EXAMINING THE EXTENT TO WHICH DEATH PENALTY IN ZAMBIA IS A

VIOLATION OF HUMAN RIGHTS-RIGHT TO LIFE

By Mwape Kasanda

This paper was submitted to the examination body of the University of Lusaka,

Zambia as a Partial fulfilment of the requirement to Bachelor of Laws

Undergraduate Degree in 2015.

1
CHAPTER ONE

1.0 Introduction

This chapter outlines the nature and scope of this study. It gives the background to

the problem, its object, and the guiding questions to the study and finally deals with

the method of study.

1.1 Abstract

Death penalty as a form of punishment for offenders has been employed as far as

organised humanity has existed. The method of execution has differed from culture

to culture and probably generation to generation. Historical records show executions

by beheading, being fed to wild beasts, stoning in public square as well as crucifixion

among many others. The offences have ranged from stealing, infidelity which is

adultery, rebellion against authority, killing, religious apostasy, etc. The essence of

such punishment was to make the offender pay for his/her sins, and warning to

would- be offenders as some of the reasons. In recent years there has been calls to

end the death penalty. The calls to do away with capital punishment have been

based on the number of reasons and one of them is that death penalty is a violation

of human rights- the right to life.

1.2 Background

The debate over the abolition of Death Penalty has continued to receive international

attention culminating into 140 countries by 2013 1, expunging capital punishment off

their national laws.

1
Amnesty International Report, 15 March, 2014: http://www.amnesty.org/en/

2
Some international organisations such as Amnesty International calls it a‘ denial of

human rights’ and describe death penalty thus: “The death penalty is a symptom of a

culture of violence, not a solution to it.”2

Zambia is a signatory to various International Conventions on the protection of

Human Rights. Additionally the Zambian Constitution 3 recognises the fundamental

rights and freedoms of an individual under Article 11, however it also provides for the

capital punishment under Article 12(1). The penal code Cap 87 of the Laws of

Zambia4 under section 24 (a) provide for capital punishment too.

There has been calls from various stakeholders for Zambia to abolish the death

penalty calling it ‘serious violation of the sanctity of human life’ while other voices are

for the maintenance of the current legal provision. Those that are against the death

penalty refers to the conventions that Zambia has ratified on the protection of

human rights, the trends in Europe as well as the United States of America were

most countries and states respectively have abolished the death penalty.

Furthermore some countries in the Southern African region such as South Africa,

Angola, Namibia, and Mozambique to name some have repealed laws relating to

death penalty.5 It is for this reason that this research paper wishes to seek clear

understanding of Article 12(1) of the Constitution 6 as well as Section 24 (a) of the

Penal Code Cap 87 of the Laws of Zambia against the back drop of the human right

conventions.

2
Ibid
3
The Constitution of Zambia, Cap 1
4
Penal Code , Cap 87 of the Laws of Zambia
5
http://www.wikipedia.org
6
Op cit. Cap 1

3
1.3 Statement of the Problem

The calls to have the Death Penalty repealed from the Constitution of Zambia,

arguing that life is sacred has been going for a long time. And that the right to life is

the basis of all human rights without which all the other rights of human existence

are baseless. However Article 12(1) of the Constitution 7 provides for death penalty to

be meted out on the offender of specified crimes in the Penal Code, Cap 87 8 of the

Laws of Zambia; while Article 11 recognises life as a fundamental human right. In

addition, Article 15 provides that a person shall not be subjected to torture, or

inhuman or degrading punishment or like treatment 9. There seems to be a

contradiction in the current law which ought to be inquired into.

1.4 Objectives of the Study

(i) To inquire into the object of providing for death penalty against the Universal

Declaration of Human Rights and The African Charter On Human and

Peoples’ Rights to which Zambia is a party.

(ii) To analyse the advantages and disadvantages of the Death Penalty

(iii) To refine current understanding of Death Penalty

1.5 Research Questions

(a) What purpose does death penalty serve on the Zambian Statute?

(b) Should death penalty be abolished or maintained?

(c) Has death penalty contributed to reduction of crime in Zambia, if at all?

7
Ibid. Article 12(1)
8
Op cit. Penal Code
9
Ibid. Article15

4
 (d) Does criminal justice deal with complex murder cases in the absence of

forensic technology such as DNA?

(e) Are there probable challenges in executing a death sentence?

(f) Does the judicial system ensure the right to justice for the offender?

(g) Does death penalty violate the right to life?

1.6 Justification of Study

It is important to undertake this research in order to contribute to the understanding

of the rationale behind those countries who have abolished the death penalty as well

as those who insist on the death penalty. Help contribute to the reservoir of

knowledge around this subject to benefit the various contending stakeholders in

Zambia.

1.7 Scope of Study

The study will focus on the following laws that relate to Death Penalty and the right to

life in Zambia:

(i) The Republican Constitution

(ii) The Penal Code, Cap 87

(iii) The Criminal Procedure Code, Cap 88

(iv)The Human Rights Act No 39 of 1996

(v) Case Law (Zambian & Foreign)

(vi)International Conventions e.g. The Universal Declaration of Human Rights,

African Charter on Human and Peoples’ Rights

5
In order to fully explore this subject, reference shall be made to the United States of

America where the system has some states with the death penalty while others have

abolished the death penalty. This will help draw some inferences in the practice of

the death penalty and its relevance if at all.

1.8 Methodology

1.8.1 Data collection Methodology

The data collection and methodologies used in the research constituted random and

scheduled interviews with some ordinary people as well as prominent persons in the

legal field and law enforcers respectively, for primary data. Secondary data on the

other hand was sourced from statutes, case law, books, articles, The Mung’omba

Constitution Review Report ( this report was very helpful in getting the Zambian

people’s views on capital punishment), newspapers and online publication of the

worldwide web. The worldwide web proved to be a very rich source of materials on

the subject matter.

6
Chapter two

2.1 Introduction

In this chapter the focus has been on the theories and philosophies of punishment as

advanced by various scholars.

2.2 Theories of Punishment

The early philosophers espoused the subject of punished as they debated the nature

of man and the development of city states. Thomas Hobbes once said that in the

state of nature ‘people were nasty, brutish and their life was short and therefore

needed some form of control’10. In John Locke’s view the people in the state of

nature agreed a social contract in order to establish a formal law. 11 In Rousseau’s

view, the social contract was done for the security of property and liberty. 12

Thus from the very beginning of a state, the concept of crime and ways of preventing

it or if not, punishing the wrong-doer existed. The punishment system is an integral

part of criminal justice and for maintaining social security. The progress of civilization

has resulted in the change in the theory, method and motive of punishment.

Punishment can be used as a method of reducing the incidence of criminal

behaviour either by deterring the potential offenders or by incapacitating and

preventing them from repeating the offence thereof, by reforming them into law-

10
Conway Charles (1971): Jurisprudence, 10
11
Ibid. P23
12
Ibid.23

7
abiding citizens. Thus, theories of punishment comprise policies regarding handling

of crime and criminals.

They are classified into four kinds. All these are not mutually exclusive and each of

them plays an important role in dealing with potential offenders. The theories of

punishment are:

(a) Deterrent theory

(b) Reformative theory

(c) Retributive theory

(d) Preventive theory

2.2.1 The Deterrent Theory

The deterrent theory is a utilitarian theory which suggests that a criminal must be

treated in such a way that those contemplating similar or same crimes are made to

think twice about breaking the law 13. In other words it is believed that punishing the

offender sends shivers in the minds of those thinking about committing similar

offences. It stops others from breaking the law.

Under the utilitarian philosophy, laws should be used to maximize the happiness of

society. Because crime and punishment are inconsistent with happiness, they should

be kept to a minimum. A utilitarian understand that a crime-free society does not

exist, but they endeavor to inflict only as much punishment as is required to prevent

future crimes14.

