DEATH PENALTY: Concerned Zambian Activists Look Beyond Moratorium

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Newton Sibanda

LUSAKA, Jun 25 2007 (IPS) - Zambian anti-death penalty activists are expressing anxiety over the fragility of the country’s current moratorium on executions, as the courts and lawmakers continue to resist formally banning state executions.

Since 1964, when Zambia became independent, 53 people have reportedly been executed by hanging.

But in 2004 President Levy Mwanawasa declared that he would sign no death warrants as long as he was in office. To underline his commitment to death penalty abolition, he commuted the death sentences of some 46 rebel soldiers convicted of treason after a failed coup plot in 1997.

Mwanawasa was re-elected last year, assuring his personal ban on executions would continue until 2011.

However, the president’s pledge failed to influence the recommendations of the Constitutional Review Commission. In December 2005 this body called for the retention of the death penalty in the country’s constitution.

Late last year a second major blow to hopes for a formal ban on executions was struck when the Supreme Court rejected a legal challenge to the constitutionality of the death penalty.

Kevin Hang’andu, a prominent lawyer and activist, had argued that because the death penalty was a mandatory sentence in Zambia, it violated article 15 of the constitution banning “cruel, inhuman and degrading punishment”. The case involved Benjamin Banda and Cephas Kufa Miti, given death sentences in 2000 for armed robbery – a capital offence in Zambia.

“The Supreme Court judgment has essentially certified the use of the death penalty in whatever circumstances, holding that article 12 of the constitution specifically allows the use of the death penalty derogating from the right to life,” Hang’andu told IPS.

His concern now was that Zambia’s de facto moratorium on capital punishment rested solely on one individual, the president. “My misgiving as a lawyer is that since the early centuries, the Englishman discovered that the safety of the community does not rest on the benevolence of good rulers but good laws. Good rulers come and go, but good laws are perpetual,” he said.

“If Levy Mwanawasa, who is in his final term of office, disappears from the scene, we can only speculate about the fate of the prisoners currently on death row.”

He was critical of the failure of the government to react to the recent Supreme Court ruling and confirm that it was actually against the death penalty. “There was no word,” he said.

Hang’andu also said he found it incomprehensible that Mwanawasa could take such an important ethical stand against the death penalty while the government had not called for a referendum on the issue. The government should be conducting an educational campaign to prepare people for making informed decisions at a time when there was so much controversy about a new constitution.

Enocent Silwamba, a bishop in the Pentecostal Holiness Church and executive director of the Prison Fellowship of Zambia, a Christian non-governmental organisation caring for the welfare of prisoners, echoed the call for citizens to be informed about the death penalty.

Two years ago there was a strong campaign, run by civil society. But the public was now preoccupied with other important issues, such as those which had surfaced after the report of the Constitutional Review Commission.

“I think we need to rekindle the campaign,” Silwamba said, noting that Zambia should be following the global trend towards abolishing the death penalty.

“We should be looking at alternative sentences,” he told IPS. “In Zambia they do not kill immediately but keep convicted prisoners on death row for years.

“Why are we retaining the death penalty if we are not prepared to hang them once they are convicted? It would be helpful to give another chance even to those who have committed serious offences. We are saying when justice ends, mercy begins.”

Something had to be done to reduce the numbers on Mukobeko death row, he added.

Mukobeko is the high-security prison 150 kilometers north of the capital, Lusaka. There are currently about 290 prisoners there who have been sentenced to death.

Enock Mulembe, of the Permanent Human Rights Commission, a human rights watchdog campaigning for abolition, confirmed that overcrowding at Mukobeko was of grave concern. Inmates were crammed six or seven to a cell meant for one person, he said.

The Commission argues that the death penalty is not an effective deterrent against serious crime. “Therefore we do not see any justification for Zambia continuing to uphold the punishment,” Mulembe told IPS.

Amnesty International in Zambia has also called on the government to do more to engage the public in a debate on the death penalty. The voice of those opposing the death penalty was now weak and the majority of Zambians favoured retention of capital punishment, executive director Charles Mulenga told IPS.

“The government must always take leadership on human rights issues and give guidance. Many people are resisting abolition because of ignorance,” he said.

Abolishing the death penalty would be an encouragement to other countries in the region to do the same: “It would be an example of how good leadership can go ahead and abolish the death penalty though the majority is still retentionist.”

Several activists expressed the view that the time had come for Zambia to take a decisive step and abolish the death penalty. The current debate over the new constitution provided the opportunity to review all the arguments and decide whether the death penalty should remain in the legal system, Chaloka Beyani, a leading constitutional lawyer, told IPS.

It was a challenging and testing time, Hang’andu agreed. The government should now state its unequivocal position on the Constitutional Review Commission’s recommendation that capital punishment be retained.

“I think the head of state has done something by refusing to sign any death warrants and I hope his ministers can now draw lessons from him,” he said.