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In Dialogue with Zambia, Experts of the Committee on Enforced Disappearances Commend the State for Abolishing the Death Penalty, Ask About Gaps in Laws on Enforced Disappearance and the Wrongful Removal of Children
21 March 2023
The Committee on Enforced Disappearances this morning concluded its consideration of Zambia, in the absence of a report, on how it implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance. Committee Experts commended the State for abolishing the death penalty, and asked questions about the absence of legislation on enforced disappearance and about wrongful removal of children.
Barbara Lochbihler, Committee Vice-Chair and Country Co-Rapporteur, congratulated the leadership of the country “wholeheartedly” for deciding to abolish the death penalty last December, a development that she described as being “very positive”. What were the maximum or minimum penalties provided for in the Criminal Code for crimes that could be invoked to deal with cases of enforced disappearance? Did any of them carry the death penalty?
Ms. Lochbihler also asked how the State party was planning to address enforced disappearance, and to criminalise it as a crime against humanity. Could the delegation provide information on the inclusion of enforced disappearance as an autonomous offence in domestic legislation? A Committee Expert said provisions on abductions, kidnapping and torture did not fully cover enforced disappearance. That was why the Convention sought an autonomous definition.
Milica Kolakovic-Bojovic, Committee Vice-Chair and Country Co-Rapporteur, asked if the State party intended to amend its penal legislation to criminalise the wrongful removal of children. Did domestic legislation establish any legal procedures to review and, where appropriate, annul any adoption, placement or guardianship that had originated in an enforced disappearance?
The delegation said that Zambia’s legislation did not have an autonomous definition of enforced disappearance but had pre-existing legislation that addressed the essence of enforced disappearance: the protection from the deprivation of liberty. This legislation was in alignment with the Convention.
Dickson Matembo, Permanent Secretary, Ministry of Home Affairs and Internal Security, and head of the delegation, said at the time of the next review of the Constitution, the State party might consider including enforced disappearance in the Constitution as a specific concern.
The delegation said Zambia’s legislation prohibited unlawful removal of children from the Republic. Removal would be considered unlawful if it was in breach of the right of custody and if the removal was in violation of the rights of children. The Penal Code criminalised giving false information to public officials. The anti-human trafficking act 11/2008 provided that a child staying in the State illegally who was a victim was authorised to remain in Zambia for a duration determined by a court order. Such a child should be given an opportunity to apply for asylum. Adoptions were usually granted by courts of law, and annulments could only be commenced and concluded before courts of law.
In his concluding remarks, Mr. Matembo said Zambia welcomed advice from the Committee on issues to be addressed in the light of the gaps identified. The Government was fully committed to ensuring that issues related to the Convention were implemented according to the required international standards.
In concluding remarks, Carmen Rosa Villa Quintana, Committee Chair, said the Committee understood the State party had not had training on how the Convention should be implemented. The State party could make use the regional African offices of the High Commissioner for Human Rights in this regard. The dialogue had to be viewed as a space for cooperation to further implement the Convention and eradicate enforced disappearances in Zambia and worldwide.
The delegation of Zambia was made up of representatives of Ministry of Home Affairs and Internal Security; Ministry of Justice; Commission for Refugees; Commissioner of Police; National Secretary on Human Trafficking; and the Permanent Mission of Zambia to the United Nations Office and other international organisations in Geneva.
The Committee will issue its concluding observations and recommendations on Zambia at the end of its twenty-fourth session, which concludes on 31 March. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. Summaries of the public meetings of the Committee can be found here, while webcasts of the public meetings can be found here.
The Committee is next scheduled to meet in public at 3 p.m. on Tuesday, 21 March to review the additional information submitted by Argentina under article 29 (4) of the Convention (CED/C/ARG/AI/1).
Opening Statement
DICKSON MATEMBO, Permanent Secretary, Ministry of Home Affairs and Internal Security, and head of the delegation, thanked the Committee for the opportunity to discuss issues of enforced disappearance. This was the first time that Zambia was appearing before the Committee. Zambia had ratified the Convention on 4 April 2011, but had not been able to submit a report according to the stipulated time frame.
