CCPR/C/48/D/314/1988

Communication No. 314/1988, Peter Chiiko Bwalya v. Zambia

(views adopted on 14 July 1993, forty-eighth session)

Submitted by: Peter Chiiko Bwalya

Victim: The author

State party: Zambia

Date of communication: 30 March 1988 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 14 July 1993,

Having concluded its consideration of communication No. 314/1988,

submitted to the Human Rights Committee by Mr. Peter Chiiko Bwalya under the

Optional Protocol to the International Covenant on Civil and Political

Rights,

Having taken into account all written information made available to it

by the author of the communication and the State party,

Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.

The author of the communication is Peter Chiiko Bwalya, a Zambian

citizen born in 1961 and currently chairman of the People's Redemption

Organization, a political party in Zambia. He claims to be a victim of

violations of the International Covenant on Civil and Political Rights by

Zambia.

Facts as submitted

2.1 In 1983, at the age of 22, the author ran for a parliamentary seat in

the Constituency of Chifubu, Zambia. He states that the authorities

prevented him from properly preparing his candidacy and from participating in

the electoral campaign. The authorities' action apparently helped to

increase his popularity among the poorer strata of the local population, as

the author was committed to changing the Government's policy towards, in

particular, the homeless and the unemployed. He claims that in retaliation

for the propagation of his opinions and his activism, the authorities

subjected him to threats and intimidation, and that in January 1986 he was

dismissed from his employment. The Ndola City Council subsequently expelled

him and his family from their home, while the payment of his father's pension

was suspended indefinitely.

2.2 Because of the harassment and hardship to which he and his family were

being subjected, the author emigrated to Namibia, where other Zambian

citizens had settled. Upon his return to Zambia, however, he was arrested

and placed in custody; the author's account in this respect is unclear and

the date of his return to Zambia remains unspecified.

2.3 The author notes that by September 1988 he had been detained for 31

months, on charges of belonging to the People's Redemption Organization - an

association considered illegal under the terms of the country's one-party

Constitution - and for having conspired to overthrow the Government of the

then President Kenneth Kaunda. On an unspecified subsequent date, he was

released; again, the circumstances of his release remain unknown. At an

unspecified later date, Mr. Bwalya returned to Zambia.

2.4 On 25 March 1990, the author sought the Committee's direct intercession

in connection with alleged discrimination, denial of employment and refusal

of a passport. By letter of 5 July 1990, the author's wife indicated that

her husband had been rearrested on 1 July 1990 and taken to the Central

Police Station in Ndola, where he was reportedly kept for two days.

Subsequently, he was transferred to Kansenshi prison in Ndola; the author's

wife claims that she was not informed of the reasons for her husband's arrest

and detention.

2.5 With respect to the requirement of exhaustion of domestic remedies, the

author notes that he instituted proceedings against the authorities after his

initial arrest. He notes that the district tribunal reviewing his case

confirmed, on 17 August 1987, that he was no danger to national security but

that, notwithstanding the court's finding, he remained in custody. A further

approach to the Supreme Court met with no success.

Complaint

3.1 In his initial submissions, the author invokes a large number of

provisions of the Covenant, without substantiating his allegations. In

subsequent letters, he confines his claims to alleged violations of articles

1, 2, 3, 9, 10, 12, 25 and 26 of the Covenant.

3.2 The author contends that, since he never participated in any conspiracy

to overthrow the Government of President Kaunda, his arrests were arbitrary

and his detentions unlawful, and that he is entitled to adequate compensation

from the State party. He submits that following his release from the first

period of detention he continued to be harassed and intimidated by the

authorities; he claims that he denounced these practices.

3.3 The author states that, as a political activist and former prisoner of

conscience, he has been placed under strict surveillance by the authorities,

and that he continues to be subjected to restrictions on his freedom of

movement. He claims that he has been denied a passport as well as any means

of making a decent living.

Issues and proceedings before the Committee

4.1 Before considering any claims contained in a communication, the Human

Rights Committee must, in accordance with rule 87 of its rules of procedure,

decide whether or not it is admissible under the Optional Protocol to the

Covenant.

4.2 During its forty-first session, the Committee considered the

admissibility of the communication. It noted with concern the absence of

cooperation from the State party which, in spite of four reminders addressed

to it, had failed to comment on the admissibility of the communication. It

further noted that the author's claim that the Supreme Court had dismissed

his appeal had remained uncontested. In the circumstances, the Committee

concluded that the requirements of article 5, paragraph 2 (b), of the

Optional Protocol had been met.

4.3 As to the claims relating to articles 7 and 10 of the Covenant, the

Committee considered that the author had failed to substantiate his claim,

for purposes of admissibility, that he had been subjected to treatment in

violation of these provisions. Accordingly, the Committee found this part of

the communication inadmissible under article 2 of the Optional Protocol.

