PRESIDENTIAL COMMISSION OF INQUIRY INTO THE DEMONSTRATIONS, DEATHS, INJURIES, RIOTS, LOOTING, ARSON, PUBLIC DISORDER AND LOSS OF PROPERTY THAT TOOK PLACE ON 20TH AND 21ST JULY 2011 REPORT OF FINDINGS AND RECOMMENDATIONS
COMMISSION OF INQUIRY
C/O MALAWI LAW COMMISSION
PRIVATE ABG 373 LILONGWE 3
Table of Contents
LIST OF TABLES ........................................................................................................ iv
LETTER TO THE STATE PRESIDENT ............................................................................ vi
LIST OF COMMISSIONERS AND SUPPORT STAFF ................................................. viii
ACRONYMS ........................................................................................................ ix
APPENDICES ........................................................................................................ xi
ACKNOWLEDGEMENTS .................................................................................................. xii
EXECUTIVE SUMMARY .................................................................................................. xiv
SUMMARY OF THE COMMISSION’S FINDINGS .......................................................... 1
SUMMARY OF THE COMMISSION’S RECOMMENDATIONS ................................... 7
STRUCTURE OF THE REPORT ....................................................................................... 13
CHAPTER ONE: INTRODUCTION ....................................................................... 14
1.1 Background Information .............................................................................. 14
1.2 Appointment and Membership of the Commission .................................... 16
1.3 Methodology ................................................................................................... 19
1.4 Scope of the Inquiry ....................................................................................... 22
CHAPTER TWO: NARRATIVE OF EVENTS AND REASONS FOR THE MASS DEMONSTRATIONS .................................................... 23
2.1 Introduction .................................................................................................... 23
2.2 Reasons For The Mass Demonstrations And Events That Took Place Before The Mass Demonstrations................................................................. 23
2.3 Events That Took Place On The Day Of The Mass Demonstrations And After The Day Of The Mass Demonstrations ..................................... 33 iii
CHAPTER THREE: FINDINGS AND ANALYSIS OF FINDINGS ......................... 53
3.0 Introduction .................................................................................................... 53
3.1 General Causes of the Riots, Looting, Arson and Public Disorder ........... 53
3.2 Identities Of Persons Who Were Killed Or Were Injured During The Riots, Looting, Arson, Public Disorder, Circumstances Under Which Deaths Or Injuries Occurred And The Cause Of Each Death Or Injury......................................................................................................... 63
3.4 Conduct, Proficiency and Operational Effectiveness of the Police in Dealing With the Demonstrators, Looters, Rioters and Arsonists ............ 78
3.5 Conduct of the Media and Its Impact Before, During and After the Demonstrations, Riots, Looting, Arson and Public Disorder .................... 93
CHAPTER FOUR: RECOMMENDATIONS ............................................................ 98
4.1 Introduction .................................................................................................... 98
4.2 Recommendations to the Executive .............................................................. 98
4.3 Recommendations to the Judiciary ............................................................ 102
4.4 Recommendations to the Malawi Police Service ....................................... 102
4.5 Recommendations to District Commissioners and Chief Executive of the City Councils ...................................................................................... 103
4.6 Recommendations to Organisers of Demonstrations ............................... 104
4.7 Recommendations to Media Practitioners and Regulators ..................... 105 iv
LIST OF TABLES
Table I: List of people who lost their lives in Lilongwe City and cause of each Death. .............................................................................................................. 65
Table II: List of people who lost their lives in Blantyre City and cause of each Death ............................................................................................................... 65
Table III: List of people who lost their lives in Mzuzu City and Karonga Township and cause of each Death ................................................................................ 66
Table IV: List of people who sustained injuries in Blantyre City and cause of each Injury and circumstances under which the Injuries were sustained ........ 68
Table V: List of people who sustained injuries in Lilongwe City and cause of each Injury and circumstances under which the Injuries were sustained ........ 68
Table VI: List of people who sustained injuries in Mzuzu City and cause of each Injury and circumstances under which the Injuries were sustained ........ 70
Table VII: List of people who sustained injuries in Karonga Township, Cause of each Injury and circumstances under which the Injuries were sustained 71
Table VIII: List of Police Officers Injured during the Public Disorder....................... 71
Table IX: Nature, Estimated Value and Owners of Property Lost in Blantyre City 73
Table X: Nature, Estimated Value and Owners of Property Lost in the City of Lilongwe .......................................................................................................... 74
Table XI: Nature, Estimated Value and Owners of Property Lost in the City of Mzuzu .............................................................................................................. 75
Table XII: Nature, Estimated Value and Owners of Property Lost in Karonga Township ......................................................................................................... 76
Table XIII: Nature, Estimated Value and Owners of Property Lost in the City of Zomba ............................................................................................................. 76
Table XV: List of Police Vehicles damaged ................................................................... 76 v
Table XIV: List of Police Formations / Police Officer’s Property damaged or Looted in Lilongwe City ............................................................................................. 77
Table XV: List of Recovered Goods after Looting on 20th July 2011 .......................... 77 vi
LETTER TO THE STATE PRESIDENT
COMMISSION OF INQUIRY ON THE EVENTS OF THE 20TH – 21ST JULY, 2011
Ref. No. CoI/036/Nk 14th June 2012
Her Excellency, the State President Mrs. Joyce Banda
New State House
COMMISSION OF INQUIRY INTO THE DEMONSTRATIONS, DEATHS, INJURIES, RIOTS, LOOTING, ARSON, PUBLIC DISORDER, AND LOSS OF PROPERTY ON THE 20TH AND 21ST JULY 2011
We have the honour to refer to the issuance of a Commission of Inquiry by the former State President Late Professor Bingu wa Mutharika to inquire into the events that occurred on the 20th and 21st July 2011.
In the issue of the Commission, it pleased the former State President to appoint us Commissioners to inquire and report to the President the circumstances leading to and surrounding the demonstrations, deaths, injuries, riots, looting, arson, public disorder and loss of property that occurred in the cities of Blantyre, Lilongwe, Mzuzu, Zomba and the Township of Karonga on the 20th and 21st July 2011.
We have the honour to present to Your Excellency the Report which contains our Findings and Recommendations.
Apostle Timothy Khoviwa
VICE-CHAIRPERSON OF THE COMMISSION
Tel.: 01 772 822 Fax: 01 772 532
Email: email@example.com Communication should be addressed to: The Secretary
C/O MALAWI LAW COMMISSION
PRIVATE BAG 373
LIST OF COMMISSIONERS AND SUPPORT STAFF
Apostle Timothy Khoviwa - Vice-Chairperson
Mr. James Naphambo - Member
Mr. Titus Thyolamwendo - Member
Mr. Levi Mihowa - Member
Mr. Christos Giannakis - Member
Father Raymond Likupe - Member, up to 7th November 2011
Bishop Brighton Malasa - Member, from 12th January 2012
Mr. Allison Mbang‟ombe - Secretary
OTHER SUPPORT STAFF
Mrs. Naomi Khonje - Secretary
Ms. Temwapo Kalinga - Secretary
Mrs. Grace Kantukule - Administrator
Mr. Harry Gunde - Messenger
ACHPR -African Charter on Human Rights and People's Rights
ANPPCAN-Malawi Chapter- African Network for Protection and Prevention of Child Abuse
AYISE- Active Youth Initiative for Social Enhancement
CCAP- Church of Central African Presbyterian
CCJP- Catholic Commission for Justice and Peace
CCDC- Capital City Development Corporation
CSO- Civil Society Organisation
CONGOMA- Council for Non-Governmental Organizations in Malawi
DC- District Commissioner
DHO- District Health Officer
DPP- Democratic Progressive Party
FOND- Forum for New Direction
FMB- First Merchant Bank
HRCC- Human Rights Consultative Committee
ICCPR- International Convention on Civil and Political Rights
MACRA- Malawi Communications Regulatory Authority
MANELERA- Malawi Network of Religious Leaders Living with or Affected by HIV & AIDS MDF- Malawi Defence Force
MTL- Malawi Telecommunications Limited
NEST- National Elections Systems Trust
PTC- Peoples Trading Centre
UN- United Nations UNDHR Universal Declarations on Human Rights
Appendix 1: Summons used to summon witnesses Appendix 2: Commission‟s Press Release Appendix 3: List of persons interviewed by the Commission Appendix 4: Petition presented by the CSOs to Government Appendix 5: Copy of the Injunction Order and Affidavit supporting the Application Appendix 6: Copy of the Press Release by CSO announcing the demonstrations Appendix 7: Copy of the Press Release by CSO announcing that demonstrations were over Appendix 8: List of suspected looters who have appeared before the courts and those who have been convicted Appendix 9: Amount of live ammunition used by the Police during the public disorder Appendix 10: Letter requesting MTL to disconnect some broadcasters written by MACRA xii
The Commission would like to take this opportunity to express its gratitude to the Government of Malawi and its leadership for entrusting us with the task of inquiring into the events that occurred on the 20th and 21st July 2011. This was a great honour for which we are grateful. The Commission also wishes to express its gratitude to the Government of Malawi, in particular, the Office of the President and Cabinet, the Ministry of Finance and the Law Commission, for the human, financial, material and administrative support rendered to the Commission. The Commission would also like to thank all witnesses who testified before the Commission. In particular the Commission acknowledges and appreciates the support from the Police, leaders of Civil Society Organisations and Hospital officials of Kamuzu Central Hospital, Queen Elizabeth Central Hospital, Mzuzu Central Hospital and Karonga District Hospital. The Commission would also like to thank Chief Executive Officers and staff of Blantyre City Council, Lilongwe City Council, Mzuzu City Council, Zomba City Council and the District Commissioner of Karonga District Council for allowing the Commission to use their premises and for their co-operation. The Commission would like to thank the Secretary for the Commission Mr. Allison Mbang‟ombe for managing the whole inquiry and for his guidance, and all the support staff for their untiring efforts to have the Report produced. In his speech during the swearing in ceremony of Commissioners, the former State President indicated that the Commission would be joined by international observers from the United Nations Organisation, Organisation of African Unity and Southern Africa Development Corporation. However, the Interventional Observers did not come and the Commission completed its work without them. xiii
The Commission would like to put on record that the person who was appointed Chairperson of the Commission, Bishop Emeritus Felix Nkhori did not take up his appointment. In his absence, the Vice Chairperson, Apostle Timothy Khoviwa presided over proceedings of the Commission. On a sad note, one of the Commissioners, Commissioner Father Raymond Likupe passed away soon after commencement of the Commission‟s work and in his place, he was replaced by Bishop Brighton Malasa. May His Soul Rest In Peace. xiv
The Commission of Inquiry was appointed by the former State President Professor Bingu wa Mutharika on 7th October 2011, pursuant to the powers conferred on the State President by the Constitution and the Commissions of Inquiry Act. Its broad mandate was to inquire into and report to the President the circumstances leading to and surrounding the demonstrations, looting, riots, arson, public disorder, deaths, injuries and loss of property that occurred on the 20th and 21st July 2011. To execute this mandate, the Commission developed a methodology of information gathering which included public hearings, site visits and press releases in both print and electronic media. Over a period of eight months, the Commission summoned and interviewed One Hundred and Seventy witnesses, who included CSO leaders, medical doctors, media practitioners, victims and relatives of victims, District Commissioners, Chief Executives of City Councils, police officers, selected persons who participated in the demonstrations and volunteers who had information.
The Report covers Findings, Analysis of the Findings and Recommendations of the Commission. In order to come up with the Findings and the Recommendations, the Commission gathered information on events that took place before, during and after the demonstration day. Therefore, over and above the Findings and the Recommendations, the Report also covers a detailed presentation of the events. The Commission‟s Findings were primarily determined by specific Terms of Reference of the Commission. However, since the Commission was also asked to inquire and make any recommendations on any matters as are incidental to, and connected with, the July 20 events, some of the Findings and Recommendations covered in the Report may not have been specifically mentioned in the specific Terms of Reference but are still connected with, and incidental to, the July 20 events. 1
SUMMARY OF THE COMMISSION’S FINDINGS
Findings and Recommendations of the Commission are summarized below.
(a) Causes of the Riots, Arson, Looting and Public Disorder
The Commission observed that several factors contributed to the public disorder of the 20th and 21st July 2011. The Commission however isolated the following as the major factors–
(i) Injunction: The Commission established that the injunction that was obtained on the 19th July 2011 against the demonstrations was ill-timed and created an element of mistrust. Efforts by the police to enforce the injunction led to confrontations with demonstrators and the confrontation degenerated into the public disorder. Further, the injunction diverted the attention of organizers to challenging it instead of controlling the crowd.
(ii) Conduct of the Police: The Commission established that the police used excessive force in certain cases in their effort to quell the situation. The amount of live ammunition used was beyond necessity and resulted into deaths and injuries that could have been avoided. Such use of excessive force is not in tandem with the laws of Malawi and applicable international law. The police also demonstrated lack of sufficient human and material resources as well as lack of crowd management skills.
(iii) Conduct of the Media: The Commission established that some media houses conducted themselves in an unprofessional manner and that contributed to the public disorder. For instance, the State Broadcaster failed to broadcast accurate and balanced information to the public. This deliberate departure from the truth was contrary to the law and only helped to fuel the tension. Secondly, private media houses carried live coverage of the looting, arson and the consequent deaths and injuries as they unfolded, which in the opinion of the Commission incited violence in other parts of the country. These broadcasts were done in contravention of the Communication Act which prohibits broadcasts that are likely to prejudice public order, safety and tranquillity.
(iv) Political intolerance and intimidation: The Commission established that political intolerance and intimidation also contributed to the public disorder. It was noted that the days prior to the July 20, 2011 demonstrations were characterized by statements and actions of intimidation by politicians and
sympathizers of political parties which further fuelled the tensions. The Commission also observed that some of the property and businesses targeted belonged to politicians, more especially politicians from the former ruling DPP or persons perceived to be sympathizers of the party, an indication of political intolerance. The Commission further noted that the "panga boys incident" was a sign of defiance and political intimidation which further raised the tension. Exacerbating the matter was the fact that the incident was never investigated to its logical conclusion by the police, which made people to speculate that the former ruling DPP was behind the incident.
