Report on the 2nd Annual EU Forum on the Death Penalty in Zambia

Mulungushi International Conference Centre, Lusaka - 12th October 2010

DEATH HAS NO APPEAL

Introduction
Following on from the success of the 2009 event, the EU Delegation in Lusaka organised its second Forum on the Death Penalty as part of its ongoing efforts to raise the profile of the debate on the abolition of the death penalty, on the occasion of the World and European Day against the Death Penalty. The death penalty in Zambia remains on the statute books, as a punishment for the crimes of Murder, Aggravated Robbery and Treason. Execution is carried out by hanging from the neck, although none have taken place since 1997, following which a de facto moratorium was imposed by the late President Levy Mwanawasa. The current President, Rupiah Banda, has maintained this stance, and has even pardoned 53 death row inmates since coming into office. The death penalty was seriously debated at the National Constitutional Conference (NCC) earlier this year but has been retained in the draft Constitution in the Bill of Rights section (Art. 40 II), which needs to be approved by a majority of the eligible voters in Zambia through a referendum.

The event
The forum was attended by over seventy participants drawn from a cross section of society, including civil society organisations, government representatives, members of the diplomatic community, religious leaders, the media and even a former inmate on death row. The forum was officially opened by Dr Derek Fee, Head of EU Delegation who restated the European Union's strong stance against the death penalty across the world. He emphasised that abolition of the DP is a key priority of the EU both at a policy level and operationally, through the important work funded under the EIDHR. He reaffirmed that the EU would continue to push for Zambia to join the worldwide trend in favour of abolition.

Mandatory Death Penalty
The first part of the forum was devoted to the subject of the mandatory nature of the death penalty. Italian Senator Marco Perduca from Hands Off Cain introduced the audience to the subject by presenting a summary of reports and judgements on the subject at both a national and international level. Mandatory death sentences, he contended, do not consider the individual merits of a particular case, and have been widely criticised by human rights authorities. Numerous courts, tribunals, commissions and parliaments across the globe have upheld the view that the mandatory death penalty contravenes the inherent dignity of the human being and the right to humane treatment protected in the international human rights law. Senator Perduca cited cases from diverse authorities including the Privy Council, the US Supreme Court, the Constitutional Court of South Africa and the Supreme Court of India, all of whom have passed judgments condemning legal provisions which impose the death penalty as a mandatory sentence. Abraham Mwansa, a Lusaka-based lawyer and active member of the Law Association of Zambia, followed this by focusing on recent developments on the mandatory death penalty in the region and in Zambia itself. He outlined how, in June 2005 Uganda's Constitutional Court passed a judgment which said laws that mandated the death penalty as punishment for certain serious crimes were unconstitutional and must be rewritten. This was followed up in 2009 when the Supreme Court in that country confirmed that the mandatory death penalty and excessive delay on death row were unconstitutional and directed that death sentences be commuted to life imprisonment after three years in jail. Similar decisions followed in Malawi and Kenya. In Malawi, the 2007 case of Francis Kanfantayeni and five others –v- Attorney General the court found that 'the mandatory death penalty violates the rights of the individual which are protected against inhumane treatment or punishment, negating the right to a fair trial and the review of the sentence by a superior court.' The most recent successful challenge to the mandatory death penalty came in July of 2010 when a Kenyan court declared the relevant provision of the penal code to be unconstitutional and in violation of constitutional provision on protection against inhuman treatment. Mr Mwansa went on to inform the forum that in Zambia the Constitution (in Art. 12.1) does not state whether the death penalty is mandatory, however section 294.2 of the penal code goes on to provide for its mandatory nature for certain offences, including aggravated robbery in which a firearm is used. On the 7th of September Zambia joined the list of countries that have legally challenged such petitions when the case of Alex Njamba was heard. The case brought before Deputy Chief Justice Ireen Mambilima sitting with Supreme Court justices Dennis Chirwa and Hilda Chibomba in Ndola, argues that Njamba’s death sentence was an arbitrary deprivation of life. Mr Mwansa confirmed that any decision of the Supreme Court in this matter (expected in December 2010) would only apply to the appellant and to the offence of aggravated robbery. It is hoped however that should the court decide in favour of the argument that the mandatory sentence is unconstitutional, this precedent could be used by others that have been sentenced to death under this provision of the penal code.

