‘Death penalty
or right to life’
Since
the year 2000, the mandatory death penalty has taken over the scope of national
debate in Zambia. This topic has been one that provokes the intellect and has
led anyone attempting to conclude it in a conundrum. This is because it seems
to invade morality whenever an argument is optimistic about it even though it
radically depends on what one considers to be morally right or wrong.
Nevertheless, arguments against it have been obtained on grounds that death by
hanging is equivalent to inhuman and degrading treatment, contrary to Article
15 of the Constitution[1].
However, the Supreme Court has always depended on Article 12(1) of the Constitution
in holding capital punishment to remain Constitutional[2].
Although capital punishment is constitutional and strengthens the Zambian
criminal justice system, it has to a larger extent received a negative response
from the Christian community, Civil Society Organizations and the general
public. Therefore, this article seeks to present an analysis and a variety of
arguments put forward towards the mandatory death penalty.
As
capital punishment continues to be declared unconstitutional by some African Countries,
Zambian Judges continue to put criminals convicted of murder, aggravated
robbery using a firearm and treason on death row. This is subject to Section
201(1) (a), section 294 and section 43 of the penal code respectively[3]
and is evident in the case of Lubuto v
Zambia[4]
where the appellant was convicted of aggravated robbery using a firearm earning
him the death penalty[5]. However,
implementation of this kind of punishment has been slow due to the uncertainty
of Political Scientists, Presidents, Lawyers and Judges among others on capital
punishment. The last executions were carried out in 1997 when President Chiluba
F.T.J authorized eight executions[6].
Till today, convicted criminals put on death row are not yet executed. And, many
of them have been put off death row and commuted to life imprisonment, 600 in
1997 by President Chiluba F.T.J[7],
200 in 2004 by President Mwanawasa L.P[8] and
245 by former President Lungu E.C[9]
among other inmates. The delay in executing death row convicts has been due to
negative responses that the mandatory death penalty has received across the
country. And, in the case of Penry v
Lynaugh[10],
it is evident that the ethical dilemmas faced by Judges whenever one is proven guilty of a crime amounting to a
death sentence have also contributed to the delay in carrying out executions. Therefore,
from Statutory Law, it is evident that Zambian Law is in support of the death
penalty. This may be because capital punishment deters capital crime thus,
safeguarding human life and promoting its value.
On
the contrary, the death penalty raises the question of ‘who has the authority
to take away another individual’s life in the Christian community?’ And,
arguments have been put forward that killing is in and of itself wrong whether
or not on legal grounds. This, according to the Christian Community is in line
with Exodus 20:13 which states that ‘thou shall not kill’[11]
and the preamble of the Constitution stating that Zambia is a Christian nation.
For example, it is argued that whether or not capital punishment is in effect,
people will still commit murder, treason and aggravated robbery so, what’s the
point of taking away the life of a criminal when it does not in any way make
the world a better place to live in. Moreover,
following the enactment of the Constitution of Zambia, Chapter 1 of the laws is Zambia, the
prisons service was changed into a correctional service to shift from penal
treatment of prisoners to rehabilitation and reformation[12]. Therefore,
the Christian community concludes that no one ought to take away the life of
another because none is the author of life but God.
Additionally,
unlike the Christian community, human rights activists, and Civil Society
Organizations (CSOs) have argued against the mandatory death penalty on grounds
that everyone must enjoy the right to life, for it is of intrinsic value[13]. This
is because every individual is entitled to human rights and the right to life
is one that the state cannot take away from the individual; thus, capital punishment
violates such a right. It is on these grounds that organizations such as Amnesty International have concluded that the death penalty is a symptom of a culture of violence and not a solution to it[14]. Furthermore, the Parliamentarians for Global
Action (PGA) and the United Nations Human Rights Committee (UNHRC) have argued
that the death penalty promotes justice systems that violate the rule of law
and impedes the achievement of sustainable development goal (SDG) 16,
which aims to endorse strong institutions, justice and peace[15]. Zambia may not abolish the mandatory
death penalty because it has not yet ratified the second optional protocol of
the International Covenant on Civil and Political Rights (ICCPR) which provides
for the abolition of the death penalty[16].
