Chisanga v Zambia (2005) AHRLR 34 (HRC 2005)

Chisanga v Zambia (2005) AHRLR  34 (HRC 2005)

Communication 1132/2002, Mr Webby Chisanga v Zambia

Fact

In the night of 15 November 1993, a grocery store was robbed by three men, one of whom was armed. The owner of the shop was shot in the thigh and brought to hospital. The author was identified as the armed man by the shop-owner, who knew Mr Chisanga. He was arrested on 17 November 1993 and identified by the shop-owner during the identification parade. The author denied being one of the robbers and claims to be innocent. 

 On 12 May 1995, the author was convicted by the Ndola High Court, for attempted murder (in violation of section 215 of the Zambian Penal Code), and aggravated robbery (in violation of section 294 (2) of the Penal Code). He was sentenced to death on the second count, but was not sentenced on the first count, as the trial judge considered that the facts of the case supported the second count. The author appealed his death sentence to the Supreme Court, on the ground of mistaken identity. Supreme Court, ‘set aside the death sentence and imposed a sentence of 18 years with effect from the date of arrest’. 

On 3 November 2003, the author informed the Committee on Human Rights that he had received another notification from the Master of the Supreme Court, attached to a letter from him, dated 1 October 2003, informing him that his appeal had been dismissed on 20 December 1999, that the death sentence was confirmed, and that he was sentenced to an additional 18 years of imprisonment. The author claims that the Supreme Court issued its judgment in his presence on 4 December 1997, and not on 20 December 1999. 

Argument of the complaint 

 The author claims that he suffered inhuman treatment in prison because of the contradictory notifications concerning the outcome of his appeal and the resulting uncertainty about his sentence. Also the author contends that the method of execution in Zambia, death by hanging, constitutes inhuman, cruel and degrading punishment, as it inflicts severe pain. Although the author does not invoke the provisions of the Covenant, it appears from the allegations and the facts which he submitted that he claims to be a victim of a violation by Zambia of articles 14(1), (2), (3)(b), (5) together with article 2, 6(2) and (4) together with article 2, and 7 of the International Covenant on Civil and Political Rights. 

The state party's submission on the admissibility and merits of the communication and author's comments 

It considers that ‘there is some confusion over the sentence that he [the author] has received’. It refers to a judgment of the Supreme Court at Ndola dated 5 June 1996, in which it appears that his death sentence was upheld on the second count of conviction (aggravated robbery), and that he received an additional sentence of 18 years on the first count of conviction (attempted murder), on which the High Court had failed to sentence him. The state party submits a copy of this judgment. 

 The state party further claims that the author has not ‘completely’ exhausted domestic remedies, as he is entitled to file a petition for Presidential mercy, under article 59 of the Zambian Constitution. 

 The state party underlines that although the death penalty still exists in law, its application has been restricted to the ‘most serious’ crimes, namely for murder, treason and aggravated robbery with use of a firearm. A Constitutional Review Commission has been set up to facilitate the review of the current Constitution, and is hearing views from the public on various issues, including on the death penalty. The state party considers that ‘an opportunity for the abolition of the death penalty exists’. As a result of this, the President has recently pardoned many death row prisoners or commuted their death sentences to long-term imprisonment.

Issues and proceedings before the Committee  

The Human Rights Committee, in accordance with rule 93 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant. The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for purposes of article 5(2)(a) of the Optional Protocol. The Committee notes that the author claims to have made three petitions for pardon which remained without reply and which claim is uncontested, and reiterates its jurisprudence that presidential pardons are an extraordinary remedy and as such do not constitute an effective remedy for the purposes of article 5(2)(b) of the Optional Protocol. 

With regard to the author's claim under article 14(1) in respect of the alleged unfairness of his trial, the Committee notes that this claim relates to the evaluation of facts and evidence by the domestic courts. The Committee refers to its prior jurisprudence and reiterates that it is generally for the appellate courts of states parties to the Covenant to evaluate facts and evidence in a particular case and that it is not for the Committee to review these issues, unless the appreciation of the domestic courts is manifestly arbitrary or amounts to a denial of justice. The Committee considers that the author has failed to substantiate, for the purposes of admissibility, any such exceptional element in his present case, and this part of the communication is therefore inadmissible under article 2 of the Optional Protocol. 

With regard to the claims under article 14(2) that the author was not presumed innocent, and 14(3)(b) in respect of his lack of opportunity to prepare his defence and to communicate with his counsel, the Committee notes that the author has not submitted any explanation or evidence in support of these claims and finds that this part of the communication is inadmissible under article 2 of the Optional Protocol, for lack of substantiation.  The Committee considers that the remaining claims under articles 14(5) together with article 2; 7; 6(2) and (4) together with article 2 of the Covenant are admissible and proceeds to the consideration of the merits. 

Consideration of the merits  

 It appears from the file that the author was informed by official notification of 4 December 1997 with the seal of the registry of the Supreme Court of Ndola, that his death sentence had been commuted. The Committee considers that the state party has failed to explain how the author came to be notified that the death penalty had been set aside. It is insufficient to dismiss it as a matter of the author's confusion. Transferring him to the long-term section of the prison only shows that the confusion was not a matter of the author's misunderstanding. To act inconsistently with the notification document transmitted to the author, without further explanation, calls into question the manner in which the right of appeal guaranteed by article 14(5) is executed, which in turn calls into question the nature of the remedy. The Committee finds that in acting in this manner, the state party has violated the author's right to an effective remedy in relation to his right to appeal, under article 14(5) taken together with article 2, the author's rights protected by article 7 of the Covenant in this context. 

 As to the author's claim that the crime for which he was sentenced to death, namely aggravated robbery in which a firearm was used, is not one of the ‘most serious crimes’ within the meaning of article 6(2) of the Covenant, the Committee recalls that the expression ‘most serious crimes’ must be read restrictively and that death penalty should be an exceptional measure. It refers to its jurisprudence in another case concerning the state party, where it found that the mandatory imposition of the death penalty for aggravated robbery with use of firearms violated article 6(2) of the Covenant. The Committee notes that, although the victim of the crime was shot in the thigh, it did not result in loss of life and finds that the imposition of death penalty in this case violated the author's right to life protected by article 6 of the Covenant. The Committee considers that taking him from death row and then refusing to apply to him the amnesty applicable to those who had been on death row for ten years, deprived the author of an effective remedy in relation to his right to seek amnesty or commutation as protected by article 6(4) together with article 2 of the Covenant. 

The Human Rights Committee, acting under article 5(4) of the Optional Protocol, is of the view that the facts before it disclose a violation of articles 14(5) together with article 2; 7; 6(2) and (6), 6(4) together with article 2 of the International Covenant on Civil and Political Rights.  In accordance with article 2(3)(a) of the Covenant, the state party is under an obligation to provide the author with a remedy, including as one necessary prerequisite in the particular circumstances, the commutation of the author's death sentence. 

Generally, the rights which have violated are presumption of innocent by virtue of article 14(2), right to life under article 6, right to fairness of trial by virtue of article 14(1), right to prepare the defence under article 14(3)(b), right to dignity under article 7 and 10(1), right to appeal under article 14(5) and right to seek pardon or commutation by virtue of article 6(4) of the International Covenant on Civil and Political Rights. All this are resulted from unfair hearing from other side.