13
Ibid.27
14
Op cit. p27

8
The utilitarian theory is consequentialist in nature. It recognizes that punishment has

consequences for both the offender and society and holds that the total good

produced by the punishment should exceed the total evil. In other words, punishment

should not be unlimited.

One illustration of consequentialism in punishment is the release of a prisoner

suffering from a debilitating illness. If the prisoner's death is imminent, society is not

served by his continued confinement because he is no longer capable of committing

crimes.

Under the utilitarian philosophy, laws that specify punishment for criminal conduct

should be designed to deter future criminal conduct. Deterrence operates on a

specific and a general level. General deterrence means that the punishment should

prevent other people from committing criminal acts. The punishment serves as an

example to the rest of society, and it puts others on notice that criminal behavior will

be punished.

Specific deterrence means that the punishment should prevent the same person

from committing crimes. Specific deterrence works in two ways. First, an offender

may be put in jail or prison to physically prevent him/her from committing another

crime for a specified period. Second, incapacitation this is designed to be so

unpleasant that it will discourage the offender from repeating his/ her criminal

behavior. Total incapacitation would mean life imprisonment without possibility of

parole or ending the life of the offender by execution.

The deterrent theory according to Hatchard and Ndulo: “ … is based on the premise

that when punishment is harsh and severe, criminals and would-be criminals will be

9
frightened and thus deterred from committing crimes. The theory is supposed to

operate on two levels.

Firstly it is supposed to deter ordinary members of society who have not yet

indulged in criminal behaviour, and secondly, it is intended to deter offenders by

making prison experience unbearable, and therefore an object lesson.” 15

2.2.2 The Reformative Theory

The fading of faith in the inflicting of pain with the spread of humane thoughts, belief

in re-educating the criminal to enable the offender become a useful member of

society developed. Individual women and men are considered from the economic

point of view to be the most valuable assets of any society. This is why the offender

ought to be rejuvenated or transformed into a resourceful and dependable member

of a society. As Hatchard and Ndulo puts it, “…the reformative theory sees in the

readjustment of the offender to the demands of society the greatest need of the

criminal justice system. It proceeds on the basis that a prisoner is a sick person. You

do not punish a sick person; you send them to the hospital to be cured. It is a

realization that the criminal even if he has broken a rule of society and has

endangered the existence and its order, he is still a member of the society and has

to be treated as such.” 16 It is a considered view of this theory that society might have

contributed to the events that led to the commission of the offence. Society may

have failed the offender at a time help was needed. For example, society might have

failed to provide him with education so that he can learn a skill and be self-reliant.

15
Hatchard & Ndulo (1994): Reading in Criminal Law and Criminology in Zambia. p69
16
Ibid. p69

10
As many surveys have shown that most criminals are uneducated, poverty stricken,

hungry and unemployed in a society of plenty. Therefore, many of them tend to

engage into criminal activities to satisfy the needs.

It is however important to point out here that the economic factor may not

necessarily be the only reason that criminals commit crimes but there are other

factors. Needless to say the economic factor is a higher probable need and therefore

calls for the reforming of the offender by providing trade or some skill while serving

the sentence. This will enable the offender to learn the honest way for providing for

oneself. As Hatchard and Ndulo states; “ By this method one can be sure to ‘save’

that section of the criminal population that violates the law because the mentally or

emotionally ill and those that commit crimes because of circumstantial factors, for

example confinement to shanties, from which they can see no escape except

through crime.”17

2.2.3 The Retribution Theory

Under this theory, offenders are punished for criminal behavior because they

deserve punishment. Criminal behavior upsets the peaceful balance of society, and

punishment helps to restore the balance.

The retributive theory focuses on the crime itself as the reason for imposing

punishment. Whereas the utilitarian theory looks forward by basing punishment on

social benefits, the retributive theory looks backward at the transgression as the

basis for punishment.

17
Ibid. p69

11
According to the retributivist, human beings have free will and are capable of making

rational decisions. An offender who is insane or otherwise incompetent should not be

punished. However, a person who makes a conscious choice to upset the balance of

society should be punished.

The act of retribution transcends beyond the limit of the law, it is a moral doctrine or

conviction that an act done by a criminal can only be negated by an appropriate

punishment commensurate with the crime committed.

This is vengeance on the criminal with a belief that the offender is getting the exact

measure of the offence committed.

2.2.4 The Preventive Theory.

The preventive theory is founded on the idea of preventing repetition of crime by

disabling the offender through measures such as imprisonment, forfeiture, death

punishment and suspension of licence.

Preventive theory was supported by utilitarian law reformers because of its

humanising influence on penal law. In their view, it is the certainty of law and its

severity which has a real effect on offenders. The development of the institution of

prison is essentially an outcome of the preventive theory of crime.

It is worth mentioning here that the four theories discussed above do not operate

independently but each has bearing on every punishment meted out to a varying

degree.

The application of capital punishment is therefore understood to be a deterrent as

well as retributive.

12
It is a deterrent because once a criminal is executed he is completely removed from

society and never to endanger society again so the proponents of death penalty

argue. They also argue as being retributive because the offender is made to pay

exactly for the act committed. He pays with his life for taking another’s life.

Chapter Three: Literature Review

3.1 Introduction

This chapter explores both secondary and primary sources on capital punishment. It

gives a historical background, as to the nature and type of capital punishment. In

addition the arguments for and against death penalty in modern states are presented

and as well as challenges of administering death penalty.

3.2 What is death penalty?

Death penalty is a mandatory form of capital punishment handed down by the state

for capital offences. In Zambia capital offences that carry death sentence is treason,

murder and aggravated robbery. In some countries such as Iran, Malaysia and

Indonesia person found guilty of drug trafficking are executed. Defining ‘punishment’

in general, Hatchard and Ndulo states; “Punishment is simply the infliction of some

form of pain or deprivation on the person of another, in this instance, by the criminal

justice system.”18

It must be noted here that the person being punished is unwilling to fulfil his societal

obligation by observing what the larger community has agreed to as being the

‘norm’.

18
Hatchard & Ndulo (1994): Reading in Criminal Law and Criminology in Zambia, p.68

13
“It is useful to remember at this point that it would appear that to inflict pain or

deprivation on another, or subject another to enforced labour, is inherently immoral.

This implies that its use in society must be justified. In this connection the ground

advanced is that it is a lesser evil than the evil it seeks to prevent, namely crime.” 19

3.3 History of death penalty

Capital punishment commonly referred to as death penalty is the taking away of a

person’s life by the state after having been convicted of a capital crime. This form of

punishment has been in existence as long as recorded history has existed. As

societies evolved and social strata were being formed and sort of organised

governance system emerged, man devised means to deal with those who acted

against organised social order.

Recorded history show that even primitive societies in ancient times punished wrong

doers by taking away their lives in offences of murder, sexual assault, stealing,

rebellion, etc. One of the earliest recorded human history shows that as mankind

formed self-governed republics, capital punishment became one means through

which certain crimes were dealt with.

Laws were written as way of notifying people about the penalties to be meted out in

the event they committed such stipulated crimes as treason, military revolt, murder,

and sexual offences. The Code of Hammurabi written on tablet of stone is the

earliest recorded or encoded law in 1760 BC 20.

19
Ibid. p68
20
http://www.crimemuseum.org/crime-library/ [accessed on 27/03/2015]

14
There were 282 laws collected by the Babylonian King Hammurabi 21. The theory of

an ‘eye for eye’ emerged during this period. Additionally other ancient religious

documents supported this kind of punishment.

For example the Jewish Torah, the Old Testament of the Christian Bible, as well as

the writings of the Athenian legislator Draco who had promulgated death penalty as

a means to punish offenders of a variety of commissions in ancient Greece. 22

In Europe during the reformation period at the height of Protestantism, Christians

who refused to submit to the teachings of Roman Catholic Church were considered

heretics. Such people were condemned to death and executed either by being

burned on a stake or fed to lions. The executions were carried out either in public

squares or theatres while people watched. This kind of execution was meant to send

a serious message that anyone found defying the Pope of Rome will be executed.

