Human Rights Committee

Communication No. 1303/2004

Views adopted by the Committee at its 105th session (9-27 July 2012)

Submitted by:Joyce Nawila Chiti (not represented by counsel)

Alleged victim:Jack Chiti, the author and their five children.

State party:Zambia

Date of communication:26 July 2004 (initial submission)

Document references:Special Rapporteur’s rule 97 decision, transmitted to the State party on 9 August 2004 (not issued in document form)

Date of adoption of Views :26 July 2012

Subject matter:Alleged torture, death penalty following unfair trial and forced eviction with no adequate remedy

Substantive issue:Torture, unfair trial, arbitrary arrest and detention; death penalty; right to privacy, to family and child protection; freedom of movement; and right to adequate remedy

Procedural issue:Non-exhaustion of domestic remedies.

Articles of the Covenant:2, para. 3; 7; 9, para. 1; 10, para. 1; 12, para. 1; 14, para. 3 (c) and (g); 16; 17, paras. 1 and 2; 23, para. 1; 24, para. 1; and 26

Article of the Optional Protocol:5, para. 2 (b)

Annex

Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights (105th session)

concerning

Communication No. 1303/2004*

Submitted by:Joyce Nawila Chiti (not represented by counsel)

Alleged victim:Jack Chiti, the author and their five children.

State party:Zambia

Date of communication:26 July 2004 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 26 July 2012,

Having concluded its consideration of communication No. 1303/2004, submitted to the Human Rights Committee by Mrs. Joyce Nawila Chiti under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1The author of the communication is Joyce Nawila Chiti, a Zambian national, born in 1960 in Kitwe, Zambia. She submits her communication on her behalf as well as on behalf of her husband, Jack Chiti, born on 10 August 1953 in Kalulushi, Zambia, and their children. The author claims that Zambia has violated their rights under articles 2, paragraph 3; 7; 9, paragraph 1; 10, paragraph 1; 12, paragraph 1; 14, paragraph 3 (c) and (g); 16; 17, paragraphs 1 and 2; 23, paragraph 1; 24, paragraph 1; and 26 of the Covenant on Civil and Political Rights. She is not represented by counsel.

1.2On 20 October 2004, the Special Rapporteur on new communications and interim measures denied the State party’s request for the Committee to examine the admissibility of the communication separately from the merits.

Factual background

2.1On 28 October 1997, Mr. Chiti, who was a military officer, was arrested by the police as a suspect in an attempted coup d’état. He was charged with treason. He was detained in solitary confinement and held incommunicado and in fetters in the Zambian police headquarters for nine days. During this time, he was denied food and legal representation. In addition, from 28 October to 6 November 1997, each night from 19h00 to the following morning, he was subjected to the following treatment by 8 to 12 state security agents taking turns: regular hour-long beatings with hosepipes, electrical wires, wooden and rubber batons; made to stand on one leg for hours and when tried to shift to the other leg was beaten; repeated questioning by all policemen in the room at the same time, sometimes while lying on his stomach with policemen standing on him, and then repeated beatings; threatened with death and maiming; forced to sign statements implicating senior politicians in the alleged coup; suspended from a rope hanging from the ceiling; suspended on a rod having been “coiled” into a wheel, with a metal rod passed between his abdomen and his curled legs; threatened with drowning and being fed to crocodiles at the foot of a river, 50 km south of Lusaka; made to stand naked against the edge of a table whereupon his penis was hit with the sharp edge of a ruler.

2.2As a consequence of the torture inflicted, Mr. Chiti was transferred to Maina Soko Military hospital in Lusaka where it appeared that his eardrum had been perforated. On 6 November 1997, Mr. Chiti was transferred to Lusaka Central Prison (Chimbokaila). On 10 November 1997, he was taken back to the police station headquarters where he was forced to make and sign a written statement implicating certain politicians in the alleged coup.

2.3In the same month, Mr. Chiti made a complaint to the Government-appointed, -administered and -controlled Zambian Permanent Human Rights Commission. A group of human rights commissioners from this Commission tried to visit him in prison in November or December 1997, but prior to their arrival he was removed and hidden in another prison. He forwarded his complaint to the Legal Resources Foundation, a privately run law firm, which represented him in relation to his treason charge (see para. 2.7 below).

