105 YEARS IMPRISONMENT IS UNCONSTITUTIONAL

By Dr. O’Brien Kaaba

The Court of Appeal in the case of Lasco Kavinga v The People Appeal No 51/2018 (21 August 2019), the appellant served as a pastor or apostle at the Spirit of Christ Fellowship church in Lusaka. He was convicted by the Subordinate Court on one count of rape, one count of attempted rape and two counts of indecent assault involving three family members.

The crimes had a religious dimension as the appellant committed the crimes on the pretext of removing bad omen from the victims. Upon conviction, the magistrate referred his case to the High Court for sentencing. The High Court sentenced him to prison terms ranging from three years to 25 years with hard labour, to run concurrently. Unhappy with the outcome, the appellant appealed against his conviction to the Court of Appeal.

The Court of Appeal considered the sentence inadequate and shocking. This was taking into account the fact that the appellant was a religious leader who betrayed the trust reposed in him by the victims. Because of this, the Court of Appeal decided there was need for a stiffer punishment. It decided to interfere with the decision of the High Court and instead sentenced the appellant to 45 years’ imprisonment with hard labour on count 1,40 years with hard labour on count 2, 20 years with hard labour on counts 3 and4 each. The court further ordered that these sentences should run consecutively(one after the other), on account that they were separate offences. The Court effectively sentenced him to 105 years’ imprisonment with hard labour.

The law on sentencing in Zambia is to a great extent chaotic and in disarray. No clear standards are set by the superior courts to guide lower courts and litigants. Often the sentences are at variance with constitutional norms and there has been no sustained effort to align the law of sentencing with constitutional standards, save for a few cases concerning corporal punishment. Somehow, a judicial culture has evolved and continues to grow of sentencing people without regard for constitutional norms. Yet it is clear that the constitution is the supreme law, the ultimate source of all law and ought to permeate all laws and administrative practices in the state. Article 1(1) of the Zambian Constitution categorically states that the constitution is supreme and overrides all laws and practices. Article 1 (3) makes it clear that “This Constitution shall bind all persons in Zambia, State organs and State institutions.” This includes the judiciary and how it sentences persons convicted even of the most heinous crimes. Offenders are not taken outside the ambit of constitutional norms by virtue of their crimes.

It is contended that the sentencing of the appellant in this case to a cumulative 105 years’ imprisonment is unconstitutional as it offends fundamental constitutional norms and rights. The sentence nowhere reflects constitutional norms. Yet the courts cannot just ignore or wish away the constitution and simply sentence someone on the basis of arbitrary personal shock, no matter how terrible the crime is. As Devenish has argued about the import of constitutional norms: “The fundamental rights provisions are more than mere requirements against which statutory enactments are tested for validity. The Constitution envisages that the compendium of values contained in it will be all-pervasive in all spheres of life regulated by the law and administrative agencies, and will be the measure against which all law and conduct is tested.” In exercise of their power to sentence offenders, Courts have a duty to ensure their sentences are consistent with constitutional standards. Constitutional norms should inform court sentencing practice.

First of all, the 105-year prison term is a violation of article 15 of the Zambian constitution, which states that “a person shall not be subject to torture, or to inhuman or degrading punishment or other like treatment.” The right is couched in absolute terms and does not permit any exceptions. In sentencing the appellant to 105 years, in a country with life expectancy hovering around 50 years, that would have required the appellant to live at least two lives to satisfy the penalty. This effectively meant that he was given a life sentence. His whole natural life would expire in prison. A prison sentence that forecloses the possibility of reform and reintegration into the community is manifestly inhuman and degrading.

An interesting illustrative case is that of Vinter and Others v The United Kingdom (Applications Nos 66069/09,130/10 and 3896/10)(9 July 2013) determined by the European Court of Human Rights. The case was brought by three applicants against the UK challenging their mandatory life sentences for the offenses of murder. The Challenge was premised on article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (on which the Zambian Bill of Rights is actually based), couched as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”  As can be seen, Article 3 is framed similarly to article 15 of the Zambian constitution.

