COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORTS OF ZAMBIA
The Committee on the Elimination of Racial Discrimination has considered the twelfth to sixteenth periodic reports of Zambia on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.
Introducing the report, Gertrude M. K. Imbwae, Permanent Secretary of the Ministry of Justice of Zambia, said the problem of racial discrimination was not prevalent in Zambia, which prided itself in being a cosmopolitan State that allowed diversity and the co-existence of different ethnic and religious groupings. Once the Zambian Government incorporated the Convention into domestic legislation, broader protection against racial discrimination would be guaranteed. The Zambian Government was faced with huge financial constraints which sometimes made it difficult to effectively guarantee human rights due to competing and demanding social needs. However, it was fully committed to the promotion and protection of human rights and fundamental freedoms.
The Committee Expert who served as Country Rapporteur, Jose Francisco Cali Tzay, said in preliminary remarks that the delegation of Zambia had shown willingness and determination to renew the dialogue with the Committee in a constructive manner. There were some doubts still remaining, not all of them negative, as the Committee was very much looking forward to the next report, which would surely be as rich, sincere and frank as the current one. The Government had shown a sincere desire for change, and this was probably motivated by the desire to meet the economic and social needs of its people. This willingness was also shown in the reforms in the internal legal system that the Government was undertaking. Zambia had been very clear in speaking of its laws on racial discrimination, but Mr. Cali Tzay thought that further efforts should be made in reality to eliminate these practices.
In the course of the discussion, which lasted over two meetings, Committee Experts also raised such questions and issues as the fact in the reports that many Zambians were not aware of their rights, and Experts commended this honesty, while noting that the reports also mentioned activities undertaken to reverse this trend, and encouraging further activities in this area. Minority groups in particular, an Expert said, needed to be made aware of their rights. The HIV/AIDS pandemic’s negative effects were noted, as were concomitant difficulties in many fields, including economic development and implementing the right to education.
The delegation was also made up of representatives of the Permanent Mission of Zambia to the United Nations Office at Geneva, the Ministry of Labour and Social Services, the Ministry of Community Development, the Office of the Commissioner for Refugees under the Ministry for Home Affairs, the Ministry of Education, the Ministry of Information, the Zambian Police, Zambian Immigration, and civil society in Zambia, led by the Chairman of the Zambian Human Rights Commission.
The Committee will present its concluding remarks on the reports of Zambia towards the end of the session, which will end on 19 August 2005.
Towards the end of the meeting, Committee Expert Morten Kjaerum also made a presentation of a draft report on follow-up activities subsequent to the presentations of the reports and consultations held with Botswana, Surinam, and Ireland. A discussion on the draft report will be held at a later date.
The next public session of the Committee will be held on Friday 5 August at 3 p.m., when the Committee will take up the consideration of the eighth to sixteenth periodic reports of Barbados (CERD/C/452/Add.5).
Reports of Zambia
The twelfth to sixteenth periodic reports of Zambia (CERD/C/452/Add.6/Rev.1) state that the State party has diligently recognised its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The State party also recognises that there are several constraints which impact the promotion and protection of human rights within its territory, which include: economic decline, mainly due to the diminishing mining industry, has contributed to the unsatisfactory resource allocation to institutional mechanisms that support the implementation of the Convention; the HIV/AIDS pandemic, whose negative effects permeate the human resource and impact the general socio-economic performance of the country; and low human rights awareness on the part of the people, especially on the mechanisms available for redress.
There have been positive developments in the last decade, including: the establishment of the Human Rights Commission and the Police Public Complaints Authority; a review/amendment of legal provisions inimical to the protection and promotion of human rights, such as the abolition of corporal punishment as a form of punishment; the emergence of a vibrant civil society, facilitated and supported by the State party’s enabling legal and political environment; and the emergence and growth of private print and electronic media, thus contributing to the information and education needs of the people.