2.4On 31 October 1997, two days after Mr. Chiti’s arrest, soldiers, police officers and State security agents forced their way into the government flat in which the Chiti family was living. They took all the family belongings, loaded them on a military truck and drove to an unknown destination. No member of the family was in the house at the time, as the author was visiting her husband at the police headquarters. When trying to return home, the author and her children were barred from doing so. Almost all the family belongings, including important documents like birth and marriages certificates are either missing, were damaged or stolen. The author later found out that their belongings had been dumped at Lusaka’s main city bus and railway station. She could not recover any of them.

2.5Subsequently, on six occasions, the author and her children were forcibly and illegally evicted by State security agents from six homes in which they attempted to seek shelter. According to the author, they were victimized, harassed and intimidated, denied freedom of movement and assembly. The author’s children could not go to school any more due to fear of harassment. In November 1998, the author and her three youngest children fled Zambia to seek political asylum in Namibia. They stayed there until October 1999. Since their return, the State party has continued to harass them. As a result, they are homeless and destitute and the education of the author’s children has been greatly disrupted.

2.6The State party established a Commission of Inquiry to investigate alleged torture by its agents of those having been suspected of involvement in the coup. The author or her husband never received a copy of the Commission’s report but were told verbally that those responsible for the torture described by Mr. Chiti in paragraph 2.1 above were identified as State agents. The report recommended that the State party pay compensation to the family.

2.7In the meantime, in 1998, the Legal Resources Foundation sued the State party on behalf of Jack Chiti. The court found in his favour and ruled that Mr. Chiti, the author and their children be awarded compensation for the illegal eviction from their home and loss and damage of personal effects as well as compensation to Mr. Jack Chiti for the torture suffered.

2.8Despite the recommendations made by the Commission of Inquiry as well as the ruling from the Court, the State party refused to pay the compensation.

2.9Mr. Chiti’s trial suffered unnecessary delays with hearings being often postponed. He was convicted of treason and sentenced to death by hanging. Subsequently, his death sentence was cancelled, having been pardoned by the Zambian President. While imprisoned, he was diagnosed with prostate cancer but could not afford the prescribed drugs. The prison in which he was serving his sentence failed to provide him with these drugs. Neither was he provided with the high-protein diet recommended for the purposes of slowing down the spread of cancer. He was HIV-positive and was detained in inhuman conditions, denied adequate food, a clean environment and counselling.

2.10In December 1998, the author with her three youngest children sought asylum in Namibia. They lived at Osire refugee camp for one year in dire conditions. The author came back to Zambia due to her husband’s illness. In September 2002, the author was informed of the worsening of her husband’s health situation. He was hospitalized at Kabwe general hospital. Despite several requests, the hospital refused to transfer Mr. Chiti to Lusaka where all the author’s children had stayed.

2.11The author’s husband was pardoned by the Zambian President and released on humanitarian grounds due to his poor health in June 2004. He died on 18 August 2004.

The complaint

3.1The author claims that Zambia has violated her rights as well as the rights of her husband, Jack Chiti, and those of her children under articles 2, paragraph 3; 7; 9, paragraph 1; 10, paragraph 1; 12, paragraph 1; 14, paragraph 3 (c) and (g); 16; 17, paragraphs 1 and 2; 23, paragraph 1; 24, paragraph 1; and 26 of the Covenant.

3.2Although it has not been explicitly raised by the author, the communication appears to raise issues under article 6, paragraph 1, of the Covenant.

State party’s observations on admissibility

4.1On 11 November 2004, the State party challenged the admissibility of the communication on grounds of non-exhaustion of domestic remedies. The State party argues that after the submission of the initial communication, Jack Chiti passed away and the matter raised in the communication is still pending before national courts.

4.2In a note verbale dated 8 February 2005, the State party stated that neither Mr. Chiti nor the author or their children had exhausted domestic remedies fully available to them. The State party notes that Mr. Chiti’s case is defended by a counsel before national courts.

4.3The State party denies that the author’s death was in any way a consequence of the alleged torture. It also denies having failed to implement court orders on compensation to any of the Chiti family.

4.4With regard to the Commission of Inquiry, the State party notes that the rejection of the Commission’s findings by the Government resulted from a Cabinet decision based on the fact that those who had allegedly tortured Mr. Chiti were not heard by the Commission. However, this rejection does not ouster the jurisdiction of the Zambian courts to decide on all issues raised in the communication.

4.5On 10 October 2005, the State party informed the Committee that it had entered into negotiations with the author and her family in order to resolve the matter. The State party adds that the author has entered into those negotiations willingly and that the outcome of the negotiations will be communicated to the Committee as soon as they reach a final conclusion.

