Why the long wait for Zambia's supreme court death penalty decision?

17 January 2019 · Carmel Rickard

After a cattle-rustling raid into Zambia by uniformed Angolan soldiers armed with assault rifles, a local man has been convicted and sentenced to death. It is an unusual case for several reasons: armed border raids seldom result in a conviction, for example. But it is also significant because it shows the Supreme Court, Zambia's highest legal forum, taking more than four years to deliver judgment. Given that the case did not appear to involve particularly complex legal issues, questions have to be asked about why the judges took so long - especially in a case that concerns the death penalty - and why they felt no need to explain the delay.

Read judgment here

WHEN a group of armed and uniformed Angolan soldiers crossed into Zambia on 27 April 2000, kidnapped some local people and forced them to help drive their own cattle back over the border, few would have imagined anything would come of it.

And yet, some time later, one of the cattle rustlers – a man well known in the Zambian border area where the incident took place – was arrested, charged, tried and sentenced to death.

Though it is many years since anyone was executed by the Zambian state the man, Steven Samuhala, appealed to the Supreme Court in Lusaka to reconsider the outcome of his trial. In his challenge he raised four grounds against his conviction and sentence, but he was ultimately unsuccessful on all these grounds.

The story that emerged from the evidence may be commonplace for people living in the border area, but it is rare for anyone to be caught and tried following such a raid. This is just one of several reasons that the case is particularly interesting.

According to evidence heard by the trial court 18 men, armed with AK47 assault rifles and dressed in military fatigues, crossed the border at Chavuma in Zambia's North Western Province. The three witnesses who later gave evidence in court said they had been at their nearby fishing camp when they were attacked by the soldiers. By moonlight they could clearly recognize one of the group, the accused. They all knew him very well as he had lived with them in the same area until he migrated to Angola some years before to stay with his father.

One of the witnesses said that during the attack Samuhala hit him with his gun butt and seized him with the help of the other foreign soldiers. They then forced him to lead them from the fishing camp to the local villages where they stole cattle belonging to the villagers and took the animals back to the fishing camp until the next morning.

By daylight the three witnesses were able to see all the attackers and to confirm the identity of Samuhala. The witnesses were forced to drive the stolen cattle into Angola where the three were kept until the next night and then released to return to Zambia. Two of them were ill after their return, partly because of the injuries inflicted by the Angolan soldiers, and they made their report to the police only after they recovered.

Samuhala, however, later said that he had been coerced by MPLA troops in Angola to help them steal cattle from the Zambian side of the border. He said he managed to escape from the Angolans after the cattle had been driven across, but when he returned to Zambia he was “quickly apprehended” by people in the local neighbourhood watch group.

The trial judge did not accept this version, finding that Samuhala was part of the group of foreign soldiers: he was dressed as they were, in military uniform, and he carried a military assault rifle. Also, he was an active participant, hitting one of the witnesses with the butt of his gun.

On appeal, the judges dismissed Samuhala’s argument that the evidence of the three witnesses was inconsistent and thus unreliable. The supreme court said while there were some inconsistencies, they did not affect the credibility of the evidence. As to his claim that he had been captured before the raid and made to participate, the judges said they agreed with the trial court that this had been an afterthought.

The evidence clearly established that the assailants were armed soldiers from Angloa on a mission to steal and rob in Zambia. Their weapons were thus “firearms” within the meaning of Zambian law and Samuhala was correctly convicted of armed aggravated robbery for which there was a mandatory death sentence.

“We find no merit in the appeal and it is dismissed,” the judges said.

Apart from the story itself, and the fact that someone involved in the raid was caught and sentenced, there is a further reason that the case is interesting: after the appeal hearing it took more than four years for judgment to be handed down by the Supreme Court. This is an astonishing delay by any reckoning and all the more remarkable given the sentence of the accused which would normally prompt an appeal court to move swiftly in announcing a decision.

No comment on the delay was made by the court, almost as though more than four years is thought to be a normal and acceptable wait for any decision, including one that involves the death penalty.

The first paragraph, however, makes a tangential note about the quorum that heard the matter, though without suggesting that this had anything to do with the delay. Three judges were initially involved in the appeal on 4 February 2014, but one of them – Judge Florence Lengalenga – was at the time an acting judge in the supreme court and she has since returned to her seat on the court of appeal. The decision, finally delivered late last year, was thus the judgment of the remaining two supreme court justices.

* First appeared as "A matter of justice" in Legalbrief

Carmel Rickard

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