Police brutality in Zambia is a well known fact in addition to impunity and corruption. Even the far away US Department of State Country Report on Human Rights for 2015 recently noted these facts. This article deals with possible remedies to deal with police impunity since the Human Rights Commission and individual litigation routes are impotent.
First let me deal with some issues that impinge and directly influence police brutality and impunity everywhere including Zambia. Police behaviour, like judicial behaviour everywhere, reflects the attitude and imprimatur of the state apparatus in which the police operate. They mirror the attitude of those in power. When state attitudes change, police and judicial behaviour usually change albeit with a time lag at times. There is sometimes not a one-on-one correspondence.
Let me give just two examples of the Apartheid State in South Africa and the United States during its apartheid era. Police and judicial behaviour reflected the approval and attitude of the status quo.
If the Zambian police behaved contrary to the mindset of the status quo, they would have long been reprimanded and held accountable. The Zambian police would not have gotten away with impunity. The Zambian police have been filmed brutalizing innocent citizens with impunity. The police have not been sent to quell violence by political cadres. The police usually stand by and observe political cadres maim, injure and beat up innocent citizens trying to exercise their constitutional rights to freedom of assembly. The status quo has not taken action even in brazen cases of police brutality and harassment because the state approves and condones this behaviour.
The state has the capacity to quell decisively unruly behaviour when it wants to and when it decides to exercise will-power. The evidence is when the state dealt with recent spates of xenophobia in parts of Lusaka. That is how the state acts when it disapproves of an disorderly and criminal conduct. It impartially acts to bring peace and order. Xenophobia was short-lived as a result. The state also sent a strong message that by bringing in the army to deal with the xenophobic violence, it did not trust its own police. Why should ordinary citizens? By parity of reasoning, the state was also sending a message that the state itself cannot be trusted because police behaviour reflects state behaviour. Any time political cadres are attacking innocent citizens, the state should act decisively against the cadres and not against the victims. That is how to win support and be truly above the fray.
Individual litigation against police brutality is always futile and costly. I propose the introduction of class action law suits against the police and the ministry responsible for policing. Legislation on class actions may be a condition precedent, however the constitutional court has been created to deal with constitutional matters which police brutality and state connivance present. There may be no need for legislative action authorizing class actions.
There is an Ontario, Canada precedent for class actions legislation. In terms of jurisprudence on class actions against police misconduct, New York has good precedents. Legislation and jurisprudence from other jurisdictions on class actions is simply a matter cutting and pasting and this can be done in less than four weeks of research by two legislative interns at Parliament and two clerks at the Supreme Court of Zambia or Constitutional Court.
Class actions send immediate messages to the government and police that the old ways of doing things are over. Significant damages could be ordered upon success of a class action law suit.
There is one more thing to be dealt with regarding class action law suits. Does judicial behaviour reflect the attitude of the state? If the answer is yes, class actions is no remedy. A cause without a remedy is an injustice. The bigger question however, is, should innocent citizens be subjected to perpetual brutality and impunity of the police with state connivance and condonation without remedies? Not in a democracy.
By Dr. Munyonzwe Hamalengwa
The author teaches law and is the Compiler of the recent book entitled, The Case Against Tribalism in Zambia (2016).