Since the coming into force of the Convention, the world had witnessed many cases of enforced disappearances. This development concerned Zambia as part of the global village, where what affected one country affected the others. Enforced disappearances had a negative impact on the rights of the victims and created insecurity globally. The Zambian Government had remained resolute in ensuring that all persons were protected from deprivation of personal liberty and laws had been enacted prohibiting deprivation of liberty in any form. Zambia had prohibited deprivation of liberty under its Constitution, and had made other such provisions in the Penal Code and the Criminal Procedure Code, despite having no records of cases involving enforced disappearance. The country committed to the full implementation of the Convention and had embarked on extensive consultations with various stakeholders regarding the domestication of the Convention.
Being fully aware of its responsibility to identify persons affected by enforced disappearance and implement policies that protect and guarantee the right to personal liberty, the Zambian Government had been working closely with institutions such as the Zambian Human Rights Commission and non-governmental organisations. The State party was taking necessary measures to actively contribute to the global campaign to end enforced disappearance. In addition, the Government had oversight institutions mandated to receive and investigate cases of deprivation of liberty, such as the Zambia Police Service and the Drug Enforcement Commission.
Despite economic challenges, the State party remained committed to continuing supporting and protecting all persons that might be at risk of being deprived of their liberty. Zambia appealed to the Committee to continue supporting it as it joined the rest of the world in the fight against any form of deprivation of liberty. The State party remained committed to preventing and ending enforced disappearance of persons.
Questions by Committee Experts
BARBARA LOCHBIHLER, Committee Vice-Chair and Country Co-Rapporteur, asked the State party to explain how it was planning to domesticate the Convention. Was there any publicly available information on the work of the Human Rights Commission of Zambia on enforced disappearance? What was the State party intending to do to strengthen the resources of this Commission, so it could effectively and independently work on its mandate in compliance with the Paris Principles? Could the State party provide updates on its considerations on articles 31 and 32 of the Convention?
The State party had said no disappearances were recorded for the period under review. However, there had been claims of enforced disappearance submitted by refugees and former refugees, but no evidence of disappearances had been presented by those parties. Could the State party provide more specific information on these cases, including the sex, gender, age, region and ethnic nationality of the persons involved? A database for missing persons was available. How did the State party define and distinguish between disappearance and enforced disappearance? Was a cross-check performed against information in other databases, such as the register of persons deprived of liberty? Was the State party planning to include the protection for victims of enforced disappearance in the Constitution? How was the State party planning to address enforced disappearance, and to criminalise it as a crime against humanity? Could the delegation provide information on the inclusion of enforced disappearance as an autonomous offence in domestic legislation? What were the maximum or minimum penalties provided for in the Criminal Code for crimes that could be invoked to deal with cases of enforced disappearance? Did any of them carry the death penalty? Ms. Lochbihler congratulated the State party “wholeheartedly” for abolishing the death penalty last December, a development that she described as being “very positive”.
Could the delegation provide information on legislation that ensured that any person engaging in enforced disappearance and persons complicit to the act were held criminally responsible? Which legislation prohibited orders or instructions from public authorities to justify an offence of enforced disappearance? Did “due obedience” as a criminal law defence have any impact on the effective implementation of this prohibition? In this regard, and considering article 10 of the Criminal Code, how did the State party ensure criminal responsibility for a superior who ordered an enforced disappearance? How did domestic legislation guarantee that a person who refused to obey orders or instructions that prescribed, authorised or encouraged enforced disappearance would not be punished? Were any remedies available to subordinates against any potential disciplinary measures resulting from the refusal to carry out such orders?
MILICA KOLAKOVIC-BOJOVIC, Committee Vice-Chair and Country Co-Rapporteur, asked the State party to confirm that there was no statute of limitations on enforced disappearance. What were the existing legal, administrative or judicial measures taken to carry out preliminary inquiry or investigations to establish the facts related to enforced disappearance? Could the State party describe the procedure that would be implemented in line with article 10 step-by-step? The State party had reported there was a taskforce with personnel from the defence and security sectors investigating allegations of offences including enforced disappearances, and there was no record of such cases before the taskforce. With regards to the taskforce, the Committee would like to learn more about its legal status, composition, mandate, and relationship with the prosecutor’s office and courts. Were there records of other cases addressed by the taskforce?
