By Lusekelo Kamfwa
THE OFFENCE OF TREASON AND THE OTHER RELATED OFFENCES
In criminal law, there are many offences. This article will focus on a particular offence, which is the offence of treason and other related offences.
Treason
Treason is prescribed in Section 43 of the Penal Code, Chapter 87 of the laws of Zambia (which shall be referred to as the Penal Code). Subsection one does not define treason. It lists certain actions that would amount to treason, but it can be summed up as the use of force to either overthrow the government, undermine the power of the executive alter the law or government policy, the secession of a part of Zambia, or aiding an enemy state. The penalty for treason was a mandatory death sentence, as was held in the case of Muyangwa and others v. the People [1976] ZR 320. However, the Penal Code (Amendment) Act No 23 of 2022, Section 8, amended section 43(1) of the principal Act by replacing it with the penalty of life imprisonment. Thus, treason carries a mandatory life sentence.
It must also be mentioned that Section 43(3) of the Penal Code provides that a citizen may be found liable for treason if their acts are done outside Zambia but are within the jurisdiction of the courts of Zambia. Section 6(1) of the Penal Code provides that the court has jurisdiction to hear offences committed by Zambians abroad.
It must be mentioned that in Zambia, treason is not a matter of breaching national duty of allegiance, as is the case with other common law jurisdictions. As such, to quote what the Supreme Court stated in the case of Edward Jack Shamwana and others v. the People [1985] ZR 41, in page 52,
“in Zambia any person who is charged with treason, whether or not he owes his allegiance to Zambia or to another country, is amenable to the Zambian jurisdiction, save that, in terms of section 43 (3) of the Penal Code, a non - Zambian is not punishable for treason committed outside the country.”
One thing that must be shown for one to be liable for treason is that the acts committed must be overt. An overt act, as defined in section 52 of the Act, is any action that enables someone to achieve a particular purpose (in this context, the act of treason). The necessity of an overt act in a matter relating to treason was espoused in the case of Edward Jack Shamwana and others v. the People [1985] ZR 41. Brief facts of the case were that Shamwana and his co-accused were accused of trying to overthrow the government through eleven overt acts which was then reduced to four. At the High Court, they were convicted for treason, prompting the appeal. The key issue on appeal was whether their actions were overt. The Supreme Court, in defining overt acts, stated as follows in page 56:
“…an overt act is an act that is open to the world, in the sense that it can be perceived by anyone placed to do so. It is an act which the law requires to be laid in a count for treason and by which alone treason is capable of being proved.”
The court went on to state that conspiracy to commit treason is an overt act for treason itself. Once it is shown that one did conspire to commit treason, then that person will be liable for treason. Much of the case was on ascertaining whether the acts were overt acts to satisfy treason. Though the bulk of the case was concerning matters related to evidence, of keynote in relation to the offence of treason is that for one to be liable for treason, there must be an overt act committed by the accused. Thus, for one to be liable, they must commit overt acts of treason as outlined in Section 43 of the Penal Code.
Misprision of Treason and Treason-felony
There are two offences related to treason that must also be discussed. Misprision of treason and treason-felony.
Misprision of treason
Misprision of treason is an offence that refers to one being an accessory to the fact of treason (that is, knows that one is planning to commit treason but helps them avoid arrest) or not reporting the relevant authorities that a treason is occurring, despite having knowledge of the offence. It is prescribed in Section 44 of the Penal Code and carries the penalty of life imprisonment.The Edward Jack Shamwana case (supra) highlights an important point in relation to misprision of treason. The charge of some of the co-accused was reduced from treason to misprision of treason. At page 74 of that case, the court explained the following reason as the rationale for reducing the count from treason to misprision of treason:
“In any case, as to cognateness, the commission of the offence of treason involves knowledge of the offence and participation in its commission. Once participation is removed, leaving the knowledge that treason is being planned or committed, but failing to report it to the authorities as soon as possible the offence of misprision of treason emerges. We are satisfied that A4 had a fair opportunity to meet the alternative charge of misprision of treason and, therefore, that no injustice was occasioned to him.”
Based on that quotation, it can be stated that the difference between misprision of treason and treason is that in the former, one simply has knowledge of the action while in the latter, one has knowledge of the offence and participates in its commission. The other difference that was highlighted is that misprision of treason carried a lesser offence that treason. Given Act Number 23 of 2022, the sentence of treason and misprision of treason carry the same sentence.The above quotation also brings another point worth highlighting when it comes to misprision of treason. In the Shamwana case, particularly the quoted passage, it can be seen that if one does not satisfy the elements of treason, but satisfies the elements of misprision of treason, that person will held liable for the latter, even if they were initially charged for treason, because misprision of treason simply lacks the participatory aspect of the offence of treason.