(v) Organizers conduct: The Commission established that poor planning in some cases by organizers of the demonstration contributed to the public disorder. Organizers failed to correctly anticipate the magnitude of the demonstrations and as a result, security arrangements were compromised. In certain instances, Mzuzu for example, demonstrations were hijacked by persons who were not organizers.
(vi) Demonstrators conduct: The Commission established that the conduct of demonstrators in refusing to respect the court injunction in certain areas contributed to the public disorder. For example, demonstrators in Mzuzu started the march before the injunction was vacated. In Lilongwe, demonstrators refused to disperse in the face of the injunction upon being ordered to do so by the police. Although the process of challenging the injunction was under way, the outcome of a court litigation cannot be presumed and therefore the police order should have been respected.
(vii) Xenophobia and Social Economic Hardships: The Commission established that some of the businesses looted belonged to foreigners or persons with foreign origins. For instance, some of the businesses looted in Lilongwe belongs to people from the Asian Community, Rwandese, Burundians and Chinese. The trend was the same in Mzuzu City and Karonga Township. There may be two reasons for this trend. First it may be the case that these businesses were targeted because of the type of goods they stocked which the majority of the populace cannot afford to purchase in which case the Commission opines that one of the causes for the looting may be associated with social economic hardships experienced by the populace. Secondly, it may also be the case that these businesses were targeted merely because they are foreign owned or perceived to be foreign owned and thereby taking away business from Malawians. In which case xenophobia could be one of the reasons why looting took place.
(b) Identities of Persons who died or injured and Circumstances under which the Deaths or Injuries occurred and causes of the Deaths and Injuries
The Commission established that a total number of twenty people died as a result of the public disorder. Two people died in the City of Blantyre, seven people died in the City of Lilongwe, ten people died in the City of Mzuzu and one person died in the Township of Karonga. Out of the twenty people, nineteen died of injuries resulting from gunshots. One person was suffocated by teargas. About fifty eight people sustained injuries. Most of the injuries were due to gunshots or police beatings. The Commission further established that there were no deaths or injuries during the march along the designated route after vacation of the injunction. It was established that most people were killed or sustained injuries when the police tried to quell the public disorder. However, the Commission also established that some victims met their fate while not participating in any of the demonstrations or in any criminal activity. It was also established that amongst the people who sustained injuries were police officers. (c) Loss of Property, estimated Value of the Property and Identity of the Victims The Commission established that due to the public disorder, several people had their property looted and destroyed. The Report has presented the estimated values of the property looted or destroyed where the values were provided, and identities of the victims. (d) Conduct, Proficiency and Operational Effectiveness of the Police in dealing with the Demonstrators, Looters, Rioters and Arsonists In order to determine the professionalism, proficiency and operational effectiveness of the Police, the Commission approached the question from the following angles–
(i) whether the use of force, in particular the use of firearms by the Police was
reasonable and within the legal requirements;
(ii) whether the conduct of the Police demonstrated sufficient capacity to handle
demonstrations of that magnitude; 4
(iii) whether security planning at national and regional levels was satisfactory; and
(iv) whether the Police demonstrated satisfactory crowd control and crowd management skills
(i) Whether the use of force and firearms was reasonable and within legal framework The Commission established that the Police used excessive force. Although it was established that lives of people including police officers were in danger due to the public disorder which may have justified the use of force, the force used was not proportionate to the situation. The action of the Police was therefore contrary to the Constitution, the Police Act as well as applicable international law.
(ii) Whether the conduct of the Police demonstrated sufficient capacity to handle the demonstrations The Commission established that the Police demonstrated lack of sufficient human and material resource to handle the demonstrations. On human capacity, the Commission established that the Police did not have sufficient human capacity to handle the demonstrations. The Commission established that the number of police officers in the Malawi stood at 10,152 police officers at the date of demonstrations and this translates into a civilian- police ratio of 1 to 1,350, which is below the SADC recommended ratio of 1 to 500. On material resources, the Commission established that the Police lacked sufficient non-lethal weapons which resulted into use of lethal weapons. The Police also lacked sufficient logistical equipment like vehicles and communication equipment. The Commission however established that in some cases the Police conducted itself professionally despite the challenges, especially when handling the marches along the designated routes after vacation of the injunction.
(iii) Crowd Management Skills The Commission established that in certain cases, the Police demonstrated lack of crowd management skills more especially in the City of Lilongwe where the police failed to amicably negotiate with the crowd on the action to be taken when news of the injunction was communicated. The police also demonstrated lack of skill in the handling of lethal weapons. Although the Commission was told that the motive was to disable, twenty civilians were killed, a thing that could have been avoided with proper crowd management training. The Commission however reiterates its earlier finding that the Police demonstrated good crowd management skills along the designated marching routes.
(iv) Whether the security planning at national and regional level was satisfactory The Commission established that there were glaring gaps in the security planning. The Police overlooked the issue of refresher training which would have equipped officers with crowd management skills. The Commission observed that of the four regions of the Police, only the Eastern Region saw the need to conduct such training which included simulated exercises. The Commission further established that strategies of cooperation with other relevant agencies, for instance, fire department in the cities and hospitals were kept out of the operational details. As such, hospitals were not prepared and in most cases ill-equipped to handle the casualties. Indeed the Police should have informed first aiders and make them part of the operations.
In addition the UN Basic Principles make the provision of medical aid a necessity whenever use of firearms becomes unavoidable, a requirement which the Commission found missing in the Police‟s logistical plans.1 The Commission further observed that the security plan failed to recognize that a certain amount of unpredictability accompanies any event. An effective plan should have expressly recognized the need for flexibility in the face of rapidly changing circumstances. Related to this, the Police failed to appreciate the importance of intelligence gathering to feed into its planning process and failed to appreciate in advance the magnitude of the demonstrations. As a result of this oversight, the police was overwhelmed resulting
1 Article 5. 6
into desperate measures of asking the military to assist with blank bullets at the eleventh hour and the use of live ammunition.
(e) Findings in relation to the Position of the Law The Commission established that the Police Act makes provision to the effect that–
"Where any person destroys or attempt to destroy or shows a manifest intention of destroying property, a police officer of or above the rank of inspector may order the use of force including the use of firearms.2 The Commission opined that the use of the phrase "or shows a manifest intention" is ambiguous and may render the provision to subjective conjecture and arbitrariness. The Commission was told that the use of firearms by police officers is for purposes of scaring or, where necessary, disabling. This was confirmed by police officers interviewed by the Commission. However, the Commission established that although this is generally understood to be the case by police officers, the law does not make a specific provision on the matter. The Commission therefore finds this as a gap in the law, that should be considered.
2 Section 105(4). 7
SUMMARY OF THE COMMISSION’S RECOMMENDATIONS
Recommendations of the Commission are summarized below.
Recommendations to the Executive
(a) The Commission recommends that the Executive must develop rapid response capability to issues that concern the public. The Executive should put in place effective dialogue and communication channels through its existing structures. It was observed by the Commission that the events of 20th July 2011 could have been avoided if the Executive had timely addressed issues that concerned the nation including issues raised in the petition.
(b) Freedom of expression and assembly must be respected by the Executive. The Commission observed that as a constitutional right, the Executive must not unnecessarily prevent people from exercising this right. Realization of the right includes relevant authorities issuing out approvals to notices without undue delay and without political interference, as long as all legal procedures have been satisfied.
(c) The Commission further recommends that the Executive must make sure that the police is equipped with sufficient non-lethal weapons and appropriate equipment for effective control of riots. Knowing that the Police will have to work in cooperation with other agencies like hospitals and fire brigades, the Executive must also make sure that these relevant authorities are appropriately equipped. Further, government must make sure that human capacity in the police is improved, by among other things recruiting more police officers with the view of progressively achieving the SADC recommended police / civilian ratio of 1 to 500.
(d) The Commission further recommends that the Executive must properly screen foreign investors and prescribe appropriate levels of minimum investment capital. This may assist curbing the problem of xenophobia whose main cause is the perception that foreigners are engaging themselves in small to medium enterprises effectively taking business away from locals. Related to this recommendation, the Executive should, within the framework of applicable international law, ensure that refugees are 8
repatriated once conditions in their native countries allow and must regulate the nature and type of business carried by refugees so that they should not be perceived to be in competition with locals in running small and medium enterprises. The Commission observed that doing so is not in contravention of international law as long as the regulation is applicable to all people who are in the same circumstances and is not unnecessarily prohibitive. (e) The Executive must make sure that police officers who were responsible for the deaths and injuries are thoroughly investigated and prosecuted where unlawful conduct is established. Indeed any person suspected to have been responsible for any unlawful conduct before, during and after the demonstrations must be investigated and where necessary, prosecuted. These investigations must be broad enough to cover persons suspected of looting and damaging property and the "panga" incident that occurred on the 19th July 2011 in Blantyre. (f) The Executive should ensure that eligible victims of the public disorder are compensated. These include people who lost their loved ones, people who sustained injuries and those who lost property. The eligibility for compensation must be based on objective assessment of each case, without political consideration. The Commission is also aware of the provisions of the Police Act on liability for damages, which states that conveners of demonstrations are liable for damages resulting from the demonstration. The Commission‟s recommendation therefore does not in any way negate the application of this provision. As already recommended compensation should be based on the facts of each case. (g) The Executive should facilitate the establishment of an insurance agency that would indemnify victims of political riots as it was established that insurance companies have refused to compensate such victims. This insurance agency may be established along the one found in South Africa which is called South Africa Special Risk Insurance Agency [ASASRIA] which was established to compensate people who may lose property due to political riots. 9
(h) The Commission acknowledges the efforts made by the current government in making the State Broadcaster independent and professional. The Commission recommends that duty bearers must implement the directive without reservations.
(i) The Commission observed that the Malawi Police Service is public property. Therefore the Commission recommends that its independence must be respected at all times.
(j) The Commission recommends that the Executive should initiate the amendment of the Police Act in line with the observations of the Commission.
Recommendations to the Judiciary
The Commission is aware of the professionalism the Malawi Judiciary has always demonstrated. However, although it is the Judiciary‟s inherent power to provide effective remedy to litigants, the Commission recommends that the Chief Justice should consider developing practice directions in the area of injunctions.
Recommendations to the Malawi Police Service
(a) The Malawi Police must strive to be an independent institution and must appreciate the fact that it was established to serve and not to intimidate the public or to act as an arm of a ruling political party.
(b) A comprehensive policy and operational guidelines in connection with crowd control generally and specifically, on the use of firearms, must be developed to compliment the provisions of the Police Act. This is very critical knowing very well that there is always the possibility that a public assembly may become unruly, which may result in loss of life and damage to property. The policy must among other things, cover standard operational procedures with respect to planning for mass demonstrations and crowd management. 10
(c) Police officers must be trained in crowd control techniques at the police college, with continued refresher courses and on-job training. In particular, the training must cover issues of human rights, negotiation skills and basic first aid skills. (d) Where death occurs or serious injury is sustained due to the use of force by a police officer, the police officer responsible must promptly report to his superiors and measures must be taken to inform relatives of the victim as soon as it is practicable so to do. Further, prompt investigations must be conducted to determine the circumstances of the death or injury and the responsible officer(s) if not yet known and appropriate action taken where necessary.
Recommendations to District Commissioners and Chief Executives of the City Councils
(a) District Commissioners and Chief Executive of City Councils must appreciate that holding a peaceful demonstration is a constitutional right that must be upheld. They must be aware that they are duty bound by law to promptly respond to notices provided by conveners of demonstrations. Unnecessary delays in responding to notices will always compromise planning processes and security arrangements and may lead to loss of trust. (b) The Commission also recommends that approvals for demonstrations should always be backed by a "demonstration contract" signed by conveners of the demonstration and facilitating authorities, clearly stating responsibilities of the parties with outlined consequences for contravening the contract, complementing the responsibilities outlined in the Police Act and other relevant laws. (c) All approvals for demonstrations must be written and not verbal. Once an approval is given, planning meetings with all relevant agencies must promptly be held.
