Chinese national being carried by a Zambian. Picture Credit: Phoenix FM
By Mordecai Mweene and Zindaba Lwara
Introduction
This article emanated from social media publications from 4th and 5th March, 2021 in which a video, involving a Chinese national/employer being pulled on a trolley by a Zambian employee, went viral on social media sparking public condemnation. This prompted the Ministry of Labour Permanent Secretary Mr. Chanda Kaziya to issue a media statement that, Government would deal sternly with foreign employers abusing Zambian workers in the country. He further stated that his Ministry, through the Labour Commissioner, had instituted investigations into the matter and that if the employer was found wanting, he would be deported.[1]
Similarly, on 18th May 2020, the then Lusaka Mayor, His Worship Miles Sampa, shut down a Chinese Restaurant in Lusaka’s Long acres area for discriminating against Zambians. Latian Restaurant was reported by Muvi TV for only allowing entrance to Chinese nationals and denying entry to other persons, blacks in particular, for apparently Covid[-19 related reasons.[2]
Another incident occurred on/about 21st May 2020. The Mayor of Lusaka closed a Chinese owned Angels Barbershop located at Arcades Shopping Mall for discriminating against blacks and displaying prices in Chinese language contrary to the requirements of the law.[3] The Mayor indicated that he had a tip off from a whistle blower who took his son to cut the hair but was told to pay K300 as the price just to put him off. However, when he agreed to pay, the operator changed his mind and said the Barbershop was actually closed and he had to leave[4].
This article therefore discuses racism, the various forms of racism and the law on racism in Zambia.
Defining Racism, Inhuman and Degrading Treatment
Article 2(2) of the Declaration on Race and Racial Prejudice defines racism to as including “racist ideologies, prejudiced attitudes, discriminatory behaviour, structural arrangements and institutionalised practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable; it is reflected in discriminatory provisions in legislation or regulations and discriminatory practices as well as in anti-social beliefs and acts; it hinders the development of its victims, perverts those who practise it, divides nations internally, impedes international co-operation and gives rise to political tensions between peoples; it is contrary to the fundamental principles of international law and, consequently, seriously disturbs international peace and security”[5].
Inhuman and degrading treatment or punishment on the other hand is described as intense, physical or mental suffering which includes: serious physical assault, psychological interrogation, cruel detention, conditions, serious physical or psychological abuse in health care settings, and threatening to torture someone if the threat is real and immediate[6]. Therefore, it is treatment that violates human dignity, but does not rise to the level of torture. This kind of treatment is forbidden by the Universal Declaration of Human Rights, and the United Nations Convention against Torture.[7]
Regarding degrading treatment, it is treatment that is extremely humiliating and undignified. It equally violates the principle of human dignity and the innate value of all human beings.[8]
What are the Forms of Racism?
Racism can be exhibited in different forms and may not always involve persons of a different ethnic group. Some of the forms of racism include:
- Individual or internalized racism: This is racism that exists within It happens when one holds negative ideas about his/her own culture, even if unknowingly. For example, the act of xenophobic feeling is an internalized type of racism.
- Interpersonal racism: This is the racism that occurs between It is the holding of negative attitudes towards a different race or culture. Interpersonal racism often follows a victim/perpetrator model.
- Systematic/Institutional racism: This refers to institutional and cultural practices that perpetuate racial inequality. Benefits are structured to advantage powerful groups as the expense of others.[9]
Legal framework on racism
- International Legal Framework
Zambia is a subject of international law.[10] It has ratified, among others, the International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms of Racial Discrimination; the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment; the African Charter on Human and Peoples’ Rights, and other instruments that prohibit racism or any form of discrimination based on race.
