An Endangered Clause: The Death Penalty in Zambia
By Cheela Himutwe K Chilala
Between 10-17 April, this year, I represented the University of Zambia at the National Constitution Convention that took place at the Mulungushi International Conference Centre in Lusaka, the Zambian capital. The Convention was organized by the Technical Committee on Drafting the Constitution of Zambia, which was appointed on 16 November, 2012 by Michael Sata, the President of Zambia. The committee’s main task was to facilitate the drafting of a new constitution to replace the current one. The convention brought together delegates from all the ten provinces of Zambia.
The main purpose of the convention was to debate the constitutional proposals made by the district and provincial conventions. Indeed the national convention was characterized by animated debate, which sometimes veered into emotional exchanges among the delegates, especially when it came to debating contentious issues.
One of the contentious issues that heated up the convention venue was the death penalty. Naturally the delegates were almost equally divided between those in favor of and those opposed to the death penalty, which the current constitution upholds. Article 28 clause (3) of the Zambian constitution says of capital punishment: “A person may be deprived of life if that person has been convicted of a capital offence and sentenced to death.”
The division and tension among delegates to the national constitutional convention regarding the article on the death penalty was a culmination and broader picture of what happened during the earlier stages of the constitution-making process. At both district and provincial conventions, delegates argued heatedly over the death penalty, with some for and others against the provision. The national debate on the death penalty, however, is not new in Zambia; it has been going on for years, with The Post newspaper describing it as “strong and interesting”.
Zambian parliamentarians have also debated the issue. One of the parliamentarians in support of the retention of the death penalty clause in the Zambian constitution, Chasefu Member of Parliament, Chifumu Banda, argued: “People found guilty of murder by courts of law should be meted with capital punishment as a way of deterring other criminals that claim the lives of innocent people.” Similarly, Member of Parliament for Petauke Central, Dora Siliya, argued: “Other countries are now regretting because they abolished capital punishment and implemented life in prison because killings have now doubled and committing various atrocities.”Ms Siliya further argued that the law was necessary to protect vulnerable citizens from criminals, adding that replacing capital punishment with life imprisonment would embolden criminals as they would be able to return and torment society upon being pardoned by the president.
Henry Kyambalesa, in an article published in The Post newspaper in 2009, highlighted some of the key reasons proffered in support of the death penalty by some Zambians.He outlines them thus:
1) By killing another person and, therefore, violating the person’s right to life, the murderer dehumanizes himself or herself to the extent that he or she deserves to be expelled from the community of living humans.
2) People who commit murder in societies which have corporal punishment already know the consequences associated with such a heinous crime. For such people, the punishment is, therefore, self-inflicted; after all, it is a punishment every societal member can choose to avoid in the first place! Is it not immoral to protect the life of an individual who finds pleasure in committing murders – the ultimate disregard for other people’s lives?
3) As Ernest van den Haag, a U.S. Professor of Jurisprudence and Public Policy, has concluded, “The severity and finality of the death penalty is [commensurate with] … the seriousness and the finality of murder.” In short, the death penalty functions as a reasonable and generally acceptable form of retribution (or appropriate punishment) for murder. The punishment fits the crime, so to speak!
4) The death penalty serves well as a more dreadful deterrent to murder than life imprisonment and, among other things, as an effective incapacitation of murderers.
5) It would be immoral for the government to collect tax revenue from law-abiding members of society, some of whom are kith and/or kin of murder victims, and commit it to the protection and upkeep of duly convicted murderers sentenced to life imprisonment.
6) Prison escapes of hardcore criminals are not uncommon – even in countries which can afford to provide highly secure prison facilities, such as the United States. There is also the potential for criminals to be released from prison by mistake. On March 26, 2002, for example, Clifton Blecha (a convicted murderer concurrently serving a life sentence and a 24-year prison term at Colorado State Penitentiary in Canon city, United States) was mistakenly paroled due to a paperwork mix-up. He was initially jailed in 1988 on a burglary conviction, and later convicted of murdering a fellow inmate in 1994. (BeDan, M., “Paperwork Mix-Up Frees Murderer,” Rocky Mountain News, May 3, 2002, p. 7A.)
