Introduction
In 2022, Zambia made a landmark move by abolishing the death penalty through the Penal Code (Amendment) Act, joining a growing number of nations moving away from capital punishment. This development was widely celebrated by human rights advocates and international observers. However, despite this legislative victory, the Zambian Constitution still contains provisions that leave room for the possible reintroduction of the death penalty in the future. This article explores the legal position of the death penalty in Zambia, post-2022, and the constitutional loopholes that may allow for its revival.
*The 2022 Abolition:
What Changed?Prior to 2022, the Penal Code of Zambia provided for the death penalty, primarily for offences such as murder, treason, and aggravated robbery. Execution was carried out by hanging. However, the Penal Code (Amendment) Act of 2022 repealed these provisions, effectively abolishing the death penalty from Zambia’s statutes. The decision was driven by concerns over human rights, justice errors, and Zambia’s alignment with international human rights norms.
*The Constitution Still Allows It
Despite the Penal Code amendments, the Constitution of Zambia — particularly under Article 12(1) — still recognises the possibility of a person being deprived of life under certain circumstances, including pursuant to a court sentence following a criminal conviction. This means that the death penalty is not explicitly prohibited by the Constitution.
The implication is that Parliament could, through a future amendment or replacement of the Penal Code, reintroduce the death penalty without needing to amend the Constitution. As long as the Constitution allows for capital punishment under due process, any legislation re-establishing it would likely be considered constitutional.
*Implications for the Future
The constitutional allowance for the death penalty presents a legal and political challenge. While the current government has shown a commitment to abolition, a future administration could revive capital punishment by amending the Penal Code once again. This makes Zambia’s abolition partial and legally reversible.
Furthermore, because the Constitution remains supreme law, the courts could not strike down a law reintroducing the death penalty unless a constitutional amendment specifically outlawing capital punishment is enacted.
Conclusion
Zambia’s abolition of the death penalty through the Penal Code (Amendment) Act of 2022 was a significant step toward aligning with global human rights standards. However, the continued allowance for capital punishment under the Constitution means the abolition is not absolute. For a complete and permanent abolition, Zambia would need to amend its Constitution to expressly prohibit the death penalty. Until then, the legal door remains open for its return.