COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF ZAMBIA

Committee against Torture
MORNING

8 May 2008



The Committee against Torture this morning began its consideration of the second periodic report of Zambia on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Gertrude Imbwae, Permanent Secretary at the Ministry of Justice of Zambia, said that in Zambia, the responsibility of preparing the report lay with the Ministry of Justice. In this regard, the Ministry had constituted an Inter-Ministerial Human Rights Reporting Committee comprising of members from relevant Government Ministries and Departments, the Judiciary, the Human Rights Commission, civil society and academia. After the report had been drafted, it had been validated at a one-day symposium held for all stakeholders from various organs of the State and civil society.

While Zambia had made great efforts in promoting and protecting human rights and in implementing the Convention, the authorities were aware that there were a number of factors and difficulties that at times limited the full realisation of the rights contained in the Convention. Ms. Imbwae said that Zambia was currently undergoing a Constitutional reform process. A national constitutional conference had been established with a mandate amongst others to consider and deliberate the provisions and to adopt the draft Constitution. This conference had also established the national human rights committee.

Serving as Rapporteur for the report of Zambia, Committee Expert Fernando Marino Menendez wondered, concerning detainees, who had the power to arrest suspected criminals. Was it the police? Did they need a warrant in order to conduct an arrest? According to the State party’s report, it seemed that there was no need for a warrant. A person could be detained for an initial 24 hours. The Committee was aware of preventive detentions that had lasted for four years. Also, were there any norms and standards for the creation of detainee registers? In one communication received by the Committee, an individual saw his allegation of having been tortured during detention rejected because his detention had not been registered in the alleged detention centre. There was clearly a problem in this regard.

Alexander Kovalev, the Committee Expert serving as Co-Rapporteur for the report of Zambia, said that it was fine that the State party was providing training concerning human rights to law enforcement units. But human rights were a wide ranging subject, it was impossible to train on everything. It was thus important to give instead training on the provisions of the Convention and on how the behaviour of law enforcement personnel was impacting these provisions. Also, the report said nothing on the training of medical and health personnel. Could the delegation give details in this regard? Concerning the age of criminal responsibility of children, eight years was thought to be very young. Mr. Kovalev said that the age of criminal responsibly should be reviewed. On top of that, children had no guarantee of legal aid because of a lack of adequate staffing.

Other issues of concern raised by Experts included, concerning the issue of prisons, that the fact that children and adult were detained in the same place was a very problematic and difficult situation. What about steps to eradicate sexual violence against women and especially the belief that having sex with a virgin could cure a man with HIV? How was the Government dealing with these issues?

Also representing the delegation of Zambia were members of the Permanent Mission of Zambia to the United Nations Office at Geneva, the Government Secretariat, the International Law and Agreement Department, the Directorate of Public Prosecutions, the Legal Aid Department, the Headquarters Office, the Immigration Department, the Zambia Police Service, the Police Complaints Authority, the Commissioner for Refugees, the Ministry of Health, the Zambia Law Development Commission, the Judiciary, the Ministry of Lands, the Prisons Ministry, the Community Ministry, the Ministry of Sports and Youth and the Human Rights Commission.

The delegation will return to the Committee at 3 p.m. on Friday, 9 May 2008, to provide its responses to the questions raised today.

Zambia is among the 145 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of the Former Yugoslav Republic of Macedonia to the questions posed by Experts on 7 May 2008.

Report of Zambia

The second periodic report of Zambia (CAT/C/ZMB/2) notes that the State party has incorporated some of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment into domestic legislation. In this regard, assault occasioning actual bodily harm and offences set out in the Penal Code are already punishable. Further, the State party has also outlawed corporal punishment following the enactment. Corporal punishment is now outlawed in all the prisons in Zambia. As per its initial report the State party has continued its human rights training programmes for its law enforcement officers. This is through human rights training programmes conducted by the Zambia Police and Prisons Service colleges. In 2002, the Human Rights Commission conducted a total number of sixty five workshops for law enforcement officers, throughout the country except for North-western Province. The Committee may wish to note that the State party’s Courts still admit derivative evidence. However, the practice in the Zambia Police Service is that officers will not rely on confession statements unless other independent evidence has been obtained. By this procedure, it is unlikely that suspects will be forced to make confession statements. Further, the Zambia Police Forensic Laboratory which is now operational offers police investigators qualitative scientific methods of investigating crime rather than relying on confession statements.