Recommendations to Organizers of Demonstrations
(a) Organizers should always familiarize themselves with the law, especially the Police Act before convening an assembly or demonstration. 11
(b) In the planning process, the possibility of the assembly or the demonstration being cancelled or postponed, should always be considered and taken into account and measures must be put in place for such eventualities, including communication strategies, dispersal strategies and civic educating demonstrators of this possibility. Further, organizers must always provide civic education to demonstrators that the right to assemble and demonstrate has corresponding responsibilities which must be upheld. (c) Organizers must always have a clear picture of the number or approximate number of people to participate in the assembly or demonstration for security and other arrangements. In addition, holding simultaneous demonstrations in several centres/cities must be reconsidered. The Commission observed that if the demonstrations were staggered over a number of days, the police‟s meagre resources may have coped with the demonstrations. (d) Organizers must make sure that sufficient number of marshals are provided with proper leadership to guide and control demonstrators. In addition, organizers must make sure that the demonstration is not hijacked by people who are not part of the organisation. Where demonstrations take place in several centres, organizers must make sure that the organizing team at each centre is fully conversant with the procedures and shared responsibilities for the demonstration; and each organizing team must have capacity to effectively handle the demonstration in coordination with relevant authorities. (e) Organizers must always adhere to the agenda of the demonstration as communicated to authorities. Recommendations to Media Practitioners and Regulators (a) Media practitioners must be sensitive with their broadcasting and must adhere to their code of ethics and terms and conditions of their respective licences. (b) Independence of the State broadcaster must be entrenched and applied at all times. 12
(c) MACRA should also demonstrate independence, professionalism and impartiality in the application of rules and laws affecting media houses. (d) Owners and directors of media houses should be capable of exercising their oversight responsibilities. 13
STRUCTURE OF THE REPORT
Chapter One of the Report is Introduction. This Chapter presents background information on Malawi. The Chapter also outlines the specific Terms of Reference of the Commission, the methodology adopted by the Commission and scope of the Inquiry. Chapter Two is a narrative of events surrounding the demonstrations, riots, looting. public disorder and the consequent loss of lives and injuries. The chapter is sub-divided into two Parts. The first Part takes stock of events that took place before 20th July 2011 demonstrations. The second Part narrates events that occurred on the 20th and 21st July 2011. The information presented in this Chapter forms the basis on which the Commission Findings and Recommendations are founded. Chapter Three presents the Commission‟s Findings and Analysis of the Findings. The Findings and Analysis of the Findings are primarily based on the Terms of Reference of the Commission and other relevant matters. The Chapter is subdivided into six parts. The first part discusses what the Commission found to be the general causes of the riots, looting, public disorder and the consequent deaths and injuries. The second part presents the Commission‟s findings as to the causes of the deaths and injuries and the identities of the dead and the injured persons. The part also presents what the Commission found to be circumstances under which the deaths and injuries occurred. The third part presents the identities of the owners of properties that were looted or destroyed during the public disorder, including their values. The fourth part is a detailed discussion on the conduct, proficiency and operational effectiveness of the Police in dealing with the demonstrations, arson, looting and the riots. In the fifth part, the Report presents the Commission‟s findings as regards to the conduct of the media and other players and its impact before, during and after the demonstrations, arson, looting, riots and the public disorder. The sixth and final part of the Chapter is a discussion on what the Commission finds to be problematic areas of the Police Act. Chapter Four is the Commission‟s Recommendations. The Commission has directed its Recommendations to the Executive, the Judiciary, the Police, Organizers of demonstrations, District Commissioners and Chief Executives of City Councils and Media practitioners. 14
1.1 Background Information
Malawi has a democratic, multi- party government. A former British protectorate, formerly known as Nyasaland, it became independent on 6th July 1964 and a Republic on 6th July 1966. The first President of the country was Dr Hastings Kamuzu Banda who ruled the country for thirty years up to 1994. In 1971, Parliament declared Dr. Hastings Kamuzu Banda Life President of the country. The Malawi Congress Party was then the only allowed political party in the country and the country continued to be a one – party state until 1994. Dr H. Kamuzu Banda‟s rule was characterized by arbitrary arrests of political opponents and general abuse of human rights. In March 1992, a pastoral letter issued by Malawi's Catholic Bishops decried the oppressive policies of the dictatorial Malawi Congress Party regime under Dr. Banda. This initiated a movement for political change. Major donors added pressure in May 1992 by suspending non-humanitarian assistance to Malawi. Reluctantly, the Malawi Congress Party Government gave in to demands for a referendum to elicit people's opinion on the continuation of a one-party state. In a referendum, held on June 14, 1993, more than 60 percent of Malawians voted to change to a multi-system of governance. Two new parties, the United Democratic Front (UDF) and the Alliance for Democracy (AFORD), gained prominence. Subsequent to the Referendum, a new Constitution, which provides for a presidential system of government and guarantees fundamental human rights including freedom of speech, freedom of assembly and freedom of association was provisionally adopted in 1994, and permanently adopted in 1995.
Malawians went to the polls under the new Constitution on May 17, 1994 to elect a new Parliament and a President by universal adult suffrage. The UDF President, Dr. Bakili Muluzi became Malawi's first democratically elected President for a five-year term. Dr Bakili Muluzi 15
was re-elected for a second and final term of five years in 1999.3 Although he tried to stand for a third term through a Bill known as the Third Term Bill, he was forced to concede defeat and the party paved way for Professor Bingu wa Mutharika to run on the UDF ticket. Professor Bingu wa Mutharika won the 2004 race beating four other contenders. While in Government, President Bingu wa Mutharika immediately ditched the UDF party because of disagreements in policies and formed his own party called DPP which then became the ruling party. In 2009 the DPP won the general elections, giving President Bingu wa Mutharika another five year term rule. Sadly, President Bingu wa Mutharika passed away in April 2012 and by operation of the Constitution, the Vice President, Madam Mrs. Joyce Banda became the President of the country for the rest of the term. The electoral system in Malawi is a majoritarian, first-past the –post system. The President is elected directly with the First Vice President as running mate, and the two are elected simultaneously with members of parliament. The Second Vice President may be appointed by the President if he or she so chooses, although he or she must be from a different party from that of the President and the Vice President. Branches of government in Malawi consist of Executive, Legislative and Judicial. The Executive Branch includes the President who is both head of state and head of government, the First and Second Vice Presidents and a Cabinet. Members of the Cabinet are appointed by the President and can be from either inside or outside of the legislature. The Legislative Branch consists of a unicameral National Assembly and members are elected every five years. The independent Judicial Branch consists of a Constitutional Court, a High Court, a Supreme Court of Appeal and subordinate Magistrate Courts. The legal system is based on the British Common Law System. .
3 Section 83 of the Malawi Constitution provides that the President shall save in their respective capacities for a maximum of five consecutive terms.
During the year of 2010, the country started experiencing, economic, social as well as political problems. In a nutshell, some of the problems were- shortage of foreign- exchange, 16
shortage of fuel, perceived lack of respect for the rule of law by the Executive, failure to conduct local government elections, passage of unpopular bills by Parliament, and perceived economic mismanagement. On their part, CSOs under the umbrella of CONGOMA, requested to meet the State President to raise their concerns. Meetings were therefore held between the State President and CSOs on 23th February, 2011 and 19th April 2011. It seems the meetings did not bear any fruits as the solutions proposed by CSOs were never implemented by the Government. This perceived failure by government to address the issues raised by CSOs prompted some CSOs now under the umbrella of HRCC to call for a mass demonstration. The objective of the mass demonstration was to present a petition by the masses to the State President through relevant government offices. On 20th July 2011 therefore, Malawians conducted the mass demonstration and presented the petition to government through relevant authorities The petition highlighted issues relating to economic and social situation, as well as political governance in Malawi. The planned demonstrations however degenerated into riots, public disorder, and arson especially in the cities of Blantyre, Lilongwe, Zomba, Mzuzu and the Township of Karonga. As a result of this public disorder, several people were killed and injured and others lost property. It therefore pleased the former State President late Professor Bingu wa Mutharika to appoint a Commission of Inquiry to investigate the circumstances leading to and surrounding these events. (In this Report otherwise referred to as the Commission).
1.2 Appointment and Membership of the Commission
The Commission was appointed by the former State President, late Professor Bingu wa Mutharika on 7th October 2011 pursuant to powers conferred on him by the Constitution of Malawi as read with the Commission of Inquiry Act4 and it was sworn in on 25th October 2011. Membership of the Commission was as follows–
4 Section 89 (1)(g) of the Constitution gives power to the President to appoint Commissions of Inquiry. In addition, section 2 of the Commission of Inquiry Act (Cap. 18:01, Laws of Malawi empowers the President to appoint one or more Commissioners and authorizing such Commissioner or Commissioners to inquire into any matter in which an inquiry would be for the public welfare. 17
(a) Bishop Emeritusi Felix Nkhori - Chairperson;5 (b) Apostle Timothy Khoviwa - Vice Chairperson; (c) Mr. James Naphambo - Member; (d) Mr. Titus Thyolamwendo - Member; (e) Mr. Levi Mihowa - Member; (f) Mr. Christos Giannakis - Member; (g) Father Raymond Likupe - Member up to 7th November 2011 (h) Bishop Brighton Malasa - Member; from 12th January 2012 (i) Mr. Allison Mbang‟ombe - Secretary The Commission‟s mandate as contained in the Terms of Reference were as follows–
5 But he did not take up his appointment.
(a) To inquire, and report to the President the circumstances leading to and surrounding the demonstrations, riots, looting, arson, public disorder, injuries and deaths that occurred in the cities of Blantyre, Lilongwe, Mzuzu and the township of Karonga on 20th and 21st July, 2011, including the following–
(i) the various events and occurrences that transpired before, during and after the riots, looting, arson, public disorder, deaths, personal injury and loss of property including the demonstrations;
(ii) the cause of the riots, looting, arson, and public disorder;
(iii) the leaders of the riots, looting, arson and public disorder;
(iv) the manner in which the riots, looting, arson, and public disorder were co-ordinated;
(v) the financiers, if any, of the riots, looting, arson, and public disorder;
(vi) the relationship, if any, between the demonstrations, the on the one hand, and the riots, looting, arson, and public disorder, on the other hand;
(vii) the identities of all persons that led and coordinated the demonstrations, riots, looting, arson, and public disorder;
(viii) the identities of all persons who died or injured during the riots, looting, arson, and public disorder;
(ix) what the individuals were doing at the time of their death or injury;
(x) the cause of each death or injury;
(xi) the properties that were looted or burnt during the riots, looting, arson, and public disorder;
(xii) the identities of the owners of the properties that were looted or damaged during the riots, looting, arson, and public disorder;
(xiii) the value of the property looted or burnt during the riots, looting; arson;
(xiv) the conduct, proficiency, and operational effectiveness of the police and other security agents in dealing with the rioters, looters, arsonists and demonstrators;
(xv) the conduct of the media and its impact before, during and after the riots, looting, arson, and public disorder,
(b) To make any inquiry and make any findings and recommendations as are incidental to and connected with the riots, looting, arson and public disorder that occurred on 20th and 21st July, 2011 or any matter connected therewith; 19
(c) To produce a written Report with recommendations and present such Report to the President. Consequently, the Commission was bound by what is included in the mandate and investigations reflected in this Report are within the scope of the mandate.
In addition to these specific Terms of Reference, the Commission of Inquiry was guided by the Commissions of Inquiry Act. The Commission of Inquiry Act empowers Commissions of Inquiry to develop procedures of their work. Pursuant to this power, the Commission developed its methodology as follows– (a) Summoning of Persons or organizations to be Interviewed
Persons or organizations to be interviewed were summoned by prescribed summons. Service of the summons was personal, by express mail or by fax.6 (b) Public Hearings
6 A copy of the summons is attached to this Report as Appendix 1. 7 However, the Commission having embraced transparency as a cornerstone of the proceeding, kept hearings in camera to a minimal and conducted four hearings in camera at the request of the witnesses.
The Commission conducted its interviews through public hearings. The Commission came up with a list of persons and organizations to be interviewed. The listed persons and representatives of the listed organizations were summoned by the Commission and interviewed on any matter relating to the subject matter of the inquiry. At the discretion of the Commission and upon request by the person to be interviewed, some hearings were conducted in camera.7 Each person summoned for a hearing was required to make and subscribe an oath or affirmation before interviews were conducted to ensure honest disclosure of material facts. 20
(c) Hearsay Evidence Being a Commission of Inquiry, the Commission took a decision not to apply strict rules of evidence. As such, the Commission accepted hearsay evidence. However such evidence was used solely for purposes of unearthing potential witnesses or further evidence but has not been used in arriving at the Commission‟s findings and recommendations. (d) Other Inquiry Tools employed by the Commission The Commission also employed the following inquiry tools, in addition to the public hearings–
(i) Print Media : A Press Release was put in two newspapers of mass circulation calling for information relating to the subject matter of the inquiry;
(ii) Telephones: The Commission came up with two dedicated telephone lines to be used by persons having information on the subject matter of the inquiry. Numbers for these lines were published in two newspapers of mass circulation together with the Press Release;8
8 A copy of the Press Release is attached to this Report as Appendix 2. 9 It must be noted that currently, Malawi has only one television station run by the State.
(iii) Mailing Address: The Commission also provided a mailing address through which the public was requested to send information. Again this mailing address was part of the Press Release;
(iv) Electronic Media: In addition to the print media, the Commission recognized the power and coverage of electronic media. Therefore, calls for information and volunteer witnesses were done through various radio stations as well as the state television9; and
(v) Site Visits: The Commission conducted site visits in some areas where property was lost or damaged to determined value, ownership of the properties and circumstances under which the properties were lost or damaged.10
10 Due to time constraints, the Commission was not able to visit each and every site, but some randomly selected sites. 11 The recorded interviews have been submitted to the appointing authority together with the Report.
(e) Recording of Interviews
The Commission, with the assistance of Ministry of Information, recorded every interview. The Verbatim Reports of‟ the interviews have been produced and have been a point of reference throughout this Report.11 (f) Analysis of Findings Having finalized the fact finding assignment, Commission meetings were held to analyze and evaluate the information gathered. The outcome of the analysis is what forms the bulk of this Report. (g) Legal Representation Persons summoned for interviews were, with the approval of the Commission, and taking into account nature of the subject matter, allowed to be accompanied by a legal representative. The role of the legal representative was to advise the interviewed person about his or her legal rights, where necessary. (h) Quorum, Leadership and Decision Making Quorum in all proceedings was formed with the presence of four Commissioners. The proceedings were presided over by the Vice-Chairperson. The Commission‟s findings and recommendations were by general consensus of the Commissioners present and forming quorum. Although the procedure provided room for decision making by majority of the Commissioners present and forming quorum, this provision was not tested. 22
(i) Meetings of the Commission The Commission met for five days once or twice a month for a period of eight months. During the meetings, the Commission conducted public hearings, scrutinized the findings and developed the Report.
1.4 Scope of the Inquiry
Having agreed and adopted the methodology, the Commission commenced its hearings on the 27th November 2011.
Public hearings were conducted in the districts of Blantyre, Zomba, Lilongwe, Mzuzu and the township of Karonga. The Commission selected these places for its hearings based on the level of riots, loss of life and property that occurred in the areas. Over a period of seven months, that is to say, from its first hearing in November to the last hearing in May, the Commission was able to summon and interview One Hundred and Seventy witnesses.12 These included persons whose property was lost or damaged, organizers of the demonstrations, District Commissioners, Chief Executives of the City Councils, medical practitioners, media practitioners, relatives of persons who lost their lives, police officers, politicians, persons who sustained injuries and volunteers.In addition to the public hearings the Commission undertook desk research to determine the applicable national as well as international laws, policies, guidelines and practices in the areas related to the inquiry.
