Zambia Starts Process To Abolish Death Penalty

By Paul Shalala 

Mr Haimbe with a UN official -Picture by HRC

Zambia has started the process to abolish the death penalty following decades of failure to implement it.

Since January 1997, no Zambian citizen has been executed as successive Presidents have been declining to sign the execution orders for those condemned to death by the courts of law. 

This is on the basis of Zambia having been declared a Christian Nation early in the 1990s by President Frederick Chiluba and since then, no Zambian President wants to preside over an execution. 

In the last 25 years since the hang man executed a prisoner at the Mukobeko Maximum Security Prison in Kabwe, lobbying for the abolishment of the death penalty has been loud. 

Both local and international non-governmental organisations have voiced out on the matter, encouraging Zambia to join an international group of countries which have done away with the law. 

According to Zambian laws, a person can only be sentenced to death if they are convicted of any of the three capital offences: treason, murder and aggravated robbery. 

In May this year, President Hakainde Hichilema announced that government would start the process to abolish the death penalty. 

President Hichilema repeated the promise last month when officially opening the Second Session of the 13th National Assembly. 

Since then, the Ministry of Justice has moved quickly and started the process to repeal laws which border on the death penalty. 

During the commemoration of the World Day Against the Death Penalty on October 10, Justice Minister Mulambo Haimbe announced that the process to abolish the death penalty is now in full gear.

“The government through my Ministry has already commenced the process of amending the Penal Code and the Criminal Procedure Code. Part of the review relates to amending provisions relating to mandatory death penalty for anyone convicted of treason, murder and aggravated robbery,” said Mr Haimbe. 

He further revealed that Cabinet had already endorsed the review process and what is remaining now are consultations before the law can be amended, leading to the abolishment of the death penalty. 

“Our commitment to abolishing the death penalty is anchored on our conviction towards protecting the sanctity of human life and should never be taken as trivilising the suffering that victims of capital offences endure,” he added. 

For those who were there at the Mukobeko Maximum Security Prison when the last execution was conducted 25 years ago, news of the abolishment of the death penalty excite them. 

“On that day, the whole prison was quiet. The Officer-In-Charge slaughtered a cow to cheer us up but that didn’t work, we were all sad,” said Godfrey Malembeka, who now campaigns for the welfare of prisoners and ex-prisoners. 

Upon being released from prison, Dr. Malembeka formed Prisons Care and Counselling Association (PRISCCA), a non profit which he uses as a platform to campaign against the death penalty. 

But the most vocal of all against the death penalty is the church mother bodies. 

Zambia has three such bodies and one of them has not hidden its opposition to the piece of legislation. 

“The death penalty violates the rights to life and protection against torture and other cruel, inhuman or degrading treatment or punishment. Additionally, the mandatory death sentence for capital offences violates the fundamental right to equal protection of the law as enshrined under Article 18 of the Constitution,” said Father Emmanuel Chikoya, Secretary General of the Council of Churches in Zambia, a body which represents protestant churches in Zambia. 

Fr. Chikoya, who also sits as a Commissioner at the Human Rights Commission of Zambia, says the death penalty and torture are similar as they are both cruel and inhuman. 

The United Nations campaigns for the abolishment of the death penalty. 

UN Secretary General Antonio Guterres has in the past been quoted as saying 'the death penalty has no place in the 21st century.' 

Since independnce in 1964, Zambia has signed and ratified many international protocols. 

For example, in 1998, Zambia ratified the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. 

However, the country has not yet domesticated this convention and security forces still torture suspects and in some cases, suspects die in custody under interrogation. 

The United Nations now wants Zambia to expedite the process of abolishing the death penalty. 

“The review of Zambia’s Penal Code and Criminal procedure Code offer the opportunity to make tangible progress to leave the death penalty behind. Abolition in law also entails amendments to defence acts and military codes and constitutional reforms to remove capital provisions if any and explicitly prohibit the death penalty,” said Beatrice Mutali, the United Nations Resident Coordinator in Zambia. 

The European Union, which is supporting the Zambian government is constitutional reforms, is pledging funding to abolish the death penalty. 

“The European Union and the Federal Republic of Germany are contributing almost 26 million euros to a project called EnACT. It stands for Enabling Access to justice, Civil society participation and Transparency in the areas of the rule of law, human rights and accountability,” disclosed Bruno Hanses, the Deputy Head of Mission at the EU Delegation to Zambia. 

Under this project, the EU will help Zambia in evidence based legal reforms which include the abolishing of the death penalty and review of the Penal Code and Criminal Procedure code. 

As at December 2021, Zambia had 257 death row inmates who were being held at the condemned section of the Mukobeko Maximum Security Prison. 

The inmates, who wear white uniforms, live in small cells which are isolated from lifers and other convicts within the prison. 

Over the years, successive Presidents having been using their Prerogative of Mercy to commute death sentences into life sentences on days such as African Freedom Day (Africa Day) and Independence Day to reduce on congestion in the Condemned Section. 

According to UN records, 170 countries have so far abolished the death penalty or introduced a moratorium on the death penalty or have suspended executions for 10 years. 

Of these, 24 countries are in Africa and they include states like Liberia, Central African Republic and Equatorial Guinea. Once Zambia abolishes the death penalty, it will join a global coalition against the death penalty which are now considered as role models.

Just this week, Information and Media Minister Chushi Kasanda said the Friday sitting of Cabinet approved the draft bills which are meant to help abolish the death penalty.

Below is her statement:

"The following were the decisions made by Cabinet, in order to facilitate service delivery to the people of Zambia based on the ruling Party Manifesto and in accordance with the transformation Agenda for Government going forward:

(a)   The Penal Code (Amendment) Bill, 2022.

Cabinet approved, for publication and introduction in Parliament during the current sitting, a Bill entitled “The Penal Code (Amendment) Bill, 2022.” The object of this Bill is to amend the Penal Code so as to replace the death penalty with life imprisonment; and repeal the offence of defamation of the President.

The Penal Code Act, Chapter 87 of the Laws of Zambia, was enacted in 1930 to establish a code of criminal law and penalties of criminal offences. However, from the time of its enactment, the Penal Code has never been reviewed and it contains archaic provisions including the death penalty and the offence of defamation of the President.

(b)   The Criminal Procedure Code (Amendment) Bill, 2022.

Cabinet also approved, for publication and introduction in Parliament during the current sitting, a Bill entitled “The Criminal Procedure Code (Amendment) Bill, 2022.”

Like the Penal Code (Amendment) Bill, the objectives of the Criminal Procedure Code (Amendment) Bill are to replace the penalty of death with life imprisonment and repeal the penalty for defamation of the President. The Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia, was enacted in 1933 to facilitate the application of the Penal Code, Chapter 87 of the Laws of Zambia, in matters relating to the procedure for criminal cases.

Similarly, from the time of its enactment, the Criminal Procedure Code has never been reviewed and it also contains archaic provisions, including the death penalty and imprisonment for defamation of the President.

Cabinet unanimously agreed that in accordance with the principles of the New Dawn Administration, the enactment of the two Bills will greatly promote the right to life as enshrined in the Constitution, and that further, in amending the two laws, Government will ensure that Zambia conforms to international best practice and standards on the right to life and other freedoms."