By Prof. Michelo Hansungule
The February 23 statement by Amos Chanda, President Edgar Lungu’s spokesman, in which he publicly confirms that president Lungu has instructed Justice Minister Given Lubinda to invite the ICC to Zambia to investigate allegations that president Lungu is funding a military group, is the most important step yet towards addressing political violence in the country. All political parties and civil society organisations interested in peace in the country should oversee the immediate implementation of this directive by government. This is nearly two months since president Lungu’s directive, has anyone bothered to check with Mr Lubinda whether he has written the ICC letter of invitation? If he has, when did he write it; what did he say in the letter i.e. what is the rationale material he suggested of the crimes to be investigated as well as the rationale temporis regarding the time jurisdiction of those crimes? If Given Lubinda has not yet written the letter, take him to task be demanding to know why he has not since the president publicly made the instruction? Ask his boss Lungu why he would defy his instruction yet remain in his job?
The trigger of course was the opposition. It has nothing to do with Edgar Lungu or his commitment to human rights since he has none. It is the opposition alliance who started the whole thing, and since they are, they must be particularly interested to see it through. Before Amos Chanda’s statement, Charles Milupi, chairperson of the ten member opposition Alliance announced following their meeting that the Alliance would be handing a list of individuals over to the ICC for investigation including president Edgar Lungu, Home Affairs Minister Stephen Kapyongo, Patriotic Front Secretary General Davis Mwila, Lungu’s advisor for political affairs Kiser Zulu, Lungu’s spokesman Amos Chanda, Francis Muchemwa also known as America 2, a PF cadre, Abel Mwale, a PF cadre, Eddie Gowa, also a PF cadre. It is in reaction to this that Amos Chanda announced Edgar Lungu’s decision to invite the ICC.
In terms of the Rome Statute, the ICC Prosecutor’s jurisdiction can be invoked in several ways including a reference by a state party, though there are few, reference by the UN Security Council, and jurisdiction motu suo or the prosecutor herself determining after preliminary investigation that she has power or authority to refer a case to a chamber of the ICC for determination that provisions of the Rome Statute are being violated in the territory of a state party. Africa has sent the most state party referrals. Uganda submitted the first referral ever of the court when it referred Joseph Kony and his five colleagues. After that, The Central African Republic referred Bemba, for Vice Precident in Joseph Kabila’s government alleging he was guilty of violations of several crimes against humanity in CAR during the war. Bemba’s troops were largely based in CAR. Fortunately for him, he was recently acquitted. In the DRC, president Kabila made several referrals of mostly rebels fighting him including Joseph Lupanga. There were referrals from Mali and from the Cote dVoire, the latter, of the recently acquitted former president Gbagbo.
The UN Security Council referred president Omar Albashir and later the late Muamar-Gaddafi of Libya. Due to politics in the UN Security Council and in view of the fact that Security Council referrals must be made unanimously by all the five UN Security Council members concurring, it has not been possible for the Council to make other referrals even though there are plenty of situations warranting such.
Finally, president Uhuru Kenyatta and his vice William Ruto, before they ascended to these positions, were the first two high profile individuals to be referred to the ICC by the motu suo powers of the ICC prosecutor. Readers will recall that after late Koffi Anan’s involvement in the Kenya 2007/8 political ethnic conflict, Anan submitted a sealed envelope to the ICC Prosecutor which it later transpired included the two of Kenyatta and Ruto recommending their investigation and possible prosecution for war crimes.
Several times, people ask whether ordinary individuals, civil society organisations or political parties cannot approach the ICC and move its jurisdiction? Not in the sense of a state party as we have seen by many African countries above. The standing of state parties is quite different than that of individuals or organisations. This, however, does not mean the latter have no jurisdiction to approach the ICC Prosecutor. In fact, they can. It is in such situation that the ICC Prosecutor invokes her own jurisdiction motu suo to initiate an investigations on her own based on submissions from individuals and organisations. Such investigation is going on now in Nigeria. Based on submissions by individuals and civil society organisations about the situation in northern Nigeria which is ravaged by Boko Haram, the ICC Prosecutor invoked her motu suo jurisdiction and is there now undertaking investigation.
