OPEN LETTER TO HEADS OF STATE OF THE SOUTHERN AFRICA DEVELOPMENT COMMUNITY (SADC) REGARDING IMMINENT VIOLATION OF HUMAN RIGHTS OF FORMER PRESIDENT RUPIAH BANDA
To: President of Angola Jose Eduardo dos Santos, President of Bostwana Ian Khama, President of the Democratic Republic of Congo Joseph Kabila, Prime Minister of Lesotho Tom Thabane, President of Madagascar Andry Rajoelina, President of Malawi Joyce Banda, President of Mauritius Rajkeswur Purryag, President of Mozambique Armando Guebuza, President of Namibia Hifikepunye Pohamba, President of Seychelles James Michel, President of South Africa Jacob Zuma, Prime Minister of Swaziland Barnabas Sibusiso Dlamini, President of the United Republic of Tanzania Jakaya Kikwete, and President of Zimbabwe Robert Mugabe.
March 21, 2013
I write to you in your capacity as heads of state of the Southern Africa Development Community (SADC) with an urgent plea for relief with regard to unlawful and inhumane events currently taking place within the Republic of Zambia.
It was only 18 months ago when leaders from across the world celebrated Zambia as a shining example of democracy when the incumbent President Rupiah Banda peacefully stepped down to hand over power to a new party. President Banda made this choice in favor of the stability and unity of the nation, and with the confidence of an unimpeachable record of performance in government.
After being honoured as an esteemed elder statesman and appointed to numerous election monitoring missions in the greater African community, President Banda has been made the target of a vicious, cruel, and unrelenting campaign of defamation that has absolutely no basis in the truth.
On March 15th, a parliamentary block controlled by the ruling Patriotic Front party organised a fraudulent legislative motion to remove former President Banda’s immunity, unlawfully pushing forward despite a pending court case, an absence of documentary evidence, and a walkout of opposition MPs and forced through the passage of the motion with barely more than half of the total seats.
This week, following a day and a half of interrogations, the joint investigative wings have mysteriously adjourned until Friday, which leads us to reasonably assume that they intend to illegally jail former President Banda and hold him without access to bail over the weekend.
If indeed the Zambian authorities continue to push forward with this premeditated deprivation of liberty without hearings, charges, nor the right to defence, it would represent a grave violation of President Banda’s basic rights as well as a criminal abuse of process.
It is our view that any attempt to illegally jail former President Rupiah Banda without hearings or conviction is tantamount to attempted murder, and must be halted immediately.
Zambia’s ruling party has repeatedly demonstrated that it is willing to break any and all laws to attack its opponents. The president himself has installed a regime of impunity for his ministers after publicly threatening the head of the Anti-Corruption Commission. Independent observers have denounced the repressive conduct of the police against opposition protesters, while the media has been corrupted into a defamatory instrument of the state.
It is their hope that the destruction of Zambian democracy will take place under the cover of night with no one looking. But I am asking you to observe very closely the behaviour of the PF government in coming days and weeks to see evidence of their malicious intentions.
As highlighted in a report filed before the SADC Secretariat by the Coalition for the Defence of Democratic Rights (CDDR) on February 15, 2013, the Zambian government has repeatedly engaged in conduct that violates Article 4 and Article 6 of the SADC Treaty. Under the Treaty, Member States must not only support “human rights, democracy, and the rule of law”, but a specific commitment is made to “not discriminate against any person on grounds of . . . political views.”
As such, I am not reaching out only with regard to the current situation of Rupiah Banda, but raising alarm over the negative precedent proposed. For a distinguished head of state to gracefully step down only to be mistreated with these underhanded tactics, insults, and politically motivated prosecution based on incoherent charges bodes ill for the future of the continent.
Any attempted jailing of former President Banda by the Zambian government without trial would be unlawful for the following reasons:
- The National Assembly vote failed to obtain the 2/3rds vote of total seats as required by the Constitution.
- The immunity motion violated separation of powers, as the house attempted to usurp the duties of the judiciary by attempting to attribute guilt based on fictitious accusations without any opportunity for defense.
- The motion was moved forward by the Speaker despite a walkout of most opposition MPs in violation of legislative protocol.
- Former President Banda was given less than 24 hours notice to the immunity motion; instead state media were informed first.
- Former President Banda and counsel were denied the opportunity to explain, answer, or counter any of the accusations presented in the house, despite an open application before the Lusaka High Court.
- The removal of former President Banda’s immunity is politically motivated and orchestrated in response to the presentation of an appeal to the Commonwealth Ministerial Action Group.
- The allegations presented are incoherent, incomplete, and were lacking any basis in law or even basic documentary criteria to form the minimum legal basis for a charge, such as the accusations relating to campaigning financing, for which there exists no law in Zambia.
- The allegations contained in the motion, as presented by Minister of Justice Wynter Kabimba, who is facing his own unanswered corruption questions and is positioned as the successor to President Sata, cannot be taken in good faith as factual or unbiased.
If the Zambian authorities want to demonstrate that they are pursuing a serious case, then there would be no need to break the law and threaten the life and safety of former President Banda by unlawfully jailing him before any independent court is even given the opportunity to rule. If the PF is determined to serve justice, they can table the immunity vote before a full house instead of resorting to an embarrassing and discredited spectacle. If President Sata wants anyone to believe that his anti-corruption is genuine, then his government would follow procedure and not attempt to illegally jail Rupiah Banda before a fair and impartial hearing before a court of law.
It is our urgent appeal to you, as heads of state of SADC, to communicate with the Zamian authorities to inform them that rule of law must prevail, that presumption of innocence must be respected, and that they conduct themselves according to the law.
Amsterdam & Partners LLP
London, United Kingdom