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Africa News Online, Kenya, 16 February 2000
Judge quashes oppressive law
By Newton Sibanda
With a stroke of the pen a judge in Zambia has done away with corporal punishment in the country. Is this the beginning of an end to many other archaic laws in the country?
A landmark High Court ruling has cheered human rights activists and many others alike. The ruling quashing corporal punishment is to many such groups a victory for human rights. It is a ruling that arose from a case in which the Law Association of Zambia (LAZ) through Henry Chanda had appealed against a decision of the subordinate court to mete out a sentence of 10 strokes of the cane on a 19 year old Lusaka youth. The youth had been charged with causing malicious damage to property.
In his grounds of appeal, Chanda argued that the sentence of 10 strokes of the cane was too brutal, inhuman and barbaric. He described this punishment as a legacy from the colonial past where the black person was the target and that throughout the colonial period, no court ever imposed corporal punishment on a white person. In passing judgement, Judge Chulu said corporal punishment was a wrong principle and sections of the penal code which allowed it be struck of the Act.
According to a 1998 local study carried out by the Inter-African Network for Human Rights and Development (AFRONET), a human rights group, the law vests the power to impose this sentence in the local court. The local court justices said that they did not inflict this punishment. They were unanimous that it is an inhuman and degrading punishment. Many of the justices blame magistrates for inflicting corporal punishment more often.
This observation was confirmed by a majority of magistrate respondents in the survey. The magistrates accepted the proposition that corporal punishment was inhuman and degrading and thus in conflict with article 15 of the Constitution. In the absence of an authoritative ruling by the High Court outlawing this form of punishment, they felt inclined to use this as an option to imprisonment.
The study also revealed that one magistrate felt very strongly against corporal punishment. There is a provision that a person sentenced to suffer corporal punishment should be detained while waiting for the sentence to be confirmed. This provision technically constitutes double punishment for one offence.
The Permanent Human Rights Commission (PHRC) a statutory human rights body, is among them, but it has called on the Supreme court to confirm the banning of corporal punishment made in a landmark ruling by High Court judge Elliot Chulu in Lusaka. PHRC chairperson Lombe Chibesakunda said the ban was in line with what the commission had always advocated.
Justice Chibesakunda further stated that while rights have derogations, for example the right to life, Article 15 of the Zambian constitution protects all persons from inhuman treatment and has no provision for derogations or exception. She said caning contradicts the spirit of article 15 of the Republican constitution.
LAZ also hailed the High Court ruling which banned all forms of corporal punishment and declared such provisions in the constitution null and void. LAZ chairman George Kunda described the High Court ruling as a good development for Zambia. "It is a good development which shows that we are now moving with time." LAZ has urged parliament to amend the penal code and remove provisions that are in conflict with the republican constitution on corporal punishment. AFRONET executive director Ngande Mwanajiti said the ruling on corporal punishment was a positive indicator of judicial activism. Mwanajiti said the Public Order act was another archaic law which needed to be squashed.
Southern African Human Rights NGO Network (SAHRINGON) national coordinator Rinos Simbulo said that most developed countries had done away with corporal punishment. Simbulo argued corporal punishment did not reform criminals but simply turned them into hard-core criminals. He also cited the Public Order Act and the Juvenile Act as some of the laws that needed to be revisited.
The Public Order Act governs the holding of meetings, rallies and protests or demonstrations. "Government must also revisit article 23 which speaks of discrimination against women based on customary law," Simbulo said. "The judiciary can be active by offering different views."
He suggested that the authorities must think of involving criminals in community work so that they feel 'part and parcel' of society. The Zambia Independent Monitoring Team (ZIMT) considers the ban as unprecedented. ZIMT president Alfred Zulu said corporal punishment was a bad law passed by the colonial masters (Britain) and that the colonialists who had no regard for human rights for blacks used the law on slaves.
Zulu said that he welcomed the ruling that expunged the law that allows caning. "There are many laws that are archaic and need to be done away with," Mr. Zulu said. He wondered why it had taken so long for Zambia to do away with this law when Britain changed all laws that infringe human rights.
Zulu also contends that the Juvenile Act and the Official Secrets Act also needed to be revisited. The Juvenile Act protects juveniles from being named in court or imprisoned together with adults while the Official Secrets Act prohibits access to classified documents. Both the Public Order Act and Official Secrets Act were enacted by the colonial government in 1912 to suppress nationalism.
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