CCPR/C/48/D/326/1988

Communication No. 326/1988, Henry Kalenga v. Zambia

(views adopted on 27 July 1993, forty-eighth session)

Submitted by:

Henry Kalenga

Victim:

The author

State party:

Zambia

Date of communication: 18 November 1988 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 27 July 1993,

Having concluded its consideration of communication No. 326/1988,

submitted to the Human Rights Committee by Mr. Henry Kalenga 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 Henry Kalenga, a Zambian citizen

currently residing in Kitwe, Zambia. He claims to be a victim of violations

by Zambia of articles 9, 14 and 19 of the International Covenant on Civil and

Political Rights.

Facts as submitted

2.1 On 11 February 1986, the author was arrested by the police of the city

of Masala; he was forced to spend the night in a police lock-up. On

12 February 1986, a statement was taken from him. The following day, a

police detention order was issued against him pursuant to Regulation 33 (6)

of the Preservation of Public Security Act. This order was revoked on 27

February 1986 but immediately replaced by a Presidential detention order,

issued under Regulation 33 (1) of the said Act.

2.2 The author notes that the Preservation of Public Security Regulations

allow the President of Zambia to authorize the administrative detention of

persons accused of political offences for an indefinite period of time, "for

purposes of preserving public security". The author was informed of the

charges brought against him on 13 March 1986, that is over one month after

his arrest. He was subsequently kept in police detention, on charges of (a)

being one of the founding members and having sought to disseminate the views

of a political organization, the so-called People's Redemption Organization -

an organization considered illegal under Zambia's (then) one-party

Constitution - and (b) of preparing subversive activities aimed at

overthrowing the regime of (then) President Kenneth Kaunda. The author was

released on 3 November 1989, following a Presidential order.

2.3 After his release, the author was placed under surveillance by the

Zambian authorities. The latter allegedly denied him his passport, thereby

depriving him of his freedom of movement. Moreover, he claims that as a

former political prisoner, he was subjected to harassment and intimidation by

the authorities, which also reportedly denied him access to governmental and

private financial institutions.

Complaint

3.1 Mr. Kalenga contends that at the time of his arrest, he was not engaged

in any political activities aimed at undermining the government. Instead, he

had been promoting campaigns protesting the government's national education,

military and economic policies. He adds that the subversive activities he

was accused of amounted to no more than burning the card affiliating him with

President Kaunda's party, UNIP. He claims that, as a prisoner of conscience,

he was subjected to unlawful detention, because he was formally informed

about the reasons for his detention more than a month following his arrest,

contrary to the Regulations mentioned in paragraph 2.1 above and article 27,

paragraph 1 (a), of the Zambian Constitution. The latter provision

stipulates that the grounds of detention must be supplied within fourteen

days following the arrest. In this connection, the author asserts that the

charges against him had no basis in fact at the time of his arrest and that

they were "fabricated" by the police in order to justify his detention.

3.2 The author further affirms that throughout his detention, he was not

brought before a judge or judicial officer to establish his guilt. This

allegedly was attributable to the fact that under Zambian legislation

regulating public security issues, individuals may be detained indefinitely

without being formally charged or tried.

3.3 The author contends that he was subjected to inhuman and degrading

treatment during his detention. He claims that he was frequently deprived of

food, of access to recreational activities as well as medical assistance,

despite the continuing deterioration of his state of health. Moreover, he

claims to have been subjected to various forms of "psychological torture".

This treatment is said to be prohibited under articles 17 and 25 (2) and (3)

of the Zambian Constitution.

