must be imposed by law, and not the Inspector General of Police, Minister of Home Affairs, or, indeed, the President. Simply put, any restrictions touching on the exercise of the freedom of association and assembly must be prescribed by law. In this regard, any order by a public officer that impacts on the enjoyment and exercise of the guaranteed freedoms must have a legal basis,” Kayula stated.

“Any order that is devoid of legal clothing lacks the power to secure obedience, regardless of who issued. Before reaching a conclusion as to the legality or otherwise of the orders given by the Home Affairs Minister, and the Inspector General of Police, it would be important to enquire into whether the Public Order Act, Chapter 113 of the laws of Zambia could have been relied upon by the Minister of Home Affairs, and the Inspector General of Police. The relevant part in this regard would be Section 5 (4) of the Public Order Act. This section provides that every person who intends to assemble or convene a public meeting, procession or demonstration shall give police at least seven days’ notice of that person’s intention to assemble or convene such a meeting, procession or demonstration.”

He noted that Hichilema’s summoning was neither a planned activity nor a demonstration.

“Looking at this provision, one would entertain no grain of doubt that the case of the UPND leader being summoned by the police falls outside the Public Order Act. This is because the appearance of the UPND leader was not a planned party activity to assemble, convene a meeting, procession or demonstration; he was instead appearing before the police at the instance of the police, he was summoned to do so. Hakainde Hichilema’s movement from his residence to Police Force Headquarters was in obedience to the summons served on him to appear for questioning. This, therefore, being the case, the State bore the primary duty to ensure the safety of Mr Hichilema and that his supporters were peaceful and orderly. This was the obligation of the police, no more and no less!” he exclaimed.

“In the premises, the only inescapable conclusion to be drawn from the foregoing is that the Minister of Home Affairs and the Inspector General of Police issued illegal orders, orders unsupported by law, orders that violated the Constitution of Zambia, and the rights of its citizens. Since such orders lacked legal basis, Hakainde Hichilema and his supporters were under no legal obligation to obey or adhere to orders that sought to erode constitutionally entrenched rights. It is these illegal orders, the lawlessness by the irresponsible and reckless Home Affairs Minister, and the Inspector General that set in motion the chain of activities that led to the loss of lives. Had the Minister and Inspector General applied their minds to the law governing the performance of their duties, and rights and freedoms of the Zambian citizens, and asked the police to be professional in the maintenance of law and order, the loss of lives would have been averted, and our departed brothers would still be with us today.”

He stated that Kampyongo and Kanganja could be charged as having aided the commission of crimes.

“In terms of criminal liability, the Minister of Home Affairs, and Inspector General of police can as well be charged as having aided and abetted the commission of the crimes of Wednesday, the 23rd of December, 2020. As a consequence, not only do these two irresponsible public officers deserve to be dismissed, but must also be arrested and charged accordingly. The two are accessories before the fact. They are parties to the commission of those offences, and they must be held accountable for their sheer disregard of the law governing the administration of their duties,” he stated.

“Moving forward, what appears to be even more appalling and shocking than the recklessness and criminal conduct of the Home Affairs Minister, and the Inspector General of Police, is that the President has ostensibly adopted the illegalities of the two officers. The President is blaming the loss of lives on the failure by the supporters of Hakainde Hichilema to follow the illegal orders of Home Affairs Minister, and the Inspector General of Police. Orders that had no justification either in law or common sense. There was no justification in law because no law gives these two public officers authority or power to issue orders that carried actual threat to human life and actually led to the loss of human life. There was no justification in common-sense because it was highly outrageous for these two officers to expect the leader of the biggest opposition political party to move all by himself from his residence to the Police Force Headquarters.”

Kayula stated that Hichilema was not an ordinary person and that matters concerning his welfare were matters of public concern.

“Hakainde is no ordinary person. His political party is the alternative government. He is a president-in-waiting. Hence matters concerning his welfare are matters of public concern and interest. The party in government today is stoutly aversive to this fact, but this is the reality, and common sense requires that matters of this nature are taken into account. Unfortunately, this emotional intelligence, necessary to guide thinking and decision-making, seems to be lacking in today’s leadership,” stated Kayula.