Human executions have continued in modern day societies for such offences as

murder, adultery or fornication in the Muslim world, drug trafficking, espionage,

treason, mutiny, armed robbery, etc.

3.4 Death Penalty in Ancient times

The early forms of punishment were designed to create severe pain and therefore

were slow and torturous. In ancient times certain cultures punished capital offenders

by stoning or hanging.

This was carried out either in the public square or outside the city gates. Others were

burned on the stake while others were slowly ground by elephants.

21
http://www.crimemuseum.org/crime-library/ [accessed on 27/03/2015]
22
Ibid.

15
As societies developed and became more civilised these forms of punishment were

considered barbaric and so they tried to find better and ‘humane’ way of executing

the death penalty.

The 18th and 19th centuries saw the use of the guillotine and hanging by the neck as

a faster way of administering death penalty. The executions were mostly done in

public view in order to create a sense of awe to would be offenders.

3.5 Death Penalty in Modern States

Capital punishment has continued to exist in modern states as a means of meting

out justice against offenders of stipulated capital crimes. In the United States for

example, death penalty has been in existence as long as the founding of the original

colonies.

It was utilised for a number of crimes ranging from simple burglary, counterfeiting,

arson, murder and high treason. In America prior to the revolution, for example,

legislators started to reform and revise laws and policies surrounding the death

penalty. The eighth amendment to the American Constitution in 1791 prohibited any

form of punishment considered cruel and unusual. Though this amendment was not

meant to abolish death penalty it set the tone for the campaign for humane way of

executing death penalty as well as the abolitionist movement to hit stage at a later

time.

The argument that emerged then was that the execution should be less painful but

speedily done. Today, executions in the United States of America is carried out for

offences of murder, espionage and treason.

16
In China, human trafficking and serious cases of corruption are punishable by death,

and several militaries around the world impose the death penalty for desertion,

mutiny and even insubordination. In middle-eastern countries, rape adultery, incest

and sodomy carry death penalty as does apostasy, i.e. the act of renouncing the

state religion23.

In Europe, capital punishment was in use for similar offences mentioned above.

But the world started to change its approach to capital punishment after the atrocities

of World War II (WWII). The formation of the United Nations soon after the end of

WWII in 1945 and the Universal Declaration of Human Rights in 1948 called for a

relook at the use of capital punishment for offenders. The ‘right to life’24 was declared

a fundamental human right for every person and that no one has the right to take

away another person’s life25. This point shall be explored later in the next chapter.

In Zambia death penalty has existed on the legal statutes since independence in

1964. The Zambian Penal Code Cap 87 26 at section 43, section200 and section 294

states that death penalty shall be enforced in cases regarding high treason, murder

and aggravated robbery respectively. Sections 43 and 200 were inherited from the

colonial government while section 294 was post-independence inclusion. The

colonial government had constructed a maximum security prison at Mukobeko in

Kabwe with 48 cells and a holding capacity of 96 condemned inmates.

23
Amnesty International Report: www.amnesty.org/en/
24
Art.3,UDHR
25
Universal Declaration of Human Rights 1948
26
Penal Code Cap 87 of the Laws of Zambia

17
The method of execution is provided for at section 25 (1) and at section 302 of the

‘Penal Code’ and the ‘Criminal Procedure Code (CPC)’ 27 respectively which provide

thus:

“When a person is sentenced to death, the sentence shall direct that he shall be

hanged by the neck until he is dead.”28

The execution is carried out after a death warrant is signed by the Republican

President as stipulated by the CPC at Sections 305(4), thus:

“The President shall issue a death warrant, under his hand and the seal of the

Republic, to give effect to the said decision. If the sentence of death is to be carried

out, the warrant shall state the place where and the time when the execution is to be

held, and shall give direction as to the place of burial of the body of the person

executed.

Provided that the warrant may direct that the execution shall take place at such time

and at such place, and that the body of the person executed shall be buried or

cremated at such place, as shall be appointed by some officer specified in the

warrant”.29

An appointed clergy witnesses the execution which is carried out between 0600 and

0700hours on the fateful day. The clergy prepares the convict mentally and spiritually

a day before. The condemned person is appointed 15 minutes to spend with his/her

family members before he is hanged.

3.6 Arguments for and against Capital Punishment

27
Ibid
28
Criminal Procedure Code Cap 88 of the Laws of Zambia
29
Ibid

18
In Zambia like in other countries where death penalty is a thorny issue, similar

arguments have been advanced for and against capital punishment. Firstly views of

those who are pro death penalty are presented and followed by anti-death penalty.

Some of the arguments are as follows:

(i) Death penalty is an effective deterrent

According to the proponent of capital punishment, they strongly believe that death

penalty is an effective deterrent to homicide30.

The justification put forward is that, every person is afraid to die and therefore, no

one would want to commit a crime that would have their own live executed by the

state. This argument however is not backed by tangible statistics.

(ii) It is the ultimate warning

Proponents of death penalty argue that it is an ultimate warning to would be

offenders. It is believed that by being aware of the consequences of murder, would

be offenders try by all means to avoid offences that would ultimately lead to their

own execution by the long arm of law. The severity of the death penalty dissuades

the criminal minded persons to think twice about killing another person because

when caught they have to pay with their own lives.

(iii) It provides closure for victims family

The proponents of death penalty argue that death penalty brings about closure for

the victim’s family. The pain experienced while the murdered underwent trial comes

to a close when he is found guilty, sentenced to death and finally executed. Flame

Horse writes:

30
The pros and cons of the death penalty in the USA: www.capitalpunishmentuk.org/thoughtsUS.html

19
“Their grief begins with the murder. It may not end with the murderer’s execution; the

execution does however engender a feeling of relief at no longer having to think

about the ordeal- a feeling which often fails to arise when the murderer still lives

on.”31

A system in place for the purpose of granting justice cannot do so for the surviving

victims, unless the murderer himself is put to death.32

(iv) Death penalty is all that would-be criminals fear

According to proponents of death penalty the only ultimate punishment that criminal

fears is death penalty.

Proponents cite examples of the numerous appeals made by convicted murderers in

the hope of having their murder conviction reduced to jail term. For instance in the

US Ted Bundy a serial killer in 1970s was convicted of murder and sentence to

death used all possible legal channels to fight oneself off the hook. Kevin Sullivan

writes:

“Bundy defended himself in prison interviews by blaming pornography for causing his

uncontrollable teenage libido, and for causing him to think of women as objects and

not humans. He attempted to have his death sentence commuted to life without

parole by explaining that it was all pornography’s fault, and that had it never existed,

he would have been a good person.

When that didn’t work he pretended to come clean and tell police where the bodies

of unfound victims were, so that their families could have closure. He never once

admitted that he was a bad person and just before his execution, he claimed that he

31
Flame Horse: “5 Arguments For and Against the Death Penalty” http://listverse.com/2013/
32
Op cit.

20
hadn’t done anything wrong. It was obvious that he feared being put to death. He did

his best to avert it. This means that he did not fear life in prison- at least not as much

as he feared capital punishment. He might have done it a month before his

execution, when all hope for clemency was gone- but he was afraid of death. How

many would-be murderers have turned away at the last second purely out of fear of

the executioner’s needle?”33

(v) Death Penalty is the answer to murder

It is believed by proponents that death penalty is the answer to the offence of

murder. As Henry Kyambalesa in his article ‘The Death Penalty in Zambia’ published

in the Lusaka Times (Online publication of 1 st October 2009) stated:

“People who commit murder in societies which has capital punishment already know

the consequences associated with such a heinous crime. For such people the

punishment therefore, is self-inflicted; after all it is a punishment every society

member can choose to avoid in the first place! Is it not immoral to protect a life of an

individual who finds pleasure in committing murders- the ultimate disregard for other

people’s lives?”34

Flame Horse also pointed out that, “The justice system basically attempts to mete

out punishment that fits the crime. Severe crimes result in imprisonment. ‘Petty

larceny’ is not treated with the severity that is meted to’ grand theft auto’, and

consequently receives more time in prison.