The State party is also committed to fully realising its obligations under the Convention and, in its reports, stresses clearly the legislative, judicial, administrative and other interventions that are in place, or are in the process of being implemented to ensure that all persons within the State party’s territory enjoy their human rights without discrimination, including that based on race, colour, creed, tribe or other similar ground. The State party is also committed to the requirement to domesticate international human rights standards it has adopted through ratification and/or accession to United Nations human rights treaties, in particular the International Convention on the Elimination of All Forms of Racial Discrimination.
Introduction of Reports
GERTRUDE M. K. IMBWAE, Permanent Secretary in the Ministry of Justice of Zambia, introducing the reports, said they were an honest, open and accurate account of measures taken to implement the International Convention on the Elimination of All Forms of Racial Discrimination. The problem of racial discrimination was not prevalent in Zambia because of several measures that were identified in the 2004 State report that dealt with the issue. Zambia prided itself in being a cosmopolitan State that allowed diversity and the co-existence of different ethnic and religious groupings. This was coupled with the promotion of different cultural practises, languages and ethnicity. Once the Zambian Government incorporated the Convention into domestic legislation, broader protection against racial discrimination would be guaranteed.
In order to further enhance human rights, the Zambian Government had constituted a Constitutional Review Commission in August 2003, with the mandate of, among other things, collecting views on the type of Constitution Zambia should enact, recommending appropriate ways and means of entrenching and protecting human rights, the rule of law and good governance, and examining and recommending the elimination of provisions which were perceived to be discriminatory in the Constitution. It was the Government’s view that this process would no doubt provide an opportunity for the inclusion of clauses in the Constitution that would enhance equity and equality.
The Zambian Government was faced with huge financial constraints which sometimes made it difficult to effectively guarantee human rights due to competing and demanding social needs. However, it was fully committed to the promotion and protection of human rights and fundamental freedoms.
Discussion
JOSE FRANCISCO CALI TZAY, the Committee Expert serving as country Rapporteur, said the presence of the delegation and the submission of the reports were an encouraging sign that the Government of Zambia did wish to give effect to the international instruments to which it was a party. He then read out the list of questions that had been submitted, although it had not been received by the State party. This included questions on the Constitution and how it was being reformed, and what were the difficulties faced by the State party in prohibiting discrimination in matters of adoption, marriage, divorce, burial, and devolution of property on death or other matters of personal law; whether Zambian law considered participation in organizations promoting and inciting racial discrimination as a punishable offence; a request for more detailed information on the challenges faced by the State party with regards to acts of racial discrimination committed by non-State actors; what were the reasons for the absence of any prosecution for racial propaganda in Zambia; why the Constitution provided for possible restrictions on the freedom of movement of non-citizens; the proportion of polygamous marriages under customary law; further information on action taken by the judicial and executive authorities in relation to nepotism in appointments and promotions favouring tribesmen; whether Zambia intended to withdraw its reservations to the 1951 Convention on the Status of Refugees; why complainants before the Industrial Relations Court had failed to prove racial discrimination; what measures were adopted by the State party to raise awareness of the population on their rights; and further information on action taken to request the assistance of the international community as well as of the Office of the High Commissioner on Human Rights in order to improve basic human rights education of persons and personnel involved in the delivery of various human rights services to the public.
Mr. Cali Tzay also said he welcomed the resumption of the dialogue after a period of 11 years, and welcomed the report. He believed the Government should be congratulated on how it had responded to the concluding observations of 1993. The report went through each article with the legislative measures applied including other information such as problems that had been encountered, if any. It would be useful to know if there were any new laws for protecting human rights. It was also important to recognise the problems which Zambia had been experiencing recently, including economic problems, although this did not impact on the bodies monitoring Zambia’s international obligations.
Regarding article 2 of the Convention, the report stated that it promoted integrationist approaches in the socio-cultural environment, and more information was required on this, as it was on how the report itself was drawn up, especially what the contribution of civil society had been. Given that in Zambia there were different tribes with various languages, did the integrationist approach respect cultural diversity, he asked, saying he hoped it did not create discriminatory or racist policies against those who refused to give up their language. What were the limitations on human rights allowed for in the Constitution, and could fundamental human rights have further limitations, he asked. ILO Convention 111 had been ratified, he noted, asking if any complaints had been received with regard to the rights guaranteed within this text.
