This page summarizes cases raised with Zambia by the Special Rapporteur between May 1, 2011, (when the Special Rapporteur took up his functions) and February 28, 2017 (the date of the last public release of communications). Communications are released to the public once per year. This page also contains observations on these communications and on responses received from Zambia. Communications and observations are divided into sections based upon which observation report they originally appeared. Each communication is referenced as urgent appeal (UA), allegation letter (AL), joint urgent appeal (JUA) and joint allegation letter (JAL) – the hyperlinks lead to these documents. This is followed by the date the communication was issued, as well as the case number and the State reply (also hyperlinked if available). Summaries and communications are published only in the language of submission (in the case of Zambia, English).
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Observations
The Special Rapporteur regrets that the Government of Zambia has not responded to his communication. He considers the responses to his communications as an important part of the cooperation of Governments with his mandate and urges the authorities to provide him, as soon as possible, with detailed responses to all the concerns raised in his communication.
The Special Rapporteur expresses concern that the reported Non-Governmental Organizations Bill unduly limits the right to freedom of association. He is of the opinion “that a “notification procedure”, rather than a “prior authorization procedure” that requests the approval of the authorities to establish an association as a legal entity, complies better with international human rights law …” (A/HRC/20/27, paragraph 58). Moreover, the Special Rapporteur reminds the Government that “members of associations should be free to determine their statutes, structure and activities and make decisions without State interference” (A/HRC/20/27, paragraph 64).
The Special Rapporteur calls upon the Government to put in place an enabling and safe environment allowing individuals to exercise their legitimate freedoms of peaceful assembly and association without undue hindrances. He reiterates the content of the operative paragraph 2 of the Human Rights Council Resolution 24/5 that “[r]eminds States of their obligation to respect and fully protect the rights of all individuals to assemble peacefully and associate freely, online as well as offline, including in the context of elections, and including persons espousing minority or dissenting views or beliefs, human rights defenders, trade unionists and others, including migrants, seeking to exercise or to promote these rights, and to take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.”
The Special Rapporteur reminds the Government that the International Covenant on Civil and Political Rights acceded by Zambia on 10 April 1984, guarantees the right to freedom of peaceful assembly and of association (article 21 and 22). He also reminds the authorities that according to article 21 of the International Covenant on civil and political rights “No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others” (emphasis added). International law therefore does not give the State any right to take measures to “limit acts that and place restrictions to guarantee national security”.
Observations
Responses to communications
The Special Rapporteur is grateful for the response of the Government of Zambia to his communication on the alleged de-registration of two international non-governmental organizations, namely Dan Church Aid and Norwegian Church Aid, for failing to register under the Non-Governmental Organization Act No. 16 of 2009 (ZMB 2/2014). In this connection, he is grateful for the cooperation extended to the mandate, in compliance with Human Rights Council resolutions 24/5 (2013), 21/16 (2012) and 15/21 (2010).
The Non-Governmental Organization Act No. 16 of 2009
The Special Rapporteur duly takes note of the steps undertaken by the authorities to implement the said Act without causing disruptions in the activities of pre-existing associations, including the aforementioned two non-governmental organizations. However, he reiterates the concerns raised in a prior communication (ZMB 2/2013) where he analysed the draft provisions of the Act following the reported decision to fully operationalise it.
As previously expressed, he considers that the Non-Governmental Organizations Act No. 16 of 2009 gives broad power and unfettered discretion to the Government to interfere with the free operations of associations. Since it requires all non-governmental organizations formed after its passing to register with a Board that is extensively influenced by the Executive, and asks those in existence prior its enactment to apply for a certificate of registration, the Act gives broad discretion to the Government of Zambia to deny registration to associations. In this regard, the Special Rapporteur is disappointed by the decision of the authorities to enforce a law that violates international human rights law and standards and urge them to reconsider their decision and to repeal the Non-Governmental Organization Act No. 16 of 2009. He reminds the Government of Zambia that the action to suspend or dissolve an association is one of the severest types of restrictions on freedom of association. Therefore, a decision to suspend or dissolve an association should be used only when other, less restrictive, measures would be insufficient and should comply with international human rights law and standards, namely be guided by the principles of proportionality and necessity (A/HRC/20/27, paragraph 75). In addition, he underlines that the right to freedom of association equally protects associations that are not registered and that the activities of associations should not be subject to prior authorization, which could be used to quell criticism.