33
Op cit.
34
Kyambalesa H (2009): The Death Penalty in Zambia; www.lusakatimes.com/org

21
So if severe but non-lethal violence toward another found deserving of life without

parole, then why should premeditated homicide be given the very same punishment?

This fact might induce would be criminal to go ahead and kill the victim he has

already mugged and crippled. Why would it matter after all? His sentence would not

get any worse.”35

If murder is the wilful deprivation of a victim’s right to life then the justice system’s

wilful deprivation of the criminal’s right to the same ,even if overly severe crime that

can be committed.

Without capital punishment, it could be argued that the justice system makes no

provision in response to the crime of murder, and thus provides no justice for the

victim.

(vi) It is immoral to spend money on murderer on life sentence

According to the proponents of death penalty, it is immoral for government to spend

law abiding tax-payer money on convicted murderers. Kyambalesa puts it this way:

“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

to the protection of and upkeep of murderers sentenced to life imprisonment.” 36

3.7 Arguments against Death Penalty

35
Op cit.
36
Op cit.

22
Opponents to death penalty have advanced a range of arguments justifying why

death penalty should be repealed. This section will present some of the arguments

from the liberals in the US, Amnesty International and other human right activists in

Zambia.

(i) The death penalty is itself an affront to the principles of liberalism,

humanism and equality.

The liberals do agree with the opponents of death penalty that the fundamental

underpinning of any just society is the due process of law, but the death penalty

compromises that. They argue that too many factors contribute to the compromise,

such as race, economic status and access to adequate legal representation. These

factors contribute to preventing the judicial process from guaranteeing that each of

the accused persons gets due process of the law.

They argue that, “the death penalty in the US is applied in an unfair and unjust

manner against people, largely dependent on how much money they have, the skill

of their attorneys, the race of the victim and where the crime took place. People of

colour are far more likely to be executed than white people especially if the victim is

white37.

(ii) The death penalty is both ‘cruel and unusual’ punishment

They argue that death penalty is cruel and dehumanising. It is barbaric and has no

place in a civilized society.

37
Mary Meehan (1982): “Ten Reasons To Oppose the Death Penalty” www.lawteacher.net/

23
 It denies an individual of due process of law by imposing irrevocable punishment on

them and depriving them an opportunity from ever benefiting from new technology

that may provide later evidence of their innocence. It is state sponsored murder

which violates the fundamental human rights- the right to life. They agree with the

Catholic Church that teaches that, ‘We cannot teach that killing is wrong by killing’38.

It is cruel and subjects the prisoner to inhuman treatment which violates the

Convention Against Torture and other inhuman treatment (CAT) For example it has

been argued by proponents of death penalty in some jurisdictions like the US that

cruelty should not legally be tolerated- but quick to point out that, the methods of

execution used in the US are so efficient that it ensures that the condemned is killed

before he/she could feel the pain. The methods employed in the US are lethal

injection, electrocution, hanging and firing squad. But contrary to these assurances

the report of Silos- Rooney Jill in the following cases proved otherwise:

Arizona v Joseph R Wood III: - Joseph killed his girlfriend and her father in 1989;

he was convicted of first degree murder and sentenced to death. But his execution

25 years after the crime went terribly wrong. The lethal injection did not kill him

instantly but he agonised in pain gasping and choking for nearly two hours prompting

his attorney to appeal to the Supreme Court Justice hoping to have a federal order to

administer life saving measures.39

Ohio v Dennis McGuire and Oklahoma v Clayton D Lockett in this both cases the

men experienced prolonged suffering and pain before finally dying. 40

(iii) Death Penalty fails to rehabilitate

38
Bedau H & Radelet M (1987): “Miscarriage of Justice in Potentially capital cases” 40 Standard Law Review 21
39
Silos-Rooney J: “New Challenges to the Death Penalty” http://usliberals.about.com/od/deathpenalty/
40
Ibid

24
One of the purposes of punishment in the criminal justice system is to rehabilitate the

offender. Unfortunately, because of its finality the death penalty does not give a

chance to the offender to reform.

(iv) Killing of a murderer does not restore the life of the victim

The killing of a murderer by the state does not bring back the lost life of a loved one.

Hatred by society may pile up like a mountain against the murderer crying for his

blood but still it will not fill the gap left by the murdered loved sister, brother,

son ,daughter, nephew, niece, father, mother, grandpa or grandma, etc. To the

contrary a murderer given a chance of reformation may become a better person and

contribute to the well-being of society.

Society should not turn into a giant killing machine nay. It should be there to

rehabilitate social deviants and make them better members of society.

(v) Death penalty does not deter crime

It has been highly acclaimed by the proponents of death penalty that, it deters crime.

To the contrary studies conducted in the US have shown opposite results. In the

1950s a distinguished and highly respected Sociologist Thorsten Sellin conducted a

study in which he compared homicide rates in the states next to and/or similar to

states that retained the death penalty. His conclusion was that: “Homicides rates are

conditioned by other factors than death penalty.” 41

This conclusion was supported by another study conducted by two Sociologists

Recless and Bowers between 1969 and 1974 42 respectively. Their research got

similar results by comparing the homicide rates before and after in:

41
Samaha J: (2001): Criminal Justice p396
42
Ibid p394

25
 (a) States that abolished death penalty

(b) States that imposed a moratorium on death penalty

(c) States with highly publicised executions

(d) States with mandatory death penalty with states with discretionary death

penalty.

They too did not find any deterrent effect. Additionally, Sellin did not find any

statistical support for the proposition that law enforcement officers are safer in death

penalty states than those states without it.

Another study conducted by Professor Craig J Albert on deterrent effect, yielded

negative results. Professors Craig applied regression analysis in state-by- state

homicide data from 1982 to1994.

His regression variables included economic conditions, demography that is youth

and race, population and alcohol consumption. His conclusion was:

“The data do not support any conclusion that executions deter homicides” 43

It was reported for example by US Bureau of Justice that, “the murder rate for states

with death penalty is often higher than for those without.

Texas had a homicide rate of 5.4/100,000 population in 2009 while Iowa which has

no death penalty has a homicide rate of 1.1/100,000 population in the same year.” 44

(vi) Death Penalty violates human rights and dignity

Human life is sacrosanct and should not be violated by anyone not even the state.

According to the human right activists, capital punishment overrules our most basic

43
Albert Craig J(199) Challenging Deterrence: New Insights Derived from Panel Data, P.6
44
US Bureau of Justice Case Study of California http://www.capitalpunishmentUK.org/derrence/html

26
human right-right to life. Human life has fundamental value. The blessedness of

human life is denied by the death penalty as one prominent human right activist Elie

Wiesel said;

“I do not believe any civilised society should be at the service of death. I don’t think

it’s human to become an agent of the Angel of Death.” 45

A state has a duty to protect human rights within its boundaries. And one of the

principle right on which all other rights hinge is ‘the right to life’46 without which the

rest of the rights are meaningless; as Kratochvil, stated thus:

“Consequently, the right to life is one of the most important human rights as it is the

most basic one. The other rights are based on the fact that one lives. Without the
47
right to life, all other rights will become illusory.”

Amnesty International argues that death penalty is a denial of human rights as

enshrined in the Universal Declaration of Human Rights of 1948 48. Death penalty is

seen as a “symptom of a culture of violence, not a solution to it.” 49

Chapter Four

4.0 The Zambian Perception of Capital Punishment

Introduction

This chapter presents the various views advanced by stakeholders over capital

punishment, purpose of capital punishment and the challenges thereof. It concludes

45
Pandia Lal Madan: “Capital Punishment” http://www.articlebase.com/criminal/article
46
Art.3 UDHR
47
Kratochvil A (2006): “Capital Punishment” http://www.criminaljusticedegreeschool,com
48
United Nations UDHR
49
Amnesty International: “Death Penalty” 2014 http://www.amnesty.org/en/

27
by bringing out arguments for and against death penalty as well as give a critical

analysis.

