Never will I forget the first time I sat in court, watching and listening as a judge passed the death sentence on a convicted person. In the years after that, before South Africa’s new apex court found the death penalty unconstitutional, I witnessed that scene on a number of other occasions, but each time it was a shock, a jolt to the soul: how could it be that this person, whom everyone in court had somehow got to know through the hours or days of the trial, who was alive and well, would be put to death by hanging on the orders of this judge?
I thought about that conundrum again this week as I considered the work of the superior courts in Zambia. That country retains the mandatory death penalty for treason, aggravated robbery and murder, and the lists of delivered judgments are dominated by cases in which judges hand down or confirm the death penalty.
True, a number of other African countries retain the death penalty, but there is a growing number of states where capital punishment has been found unconstitutional, the most recent being Malawi, whose apex court declared, during April, that the death penalty did not pass constitutional muster.
There is also a trend for countries to scrap the law making the death penalty mandatory for certain offences: one of the reasons given by states that have done away with the mandatory death penalty is that it forces a judge, once an accused is convicted of murder, to impose the death penalty, without regard to the circumstances that might lessen the blameworthiness. In such cases, it effectively reduces a judge’s function to that of a rubber stamp authorizing capital punishment.
Zambia, which clings to mandatory sentencing, is an example of this rubber-stamping problem, and some months the courts seem, to outsiders at least, like processing plants for death row.
This week I did a count of cases decided by the apex supreme court and the court of appeal in their most recent batch of decisions.
For the supreme court, that would have been their April judgments. In all, they delivered decisions in 14 cases during that month. Twelve of these were criminal matters, all but one of them involving the death penalty. In two cases the accused were acquitted; in nine cases the conviction of the accused, sometimes more than one person, was confirmed, in effect also confirming the death penalty in relation to those accused person. In other words, during April alone, the supreme court approved the sending of more than nine people to death row.
What about the court of appeal? Between 21 May and 4 June, the court delivered 20 decisions, 15 of them related to criminal matters. Ten concerned murders and thus the death penalty. Two of these appeals resulted in acquittals or in the accused being found guilty of lesser offences. The judges confirmed the death penalty in the other appeals, meaning that eight or more additional people were sent to death row in that fortnight by the appeal court.
Zambia’s Presidents have shown personal uncertainty about the way forward in relation to the death penalty. Capital punishment is stipulated for certain offences and remains on the statute books following a constitutional review referendum as part of the 2016 elections. But it was last actually carried out so long ago that many academics, political commentators and others, including the United Nations, have come to refer to Zambia as a ‘de facto’ abolitionist state: the punishment officially exists but is not implemented.
The last known executions were carried out in January 1997. That is when the then-President, Frederick Chiluba, pardoned some 600 inmates, but authorised eight hangings. Since then, in 2015, 332 people on death row had their sentences commuted to life imprisonment by action of President Edgar Lungu. And earlier this year, on 27 January, he commuted the death sentences of a further 246 death row inmates to life.
Local media covering the January event quoted the home affairs minister, Stephen Kampyongo, as saying that the action (of commuting the sentences) was taken to help reduce over-crowding on death row where facilities existed for 50 prisoners while in reality more than 400 were imprisoned there. Further, he said, reduction of numbers would help protect against Covid-19.
One related interesting fact emerges from the death penalty statistics. Of the 246 death row prisoners whose sentences were commuted earlier this year, 225 were men and 21 were women.
The same trend can be seen in the decisions of the appeal court and the supreme court between mid-April and early June: there was just one woman accused among all those appealing.
As with most of the others considered by the two courts during this time, Hildah Zulu had been convicted of murder, and the sentence of death passed on her was thus automatic. Since she lost her appeal, that sentence was confirmed, and she will now no doubt be sitting on death row.
And there’s another even interesting feature: it often happens that the higher court, having found against the accused on appeal, refrains from actually using the words ‘death sentence’.
Instead, judges will use a euphemistic phrase, along the lines of the court ‘confirming the conviction and sentence imposed by the high court’. Not that you can blame them. It would be hard for anyone repeatedly to recite the full text of such a decision: ‘sentenced to death by hanging until pronounced dead’.
Of course, trying and deciding appeals in difficult cases is precisely what these top courts are supposed to do. But nine people sent to their deaths by the supreme court in just two weeks; or, in the case of the appeal court, eight people in less than a fortnight?
Surely it does something to the psyche of the judges concerned? Is it not time for a re-think of at least the mandatory death penalty?
* 'A matter of justice', Legalbrief, 22 June 2021