Death penalty confirmed by Zambia’s court of appeal days before capital punishment scrapped. What happens now?

3 February 2023 · Carmel Rickard

Zambia’s court of appeal has dealt with a sensational murder and arson case in a recent decision that highlights two problems. First, the court’s judgment of 16 December 2022 upheld the death penalty imposed on a woman accused of murdering her gym instructor boyfriend by setting him alight. Just days after the appeal court’s decision, however, Zambia’s President Hakainde Hichilema finally abolished the death penalty, leading the justice minister to comment that from now on, no court could impose the death penalty. The new appeal judgment thus highlights the problem of death row convicts whose sentences must be reconsidered now that the death penalty has been scrapped. The second issue relates to when a mandatory life sentence may be imposed for arson. In this case, the appeal court used the opportunity to explain to other courts the circumstances under which such a sentence may be imposed. The appeal court said this was the first time an appellate court had interpreted this section, and it had thus deliberately analysed the provisions to provide guidance to trial courts for the future. Apart from these technical issues, the judgment also laid to rest the claim of the woman convicted of murder in the case – namely, that her boyfriend had set himself alight, angry over her refusal to end a pregnancy that medical tests subsequently showed did not exist.

Read judgment

Mirriam Chilosha was convicted of murder and arson for which she was sentenced to death (for murder) and to life imprisonment (for arson) by Zambia’s high court. She had killed her gym instructor boyfriend, Jeremiah Mbawa, by setting him alight. In the process she also set fire to the house belonging to Floriana Lodge, where he was staying.

Witnesses testified as to their knowledge of Chilosha’s role in killing Mbawa. Some of this evidence was based on information given them by Mbawa himself, during lucid moments before his death in hospital a few days after being set on fire and suffering extensive burn wounds.

One of these witnesses, the manager of Floriana Lodge, had received an early morning call that Mbawa’s house was on fire and that he had been rushed to hospital.

Petrol

While staff put out the blaze, she went to the hospital ward where she found Mbawa who told her that Chilosha, his former girlfriend, had ‘poured petrol’ on him early in the morning as he was coming from the bathroom.

As he tried to wipe his face, she had poured more petrol on him, lighted a match and threw it at him. The manager said that Mbawa, an employee of Floriana Lodge, was ‘completely burnt from head to toe and that the body was black’.

A police witness who had spoken to Mbawa while he was in the hospital’s intensive care unit, said Mbawa told him that Chilosha had burnt him, this after he suggested that the two should break up their relationship and that they should ‘concentrate on their fiancés’ – both Chilsha and Mbawa apparently also being in relationships with people to whom they were engaged.

Dying declaration

The police officer said given Mbawa’s view that he was close to death, he decided to formally take a dying declaration from him. In that declaration, Mbawa said he was dying, with no hope of recovery, and that Chilosha had poured petrol on him and set him alight.

When the police officer later interviewed Chilosha she told him a different story: she said that she was pregnant and that Mbawa was trying to force her to take abortion drugs, threatening to take his own life if she did not. But when Chilosha was taken to hospital for a pregnancy test to corroborate her statement, it was negative.

During the trial, Chilosha denied having set Mbawa alight. She said he was a ‘huge man’ who would not have simply allowed her to pour petrol on him. Her version was that they had a love relationship that ended in 2018 due to pressure from both families.

Secret

They still continued to meet secretly, however, until she informed Mbawa that she was pregnant. Angered by the news, he told her to terminate the pregnancy but she refused. Then he ‘threatened to take his own life if she did not abort’. His death threats intensified, she said, and she decided to see him about a week before he was set alight. During that visit she noticed some pills and asked what they were. He said he wanted to kill himself because she was refusing to have an abortion.

She went back to visit him some days later and all ‘went well’ until he ‘started forcing her to take pills to abort’.

Her version was that on the day he was burnt, he had again tried to get her to take the drugs, threatening to kill himself if she refused. He came into the bedroom ‘looking wet’ and with matches in his hands. There was a struggle and the match fell on him ‘and he got burnt’.

Hopeless

The trial court dismissed her version of events as ‘not reasonably possible’, saying there was overwhelming evidence that she had ‘intentionally, deliberately and illegally’ burnt Mbawa, causing severe burns that led to his death.

On the question of arson, the trial court concluded that she had wilfully and unlawfully set fire to the house. Finding her guilty on both counts, the trial court sentenced her to death for murder and to life imprisonment for arson.

The three appeal judges said they couldn’t fault the finding of the trial court in accepting Mbawa’s statement to the police officer as a dying declaration. Once someone had a ‘settled and hopeless expectation of death’, the general understanding was that it was ‘improbable that they would tell untruths’, the judges said.

Eternal misery

‘This is because there exists no motive to do so nor any benefit derived therefrom, as there exists no hope of living again. Further, no one would want to meet the creator with an untruthful mouth and mind. It is believed that doing so would guarantee eternal misery.’

There was also no reason to find the trial court erred when it rejected Chilosha’s version of events.

But while the conviction for murder was ‘safe’, the arson question was more complex. Arson involved wilfully and unlawfully setting fire to a house. Chilosha did not have the required mental element for arson; she may have acted unlawfully, but did she intentionally and deliberately set the house on fire?

Reckless

For arson to be proved, the Zambian penal code was ‘very clear and unambiguous’, said the court: it required intent and didn’t cover accidental burning, nor fires recklessly or negligently caused.

Clearly Chilosha was reckless and/or negligent as to whether the fire that burnt Mbawa would spread to the house. But this was not covered by the penal code and the appeal judges quashed the conviction for arson.

As to sentence, a mandatory life sentence for arson could only be imposed where the arson caused someone’s death. In this case, however, it was not the fire to the house that caused Mbawa’s death, and the life sentence was thus unwarranted.

Interpret

The judges said they had ‘taken time’ to analyse the provisions of the penal code and the circumstances under which a mandatory life sentence may be imposed ‘because this is the first time an appellate court in our jurisdiction has had occasion to interpret this section.’

‘This is in order to provide guidance to trial courts and provide clarity in the law.’

For Chilosha it’s not the end of the matter, however. She now joins an estimated 380 on Zambia’s death row, uncertain about their future. In December 2022, days after the appeal judges confirmed her murder conviction and the death sentence imposed by the trial court, the Zambian government scrapped the death penalty.

At this stage no-one knows the fate of those on death row and whether there will be legislative action that automatically converts the death sentences imposed on the inmates to life imprisonment, or whether there will now need to be a lengthy series of cases in which the courts reconsider an appropriate sentence, short of execution, taking all 380 death row matters one by one.

‘A matter of justice’, Legalbrief, 31 January 2023

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.