4.1 Views, Purpose and Challenges of Capital Punishment

As earlier mentioned, capital punishment has been on the statutes of Zambia since

independence and so the debate on the abolition was first raised during the Mvunga

Commission appointed by President Kaunda in 1989. The debate was later ignited

with the advent of the multi-party democracy in the 1990s. This subject was raised

again during the Mwanakatwe Constitution Review Commissions appointed by

President Chiluba in 1995, but was more prominent during the 2003 Mung’omba

Constitution Review Commission. One of the terms of reference for the Mung’omba

Commission was to find out from the people of Zambia if they wanted death penalty

to be retained in the constitution or not. During the Mung’omba Commission, a total

of 3227 submissions were made on death penalty with 1616 petitions for the death

penalty and 1661 against the retention of death penalty. There was a 2 percent

difference for the two opposing groups prompting the Commission to adopt a more

cautious position and recommend that the death penalty be retained. However the

following prior observations were made by the Commission:

(i) That both the Mvunga and Mwanakatwe Commission, after considering the

views expressed by petitioners, concluded that the subject of abolishing death

penalty posed a fundamental question and that there should be further debate

to ascertain national consensus. The Mwanakatwe Commission observed that

both petitioners and Commissioners could not reach a consensus on the

abolition of death penalty, but because the majority of the Commissioners did

28
 not support the abolition of death penalty, it recommended the retention of

capital punishment.50

(ii) The Commission is of the view that Zambia has not reached a stage where it

can abolish this sentence because it does not have an alternative way of

protecting victims of violent crime which can serve as deterrent to would be

offenders. The Commission fears that abolition of this sentence could trigger

an increase in the number of cases of violent crime.

(iii) The Commission is of the view that the only effective way of protecting

society against cases of violent crime, at the moment, is the retention of the

death penalty.51

The Commission though made the above observations and recommendation, to

retain the death penalty, they also highlighted some misgivings expressed by some

petitioners which are critical to be considered being:

(i) The manner in which the sentence is carried out in Zambia is cruel and

inhuman.

(ii) The long delay in the execution of this sentence also contributes to the cruelty

of this penalty.

And because of the concerns raised by the petitioners, the Commission agreed to

the observations and stated that “… a humane way of administering this sentence

should be found.”52 The humane way is a method of a executing condemned

offender speedily with little or no pain at all. In other words one which is not torturous

and dehumanising.

50
The Mung’omba Commission Report (2005),P128
51
Ibid. P132
52
Ibid P132

29
But experience has shown that the lethal injection used in most States that have

death penalty and considered more humane can actually fail. This was proved in the

cases of Joseph R Wood III of Arizona, Dennis McGuire of Ohio and Clayton D

Lockett of Oklahoma that the method was not humane. That is the method can be

very torturous and painful.

It remains therefore to be seen what humane method Zambia will have to come up

with.

Another point of interest from the Commissioners is the conclusion that ‘this is an

emotional issue which requires national consensus. This is true the subject of death

penalty is emotional and since human emotions fluctuate the views on the subject

also fluctuate according to the rate of homicide crimes and publicity they receive at

the time the opinion poll is conducted.

The human emotionalism on death penalty was displayed in the opinion polls

conducted in the US states still using capital punishment.

The Frank Newport Report of 2001,(as quoted by Samaha, 2004) 53 showed that the

support for death penalty in the US is around 50 per cent even when the

respondents are given a choice between death or life without possibility of parole.

But this changed when there was a horrible crime issue. For example 81 per cent

supported death penalty for Timothy McVeigh. He had killed 168 innocent people

including many children. The statistics included the 58 per cent who usually said

were opponents of death penalty. Obviously a huge majority had no problem with

death penalty in his case for three reasons: The public was convinced they were not

killing an innocent person, he had made public confessions; McVeigh said he wanted
53
Samaha J: (2004): Criminal Justice, p 397

30
to die; and the crime was horrific, killing 168 innocent people, including many

children.54

Another argument advanced by the Mung’omba Commission is that Zambia does not

have an alternative sentence to ‘deter’ would be offenders to replace death penalty is

not supported by any empirical data as already stated earlier. Despite having death

penalty from independence, violent crimes have continued to increase. For example

the 1974 amendment of the Penal Code introduced death sentence for Aggravated

robbery involving an offensive weapon from the maximum jail term of 15 years. The

parliament’s view was then that this will act as deterrent. However Hatchard and

Ndulo observed that this Act had only a temporal effect only up to 1977, “and from

1978 onwards the rate rose again sharply. By 1986 the number of reported robberies

had risen to an all-time high of 4426. This leads to an inevitable conclusion that the

severe penalties had only a very temporary deterrent effect.

This may well relate to the fact that the ‘clear up rate’ is very low. Since 1969 up to

80 per cent of all reported robberies remain unresolved by the police.

This failure to apprehend offenders means that the most effective deterrent to crime

is largely absent, and thus the fear of punishment is much reduced because chances

of detection are very low.

Accordingly, it is argued that merely increasing the penalties for an offence cannot

solve the problem, and emphasis be placed much more on the prevention of

crime.”55 The table below of incidents of aggravated robbery in Zambia, 1964-1982

illustrates this point:

54
Ibid
55
Op cit. Hatchard & Ndulo. P83

31
Incident of robbery in Zambia,1964-1982

Year Number of reported robberies Rate per 100,000 of population

1964 319 8.7

1965 439 11.6

1966 545 14.0

1967 571 14.2

1968 946 23.4

1969 1,316 32.0

1970 1,330 32.2

1971 1,488 33.9

1972 1,637 36.1

1973 1,754 37.4

1974 1,688 35,9

1975 1,431 28.7

1976 1,315 25.5

1977 1,676 31.6

1978 2,264 41.3

1979 2,250 39.8

1980 2,645 46.6

1981 3,138 54.1

1982 3,437 58.3

Sources: Zambian Police Annual Reports and Monthly Digest of Statistics.

This point was echoed by most of the respondents from judiciary and police

departments making reference to sentence of aggravated robbery (involving use of

weapon) which introduced mandatory death penalty. The respondents said that

when the Act was amended the crime rate was expected to drop significantly but this

32
increased to unprecedented levels, dispelling the assertions that death penalty

deters crime. Furthermore, Justice Kamwendo when passing sentence in the case of

The People v Musanshiko Hyven 2014 (unreported) HCZ, at Kitwe in his dicta said:

Cases of criminals beating up innocent people to death are on the increase and that

such offences should not be tolerated. The courts have a duty to impose deterrent

sentences to send a message to would be offenders. 56

In this judgment Justice Kamwendo impliedly confirmed that despite the sentence of

death penalty being meted out by the courts, the violent crimes are still on the

increase and not reducing as expected.

4.1.1The Right to Justice

One of the basic principles of the rule of law is the right to justice. This principle is

provided for under Article 18 of the Constitution, for protection of the rights of

offender thus:

If any person is charged with a criminal offence, then, unless the charge is

withdrawn, the case shall be afforded a fair hearing within a reasonable time by an

independent and impartial court established by law. 57

The article has the following important provisions:

(i) right to be heard

(ii) right to be informed of the nature of the offence

56
The People v Musanshiko Hyven (2014) Unreported, HCZ
57
Op cite Art. 18

33
 (iii) right to access of the courts of law (within a reasonable time) which are

fair, impartial and independent

(iv)right to a well-reasoned and expeditiously delivered justice

(v) right to benefit from one’s judgment through execution

It is extremely difficult for the poor and vulnerable to get the full benefit of the ‘Right

to Justice’ as articulated by the Constitution. The poor people’s cases are delayed in

and poorly represented. One of the contributing factors to this scenario is the heavy

case load that Legal Aid handles.