12 The list of the persons summoned and interviewed is attached to this Report as Appendix 3. 23
NARRATIVE OF EVENTS AND REASONS FOR THE MASS DEMONSTRATIONS
This Chapter presents a narrative of events that took place before the day of the demonstrations, on the day of the demonstrations and after the day of the demonstrations. The Chapter is divided into two Parts. Part I provides a narrative of events that preceded the day of the demonstrations. Part II provides a narrative of events that occurred on the day of the demonstrations and events that occurred after the day of the demonstrations. Subsequent matters arising from these events are covered in the remaining Chapters.
2.2 Reasons For The Mass Demonstrations And Events That Took Place Before The Mass Demonstrations
2.2.1 Reasons for the Mass Demonstrations The July 20 mass demonstrations were organized by CSOs under the umbrella of HRCC. The objective of the demonstration was to present a list of grievances to the President of the country. The idea of the mass demonstrations was mooted following what was perceived to be failure by government to address economic, social and governance issues affecting the country. According to the testimony of some CSO leaders, these issues were discussed at a meeting which took place on the 23rd of February between the former President and CSOs. The meeting was followed by yet another meeting on 19th April 2011 after which the former President assured CSOs that he would reply to the concerns raised within a period of one month. In his testimony, Mr Voice Mhone, Chairperson of CONGOMA told the Commission that–
"......the genesis is that in February 2011 we came together as CSOs and we organised a demonstration but permission was not granted so that demonstration was foiled. But we given an audience to go and meet the president. So I led a team that went to meet the president in February. We presented a petition. From there we indicated that we needed to get answers on the ground, if not, we will organise 24
another demonstration. The CONGOMA sought another audience with the President in April. That audience was to follow up on the petition that was presented in February as well as to articulate issues that were on the ground. We attached the solutions that we felt might help to avert the problems. Then we went back to our constituency and sat down waiting for a response as the president had indicated to us to say I will come back to you within one month and I am going to call for my Cabinet to sit and see how together they can be addressed (sic)".13
13 Verbatim Report, Lilongwe Proceedings, p. 275. 14 Source: Minutes of the Meeting. 15 Source: Interview with Civil Society Leaders, Verbatim Reports.
It was the testimony of CSOs leaders that after waiting for one month as promised by the President and having noted that nothing was done on the issues raised, a meeting of CSOs belonging to HRCC thematic group was arranged to discuss their next action. It was at that meeting that the idea of mass demonstrations was put forward and it was agreed that the demonstration should indeed take place and the date of 20th July was considered to be the appropriate date.14 A press release was therefore put in the news advising the nation of the impending mass demonstrations.
A petition, highlighting key concerns and recommendations was collectively drafted and having been endorsed by CSO leaders. Plans were put in place for national wide demonstrations during which the said petition would be delivered to the President through relevant government offices.15 Issues raised in the petition covered areas of political and economical governance, rule of law, social and human and included the following specifics–
(i) shortage of fuel;
(ii) economic mismanagement;
(iii) corruption and abuse of power;
(iv) shortage of foreign exchange;
(v) disrespect of rule of law;
(vi) failure to conduct local government elections;
(vii) political intolerance and violence;
(viii) power interruptions; and
(ix) the University of Malawi crisis.
In their petition, CSOs urged government to address the issues within a reasonable period of time. The petition observed that failure by government to address the issues would result in deplorable state of human rights, human security and overall development. Consequently, the following demands were put in the petition–
(i) Government should sell the Presidential Jet;
(ii) Government should reduce foreign trips by the President, Ministers and public officers;
(iii) Government should ban importation of luxury vehicles for the President, Ministers and other public officers;
(iv) Zimbabwe should immediately repay the US$20million for the maize supplied by Malawi Government;
(v) Government should scrutinize previous fertilizer imports and track down the fairness in the pricing. All those responsible for price inflation must account for their malpractice;
(vi) companies or organisations that import and use large amounts of fuel should use their own foreign exchange reserves to avoid putting pressure on the country‟s foreign exchange reserves;
(vii) the pricing system and exportation of uranium by Paradin should be reviewed and monitored so that the country benefits from the exportation;
(viii) Gemstone exports should be monitored closely by trained experts to ensure that fair values are being declared so that the country benefits from such exports;
(ix) Government should liberalize the importation of fuel so that other entrepreneurs are able to import it in addition to Petroleum Imports Limited;
(x) The President should reduce the Cabinet to a reasonable size;
(xi) it may be necessary, in the short term, to listen to the International Monetary Fund and devalue the Malawi currency in order to gain their approval which would then open doors for other Donors to come in and pump much needed Foreign Exchange into the Malawi‟s flagging economy; and
(xii) it is essential to immediately mend fences with long-term development partners, the British Government, by amicably resolving the diplomatic row and making amends. Their contribution to Malawi economy is too significant to shrug off with cavalier disdain especially when it means that the poorest sections of society will be worst afflicted by the suspension of the British aid;
The CSOs proposed the time frame for the implementation of the recommendations as follows–
(i) within reasonable time, government should adopt measures and actions so that there is availability of and access to Foreign Exchange;
(ii) within reasonable time, government should adopt special measures to avail adequate forex to Petroleum Importers Limited and other suppliers so that they are able to import fuel without interruption;
(iii) within reasonable time, the ESCOM Board and its top management should be replaced with independent experts who, within 3 months, must demonstrate the capacity to address the acute electricity shortages. In addition, government should form a consultative forum to solicit input from all stakeholders who may have valuable information, ideas and new concepts with which to tackle the issues of capacity and cost of power generation;
(iv) within reasonable time the Anti corruption Bureau should commence an investigation of all people implicated in the recent Malawi Housing house sale scandal;
(v) The Anti Corruption Bureau should start investigating cabinet ministers and public servants on the unexplained wealth that some seem to have
accumulated whilst holding office. The Penal Code (sic) calls upon all citizens to explain the source of their wealth, All moneys stolen should be returned;
(vi) within 1 month; the President should fully declare his assets, explaining sources of funds used to acquire and develop Ndata Farm;
(vii) The First Lady's contract should be nullified and all earnings refunded back to
(viii) The Law Commission should set up a special Law Commission to revisit the
Penal Code and the Injunctions Bill, which should lead to submission of recommendations within reasonable time;
(ix) The President should demonstrate good faith towards the Office of the Vice-
President, starting with the returning her official motorcade;
(x) The Government should commit itself to the to holding Local Government
Elections immediately and not in 2014 as announced;
(xi) The University Council should immediately reinstate the four lecturers dismissed during the academic freedom stalemate, and issue a statement committing that no spies will be allowed in the lecture rooms;
(xii) Government should issue a circular nullifying the instruction to require a deposit of MK 2,000,000 for mass demonstrations;
(xiii) Government should immediately stop unfair usage of the public broadcaster to castigate and threaten those with dissenting views;
(xiv) Executive arm of Government should immediately stop disregarding court orders;
(xv) Government should immediately provide drugs in all hospitals and clinics as lack of drugs is frustrating health/care workers and patients;
(xvi) Government should immediately address the capacity gap of nurses;
(xvii) Government should immediately address incentives for Nurses three hundred nurses have not been paid their allowances for 3 years now;
(xviii) Government should consider introducing a living wage as opposed to a minimum wage which should be at MK25,000 a month;
(xix) Government should create decent jobs and conditions for all workers; and
(xx) Government should introduce social protection system for the good of welfare of Malawians.16
16 Source: The petition presented by the CSOs and public interviews conducted by the Commission, Appendix 4.
2.2.2 Organization and planning of the Mass Demonstrations
The mass demonstrations were organised under the umbrella of HRCC which is currently chaired by Mr. Undule Mwakasungula. Regional organising committees were formed which were given the responsibility of organising the mass demonstrations in their respective regions. In the Southern Region, the organising committee included Mr. Rafiq Hajat of IPI, Mr. Unandi Banda of NEST, Mr Ken Williams Mhango of AMPPCA. Mr Billy Banda of Malawi Watch, Mr. Marcel Chisi of AYISE and Mrs. Margret Ali of HRCC. The organising committee for the Central Region comprised of Mr. Undule Mwakasungula of HRCC, Reverend MacDonald Sembereka of MANELERA and Mr. Robert Mkwezalamba of MCTU, The organising committee for the Eastern Region comprised of Mr. Lawrence Bisika, businessman and concerned citizen, Mr. Christopher Jana, concerned citizen, Mr. MacBennie Mkandawire for Youth Net and Counselling and Mrs. Jessie Kabwila of University of Malawi. While the organising committee for the Northern Region comprised Mr. Moses 29
Mkandawire of Church and Society, Livingstonia CCAP Synod. Mr Msimuko of CCJP, Mr. Silungwe of FOND, Mr. Bita Mumba of Young Politicians Association, Mr. Muteo Banda and Boniface Bonjero of Youth Watch. Each organising committee was mandated with the following roles–
(i) to facilitate communication and campaign for the demonstrations;
(ii) to obtain all necessary approvals from relevant authorities in line with legal requirements; and
(iii) to discuss and agree with relevant authorities on logistical issues including security and marching routes.
A letter requesting for authority to demonstrate was written by HRCC and faxed to relevant authorities in the proposed demonstration centres which, according to testimonies, was received on the 13th of July 2011.17 Initially the position of Government was that the demonstration must not take place. The Commission was told that the late State President requested to persuade CONGOMA to cancel the demonstrations and to instead allow room for a public lecture which the President intended to hold on the day of the demonstrations.18 The President however later directed that demonstrations should go ahead as planned. Mr. Kelvin Mmangisa, Chief Executive of Lilongwe City Council testified as follows–
17 See Mr Richard Hara‟s testimony, Verbatim Report, Mzuzu Proceedings p. 2. 18 Voice Mhone‟s Testimony, Lilongwe Proceedings p. 276. 19 Source Verbatim Report, Lilongwe Proceedings p. 2.
"...I wrote them a letter advising them that we are not permitting them to demonstrate. Before I sent them the letter, I received a word from the Minister of Local Government that we should not stop them from demonstrating. I was called to Police Headquarters and agreed that we meet the District Commissioner and the Organising Committee [....] so that we look at how best we could handle the issue ..19 30
2.2.3 Planning Meetings Planning meetings therefore commenced between members of the Organising Committees and Chief Executive of City Councils, District Commissioners and police officers, where issues such as security and matching routes were discussed. Meanwhile, another planning meeting took place between the Inspector General of Police and senior police officers at Police Headquarters on the 18th of July 2011. This meeting was called by the Inspector General himself. According to the Inspector General‟s testimony, the meeting provided an opportunity for police officers to brief the Inspector General on their security plans. The meeting also afforded the Inspector General an opportunity to provide policy direction to the officers on how to manage the demonstrations. On that point, the Inspector General stated as follows about this planning meeting– "At that meeting I explained to them that it is our responsibility as police to facilitate all peaceful demonstrations because this is a right enshrined in the Constitution. The Commissioners also gave their reports on how they were getting prepared on the demonstrations. Issues of resources were mentioned and I must also explain that before calling for the meeting we took an initiative to contact our brothers, the Malawi Defence Force for the provision of blank ammunition. As I stated, I believe that our responsibility is to facilitate a peaceful demonstration and what we thought was that if there could be some disorders we could handle it by using non-lethal means hence the request of these blank ammunitions from our brothers from the Army."
On the 19th of July, 2011, another meeting took place at the State House. The meeting was called by the former State President and in attendance was the former Inspector General of Police, Mr. Peter Mukhito, the former Army Commander, General Mark Chiziko and the former Minister of Internal Affairs, Honourable Aaron Sangala, MP. The purpose for the meeting was for the State President to appreciate the level of security preparedness. The President was briefed on the security arrangements and he once again allowed the demonstrations to proceed as scheduled.20
20 Source: Verbatim Report, Interview with the Inspector General of Police p. 104. 31
2.2.4 Role Played By Other Players Before The Demonstration Day. (a) The Media
The media also played a very significant role before the mass demonstration day. The media broadcasted and wrote about the demonstrations and publicised the demonstrations. Such broadcasts and articles had significant impact on the day of the demonstration. In addition to the broadcasts, news coverage and articles, for both organisers of the mass demonstration and those against aired their views through the media.21 (b) Politicians
21 Source: Nation Newspaper, 8th July 2011, Nation Newspaper, 13th July 2011, Nation Newspaper, 14th July 2011. It was also the media that broadcasted news about the injunction on the eve of the demonstration day. 22 Source: Nation Newspapers, July 19th 2011. 23 Nation Newspaper of 13th July 2011 quoted UDF and PETRA leaders. 24 Nation Newspaper 14th July 2011.
Several politicians both from the government side and the opposition side spoke about the demonstration. While politicians from the government side spoke against the demonstration, the opposition side supported the demonstration. For instance the Malawi Congress Party supported the demonstration and announced that they would take part, citing sufferings that Malawians are undergoing and unfavourable laws passed by Parliament.22 Indeed other opposition parties also made their support for the demonstrations open when they made announcements through the press that they would participate in the demonstrations.23 However at the request of demonstrations politicians who participated in the demonstrations did not participate in their capacity as party representatives, who made it clear that they did not want the demonstrations to be politicised. (c) Other Concerned players
On the 14th July 2011, the media reported that a group of people calling themselves „Concerned People‟ were planning to hold a counter demonstration in support of Government.24 Indeed a press conference was held by Mr. Charles Kanyoza who advised all those people who were against the CSO led mass demonstration to participate in the counter 32
demonstrations.25 On the 19th of July, a group of youths carrying „panga knives‟ were seen in the City of Blantyre in a vehicle belonging to the former ruling DPP. The Commission was told in evidence that one person was injured by the „panga boys‟.26 However, in an interview with the Commission, leaders of the ruling party distanced themselves from the event. Although the car that was used belonged to the party the leaders argued that the party never sanctioned anything of that nature. Mr. Wakuda Kamanga, the Secretary General for the party had this to say when asked by the Commission–
25 Source Nation Newspaper 14th July 2011. 26 Mr. Kasunda‟s Testimony, Zomba Proceedings p. 96. 27 Verbatim Report, Lilongwe Proceedings p. 288. 28 Verbatim Report, Zomba Proceedings, p. 118. 29 Ibid.
