HRC findings into fatal Police shooting of Grade 8 boy -Frank Mugala

A SUMMARY OF THE FINDINGS AND RECOMMENDATIONS OF THE HUMAN RIGHTS COMMISSION ON THE DEATH OF FRANK MUGALA, A GRADE 8 JUVENILE WHO WAS SHOT DEAD DURING THE POLICE OPERATION IN CHAZANGA TOWNSHIP IN LUSAKA ON 13^TH FEBRUARY 2020 ISSUED BY THE COMMISSION CHAIRPERSON, MR. MUDFORD Z. MWANDENGA ON 13^TH OCTOBER 2020

• Introduction

The Human Rights Commission (HRC) has completed its independent investigations into the death of Frank Mugala, a grade 8 pupil at Chazanga Basic School who was killed during the Zambia Police Service operation on 13^th February, 2020. The 14 year old boy was killed by a bullet when the police were trying to disperse residents who were protesting after a rumour went round that individuals suspected of being involved in ritual killings through gassing unsuspecting victims with a paralysing chemical were hiding at the school.

The Commission has submitted the detailed investigations report to the parties involved, being the family of the deceased and the Zambia Police Service in line with its legislative mandate under the Human Rights Commission Act, Chapter 48 of the Laws of Zambia.

2.0 Main Objectives of the Investigations

The main objectives of the inquiry by the HRC was to establish the following:

1. Examine the circumstances under which the deceased met his death and determine whether there was violation of the right to life guaranteed under Article 12 of the Bill of Rights under the Zambian Constitution, Chapter 1 of the Laws of Zambia;
2. Establish whether it was justified for the police to use live ammunition against the alleged protesters and whether, therefore, the killing qualified for excusable homicide to diminish criminal liability of the officer(s);

• Establish whether the use of force was authorized by a superior officer proclaiming the situation as a riot requiring the use of firearms in compliance with Sections 77 and 78 of the Penal Code Act, Chapter 87 of the Laws of Zambia, and whether the use of fire power was the only and ultimate option available to the police;

1. Find out whether the police officers took any measures to decrease the risk of unnecessary harm especially that the shooting occurred in a residential area where the risk of harm to innocent people was highly probable;

1. Establish whether the use of force by the police was in accordance with Zambia’s national legislation as well as international human rights norms particularly those contained in the United Nations Basic Principles on the Use of Firearms by Law Enforcement Officials adopted in 1990; and

1. Make the necessary recommendations to the appropriate institutions to address the problem as well as to prevent further or similar incidences, as well as the prosecution or punishment of those found culpable, if any.

3.0 Investigations Methodology

The investigation involved personal interviews with some of the family members of the deceased, the police authorities, the school authorities, civic authorities in the area, eye witnesses as well as those who had contact with the deceased prior to his death. The investigations were also extended to examining the autopsy (post-mortem) report and all other relevant pieces of evidence.

The inquiry also considered relevant provisions of the Zambia Police Act, Chapter 107 of the Laws of Zambia, the Penal Code Act, Chapter 87 of the Laws of Zambia and the Basic Principles in the use of firearms by policing agencies. These are internationally accepted norms that guide the use of firearms by United Nations Member States.

4.0    Constitutional and Statutory Powers of the HRC

The HRC is an autonomous National Human Rights Institution (NHRI) established under Article 230 (1) of the Constitution of Zambia (Amendment) Act No. 2 of 2016. The constitutional mandate of the HRC is to ensure that the Bill of Rights is upheld and protected [in accordance with Article 230 (2) of the Constitution of Zambia (Amendment) Act No. 2 of 2016].

Article 230 (3) further mandates the HRC to, inter alia-

“(a) investigate and report on the observance of rights and freedoms; and
(b) take necessary steps to secure appropriate redress where rights and freedoms are violated….;

The mandate and powers of the HRC are also stipulated under Section 9 of the HRC Act, Chapter 48 of the Laws of Zambia. Therefore, the investigation, conclusion and recommendations herein were made within the above stated constitutional and legislative framework.

5.0    Protection of the Right to Life

The right to life is a fundamental human right enshrined in various international and regional human rights instruments such as Article 3 of the Universal Declaration of Human Rights (UDHR), Article 6 (1) of the International Covenant on Civil and Political Rights (ICCPR) and Article 4 of the African Charter on Human and Peoples’ Rights. Further, the right to life is entrenched in the Bill of Rights under Article 12 of the Constitution of Zambia, Chapter One of the Laws of Zambia, as follows:

“12. (1) A person shall not be deprived of his [her] life intentionally except in protection of right to life, execution of the sentence of a court in respect of a criminal offence under the law in force in Zambia of which he [she] has been convicted”.