Regarding disappearances occurring in the context of trafficking and migration and disappearances of persons with albinism, could the State party provide disaggregated data on the perpetrators and the victims, including by sex, age and nationality; on the investigations carried out and their results? The State party had reported on events referring to the 2016 election procedure. Cases of deprivation of liberty had been reported and investigated but no arrest had been made. What were the outcomes of the measures taken to address events related to the 2016 election process?
Could the State party provide information on the authorities responsible for receiving complaints and investigating enforced disappearance cases, and the measures to ensure to ensure prompt and impartial investigation, including in absence of official complaints? The Committee was interested in the division of competences among authorities and the remedies available in cases where the authorities refused to investigate allegations. What mechanisms were available in Zambia’s legal systems for witnesses, relatives, victims, and defence councils in cases of ill-treatment or intimidation? The State party had a duty to initiate investigations ex officio, that is, in the absence of complaints. How did the State party ensure that persons suspected of having committed an offence of enforced disappearance were not able to influence the progress of investigations? Were there mechanisms in place to exclude law enforcement or other public officials from investigations into enforced disappearance when they were suspected of having been involved in the commission of this offence? What concrete measures had been taken to ensure that competent authorities had all powers and resources to lead investigations and access places of detention?
Responses by the Delegation
The delegation said the State party had pre-existing provisions guaranteeing the protection of persons from enforced disappearances, as contained in the Constitution and subsidiary legislation. Having these provisions, the State party had no intention to include or domesticate an autonomous legislative framework in relation to enforced disappearance.
The country had been recording information regarding disappearances involving former Rwandan refugees. Investigations had been conducted several times, and these had proven that there was no evidence of enforced disappearances.
Zambia’s legislation did not have an autonomous definition of enforced disappearance but had pre-existing legislation that addressed the essence of enforced disappearance: the protection from the deprivation of liberty. This legislation was in alignment with the Convention.
DICKSON MATEMBO, Permanent Secretary, Ministry of Home Affairs and Internal Security, and head of the delegation, said that constantly changing the Constitution to bring it in line with the Convention and other international norms would make the Constitution unstable. Instead, State legislation reflected the provisions of the Convention.
Follow-Up Questions by Committee Experts
BARBARA LOCHBIHLER, Committee Vice-Chair and Country Co-Rapporteur, asked about the number of cases of allegations of disappearances of refugees. Did the State party have statistics? Could the State party be specific on how many people were recorded in the State database for missing persons in Lusaka?
A Committee Expert said integrating enforced disappearance in domestic legislation was not a question of changing the country’s Constitution. This was a criminal offence. Provisions on abductions, kidnapping and torture did not fully cover enforced disappearance. That was why the Convention sought an autonomous definition, which would not cause difficulties with the Constitution. The State party needed to move forward with this.
JUAN PABLO ALBAN ALENCASTRO, Committee Rapporteur, reiterated the high value of the dialogue. What was the function of the Human Rights Commission in Zambia? The State party stated that some persons were deprived of liberty and were held for hours or days. In the State’s view, were incommunicado detentions for a few hours or days something that should not be considered enforced disappearance, and if so, why? Who was carrying out consultation on articles 31 and 32 of the Convention? The State party had said that reports of refugees and others who had disappeared had not moved forward because there had been no evidence of the disappearance presented by the complainants. In this type of situation, who investigated the possible disappearance and looked for proof of whether there had been a disappearance or not? Under the Criminal Code of Zambia, an enforced disappearance was mainly punished with a fine or a short prison sentence. Was that adequate, given the seriousness of an enforced disappearance?
On the functions of the Human Rights Commission in Zambia, the delegation said the Commission was empowered to investigate human rights violations and mal-administration of justice, propose effective measure to prevent human right abuses, visit prisons and other places of detention to assess and inspect conditions. It also made recommendations to redress existing problems, had established a programme of research on human rights abuses, provided education on human rights and information to victims of human rights abuses.
