Alleged
victim: The author
State party:
Zambia
Date of
communication: 7 November 1997 (initial submission)
The Human
Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting
on 25 October 2000
Having concluded
its consideration of communication No. 821/1998 submitted to the Human
Rights Committee by Mr. Rodger Chongwe under the Optional Protocol to
the International Covenant on Civil and Political Rights,
Having taken
into consideration all written information made available to it
by the author of the communication and the State party,
Adopts the
following:
Views under article 5, paragraph 4, of the Optional Protocol
1.1 The author of the communication is Rodger Chongwe, born on 2 October
1938, a citizen of Zambia. He claims to be victim of the violation of
his rights under articles 6 and 14 of the International Covenant for
Civil and Political Rights by Zambia, and raises the issue of security
of person, which may be considered in relation to article 9.
Facts
as submitted by the author
2.1 The author,
a Zambian advocate and chairman of a 13-party opposition alliance, states
that in the afternoon of 23 August 1997, he and Dr. Kenneth Kaunda,
for 27 years the President of Zambia, were shot and wounded by the police.
The author states that the incident occurred in Kabwe, a town some 170
kilometres north of Lusaka, while the author and Dr. Kaunda were to
attend a major political rally to launch a civil disobedience campaign.
He annexes reports by Human Rights Watch and Inter-African Network for
Human Rights and Development as part of his communication.
2.2 The author
states that the police fired on the vehicle on which he was travelling,
slightly wounding former President Kaunda and inflicting a life threatening
wound on the author. The police force subsequently promised to undertake
its own investigation. The Zambian Human Rights Commission was also
said to be investigating the incident; but no results of any investigations
have been produced.
2.3 He further
refers to the Human Rights Watch Report for May 1998, Vol. 10, No 2
(A), titled "Zambia, no model for democracy") which includes
10 pages on the so-called "Kabwe shooting", confirming the
shooting incident that took place by quoting witness statements and
medical reports.
2.4 The report
refers to the incident as follows:
"When Kaunda and the Alliance
leader Rodger Chongwe decided to leave by car, police attacked
the car with tear gas and later live
ammunition, possibly to try to stop their exit. According to eyewitnesses
no warning was given before shots were heard. A small number
of police
that day were carrying AK-47s, and senior officers had revolvers
and a few G-3s were held by mobile unit members. Most of the
police were
issued only batons and teargas."
2.5 In a referred interview with the Human Rights Watch, Kaunda's driver,
Nelson Chimanga stated:
"They (the police) fired
tear gas at the car, one came into the car because I had opened
a window to let out the smoke. When
we got out of the smoke, I had to swerve past a police vehicle
that tried to block our escape; just before the roundabout,
I had to swerve
to avoid a second vehicle blocking the road and then a third that
was across the road. It was after this vehicle that we heard
the bullet.
Suddenly Rodger Chongwe was bleeding next to me. We gave him first
aid in the vehicle, but because he was bleeding so much, did
a U-turn
and returned to Kabwe General Hospital. Because of heavy paramilitary
police presence I moved the vehicle around the back and we
left for
Lusaka at around 0300 hrs."
2.6 Former President Kenneth Kaunda described the incident as follows:
"A bullet fired by the
Zambian police grazed the top of my head. The same bullet much
more seriously injured Dr Chongwe
It was
then the police opened up with live ammunition. A bullet grazed my
head and struck Dr Chongwe who was sitting in the front seat, below
the right ear. My aide Anthony Mumbi was also slightly injured by
shrapnel. I probably would have died except my bodyguard Duncan Mtonga,
pushed me to the side when he heard the gun shots. I did not hear
them."
2.7 One of
the passengers in the vehicle, was the United Independence Party (UNIP)'s
legal officer, Mwangala Zaloumis, who provided Human Rights Watch with
a written statement dated 4 September 1997:
"The vehicle was blocked
three times in three different places by police vehicles. At
about 200 meters from the Party Offices the
presidential (Secretary's note; the former president's car)
vehicle was fired at and at the same time tear gas was fired into
the vehicle because the windows were open due to earlier firing
of
tear gas around at the bottom of the vehicle. There was a lot of
confusion in the vehicle as a result of tear gas smoke. The next
thing we saw
was blood all over. Dr Chongwe had been hit on the cheek and was
bleeding profusely. One of the security personnel who sat next
to me was also
bleeding. He had been hit by the shrapnel in three different places..."
2.8 According
to the Human Rights Watch report, President Chiluba on 26 August 1997,
denied that the Kabwe shooting was a state-sponsored assassination plot.
He said that the Zambian police had instigated an investigation and
that Nungu Sassasali, the commanding officer at Kabwe, was suspended.
However, he rejected calls for an independent inquiry into the incident.
The report refers to the ZNBC radio, stating that on 28 August, President
Chiluba said the government would not apologise over the Kabwe shooting
as it could not be held responsible for it.
