The LRF Newsletter

he International Bill of Rights does not support capital punishment. However, part three of the Zambian Constitution, which is the Bill of Rights provides for the death penalty.

Zambia can not easiy abolish death penalty because it is provided for in the Bill of Rights which requires a referndum to amend.

This was discussed in the third session in the series of the Millennium Assembly Summit held at Pamodzi Hotel in Lusaka last month and Legal Resources Foundation (LRF) lawyer Ngulube Anderson presented a paper on the Universal Declaration of Human Rights.

He said every person has the right to life, liberty and security of persons and that no one shall be subjected torture to cruel, inhuman, degrading treatment or punishment.

Judge Lombe Chibesakunda earlier said that as Zambians we should reach consensus on the death penalty.

Later in an interview on whether the death penalty should be abolished or retained, Ngulube said “In agreeing with Judge Lombe Chibesakunda, my opinion is that this is not a matter that can be decided upon by an individual or a collection of individuals, but as a nation we must decide on what we really want.

“As a human rights lawyer I am more inclined to support the abolition of the death penalty in Zambia”.

He said in place of death penalty there should be life imprisonment.

“This admittedly, will be an additional cost to society to keep people guilty of capital offences until they die. However, if as a society we want to punish such people, we should be prepared to shoulder the cost of so doing,” he said.

Permanent Human Rights Commission (PHRC) Chairperson, Judge Chibesakunda said the greatest challenge of humanity today is widespread denial of human rights.

she said that there will be need to call for a referendum to amend the Bill of Rights..

Law Association of Zambia (LAZ) Human Rights Committee Chairman, Henry Chanda said the abolition of the death penalty can not easily be achieved because it is provided for in part three of the costitution. He said it would cost the government billions of Kwacha to amend one column of the constitution and the only thing that can help is to call for a referendum to amend the entile Bill of Rights.

Enock Mulembe from the Research Committee of PHRC, said the International Bill of Rights is not a legally binding document but by virtue of being a member of United Nations (UN) Zambia is ‘compelled’ to observe the standards in the said Bill.

The International Bill of Rights is made up of five treaties. Zambia is only a signatory to four of the treaties except for the second treaty. The first Optional Protocal (Opitional Protocal to the International Covernant on Civil and Political Rights)to which Zambia is a signatory makes if possible for individuals to report states guilty of violating civil and political rights to the Human Rights Committee.

Zambia is not a signatory to the second Optional Protocal to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty because it supports death penalty and has not decided to abolish capital punishment.

Forum for Human Rights (FORIGHTS) has questioned what type of cases carry the death penalty.

Speaking in an interview David Chilelesho said the government should put in strong measures and teach the police about human rights because they are the most violators.

He said FORIGHTS is against death penalty and calls on the government to abandon it.

“Zambia is a Christian nation and we should not judge others. God alone is the one who is supposed to judge us. We can not keep on saying the same thing, if a person commits a crime, he should be given a sentence and not to be sentenced to death” said Chilelesho.

He said people are forced to commit different crimes because of poverty, so the government should improve on the economy and amend the constitution.

However, Linah Siyauya a christian said the Bible supports death penalty. She said in the old testerment of the Bible people were sentenced to death.

“Jesus did not at anytime condemn the death penalty. He was sentenced to death with two criminals and this evidence shows that death penalty was used to punish offenders,” Linah said.

When later contacted for a comment Ngulube said in terms of Article 11 of the Zambian Constitution, every person in Zambia has among other rights and freedoms the right to life. Article 12 provides that a person cannot be deprived of his life intentionally except in execution of the sentence of a court in respect of a criminal offence under the law in force in Zambia of which he has been convicted.

Under section 24 of the Penal Code, death is one of the punishments that may be inflicted by a court.

In addition, section 25 (1) of the Penal Code states that when any person is sentenced to death, the sentence must direct that he shall be hanged by the neck until he is dead.

“It is clear from the foregoing that whereas every person has the right to life, this right is not absolute. The constitution in the Bill of Rights recognizes and declares that every person in Zambia has the right to life and the constitution gives an instance when a person may be deprived of his life intentionally. This is when a court pronounces the death penalty on a convict,” Ngulube said.

He said it is also clear that the constitution and the penal code provide for the death penalty and that the courts are legally empowered to inflict punishment by death. Therefore, it cannot be said that the death penalty is illegal, unlawful, or indeed unconstitutional.

Further Ngulube said Article 15 of the constitution states that a person shall not be subjected to torture or to inhuman or degrading punishment or other like treatment.

Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Convention on Civil and Political Rights prohibits torture or cruel, inhuman or degrading treatment or punishment.

“ In Zambia the only lawful way of executing the death penalty is by hanging. To be hanged until one is dead is not only cruel, but also inhuman.

“The mode of executing the death penalty is inherently brutal and dehumanizing. There seems to be a conflict between section 25(1) of the Penal Code and Article 15 of the constitution,” said Ngulube.

Legal Affairs Minister,Vincent Malambo said that in Zambia the death penalty has a constitutional basis.

He said this when he officially opened the Catholic Commission For Justice and Peace (CCJP) Conference on Death Penalty recently. Hon Malambo said “In keeping with the international Convenant on Civil and Political Rights which reserves the death penalty to only the most serious crimes, the penalty may be passed only in respect of three offences which are murder without extenuating circumstances, treason and aggravated robbery with a firearm”.

He said when a woman convicted of an offence punishable with death is found in accordance with the provisions of section 306 of the Criminal Procedure Code (CPC) to be pregnant the sentence to be passed on her shall be a sentence of imprisonment for life instead of a sentence of death.

He added that similar provisions are found in section 303 and 306 of the CPC which exempt young offenders and pregnant women from death sentence even when properly convicted of a capital offence.

“In the event that the President has decided that the sentence of death be carried out the law obliges that he issues a death warrant sealed by the seal of the Republic , He shall state the place and time when the execution is to be carried and give burial directions,” Malambo said. But when the President dedcides to pardon the convicted person the warrant shall state and also indicate whether the pardon is free or is subject to any conditions. “As a nation let us arrive at a position that represents the democratic will of the people and reflects their values.

The death penalty has played a visible role as the most serious way in which a country can punish its citizens,” he said.