The slogan “One Zambia, One Nation” also required explanation. What measures were used to ensure that no group of civil society suffered from discrimination, and examples of what measures had been taken to combat acts of discrimination and racism were also required. The report stated no act of racial segregation or apartheid had taken place, but this required elucidation. Were refugees given an opportunity to apply for citizenship or permanent residence in Zambia, he asked, also noting the scale of the HIV/AIDS crisis and its impact on all human resources and the economic activity of the country, and asking whether there was any discrimination linked to HIV/AIDS. The creation of a National Commission was a step forward, he said, however, concerns remained that it could only make recommendations and could not take steps or apply measures.
Other Committee Experts then raised various issues, noting that the previous report had also been taken up after a hiatus of ten years, and indicating the advantages of a more continuous dialogue, while reiterating their pleasure at seeing the delegation. Why Zambia had so far refrained from making the declaration under article 14 of the Convention was a reason for concern, and Experts urged Zambia to consider making this declaration. Regarding the issue of criminalizing racist behaviour, article 70 of the Penal Code was considered to meet some of the requirements set out in article 4 of the Convention. Some Committee members felt however that supplementary efforts should be made, in particular regarding criminalization of participation in racist organizations.
Gender equality was an issue of concern, with Experts raising the issue that men and women did not have equal access to employment, as previously noted by the International Labour Office. Zambia’s good record with refugees and hosting and providing for a significant number of the refugees was also noted, although it was considered that the Government should review its policy on refugees and lift the reservations made to the 1951 Convention on the Status of Refugees.
The report said that many Zambians were not aware of their rights, and several Experts commended this honesty, while noting that the report also mentioned activities undertaken to reverse this trend, and encouraging further activities in this area. Minority groups in particular, an Expert said, needed to be made aware of their rights. Training should be given in schools, with follow-up and analysis. Combating poverty and illiteracy levels were also key to tackling this problem. The HIV/AIDS pandemic’s negative effects were noted, as were concomitant difficulties in many fields, including economic development and implementing the right to education. The limited resources of the State party in treating these problems were also recognised by Experts.
Several Experts also noted that the apparent complete absence of complaints and prosecutions for racial discrimination should not be viewed as a positive thing, as its cause was not necessarily the absence of racial discrimination, but could also be a lack of awareness, a lack of confidence in the police, or a lack of ability by the individual to pursue such a violation of their rights.
The presence of the Zambian Human Rights Commission was also commended by several Experts, including the Chairperson, MARIO JORGE YUTZIS, who said that this was a very positive development which the Chairpersons of many treaty bodies had agreed to be a significant advantage for the development of the dialogue, and he suggested that the representatives of the National Commission be allowed to contribute during the dialogue.
Presentation by National Human Rights Commission of Zambia
The representatives of the Human Rights Commission of Zambia took the floor to make a brief presentation on racial discrimination in that country, as they had been invited to do so by the Committee, saying that the Commission was one of the many institutions consulted by the State party in the consultations for the report. It would be presumptuous however to believe that the Commission agreed with every conclusion in the report, as there were various elements with which it was not in agreement.
The Commission began its work in 1997, and the formative years had been very difficult, as it had to go through the normal teething problems, and beyond that phase had been grappling with the challenges alluded to in the report. For this reason, it had not created a disaggregated databank on complaints received by different ethnic groups, although the information existed in the offices of the Commission. The information sought could and would be provided by the State party. The Commission had considered many complaints involving the breach to the right of security and freedom from bodily harm such as torture.
Isolated cases of racism against minority groups had been reported, and there had been a large volume of racial discrimination allegations reported by the majority groups. After proper investigations, most of these cases did not have a component of racism, but instead were other forms of human rights violations, and a certain proportion were also staged. Many allegations of racial discrimination received had been packaged in a fashion that did not clearly establish it as such, and this explained why many of the cases brought by the Commission did not succeed on these grounds.