The State did not have a statute of limitation with regards to criminal cases. It only had one regarding civil matters.
Questions by Committee Experts
BARBARA LOCHBIHLER, Committee Vice-Chair and Country Co-Rapporteur, asked whether it was possible to appeal a decision authorising an expulsion, return, surrender or extradition and, if so, before which authority and under which procedure? Did appeals have a suspensive effect?
Responses by the Delegation
The delegation said consultation on any change of legislation in Zambia was led by the Minister of Justice. Wide consultation was conducted, also involving the law development commission, before any legislation was changed. Such a process could lead to an amendment to introduce a specific law on enforced disappearance.
Responses by the Delegation
DICKSON MATEMBO, Permanent Secretary, Ministry of Home Affairs and Internal Security, and head of the delegation, said the State party had started the process of domesticating the Convention. Instructions were being given to the Human Rights Commission to analyse whether existing laws were sufficient to address enforced disappearance, or whether a new law was needed. On strengthening the Human Rights Commission, the Government had taken note of the gaps in the Commission’s setup. More resources were needed for it to deal with human rights issues. With regards to refugees and former refugees, Zambia was hosting Burundians, Rwandese, Congolese and Angolans—most of whom were being repatriated.
The delegation said in August 2022, Zambia had received a report that 22 Angolan former refugees had disappeared. The police and a security committee, together with the Commission for Refugees and the United Nations High Commissioner for Refugees had investigated, establishing that the information given in the report was not true. 11 people had died of natural causes, and other 11 were still alive. A list of their names and where they had died was available and could be provided to the Committee. In April 2022, the report of a man who had disappeared was received, which started investigations. His whereabouts were still not know, his children were traumatized and could not be locally integrated. Another report had been received of the disappearance of ten Rwandese nationals between 1996 and 2022. After investigations by the security committee, it was confirmed that a 50-year-old woman Rwandese refugee had been abducted in 1997.
DICKSON MATEMBO, Permanent Secretary, Ministry of Home Affairs and Internal Security, and head of the delegation, said the State party would consider incorporating definitions of “missing”, “disappearance” and “enforced disappearance” into domestic legislation to strengthen it. At the time of the next review of the Constitution, the State party might consider including enforced disappearance in the Constitution as a specific concern.
Questions by Committee Experts
BARBARA LOCHBIHLER, Committee Vice-Chair and Country Co-Rapporteur, asked the State party to describe the domestic legal provisions that expressly prohibited secret or unofficial detention. What measures had been taken to guarantee that any person with a legitimate interest could access all the information listed in article 18 (1) of the Convention, including the time and place of the depravation of liberty, the whereabouts of the detained person, and the date of release? What were the procedures to be followed to gain access to such information? What restrictions and conditions might be imposed on such access? Could the State party describe the means available for appealing against the refusal to disclose such information? What measures were in place to prevent delays and obstructions to such appeals and impose sanctions for delays or obstructions? What measures had been taken in that regard in the context of the COVID-19 pandemic?
MILICA KOLAKOVIC-BOJOVIC, Committee Vice-Chair and Country Co-Rapporteur, asked how the State party defined in its national legislation “a person affected by crime”. Were there any plans to incorporate in national legislation the definition of victim as provided in article 24 (1) of the Convention? Who was responsible for providing compensation and reparation to victims of enforced disappearance? Was compensation available in criminal proceeding, or did a victim need to initiate additional civil proceedings to obtain redress? How long did it take to receive compensation and what was the average amount? Was there a time limit for victims of enforced disappearance to gain access to compensation and other reparative measures? Were there compensation funds for victims available? Besides compensation, what other reparative measures and what kind of support services were available? Did the State party have a database including information on missing persons? Did the State party intend to establish a national DNA database? What was the procedure for making a declaration of absence? What were the rights of the relatives of the missing persons regarding social welfare, financial matters, family law and property rights? Which legal provisions ensured the freedom to establish associations concerned with investigating the circumstances of an enforced disappearance? Did such associations exist in the country, and if so, what were their activities?