The US Human Rights 2009 Report on Zambia observed thus: “While there are

ostensibly public defenders available both at the trial level and on appeal, public

defenders often struggle under the weight of a heavy caseload, which undoubtedly

impairs the quality of legal representation they are able to provide.” 58

This is evident through statistics which show that most of the prison population at

remand, jail and death row are from poor and vulnerable and those from low income

group who can hardly afford legal fees and other reasons earlier highlighted.

The Mung’omba Commission observed that “most petitioners who made submission

on this subject expressed concern at delays in the disposal of cases by courts and

detentions of suspects for long periods without trial.” 59

It suffices point out here that, delays of court cases are not just at trial stage but

worse at appeal stage. This is due to the fact that Legal Aid Board that provides free
58
US Department of State, 2009 Human Rights Report: Zambia Denial of Fair Public Trial
59
Op cite

34
representation to those who cannot afford legal fees, is overwhelmed with cases.

This leaves most offenders to represent themselves and if such offenders are

convicted at trial it becomes difficult to file appeals from jail. This is so because they

can only file their appeal through the Officer –in Charge at the prison. During this

process some files are misplaced leading to long incarceration without hearing

appeal. For example, one Benjamin Miti on death row had been waiting for the

appeal hearing against his death sentence for over 19 years. 60

The issue of delayed hearings of appeals came to light on 4 th April, 2012 during the

visit of Dr Guy Scot, Vice President to Mukobeko Maximum Prison.

Then Vice President was informed that 45 case records for death row appeals had

gone missing while appeals took long to be heard. Benjamin Miti lamented; “Even if

you did not believe in God, when you are brought here, you can never go back to

your old life, because life here is bad.

My fate is yet to be decided because the Supreme Court, where my appeal case is

has informed us that it is unable to trace my case record. So I have to wait. Imagine I

have lived for 19 years without knowing my fate!” 61

This scenario reported at the maximum prison is a common phenomenon for other

prisoners incarcerated in other prisons for ranging jail terms who have convictions

pending appeal. It is not unusual for case records to go missing or exhibits even for

cases that have not commenced due to corruption lamented one of the respondents.

4.1.2 Challenges of Executing a Death Sentence

60
“Hands off Cain: Zambia Abolitionist de facto” http://www.handsoffcain.info/
61
“Hands off Cain: Zambia Abolitionist de facto” http://www.handsoffcain.info/

35
There have been challenges executing the death penalty in Zambia for varying

reasons according to the respondents. Some of the challenges cited are as follows:

(i) Death warrant is only signed by the President

(ii) Christian Nation Declaration and De facto moratorium

(iii) Misconduct by government

4.1.2.1Death warrant is only signed by the President

If after the death sentence has been passed and there is no appeal, or on appeal if

the appeal is dismissed, the Judge shall cause a report to the President as soon

practicable possible.

After studying the case the President shall then decide whether to issue a death

warrant or other decision appropriate as provided for at sec.305 (4) of the CPC:

The President shall issue a death warrant, an order for the sentence of death to be

commuted, or a pardon, under his hand and the seal of the Republic to give effect to

the said decision. If the sentence of death is to be carried out, the warrant shall state

the place where and the time when execution is to be held, and shall give direction

as to the place of burial of the body of the person executed. If the sentence is

commuted for any other punishment, the order shall specify that punishment. If the

person sentenced is pardoned, the pardon shall state whether it is free, or to what

conditions (if any) it subject:

The warrant may direct that the execution shall take place at such time and at such

place, and that the body of the person executed shall be buried or cremated at such

place, as shall be appropriated by some officer specified in the warrant. 62

62
Sec 305(4) of the CPC Cap 88

36
As 2013 there were 367 condemned prisoners at Mukobeko Maximum Prison, a

facility meant to hold 96 prisoners. 63 This is a violation of a prisoner’s rights. But if

the President does not give any direction after he has studied the case, the

condemned prisoner will continue to languish in jail awaiting his day of execution.

It is such Presidential delays and court delayed hearings of appeals against

conviction that has contributed to the overcrowding at Mukobeko Maximum Prison.

4.1.2.2 Christian Nation Declaration and De facto moratorium

The Second Republican President Dr FTJ Chiluba declared the Republic of Zambia

a Christian nation in 1993. And he was the last to sign a death warrant in 1997 for

the execution of 8 condemned prisoners. This sparked some condemnation from the

church and other human right interest groups who called for the abolition of death

penalty. The execution report was carried in the Times of Zambia to the effect that

eight condemned prisoners were executed and that on the same day President

Chiluba pardoned 600 prisoners. 64 Since then the last three Presidents:

Mwanawasa, Banda and Sata refused to sign any death warrants except commuting

death sentences to life, jail terms and releasing some. As was expressed by one

senior police officer during interview that there is a strong Christian belief that life is

sacred and that no one has a right to take it away not even the state.

He referred to Jesus’ action when a woman caught in adultery, the punishment of

which was death by stoning, Jesus asked the crowd that whoever had not sinned be

the first to throw a stone. But none did and Jesus sent away the woman and told her

not to sin any more. This he said was a new dispensation Jesus was advocating,

63
“Hands off Cain: Zambia Abolitionist de facto” http://www.handsoffcain.info/
64
Times of Zambia of January 27 1997, edition

37
reformation of offenders by society. This is in contrast with the Mosaic Law which

advocated an ‘eye for eye’ and a ‘tooth for tooth’. President Mwanawasa is quoted to

have said:

“People can’t be sent to the butcher like they were chickens, and as long as I am

President, I will not sign any order of execution. I don’t want to be the executioner’s

boss.”65

But despite the de facto moratorium on executions courts have continued to convict

offenders of capital crimes and handing out death sentences. This is because the

legal provision currently does not give any discretion to mete out a sentence contrary

to the one specified by law. Judges would rather have an optional sentence apart

from the mandatory death sentence. For instance, High Court Commissioner

Anthony Nyangulu was reported by the Human Rights Watch when sentencing two

men convicted of murder as having said that; “Zambian law requires that anyone

who is found guilty of murder should be sentenced to death and the court has no

discretion to rule otherwise.”66

Similar sentiments were expressed by Supreme Court Judge Gregory Phiri sitting as

High Court Judge during the case of The People v Beatrice Hangwende & three

others (2011) HCZ [unreported].

Judge Phiri lamented thus: “My hands are tied and I cannot hand down any sentence

apart from death sentence for murder and attempted murder as required by law.” 67

4.1.2.3 Misconduct by Government Actors

65
“Death Penalty Out Mwanawasa” http://www.lists.washlaw.edu/pipermail/deathpenalty/
66
http://www.humanrightswatch/zambia
67
http://www.lusakatimes.com/2011/07

38
According to some respondents, convictions in some cases are obtained by

fraudulent means while admitting that some wrongful convictions are caused by

honest mistakes. Acts of fraudulence include obtaining evidence from accused

person by coercion or torture.

But in far too many cases, the law enforcement officials and prosecutors who are

responsible for ensuring truth and justice lose sight of these obligations and instead

focus solely on securing convictions. In some instances no thorough investigation is

carried out but matters are rushed to court.