Further, the Refugees Control Act and the Immigration and Deportation Act are being revised to, inter alia, make them responsive to matters of asylum seekers and refugees. Currently the Refugees Control Act is skewed to the control of refugees who were perceived as a security threat. This perception finds its roots from the 1970s historic era when Zambia played an important role in the liberation struggles of Southern Africa. The Immigration and Deportation Act is tailored towards prohibited immigrants and their deportation without much reference to other rights at law. Additional administrative measures have been developed through the Immigration Department that aim at achieving the principle of non refoulement. That is to say, if an asylum seeker expresses fear that if he is returned to his country of origin, his life would be in danger, this individual will either be admitted within the State party as a refugee or referred to a third country where his life will not be in danger. This is done in collaboration with the Commission for Refugees under the Ministry of Home Affairs, United Nations High Commissioner for Refugees and the International Organisation for Migration. However, Zambia will not accept within its jurisdiction criminals who run away from the justice system of a particular country.

Presentation of Report

GERTRUDE IMBWAE, Permanent Secretary at the Ministry of Justice, said that in Zambia, the responsibility of preparing the report lay with the Ministry of Justice. In this regard, the Ministry had constituted an Inter-Ministerial Human Rights Reporting Committee comprising of members from relevant Government Ministries and Departments, the Judiciary, the Human Rights Commission, civil society and academia. After the report had been drafted it had been validated at a one-day symposium held for all stakeholders from various organs of state and civil society.

Ms. Imbwae noted that in Zambia, they had developed an inclusive practice which ensured that the views of civil society were part of the human rights State reporting process and the national validation process. This same methodology had also been adopted in the preparation of the Universal Periodic Review report, which was scheduled to be considered tomorrow. Also, the preparation of the periodic report had provided the Government with an opportunity to take stock of its legislative, judicial and administrative functions in order to assess the impact of these functions on human rights.

While Zambia had made great efforts in promoting and protecting human rights and in implementing the Convention, the authorities were aware that there were a number of factors and difficulties that at times limited the full realisation of the rights contained in the Convention. Ms. Imbwae said that Zambia was currently undergoing a Constitutional reform process. A national constitutional conference had been established with a mandate amongst others to consider and deliberate the provisions and to adopt the draft Constitution. This conference had also established the national human rights committee.

Questions Raised by Committee Experts

FERNANDO MARINO MENENDEZ, the Committee Chairperson serving as Rapporteur for the Report of Zambia, noted that the fact that in Zambia there were more than 70 ethnic groups, the fact that the country had had to deal with a decolonization process, the many numbers of refugees coming from other countries and the serious internal conflicts with which the country had had to deal with in 1990’s, all these factors had created obstacles to the full enjoyment of human rights in Zambia.

On the definition of torture, Mr. Marino Menendez noted that there was none. There was however a reference in the Constitution to a person’s right not to be subjected to torture. But this had not been further developed in the penal code, where there was also no definition of the crime of torture. The penal code did penalize behaviours similar to torture, but not torture as such. Was the State party planning to change this?

Concerning detainees, Mr. Marino Menendez wondered who had the power to arrest suspected criminals. Was it the police? Did they need a warrant in order to conduct an arrest? According to the State party’s report, it seemed that there was no need for a warrant. Also a person could be detained for an initial 24 hours. For how long could this pre-trial detention be extended? The Committee was aware of preventive detentions that had lasted for four years. Was it possible for pre-trial detention to last so long? What was the normal length of investigations? What was the legal value of the police code of conduct? Who received complaints against actions committed by police forces? Also, what were the roles of the Ministry of Justice and those of the Prosecutor General in this regard? Were there any norms and standards for the creation of detainee registers? In one communication received by the Committee, an individual saw his allegation of having been tortured during detention rejected because his detention had not been registered in the alleged detention centre. There was clearly a problem in this regard.