While acknowledging the highlighted arguments, however, Kyambalesa, a prominent Zambian lawyer, contends that “the application of capital punishment calls for a fundamental redress of any apparent inadequacies in a country’s criminal justice system so that the punishment can be administered fairly, impartially, with reasonable consistency, and upon an objective and exhaustive assessment of circumstances leading to the commission of murder”. He adds: “Unfortunately, such expectations cannot easily be met in poor countries like Zambia, pseudo democracies, and totalitarian states worldwide.”
While Kyambalesa does not give a list of arguments against capital punishment, one of the Zambian advocates of the replacement of capital punishment with life sentence, human rights activist Sara Longwe, gives seven reasons for her stance:
1) The Zambian State ratified the UN Convention against Torture (CAT) in October 1998, which forbids any form of inhuman treatment. Hence no prisoner on death-row has been hanged in the past 10 years and none during the tenures of President Mwanawasa and President Rupiah Banda. Therefore, the new Constitution must prevent President Sata and future Zambian presidents from killing people with impunity;
2) The State now has the opportunity to effect into the new Constitution its mandate to abolish death penalty as symbolized by the signing and ratifying of CAT in October 1988, which was thereafter accepted by UN in November 1998;
3) Death sentences do not deter other people from committing murders, neither does the barbaric doctrine of ‘eye for an eye’ make a right – when in fact it is an inhumane treatment that perpetuates enmity/conflicts in the communities;
4) Mis-trials on various grounds lead to wrong persons being hanged by Government, including discriminatory application of the law; hence the majority of persons on death row are mostly from low income groups.
5) It is humane to commute capital offences to life imprisonment, during which any mis-trials can be overturned and make the offenders regret their barbaric actions.
6) Allowing contradictions within a Constitution is simply bad law-making as exemplified by some of the Articles in the First Draft: e.g.-
- Article 28 (1) protects life and a foetus BUT Article 28(3) disposes of an adult’s life by hanging; needless to say that according to human rights principles and Zambian traditions life begins at birth;
- Article 28(3) contradicts Article 29 that provides for human dignity because killing anybody indignities the humanity of the victim;
- Article 28(3) contradicts Article 30 that provides for protection from inhumane treatment;
- Article 28(3) contradicts Article 32 that provides for security of person.
7) The spirit of the National Motto “One Zambia one Nation” includes, among other things, saving life of everyone in Zambia by humanly punishing wrong doers that break any lawful law or policy.
Longwe concludes thus: “Retaining the death penalty on Zambian statutes is not only an act of impunity, but also a crime against humanity.”
Longwe’s position is similar to that of The Post newspaper, which once editorialized on the issue, passionately arguing for the abolition of the death penalty:
We hold the opinion or view that the death penalty is barbaric and should be abolished. The death penalty offers our nation not further protection from crime but further brutalization. The death penalty is premeditated and cold-blooded killing of a human being by the state. The state can exercise no greater power over a person than that of deliberately depriving him or her of life. No matter what reasons we give for executing prisoners and the methods of execution we use, the death penalty cannot be separated from the issue of human rights….there can never be a justification for torture or for cruel, inhuman or degrading treatment or punishment. The cruelty of the death penalty is evident. An execution constitutes an extreme physical and mental assault on a person already rendered helpless by government authorities. Like killings which take place outside the law, the death penalty denies the value of human life and cannot be reconciled with respect for human rights…..Whatever purpose is cited, the idea that we can justify a punishment as cruel as death conflicts with the very concepts of human rights. The significance of human rights is precisely that some means may never be used to protect society because their use violates the very values which make society worth protecting. The death penalty, as a violation of fundamental human rights, would be wrong even if it could be shown that it uniquely met a vital social need. What makes the use of the death penalty even more indefensible and the case for its abolition even more compelling is that it has never been shown to have any special power to meet any unique social need. Countless men and women have been executed for the stated purpose of preventing crime, especially the crime of murder. Yet, study after study in diverse countries has failed to find convincing evidence that the death penalty has any unique capacity to deter others from committing particular crimes.