"the DPP as a party didn’t know, didn’t arrange anything like that. I will be quick to mention that as a party we restrained all our members that you shall not plan anything in the name of a demonstration, whether in solidarity of the DPP, you just be quite and watch what would be happening by the civil society"27 But the fact that the panga boys were DPP Youths was not disputed by the Regional Governor of the party Mr. Noel Masangwi who told the Commission the following–
"That time I was in Zomba in my brother’s constituency, that was around twelve or if not one o’clock if my memory recalls it well, when Daily Times phones me to say, the DPP Youths are on the streets on Chipembere Highway"28 He went on to say–
"Normally they have their regional meetings, youth regional meetings every week and this particular day, they had their meeting in the morning at our Regional Office. Then after the meeting I think, I understand they were going to drop each other mainly those who stay in Machinjiri. So on their way, I understand that they had some "panga knives" in their hands. That’s all I know about that particular incident"29 33
2.2.5 Public Announcements by CSOs and the Malawi Police Service
The mood for the demonstration was set and organisers of the mass demonstrations published a press release on the 18th July 2011.30 The press release was intended to inform Malawians and various stakeholders about the mass demonstrations to take place on the 20th July 2011 in all the four regions of the country. The announcement further stated that the demonstrations were organised to express alarm regarding economic and democratic crises facing Malawi, with the aim of calling for an end to poor economic and democratic governance facing the country. In addition, the press release detailed out all matching routes to be used in the four regions and appealed to all Malawians to be peaceful during the demonstrations.31 The Malawi Police Service on its part made an announcement assuring the nation that the police will provide maximum security during the demonstrations. 2.2.6 Injunction Stopping The Mass Demonstrations
30 Appendix 6: Copy of the Press Release. 31 Source: Nation Newspaper, 18th July 2011. 32 Mr Mbekeani‟s testimony. 33 Appendix 5: Copy of the Injunction Order.
In the afternoon hours of the 19th July 2011, the High Court in Lilongwe granted an injunction against the organisers of the demonstrations effectively stopping them from proceeding with the demonstrations. The injunction was granted based on an Ex-parte application made by Mr. Chiza Mbekeani. According to court documents made available to the Commission and Mr. Chiza Mbekeani‟s testimony, he obtained the injunction to protect lives and property because according to him, demonstrations in the past have never been as peaceful as people would have wanted.32 Thus the injunction was granted at or around 16:00 hours on 19th July 2011.33
2.3 Events That Took Place On The Day Of The Mass Demonstrations And After The Day Of The Mass Demonstrations
The following paragraphs detail out events that took place in the designated demonstration centres. 34
2.3.1 Events That Took Place in the City of Blantyre On the day of the demonstration, people gathered in the morning around the Old Town Hall as agreed and as indicated in the Press Release. As the crowd began to grow, organisers received information that there was an injunction stopping the demonstrations obtained by a Mr. Chiza Mbekeani which was granted by the High Court in Lilongwe. Upon receiving this information, some organisers of the demonstrations still wanted to proceed with the matching arguing that they would only respect the injunction if a copy of the injunction is presented to them . In his testimony Mr. Rafiq Hajat said and we quote–
"There is a photograph in that collection where you see me with the police officers and the police officers holding my hand... and I am telling him that you can not prevent me from walking on the streets. I am going to walk alone, if people choose to follow me, that is their choice"34.
34 Mr. Rafiq Hajat‟s testimony, Verbatim Report, Blantyre Proceedings p. 54. 35 Mr Rafiq Hajat‟s testimony, Verbatim Report, Blantyre Proceedings. p. 55.
However despite the absence of the copy of the injunction and despite the disagreements amongst the organisers, it was ultimately agreed that the court order must be respected. Indeed the court order was respected but efforts were already under way in Lilongwe to challenge the injunction. Meanwhile, the crowd that gathered at the Old Town Hall was advised to wait until the outcome of the legal process was known. At around 13:00 hours, the injunction was vacated by consent of the Parties. According to the testimony of Mr. Rafiq Hajat, the vacation order was then faxed and received by Mr. John Gift Mwakhwawa, President of the Malawi Law Society who then informed the organisers and police officers who were at the Town Hall.35 The people were informed about the vacation of the injunction and the demonstrations were set to begin. It was Mr. Mwakhwawa‟s testimony that the first group of the matchers led by Mr. Rafiq Hajat started matching using the designated route. This first group matched peacefully up to Blantyre City Council offices where they presented the petition. The second group however met some problems. According to the testimony, when the second group reached Mudi River, some police officers tried to block them and started throwing tear gas at the crowd. This caused some commotion as people started running in different directions. On this point Mr. Marcel Chisi said and we quote– 35
"...just when we started moving before we crossed the Mudi River, there were policemen who were largely guarding the Regional Offices of the DPP[..]. Now something went wrong there and indeed to put this on record.. one police officer without the public throwing anything at them,(sic) threw tear gas at the group and because of that, it divided the people. Some were going forward, the big crowd was still behind, some had already reached the Mudi River and also started some break aways from the team[...]. another police van, started moving right in the middle of the people and infuriated the senior police officer who we had there because in doing so, people now started dispersing, some branching to police houses, some were branching inside the Sunnyside and some were going back.."36 This incident was collaborated by Mr. Jameson Sabao, Senior Assistant Commissioner of Police. In his testimony Mr. Sabao stated as follows–
36 Source: Verbatim Report Blantyre proceedings p. 135. 37 Source: Verbatim Report, Blantyre proceedings, p. 185. 38 Mr. John Mwakhwawa and Mr. Kasunda‟s Testimony, Blantyre and Zomba Proceedings respectively.
"So having communicated with their friends, [about the vacation of the injunction] the organisers started moving towards Mudi..." So our officers who were deployed close to Mudi who were guarding the DPP office which is around there, having seen these people that they are now coming towards them thought they were coming to attack the DPP office, so they had to fire teargas. And we were officially informed that no, no, these people have been allowed to demonstrate, it’s when we stopped our police officers to say no, can you allow them to demonstrate because these people have been allowed to match."37
In addition to the Mudi incident, the Commission was told that there were other instances of teargas throwing and use of live ammunition by the police around the Town Hall just after the crowd had started the march.38
Despite these incidences a section of demonstrators managed to proceed beyond Mudi River along the designated route up to Blantyre City Council offices where a petition was presented 36
and CSO leaders and the Police congratulated each other and the crowd was advised to disperse, which according to the testimonies, was around 16:00 hours.39 Public Disorder, Arson, Looting, Injuries and Loss of Life According to the testimonies, the march in Blantyre along the designated route was peaceful. The Police escorted the demonstrators peacefully despite the chaos at Mudi River. There were no deaths or injuries or damage to property along the designated route. One of the organisers, Mr. Unandi Banda told the Commission this in his testimony–
39 See Hajat‟s testimony, verbatim Report, Blantyre proceedings. 40 Source: Verbatim Report, Blantyre Proceedings, p. 38. 41 Source: Verbatim Report, Blantyre Proceedings, p. 44.
"We stayed there at the Old Town Hall till 13:00 hours, then we got the news that the injunction has been vacated, we moved peacefully till we reached this place [ Blantyre City Council]) and we presented our petition to the DC. We made a brief speech to the people who were with us and advised them to wait for response from the government and we left this place."40 This was confirmed by Mr. Ken Williams Mhango, one of the CSO leaders who was also part of the organising team of the demonstrations as follows– "It was one of the best and peaceful demonstrations, I was leading it and I was in front, we walked very peacefully from Mudi to roundabout then Chitawira then Civic Centre where we presented our petition, I did not have any report regarding death, it
was quiet".41 It was later in the afternoon of the demonstration day when looting started in various parts of the City. The Commission was told that, looting was reported at or around 17:00 hours of 20th July at Peoples Trading Centres shops of Likhubula, Chitawira and Chirimba [townships of Blantyre City]. Mr. James Balawe, the Regional manager for PTC in the Southern Region was summoned by the Commission and in his testimony he narrated the story as follows– 37
"... It was around four o’clock when I received a call from one of my officers that one of our stores was looted and burnt [.....] after sometime I also received a call that another shop has been looted, that’s the Kwiksave at Likhubula[..]. We called the police, we were told that they went there. But by the time they arrived at the place, they found that the store has been looted, everything was taken out and it was burnt, all the two shops. And it was around five o’clock, if am not mistaken, when I received another call that another shop has also been looted, that is Chitawira now. But fortunately the Police went there in time so they were able to contain the situation but still more, after we did our stock taking, it was discovered that goods worth 2.2 million Kwacha were stolen and when we did our estimation on the stock which were burnt, the Kwiksave at Likhubula and Chirimba, it was estimated that goods worth 5.3 million Kwacha were stolen or burnt."42 Mr. James Balawe‟s testimony was collaborated by the testimony of Mr. Jameson Sabao, Senior Assistant Commissioner of Police, quoted as follows–
42 Source: Verbatim Report, Blantyre Proceedings, p. 152. 43 See also the testimony of Mr. Chawanika Msuku, and Mr Precious Msuku, Verbatim Report, Blantyre Proceedings , p. 185. 44 Source: Verbatim Report, Mr. Charles Makanga‟s testimony p. 30.
"so when people started dispersing[...] they rushed to various townships, some went to Zingwangwa where they set on fire Chipiku Shop and looted all the properties, some rushed to Mbayani where they looted peoples shop and set it on fire and also went to Chirimba.."43 It was on the same day, the 20th July that reports of two deaths were received by the District Commissioner of Blantyre District, Mr. Charles Robert Makanga. In his testimony the District Commissioner had this to say about the two deaths–
"At around half past seven (20th July) the District Health Officer called me that there is a dead body in Ndirande and they are failing to collect the dead body because there are riots there in Ndirande. I called the Officer In charge, Blantyre police, advising him of the dead body and that I would send an ambulance to them to collect the dead body to the mortuary at Queen Elizabeth Central Hospital"44 38
When the District Commissioner was asked to clarify if the deaths occurred during the demonstrations he said–
"From police reports, I was told that the two deaths occurred on the night of the 20th July. Joseph Lengemani Lefani who was 31 years was near PTC Ndirande because there was commotion there. The other one was a student at Nyambadwe. He found himself near PTC in Ndirande again this one died near the PTC".45
45 Source: Verbatim Report, Mr. Charles Makanga‟s testimony, p. 30. 46 See Verbatim Report, Dr. Filimoni‟s testimony, p. 74. 47 Mr. Marcel Chisi in his testimony mentioned Bata shop that was looted before the march and Mr. Kalimanjere also mentioned Bata Shop and other shops that were looted before the match. 48 See Mr. Abdul Dudha‟s testimony: Verbatim Report p. 160.
In addition to the two deaths, several people were injured on the 20th July. Medical practitioners at Queen Elizabeth Central Hospital told he Commission that a number of casualties were referred to the Hospital on the 20th July. However their testimony reveals that although there was peace at the Old Town Hall where people assembled and during the marching injuries were registered with the hospital as early as 11:00 hours, suggesting that disturbances in other areas of the City must have started even before the marching. In his testimony, Dr. Filimoni told the Commission that he received the first patient, Mphatso Mphoka, at around half past ten in the morning after being shot in Chirimba.46
Indeed the testimony of Mr. Marcel Chisi, one of the organisers and Mr. Kalimanjere, a police officer confirms that riots actually started before the marching itself.47
The Commission was told that the riots continued the next day, the 21st July with more businesses looted and more injuries sustained. Mr. Abdul Dudha told the Commission that his business premises were damaged and looted on the 21st July in Bangwe, a location within the City of Blantyre.48
The Police‟s reaction was swift but met resistance from protesters who had set up road blocks and attacked the Police with stones. The Commission was told that the situation forced the Police to resort to live ammunition to quell the disturbances, which resulted in the deaths of two people and several injuries sustained by civilians. Later, Government on its part 39
provided assistance to the bereaved families which included money for funeral expenses and transport to carry the bodies to their respective resting places.49 In summary, the events in Blantyre were as follows–
49 Mr. Norbert Makanga‟s testimony, Blantyre Proceedings, p. 30.
(i) people gathered at Old Town Hall to demonstrate on the 20th July as planned;
(ii) they received news about an injunction stopping them from demonstrating but that efforts are underway to vacate the injunction;
(iii) demonstrators waited for the outcome of the court process;
(iv) Injunction was vacated by consent of the parties and this news reached demonstrators in Blantyre around 13:00 hours of the 20th July;
(v) having received the news that the injunction had been vacated, demonstrators started marching along the designated route;
(vi) on their way, police officers at Mudi River fired tear gas at them and some people dispersed and failed to proceed with marching. Sporadic use of teargas and live ammunition was also reported before and during the march;
(vii) Senior Police Officers who escorted the demonstrators ordered the firing at Mudi to stop, thereafter the march proceeded up to Blantyre City Council‟s offices where a petition was presented and received by the District Commissioner of Blantyre District;
(viii) thereafter, demonstrators and the Police congratulated each other and the crowd was advised to disperse;
(ix) no deaths or injuries were reported during the match;
(x) after the demonstration, reports of riots, looting, arson and public disorder were received. Again reports that two people had been killed in Ndirande were received;
(xi) before the demonstrations, some looting and injuries occurred for example, the looting of Bata Shop along Victoria Avenue and the injury in Chirimba;
(xii) sporadic firing of live ammunition and teargas was reported before and during the marching;
(xiii) further looting, riots, arson and injuries occurred on the 21st July but no deaths were reported.