In connection with the above information, the Special Rapporteur warns against restrictions used in a manner that impairs the right to assembly and refers to the General Comment No. 31 of the Human Rights Committee on the nature of the general legal obligation imposed on States parties to the International Covenant on Civil and Political Rights, which states that “where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights” (CCPR/C/21/Rev.1/Add.13, paragraph 6).
Country visit
The Special Rapporteur reminds the Government of his willingness to undertake a country visit to Zambia, as indicated by his letter on 30 October 2013. He trusts that such a visit would allow him to examine first-hand issues relating to his mandate, identify good practices and formulate pertinent recommendations to relevant stakeholders. He looks forward to receiving a positive reply at the earliest possible opportunity. He reiterates that Human Rights Council resolution 15/21, which established his mandate, and 24/5, which renewed it for an additional period of three years, both urge the States to consider favourably his requests for visits.
Observations
Response to communication
The Special Rapporteur regrets that no response has been received to date relating to the allegations contained in his communication ZMB 4/2015. He considers responses to the questions raised in his communications as an important part of the cooperation of Governments with his mandate, in accordance with Human Rights Council resolutions 24/5 (2013), 21/16 (2012) and 15/21 (2010).
The Special Rapporteur reiterates his concern at the reportedly undue delays in reviewing the application for registration of the Engender Rights Centre for Justice and the subsequent refusal to register it for reasons that could be related to the organization’s peaceful activities in advocating and speaking out against discrimination and defending the rights of LGBTI persons in Zambia. The Special Rapporteur further reiterates his concerns with regard to the judicial proceedings against Mr. Kasonkomona that appear to result from the legitimate exercise of his right to freedom of expression on a TV show and more generally to his human rights activities within the Engender Rights Centre for Justice.
The Special Rapporteur is of the opinion that a “notification procedure”, rather than a “prior authorization procedure” that requests the approval of the authorities to establish an association as a legal entity, complies better with international human rights law and should be implemented by States. Under this notification procedure, associations are automatically granted legal personality as soon as the authorities are notified by the founders that an organization was created. Any decision rejecting the submission or application must be clearly motivated and duly communicated in writing to the applicant. Associations whose submissions or applications have been rejected should have the opportunity to challenge the decision before an independent and impartial court (A/HRC/20/27).
More generally, the Special Rapporteur reminds the Government of its obligation to respect and protect the right of all individuals to freely associate. He underlines that this right involves the positive obligation to establish an enabling environment for members of associations to perform their activities without fear from threats or acts of intimidation and harassment of any sort.
Furthermore, the Special Rapporteur refers to refer to the report of the High Commissioner for Human Rights (A/HRC/19/41) in which he insists on the right of LGBTI not to be discriminated against and enjoy human rights on an equal footing, including in the context of their rights to freedom of peaceful assembly and association.
Country visit
The Special Rapporteur reminds the Government of his willingness to undertake a country visit to Zambia, as indicated by his letter on 30 October 2013. He trusts that such a visit would allow him to examine first-hand issues relating to his mandate, identify good practices and formulate pertinent recommendations to relevant stakeholders. He looks forward to receiving a positive reply at the earliest possible opportunity. He reiterates that Human Rights Council resolution 15/21, which established his mandate, and 24/5, which renewed it for an additional period of three years, both call upon States to consider favourably his requests for visits.
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For the full reports, containing communications, replies and observations for all countries, see the following links:
Report A/HRC/20/27/Add.3: May 1, 2011 to March 15, 2012
Report A/HRC/23/39/Add.2: March 16, 2012 to February 28, 2013
Report A/HRC/26/29/Add.1: March 1, 2013 to February 28, 2014
Report A/HRC/29/25/Add.3: March 1, 2014 to February 28, 2015
Report A/HRC/32/36/Add.3: March 1, 2015 to February 28, 2016
Report A/HRC/35/28/Add.4: March 1, 2016 to February 28, 2017