Further submissions from the parties

5.1On 7 March 2006, the author, through her sister, informed the Committee that she lived outside the territory of the State party and has therefore entrusted her sister to receive the compensation ordered by the court. Despite several attempts, her sister was denied the payment of that compensation. Despite the fact that the compensation sought covered both the torture inflicted and the loss of property, the State has only agreed to pay compensation for property loss for a total amount of US$ 6,600.

5.2The author submits a newspaper article stating that Mr. Chiti was released from prison on 21 June 2004 for medical reasons as he was suffering from cancer which confined him to a wheelchair.

6.On 8 February 2007, the State party informed the Committee that it had successfully concluded the negotiations with the author. On 22 September 2005, the author accepted in writing an offer of K 20 million in Zambian kwachas as final settlement from the State party to compensate the author and her family for their torture claim. The Ministry of Justice wrote to the Ministry of Finance and directed it to pay the said amount to the author as beneficiary and benefactor of the Chiti family.

7.On 9 May 2008, the author informed the Committee that when the State party informed her of the final amount to which she was entitled as compensation for the torture inflicted to her husband, she did not agree to it and sent a fax to the Ministry of Justice to inform the State party of her decision. However, her decision was not accepted and she was instructed by a State representative to accept the amount proposed as final payment. The author considers that the amount proposed is too little compared to the suffering her husband went through as a result of torture.

Author’s comments to the State party’s observations

8.1On 1 February 2010, the author reiterates that the State party violated her husband’s rights, as he suffered physical torture following his arrest on 28 October 1997. In addition, she and her children suffered mental harm as a consequence of the torture her husband went through as well as material damage linked to the destruction of their belongings. The author contends that the amount of compensation paid corresponds to a small fraction of the loss suffered, which the author finally accepted out of despair because she was destitute.

8.2Following the eviction, the author went to live with her sister. However, after a few days, she and her sister were also evicted from her sister’s home. The State authorities clearly mentioned that the eviction of the author’s sister from her home was related to her hosting the author. From that moment, the author moved from one house to another, in fear of being again evicted.

8.3As the children carried their father’s family name, they were denied registration at school. The author considers that she and her children were deprived of a normal life. Furthermore, she was unable to find an employment, which consequently left her destitute.

State party’s further submission on admissibility

9.1On 3 March 2011, the State party contends that contrary to the author’s comments, the case is still being considered by the Government. The State party considers that there is no evidence to show that it has not been responding to the author’s demands. There is evidence that, in 2006, the Government paid K 20 million in an attempt to settle this matter, which the author does not dispute. The State party concludes that adequate remedies are at the author’s disposal, which she did not exhaust. Since the submission of her communication to the Committee, the author has been constantly outside the State party’s jurisdiction and as such has made it extremely difficult for the Government to conclude the matter. The State party mentions its attachment to resolving the author’s claim efficiently and through “mutual understanding”.

9.2The State party refers to a letter of the Ministry of Justice dated 14 December 2006 in which it states that the author had not yet presented herself to the Ministry of Finance to endorse the amount of the compensation due to her absence of the State party’s territory.

Absence of State party’s additional observations on the merits

10.In notes verbales dated 8 March 2005 and 24 May 2005, the State party was requested to provide additional information to the Committee on the merits of the communication. Following the author’s decision not to agree to the amount of the compensation offered by the State party, the Committee set a new deadline to the State party to submit observations on the merits to 25 August 2010. Despite three reminders dated 13 October and 23 December 2010 and 1 March 2011, the State party did not provide its observations.

Issues and proceedings before the Committee

Consideration of admissibility

11.1Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether it is admissible under the Optional Protocol to the Covenant.

11.2While observing the considerable delay in receiving information from the author following registration of the communication, the Committee nevertheless considers that, given the particular circumstances of the case, it is not precluded from considering the present communication.

11.3The Committee notes, as required by article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under any other procedure of international investigation or settlement.

11.4With regard to the requirements under article 5, paragraph 2 (b), of the Optional Protocol, the Committee notes the State party’s argument that the matter raised in the communication is still pending before national courts. The Committee also notes the State party’s argument that following the submission of the communication, the State party entered into negotiations with the author for a friendly settlement; and that on 22 September 2005, the author accepted in writing an offer of K 20 million as final settlement from the State party. The Committee notes the author’s claim that she was compelled to accept such amount due to her dire situation but that it is not commensurate to the loss and damage caused both in terms of the torture inflicted to Jack Chiti and the material damage caused as a consequence of their eviction from the flat that the family occupied. The Committee further notes the author’s claim that her husband filed a complaint with the Zambian Permanent Human Rights Commission and that the Legal Resources Foundation sued the State party on his behalf. As a result, the court ruled that Mr. Chiti, the author and their children be awarded compensation for the illegal evictions from their home and loss and damage of personal effects as well as compensation to Mr. Jack Chiti for the torture suffered. This compensation as ordered by the Court has not been paid by the State party. The Committee notes that the State party does not deny that the payment has not been made.