Did the State party intend to amend its penal legislation to criminalise the wrongful removal of children? What measures were being taken to improve birth registration to prevent any risk of wrongful removal of children? Were there other forms of placement of children beyond the system of adoption? Did domestic legislation establish any legal procedures to review and, where appropriate, annul any adoption, placement or guardianship that had originated in an enforced disappearance?
DICKSON MATEMBO, Permanent Secretary, Ministry of Home Affairs and Internal Security, and head of the delegation, said there were no secret or unofficial detention in the State party. The Government was in the process of enacting a regulation on access to information, which could require procedures to make sure that information given was used in a way that would not disrupt the peace.
The delegation said that in addition to the Constitution and the Penal Code that explicitly prohibited secret or unofficial detention, section 29 of Zambia Correctional Service Act number 27/2021 provided that a person should be admitted into a prison or correctional centre under the authority of the Commissioner General and that person would be accompanied by a remain warrant, order of detention, or order of conviction. No person could be allowed to be detained in a correctional centre or a prison without an official warrant from a competent authority authorised to do so. All persons, regardless of the offence they were accused of, had access to a lawyer. Zambia Correctional Service had an open-door policy, allowing relatives of persons deprived of their liberty to seek information.
The State party had facilities allowing persons such as relatives, lawyers and other members of the public that had an interest to acquire information on the whereabouts of persons deprived of their liberty. The procedure to access information depended on the sensitivity of that information. All the information on the whereabouts of persons deprived of their liberty was contained in an “Admission Register”. The information therein contained was as provided in Article 18 of the Convention.
Zambia’s domestic legislation, specifically section 2 of the anti-human trafficking act, defined a “victim” as a person who had suffered harm, including mental and physical injury, emotional suffering, physical injury, economic loss, or substantial loss of fundamental human rights. On reparation and compensation, a victim of enforced disappearance could bring an action for forced imprisonment and seek damages. The quantum of damages was determined on a case-by-case basis, considering the duration of incarceration, the sanctity of the person’s liberty, the presence or absence of suffering or anxiety, the manner and circumstances of detention, and the reasonableness of the explanation for the detention. A compensation fund had been created to settling claims against the State. Compensation in this regard was not contingent on a criminal conviction. The Limitation Act prescribed a time limit for victims to lodge complaints regarding forced imprisonment. The limitation period was 4 years.
An amendment to the Zambia Police Act empowered the police and the community services to provide support to the victims of crime, including missing persons, relatives and children. Zambia police provided support services, housing and financial support for victims until the matter was investigated and settled. The relatives of the missing person were kept informed of the process of the investigation by members of the victim support unit. In cases where counselling service were needed, the police engaged with partners to ensure families were able to access those services.
The State party did not currently have domestic legislation regarding the declaration of death. However, courts had established principles on procedures to follow to obtain a declaration of death. The principles set out that a person whose whereabouts had not been clarified for a continuous period of seven year or more was presumed dead, until due evidence of the contrary was brought forward. Article 21 of the Constitution specifically guaranteed the rights of assembly and association.
DICKSON MATEMBO, Permanent Secretary, Ministry of Home Affairs and Internal Security, and head of the delegation, said the State party was in a process of establishing a DNA database, doing preparatory work for registering citizens and collecting samples from them.
The delegation said Zambia’s legislation prohibited unlawful removal of children from the Republic. This would be “unlawful” if it was in breach of the right of custody and if the removal was in violation of the rights of children. The Penal Code criminalised giving false information to public officials. The anti-human trafficking act 11/2008 provided that a child staying in the State illegally who was a victim was authorised to remain in Zambia for a duration determined by a court order. Such a child should be given an opportunity to apply for asylum. The law prohibited the removal of children if the removal was not in their best interest. Further, it prohibited the deportation of victims of trafficking, including children.