2.9 According
to the said report quoting the Zambia Daily Mail, Home Affairs Minister
Chitalu Sampa on 31 August stated:
" We have been told that
the bullet hit Dr. Kaunda on the head, the same bullet went
through Dr. Chongwe's cheek, the same bullet
again hit the other person in the neck. Honestly, how can that
be possible, so we can not conclusively say they were shot
by the police."
Further, President Chiluba on 13 November, stated that:
"These two people were
not shot. An AK 47 cannot leave a simple wound. Let them prove
that they were (shot)."
The President then admitted that police fired in the air as they tried
to break up the opposition rally.
2.10 The author
states that he was admitted to the Kabwe hospital immediately after
the shooting incident. The Human Rights Watch report, cites a medical
report by the Kabwe Hospital to the Permanent Secretary, Ministry of
Health, Lusaka, stating:
"Local examination revealed
puncture wound on the right cheek communicating with a bleeding,
open wound on the upper aspect of the
neck."
Furthermore, a medical report from St John of God Hospital in Australia,
where the author took refuge, dated 3 October 1997, states that:
"A small metallic foreign
body can be seen in the soft tissue beneath the skull base
close to the skin surface consistent with the
history of a gunshot wound A small metallic fragment is noted in
the soft tissues in the posterior aspect of the upper cervical
region
close to the skin surface "
2.11 Human Rights Watch report that they showed the medical reports,
photographs, and the Human Rights Commission video to Dr Richard Shepard
of the Forensic Medicine Unit, St George's Hospital Medical School,
London, for an expert assessment. Dr Shepard concluded as follows:
"From evidence that I've
seen one can say for sure that a bullet hit the vehicle and
then as it entered sprayed fragments throughout
the vehicle, a bit like an angry swarm of bees. The injuries sustained
by Kaunda, Chongwe and Kaunda's aide all are consistent with
this.
Rodger Chongwe is lucky to be alive. If the shrapnel had hit him
a couple of inches to the left he would have been dead. The
trajectory
of the bullet hole is slightly downwards suggesting that who ever
fired the shot was slightly elevated, from the back of a lorry,
that
sort of height. The angle does not suggest a shot from a tree or
roof top."
2.12 Human Rights Watch also sought the expert opinion of a firearms
and ballistics specialist, Dr Graham Renshew, who examined the photographs
of the bullet hole in Kaunda's car, the photographs of a bullet cartridge
found near the scene of the incident the day after the rally, and a
photograph of a bullet that UNIP claimed was extracted from the vehicle
after the incident. He explained the following, according to the Human
Rights Watch:
"One bullet clearly penetrated
the vehicle through the back The bullet is consistent with
the cartridge The bullet, with its folds
bent backwards, suggests it had pierced three layers of metal,
consistent with penetrating the vehicle. It could be a non-Russian
AK 47 but
is more likely to be a G-3 or Belgian FAR
The bullet hole in Kaunda's vehicle is consistent with the bullet
and cartridge. With this information it might be possible
to match the bullet
with the firearm that fired it. While one cannot say this was an
assassination attempt, one can say for sure that all the
passengers in the car are
lucky to be alive. If the bullet had hit a window it would have been
able to kill somebody straight. It was slowed down and displaced
by
going through metal."
2.13 Secondly,
in its report, submitted by the author, on the investigation of the
Kabwe-shooting, the Inter-African Network for Human Rights and Development
concluded that the shooting incident took place, and that an international
tribunal should investigate the assassination attempt on the former
President Kenneth Kaunda. This report, which is based on evidence taken
from persons directly concerned in the incident, shows that the car
in which the author was travelling, had left the centre of Kabwe. Before
it did so, there is evidence that the local police commander had given
orders to his men to fire on the car without giving any details as to
the objective of such shooting; this information was relayed on the
police radio network. At a roundabout at the outskirts of Kabwe, a police
vehicle whose registration number and driver have been identified attempted
to block the path of the car. The car's driver evaded this attempt,
and there is evidence that two policemen standing on the back of the
police vehicle opened fire on the car.
2.14 The author
claims that on 28 November 1997, while on board a British Airways plane
in Harare, he was told by airport and airline personnel that there was
a VIP plane on the runway sent by the Zambian Government to collect
him. He decided not to go back to Zambia, and has since this incident
been residing in Australia. He will not return to Zambia, as he fears
for his life.
2.15 From the
information supplied by the author, he does not appear to have taken
steps to exhaust domestic remedies, except for filing a claim for compensation
to the Attorney General of the Republic of Zambia, Ministry of Legal
Affairs. The claim was filed approximately one and a half month after
the Kabwe shooting, that is on 15 October 1997. The author states that
he has no access to effective domestic remedies.
The complaint
3. The author
alleges that the incident on 23 August 1997 was an assassination attempt
by the Zambian Government, and that it constitutes a violation of article
6 of the Covenant. The author further claims that the Zambian judges
are not free from pressure in the performance of their duties, and that
this implies a violation of article 14. He also raises the issue of
security of person. He submits that an amount of US $2.5 million in
damages would be reasonable compensation.