4.4 With respect to the author's claims that he: (a) had been subjected to

arbitrary arrest and unlawful detention; (b) had been denied the right to

liberty of movement and arbitrarily denied a passport; (c) had been denied

the right to take part in the conduct of public affairs; and (d) had been

discriminated against on account of political opinion, the Committee

considered that they had been substantiated, for purposes of admissibility.

Furthermore, the Committee was of the opinion that, although articles 9,

paragraph 2, and 19 had not been invoked, the facts as submitted might raise

issues under these provisions.

4.5 On 21 March 1991, the Committee declared the communication admissible in

so far as it appeared to raise issues under articles 9, 12, 19, 25 and 26 of

the Covenant.

5.1 In a submission dated 28 January 1992, the State party indicates that

"Mr. Peter Chiiko Bwalya has been released from custody and is a free person

now". No information on the substance of the author's allegations, nor

copies of his indictment or any judicial orders concerning the author, have

been provided by the State party, in spite of reminders addressed to it on

9 January and 21 May 1992.

5.2 In a letter dated 3 March 1992, the author confirms that he was released

from detention but requests the Committee to continue consideration of his

case. He adds that the change in the Government has not changed the

authorities' attitude towards him.

6.1 The Committee has considered the communication in the light of all the

information provided by the parties. It notes with concern that, with the

exception of a brief note informing the Committee of the author's release,

the State party has failed to cooperate on the matter under consideration.

It further recalls that it is implicit in article 4, paragraph 2, of the

Optional Protocol that a State party examine in good faith all the

allegations brought against it, and that it provide the Committee with all

the information at its disposal, including all available judicial orders and

decisions. The State party has not forwarded to the Committee any such

information. In the circumstances, due weight must be given to the author's

allegations, to the extent that they have been substantiated.

6.2 In respect of issues under article 19, the Committee considers that the

uncontested response of the authorities to the attempts of the author to

express his opinions freely and to disseminate the political tenets of his

party constitute a violation of his rights under article 19.

6.3 The Committee has noted that when the communication was placed before it

for consideration, Mr. Bwalya had been detained for a total of 31 months, a

claim that has not been contested by the State party. It notes that the

author was held solely on charges of belonging to a political party

considered illegal under the country's (then) one-party constitution and that

on the basis of the information before the Committee, Mr. Bwalya was not

brought promptly before a judge or other officer authorized by law to

exercise judicial power to determine the lawfulness of his detention. This,

in the Committee's opinion, constitutes a violation of the author's right

under article 9, paragraph 3, of the Covenant.

6.4 With regard to the right to security of person, the Committee notes that

Mr. Bwalya, after being released from detention, has been subjected to

continued harassment and intimidation. The State party has not contested

these allegations. The first sentence of article 9, paragraph 1, guarantees

to everyone the right to liberty and security of person. The Committee has

already had the opportunity to explain that this right may be invoked not

only in the context of arrest and detention, and that an interpretation of

article 9 which would allow a State party to ignore threats to the personal

security of non-detained persons within its jurisdiction would render

ineffective the guarantees of the Covenant. a/ In the circumstances of the

case, the Committee concludes that the State party has violated Mr. Bwalya's

right to security of person under article 9, paragraph 1.

6.5 The author has claimed, and the State party has not denied, that he

continues to suffer restrictions on his freedom of movement, and that the

authorities have refused to issue a passport to him. This, in the

Committee's opinion, amounts to a violation of article 12, paragraph 1, of

the Covenant.

6.6 As to the alleged violation of article 25 of the Covenant, the Committee

notes that the author, a leading figure of a political party in opposition to

the former President, has been prevented from participating in a general

election campaign as well as from preparing his candidacy for this party.

This amounts to an unreasonable restriction on the author's right to "take

part in the conduct of public affairs" which the State party has failed to

explain or justify. In particular, it has failed to explain the requisite

conditions for participation in the elections. Accordingly, it must be

assumed that Mr. Bwalya was detained and denied the right to run for a

parliamentary seat in the Constituency of Chifubu merely on account of his

membership in a political party other than that officially recognized; in

this context, the Committee observes that restrictions on political activity

outside the only recognized political party amount to an unreasonable

restriction of the right to participate in the conduct of public affairs.

6.7 Finally, on the basis of the information before it, the Committee

concludes that the author has been discriminated against in his employment

because of his political opinions, contrary to article 26 of the Covenant.

7.

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 as found by the Committee disclose

violations of articles 9, paragraphs 1 and 3, 12, 19, paragraph 1, 25 (a) and

26 of the Covenant.

8.

Pursuant to article 2 of the Covenant, the State party is under an

obligation to provide Mr. Bwalya with an appropriate remedy. The Committee

urges the State party to grant appropriate compensation to the author. The

State party is under an obligation to ensure that similar violations do not

occur in the future.

9.

The Committee would wish to receive information, within 90 days, on any

relevant measures taken by the State party in respect of the Committee's

views.

[Done in English, French and Spanish, the English text being the original

version.]

Notes

a/

Views on communication No. 195/1985 (Delgado Pбez v. Colombia),

adopted on 12 July 1990, paras. 5.5 and 5.6.