Thus, the right to life is not absolutely protected under the Constitution of Zambia, just like is the case with other regional and international human rights instruments.

There are circumstances under which the deprivation of the right to life is deemed legally permissible and reasonably justifiable. For instance, Article 12 (3) of the Constitution of Zambia provides that “…a person shall not be regarded as having been deprived of his life in contravention of this Article if he dies as a result of the use of force to such extent as is reasonably justifiable in the circumstances of the case-

(a)    for the defence of any person from violence or for the defence of property;
(b)     in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c)     for the purpose of suppressing a riot, insurrection, mutiny or if he dies as a result of a lawful act of war; or

(d)   in order to prevent the commission by that person of a criminal offence.”

As stated above, one of the objectives of the investigation by the Commission was to assess whether or not the death of Frank Mugala was lawful, reasonable and justifiable in a democratic state such as Zambia.

In conducting its investigations into the shooting, the Commission took full cognizance of the fact that, firstly, police were by law authorized to use force and firearms in particular circumstances and under conditions of absolute necessity, due regard always being to the pre-eminence of respect for human life as a fundamental value. Secondly, police have the primary duty to protect life and property in all circumstances. Therefore, the use of firearms demanded of the police the exercise of due diligence, restraint and professionalism.

6.0 Findings of the Investigation

Some of the salient findings of the HRC investigations were the following:

1. It was true that there was a public disturbance in Kabanana Township, including at Chazanga Basic School on the material day Frank met his tragic death.

The Commission learnt that on the fateful day, Frank Mugala (deceased), a 14 year old grade eight (8) pupil at Chazanga Basic School was among the learners that had reported for lessons in the afternoon. The deceased belonged to Grade 8 C, one of the classes that reported for their lessons in the afternoons.

The Commission heard that on the material day, just after the 15:40 hours’ break, as the pupils were settling down for the next lesson, some parents stormed the classrooms to pick up their children.

When asked by the teachers why they were picking up their children, the parents stated that they feared for their children’s safety because they had information that a mob of people in the area was going round schools damaging school infrastructure, under the belief that schools were hiding “ritual gassers.”

Some pupils over heard the parents talking about the gassers, who got agitated. The reports about the alleged gassers was worsened by the earlier reports in the day that a school in Northmead had been gassed.

As more and more parents entered the school gates, there was confusion among the learners. Efforts to calm them down could not succeed. This created anxiety among both the teachers and the learners. Most of the pupils rushed out of the school premises.

2. It is true that Frank was shot dead by the Zambia Police Service

It was only after 17:00 hours that police on patrol vehicles started patrolling the streets of Kabanana and Chazanga Townships in an attempt to stop the protesting mob. It was reported that the protestors had earlier been to other schools, including Ngwerere School where they found no one in the school as all the pupils had been released.

According to witnesses, the police did not enter Chazanga Basic School premises but went past the school heading eastward. The witnesses interviewed said they could hear sporadic gun shots in various sections of the compound, as the police tried to prevent the protesters from going to schools in search of the alleged gassers. No witness testified having heard about, seeing or experiencing the use of tear smoke (tear gas), water cannons, or rubber bullets by the police. Furthermore, no witness testified that they heard the police announce or advise the protesters to disperse. All they could see were uncompromising armed police officers on patrol vehicles driving up and down the streets, without saying anything.

Around 17:00hrs, the same time the Police were seen arriving in the area, a body of a boy was found lying, at about 150 to 200 meters opposite the gate of Chazanga Basic School. It was initially suspected that he was from High Land School. However, from the school badge and the note books from his school bag, they were able to identify him as Frank Mugala, grade 8 C of Chazanga Basic School.

Some witnesses near the scene where Frank was shot dead said the police were shooting indiscriminately in the township and showed the Commission some mobile phone booths and houses with bullet holes. It was alleged that the deceased was shot by one of the bullets which went through a mobile phone booth.

A post mortem examination was conducted on the body of the late Frank Mugala by a State Pathologist on 17^th February, 2020 and confirmed that he died from a gunshot to the back, which ripped through his body and exited at the right side of the neck.

According to the Post-Mortem Report No. 279-20, released on 22^nd July 2020 and obtained by the Commission on 10^th August 2020, the findings of the Pathologist were as follows:

“Autopsy revealed a boy with an entry gunshot wound to the back and an exit wound at the right side of the neck. On the basis of the history and autopsy findings, multiple medicolegally relevant issues are raised by the post-mortem examination including:

1. The cause of death is GUNSHOT to back;
2. The mechanism of death is physical disruption of the cervical spine;
3. The manner of death is HOMICIDE;
4. The gunshot wound is atypical suggestive of a ricochet bullet;
5. The gunshot was incapacitation immediately.”