Hands off Cain
Italian Member of Parliament, Elisabetta Zamparutti presented the forum with the work of Hands off Cain and international trends on the death penalty in General. The HoC delegation was in Zambia for three days as part of their global advocacy efforts on the death penalty. They are especially interested in gathering support for the forthcoming United Nations resolution on a moratorium on the death penalty worldwide. This resolution will come before the UNGA later this year and it is hoped that Zambia (a de facto abolitionist state) will support it. Hands off Cain followed their participation in the forum with a trip to Mukubeko Maximum Prison in Kabwe, meetings with Members of Parliament and discussions with Cabinet Ministers Kabinga Pande (Minister for Foreign Affairs) and George Kunda (Vice – President & Justice Minister) and deputy Justice Minister Todd Chilembo.

Debate – 'The death penalty constitutes a cruel & unusual punishment and has no place in a civilised society'
Arguing for the motion in this year's debate was the Honorable Given Lubinda, MP for Kabwata. In his defence of the abolitionist position he dissected the elements of the motion. He argued that causing death in any circumstance is an act of cruelty and that the death penalty qualified for none of the four common justifications for punishment by the state. Hon Lubinda strongly asserted the position that the death penalty does not make sense in terms of retribution, it does not reform the criminal, it does not offer adequate comfort or compensation to the victims of the crime and it has not been proven to be an effective deterrent against crime. Pastor Conrad Mbewe from Kabwata Baptist Church began his reponse to his MP's submission by acknowledging that a person in his position would normally be expected to be in the forefront of the fight to abolish the death penalty. In spite of the fact that Pastor Mbewe was in favour of the President's prerogative of mercy, he argued that principles of fairness and justice must be the guiding light for discussions on the death penalty. He argued that each person is born with an innate sense of fairness and in certain circumstances a judge can use this to impose a sentence of death. The Pastor went on to outline the eight most common arguments against the death penalty and explained his arguments against each in turn. He concluded his submission by arguing that the death penalty is a form of true justice and that the Judiciary must always be able to ask itself the question: 'What does the crime deserve?' A lively discussion ensued, with the majority of the speakers challenging the basis for supporting the death penalty. Participants were interested in understanding the Bible's position on the subject, with pastor Mbewe clarifying that the sixth commandment actually states 'thou shalt not murder'. Hon. Lubinda emphasised that it was important to bear in mind that a discussion on the death penalty should be broader than just a discussion of the law in force at present, since laws can change to reflect the societal values that give meaning to them. One participant brought forward that in the international community, differing standards can sometimes be applied, referring to the tacit approval of Saddam Hussein's execution. The EU and Hands off Cain both responded that there had been a strong EU condemnation of this execution. In reply to several observations from the audience Hon. Lubinda expanded on evidence which shows that the death penalty does not solve any of the problems which lead to crime in the first place, and can actually make them worse. It was also agreed during the discussion that there is no cultural exception and no religious exception to the application of the death penalty and that it simply reflects any given society's respect for life.

Closing
The forum was closed by Olivier Richard, French Ambassador to Zambia, who summarised the discussion and emphasised how important it is that anti-abolishment arguments be listened to. He made reference to a number of myths and facts surrounding the death penalty and ended with an impassioned plea for genuine political leadership on this issue.

Conclusion & Future Activities
The 2010 forum improved upon the previous year's event and provided an opportunity for a broader discussion on the death penalty in Zambia, developments within the region and global perspectives. The forum was well attended and also received coverage in the national print media. This renewed coverage for the death penalty comes at a time when an opportunity exists for Zambia to make a political statement by supporting the UN Resolution on a global moratorium and when interesting progress is made on improving the application of the existing penalty in Zambian law, through a legal challenge to its mandatory nature. Following on from Hands Off Cain's advocacy work on the UN Resolution, the European Union in Zambia will engage with the Government through an official démarche as part of global efforts to garner as much support as possible for the resolution. This work will be lead by the EU Delegation and the Embassy of Ireland in Zambia.

Derek FEE

October 2010

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