Undeniably, the death penalty, by permanently incapacitating a prisoner, prevents that person from repeating the crime. But there is no way to be sure that the prisoner would indeed have repeated the crime if allowed to live, nor is there any need to violate any prisoner’s right to life for the purpose of incapacitation: dangerous offenders can be kept safely away from the public without execution. Every society seeks protection from crime. Far from being a solution, the death penalty gives the erroneous impression that firm measures are being taken against crime. It diverts attention from the more complex measures which are really needed. When the arguments of deterrence and incapacitation fall away, one is left with a more deep-seated justification for the death penalty: that of just retribution for the particular crime committed. According to this argument, certain people deserve to be killed for the repayment for the evil done: there are crimes so offensive that killing the offender is the only just response. It is an emotionally powerful argument. It is also one which, if valid, would invalidate the basis for human rights.
If a person who commits a terrible act can deserve the cruelty of death, why not others, for similar reasons, deserve to be tortured or imprisoned without trial or simply shot on sight? Central to fundamental human rights is that they are inalienable. This means that the right to life doesn’t need to be earned by conduct for one to enjoy it. They may not be taken away even if a person has committed the most atrocious of crimes.
Human rights apply to the worst of us as well as to the best of us, which is why they protect all of us. What the argument of retribution boils down to is often more than the desire for vengeance masked as a principle of justice. The desire for vengeance can be understood and acknowledged but the exercise of vengeance must be resisted. The history of the endeavor to establish the rule of law is a history of the progressive restriction of personal vengeance in public policy and legal codes.
If today’s penal system does not sanction burning of an arsonist’s home, the rape of a rapist or the torture of a torturer, it is not because they tolerate the crimes. Instead, it is because societies understand that they must be built on a different set of values from those they condemn. An execution cannot be used to condemn killing; it is killing. Such an act by the state is the mirror image of the criminal’s willingness to use physical violence against a victim. And probably this explains why Nelson Mandela concluded that “the death sentence is a reflection of the animal instinct still in human beings”. For these reasons, we urge all the Zambian people to demand the removal of the death sentence from their statute books, from their Constitution.
Over the years, however, the arguments against the death penalty seem to have resonated with the Zambian presidency. During the reign of the first Zambian president, Kenneth Kaunda, from the attainment of independence in 1964 to his electoral defeat in 1991, capital punishment took place without much debate, if any. As president, he had the power to sanction the death of a prisoner on death row when time came. Similarly, when Frederick Chiluba succeeded Kaunda as president, he continued with the practice.
However, when in 2002, Levy Mwanawasa succeeded Chiluba, he vowed to never sanction the death of any inmate on death-row. As a lawyer, the president looked at matters differently. In fact, since the time of Mwanawasa, no president has sanctioned the death of a prisoner in Zambia, despite the fact that article 28 of the constitution has not been repealed or amended. When Mwanawasa died in 2008, he was succeeded by Rupiah Banda, who also never sanctioned any execution of death row inmates until he lost the presidential election to Michael Sata in 2011. During his two years in office, Sata has also been reluctant to sanction capital punishment. In fact, during the commemoration of the Africa Freedom Day on 25th May this year, President Sata reduced the sentences of 113 death-row inmates to life imprisonment. On paper, therefore, the Zambian law sanctions capital punishment, but in practice there has been no execution since 1997 when Chiluba was still president. It is unlikely – at least under the current government – that any death-row inmate will be subjected to the death penalty, especially in view of the growing opposition to this form of punishment. Even the Zambian Human Rights Commission is vehemently opposed to the death penalty.
Dr. Cheela Himutwe K Chilala teaches in the University of Zambia and he is a Drama Scholar.
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