Zambia Abolishes Death Penalty And Defamation Of The President

President Hichilema signs the law as his 
 Legal Advisor Christopher Mundia looks on

By Paul Shalala

Zambia has abolished the Death Penalty and Defamation of the President, two colonial era pieces of legislation which have been on the cards for repealing for several decades.

The death penalty is a capital punishment which is imposed on all those convicted of some of the gravest of offences in the country.

Anyone who is convicted for murder, treason and aggravated robbery is sent to a maximum security prison and wait to be hanged.

For Defamation of the President, this archaic law became more prominent under former President Edgar Lungu and current President Hakainde Hichilema.

Dozens of people who criticized the President found themselves on the other side of the law.

The law has been used by those in authority to reign in on critical voices and sort out dissent.

In both administrations, opposition leaders usually found themselves in Police stations and courts, answering to charges of insulting the President.

During the campaigns ahead of the 2021 general elections, President Hichilema, then the leading opposition figure, promised to repeal the two pieces of legislation.

After being elected President, Mr. Hichilema stuck to his guns, repeating his promise to abolish the Death Penalty in May and September 2022.

And on 23 December, 2022, President Hichilema signed the Penal Code Amendment Bill Number 25 of 2022 which abolishes the two controversial laws.

President Hichilema said this on his Facebook page upon signing the laws:

“Please be informed that this afternoon, we assented to the Penal Code (Amendment) Bill number 25 of 2022, abolishing the imposition of the death penalty in the Republic of Zambia, and the offence of Criminal Defamation of the President. Fellow Zambians, during our campaigns for the Presidency, we promised to amend all laws that inhibit the growth of democracy and good governance, impede human rights and basic freedoms. Today we have delivered.”

Reaction to this decision has been uniform across the country.

Politicians, activists and ordinary citizens have weighed in on the matter.

Fred M'membe

“The abolition of defamation of the President laws and criminal defamation in general has been long overdue. We therefore highly welcome the abolition of defamation of the President laws. It was an offence for any person who, with intent to bring the President into hatred, ridicule or contempt, published any defamatory or insulting statements,” said Fred M’membe, President of the Socialist Party in Zambia.

Mr. M’membe, a former Editor-In-Chief for the now defunct Post Newspapers, says the past years have seen a growing global movement towards decriminalising defamation and Zambia has not been left behind.

The opposition leader says the Death Penalty and the Defamation of the President had to go.

“These laws were clearly unconstitutional and fell foul of international standards on freedom of expression. To be more meaningful, the repeal of defamation laws needs to be immediately accompanied by the removal of the public order Act.”

Another opposition leader Harry Kalaba, who leads the Citizens First political party, says the two laws were archaic.

“We expected this and we appreciate that it has finally been done. This is a law that should never have been there in the first place. A fair playing field is a key ingredient of democracy. We thank the international community and all stakeholders for keeping tabs and ensuring that a draconian law is repealed,” said Mr. Kalaba.

The former Foreign Affairs Minister in the previous administration says there was need for wider consultation before the abolishment of the Death Penalty.

“We believe in issue-based politics and that’s why we would rather focus on the issue of death Penalty that we think should have sought wider consultation before abolishing it. There are those who have lost their loved ones to criminal activities who feel the Death Penalty is a better option while those related to the people on death row will think otherwise and therefore in our view this issue should have attracted wider consultation,” he added.

On the international scene, Amnesty International welcomed the news that Zambia had joined other countries in abolishing the Death Penalty.

In March this year, Amnesty International Secretary General Agnes Callamard visited President Hichilema at State House and issued the following statement on human rights in Zambia.

“Under former President Edgar Lungu’s administration, authorities weaponized the law to criminalize peaceful dissent, charging critics with a wide range of offences including criminal defamation, incitement of public disorder and sedition. For example, on 9 March 2020, police arrested a 15-year-old boy in Kapiri Mposhi, and charged him with three counts of criminal libel after he allegedly criticized President Lungu on Facebook. Authorities must repeal the repressive legislation, especially the Public Order Act, and the Cyber Security and Cyber Crimes Act that have been used to suppress human rights, including freedom of peaceful assembly, association and expression.”

With the abolishing of the Death Penalty, Amnesty International has reacted.

Tigere Chagutah, Amnesty International’s Regional Director for East and Southern Africa said: “Amnesty International welcomes the announcement by President Hichilema that the death penalty has been abolished in Zambia. This is a good and progressive move that shows the country’s commitment to protecting the right to life.”

Harry Kalaba

Mr. Chagutah commended President Hichilema for quashing the offence of criminal defamation of the president which he said muzzled free speech and unjustifiably limited freedom of expression in the country.

“With the abolition, Zambia became the 25th country in sub-Saharan Africa to abolish the death penalty for all crimes. Zambia’s decision to ban the death penalty should serve as an example to countries in the region that still use the death penalty and compel them to take immediate steps to end this cruel, inhuman and degrading form of punishment and protect the right to life,” he added.

Mr. Chagutah encouraged the Zambian government to accede to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

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

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 the last 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.

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 (October 25) to reduce on congestion in the Condemned Section at Mukobeko.

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.

Zambia now becomes the 25^th country in Africa to abolish the Death Penalty.

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."

All Contentious Clauses Retained In Final Draft Constitution

Front cover of the Final Draft Constitution

By Paul Shalala

In this article, i will not dwell on the politics of whether the release of the Final Draft Constitution by Acting Justice Minister Dr Ngosa Simbyakula in parliament this morning is timely or not.

