Peter Sinkamba

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MAKE NO MISTAKE, YOU CAN STILL BE SENTENCED TO DEATH PENALTY, AND JAILED FOR DEFAMATION OF PRESIDENT UNDER THE REPEALED LAW

Introduction:

On 23 December 2022, President Hakainde Hichilema signed into law Penal Code (Amendment) Bill number 25, which purportedlly banned death penalty and the offence of criminal defamation of the president.

Efforts to arrive at abolition happened throughout the year with President Hichilema having submitted, through Justice Ministry, the bill repealing capital punishment to parliament in May 2022, and following Minister of Justice Mulambo Haimbe having participated at the 8th World Congress Against the Death Penalty in Berlin, Germany in November of that year.

Although death penalty was provided in the Penal Code, the last execution in Zambia took place in January 1997. Successive governments had placed a moratorium on execution of convicts ever since 1997.

However, the conviction of PF Secretary General Raphael Nakachinda to 18 months imprisonment for the offence of defamation of the president is evidence that the effect of the repeal of Section 25, is that such repeal actually has no effect in the Zambian legal system.

The crux of this discourse borders on an accused being convicted under a repealed law, but its effect under the legal system is undermined.

The opposition rubbished the repeal of Section 25 because there were still other laws on statute books, and the Constitution, which the State could use in lieu to achieve the same objective of punishing an offender for defamation of the president or indeed death sentence.

A combined reading of the provisions of Article 18(4) and 12(1) and (3) of the Constitution 1996 suggest that whereas – no person can be tried and convicted of an offence which did not exist at the time of his commission, or which is not contained in an existing law, however, in the case of death sentence, although the penal code purports to abolish death sentence, Article 12 still exists in the Constitution still provides for it.

Since the Constitution is supreme law of the land, there is no constitutional prohibition against trial and conviction of a person to death. Or indeed, the State can avoid court processes, but still execute suspects under the protection of Article 12. Whether the execution of an offender or suspect is done by prison officials or the police, it still remains death penalty by the State.

As for purported repeal of defamation of the president, the drift in relation to the Nakachinda case is therefore that an accused person can be charged with a repealed offence and but still created by another of defamation of the president penal statute, and that a court of law still has jurisdiction to punish for that offence provided for in another statute. If the facts on which an accused is convicted are known to another law, the fact that the accused was charged under a repealed or wrong law or section of the law will not lead to his acquittal.

In other words, the court has clearly laid down the principle that an a court will not acquit a person merely on account of political statements that defamation of a president is repealed law, if at that time there is still an existing law which can be used to try and convict the accused.

Conclusion:

While every principle of law is meant to streamline and clarify issues arising from any law in force and particularly, the particular provision in question, the Nakachinda case is supposed to be used to guide the court, litigants and counsel in future cases.

To me, I think there is a window of opportunity or a way of escape in an appeal if the appellant complains that he was tried and convicted under a repealed law, according to the parliamentary records (Hansard). The first opening is for the appellant to show that he was misled by the President or that his counsel was misled in the process of being tried under the repealed or non-existent law, according to the Hansard. Or that there was a miscarriage of justice arising from the trial.