Questions by Committee Experts
MILICA KOLAKOVIC-BOJOVIC, Committee Vice-Chair and Country Co-Rapporteur, asked how the issuing of a declaration of death affected the search process. Could the State balance relatives’ rights and the continuation of a search? When a declaration of death was issued, were search processes terminated? Could the delegation provide details on mechanisms to annul illegal adoptions to ensure illegally adopted children could obtain their real identity? Could the delegation provide details on mechanisms to obtain compensation for any crime? Were there any mechanisms to submit compensation claims within criminal proceedings, or were administrative proceedings started on the basis of criminal proceedings? Was the definition of “victim” in the anti-human trafficking act applicable to victims of other crimes?
JUAN PABLO ALBAN ALENCASTRO, Committee Rapporteur, asked how access to information on persons in detention would interfere with the public order or peace. What authority determined if there had been an interference? The State party had said there was no statute of limitations in criminal law. Did that apply to some or all offences? Citing cases involving Angolan and Rwandan nationals, he asked how State party made the right to consular assistance available? What measures existed domestically to guarantee international cooperation sought by Zambia or other countries on cases of enforced disappearance?
With reference to article 25 of the Convention on the protection of children, a Committee Expert said the Committee had received information that people of Croatian nationality had been arrested in Zambia in a case of illegal international adoption. What did the investigation determine, including on the origin of adoption? Had children been taken from their families or from an orphanage? What measures had Zambia taken to ensure that adoptions, particularly international adoptions, could not be the result of enforced disappearance?
Responses by the Delegation
DICKSON MATEMBO, Permanent Secretary, Ministry of Home Affairs and Internal Security, and head of the delegation, said about eight Croatians had crossed into Zambia from Congo with children. Zambia’s border officers had examined their documentation and had contacted Congolese officials. These children had come from orphanages. This was not the first time this group had crossed the border with children. They had been accused of illegal detention and investigations had been carried out, with the Congolese authorities establishing that their documentation was fake. The owner of the orphanage from which these children had been collected was on the run, and the case was now in court. The children had been protected by the Ministry of Community and Social Welfare, in collaboration with the Congolese authority in charge of children welfare. They would have to be handed over to the Congolese Government.
Prison rules provided inmates, particularly foreigners, with access to information and legal advice. If the inmate was not a Zambian, they had access to consular representatives. Upon admission of a person in a detention centre, the Correctional Service Act mandated the officer in charge of a particular correctional centre to provide the inmate with information. There was an inmates complaints and requests book, in which they were afforded the right to submit requests for information or meetings with persons to the officer in charge. The officer in charge contacted requested persons and facilitated access. For requests from foreigners, follows-up were made with their respective embassies and was information provided to these institutions.
Adoptions were usually granted by courts of law, and annulments could only be commenced and concluded before courts of law. Zambia used the definition of “victim” under the anti-human trafficking act because it addressed broad categories of victims. Some of the acts that constituted human trafficking were also criminal offences themselves. For instance, a victim of human trafficking could also be a victim of rape. The definition of “victim” under the anti-human trafficking act covered victims of other offences.
After the declaration of death, a court order was issued that resulted in the termination of the search of the missing individual. After the end of criminal proceedings, the onus was on the person affected to commence civil action to obtain compensation for damages. After consultations, the State party was now considering including an autonomous offence addressing enforced disappearance in the Constitution at the time of its next review. On limitation in relation to criminal proceedings, generally criminal offences were not time-bound, but certain cases had a time limit within which to commence proceedings.
Closing Statements
CARMEN ROSA VILLA QUINTANA, Committee Chair, thanked the delegation for participating in the dialogue. She said this discussion was a vital step as part of the cooperation between the Committee and State party. She expressed regret that it had not been possible to make the most out of this opportunity to move forward together in implementing the Convention. The Committee understood the State party had not had training on how the Convention should be implemented. The State party could use the regional African offices of the High Commissioner for Human Rights, which offered a manual on preparing State reports and preparing for the dialogue. It was important for the State party and the Committee to have more fluid interaction. The dialogue had to be viewed as a space for cooperation. It was key to hold training days for State officials to open spaces for constructive dialogue. The State and the Committee had shared goals of ensuring the implementation of the Convention in Zambia and eradicating and preventing enforced disappearances. The Committee was counting on Zambia’s commitment on this, just as Zambia could count on the Committee to support the State.
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