The Commission believed that there was a need to increase and enhance human rights education at places of work, and had advocated this on a countrywide level. It was hoped the decentralisation of the Commission’s offices to the provinces would enhance this process. The Commission believed entirely that the State party’s legislation clearly proscribed all forms of racism, as stipulated in the Convention. However, it was concerned for what could be termed as de facto racism, as there were practices which were impossible to legislate against and which could be termed racist or xenophobic practices and which occurred daily. These were challenges which would not be eliminated by legislation, instead, the State party, the Commission and the people of Zambia would have to work to make them go away.
The Commission only had the power to make recommendations, which would or would not be implemented, and this was a significant drawback. However, the State party did not routinely ignore the recommendations, and work was being done to make the Commission more effective.
Further Questions by Experts
Committee Experts then addressed the Human Rights Commission of Zambia, asking questions and making comments on various topics, including, among others, whether in the context of nation-building, the Commission was considering the relationship between customary law and ordinary law, and whether it was the former that should be incorporated into the latter, or vice versa in order to bolster the building of the nation by including all human rights in that endeavour; racial discrimination by non-State actors; reported incidents of torture and whether the Attorney General had instituted criminal proceedings against those alleged to be responsible; and whether the Government or the Commission was clearly looking at the constitutional review in terms of the Paris Principles and in terms of making available the adequate resources for the functioning of the Commission and making it truly effective by ensuring that the recommendations made by it were implemented both in the letter and the spirit in which they were made. Experts also said they welcomed the presentation made, and said it was an excellent initiative for the Commission to have taken the floor. This was the second time it had happened, and it was hoped that in future the same thing would happen with other States parties.
The Expert serving as Country Rapporteur, Mr. Cali Tzay, commenting on the presentation by the Zambian Human Rights Commission, said the presentation strengthened the sense of the determination of the Government to maintain and renew dialogue with the human rights bodies, in particular the Committee on the Elimination of Racial Discrimination. It was encouraging to see the Commission given more opportunities to participate in national life, as this was a very positive development. Zambia was congratulated on including the Commission when drafting new laws.
Mr. Cali Tzay also asked for further information on various issues, including various complaints received regarding human rights violations against minorities, how many of these had been received and what treatment had they had; issues related to the issue of packaging racial discrimination cases as mentioned by the Commission; a further explanation of the meaning of the term “inverted racism”; and what the Commission was doing to combat day-to-day “normal” racism. He also recommended that the Commission should set up mechanisms to facilitate the process of seeking redress for citizens who believed they had suffered racial discrimination.
Response by National Human Rights Commission
Responding briefly to these questions and comments, the Human Rights Commission of Zambia said regarding customary law and ordinary law and how issues of conflict between the two were perceived, people had the cultural right to live in their communities in the manner their customs allowed them to do, but the Commission was extremely concerned about certain customs which were repugnant to human rights. Where this took place, the Commission had been in the forefront of the quest to change people’s perceptions, accept changing times and abandon these repugnant practices.
Regarding the cases of torture that had been referred to by the Attorney General, the State party should respond to this question, the Commission representative said, adding that the law had a lacuna in that torture was not a criminal offence. The Commission was making representations to remedy this. On the constitutional review, the Commission had indeed taken account of the Paris Principles when making recommendations and representations to the body in charge of this review. The relationship between the Commission and civil society was a matter of great interest, as the Commission realised it had certain strengths, but also weaknesses, namely that it was not able to reach out to every part of society, which had some strengths the Commission was lacking. It was therefore working closely with civil society in order to enhance its efforts, in particular regarding human rights education.
Further Response by Delegation
In answer to the questions posed by the Committee Experts, the delegation said the Zambian Government conceded that the Bill of Rights contained in the Constitution in its current form had certain deficiencies. In order to eliminate the provisions that could be considered discriminatory, the Constitutional Review Commission had created a draft bill identifying these areas and had added suggestions for modification. The State party acknowledged that discrimination existed due to some negative cultural practices which varied from tribe to tribe and were addressed under customary law. Efforts were under way in order to remedy this, mainly by codifying customary law.
