THE Human Rights Commission says former Lusaka Province police commissioner Nelson Phiri must be jointly-charged with the constable already appearing in court for the murder of State prosecutor Nsama Nsama Chipyoka and UPND sympathiser Joseph Kaunda.
And HRC says Home Affairs Minister Stephen Kampyongo and Lusaka Province Minister Bowman Lusambo’s statements ordering the police to deal with the UPND sympathisers that escorted their leader, Hakainde Hichilema, may have contributed to Nsama and Kaunda’s untimely demise.
Speaking during a press briefing in Lusaka, Thursday, HRC commissioner Mudford Mwandenga said that the Commission’s findings from its investigations indicated that there was violation of the right to life by agents of the State, which amounted to extra-judicial killings.
“The findings of the Commission’s investigations are summed up as follows: the police killed Mr Nsama Nsama Chipyoka and Mr Joseph Kaunda. 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. 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. 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. It was observed that the bodies of the two deceased persons were found lying about 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,” Mwandenga narrated.
“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. 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 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.”
Mwandenga said that there was a strong likelihood that the two victims were killed by one and the same bullet.
“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 10 metres apart and directly adjacent to each other, there was a strong likelihood that the two victims were killed by one and the same bullet,” he disclosed.
He added that witnesses informed the Commission that Phiri gave orders to police officers to fire at the citizens that had gathered.
“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. 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,” he revealed.
“The officers on an armoured police vehicle were the first to fire live gunshots before a sporadic gunfire 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. The 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.”
And he said that Kampyongo and Lusambo’s remarks may have contributed to Nsama and Kaunda’s untimely demise, though evidence proving the same remained inconclusive.
“A few days before the fatal shootings, the Minister of Home Affairs, 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. 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 virtual 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 (December 23), 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, and we expect only one person to come alone, and if they want to come bring confusion, you know your job very well,’” Mwandenga said.
“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. There is that question that the Honourable Minister, Lusambo, should also be charged together with the shooter and the former commissioner of police; I don’t think there is sufficient material on which we make a recommendation that the (Provincial) Minister should be charged with murder on this particular case because here, the charge that has been levelled against the alleged shooter is that of murder and from that excerpt which I read, there is no suggestion where the Honourable (Provincial) Minister is suggesting that, ‘the police should kill’ so, we cannot lump in that category. But we still say that some of the statements that he made propelled the police to have acted in a manner they acted, which unfortunately resulted in an extra-judicial killing, but the (Provincial) Minister, I think wasn’t encouraging them to engage in extra-judicial killing.”
He added that the use of firearms and excessive force on citizens was a blatant violation of the right to freedom of assembly.
“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 sympathisers who were offering their solidarity to their party president when he was summoned at Police Service Headquarters. The Commission is cognisant of the fact that the police are by law authorised 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,” he added.
“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.”
Mwandenga observed that the Executive’s desire to suppress the right to freedom of assembly for opposition parties was the root cause of a growing pattern of extra-judicial killings.
“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. 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. As the country counts down to the 2021 general election 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,” he said.
Mwandenga added that government’s failure to adhere to the Commission’s recommendations would result in an infringement of the Human Rights Act.
“In view of its findings, the Commission makes inter alia the following recommendations: that the estates of the deceased be adequately compensated by the State; the Zambia Police Service should desist from the apparent criminalisation of the right to freedom of assembly and movement; and 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,” said Mwandenga.
“The extent to which we can go is that we have made recommendations and the law says that once we make that recommendation, those recommendations are supposed to be adhered within a period of 30 days. Failing that, the person who had been given that recommendation could have committed an offence. So, basically, we are transcending into a situation where they have committed an offence; if our recommendations are not followed, they may be need for us to resort to trying to use the provision in the Human Rights Act, which stipulates that somebody doesn’t follow the recommendations that we make. That person, in this capacity as the Authority who has been found wanting then, that person commits an offence, which is liable to a fine or imprisonment or to both. Ideally, it is to the State, but we are in a ‘catch-22’ situation.”