Having ratified the above given instruments, which have provisions expressly prohibiting racisms or discrimination based on race, Zambia has the primary duty to “promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law.”[11] The duty arises from the fact that the State is the primary duty bearer to secure human rights protection[12] and that it is legally bound to observe its international commitments in good faith.[13]
Consequently, Zambia is expected under the Vienna Convention on the Law of Treaties,[14] whose adoption by the United Nations General Assembly was preceded by a consideration of, inter alia, the political context in which the law operates and develops,[15] to observe its international commitments, on the prevention and punishing of racism in good faith. This obligation is in accordance with Article 26 of the Vienna Convention which provides that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”[16]
Article 1 of the Universal Declaration of Human Rights (UDHR) states that “All human beings are born free and equal in dignity and rights”. This principle is the umbrella for the enjoyment, protection and fulfilment of all human rights. The principle basically entails that individuals are equal and thus should enjoy their rights without discrimination or distinction.
Further, Article 2 of the Universal Declaration of Human Rights states that; “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Under the International Convention on the Elimination of All Forms of Racial Discrimination, Zambia recognizes Article 2(1) which states that, “State Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end”.[17] As a State Party to the Convention, Zambia has the following obligations:
- To assure to everyone within its jurisdiction effective protection and remedies against racial discrimination. This has to be done through the competent national tribunals and other State institutions such as the Human Rights Commission.
- Engage in no act or practice of racial discrimination against persons.
- Zambia has to undertake not to sponsor, defend or support any racial discrimination by any persons or organizations.
- Take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.
Under the African Charter on Human and People’s Rights, Zambia recognises the rights in the Charter which include the right to equality and non-discrimination, and dignity of the person. For example, Article 2 of the African Charter provides for the principle and right to equality and non-discrimination. It states “Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national or social origin, fortune, birth or other status”.
- Domestic Legal Framework
Some of the laws that prohibit racism in Zambia include the Constitution of Zambia, The Penal Code, Employment Code Act, and the Industrial and Labour relations Act.
- The Constitution
The Constitution of Zambia is the supreme law of the land and is binding on all persons in Zambia. Article 4(3) prescribes among other things that, the Republic is a multi-ethnic, multi-racial, multi-religious and multi-cultural. Further, Article 11 guarantees the enjoyment of human rights without discrimination when it stipulates that “every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex or marital status.”
In addition, the Constitution, under Article 15, state that “No person shall be subjected to torture or to inhuman or degrading punishment or other like treatment”. This entails that no one should be subjected to torture or inhumane and degrading treatment in whatever situation.
Subsequently, Article 23 of the Constitution provides for Protection from discrimination on the ground of race, and defines the expression “discriminatory” to mean, “affording different treatment to different persons attributable, wholly or mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political opinions colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such descript[18]. This article prohibits racial discrimination on the ground of race, tribe, sex, place of origin, marital status, political opinions colour or creed.
To support the Articles enshrined under the Bill of Rights, Article 28 provides for the enforcement of protective provisions by stipulating that –
(1) “Subject to clause (5), if any person alleges that any of the provisions of Articles 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court which shall:
- hear and determine any such application;
- determine any question arising in the case of any person which is referred to it in pursuance of clause (2); and which may, make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of Articles 11 to 26 inclusive.
(2) (a) If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of Articles 11 to 26 inclusive, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion the raising of the question is merely frivolous or vexatious.
(b) Any person aggrieved by any determination of the High Court under this Article may appeal therefrom to the Supreme Court:
Provided that no appeal shall lie from a determination of the High Court under this Article dismissing an application on the ground that it is frivolous and vexatious.
- Industrial and Labour Relations Act.
Section 108 states that “No employer shall terminate the services of an employee or impose any other penalty or disadvantage on any employee, on grounds of race, sex, marital status, religion, political opinion or affiliation, tribal extraction or social status of the employee.
Therefore, this provision makes good riddance for racism.
- Employment Code Act No. 3 of 2019
Section 5. of the Code does not allow acts of racism. It provides in Subsection (2) that “An employer shall not, in any employment policy or practice discriminate, directly or indirectly, against an employee or a prospective employee — (a) on grounds of colour, nationality, tribe or place of origin, language, race, social origin, religion, belief, conscience political or other opinion, sex, gender, pregnancy, marital status, ethnicity, family responsibility, disability, status, health, culture or economic grounds.”