I will also not delve into the issue of the referendum as that process is dependent on the outcome of what Dr. Simbyakula has described as a 'consultative process.'

However, my article will focus on the clauses that Zambians have CONSISTENTLY and FAITHFULLY submitted to past processes like the Mvunga, Mungomba, Mwanakatwe, NCC and the Electoral Reforms Technical Committee with the hope of one day seeing them in their supreme law of the land.

By all standards, the just released Final Draft Constitution meets what people call 'a people's constitution' due to the fact that all the clauses considered contentious have been retained.

At the time when people were wondering whether the 50+1% majoritarian clause for election of the President would be upheld in the final constitution, the document has shown that the clause has been retained in Article 74 (1).

This article has been consistently submitted by Zambians in the past 40 years to various constitution review commissions.

The argument has been that Zambians want a 'popular' President who would be elected by a majority of the people either in a one off election or in a re-run if the 50+1% threshold is not achieved in the first round of a presidential election.

People's hopes for the majoritarian clause where dampened last year when then Patriotic Front Secretary General and then Justice Minister Wynter Kabimba openly opposed this clause painting a picture of the ruling party and government not being in support of the clause.

However, the now dissolved Technical Committee on Drafting the Republican Constitution seems to have defied all odds and included this 'popular' clause in line with the people's wish.

Another popular article that has been retained is Article 108 (1) which provides for a Vice President who is elected as a running mate to a Presidential candidate.

This is another clause whose proponents say it helps to avoid 'costly' Presidential by-elections in case of deaths or resignations of a sitting president as was the case in Zambia in 2008 when a presidential by-election was held when then President Levy Mwanawasa died.

This article has been held as a cost saving law that has been tried and tested in countries like Ghana where it has worked effectively.

The Final Draft Constitution has also adopted the mixed member representation electoral system in parliament where we will now have 150 elected Members of Parliament from the constituencies and 100 MPs elected through a party list submitted by participating political parties to the Electoral Commission of Zambia.

This means that Zambia will now have 250 elected MPs and 8 nominated MPs.

If finally adopted, this will be a new phenomenon in the Zambian political scene where MPs will be sent to Manda Hill through a two way election process as contained in Article 74 (2).

Zambians in the diaspora will be smiling when they hear that Article 18 of the final draft constitution has allowed dual citizenship in addition to the fact that any Zambian who acquires citizenship of another country will not automatically lose their Zambian citizenship.

Zambians living abroad have been calling for this law and finally it has come.

For the pro-life campaigners, its bad news for them as Article 28 (3) provides for capital punishment which is commonly known as death penalty.

Clause 2 of the same article has given a boost to Zambian pro-life campaigners like musician Kings Malembe Malembe as it has recognised life as beginning at conception as opposed to the more liberal definition of life beginning at birth.

This means that any Zambian woman who aborts during pregnancy, kills a human being.

This article was an emotive one as i remember during the National Constitution Convention in April 2013, the clergy were divided on whether to retain the death penalty or not.

The swearing in of the President immediately after the announcement of Presidential results by the Chief Justice will now be done away with as Article 103 (2) now proposes the ceremony to take place after 7 days.

This is because Article 83 (1) provides that General Elections will now be held on the second Thursday of August every after 5 years and swearing in of a new head of state will take place on a Tuesday which is 7 days after the announcement of the results.

In the current constitution, a new President must be sworn in within 24 hours of being declared winner of a presidential election even when losers have filed petitions.

The terms that an individual can serve as a president have been maintained at two as confirmed in Article 104 (3).

For Cabinet, the mostly suggested way of choosing Cabinet has been proposed in the draft constitution.

Article 114 suggests the the President will now appoint people from outside parliament to constitute Cabinet which will now include Provincial Ministers as explained in Article 111.

In terms of devolution of powers, the draft constitution has proposed the establishment of Provincial Assemblies which will include MPs, Chiefs, Mayors, Council Chairpersons, and several other stakeholders.

Article 181 explains that these Assemblies will have their own Speakers and function like Parliaments.

For those who have been critical of government contracting debts which they are not happy with, Article 249 (2) may make them smiling as all loans and grants will now be subjected to parliamentary approval before government officials append their signatures to loan agreements.

In the area of politics, reigning chiefs have been given the opportunity to contest elections for councillor or to Provincial Assemblies without them being forced to abdicate their thrones.

However, according to Article 205 of the Final Draft Constitution, chiefs will have to leave their chieftaincy if they are to run for parliament.

In the current 1991 Constitution as amended in 1996, chiefs are barred from active politics.

Article 200 provides for the Local Government Equalisation Fund which is expected to help local authorities function well in as far as funding their operations is concerned.

This fund will see the central government providing money to District Councils to boost their dwindling financial base.

In Article 3, the Final Draft Constitution proposes that Zambia continues to remain a multi-racial, multi-cultural, multi-religious and unitary state.

And in the preamble, the 1996 declaration of Zambia as a Christian Nation by then President Frederick Chiluba has been retained.

For my media colleagues, this final draft constitution has guaranteed freedom of the media in Article 36 and in Article 35, freedom of information for all Zambians has also been guaranteed.

On the emotive issue of land, the document has retained the vesting of all land in the President as contained in Article 296 (1).

According to Article, 297 (2), the final draft constitution has also maintained the duo classification of land as being state and customary land.

The above articles are some of those i have quickly noticed as some that Zambians really wanted to see in the constitution and true to the words of the former Chairman of the Technical Committee Justice Annel Silungwe,what the people of Zambia submitted is what has come out in the final draft constitution.