2.3.2 Events that took place in the City of Lilongwe In Lilongwe, demonstrators gathered near Lilongwe Community Centre ground as per their plan waiting to commence the demonstration. As they were organising themselves, police officers who were also gathered at the venue informed the organisers that the demonstrations should be cancelled because of an injunction obtained the previous day stopping the demonstrations from taking place. The Commission was told that upon hearing the news of the injunction, organisers told the Police that they would try to vacate it and advised their lawyer Wapona Kita to try and vacate the injunction. Mr. Wapona Kita took up the matter with the court. Meanwhile, some organisers tried to address the people to remain calm until challenge of the injunction was known. According to Mr. Undule Mwakasungula‟s testimony, the police did not allow them to address the people. It was Mr. Undule Mwakasungula‟s testimony that the police started to forcefully disperse the crowd. In the process, some people were beaten and injured. What transpired thereafter is that people left the place and went in different directions. Mr. Undule Mwakasungula narrated his story as follows–
"On the 20th all of us were ready to go to the gathering place. We went to the site at Lilongwe City Community Centre ground, the police was already there and we were informed by the police that we were not going to demonstrate because there was an injunction but by then we were not served with the injunction[...] As our colleagues 41
were trying to deal with the issue of the injunction, some of us decided to go back to where the people were, trying to tell the people to be calm until the injunction was vacated. Unfortunately when we reached there the police was not in the mood to let us discuss with the people and they forced everyone to leave. They started beating our friend Billy Mayaya. He was badly beaten and his clothes torn."50
50 Source: Verbatim Report: Undule Mwakasungula‟s testimony, p. 22. 51 See Amos Gumulira‟s testimony and Undule Mwakasungula‟s testimony, Verbatim Report, p. 154. 52 See Inspector General‟s testimony, Verbatim Report, 162. 53 See Kelvin Mmangisa‟s testimony, Verbatim Report, Lilongwe Proceedings.
The Commission was told that due to the beatings by the Police, some CSO leaders and media practitioners decide to seek refuge at Lilongwe C.C.A.P Church compound which is a few meters away from the Lilongwe City Community Centre Ground. While hiding, they were rounded up and beaten by the Police and in the process, some sustained serious injuries.51
When asked about the Lilongwe CCAP incident, the Inspector General of Police confirmed that such incident took place. He told the Commission that while the beatings were taking place, a media practitioner by the name of Kondwani Munthali called him and told him about the incident. The Commission was told that upon hearing about the beatings, the Inspector General instructed the Commanding Officer for Lilongwe City responsible for security arrangements on the day, to order the Police officers to stop the beatings.52
After vacation of the Injunction, which as noted earlier was in the afternoon hours of the demonstration day, the marching took place peacefully along the designated route to Lilongwe City Council offices where a Petition was presented and received by the Chief Executive of Lilongwe City Council, Mr. Kelvin Mmangisa.53 Public Disorder, Arson, Looting, Injuries and Loss of Life
In Lilongwe, public disorder, arson and looting started in the morning hours of the demonstration day. The Commission was told that it was as early as 9:00 o‟clock in the morning when spates of looting and arson were reported in the areas of Kawale, Biwi, Area 42
23 and Chinsapo.54 Shops, houses, cars and other properties were looted and destroyed. According to the testimonies, shops that were looted and destroyed included PTC and Farmers World, shops belonging to DPP politicians as well as those belonging to foreigners and people of Indian origins. Houses belonging to police officers and vehicles belonging to the DPP were also targeted and damaged. In her testimony Assistant Superintendent of Police, Mrs. Ethel Chapita said–
54 These are high density areas in the city of Lilongwe. 55 Verbatim Report, Lilongwe Proceedings, p. 202. 56 Verbatim Report, Lilongwe Proceedings, p. 212. 57 See Dr. Antoro Michaels‟s testimony and Mr. Damazio Chimpango Shumba‟s testimony, Verbatim Report, Lilongwe Proceedings.
"...On the 20th as I said I was at the office as a skeleton staff, I was there with three other junior officers on standby... At around 10:00 hours it is when I received a report that people have damaged, have broken the PTC so I liaised with the Regional Commanding Centre, for manpower was coming from other areas to us at Kawale police.55 Sergeant Chipeta narrated his story as follows when asked to explain about properties destroyed in Chinsapo area–
"Houses could be seen broken into and shops as well could be seen broken into. We managed to witness Farmers World, which was broken into, Chipiku Shops was broken into, PTC was also broken into and these buildings were left with nothing and yet there were huge stocks of goods being sold in these shops. This extended to houses of fellow police officers who were staying in Chinsapo."56
The disturbances continued the following day on the 21st July. More incidences of looting property destruction and arson, loss of life and injuries were reported in the areas of Lumbadzi, Area 49 and in other areas of the city, in addition to the areas mentioned earlier. In his testimony, Dr. Antoro Michael told the Commission that most of the injuries treated at the Kamuzu Central Hospital were brought on the 21st of July. The Commission heard in evidence from other victims whose property was also damaged on the 21st of July.57 43
The Commission was told that as the public disorder continued, the police started firing live ammunition to protect life and property. In his testimony, Mr. Everson Saliwa, Deputy Commissioner of Police told the Commission the following when asked by the Commission on the cause of the deaths and injuries–
"In the course of protecting property I think, some of the officers tried to shoot warning shots but perhaps the criminals could not leave the places that is why may be they were shot."58 It was on the 21st July when the MDF got involved. Soldiers were deployed in strategic places to monitor and where necessary assist the police. The situation was normalised on the same day, the 21st July.
58 Verbatim Report, Lilongwe Proceedings p. 185. 59 Paul Kalilombe, Verbatim Report, Lilongwe Proceedings p. 48.
Again, Government on its part assisted the bereaved families with coffins, transport and money for repatriation of the bodies to their respective resting places.59 In summary events in Lilongwe on the 20th July unfolded as follows–
(i) demonstrators gathered at Lilongwe Community Centre ground on the 20th July at or around 8:00 o‟clock in the morning as planned;
(ii) they received news about an injunction stopping the demonstrations;
(iii) a lawyer was given instructions to challenge the injunction;
(iv) meanwhile the police forcefully dispersed the crowd, which ran in different directions. Injuries were sustained in the process;
(v) some people including CSO leaders sought refuge at Lilongwe CCAP compound where they were rounded up and beaten by the police;
(vi) incidences of riots, looting, arson were reported in the areas of Mchesi, Kawale, Biwi, Chinsapo and some other areas of the city, as early as 10:00 hrs;
(vii) incidences of deaths and injuries were reported. All in all, seven people died during the public disorder and many more sustained injuries;
(viii) at around 13:00 hrs, the injunction was vacated by consent of the Parties;
(ix) demonstrators started marching, escorted by police officers, along the designated route. During the demonstrations no deaths or injuries were reported and the petition was handed over to the Chief Executive for Lilongwe City Council;
(x) further looting, riots, arson, loss of life and injuries occurred on the 21st July; and
(xi) MDF deployed soldiers on 21st July and the situation was normalised.
2.3.3 Events That Took Place in the City of Mzuzu
In Mzuzu City, again demonstrators converged at Katoto Freedom Park as early as 07:00 hours for the demonstrations as planned. Upon arrival, they were greeted by news that the High court in Lilongwe had issued an injunction stopping the demonstrations. Upon hearing news of the injunction, organisers of the demonstration advised the crowd to remain calm while they went to Mzuzu City Council offices to confirm if indeed it was true that the High court in Lilongwe had issued an injunction against the demonstrations. The organisers, led by Mr. Moses Mkandawire, met the Chief Executive of Mzuzu City Council, Mr. Richard Hara who confirmed about the injunction. The organisers were also told by the Chief Executive Officer that the injunction was being challenged.60 This message was communicated to the crowd by the organisers and the crowd was advised to wait for the outcome of the legal process challenging the injunction.
60 See Moses Mkandawire‟s testimony, Verbatim Report, Mzuzu Proceedings. 45
The Commission was told that despite this information, the crowd lost patience and started marching before the injunction was vacated. This situation was exacerbated by the fact that in the absence of the CSO leaders who were at City Council Offices at that time, the one hour demonstration was hijacked by some political leaders who ordered the people to start the march61 The Commission was told and confirmed the story through video evidence that Mr. Harry Mkandawire asked Reverend Mezuwa Banda to say a word of prayer before the march which the Reverend did. A coffin was produced and the marching commenced. The police, in trying to enforce the injunction which was still in force by the time the march started, mounted a road block along the road enroute to Mzuzu City Council Offices where the petition was supposed to be presented. The Commission was further told that upon reaching the police road block, the crowd started throwing stones at the police officers manning the road block. The police retaliated by firing teargas canisters at the crowd. It was there at the road block that the first death occurred, which, according to hospital records, was due to suffocation by the tear gas. As narrated by Mr. Ndumanene Silungwe and Mr. Isaac Maluwa, the confrontation between the police and the crowd degenerated into public disorder, looting, arson and riots. By the time CSO leaders came back from the City Council offices, things were already out of control and their effort to quell the situation proved futile. The Commission was told that petrol bombs and pangas were used to break shops. The public disorder continued until the police had run out of the blank bullets and the teargas. This forced the commanding officer to rush to the MDF Headquarters for the Northern Region, Moyale Barracks to be assisted with extra supplies of blank ammunition. This did not assist as the police once again run out of the blank ammunition. The Commission was told that it was at this point that the police resorted to the use of live ammunition.62 With the continued public disorder, the MDF got involved by deploying soldiers to monitor and where necessary assist the police. The Commission was told that the situation in Mzuzu normalised at around 20:00 hours on 20th July 2011. Ultimately nine people were killed by the police and several including police officers were injured.63 Again Government offered assistance for the repatriation of the bodies to their respective resting places but the offer was rejected. Seven of the nine people killed were buried at Zolozolo Heroes Acre on 22nd July after the people
61 The Commission was given video evidence showing Mr Harry Mkandawire ordering the people to start the marching. 62 Mr. Likoya Nkhoma‟s testimony, p. 99. 63 The testimony of Charles Mulumbe, Assistant Superintendent of Police confirms that amongst the injured people were also police officers who were attacked by the demonstrators. 46
refused Government offer of assistance to repatriate the bodies. However two bodies who were not from the Northern Region were repatriated to their respective districts. In summary, events in Mzuzu City unfolded as follows on the 20th July 2011–
(a) in the morning of 20th July 2011 demonstrators gathered at Katoto Freedom Park to start the march to Mzuzu City Council offices where the petition was supposed to be presented;
(b) while there at Katoto Freedom Park, they were advised by the police that an injunction had been obtained by a concerned citizen at Lilongwe High Court effectively preventing them from proceeding with the demonstrations;
(c) CSO leaders advised the crowd to respect the injunction and to remain calm while they went to Mzuzu City Council to verify with other CSO leaders in Lilongwe about the status of the injunction and the CSO were given one hour to report back;
(d) while there, they met the Chief Executive of Mzuzu City Council and a copy of the injunction was handed over to the CSO leaders;
(e) meanwhile the crowd at Katoto Freedom Park lost patience and started march towards Mzuzu City Council;
(f) the police, in trying to enforce the injunction which was still in force at the time the march started, blocked the road;
(g) this led to a confrontation between the police and the demonstrators which resulted into public disorder, riots, looting and arson. In the process nine people lost their lives, others including police officers got injured and several others had their property looted and destroyed.
2.3.4 Events that took place in the Township of Karonga In the township of Karonga, demonstrators converged in the morning of the 20th July 2011 at the round-about of Karonga-Songwe Road as planned. As was the case with the other demonstration centres, they were informed by the police that there was an injunction granted by the Lilongwe High Court, effectively stopping the demonstration. Upon hearing the injunction news, CSO leaders who were responsible for organising the event in the district advised the demonstrators to respect the injunction. After vacation of the injunction, the march started, from the round-about to the DCs‟ office where a petition was presented and received by a representative of the DC, Mr. Steve Chima. The Commission heard that the march was peaceful up to the office where the petition was presented as confirmed by Mr. Grecian George Mbewe, one of the organisers of the event. When he was asked as to whether he himself participated in the demonstrations, he gave the Commission the following response–
"Yes I was among them. There were two (police) vehicles manning the demonstrations and they told us that we will be in front and the police will be behind us. It was a colourful and peaceful demonstration as there was no violence until we reached the District Commissioner’s office. When we got at the District Commissioner’s office it was a well planned thing because officers from the District Commissioners office led by Mr. Chima were waiting for us[.....]After we had given our petition, the organisers were thanked by the police officer in charge and the one who represented the District Commissioner, Mr. Chima also thanked organisers for organising a very peaceful demonstration."64
64 Source: Verbatim Report , Karonga Proceedings, pp. 93 and 94.
According to testimonies received, it was after the petition was presented that riots, looting and public disorder started. The Commission was told that the public disorder started at the market area where shops mainly belonging to Chinese nationals and people from the Asian Community were targeted over and above shops and business belonging to Malawians. In addition to the business shops, government property and private houses were also targeted. 48
The Commission heard that amongst the private houses targeted was the house of Senior Chief Kalonga where property was damaged including his personal vehicle.65 The riots, looting, arson and public disorder prompted the police to take action. According to the testimony of Henry Kasambara, Detective Inspector of Police when asked to describe the events as he saw them unfolding, he told the Commission that–
65 See the testimony of Mr. Wilford Mwamatope, Verbatim Report, Karonga Proceedings and the testimony of Mr .Aaron Moffat Chaponda, Verbatim Report, Karonga Proceedings. 66 Verbatim Report, Karonga Proceedings, p. 55. 67 Ibid. 68 The person who was killed was found with a stone in his pocket.
