AMERICA-BASED Zambian Law Professor Muna Ndulo says Home Affairs Minister Stephen Kampyongo and Inspector General of Police Kakoma Kanganja are guilty of murder and should charged as such.
In an article titled “The shooting of Nsama Nsama and Joseph Kaunda and command responsibility”, Tuesday, Prof Ndulo said it was unfortunate that the police were unleashed on a crowd that did not breach any law by assembling.
He stated that it was shocking that the weaponry which was used by police on the UPND members was associated with war zones and not suitable for civilian policing.
“On Wednesday December 23, a crowd largely composed of UPND members gathered outside Police Headquarters to support Hakainde Hichilema who had been required to submit to interrogation at Police Headquarters concerning the purchase of a farm in Kalomo in 2004. At issue was a private purchase agreement concluded in Kalomo in 2004. On the face of it, this issue, is probably time bared by the statutes of limitations. The complainant of the alleged crime is a private individual with no ownership claim to the property. Considering all this, it is bewildering the importance the police attached to this complaint. The legal appropriateness of the inquiry should be left for discussion to another day. During the interrogation, scores of heavily armed police officers arrived outside the police headquarters and at other nearby government buildings. They alighted from police vans in combat readiness formations and without any warning whatsoever began shooting at an undisputedly unarmed and peaceful crowd. Their bullets struck and killed Mr Nsama (a public prosecutor) and Mr Joseph Kaunda (a UPND member) and injuring scores others. The crowd did not breach any law by assembling as they were exercising their constitutionally,” Prof Ndulo said.
“It is also guaranteed by International Conventions such as the International Covenant for Civil Political and Rights and the African Charter on Human and People Rights. Zambia is party to both conventions. Additional facts are that, the previous day, the Inspector General of the Police, Kanganja, and the Minister of Home Affairs, Kampyongo, publicly warned that UPND supporters who would escort their leader to Police headquarters would be dealt with decisively by the police. Further, without providing any shred of evidence they alleged that the UPND was planning violence. Mr Kanganja had similarly warned and additionally sent signals to all the police stations in Lusaka and asked them to mobilize for Wednesday. Pursuant to this order, the police deployed hundreds of heavily armed police officers. The weaponry displayed is associated with war zones and definitely not suitable for civilian policing. It reminds one of the infamous apartheid era police deployment of “Casper’s” in black townships and the violence they unleashed on black populations. The equipment displayed in most countries is reserved for armies and for combat zones.”
Prof Ndulo said the killing of Nsama and Kaunda amounted to crimes against humanity.
He said under the international criminal law of command responsibility, it posited that superiors could be charged for ordering their subordinates to commit crimes.
“Many organizations, Catholic Bishops, international and local human rights organizations, the Law Association of Zambia, civic society organizations have rightly condemned the shootings. Some have called on the President to dismiss Kampyongo and Kanganja from their posts and still others have called on the duo to take responsibility for the killings of Mr. Nsama and Mr Kaunda and resign on moral grounds. While I agree with those sentiments, I would like to argue that in fact on the set of the undisputed facts outline above, Mr Kanganja and Mr Kampyongo are guilty of murder and crimes against humanity and should be charged as such. The argument that they are guilty of murder is based on a well- established principle of criminal liability in international criminal law known as ‘command responsibility’,” Prof Ndulo said.
“This principle is well established worldwide and has been successfully employed in international as well as domestic trials. The doctrine posits that superiors, both civilian and military, can be held criminally liable for the criminal acts of their subordinates on the basis of their; (a) ordering of subordinates to commit crimes and (b) the failure to prevent abuses or to punish subordinates who have committed abuses. The article will first show that the shooting of Mr Nsama and Mr Kaunda in the circumstances they were killed were criminal acts prohibited by international norms and amount to extra judicial killings and crimes against humanity and will then discuss the law relating to command responsibility. In this case, there was no exceptional situation; the actions of the police were premeditated as evidenced by statements from Mr Kampyongo and Mr Kanganja who without proof claimed prior knowledge that the crowd would be violent. A clear figment of their imagination, or a result of incompetent intelligence produced by incompetent intelligence services. I am not sure which one of those reasons is worse and should worry the country more.”
He added that a superior’s failure to punish a crime which they had knowledge of would likely be understood by their subordinates as an acceptance or an encouragement of such a conduct which would result in increased risks of new crimes being committed.
“Since the facts are not in dispute, the next question we should consider is what is the law in relation to criminal liability arising out of command responsibility. No doubt, the officers who shot Mr Nsama and Mr Kaunda are guilty of murder and crimes against humanity. Our argument is that in addition, Kampyongo and Kanganja are equally guilty of murder and crimes against humanity. Individuals who order a crime to be committed are individually culpable if the order achieves its purpose. Ordering the commission of a crime is thus a form of direct, rather than vicarious, liability. Superior responsibility attaches if the defendant had actual or constructive knowledge that his subordinates were committing abuses and he or she did not take necessary and reasonable measures to prevent these abuses or to punish the perpetrators. In this case, Kampyongo and Kanganja are well acquainted with the violent behavior of their police force turned a militia force towards opposition groups,” he said.
“Here we cite the cases of Vespers Shimunzhila, Frank Mugala and Lawrence Banda among several civilians violently killed by the police without any effort to investigate the crimes and punishing the erring police officers.The doctrine of command responsibility is ultimately predicated upon the power of the superior to control the acts of his or her subordinates and the failure to exercise that power. A duty is placed upon the superior to exercise this power to prevent and repress the crimes committed, and a failure by him or her to do so in a diligent manner is sanctioned by the imposition of individual criminal responsibility in accordance with the doctrine. A superior’s failure to punish a crime of which he or she has actual knowledge is likely to be understood by his or her subordinates at least as acceptance, if not encouragement, of such conduct with the effect of increasing the risk of new crimes being committed.”
Prof Ndulo said it was unlikely that action would be taken on Kampyongo and Kanganja as it was clear that President Edgar Lungu was in support of the actions taken by the police.
“Clearly on the available facts both Kanganja and Kapyongo are guilty of premeditated murder by inciting the police to act in the manner they did. Additionally they knew of the previous conduct of the police. It is important that they are prosecuted, although it is clear that this will not happen under the current regime whose President, clearly going by his utterances on the death of Nsama and Kaunda, approves of the conduct of the police. He famously wondered why the crowds had exercised their freedom of assembly (come to the police headquarters) when only one individual was summoned, completely ignoring their constitutional right to assemble and associate with whomever they wanted to. There is however no reason why a future government should not prosecute the duo. The task at the moment therefore should be to preserve the evidence,” said Prof Ndulo.
“If Zambia wants to cross the bridge from a police to a democratic state and establish constitutionalism and the rule of law, it is imperative that there should be no impunity for such heinous crimes. It would not be a matter of revenge over a defeated regime, it would be a matter of justice and accountability. To establish the rule of law, Zambia has to end impunity. Our nation cannot tolerate or afford to leave such heinous crimes unpunished, because doing so will lead to the crimes being repeated. Zambia’s survival as a democratic state rests on this not being repeated.”