THE CONUNDRUM

‘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 Constitution1. However, the Supreme Court has always depended on
Article 12(1) of the Constitution in holding capital punishment to remain
Constitutional2. 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.
1
The Constitution (Amendment) Act No. 2 of 2016.
2
ibid
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 respectively3 and is evident in the case of Lubuto v Zambia4
where the appellant was convicted of aggravated robbery using a firearm
earning him the death penalty5. 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 executions6. 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.J7, 200 in 2004 by President Mwanawasa L.P 8 and 245 by
former President Lungu E.C9 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 Lynaugh10, it is evident that the ethical dilemmas faced
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 commutal 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
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
(Amendment) Act No.2 of 2016, the prisons service was changed into a
correctional service to shift from penal treatment of prisoners to
rehabilitation and reformation12. 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.
11
Exodus 20:13, The Holy Bible
12
Human Rights Commission, NHRI Submission for Zambia’s third universal periodic review- November 2017
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 value13. 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. However, the death penalty should be included as a major
punishment in Zambian criminal law because it reinforces the criminal
justice system as suggested by Organizations such as Amnesty
International.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
peace15. 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 penalty16. 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,
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
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?’

Footnotes

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 commutal 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

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)