The Death Penalty and the Right to Life in the Draft Constitutions of Zambia and Zimbabwe

Author: Andrew Novak
Adjunct Professor of African Law, American University Washington College of Law and incoming Adjunct Professor of Criminology, Law, and Society, George Mason University

On 16 March 2013, Zimbabwean voters overwhelmingly ratified a new constitution, which contains a right to life provision that dramatically scaled back the scope of the death penalty. The new constitution restricts the death penalty only to aggravated homicide and requires a judge to consider all mitigating factors in order to dispense a death sentence. The death penalty is a prohibited sentence for women and persons under the age 21 or over the age 70. The new constitution also establishes a constitutional right for prisoners to seek commutation or pardon from the executive. The death penalty was abolished for non-homicide offences, including treason, a notoriously politicised charge in recent years. Newspaper reports indicated that the Cabinet would review the cases of each of the current 72 death row inmates, even though a new hangman was hired in February 2013 after a twelve-year long search. The two women on death row would have their sentences automatically commuted.

Meanwhile, Zambian voters are expected to vote on a new constitution in June, which likewise includes a right to life provision per Article 28, although it lacks the analytical clarity of Zimbabwe’s new constitution. Like the Zimbabwean constitution, the Zambian one creates a constitutional right to seek commutation or pardon. The death penalty may not be imposed on a pregnant woman or a child, or where “extenuating circumstances” exist relating to the commission of a crime. The death penalty in Zambia retains popular support in constitutional consultations, but Zambia is considered de facto abolitionist, with three presidents in succession—Levy Mwanawasa, Rupiah Banda, and Michael Sata—who each personally opposed the death penalty and installed moratoria on executions. Highlighting these competing tensions, Zambia abstained in a December 2012 UN resolution calling for a worldwide moratorium.

The death penalty regimes in Zambia and Zimbabwe have long possessed an unusual quirk unique to the legal systems of Southern Africa. This unusual provision is the doctrine of extenuating circumstances, which turned the old British-style common law mandatory death penalty into a rebuttable presumption in favor of death. Under the doctrine, once convicted, the burden shifted to the defendant to show beyond a fair preponderance of the evidence that circumstances existed, at the time the crime was committed, that reduced his moral blameworthiness for the offence. Extenuating circumstances included youthfulness, intoxication, provocation, witchcraft, lack of intent to kill, and many others. The doctrine, which originated in apartheid South Africa in 1935 as a compromise to the high rates of clemency dispensed by the governor-general, passed into Southern Rhodesian (colonial Zimbabwean) law in 1949 and into Zambian law in 1990. The doctrine also survives in Botswana and Lesotho.

While the doctrine of extenuating circumstances permitted some judicial discretion and therefore avoided the absurd results of the mandatory death penalty elsewhere in common law Africa, the doctrine always lacked the analytical clarity and rationality of an American- or Indian-style discretionary death penalty regime, in which the prosecution must prove both guilt and sentence beyond a reasonable doubt based on the presence of aggravating factors. By shifting the burden to the defendant to show why he or she should not be executed, the doctrine stresses the weakest link in the system: indigent criminal defence counsel. It also threatens an accused person’s right to remain silent. The new Zimbabwean constitution abolishes the doctrine and creates a pure discretionary death penalty regime on the model of the United States or India, requiring the prosecutor to prove aggravating circumstances meriting the special punishment of death beyond a reasonable doubt. The Zambian one, to its misfortune, may constitutionalise the doctrine by exempting from the death penalty cases that possess “extenuating circumstances”, and therefore shifting the burden to the defendant to rebut a presumption in favour of death. While both Zambia and Zimbabwe are making strides toward total abolition of the death penalty—the irreversible trend not only in Africa but around the world—the new constitution of Zimbabwe undoubtedly takes a larger step toward that goal than the draft constitution of Zambia likely will.

About the Author
Andrew Novak has a Master of Science degree in African Politics from the London School of Oriental and African Studies and a Juris Doctor from Boston University School of Law.