11.5The Committee recalls its jurisprudence to the effect that authors must avail themselves of all judicial remedies in order to fulfil the requirement of exhaustion of all available domestic remedies, insofar as such remedies appear to be effective in the given case and are de factoavailable to the authors. The Committee also recalls that the State party has a duty not only to carry out thorough investigations of alleged violations of human rights, particularly violations of the prohibition of torture, but also to prosecute, try and punish anyone held to be responsible for such violations. In the present case, the information before the Committee indicates that, almost 16 years after the incriminated facts, the State party has still not launched any investigation into the allegations of torture and eviction and has limited itself to propose to the author a sum of money in the context of a friendly settlement. Moreover, with regard to the claims other than those related to torture, the State party has not provided information to the Committee on the judicial remedies de facto available to the author. Thus, the Committee considers that the application of the remedies is unreasonably prolonged within the meaning of article 5, paragraph 2 (b), of the Optional Protocol and that it is not precluded from examining the communication on this ground.

11.6Although the author does not elaborate and provide arguments in support of each of the articles invoked, the facts as she presented them seem to raise issues in relation to articles 2, paragraph 3; 7; 10; and 14, paragraph 3 (g), in relation to Jack Chiti who was arrested, allegedly tortured by state agents and forced to sign a confession. With regard to the author’s allegation that following his arrest, her husband was held in solitary confinement and incommunicado for nine days, the Committee notes that no information has been provided on the arrest and whether he was presented before a judicial authority. On the other hand, the author states that on 31 October 1997, she visited her husband at Lusaka police headquarters. The Committee therefore concludes that the author has not sufficiently substantiated her claims under articles 9 and 16. With regard to the author’s allegation that Mr. Chiti’s trial suffered undue delay, the Committee notes that the information provided is very general and does not contain indications as to the circumstances under which the trial took place. Accordingly, the Committee considers this part of the communication inadmissible under article 2 of the Optional Protocol. While the author has not specifically invoked article 6 of the Covenant, her allegations in relation to the direct link between her husband’s treatment in detention and his subsequent death seem to raise issues under article 6 of the Covenant.

11.7With regard to the author’s allegations under articles 2, paragraph 3; 7; 12, paragraph 1; 17, paragraphs 1 and 2; 23, paragraph 1; 24, paragraph 1; and 26, they seem to relate to the author and her family. The Committee notes that the author has not provided the complete identity and age of her children and no power of attorney has been provided in the event that her children were above 18 years of age at the time of the submission of the author’s communication. The Committee will therefore not separately examine the author’s claims as related to her children, in particular in relation to article 24, paragraph 1, of the Covenant. With regard to article 12, paragraph 1, since the author has on several occasions left the country and come back, the Committee finds the author’s allegations under article 12, paragraph 1, as insufficiently substantiated for purposes of admissibility. As for article 26, the author has not provided any information on alleged discrimination by the State party. This part of the communication is therefore also inadmissible under article 2 of the Optional Protocol. On the other hand, the Committee considers that the author’s claims under articles 2, paragraph 3; 7; 17; and 23, paragraph 1, in relation to the disruption of her family life and the anguish and lack of remedy for the torture, detention and subsequent death of her husband have been sufficiently substantiated for purposes of admissibility.

11.8The Committee therefore considers the communication admissible in relation to articles 2, paragraph 3; 6; 7; 10; and 14, paragraph 3 g) of the Covenant with regard to  Jack Chiti; and in relation to articles 2, paragraph 3; 7; 17; and 23, paragraph 1 of the Covenant with regard to the author and her family; and proceeds to the examination of those claims on the merits.

Consideration of the merits

12.1The Committee has considered the present communication in the light of all the written information made available to it by the parties, as provided for in article 5, paragraph 1, of the Optional Protocol.