Other problems noted by Mr. Marino Menendez were the fact that inmates in prison were not provided with food and that criminal responsibility began with the age of eight. Concerning the death penalty, there were currently almost 200 people on death row. One person had been on death row for 27 years, this was felt as being an inhumane treatment, similar to torture. Further, did detainees have the right to a lawyer during investigations? Did detainees have access to medical assistance and could they contact their families?

Mr. Marino Menendez further noted that tribes were applying their own laws and that these decisions were of definite nature. It seemed that there was no opportunity to change such decisions. How did the local public authorities deal with such practices?

Concerning the non-refoulement principle, Mr. Marino Menendez said that the application of this principle was a major concern for the Committee. According to the Zambian legislation, decisions in this regard were made by the Minster of Justice; was there any possibility of recourse? How broad was the cooperation between the United Nations High Commissioner for Refugees and the Zambian authorities; and was there any exchange of information? And, how were temporary residence permits issued?

Concerning homosexuality, it seemed to be completely rejected in certain tribes, was this true? The State party was also invited to join the Optional Protocol, the Convention Against Genocide and the International Criminal Court.

ALEXANDER KOVALEV, the Committee Expert serving as Co-Rapporteur for the Report of Zambia, said that it was fine that the State party was providing training concerning human rights to law enforcement units. But human rights were a wide ranging subject, it was impossible to train on everything. It was thus important to instead give training on the provisions of the Convention and on how the behaviour of law enforcement personnel impacted these provisions. Also, the report said nothing on the training of medical and health personnel. Could the delegation give details in this regard?

Also, during training, was it clearly and explicitly stated that when someone was arrested and detained, that torture was absolutely prohibited? Looking at the penal code, there was no criminalization of torture; this did clearly create the possibility for impunity. Was there a plan to amend the penal code in this regard, asked Mr. Kovalev.

According to information received by the Committee by a non-governmental organisation which had access to prisons and gave assistance to prisoners, the prison population had highly increased in the past few years. Also, most of the prisons were dating back to the colonial period. It had been reported that prisoners were fighting among themselves for space and mattresses. Mr. Kovalev underlined that such overcrowding could lead to serious health problems. Food was also noted to be inappropriate, there was no ventilation, not enough windows, no running water and no toilets. This created an enormous risk and could be considered as a form of torture. Many prisoners were reported to have died because of these conditions.

Further there was a lack of protection for women in prisons; there was no information in the report that women were being separated from men. Information indicated that male prison guards guarded women. Mr. Kovalev wondered what happened to detained pregnant women and women with children.

Concerning the age of criminal responsibility of children, eight years was very young. Mr. Kovalev said that the age of criminal responsibly should be reviewed. On top of that, children had no guarantee of legal aid because of a lack of adequate staffing. Also, the national human rights committee had indicated that there was no rehabilitation centre for victims of torture. What was the State party planning to do in order to address all these issues?

Other Committee Experts asked questions related to and made comments concerning the issue of prisons, with an Expert underlining that the fact that children and adults were detained in the same place was a very problematic and difficult situation. On complaints concerning human rights violations, the figures provided by the State dated back to 2004, however, the national human rights commission had noted an increase in the number of complaints in 2006. Also it seemed that many people were not aware of their right to send a complaint. What was planned in this regard?

Concerning the definition of childhood and adulthood, legislation referred to the age of 15 but to be prescribed to the armed force one needed to attain the age of 18. There seemed to be a problem of definition of adulthood and this problem should be addressed, said an Expert.

How was the problem of street children dealt with and what was the status of the implementation of the strategic plan for street children that had been proposed by the Committee on the Rights of the Child, asked another Expert. What about steps to eradicate sexual violence against women and especially the belief that having sex with a virgin could cure a man with HIV? What was the Government doing to fight this?

Was derivative evidence allowed to be used? Were there any cases of complaints? How were articles 1 and 16 of the Convention applied in practice? Concerning the imprisonment of children it was important to ask what was more important: school first or prison first. One Expert felt now that some minimum international norms had to be respected. Also, it was clear that a developing country could not have as many statistics as a developed country, but it was wondered whether there were any plans to improve the collection of information in Zambia.
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