In determining the legality of the life sentences, the Court distinguished between three types of life sentences, as follows: (i) a life sentence with eligibility for release after a minimum period had been served; (ii) a discretionary sentence of life imprisonment without the possibility of parole (that is, a sentence which is provided for in law, but which requires a judicial decision before it can be imposed); and (iii) a mandatory sentence of life imprisonment without the possibility of parole (that is, a sentence which is set down in law for a particular offence and which leaves a judge no discretion as to whether to impose it or not).

The Court considered the first type of life sentence acceptable as it is reducible, but not the other two. The Court held that by imposing irreducible mandatory life sentences on the three applicants, the UK was in violation of article 3. This is notwithstanding the possibility of Executive clemency as that is capricious and not predictable nor is it based on the prisoner’s capacity for reform.

The point is that an irreducible life sentence leaves the person with no hope for the future and nothing significant to live for apart from sustaining his/biological life. The rationale for this was perhaps best explained by Chief Justice Mahomed of the Namibian Supreme Court in the case of Lukas Tcoeib v The State SA/4/93 (1996): “But, however relevant such considerations may be, there is no escape from the conclusion that an order deliberately incarcerating a citizen for the rest of his or her natural life severely impacts upon much of what is central to the enjoyment of life itself in any civilized community and can therefore only be upheld if it is demonstrably justified.

In my view, it cannot be justified if it effectively amounts to a sentence which locks the gates of the prison irreversibly for the offender without any prospect whatever of any lawful escape from that condition for the rest of his or her natural life and regardless of any circumstances which might subsequently arise. Such circumstances might include sociological and psychological re-evaluation of the character of the offender which might destroy the previous fear that his or her release after a few years might endanger the safety of others or evidence which might otherwise show that the offender has reached such an advanced age or become so infirm and sick or so repentant about his or her past, that continuous incarceration of the offender at State expense constitutes a cruelty which can no longer be defended in the public interest. To insist, therefore, that regardless of the circumstances, an offender should always spend the rest of his natural life in incarceration is to express despair about his future and to legitimately induce within the mind and the soul of the offender also a feeling of such despair and helplessness.”

The second point is that the sentence of 105 years, considering that it effectively means the appellant would spend the rest of his natural life in prison, is a violation of human dignity. Article 8 of the Constitution lists “human dignity” among the national values. Article 9 of the constitution is categorical that the national values are binding and shall be taken into account in interpreting the constitution, enactment and interpretation of legislation, and development and implementation of state policy.  Human dignity is an elusive concept not susceptible of an easy definition. But what is clear is that the doctrine of human dignity asserts that “every human being counts; that every human being has infinite value, regardless of his or her personal circumstances or actions.”

Human dignity thrives in personal freedom. When freedom is taken away, dignity is threatened. It is in freedom that the human being can thrive and fulfil their potential. As Ackerman J in Ferreira v Levin No and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC) stated: “Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to deny them their dignity.” Similarly, to imprison a person without the possibility of regaining their freedom again, as did the Court of Appeal in this case, is to deny the appellant his dignity.

In the case of Namibia, for example, Chief Justice Mahomed indicated that such a sentence would be unconstitutional for offending human dignity: “It seems to me that the sentence of life imprisonment in Namibia can therefore not be constitutionally sustainable if it effectively amounts to an order throwing the prisoner into a cell for the rest of the prisoner’s natural life as if he was a ‘thing’ instead of a person without any continuing duty to respect his dignity (which would include his right not to live in despair and helplessness and without any hope of release, regardless of the circumstances).”

