By Patrick Chulu Legal Practitioners (PC|LP)
The short answer is generally no under the current Penal Code, a Judge cannot sentence a person to death for offences governed by the Penal Code.
Many people still believe that a person convicted of a serious offence such as murder may automatically be sentenced to death. However, Zambia’s criminal law has undergone significant changes regarding capital punishment.
In 2022, Zambia amended the Penal Code to replace the death penalty with life imprisonment. The Penal Code (Amendment) Act No. 23 of 2022 removed references to the death sentence from the relevant Penal Code provisions and substituted life imprisonment.
What Changed Under the Law?
Before the amendment, the Penal Code provided for the death penalty for certain serious offences.
The law was amended to replace the death penalty with life imprisonment.
This means that where the Penal Code previously required or permitted a sentence of death, the applicable punishment is now generally life imprisonment.
Therefore, a Judge exercising sentencing powers under the Penal Code must impose a sentence authorised by the law currently in force.
Can a Judge Choose to Impose the Death Penalty?
No.
A Judge does not have unlimited power to impose any punishment they consider appropriate.
Courts derive their sentencing powers from the law. A Judge can only impose a sentence that is authorised by the relevant legislation.
If the law provides for life imprisonment, imprisonment for a specified period, a fine, or another lawful punishment, the court must sentence the convicted person within the limits established by law.
A Judge cannot simply decide to impose the death penalty where the law does not provide for it.
What About Murder Cases?
Murder remains one of the most serious criminal offences in Zambia.
However, the amendment to the Penal Code replaced the death penalty with life imprisonment in the relevant murder sentencing provisions.
Therefore, a person convicted of murder under the Penal Code may face life imprisonment rather than a sentence of death, subject to the applicable law and circumstances of the case.
The seriousness of the offence has not been removed. What changed is the punishment prescribed by law.
Does the Constitution Still Mention the Death Penalty?
The legal position should be understood carefully.
The Constitution has historically contained language concerning deprivation of life in the execution of a court sentence. However, the existence of constitutional language does not, by itself, give a Judge an independent power to impose a death sentence.
A criminal court must identify a valid law creating the offence and prescribing the punishment.
Where the Penal Code has replaced the death penalty with life imprisonment, a Judge cannot rely solely on constitutional wording to impose a death sentence for an offence under the Penal Code.
The Judge Must Follow the Law
Judicial power is exercised in accordance with the Constitution and other written laws.
During sentencing, a Judge must consider:
- The offence for which the accused person has been convicted.
- The punishment prescribed by law.
- The circumstances surrounding the commission of the offence.
- Any aggravating factors.
- Any mitigating factors.
- Relevant sentencing principles.
- Applicable judicial decisions.
The court cannot create a punishment that Parliament has not authorised.
Can the Death Penalty Be Brought Back?
Any attempt to reintroduce the death penalty would require a lawful legislative process and would have to be considered within Zambia’s constitutional and international legal obligations.
The law cannot be changed merely because a particular crime has caused public anger or attracted widespread attention.
Until the law is lawfully changed, courts must apply the legislation currently in force.
Why Is This Important?
Understanding the law on sentencing is important because public discussions about serious crimes are often influenced by emotion and inaccurate legal information.
A person may commit an extremely serious offence, but the court must still impose a sentence permitted by law.
The rule of law requires Judges to apply the law as it exists not to create punishments based on public pressure, personal opinion, or the popularity of a particular case.
Conclusion
Under the current law in Zambia, a Judge generally cannot sentence a person to death for an offence under the Penal Code.
The death penalty provisions under the Penal Code were replaced with life imprisonment following the 2022 amendments.
Judges remain bound by the law and may only impose sentences authorised by legislation.
The seriousness of a crime does not give a court the power to impose a punishment that is not provided for by law.
Patrick Chulu Legal Practitioners (PC|LP)
Integrity • Courage • Excellence
📍 Close 1 Ibex Hill, Plot No. 487/100, Near Office of the Public Protector, Lusaka, Zambia
📞 +260 765 637 332 | +260 952 491 138
✉️ info@pclplaw.com
🌐 www.pclplaw.com
For general legal information only. Not legal advice.