12.2The Committee notes the author’s allegation that her husband, Jack Chiti, was tortured at the Lusaka police headquarters for nine days, following his arrest on 28 October 1997; that as a consequence of the torture inflicted, he was transferred to Maina Soko Military hospital where he was diagnosed with an eardrum perforation. The Committee further notes the author’s claim that, while imprisoned, her husband was diagnosed with prostate cancer but could not afford the prescribed drugs; that the prison in which he was serving his sentence failed to provide him with these drugs; nor was he provided with the high-protein diet recommended for the purposes of slowing down the spread of cancer. The Committee also notes that Mr. Chiti was HIV-positive and that he was allegedly detained in inhuman conditions, denied adequate food and a clean environment. The Committee notes in this regard that according to the author, these inhuman conditions of detention led to Mr. Chiti’s premature death. In the light of his cancer and his HIV-positive condition, the denial of the necessary drugs and the torture and inhuman conditions of detention to which he was subjected, this claim seems plausible. The Committee notes that the State party limits itself to denying the causal link established by the author between the conditions of detention of her husband and his death, without providing further explanation. In the absence of rebuttal from the State party, the Committee concludes that the State party has failed to protect the life of Mr. Chiti in violation of article 6 of the Covenant.

12.3On the basis of the information available to it, the Committee further concludes that the torture inflicted on Jack Chiti, his poor conditions of detention with no adequate access to health care, the anguish he remained in for seven years before his sentence to death was quashed as well as the absence of a prompt, thorough and impartial investigation of the facts constitute a violation of article 7, alone and read in conjunction with article 2, paragraph 3, of the Covenant.

12.4 The Committee also takes note of the anguish and distress caused by the arrest, allegations of torture, poor conditions of the author’s husband and the eviction from their home. It considers that the facts before it reveal a violation of article 7 of the Covenant with regard to author and her family.

12.5Having come to this conclusion, the Committee will not address the author’s separate allegations under article 10 of the Covenant.

12.6With regard to the author’s allegation that her husband’s rights under article 14, paragraph 3 (g), have been violated, the Committee notes the author’s contention that on 10 November 1997, her husband was taken back to the police station headquarters where he had been allegedly tortured for nine days, and was forced to make a written statement implicating certain politicians in the alleged coup and sign the document. The Committee notes that the State party has not refuted this claim. The Committee recalls its general comment No. 32 on article 14 in which it insists that the right not to testify against oneself must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to article 7 of the Covenant in order to extract a confession. Domestic law must ensure that statements or confessions obtained in violation of article 7 of the Covenant are excluded from the evidence, except if such material is used as evidence that torture or other treatment prohibited by this provision occurred, and that in such cases the burden is on the State to prove that statements made by the accused have been given of their own free will. In light of the information before it, the Committee concludes to a violation of Mr. Chiti’s rights under article 14, paragraph 3 (g), of the Covenant.

12.7The Committee notes the author’s allegation that, on 31 October 1997, soldiers, police officers and State security agents forced their way into the government flat the Chiti family was living in and took away all the family belongings. The Committee notes the author’s claim that all the belongings, including important official documents are either missing, were damaged or stolen; and that the author and her children were prevented from returning to the government flat. Subsequently, on six occasions, the author and her children were allegedly forcibly and illegally evicted by State security agents from six homes in which they attempted to seek shelter. The Committee notes that this part of the claim is not refuted by the State party. The Committee also notes the author’s allegation that a court ruled in her favour that compensation be awarded to them for the illegal eviction from their home and loss and damage of personal effects. The Committee notes that the existence of the court ruling has not been disputed by the State party and that to date, the amount set by the court has not be attributed to the author.

12.8In light of the information available to it, the Committee finds that the author’s illegal eviction and the destruction of the family’s personal belongings has had significant impact on the author's family life and constitutes an infringement on her family’s rights under articles 17 and 23, paragraph 1, of the Covenant, for which no effective redress was provided. The Committee concludes that the Chiti family’s eviction and destruction of belongings amount to a violation of articles 17 and 23 read alone and in conjunction with article 2, paragraph 3, of the Covenant.

13.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 6; article 7 alone and read in conjunction with article 2, paragraph 3; article 14, paragraph 3 g); and articles 17 and 23, paragraph 1, read alone and in conjunction with article 2, paragraph 3 of the Covenant.

14.Pursuant to article 2, paragraph 3(a), of the Covenant, the Committee considers that the State party is under an obligation to provide the author with an effective remedy, including (a) a thorough and effective investigation into her husband’s torture suffered in detention; (b) providing the author with detailed information on the results of its investigations; (c) prosecuting, trying, and punishing those responsible for the torture; and (d) appropriate compensation for all the violations of the author’s rights as well as the rights of her husband. The State party is also under an obligation to take measures to prevent similar violations in the future.

15.In becoming a State party to the Optional Protocol, the State party recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established. The Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]