Zambia acknowledged that its legislation did not extend to organizations promoting and inciting racial discrimination, and considered that this was a matter that required further examination. There were no incidents of racial propaganda in Zambia, the delegation said. Regarding the provision of the Constitution restricting the freedom of the movement of non-nationals, this was targeted at refugees because of large asylum flows. Some refugees could cause a security risk, and Zambia therefore practiced a card-based residence policy. The State regretted it was unable to provide immediate data on polygamous practices, but most rural ethnic groups practised it. Where the Commission for Investigations established a case for nepotism, the relevant authorities had various measures at their disposal including dismissal.
There were no immediate plans to withdraw the reservations made to the 1951 Convention on the Status of Refugees, the delegation said. The Zambian Government was facing increasing demand for many services including health and education in those areas hosting a large population of refugees. There were no immediate plans to consider the integration of long-term refugees in national society, however, refugees in camps and settlements did have access to land to enable them to become self-reliant and to achieve self-sufficiency.
Some 99.54 per cent of the population of Zambia were indigenous and did not practice racial discrimination against each other. No complaints of racial abuse or discrimination had been lodged against police officers. The Government intended to produce a human rights manual for the use of Governmental institutions, civil society, and the general public. The State party welcomed any assistance from the Office of the High Commissioner and the international community.
The drafting and approval of policies and legislation were done in consultation with civil society and stakeholders whose opinions accounted for several provisions of the final document. Incidents of racial discrimination by non-State actors were negligible. There was no discrimination against people with HIV/AIDS, and Zambia had developed a HIV/AIDS policy which was expected to culminate into legislation on the rights of persons infected or affected by the pandemic, and the State party also carried out programmes in the media to educate people towards the positive perception of the pandemic.
Human rights education had been introduced in the school curricula, and took into account all the major United Nations human rights treaties. It had also been incorporated in the Police training manual. In terms of poverty reduction, the Government supported various institutions aimed at increasing agricultural production, entrepreneurship among women and other elements for poverty reduction. In terms of dissemination of the report, the State party wished to report that it gave copies of the report to all stakeholders, and considered that there was a need to make the contents of the report known through the public media, including the concluding observations of the Committee which, in the view of the State party, provided the necessary impetus required to enhance the promotion and protection of human rights in Zambia.
Committee Experts then made a few brief remarks, saying the delegation had responded in an exhaustive and eloquent manner to all questions raised, but in new questions on various topics asked, regarding the Constitutional Review Commission, whether it would be taking up the points made for the strengthening of the anti-discrimination legislation; and urged the Commission to take the suggestions of the Committee in a positive spirit. An Expert also noted the short nature of the responses given, and said although some had been more than adequate, others would probably not be accepted as satisfactory by the Committee.
Preliminary Remarks
JOSE FRANCISCO CALI TZAY, the Committee Expert serving as country Rapporteur, said the delegation of Zambia had shown willingness and determination to renew the dialogue with the Committee in a constructive manner. There were some doubts still remaining, not all of them negative, as the Committee was very much looking forward to the next report, which would surely be as rich, sincere and frank as the current one. The Government had shown a sincere desire for change, and this was probably motivated by the desire to meet the economic and social needs of its people. This willingness was also shown in the reforms in the internal legal system they were undertaking.
Zambia had been very clear in speaking of its laws on racial discrimination, but Mr. Cali Tzay thought that further efforts should be made in reality to eliminate these practices. It was extremely rare to have replies to all questions, such as Zambia had just provided. Zambia had made a very frank effort to reply to everything, and this should be welcomed. A reply to recommendations of the concluding observations of the Committee in 1993 was also given, and an effort had been made to comply with these, and this in particular should be praised.
The report gave statistics, and that was a clear way of showing the ethnic composition of the country, although some information was still required. The ethnic mix of the delegation was also commended. At the moment, Mr. Cali Tzay said, it was difficult to find words to express the thanks of the Committee for the way in which questions had been answered and the report presented.
For use of information media; not an official record
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