Henry Kalenga v. Zambia

Communication No. 326/1988,
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Region: Africa
Year: 1993
Court: Human Rights Committee
Tags: freedom of movement, right to liberty

Henry Kalenga , a Zambian citizen was arrested by the police on11th February 1986 , the following day a statement was taken from him . A police detention order was issued to him and later revoked and replaced with a presidential detention order. Regulations allowed the president of Zambia to order for detention of person accused of committing political offences for indefinite period for purposes of preservation of public security. The applicant was informed of the accusations levelled against him over a month later and the charges were that he was disseminating views of a political organization which was considered illegal under Zambia one party rule, he was also being accused of subversive activities which were aimed at toppling the government of President Kenneth Kaunda .The applicant was released in November 1989 on the orders of the president, but even then he was kept under surveillance who confiscated his passport denying him the right to movement . He further avers that during his incarceration, he was subjected to harassment and intimidation and was also denied access to government and private amenities.

The applicant states that he was never involved in activities which were aimed at undermining the government and was just critical of various government policies. He further claims that he was subjected to unlawful detention since reasons of his arrest were made to him a month after his arrests in contravention of the Zambian Constitution .He also complains that during his period of detention he was never brought before a judicial officer to determine his guilt and he states that this was due to the fact that under Zambian laws individuals held for public security could be detained without being tried.

The applicant states that his state of health deteriorated while in prison due to degrading and inhuman treatment that he received for instance being deprived off food and health services.

The applicant contends that he had exhausted local remedies, having filed for a writ of Habeas Corpus which was dismissed by the court since his detention did not violate the local laws. He filed another writ of Habeas corpus but again it was dismissed by the court on the premise of being Res judicata. He further petitioned a tribunal established under the preservation of public security regulations and whose mandate is to review periodically the cases of political prisoners and could recommend their release. The tribunal recommended for his immediate release but the president never followed up on the recommendations.

On admissibility the committee noted that the state party had failed to respond despite two reminders. It ruled that the applicant’s case had met the admissibility threshold provided for under Article 5 paragraph 2 b of the Optional Protocol. The Committee declared the communication by the applicant admissible as it raised issues in articles 7, 9, 10, 12 and 19 of the Covenant.

The state party submitted that on the applicant had been released and was free. It failed to give details of his indictment or any judicial orders.

The state failed to heed to reminders sent to it and the applicant asked the committee to consider his complaint as he was unwell and the new government had continued to harass him.

Article 4 paragraph 2 of the Optional Protocol requires a state party to investigate allegations brought against it and provide to the committee all information at its disposal, the state party here in had failed to do so.

It was the holding of the committee that the applicant’s rights as disseminate the tenets of his party has been violated. These rights are enshrined under article 19 of the Convention.

The committee further held that the applicant’s right to be informed of the reason of his arrest had been violated since it took the state party one month to inform him. These rights are enshrined under Article 9 paragraph 2 .The committee also held that the applicant was denied his right to be brought before a judicial officer, however it also concluded that Mr Kalenga was never denied an opportunity to present his proceedings in court.

The committee also held that it was a violation the applicant’s right under article 12 of the convention to withhold his passport.

The committee stated that the applicant had proved that the state party violated his right to be treated humanely and with dignity when it denied him food, health services and recreational facilities.

The human rights Committee thus found that there had a violation of articles 9, paragraphs 2 and 3; 10, paragraph 1; 12, paragraph 1; and 19, of the Covenant.

The committee stated that the state party is under an obligation to provide the applicant with the appropriate remedy and compensation as well as ensure that similar violations do not occur in future.

The committee stated that it would wish to receive a report within ninety days on what measures it had taken on the views that the committee had given.