In Zambia’s case, reference of the situation to the ICC is extremely urgent. Either the situation should be referred by the state party i.e. the Zambian government as Lungu has directed, or by the alliance of political parties. Because the ICC operates professionally, it does not matter that the referral has come from Edgar, they will indict him if the evidence points to him. Below I will demonstrate how it is easy in Zambia’s case for the ICC to indict Edgar Edgar. But the situation can also be submitted by the Alliance of political parties as indicated above in which case the issue goes to the ICC Prosecutor who determines the possibility to invoke her motu suo jurisdiction.
There is plenty of video evidence t suggest that the current wave of violence Zambian opposition especially UPND members are going through were started by Edgar Lungu. Jurisprudence easily demonstrates that ICC admits video evidence. In several instances, video and also eye witness evidence proves that PF is the source of political violence. For example, in a video captured in 2015, Edgar Lungu, in military uniform while addressing his members and police directs the latter to beat up UPND members. There is no difference between this instruction and the instructions issued by Hutu extremists occupying senior government positions as part of plan to exterminate the minority Tutsis in 1994. Similarly, in ICC case of Prosecutor versus Ahmed Al Faqi Al Mahdi (ICC-O1/12-01/15), Al Mahdi, who was referred to the ICC by Mali, was charged with and later found guilty by Trial Chamber V111 of ‘intentionally directing attacks…..’. In his case, he was intentionally directing attacks on buildings and other monuments. He was convicted on 27 September 2016. In the Zambian situation, the attacks on members of the UPND by police and ruling party Patriotic Front members started after Edgar Lungu’s 2015 directive to police. It should be easy to get him nailed on this and on various other crimes.
Besides solving the political violence which is now part of our politics, this is the best way to get Edgar out of the political scene. If ICC investigations started this year, by end of next year at the latest, you are sure Edgar and his cabal will have been given one way tickets to the Hague which means they will not be part of the 2021 elections.
Zambia deserves a decent start in politics. The situation cannot go on like this. People should not die because of elections. The Zambian Constitution guarantees all the basic freedoms of association, assembly, peaceful demonstration, expression, and other rights and freedoms a civilised society would guarantee but is it a ‘crime’ to seek to exercise and enjoy them? Our brothers and sisters below are just a tiny example of Zambians that have paid the maximum price merely for associating with the opposition UPND. On this Sunday morning, think about these fellow Zambians below as if it is you, don’t you feel them? People walking with bullets in their bodies due to their choice to associate with opposition, why should it be like this? Are we so uncivilised that some idiot will take out and allocate a loaded gun to police and order them to shoot and they also shoot at an unarmed civilian who is just attending a political party meeting?
Now, here are the victims, what are we going to do about them? Some of them need money to pay doctors to try remove the bullets, will PF pay? Others need money to ease their permanent injuries. Of course others are dead. What are we going to do? In your Church today, ask the Lord Jesus Christ what he would with a political opponent, shoot him? Did Jesus have a gun or he used to shoot with love?
The issue here is that apart from being proscribed by international human rights law, impunity is the source of gross violation of human rights as in this case. Perpetrators of human rights violations should be visited with equal heavy hand they exerted on their victims. People must be punished for their misdeeds. True this is inconsistent with God’s law but our human law provides that in order to prevent future violation of human rights, perpetrators must be punished with equal force.
And given the collapse of the system of law and order under the PF government, resort to international law is the only option. Because president Edgar Lungu has instructed that the ICC be invited to Zambia, let’s make him drink his medicine. We should ensure that both the government as directed by Lungu and the Alliance of Political Parties invite the ICC Prosecutor latest the second quarter. Meanwhile, let everyone with evidence be ready to adduce it to ICC investigators. There are many Zambians whose lives have been ruined for ever due to their political involvement, this is the time to come forward. We must send perpetrators of human rights violation to the Hague where they will be punished by international law they do not control and while they will leave their powers in Lusaka.