Third, the constitution empowers the Courts with power to Africanise or Zambianise the law of sentencing but the opportunities, as in this case, are never seized. Article 7 (d) of the Constitution recognizes customary law as a source of law while article 118(2) (a) empowers the courts to promote alternative forms of dispute resolution, including usage of traditional dispute resolution mechanisms. Yet the Courts, in sentencing, seem oblivious to these provisions. No effort is made to apply any traditional thought patterns in the sentencing process. It would appear that the judiciary in general is still trapped in William Church’s criticism of the ambivalence created in the early Zambian lawyers trained in English law: “Because the legal training was relatively remote from the practical circumstances faced daily in Zambia, the substantive legal consciousness the training was designed to promote tended to become fixed as of the point of formal training, unable to grow easily in the Zambian surroundings of the new lawyer. When legal understanding thus becomes fixed and unchanging, two things happen. One is caused in part by the fact that it is precisely the past, though alien, training that is perceived- accurately enough, usually- as the recipient’s ticket to professional esteem and advancement: the more remote,  and hence vulnerable, that training is, the more obdurately it must be clung to in defence of position, for to concede doubt over the relevance of the training or the authority of the law learned is to challenge the whole basis of the stature conferred by the foreign degree or certificate. The other result is that, because the fixed understanding of the law necessarily recedes and diminishes as time goes by it is incomplete. In such circumstances it is natural that the lawyer concerned will not feel sufficient mastery even over the foreign law to deviate from it with confidence. When a partially trained lawyer is confronted with a system of the size and complexity of the English common law, his typical reaction is one of respect and deference. When he knows it better, he may perceive possibilities for improvement and become willing to try to change it or even consciously to disregard it, but until then he is much more likely to approach it with diffidence.”

There is very little in the current law of sentencing that mirrors African philosophical views about punishment, despite the Constitution clothing the judges with powers to shape the law contextually. Judges have a constitutional duty and mandate to develop contextually and culturally relevant jurisprudence. One of the traditional concepts the Courts could explore in sentencing is the concept of Ubuntu. The concept of Ubuntu is widespread in Sab-Sharan Africa and is considered to have been at the heart of traditional moral consciousness. It denotes that people are interconnected and accomplish full humanness and happiness through cultivating mutually beneficial relationships. It is a concept that disavows self-centeredness and embraces the inter-connectedness of human beings, that is, “a person is a person through other persons.” The concept of Ubuntu is a moral exhortation to nurture one’s humanness, personhood or virtue, through social and sympathetic communal relationships. In a sense, Ubuntu could be considered to be the potential for being fully human. In the ubuntu sense the humanness of a person is not static but dependent on a person’s moral disposition and qualities. A person’s humanness, therefore, can fluctuate from the lowest (of being as good as a beast) to the highest. It is this moral quality that separates humans from beasts. Where a person lives inconstant harmony with other human beings, his or her humanness is elevated.

In a sense, Ubuntu can be seen as a transcendental call towards common interests, to forego self-centeredness. It is a call towards the community, to cultivate relations of mutual support for the of each of the people a person lives in community with. Former South African Constitutional Court judge, Yvonne Mokgoro, summarized the concept of Ubuntu as follows: “Generally ubuntu translates as humaneness. In its most fundamental sense, it translates as personhood and morality. Metaphysically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelopes the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasizes respect for human dignity, marking a shift from confrontation to conciliation.”

Thaddeus Metz has argued that the concept of Ubuntu has two elements embedded in it. That is, “identity” and “solidarity.” To identify with others entails thinking or seeing oneself as integrated in the life of others. It is to think as a “we”, to orient one’s behavior towards the realization of shared ends. To fail to identify with each other entails alienation and undermining each other.

On the other hand, solidarity is shown through people undertaking mutual aid and acting in ways that are expected to benefit each other. It is further shown in attitudes, emotions and motives that show positive disposition towards others. To fail to show solidarity is to show disinterest in each other flourishing and may mean ill-will, hostility and cruelty. Identity and solidarity are present together in ubuntu and are at the heart of the concept.