However, Human Rights Activists have continued without tire to advocate for its
abolishment.
To
sum it all up, it is highly affirmative that capital punishment is as good as
killing in the case of murder. The death sentence, however, should be a
fundamental punishment in Zambian criminal law because it reinforces the
criminal justice system. Nonetheless, seeing that the death penalty in Zambia
is wholly in statute and partially in practice, many have been prompted to
advocate for its abolition. Moreover, no Zambian President has in their period
of tenure authorized sanctions to execute inmates on death row except President
Chiluba F.T.J. This largely shows how the Zambian community is against it. Therefore,
as it remains a conundrum, the question of whether or not to abolish capital
punishment has been left to the Zambian citizenry to decide.
‘WHAT
IS YOUR POSITION ON THE MATTER?’
BIBLIOGRAPHY
Online articles
Death Penalty Dilemma,
‘Death Penalty Information Centre’ (2021) < https://deathpenaltyinfo.org/stories/death-penalty-dilemma>>>>> accessed 1st March
2022
Mulambo Mwaba, ‘‘The Death Penalty Lives on Zambia despite the Country’s
Constitutional Reform’ (2015) Oxford Human Rights Hub< https://ohrh.law.ox.ac.uk/the-death-penalty-lives-on-in-zambia-despite-the-countrys-constitutional-reform
>
accessed 3rd March 2022
Ng’andu Fredrick, ‘The
death penalty in Zambia’ (2015) <https://www.biicl.org/files/2305_country_report_zambia_ngandu.pdf > accessed
3rd March 2022
Statutes
The Constitution
(Amendment) Act No.2 of 2016
The Penal Code, Chapter
87 of the Laws of Zambia
Cases
Lubuto v Zambia
Commission No. 390/1990.UN.Doc. CCPR/C55/zd/390/Rev/1. (1995).
Books
Kaaba O’Brien,
‘Constitutionality of Criminal Procedure and Prison law in Africa: Zambia’
(2016)
[1] The
Constitution (Amendment) Act No. 2 of 2016.
[2] ibid
[3] The penal
code Act, Chapter 87 of the laws of Zambia.
[4] Lubuto v
Zambia Commission No. 390/1990.UN.Doc. CCPR/C55/zd/390/Rev/1. (1995).
[5]
Kaaba O’Brien, ‘Constitutionality of Criminal Procedure and Prison Law in Africa:
Zambia’.
[6] Rickard C. (2021) ‘Time to end
mandatory death penalty in Zambia’, AfricaLii https://africanlii.org/article/20210624/time-end-mandatory-death-penalty-zambia
[7]Ibid
[8]
The new humanitarian, (may 11, 2004) ‘Fight to abolish the death penalty’, https://www.thenewhumanitarian.org/news/2004/05/11/fight-abolish-death-penalty
[9]
Kaumba M. (2021) ‘Human Rights Commission Extols Lungu for communal of 246
Death Row Inmates’ https://www.znbc.co.zm/news/hrc-extols-committal-of-246-death-row-inmates/
[10]
Penry v. Lynaugh, Director, Texas Department of corrections
[11]
Exodus 20:13, The Holy Bible
[12]
Human Rights Commission, NHRI Submission for Zambia’s third universal periodic
review- November 2017
[13] Amnesty
International, ‘Death Penalty’, We know that together we can end death penalty
everywhere
[14] Ibid
[15]
Parliamentarians for Global Action(2021) ‘Campaign for the abolition of the
death penalty (ADP)’ https://www.pgaction.org/ilhr/adp/
[16]
International Covenant on Civil and Political Rights, vol.999, 1-14668