Bally Not Walking With the People on Death Penailty

By Isaac Mwanza

“To lead people, walk behind them!” – Lao Tzu, Chinese Philosopher

INTRODUCTION

Ever since the Zambian President H.E Hakainde Hichilema took the wheel of power of the United Party for National Development (UPND) in 2006, he had successfully carved out a national image that he would be a leader who would listen and walk with the people when it came to making decisions that affect the nation. In several instances, he claimed key decisions that affect the Constitution cannot be made by Members of Parliament (MPs) as they do not possess the requisite capacity to make independent decisions because they are controlled by political parties

In this third series, I argue that the so-called decision to ‘abolish’ the death penalty in Zambia, was not a decision of the people of Zambia but reflects the personal will and desire of President Hichilema and his Members of Parliament because Zambians have repeatedly expressed themselves on the death penalty through every constitutional review commission. Even after such a proclamation that death penalty has been “abolished,” I also show in detail that the death penalty remains constitutional in Zambia.

THE PEOPLES VOICE ON THE DEATH PENALTY

On Wednesday, 28th December, 2022 during the luncheon hosted for the elites by the President at State House to celebrate what he called “the abolishment of the death penalty from the laws of Zambia, President Hichilema said to the applauding audience:

“Thank you to the citizens of Zambia for allowing us (UPND administration) to do what we have done for humanity: to remove the death penalty from our laws. I remember people saying no, you can’t do that without a constitutional amendment. Many did not even read our laws, including the Constitution… credit the people of Zambia for doing what is right.”

President Hichilema went on to question why Presidents before him, two of whom were top notch lawyers, could not summon the courage to abolish the death penalty. Mr. Hichilema may not have noticed, but the Presidents who preceded him, had a different leadership style, which was consensus-based. Past Presidents before President Hichilema, all had a leadership style of not wanting to impose their personal will, interests and desires when it came to such sensitive matters as the death penalty. Leaders only truly lead when they fully understand the people and what motivates them, and that knowledge only comes with time, consultation and observation.

The death penalty is certainly an emotive and highly controversial moral subject in Zambia which should not be decided on the basis of personal wishes and beliefs of one person or a few men and women in Parliament. While the death penalty has existed for thousands of years, lone voices have been increasing, calling for reforms and, later, for outright abolition of the death penalty. This discussion has been going on from the 1980s in Zambia. Historical records presented by Minister of Justice Hon. Mulambo Haimbe, S.C., indicate that the most common crime for which the death penalty has been imposed in Zambia is murder.

Zambia inherited the death penalty from the colonial era and successive Constitutions and constitutional amendments, have not succeeded in garnering enough support to abolish it. Until around 2003, there had been no formal or organised debate around the subject of the death penalty. Whenever Zambia has undertaken a constitution review process, one of the terms of reference in the last five processes has been to examine and recommend on the desirability of the retaining death penalty in our laws.

The conclusion of the consultation processes has led to an undeniable conclusion which all our previous Presidents respected: the death penalty should be retained on our laws, and the laws of Zambia include the Constitution itself. That has been the position of the majority of Zambians whenever the people were invited to state their position.

For example, the 1991 Mvunga Constitution Review Commission, after considering the views expressed by the people, concluded that the subject of abolition of the death penalty posed fundamental questions and that there should be further national debate to ascertain the national consensus. Again in 1996, both the Mwanakatwe Constitution Review Commission and the people could not reach consensus on the abolition of the death penalty. The Commission recommended the retention of capital punishment.

The Mung’omba Constitution Commission’s tour was apparently the first national opportunity for detailed debate on the subject of the death penalty in Zambia, and results showed disparities in views or opinions between urban and rural populations, with rural Zambians being hesitant to abolish the death sentence. The final resolution of the National Constitutional Conference, was to retain the death penalty and conduct more and further consultations.

More recently, Zambians unanimously made their position clear during a consultative process organized by former Chief Justice Mr. Annel Silungwe’s Constitution Review Technical Committee with 9 provinces favouring the retention of the death penalty while 1 province said death penalty was contrary to the Declaration of Zambia as a Christian Nation. The Report of the Technical Committee stated on page 72:

“The views in support of re-drafting the clause were that there was need to present the provision in a manner that would enable the country to abolish the death penalty without going through the referendum should the need arise. It was observed that although the majority of the people currently supported the death penalty, a time might come when the death penalty would not be deemed necessary. It proposed that the details in the Article should be best placed under an Act of Parliament so that the Article would be limited to providing the right to life.”