"Later on (after the petition was presented) its when we received reports that people have started looting shops. It’s when the police started following them to find out if indeed shops were being looted. We found that the building of Mr. Simama was vandalised and damaged. People were throwing stones and taking different property"66 He went on to say that–
Although the police did its best to prevent them by using reasonable measures, but there was nothing done. We were chasing them but they were throwing stones at us. This is when the police said "no", we should go and take our weapons. We used blank ammunition for a long period but it didn’t help, people were so aggressive.....after using all the rubber bullets and the blank bullets, they (the police officers) had to use live ammunition."67
The Commission was told that the confrontation between the police and the people left one person dead and several others injured.68 In summary, events in the town ship of Karonga unfolded as follows on the 20th July 2011–
(a) demonstrators gathered at the round – about of Karonga- Songwe Road in the morning hours of the demonstration day;
(b) before commencing the march, they were informed by the Police of the injunction that had been granted by the Lilongwe High Court preventing the demonstration from taking place;
(c) CSO leaders who were responsible for the event in the Township advised the demonstrators to respect the injunction and to wait for the outcome of the legal process;
(d) when the injunction was vacated, the crowd commenced the march, escorted by the Police to the District Commissioners‟ Office where the petition was presented;
(e) no deaths or injuries were reported during the march;
(f) riots, looting, arson and public disorder reported primarily in the market area which later spread to other areas;
(g) this brought confrontation between the Police and the people and in the end one person was killed and several others injured by the Police.
2.3.5 Events that took place in the City of Zomba
The City of Zomba was another area where demonstrations took place. According to the plans demonstrations in the city commenced from two points. One group commenced the demonstrations from Chancellor College, a constituent college of the University of Malawi, and the other group commenced from Zomba Community Centre Ground. As was the case with the other cities, demonstrators started arriving at the commencement venues in the morning hours of the 20th July 2011. Upon arriving, the Chancellor College group immediately started the march. On their way, a group of police officers informed them of the injunction granted by the Lilongwe High Court. The group immediately went back to Chancellor College Campus, and waited for the vacation of the injunction. The group at Zomba Community Centre Ground however got the news of the injunction before commencement of the marching and they too waited for its vacation. Both groups started the marching in the afternoon hours of the day, having been told that the injunction had been 50
vacated. According to the testimonies, the two groups marched peacefully under police escort along the designated route towards the agreed converging place, which was Mponda Freedom Park. Upon arriving at the converging place, the petition was read by one of the organisers, thereafter, the crowd was advised to peacefully disperse.69
69 See the testimonies of Mr. Lawrence Bisika and Mr. Chris Jana, Verbatim Report, Zomba Proceedings. 70 See Doreen Kapanga‟s testimony, Verbatim Report, p. 5. 71 See Mr. Louise Chigadula‟s testimony, Verbatim Report, p. 25.
Although a few incidences of violence were reported, for example the breaking of glass at Mponda Primary School, the demonstrations, in large measure ended peacefully. It was during the afternoon hours of the day when people started riots, looting and public disorder in the area called Chinamwali. The Commission was told that the road going to the area was blocked by heavy stones while a Southern Bottlers Deport was broken into and looted. Police officers were deployed and after hours of running battles, the situation was put under control.70 Despite the violence, Zomba City did not record any death or injuries. The Commission was told that the fact that Zomba did not record deaths or injuries was very much to do with the thorough preparations and coordination the police had prior to the demonstration day and on the day of the demonstration. The Commission was told that prior to the demonstration day, the police conducted simulation exercises to measure their preparedness. The police took effort to conduct crowd control training and to gather some ground intelligence prior to the day of the demonstration. In his testimony Mr. Louise Chigadula, Senior Superintendent of Police told the Commission that–
"Immediately when I got the information (about the demonstration) I did not wait for the Inspector General to call us. I embarked on public order management training to see how best we could handle the situation. So we organised simulation exercises within our premises and (within) the city which members of the public did not know [...]. So we had a training of close to one hundred police officers in public order management."71 In summary events in Zomba unfolded as follows–
(a) demonstrators gathered at Zomba Community Centre Ground and at Chancellor College Campus in the morning hours of 20th July 2011;
(b) the group that gathers at Chancellor College started the march;
(c) on their way some police officers informed the crowd about the injunction against the demonstrations;
(d) upon hearing the news, the crowd went back to the campus and waited for vacation of the injunction;
(e) the demonstrations at Zomba Community Centre Ground heard about the injunction and waited for the vacation before commencing the march;
(f) after the injunction was both groups commenced the march up to Mponda Freedom Park where the petition was read;
(g) the crowd was advised to disperse peacefully;
(h) no deaths or injuries were reported during the march;
(i) in afternoon hours of the demonstrations day, some people started riots and looting in Chinamwali area;
(j) the Police managed to quell the situation
2.3.6 Announcement by CSOs calling Malawians to be calm and peaceful
After the petition was presented and upon observing that the public disorder still continued in certain parts of the country, organisers of the demonstration made an announcement to all Malawians that the demonstrations were organised for the 20th July and that any continued demonstrations were not acceptable and not planned by the organisers. The announcement further paid tribute to the people who lost their lives during the demonstrations and asked Malawian to maintain peace.72
72 Copy of the announcement is attached to this Report as Appendix 7. 52
2.3.6 Role played by the Media on the Day of the Demonstration and after Media practitioners played a significant role on the day of the demonstration and after that day. The Commission was told that Media practitioners from different media houses were deployed on the ground to witness and report on the events as they unfolded. The Commission was further told and observed that some electronic media houses broadcasted live coverage of the events who led to the intervention of MACRA upon being alerted by the former Inspector General of Police, which formed the opinion that the live broadcasting of the unfolding events incited violence and public disorder in other parts of the country. MACRA therefore exercised its powers under the Communication Act to block some radio station from broadcasting. Mr. Charles Nsaliwa, Director General of MACRA told the Commission that radio station of Joy Radio, MIJ Radio and Capital Radio were switched off around 11:00 hours of the demonstration day. 2.3.7 Public Lecture by the Former State President, Late Professor Bingu wa Mutharika The Commission also observed that on the same day of the demonstration, the former State President Late Professor Bingu wa Mutharika decided to conduct a public lecture which focused on the issues that formed the bulk of the petition. The Commission observed that this is an event worth mentioning in this Report because of the impact the event had on security arrangements, which is discussed in detail in the subsequent Chapter of the Report. 53
FINDINGS AND ANALYSIS OF FINDINGS
This Chapter presents findings, and analysis of the findings as observed by the Commission. The findings stem from the testimonies of the people interviewed by the Commission the Commission‟s own research. The analysis is also based on the testimonies of the people interviewed but the Commission has gone further to analyse the findings based on relevant and applicable domestic and international laws and acceptable general practice. The Chapter is categorised into four parts. The first Part discusses what the Commission found to be the general causes of the riots, looting, public disorder and the consequent deaths and injuries. The Second Part presents the Commission‟s findings as to the causes of the deaths and injuries and the identities of the dead and the injured persons. The Part also presents what the Commission found to be the circumstances under which the deaths and injuries occurred. The Third Part presents the identities of the owners of properties that were looted or destroyed during the public disorder, including their values. The fourth Part is a detailed discussion on the conduct, proficiency and operational effectiveness of the police and other security agents in dealing with the demonstrations, arson, looting and the riots. In the fifth part, the Report presents the Commission‟s findings as regards to the conduct of the media and other players and its impact before, during and after the demonstrations, arson, looting, riots and public disorder. The sixth and final Part of the Chapter is a discussion on what the Commission finds to be problematic areas of the relevant law.
3.1 General Causes of the Riots, Looting, Arson and Public Disorder
The Commission established that the riots, looting, arson and public disorder were triggered by several factors which are discussed below. 3.1.1 Court Injunction
The Commission observed that the injunction that was granted on the 19th July 2011 by the Lilongwe High Court contributed to the anarchy that occurred on the demonstration day. To 54
begin with, the Commission is aware and appreciates that in this current democratic dispensation and constitutional order, it is a right available to all persons to seek and obtain a court remedy including injunctions if they believe that their right has or is threatened to be violated. This right is enshrined in the Constitution of Malawi as provided by section 41(3)– "Every person shall have the right to an effective remedy by a court of law or tribunal for acts violating the rights and freedoms granted to him by this Constitution or any other law"
Some of the rights envisaged by section 41(3) that must be protected are the right to own property, the right to an economic activity and the right to personal security.73 The Commission summoned and interviewed Mr. Chiza Mbekeani, the person who applied for and obtained the injunction stopping the demonstration from taking place, to appreciate his motive behind the application. In his testimony Mr. Mbekeani told the Commission that his application was purely for security reasons. He said–
73 Section 19 of the Constitution makes provision that every person shall have the right to freedom and security of person. Section 28 provides that no person shall be arbitrarily deprived of property and section 29 states that every person shall have the right to freely engage in an economic activity. 74 See Verbatim Report, Lilongwe Proceedings, p. 261. 75 See Mr. Mbekeani‟s Affidavit as attached to this Report as Appendix 7.
"I am aware that, (I know) most political demonstrations (they) end up in looting. I have some time back attended and participated in demonstration in past administrations, I know the aftermath and it was hinted that on that July 20 demonstrations, things were going to be chaotic..."74
The Commission had also recourse to court records that were filed in support of the injunction and observed that indeed the injunction was obtained to protect people‟s rights as envisaged by the Constitution.75 It is not the intention of the commission to discuss the merits and demerits of the injunction, suffice it to say that the High Court acted within its constitutional and inherent power to grant the injunction. The Constitution stipulates that–
"The Judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws in accordance with this Constitution in an independent 55
and impartial manner with regard only to legally relevant facts and the prescriptions of the law"
Having said that, the Commission observed from the testimonies that the injunction was one of the reasons why the demonstrations which were supposed to be peaceful degenerated into public disorder. First, the injunction was obtained in the afternoon hours of the 19th July 2011. Court records that the Commission sourced indicates that the injunction was granted at 4:45 hours.76
76 See the injunction copy attached to the Report as Appendix 5. 77 See Mr. Mbekeani‟s testimony, Verbatim Report , Lilongwe Proceedings, p. 262. 78 Verbatim Report, Mzuzu Proceedings, p. 120.
The Commission was further told that the whole paper work for the injunction was finalised around seven in the evening of the 19th July 2011. It was only after this paper work was ready that the applicant was able to serve the injunction to the organisers of the demonstrations and other concerned authorities.77 Having obtained the injunction in the evening of 19th July 2011, the Commission noted that there was insufficient time for the order to be served and publicised. This fact, against the background that prior to the granting of the injunction, the nation was already informed by both private and state media houses that the mass demonstration would proceed as planned, brought confusion and mistrust. Almost in all cities where demonstrations took place organisers and demonstrators heard about the injunction in the evening hours of the 19th July 2011 or in the morning hours of the day of the demonstration. Mr. Ndumanene Silungwe who was one of the organisers in Mzuzu City narrated his story as follows–
"...somewhere around midnight (of 19th July) I received a telephone call from my colleague, Mr. Moses Mkandawire who informed me that (it seemed) somebody by the name of [...]) Mbekeani[....]) had successfully obtained an injunction against the demonstrations.... as planners we came to Katoto Freedom Park where we agreed to meet basically to explain to the people about the injunction though it was difficult to do it.78 56
Narrating events as they unfolded in Blantyre, Mr. Marcel Chisi had this to say–
"...I was among the first two people to arrive at the venue of the demonstrations. When we arrived there, we were told by the police that somebody in Lilongwe has obtained an injunction and therefore moving on (with the demonstration) is not acceptable"79
79 See the Verbatim Report, Blantyre Proceedings, p. 134. 80 See the testimonies of Undule Mwakasungula, verbatim Report, Lilongwe Proceedings and that of Moses Mkandawire, Verbatim Report, Mzuzu Proceedings.
Faced with the injunction order, the police as law enforcers had to do everything possible within their power to enforce the injunction order. For example, the police in Lilongwe City decided to disperse the crowd and in the process ended up with running battles with the demonstrators. In Mzuzu City, the police had to mount a road block to prevent demonstrators from marching while the injunction was still in force. In both cities this action degenerated into public disorder which ended up into looting, arson, loss of lives and injuries.80 The Commission therefore concludes that while it is a constitutional right available to every person to obtain effective court remedy including injunctions and while it is within the court‟s constitutional and inherent power to grant such remedies, the time the injunction was granted was probably not appropriate considering that the demonstration involved the masses who would not have known about it within a short notice. The timing of the injunction contributed to the public disorder that occurred on the 20th -21st July 2011. 3.1.2 Conduct of the Media
The Commission observed that the way some media houses conducted themselves on the day of the demonstration contributed to the riots, looting, arson, public disorder and the consequent deaths and injuries. First, the Commission concedes that the function of the media is to inform and educate the public. This is a very important function in a democratic society for information is vital for the exercise of democratic rights. The Commission however observed that some media houses broadcasted messages that incited the public disorder. Although information is vital, some messages taken within the context of what happened on the 20th July, incited public disorder in places which were, hitherto, calm. A 57
more detailed discussion on the conduct of the media comes under Part five of the Chapter, suffice it to say that the Commission concludes that the conduct of some of the media houses contributed to the looting, arson, public disorder and the consequent loss of life and injuries. 3.1.3 Political Intolerance and Intimidation The Commission observed that events preceding and occurring on, the demonstration day demonstrated political intolerance and intimidation, which also contributed to the public disorder on the demonstration day and the consequent loss of lives, looting, arson and injuries. To begin with, events prior to the demonstration day were characterised by intimidating statements; which only helped to highlight the existing tension. The Commission further noted that the "panga boys incident" was a sign of defiance and political intimidation which further raised the tension. Exacerbating the matter was the fact that the incident was never investigated to its logical conclusion by the police, which made people to speculate that the ruling Democratic Progressive Party was behind the incident. The Commission further observed that amongst the properties targeted during the public disorder, were properties and businesses of politicians more especially politicians from the DPP and people perceived to be sympathisers of the Party as well as vehicles and offices belonging to the Party. The Commission observed that this is a clear indication of political intolerance. It is therefore the Commission‟s finding that political intolerance and intimidation was one of the causes of the public disorder, looting, riots and the consequent loss of life and injuries that occurred on the 20th July 2011. 3.1.4 Conduct of Organisers
The Commission observed that, in large measure, organisers of the demonstration operated within the legal requirements of the country. They did so by giving necessary notices to the authorities for the demonstrations and approvals were given for the demonstrations to take place. They also managed to organise marshals to assist the police in security issues. All this was in line with the Police Act which states that "where it is intended to hold an assembly or a demonstration the convenor shall give notice, in writing, of not more than forty-eight hours 58
and not more than fourteen days to the District Commissioner concerned."81 The Act further stipulates that "the convenor shall appoint such number of marshals as is mentioned in the notice of the assembly or demonstration..."82
81 Section 96. 82 The role of the marshals is to control the participants in the assembly or demonstration; to take necessary steps to ensure that the assembly or demonstration is peaceful, among other things. See section 104 of the Act. 83 See Commissioner Jose‟s testimony, Verbatim Report, Blantyre Proceedings.