And because of this focus on securing convictions, maladministration of justice is

inevitable. Some of the common cited misconducts are here below:

Misconduct by law enforcement officials include:

(i) Employing suggestion when conducting identification procedures

(ii) Coercing false confessions

(iii) Failing to turn over exculpatory evidence to prosecutors

(iv) Providing incentives to secure unreliable evidence from informants

Misconduct by prosecutors include:

(i) Withholding exculpatory evidence from defense

(ii) Deliberately mishandling, mistreating or destroying evidence

(iii) Allowing witnesses they know or should know are not truthful to testify

(iv) Pressuring defense witnesses not to testify

39
 (v) Making misleading arguments that overstate the probative value of

testimony68

This misconduct by government actors does not just end at securing convictions but

extends through appeal stage. This was observed by the United Nations Human

Rights Committee in their 2005 report. The report said:

“There is evidence that the Zambian government has manipulated sentences after

their imposition without formal judicial review, or that grave administrative errors

have occurred. A prisoner had been transferred off and back on the Death Row

keeping him in the dark as to status of his appeal, and then preventing him from

meeting the requirements for an amnesty of commutation issued by the President.” 69

Another case that demonstrates government misconduct is that of Kambarage

Mpundu Kaunda v The People (1992) SJ.1 (S.C) in which the Appellate Court held

the following:

(i) That in view of the DPP’s public statement that the appellant would

not be prosecuted for homicide on the ground of self-defence, the

right to prosecute thereafter was lost for reasons already given;

(ii) That as the prosecution eye witnesses were relatives or friends of

the deceased and could, therefore, have had a possible bias

against the appellant, and as they were the subject of the initial

complaint by the appellant as having attacked him and his friends

and therefore, had a possible interest of their own lives to serve,

68
http://www.publishyourarticles.net/
69
http://www.UN.CCPR,com/communication No1132/2002UN.Doc/CCPR/c/85/D/1132/

40
 failure by the trial judge to warn himself and specifically to deal with

this issue was a misdirection;

(iii) That the appellant acted in self-defence and was therefore, not

guilty of murder.

This is an appeal case after a conviction of murder by the lower court. The brief facts

of the case before the trial court were that the appellant was driving a Toyota Corolla

from Chamba Valley through Kamanga Compound when he alleged to have met a

group of people travelling in the same direction. The driver slowed down to 25km/h

and sounded the horn twice so the group could give chance for him to pass. But as

they drive past the group, the appellant alleged that they heard two bangs on the car

one on the side of the passenger and the other on the rear screen. The appellant

drove the car to the extreme left and due some embankment, the car stopped. The

passenger got out and fired a shotgun in the air. The appellant also got out fired his

pistol four times in the air and the fired four more shorts over the heads of the people

one bullet got the deceased striking her in the back of her head. She was

pronounced dead at UTH.

The DPP declared publicly that the accused would not stand trial because he acted

in self-defence. The matter was later re-opened and charged the appellant with man

slaughter which was substituted with murder by the trial judge.

There are certain issues that the Appellate Court glossed over when analysing

evidence before overturning the conviction of murder by the trial court. There are

three of these:

41
 (i) That the defence evidence was that, there were two crowds advancing

towards them so there was imminent danger;

(ii) That the prosecution witnesses were friends of the deceased who lied to

save their own lives due to the complaint the appellant laid against them

as having been attacked;

(iii) That the appellant and his friends managed to apprehend one Kaonga

among the group and took to the police station.

The observations on this evidence is that the bullet that killed the victim hit her in the

back of her head. There is no way an assailant would run backwards in order to

attack someone. This is a person fleeing from danger and not the other way round.

The group was actually running away after the warning shots were fired and so

posed no danger to the appellant and his friends as claimed.

The court could have considered these possibilities before dismissing the conviction

by the trial court.

4.2 Arraigning an accused person on insufficient evidence

The prosecution sometimes rush cases to court without thoroughly investigating the

matter relying on circumstantial evidence and some coerced witnesses. For

instance, in Njamba v The People.70The appellant was convicted of murder by the

trial court and sentenced to death based only circumstantial evidence and some

questionable witnesses.

The Appellate court overturned the ruling of the trial court holding that the evidence

relied upon by the trial court was insufficient to safely secure a conviction of murder.

70
Appeal No 258/2011) [2012] ZMSC 19:

42
Handling of Murder Cases

The offence of murder whose penalty is mandatory sentence of death is supposed to

be handled with a lot of care and caution to avoid miscarriage of justice.

This is because any error would be irreparable. An innocent person would end up

being executed for the offence he never committed and there is no way of reversing

such mistake. But sometimes no due diligence is accorded the matter by the

investigating officers and the DPP’s office also doesn’t help matters by ensuring that

sufficient evidence is available before sanctioning prosecution in a case like that of

NJAMBA.

Due diligence is very important when handling murder cases by all concerned that is

the investigation, prosecution defence and the bench.. This was observed by

witnesses who appeared before US Senate Committee on Capital Punishment in

1981and among them was Earl Charles, a former Death Row convict who had spent

three years awaiting execution in Georgia. They said that:

(i) Criminal justice is administered by human beings who are bound to make

mistakes. And if a mistake occurs, how do we remedy it? There is no way

of getting back the life once executed by mistake because of the flawed

justice system.

(ii) Mr. Charles faced a system where the legal apparatus was speedier and

the death penalty had been carried out more expeditiously, we would now

be talking about the late Mr. Charles and bemoaning our error.

43
 (iii) What happens when the mistake is discovered after a man has been

executed for a crime he did not commit? What do we say to his widow and

children? Do we erect an apologetic tombstone over his grave? 71

There are a number of persons executed in the United States who were later cleared

by confessions of those who had actually committed the crimes. In other cases,

while no one else confessed, there was great doubt that the condemned were guilty.

It is also possible that Zambia could have the likes of Earl Charles on the Death Row

or already executed because of human error.

Chapter Five

71
Mary Meehan, Death Penalty: http://www.americanmagazine.org/ten reasons to oppose the death penalty
[accessed on 27/2/2015]

44
Summary

In the discussion so far the opinions for and against death penalty have been

established. For those who support death penalty their arguments are based on

three theories namely:

(a) Deterrent theory

(b) Retributive theory

(c) Preventive theory

Through the deterrent and preventive theories, they argue that capital punishment

acts a deterrent.

The execution of the murderer sends shivers in other would be offenders to think

twice about taking other people’s lives or committing offences of a capital nature.

And because of the fear of death or execution by the state, crime is reduced so they

claim. But it has been demonstrated from research conducted in various

jurisdictions, where death penalty is used and places where it is not, that there are

other factors. Additionally there is no empirical and conclusive data to support the

claims of reduced crime due to execution of murderers.

The other argument is that the execution of a murderer makes sure the offender

does not repeat the heinous crime again. The executed offender is made to atone for

the life taken. That is an eye for and eye as by Mosaic Law. Society is not made to

live in perpetual fear of being killed by this murderer ever again.

All the above arguments may be valid but there is a moral and humanity

consideration.

45
The human right principle postulates that all human life is sacred even that of the

offender. It is on this basis the reformative theory developed which propagates the

reforming the offender. The opponents to capital punishment premise their

arguments on Reformative theory.

Firstly Zambia is a Christian nation and the Bible principles are that life is sacred,

killing is the greatest sin and it doesn’t matter who kills. No one has the right to take

another person’s life not even the state. This is a moral argument that an offender is

given an opportunity to reform in a civilised society. Execution of a person by the

state is killing which deprives that person an opportunity to make amends.

Secondly, death penalty creates a cycle of death in the mind of society. That is

society is made to believe that it is okay to kill. Once this is perpetuated by the state,

it will became a norm, one day people may wake up and demand to kill for any

crime. It will be difficult to get rid of evil for doing evil. The evil will ultimately double

on earth. For example the execution of the 8 condemned persons on 24 th January

1997 at Mukobeko Maximum Prison in one day did not bring about the reduction of

violent crimes in Zambia. Violent crimes have continued to rise as observed by the

learned Judge Kamwendo in the case of The People v Musanshiko Hyven [2014]

(unreported) HCZ72

Thirdly, there are occasional mistakes in executing death penalty. Judges are human

beings who are bound to err in analysing evidence before them more especially

circumstantial evidence e.g. Alfred Njamba v The People73.

Additionally because they are human they may convict a person on tramped up

charges as well as falsified evidence. There are many Death Row persons who have
72
Op cit.
73
Op cit.