As can be seen, the majority of the Zambian people, have over the years, supported retention of the death penalty, and that has been the reason why all past Presidents have been constrained in taking steps leading to the abolition of the death penalty both in law and practice. Our Presidents have simply maintained a policy of not signing the documents required for carrying out the sentence. In my humble view, Zambians don’t own any credit in the repeal of the provisions that had mandated the courts to impose the death penalty on capital offenders. The majority actually supported the retention of the death penalty.

DEATH PENALTY STILL RECOGNISED BY ZAMBIAN CONSTITUTION

In most countries such as New Papua Guinea where the Legislature successfully passed legislation to abolish the death penalty, death penalty had been a statutory matter and not one protected by a constitution. However, when the Constitution protects the imposition of death penalty by a court through inferior laws which Parliament later enacts such as a Penal Code, repealing a part or entire provisions of the inferior law does not abolish the death penalty.

The announcement by President Hichilema that Zambia has thus abolished the death penalty only plays to the minds of excited stakeholders who may not be aware that the death penalty in Zambia is a constitutional matter. What President Hichilema’s administration has done, in actual sense, is that they have repealed provisions of an inferior law that compelled judges to impose the death penalty. However, the Constitution remains intact in its recognition of the death penalty in Zambia.

Our country’s Constitution is Bible-like or is like the biblical “Word.” It is the Constitution that creates every law that exists today. Just as amending some rules in the Catechism of the Catholic Church or the 1849 Present Truth publication by the Seventh Day Adventist cannot amend the Bible, so neither can an amendment to the Penal Code change the validity or effect of constitutional provisions.

This is because ‘in the beginning was the word, and the word was with the People, and the word was the Constitution. It was with People in the beginning. Through it all laws were made; and without it no law was made that has been made.’

And so, Part III of the Zambia Constitution guarantees the right to life but the Constitution itself expressly permits death penalty, as provided under Article 12(1) if it is 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.” Further, Article 97 (2) of the Constitution states that “a person who is sentenced to death may request the President, either directly or through a representative, for a pardon or commutation of the sentence.”

In an attempt to circumvent these constitutional provisions or make them invalid or moot, the new dawn administration hurriedly passed an amendment to the Penal Code which replaced death penalty with life imprisonment for offences categorised as capital offences. Essentially, the administration mistakenly sought to invalidate the above constitutional provisions using an inferior law, and thus proclaimed that death penalty has been abolished.

But if President Hichilema had dared to consult widely and beyond those who will tell him what he wants to hear, he would have been advised that you cannot invalidate or make moot what is provided in the Constitution using subsidiary or inferior legislation. The provisions in the Constitution remain untampered for enforcement at some other time when it becomes necessary.

The implication of the amendments done by Parliament then is that Judges, for the time being, will not impose death penalty for any offence until when Parliament, using the same simple majority, provide in an law categories of offences which would attract the death penalty. It would have been different if the Constitution, as the supreme law of the land, had no provision that allowed the death penalty.

The death penalty remains constitutional and on the supreme law of Zambia, it is intact for any offences which Parliament may come to define in future. The death penalty has not been abolished as celebrated by the elites during the luncheon. What was being celebrated was the repeal of provisions that provided for offences which attracted the death penalty, the same death penalty which the Constitution continues to authorise until the people agree to repeal the provision through the referendum.

CONCLUSION

President Hichilema and his administration deserve kudos and must own the credit for removing the penalty of death from the Penal Code, an inferior law, for offences of murder, aggravated robbery and treason. However, as can be seen, all consultations done with the Zambian people showed that the people wanted the death penalty retained on our statutes. So, the people cannot take the credit for the repeal of that provision which was done without consultation with the people, and which change was rejected by the National Constitutional Conference. In short, the President and his administration have neither walked behind or with the people on the question of the death penalty. They are walking ahead of the people.

The death penalty in Zambia has not been abolished. It remains intact in the Constitution. It is the penalties for those offences that attracted death penalty that have been repealed and replaced. The death penalty remains constitutional to the extent that, in future, when Parliament decides to come up with offences whose sanction will be death penalty, the death penalty will still be constitutional.