Treason-felony
Treason-felony can be simplified as an act in which one through unlawful means attempts to alter government laws or policies or simply attempts to usurp government authority as prescribed under Section 45 of the Penal Code and carries a sentence of 20 years’ imprisonment.It is necessary to distinguish treason under section 43(1) (b) and (d) from treason felony under section 45. Though the language in both provisions is similar, the difference lies in the phrase, “by force”. Section 43(1) (b) and (d) describe alteration of the law or usurpation of executive authority “by force” while section 45 refers to “unlawful means”. The former entails violence being employed while the latter may lack violence. Thus, treason-felony can be said, in simple terms, to be treason without the use of force.This offence is discussed in the case of Mombotwa & Others v The People [2018] ZMSC 308. In this case, the accused broadcasted themselves celebrating the liberation of Western Province (also known as Barotseland) from Zambia, through the adopting of the Barotseland Constitution. The accused also moved across Mongu and other towns in Western Province proclaiming liberation from Zambia. This was done peacefully. They were charged with treason-felony. On appeal, the appellants claimed that their actions did not usurp the power of the Executive because it had no binding effect on Zambia. Furthermore, they argued that because there was no usurpation of Zambia, the offence did not occur. The Supreme Court, in upholding the conviction, held that the usurpation need not take place for an action to amount to treason-felony. The mere fact that the claimants claimed, through an oath under the Barotseland Constitution to have executive control over Barotseland undermined the executive authority that the President of Zambia has over the whole of Zambia.
The above case illustrates what amounts to treason-felony. It also highlights that it is a preparatory offence in that one need not usurp executive authority. Provided they have attempted to do so, that would amount to treason-felony.
Promoting tribal war
The last offence to be looked at in this article is promoting tribal war. This offence is prescribed under Section 46 of the Penal Code. It constitutes one aiding, abetting or participating in a war against a tribe or its chief, or works with a chief or tribe to conduct a tribal war. The offence carries a life sentence.
It is interesting that Section 46 of the Penal Code starts off with the phrase, “Any person who, without lawful authority… (emphasis added).” The implication of using, “lawful authority” would entail that there are certain circumstances in which a tribal war would be lawful. Lawful authority is defined in the case of the Attorney General of Northern Rhodesia v Smart Lyampali and another [1963 – 1964] Z and NRLR 121 (CA). In page 125 of that case, the court was distinguishing between lawful authority and lawful excuse as it related to possession of a firearm. The court stated as follows,
“Lawful authority is always referable to a specific provision of the statute law. Thus a license under firearms legislation entitling a man to carry a firearm is a lawful authority.”
Thus, lawful authority in section 46 of the Penal Code refers to the authority granted by statute to commit a particular act. Article 29 of the Constitution of Zambia, Chapter 1 of the laws of Zambia, vests the power of declaring war to the President, and further provides in clause 3 that an Act of Parliament would provide for the scenario in which Zambia could declare a war. As it stands, there is no law that provides for the circumstances in which a declaration of war can be made. As such, the phrase, “lawful authority” in section 46 of the Penal Code only applies to the President as he or she is the only one who has the authority to declare a war against a tribe.It must be mentioned that Zambia, unlike its neighboring countries like Rwanda, has never had a tribal war. As such, no one has been charged under this offence.
Conclusion
Zambian law in relation to treason and similar offences seeks to protect the state from disrepair. In Zambia, treason is an offence against the state, not a breach of national allegiance, thus even a foreigner can be charged with treason. Misprision of treason refers to knowledge of treason without direct participation in the treason. Treason-felony refers to an action that attempts to usurp executive authority or unlawful change of Zambian law. Promoting tribal war refers to one taking certain actions to either instigate or participate in a war with, for or against a particular chief or tribe. Apart from reducing the sentence of treason from death penalty to life imprisonment, the provisions related to treason have not undergone much change. Given that Zambia has been a peaceful country, with only a handful of instances of treason, there is limited case law as to the offence of treason and other related offences. Nonetheless, the few cases that are there inform Zambian law as it relates to these offences.
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About the Author:
Lusekelo Kamfwa is a third year law student at the University of Zambia and is a legal editor in the Legal Aid Initiative