7.0       The Commission’s Observations, Conclusions and Recommendations

Pursuant to powers vested in the Commission under Section 10 (2) (d) as read together with Section 13 (1) (b) of the HRC Act, Chapter 48 of the Laws of Zambia and arising from the investigations findings, the following observations, conclusions and recommendations are hereby made:

1. As confirmed by the autopsy report, the manner of death of Frank Mugala, homicide, which is defined as the killing of a person by another person. In this case, Frank was killed by one of the Zambia Police Officers who were deployed to attend to the reported protest in Kabanana area in Lusaka;

1. The deceased juvenile was from school during the material time of meeting his death and was not part of any protesting group. From scientific examination of his body after his death, he was shot from the back, a clear indication that he was not advancing towards the police. Hence, he was not in any way a threat to anyone or any property at the time he was shot dead;

• The use of live ammunition in a high-density township, to scare away unarmed protestors constituted an act of recklessness, negligent and unprofessionalism by the police.

1. It is the Commission’s well considered opinion that the shooting to death of the juvenile in question cannot be reasonably justified and does not fall within the legally permissible circumstances under which the deprivation of life may not be deemed as a violation of the right to life.

1. Having reviewed the totality of the evidence, it is the firm and fair finding of the Commission that Frank Mugala was brutally shot dead by a state agent in the name of a police officer in gross deprivation of his right to life.

1. The Commission wishes to take this opportunity to make a general comment. The Commission has observed with a deep sense of regret a growing, systemic or pattern of cases of extra-judicial killings of individuals by the Zambia Police Service, without state remedial measures, through the so called stray bullets. This is extremely sad. It down plays the sanctity of life and give an impression that law enforcement officers can take away one’s life without being sanctioned.

8.0       Recommendations

1. While the state authorities and the police command are record that it does note please them to see officers being indicted or punished for acts arising out of their official duty, the Commission calls for justice to be done by among other measures, ensuring that perpetrators of human rights violations are punished in accordance with the law. Whims or feelings of individuals should not be allowed to obstruct the course of justice and create a culture of impunity in violating human rights by state agents. To this end, the Police command must own up and take administrative or any other action against the officer/s involved in order to end impunity.

1. That in the event that the Police Command does not take any action, an inquest should be held in line with the provisions of Sections 4[1] and 28 (1) (c)[2] of the Inquests Act, Chapter 36 of the Laws of Zambia in order to establish the identity of the officer responsible for the shooting to death of Frank Mugala to allow for appropriate criminal charges.

Further, the police command have an obligation to avail suspected police officers in the commission of crime so that they are subjected to the due process of the law in cases where victims of the deceased decide to take the matter before the courts of law and pursue criminal charges.

• The State should compensate the deceased’s family for the loss of life occasioned by the reckless conduct of its agents (Zambia Police Officers). In the event that such compensation is not made within a reasonable time, the family of the late Frank Mugala should consider instituting civil proceedings against the State;

The Commission is making these recommendations pursuant to 13. of the HRC, CAP 48 of the Laws of Zambia, which provides that:

“(1) The Commission shall- (a) send written reports of its findings to the parties concerned; and (b) dependant on the findings made, make such recommendation as it considers necessary to the appropriate authority.

(2) The appropriate authority shall, within thirty days from the date of such recommendation make a report to the Commission, on any action taken by such authority to redress any human rights violation.

(3) Any person who contravenes the provisions of subsection (2) shall be guilty of an offence, and shall be liable, upon conviction, to a fine not exceeding ten thousand penalty units, or to imprisonment for a term not exceeding three years, or to both”.

The Commission considers this as a test case of the State’s commitment to meeting its obligation of respecting the rule of law, constitutionalism and human rights by taking remedial measures wherever and whenever acts of human rights violations occur.

[1] Section 4 of the Inquests Act provides that:

“4. Whenever a coroner is credibly informed that the body of a deceased person is lying within his jurisdiction, and that there is reasonable cause to suspect that such person has died either a violent or an unnatural death, or in prison or in police custody, or in any place or circumstances which, in the opinion of the coroner, makes the holding of an inquest necessary or desirable, such coroner shall, except as otherwise provided in this Act, hold an inquest on such body as soon as is practicable.“

[2] Section 28 (1) (c) of the Inquests Act states that

“28. (1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters: …(c) the persons, if any, to be charged with murder, manslaughter, infanticide, or causing death by the reckless or dangerous driving of a motor vehicle, or of being accessories before the fact should the coroner find that the deceased came to his death by murder, manslaughter, infanticide, or such driving;”