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

author states that he instituted proceedings against the State during his

detention. Initially, he filed an application for writ of habeas corpus with

the High Court of Zambia. On 23 June 1986, the High Court dismissed his

application, on the ground that the author's detention was not in violation

of domestic laws. The author then filed another request for writ of habeas

corpus with the High Court of Justice, in which he (a) challenged the

legality of his detention, (b) complained about the inhuman and degrading

treatment suffered during detention, and (c) requested compensation and

damages. On 14 April 1989, the application was dismissed by the Court, which

declared itself incompetent to deal with the matter on the basis of res

judicata. The author then petitioned a special tribunal established under

the Preservation of Public Security Regulations; this tribunal has the

mandate to review periodically the cases of political prisoners and is

authorized to recommend either continued detention or release. The tribunal

sits, however, in camera, and the President is not obliged to implement its

recommendations, made confidentially. On 29 and 30 December 1988, the author

was heard by this tribunal. As the State prosecutor could not adduce

evidence in support of the charges against the author, the tribunal

recommended Mr. Kalenga's immediate release. None the less, release did not

occur until 10 months later, as President Kaunda did not follow up on the

recommendation.

Committee's decision on admissibility and the parties' submissions on the

merits

4.1 During its firty-third session in October 1991, the Committee considered

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

any State party cooperation on the matter, as the State party had failed to

make submissions on the admissibility of the case in spite of two reminders.

On the basis of the information before it, it concluded that the author had

met the requirements under article 5, paragraph 2 (b), of the Optional

Protocol, and that he had sufficiently substantiated his allegations, for

purposes of admissibility.

4.2 On 15 October 1991, the Committee declared the communication admissible

in as much as it appeared to raise issues under articles 7, 9, 10, 12 and 19

of the Covenant.

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

"Mr. Henry Kalenga has been released from custody and is a free person now".

No information about the substance of the author's allegations, nor copies of

his indictment or of any judicial orders concerning his detention and the

alleged legality thereof, have been provided by the State party. The State

party did not reply to a reminder addressed to it in February 1993.

5.2 In an undated letter received on 24 March 1992, the author requests the

Committee to continue consideration of his case. He adds that he continues

to suffer from stomach ulcers and a deplorable financial situation as a

result of his detention; he further contends that the change in Government,

in the spring of 1992, has not changed the authorities' attitude towards him.

Examination of the merits

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 about the author's release,

a fact known to the Committee by the time of the adoption of the

admissibility decision, the State party has failed to cooperate on the matter

under consideration. It is implicit in article 4, paragraph 2, of the

Optional Protocol that a State party investigate in good faith the

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

the information at its disposal, including all available judicial documents.

The State party has failed to provide the Committee with 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 is of the opinion

that the uncontested response of the Zambian authorities to the author's

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

People's Redemption Organization constitute a violation of his rights under

article 19 of the Covenant.

6.3 The Committee is of the opinion that the author's right, under article

9, paragraph 2, to be promptly informed about the reasons for his arrest and

of the charges against him, has been violated, as it took the State party

authorities almost one month to so inform him. Similarly, the Committee

finds a violation of article 9, paragraph 3, as the material before it

reveals that the author was not brought promptly before a judge or other

officer authorized by law to exercise judicial power. On the other hand, on

the basis of the chronology of judicial proceedings provided by the author

himself, the Committee cannot conclude that Mr. Kalenga was denied his right,

under article 9, paragraph 4, to take proceedings before a court of law.

6.4 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

Zambian authorities have denied him his passport. This, in the Committee's

opinion, amounts to a violation of article 12, paragraph 1, of the Covenant.

6.5 As to Mr. Kalenga's claim of inhuman and degrading treatment in

detention, the Committee notes that the author has provided information in

substantiation of his allegation, in particular concerning the denial of

recreational facilities, the occasional deprivation of food and failure to

provide medical assistance when needed. Although the author has not shown

that such treatment was cruel, inhuman and degrading within the meaning of

article 7, the Committee considers that the State party has violated the

author's right under article 10, paragraph 1, to be treated with humanity and

respect for the inherent dignity of his person.

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 2 and 3; 10, paragraph 1; 12, paragraph

1; and 19, of the Covenant.

8.

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

obligation to provide Mr. Kalenga 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 ninety 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.]