46
been exonerated by DNA evidence and, or confession of the actual killers after

years of incarcerations in the US.(see a few in fig.2) It has been observed that

justice miscarry and an innocent person is executed. The margin of error may be

minimal but even one life wrongly executed by society through justice system is

abhorrence. The damage caused by such miscarriage of justice irreparable to family

and society itself. This the main problem with death penalty, it is its finality. The

human factor does not guarantee us 100% fool proof system. Even the celebrated

DNA or forensic science have shown misgivings of because of the human aspect.

Fig.2 Innocence cases

Name of Year State Conviction based on Reason for Release

Offender sentenced

1 David Keaton 1971 Florida Mistaken identification Granted retrial on

(Keaton v & coerced confession appeal, actual killer

State,273 So.2d) found, charges

dropped (1973)

2 Samuel A Poole 1973 N. Carolina Circumstantial Lacked substantial

(State v Pool, 203 evidence evidence (1974)

S.E.2d)

3 James Creamer 1973 Georgia Falsified evidence by Prosecution withheld &

Emmett v. prosecution destroyed evidence

Rickets, 397F True killer confessed

4 Clarence 1981 Texas Tramped evidence by Misconduct by

Brandley prosecution Investigation

&Prosecution Depts.

Source: http://www.deathpenaltyinfo.org

47
The aim of every person on earth is to develop to full potential. All persons have the

capacity to make mistakes, but this does not mean they cannot make amends.

Capital punishment does not give an opportunity to the murderer once executed to

make such amends. To die is easier than to live with your sins haunting you and

realize what you have done.

The number of people sentenced to death represent mainly the impoverished males

from low income groups and hardly any woman. For example there was only one

woman on the death row at Mukobeko in 1997 against 296 males. As already

mentioned, some of the condemned prisoners’ background are of those social and

economically deprived or abused individuals who vent their anger at society by

committing murders. Instead of society helping rehabilitate the condemned person,

society ends this person’s life by execution.

Another important argument by opponents of death penalty is that, it is immoral,

barbaric and a remnant of depraved and uncivilized society to execute an offender. It

is immoral in principle, unfair and discriminatory in practice.

The sacrosanct of life is the strongest amongst all arguments against death penalty.

Human rights must be protected by the state but not all the methods of protection are

admissible and possible. Even the state cannot afford to violet sanctity of life. Capital

punishment is a kind of punishment which supposes deprivation of human life. Even

if the execution is once in a while or reserved for the cruellest murderers, it is still

killing and a violation of the ‘Right to Life.’

48
CONCLUSION

Capital punishment is an unnatural as any kind of killing. It is a state premeditated

murder. It is against the principle of humanity. Some people support that kind of

punishment and think that only such severe punishment would keep our society safe.

People believe that seeing others being punished for such crimes then others will

keep away from such acts. But despite all the executions, violent crimes and

murders have continued. In such a scenario, one suitable principle to adopt in a

civilized world is the principle of humanity and tolerance.

The actions of the state are examples of the actions of all other human beings. Using

death penalty as a punishment the state pulls down the curtains of the legal norms

which it is expected to promote. Life is a gift from God and only God can take it

away. Death doesn’t correct the mistake it only neutralises. Once an innocent person

is executed no second chance, no reversal.

Recommendations

Having considered the arguments for and against death penalty and the challenges

of its administration, the Zambian government should consider the following

recommendations:

1. Death penalty should be removed from the statutes or the current defacto

moratorium should be turned into de jure moratorium

49
 2. Amend Article 12 of the Constitution Cap 1 the Laws of Zambia and repeal the

section 24, section 45, section 200 and section 294 of the Penal Code Cap 87

of the Laws of Zambia; substitute Capital Punishment with Life imprisonment

without parole

3. To sign the Second Optional Protocol toward the Abolition of Death Penalty.

4. To domesticate all human right treaties that Zambia becomes party to , or

amend the Constitution to make all International Treaties on human rights that

Zambia signs to become directly binding without going to parliament

5. Enact a law that makes questioning of murder suspects mandatory in the

presence of a lawyer at all times to protect the rights of suspects

6. Legal Aid representation to be made mandatory to the vulnerable instead of

discretionary as is the case now. This should be part of a right to justice.

7. DNA testing to be part of a mandatory protocol in investigations of homicide.

Eye witness identification testimony forms a very important component of securing

conviction in Zambia but because of its short-comings the following protocol should

be followed:

8. Blind Administration- where the officer administering the line-up is unaware of

who the suspect is, can prevent suggestive statements or unconscious

gestures or vocal cues that may influence the witness, thereby reducing the

risk of misidentification.

9. Line up Composition-filler i.e. non-suspect included in the line-up, should

resemble the eye-witness’ description of the perpetrator.

10. Further the suspect should look similar to the fillers

50
11. Instructions – The person viewing the line-up should be told that the

perpetrator may not be in the line-up and that the investigations will continue

regardless of the result. This reduces pressure on the witness to identify the

perpetrator.

12. Recording- Identification procedure should be video-taped if possible.

51
BIBILIOGRAPHY

Case Law

Alfred Njamba v The People

The People v Beatrice Hangwende & three others (2011) HCZ [unreported].

Kambarage Mpundu Kaunda v The People (1992) SJ.1 (S.C)

The People v Musanshiko Hyven 2014 (unreported) HCZ

David Keaton v State (1971), 273 So.2d

State v Samuel Poole (1973),203 SE.2d

James Creamer Emmett v Rickets (1973), 397F

Statutes

The Penal Code Cap 87

The Republican Constitution

The Criminal Procedure Code

International Conventions on Human Rights

The African Charter On Human & People’s Rights

Universal Declaration of Human Rights 1948

52
Articles

Capital Punishment." International Encyclopedia of the Social Sciences. 1968.

Retrieved May 31, 2015 from Encyclopedia.com:

http://www.encyclopedia.com/doc/1G2-3045000163.html

GREENAWALT, KENT. "Punishment." Encyclopedia of Crime and Justice. 2002.

Encyclopedia.com. 31 May. 2015 <http://www.encyclopedia

“Hands Off Cain” http://www.handsoffcain.info/

Kasankha Samuel (2008) ;Revisiting The Death Penalty; http://www.ambafrance-

zm.org/IMG/doc/CDHZ_Death_Penalty_Articles.doc

Kyambalesa Henry: “The Death Penalty in Zambia” www.lusakatimes.com/org

“Punishment" International Encyclopedia of the Social Sciences. 1968.

Encyclopedia.com. 31 May. 2015 <http://www.encyclopedia.com>.

Dow, Douglas. "Punishment." New Dictionary of the History of Ideas. 2005.

Encyclopedia.com. 31 May. 2015 <http://www.encyclopedia.com>.

Books

Bedau Hugo Adam (1982): The Death Penalty in America (N.Y.: Oxford University

Press,).

Cesare Beccaria(1963): On Crimes and Punishment, trans. Henry Paolucci

(Indianapolis: Bobbs-Merrill,).

53
Hatchard John & Muna Ndulo (1994):Criminal Law & Criminology in Zambia, James

Currey, London

Laurence John (1960): A History of Capital Punishment, N.Y.: The Citadel Press

Michael Kronenwetter(1993): Capital Punishment: A Reference Handbook (Santa

Barbara, CA: ABC-CLIO, Inc.

Phillip English Mackey (1976): Voices Against Death: American Opposition to

Capital Punishment, 1787-1975 (N.Y.: Burt Franklin & Co., Inc.,)

Schabas W. (1997):The Abolition of the Death Penalty in International Law (2nd.ed),

Cambridge University Press, Cambridge

Sakala JB Dr (2013) : The Role of the Judiciary in the Enforcement of human Rights

in Zambia, Image Publishers, Mumbai

Samaha J: (2001): Criminal Justice, Clarendon Press, New York

54