The Committee's
admissibility consideration
4.1 The communication
with its accompanying documents was transmitted to the State party on
3 July 1998. The State party has not responded to the Committee's request,
under rule 91 of the rules of procedures, to submit information and
observations in respect of the admissibility and the merits of the communication,
despite several reminders addressed to it, the latest on 5 August 1999.
The Committee recalls that it is implicit in the Optional Protocol that
the State party makes available to the Committee all information at
its disposal and regrets the lack of co-operation by the State party
in the present case. In the absence of any reply from the State party,
due weight must be given to the author's allegations to the extent that
they have been substantiated.
4.2 Before
considering the claims contained in the communication, the Human Rights
Committee must, in accordance with Article 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to
the Covenant.
4.3 With respect
to exhaustion of domestic remedies, the Committee notes that the author
has argued that he has no access to domestic tribunals and that no effective
domestic remedies are available to him. The State party has failed to
contest before the Committee these allegations and thus due weight must
thus be given to the author's claim. The Committee considers therefore
that it is not precluded by article 5, paragraph 2 b) of the Optional
Protocol from examining the communication.
4.4 With respect
to the author's claim of a violation of article 14 of the Covenant,
the Committee notes that the information provided by the author does
not substantiate for purposes of admissibility, the author's claim that
he is a victim of a violation of article 14 of the Covenant. This part
of the communication is therefore inadmissible under article 2 of the
Optional Protocol.
4.5 The Committee
considers that the author's remaining claims should be examined on the
merits. Accordingly, the Committee finds the communication admissible
and proceeds without delay to consider the merits of the author's claims
under articles 6(1) and 9(1).
The Committee's
consideration of the merits
5.1 The Human
Rights Committee has examined the present case on the basis of the material
placed before it by the parties, as required under article 5, paragraph
1, of the Optional Protocol.
5.2 The Committee
observes that article 6, paragraph 1, entails an obligation of a State
party to protect the right to life of all persons within its territory
and subject to its jurisdiction. In the present case, the author has
claimed, and the State party has failed to contest before the Committee
that the State party authorised the use of lethal force without lawful
reasons, which could have led to the killing of the author. In the circumstances,
the Committee finds that the State party has not acted in accordance
with its obligation to protect the author's right to life under article
6, paragraph 1, of the Covenant.
5.3 The Committee
recalls its jurisprudence that article 9(1) of the Covenant protects
the right to security of person also outside the context of formal deprivation
of liberty(1). The interpretation
of article 9 does not allow a State party to ignore threats to the personal
security of non-detained persons subject to its jurisdiction. In the
present case, it appears that persons acting in an official capacity
within the Zambian police forces shot at the author, wounded him, and
barely missed killing him. The State party has refused to carry out
independent investigations, and the investigations initiated by the
Zambian police have still not been concluded and made public, more than
three years after the incident. No criminal proceedings have been initiated
and the author's claim for compensation appears to have been rejected.
In the circumstances, the Committee concludes that the author's right
to security of person, under article 9, paragraph 1 of the Covenant,
has been violated.
6. The Human
Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights,
is of the view that the facts before it disclose a violation of articles
6, paragraph 1, and 9, paragraph 1, of the Covenant.
7. Under article
2, paragraph 3(a), of the Covenant, the State party is under the obligation
to provide Mr Chongwe with an effective remedy and to take adequate
measures to protect his personal security and life from threats of any
kind. The Committee urges the State party to carry out independent investigations
of the shooting incident, and to expedite criminal proceedings against
the persons responsible for the shooting. If the outcome of the criminal
proceedings reveals that persons acting in an official capacity were
responsible for the shooting and hurting of the author, the remedy should
include damages to Mr Chongwe. The State party is under an obligation
to ensure that similar violations do not occur in the future.
8. Bearing
in mind that, by becoming a State party to the Optional Protocol, the
State party has recognised the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that,
pursuant to article 2 of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognised in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within ninety
days, information about the measures taken to give effect to the Committee's
Views. The State party is also requested to publish the Committee's
Views.
_____________
* The following
members of the Committee participated in the examination of the case:
Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal
Bhagwati, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar Gaitan de Pombo,
Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer
Lallah, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin, Mr. Hipólito
Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden and Mr.
Abdallah Zakhia.
[Adopted in
English, French and Spanish, the English text being the original version.
Subsequently to be translated into Arabic, Chinese and Russian as part
of the Committee's Annual Report to the General Assembly.]
1. See the
Committee's Views in case No 195/1985, Delgado Paez, paragraph 5.5,
adopted on 12 July 1990, document CCPR/C/39/D/195/1985, and in case
No 711/1996 Carlos Dias, paragraph 8.3, adopted on 20 March 2000, document
CCPR/C/68/D/711/1996