- Penal Code Act, Chapter 87 of the Laws of Zambia
Section 70 criminalises racial discrimination. It provides that “Any person who utters any words or publishes any writing expressing or showing hatred, ridicule or contempt for any person or group of persons wholly or mainly because of his or their race, tribe, place of origin or colour is guilty of an offence and is liable on conviction to imprisonment for a period not exceeding two years”.
Is the Law on Racism Adequate?
Article 4(3) of the Zambian Constitution declares that Zambia is a unitary, indivisible and multi-racial among other things.[19] This provision in the constitution entails the unifying spirit among the people in the country regardless of race. It may be argued that this Article should have had other provisions for enforcing the multi-racial aspect. However, its seemingly inadequate provision is remedied by Articles 11 and 28 of the Constitution which give the legal basis for the prohibition of racial discrimination, and the right to petition the court for redress respectively if the person suffers or is likely to suffer racial discrimination, inhuman or degrading treatment and punishment.
Subordinate legislation, such as the Penal Code Act, Employment Code Act, the Labour and Industrial Relations Act equally have provisions that proscribe against racism. However, one major weakness is reflected in the Penal Code Act. The Act should have provided for different types of offences and penalties relating to racism and racial discrimination. The law should have specified the different acts of racism and the befitting or corresponding penalties. This is based on the reasoning that different circumstances may require different punishments. The Section should not have been limited to utterances or publishing of racial remarks only.
Conclusion
Zambia has ratified various international human rights instruments that prohibit racisms and discrimination based on race. It has also puty in place domestic legislation to prevent and punish racism. In the case of the Chinese employer, being pulled on a trolley by a Zambian employee, the act can only amount to racism if the superiority of race was a defining factor for the act perpetrated. This notwithstanding, the act if it did not amount to racism, can still constitute inhuman and degrading treatment which is equally prohibited under international, regional and national legal framework. However, there may be need for Zambia to allign domestic legislation to international minimum standards as well as to provide stiffer penalties to prevent, combat and punish racism in all its forms.
FOOT NOTES
[1] https://dailynationzambia.com/2021/03/08/trolley-chinese-faces-deportation/
[2] https://www.lusakatimes.com/2020/05/18/miles-sampa-shuts-down-a-chinese-restaurant-for- discriminating-against-zambians/ visited on 15th March 2021
[3] https://zambiareports.com/2020/05/21/press-release-angels-barbershop-acardes-mall-closed-discriminating-blacks/ visited on 15/30/2021
[4] www.lusakatimes.com visited on 19/03/21
[5] Declaration on Race and Racial Prejudice Adopted and proclaimed by the General Conference of the United Nations Educational, Scientific and Cultural Organization at its twentieth session, on 27 November 1978
[6] www.equalityhumanrights.com>art (Equality and Human Rights Commission) visited on 19/03/21
[7] https://en.m.wikipedia retrieved on 16/03/21
[8] www.equalityhumanrights.com>art (Equality and Human Rights Commission) visited on 19/03/21
[9]https://www.shorelineschools.org/site/default.aspx?PageType=3&ModuleInstanceID=3131&ViewID=DEDCCD34-7C24-4AF2-812A-33C0075398BC&RenderLoc=0&FlexDataID=24891&PageID=1951&Tag=&Comments=true. Visited on 16/03/21
[10] Ilias B and Lutz O, International Human Rights Law and Practice (Cambridge University Press 2013) 72
[11] World Conference on Human Rights, Vienna Declaration and Programme of Action (Adopted 25 June 1983) para1
[12] Rhona K.M Smith, Textbook on International Human Rights (6th Edn Oxford University Press 2014) P 181
[13] Article 26 of the Vienna Convention on the Law of Treaties
[14] UN A/RES/2287/XXII
[15] Rosenne Shabti, ‘The Law of Treaties: A Guide to the Legislative History of the Vienna Convention’ (Oceana Publications 1970) 30
[16] Article 26 of the Vienna Convention on the Law of Treaties
[17] International Convention On the Elimination of All Forms of Racial Discrimination
[18] The Constitution of Zambia (1996)
[19] The Constitution (Amendment ) Act No.2 of 2016