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October 2 2009 | ZAMBIA


Henry Kyambalesa: "We need to think about a moratorium"

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Lusaka Times

The Death Penalty in Zambia

After reading news articles in both the Times of Zambia and the Zambia Daily Mail on the subject relating to capital punishment in Zambia, and whether or not the National Constitutional Conference (NCC) should adopt the recommendation made by the Mung’omba Constitutional Review Commission on the issue, I have found it necessary to make the following comment:

There are many forms of crime which may at¬tract capital punish¬ment in some countries; they include murder, trea¬son, economic sabotage, and large-scale drug-trafficking. Without sligh¬ting the seriousness of other capital crimes, murder is perhaps the most deserving of the death penalty. A person who willfully takes the life of another person, therefore, commits the ultimate crime – a crime for which the death penalty is a fitting and well-deserved form of punishment.

There are numerous caveats which lend support to such an inf¬lexible stance; let us briefly consider some of these caveats:

1) By killing another person and, therefore, violating the per¬son’s right to life, the murderer dehumanizes himself or herself to the extent that he or she deserves to be expelled from the commu¬nity of living humans.

2) People who commit murder in societies which have corporal puni¬shment already know the consequences associated with such a heinous crime. For such people, the punishment is, therefore, self-inflicted; after all, it is a punishment every societal member can choose to avoid in the first place! Is it not immoral to protect the life of an individual who finds pleasure in committing mur¬ders – the ultimate disregard for other people’s lives?

3) As Ernest van den Haag, a U.S. Professor of Jurispru¬dence and Pub¬lic Policy, has concluded, “The severity and finality of the death penalty is [commensurate with] … the seriousness and the finality of murder.” In short, the death penalty functions as a rea¬sonable and generally accept¬able form of retribution (or appropriate punishment) for murder. The punishment fits the crime, so to speak!

4) The death penalty serves well as a more dreadful deterrent to murder than life imprisonment and, among other things, as an ef¬fective incapaci¬tation of murderers.

5) It would be immoral for the government to collect tax revenue from law-abiding members of society, some of whom are kith and/or kin of murder victi¬ms, and commit it to the protection and upkeep of duly con¬victed murder¬ers sentenced to life imprison¬ment.

6) Prison escapes of hardcore criminals are not uncomm¬on – even in countr¬ies which can afford to provide highly secure prison facilities, such as the United States. There is also the potential for criminals to be released from prison by mistake. On March 26, 2002, for example, Clifton Blecha (a convicted mur¬derer concur¬rently serving a life sentence and a 24-year prison term at Colorado State Penitentiary in Canon city, United Sta¬tes) was mistakenly paroled due to a paperwork mix-up. He was initia¬lly jailed in 1988 on a burglary conviction, and later convicted of murdering a fellow inmate in 1994. (BeDan, M., “Paperwork Mix-Up Frees Mur¬derer,” Rocky Mountain News, May 3, 2002, p. 7A.)

However, the application of capital punishment calls for a fundamen¬tal redress of any apparent inadequacies in a country’s cri¬minal justice system so that the punishment can be admi¬nistered fairly, impartial¬ly, with reaso¬nable consisten¬cy, and upon an objective and exhaus¬tive assess¬ment of circumstanc¬es leading to the commission of mur¬der.

Unfortu¬nately, such expectations cannot easily be met in poor cou¬ntries like Zambia, pseudo democ¬ra¬cies, and totalitarian states world¬wide.

There is, therefore, a need for the Zambian government to constitute an ad hoc panel of local legal experts to determine whether or not the Zambi¬an cri¬minal jus¬tice system meets the foregoing expectations. If it is be found to be wanting, the Republican president and the Zambian Parliament need to seriously con¬sider the pros¬pect of placing a morato¬rium on capital punish¬ment, to com¬mute the prison sentences of any indi¬viduals who are currently on the death row to life impri¬sonment without the possibility of parole, and to decide on modalities for periodic reviews of the moratorium.

Over the years, we have heard calls by some segments of Zambian society for the abolition of the death penalty in the country. I believe a decision on whether or not capital punishment should be abolished in Zambia can only be made by the citizenry through a referendum designed specifically for this purpose, and after exhaustive national debate on the issue, not by the National Constitutional Conference (NCC).

Henry Kyambalesa

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