However the Commission noted that the organisers of the demonstration did not provide the Police with the correct anticipated number of the participants. This position was clearly lamented by police officers interviewed by the Commission, who stated that they were overwhelmed by the crowd that came for the demonstration.83 Having said that, the Commission appreciated the position of the organisers in that being a mass demonstration, it was probably a challenge to correctly anticipate the number of participants. That notwithstanding, the Commission observed that failure by the organisers to correctly anticipate the number of the participants in the demonstrations compromised security arrangements. As a result, the police was overwhelmed and some criminals took advantage of the compromised security to perpetrate criminal activities. The Commission therefore finds that this was also a major cause of the public disorder, riots, looting and the consequent loss of lives and injuries on the 20th July 2011. The Commission further observed that the organisation of the demonstration was decentralised to regional as well as districts levels. The Commission noted and appreciated that this decision was taken for effective implementation of the demonstration. However the Commission also observed that the same decentralisation resulted into variations in terms of implementation leadership across the regions. For example, while organisers were able to contain the crowd in other centres, organisers in Mzuzu City were not able to do that. In his testimony Mr. Ndumanene Silungwe an organiser in Mzuzu had this to say–
"...because the public was becoming uncontrollable [...] we as civil society were called (there) at the Chief Executive Officer’s office to try and discuss further what to 59
do and while we were here basically it was like a ship without a leader at that particular time from the civil society’s perspective so basically people went wild..."84 The Commission therefore finds that such variation in implementation contributed to the public disorder, looting, riots and the consequent loss of lives and injuries. 3.1.5 Conduct of Demonstrators The Commission observed that the conduct of the demonstrators also contributed to the public disorder, looting, arson and the consequent loss of lives and injuries. This was the case mainly in the cities of Lilongwe and Mzuzu. To begin with, the Commission heard in evidence that when demonstrators convened at the designated place in Lilongwe, which was the Lilongwe Community Centre ground, they were advised by the Police to disperse in view of the injunction that was still in force at that time. The crowd refused to disperse. The refusal prompted the police to forcefully disperse the crowd, which resulted into running battles with the police. The Commission observed that the confusion that came out of the running battles gave room for the public disorder, looting, riots and arson. In the process people were killed and injured. The Commission observed that it was within the mandate of the police as law enforcers to order the people to disperse in view of the injunction that had not been vacated. Therefore it is the view of the Commission that the crowd should have obeyed the order in spite of the court process that was underway to challenge the injunction. The Commission further observed that while demonstrators respected the injunction in other centres, the situation was different in Mzuzu City. The Commission was told that the crowd started marching while the injunction was still in force. This again prompted the police as enforcers of the law to block the road which led to confrontation between the police and the crowd. What followed thereafter were the public disorder, looting, arson and riots. Again people were killed and injured in the process. Mrs. Rhoda Luhanga, Assistant Superintendent of Police who was at the venue narrated the events as follows–
84 Ndumanene Silungwe, Verbatim Report, Mzuzu Proceedings, p. 121.
"when this news (about the injunction) reached the demonstrators they demanded to see a copy of the court injunction. The organisers and some officials from my office 60
went to the City Council offices to get the copy of the injunction. After sometime when they did not see their leaders, the people became tired and started the marching... after we stopped them, they started picking up stones and throwing the stones on us. Since we were caught unawares, the marchers were on us seriously injuring my boss Mr. Maluwa..."85 This story was collaborated by Mr. Ndumanene Silungwe, one of the organisers as follows– "Basically at that particular time we had people that had gathered at Katoto Freedom Ground and they became quite agitated because they wouldn’t understand the basis of the injunction having been assured by both the public and private media that the demonstrations would go ahead." He went on to say that–
85 See Rhoda Luhanga‟s testimony, Verbatim Report, Mzuzu Proceedings, p. 49. 86 See Silungwe‟s testimony, Verbatim Report, Mzuzu Proceedings, p. 121. 87 See Moses Mkandawire‟s testimony, Verbatim Report, Mzuzu Proceedings p. 198.
"People went wild and they said no, we are going to demonstrate, so they started walking towards City Assembly’s offices and by the time they reached the junction of Karonga road, that is where now hell broke loose because tear gas started being fired, by the time we had arrived (from Civic office where they went to verify about the status of the injunction). It was difficult to even address anybody as (the rest said) there were chaos that ended up taking the lives of about nine young men".86
Although the cause of the public disorder as narrated by Mr. Ndumanene Silungwe and Mrs. Rhoda Luhanga was contradicted by Mr. Moses Mkandawire, who told the Commission that the public disorder was caused by police officers who threw teargas at the crowd, this evidence is not collaborated by any other evidence and is not supported by the video evidence made available and viewed by the Commission.87 The Commission does not in any way dispute the incident of teargas throwing by the Police as narrated by Mr. Moses Mkandawire. It may or it may not have happened. However, the Commission‟s position is that based on the collaborated testimonies and the video evidence, the main cause for public disorder was 61
the collision between police officers who were determined to enforce the injunction and the crowd that was determined to demonstrate even before vacation of the injunction. The Commission therefore finds that the conduct of demonstrators in refusing to respect police orders to disperse in view of the injunction in Lilongwe City and failure to respect the injunction by starting marching while the injunction was still in force in Mzuzu, contributed to the public disorder, riots, looting, arson and the consequent loss of lives and injuries in the two cities. 3.1.6 Xenophobia and Social Economic Hardships The Commission observed that most of the businesses looted belonged to foreigners or persons with foreign origins. For instance, some of the businesses looted in Lilongwe belong to people from the Asian Community, Rwandese, Burundians and Chinese. The trend was the same in Mzuzu City and Karonga Township. There may be two reasons for this trend. First it may be the case that these businesses were targeted because of the type of goods they stocked which the majority of the populace cannot afford to purchase in which case the Commission opines that the causes of the looting may be associated with social economic hardships experienced by the population. Secondly, it may also be the case that these businesses were targeted merely because they are foreign owned or perceived to be foreign owned and thereby taking away business from Malawians. In which case xenophobia could be one of the reasons why looting took place. This point is supported by Mr. Ipyana Nthakomwa‟s testimony who told the Commission as follows when asked to comment on what triggered the riots-
"... most of those people who were doing the rioting looting, arson were the youths. In the petition some of the major points were not included. Now, the youths do not want the Chinese and the Indians, because to them they feel like they have come to disturb the Malawian youth businesses. It is for this reason that each time when they see the Chinese and the Indians they are not happy with them"88
88 See Ipyana Nthakomwa‟s testimony, Verbatim Report, Mzuzu Proceedings, p. 166. 62
This statement may not be farfetched. A similar sentiment was put forward by Mr. Lazarous Kalua when he was asked as to why Chinese and Indians shops were targeted–
"we got a rumour that the Chinese and Indians were responsible for the shortage of forex in the country that is why people thought of revenging89(sic). It is therefore the Commission‟s conclusion that xenophobic and social economic hardships contributed to the public disorder, looting, arson, riots and the consequent loss of lives and injuries on the demonstration day. The Commission is of the view that the demonstrations only provided an avenue for the manifestation of xenophobic feelings. 3.1.7 Conduct and Capacity of the Police The Commission further observed that although the police mandate was to protect life and maintain peace, law and order on the demonstration day, its conduct left a lot to be desired mainly because of lack of capacity, poor negotiation lack of appropriate non-lethal weapons and organisation skills and this contributed to the public disorder, looting, arson, riots and the consequent deaths and injuries on the demonstration day. The Commission noted and appreciated the fact that the police tried its level best to protect property and to maintain peace, law and order but lacked resource both human and material, to execute its functions. The situation was exacerbated by the simultaneous holding of two public functions, the demonstrations and the Presidential public lecture, both of which required the meagre police resources. The Commission further noted that in certain cases, the police used unreasonable force which included use of live ammunition without following proper procedures. The Report discusses the conduct and capacity of the police in more detail under Part Four of this Chapter. Suffice it to say that the Commission finds the general conduct and lack of capacity of the police to be one of the causes of the public disorder, riots, looting, arson and the consequent deaths and injuries on the demonstration day.
89 Lazarous Kalua, Verbatim Report, Karonga Proceedings, p. 29. 63
3.2 Identities Of Persons Who Were Killed Or Were Injured During The Riots, Looting, Arson, Public Disorder, Circumstances Under Which Deaths Or Injuries Occurred And The Cause Of Each Death Or Injury
The Commission observed that several people lost their lives and others got injured, as a direct consequence of the public disorder that occurred on the demonstration day. A total number of twenty people died as a result of the disorder. Two people died in the City of Blantyre, one person died in Karonga Township, ten people died in the city of Mzuzu and seven people died in the City of Lilongwe. The Commission was called upon to ascertain circumstances under which the deaths and injuries occurred. The question that first exercised the Commission‟s mind was whether the deaths or injuries occurred during the demonstrations or not. The Commission was told in evidence that in all centres where demonstrations took place after vacation of the injunction, no person was killed or injured during the marching. Mr. Unandi Banda, one of the CSO leaders who organised the demonstration in Blantyre said the following when asked if the marching was disrupted–
"Our team never had any disruption from the time we left Blantyre Old Town Hall up to the time we reached this place, we were properly escorted by the Malawi Police."90 And Mr. Innocent Mwalwanda, one of the organisers of the demonstration in Karonga Township narrated his story as follows–
90 Verbatim Report, Blantyre Proceedings p. 38. 91 Verbatim Report, Karonga Proceedings, p. 36.
"We started marching around three or four. We were there with the police. We started marching with a small group. As we were getting to the roundabout, more and more people were coming... That time we were singing our songs. While the police was leading us, we were still singing songs and more people were joining us up to the DC’s office. When we reached the DC’s office, it was the Director of Administration, Mr. Chima who received the petition but it was Kossam Munthali who got on to the steps which were on the door way to address the people. We read point by point, Mr. Munthali emphasized on each point and advised everyone who gathered there to go back home"91 64
The same can be said about Lilongwe and Zomba.92
92 See M‟mangisa‟s testimony and Bisika‟s testimony about Lilongwe and Zomba scenarios respectively. 93 See Voice Mhone‟s testimony, Verbatin Report, Lilongwe Proceedings. 94 See Appendix 8 on list of people who have appeared before courts of law.
That said, the Commission observed that in certain instances, more especially in Lilongwe, some CSO leaders and media practitioners were rounded up and beaten by police officers while waiting for the vacation of the injunction. That notwithstanding, the majority of the victims met their fate while the police tried to quell the public disorder, looting riots and arson. It is indeed true, based on the hospital reports that most of the victims met their fate on 21st July 2011. It must be noted that the demonstrations were scheduled to be on the 20th July 2011 and not beyond. Indeed the organisers of the demonstration made an announcement advising the public that the demonstrations ended with the marching along the designated routes and the presentation of the petition and that anything beyond this point was unlawful and not part of the demonstrations.93 The Commission does not by saying that there were no deaths, injuries and loss of property along the designated routes, suggest in any way that there was no connection between the demonstration on one hand and the public disorder which resulted into the deaths and injuries.
To begin with, the demonstrations gave an opportunity for people to vent their political grievances. Secondly, it gave an opportunity for criminals to loot. On this point the Commission was presented with a police report on the people arrested as suspected looters of which some have been convicted by courts of law.94 Not all victims should be categorised as suspected criminals. It was established as a fact that some victims met their fate after being hit by police bullets or suffocated to death by teargas while not participating in the criminal activities or in the demonstrations. The tables below present the identities of the people who lost their lives and the causes of each death and circumstances under which they were killed, as per hospital and police reports as well as testimonies from witnesses– 65
Table I: List of people who lost their lives in Lilongwe City and cause of each Death.95
|95 Source: Hospital, police Reports and Testimonies of the relatives. 96 Source: Hospital, Police reports and testimonies of the relatives. No.||Name||Age||Sex||Home District||Hospital Post mortem||Cause of Death||Circumstances of Death|
|1||Luka Ignasio||38||M||Dedza||Open crush fracture to bilateral femur||Death due to hemorrhagic shock||Shot within the vicinity of Malangalanga Kulima Store during riots|
|2||George Thekera||21||M||Chiradzulu||Deep wound of the roof on the mouth through the palate with a lot of bone.||Death due to severe head injuries||Shot within the vicinity of Kawale PTC Shop during riots|
|3||Elida Kampira||24||F||Lilongwe||Not provided||Death due to basal skull fracture||Shot in Biwi Area during riots|
|4||Lovemore Navira||19||M||Thyolo||Penetrating wound to the chest||Death due to haemopneumothorax||Shot within the vicinity of Area 25 Chipiku Shop|
|5||Edward Phiri||24||M||Ntchisi||Not provided||Gunshot on the forehead||Shot in Lumbadzi during riots|
|6||Michael Ayami||24||M||Lilongwe||Not provided||Haemorrhage shock due to gunshot||Shot in Chigwirizano during riots|