How does this concept of Ubuntu relate to the criminal justice system? There are at least two factors that connect ubuntu to the criminal justice system. The first is that when one commits a crime (such as rape, murder, kidnapping, theft and assault), such a person can be said to have acted in an unfriendly manner, in a manner that destroys the harmony of the community. By so doing, the culprit is distancing himself or herself from the person s/he has injured, thereby destroying the “we-ness” or togetherness. He or she subordinates the other person instead of identifying with the person and showing solidarity.

When this happens, the community as a collective has a duty to restore this impaired harmony. To achieve this, the community or the political authority of the community may impose some burdensome compensation or burdensome rehabilitation on the culprit as a way of expressing disapproval, but more importantly, to help the culprit realize his wrong and reconcile with the community he has injured. Metz argues that under Ubuntu, the goal of punishment is reconciliation, to restore community harmony. Therefore, the burden or punishment imposed on the offender must be proportional to the harm done, but above all, must not foreclose the possibility of reconciliation and resuming harmonious relations.

The second point linking ubuntu to the criminal justice system, flowing from the first, is that when applied to the criminal justice system, ubuntu would entail sentencing offenders in a manner that avoids unfriendly opposites, that is, sentencing offenders in a manner that forecloses the possibility of reconciliation. Society’s response to an individual’s wrongdoing should not lead to further divisions and ill-will. That way harmony cannot be restored.  In Metz’s view, under ubuntu, the only kind of sentence that is acceptable is that which is “only necessary to counteract another’s own proportionate unfriendliness. ”Punishment should not be intended to annihilate an individual or to degrade his or her capacity for identity and solidarity. Punishment should always leave room for reform and reconciliation, for re-growing one’s humanness. A prison sentence of 105 years manifestly violates the concept of Ubuntu as it takes away the possibility of restoration.

Finally, and in passing, it seems the Court of Appeal misapplied the law regulating the passing of consecutive sentences. The Court thought there was need to stiffen the sentence in view of the fact that the appellant was a religious leader who betrayed the trust reposed in him. In ordering the sentences to run consecutively, the Court took the view that concurrent sentences could only be imposed where the series of crimes formed a continuity of purpose. Because the crimes were committed on different days, the Court thought there was no continuity of purpose (ironically the Court relied on similar fact evidence to uphold the conviction).

This approach appears simplistic and incorrect. The law governing the imposition of consecutive or concurrent sentences is found under section 15 of the Criminal Procedure Code, which provides: “When a person is convicted atone trial of two or more distinct offences, the court may sentence him, for such offences, to the several punishments prescribed therefor which such court is competent to impose; such punishments, when consisting of imprisonment, to commence the one after the expiration of the other, in such order as the court may direct, unless the court directs that such punishments shall run concurrently.”

The section empowers the Courts to impose either consecutive or concurrent sentences for distinct offences in one trial. It does not give circumstances that should be taken into account in order for a court to impose either consecutive or concurrent sentences. However, what is clear from the provision is that there is no requirement for the offences to have been part of a continuing series as a precondition for imposing concurrent sentences. Comparative jurisprudence in the common law demonstrates that the power to order consecutive sentencing is used sparingly as it may in effect lead to sentences disproportional to the gravity of the offences committed by the convict. The approach taken by the Court of Appeal, for example, could lead toa situation where someone who stole several chickens on different days cumulatively attracting hundreds of years in jail, which would be a clear jurisprudential absurdity as the sentence would be manifestly disproportional to the nature of the offence.  To avoid this absurdity, there are two impositions that have evolved in jurisprudence on this issue. The first, is that when the offences are part of a course of conduct, then the sentences should run concurrently and not consecutively. The Court of Appeal position that this course of conduct abates if the offences are committed on different days is incorrect. The principle applies both where the same or similar offence is repeated against the same victim(s) or the same crime is committed but against different victims even on different dates. There is no need for the offences to be committed on the same day, although there may be need for the offences to have been committed within a relatively short period of time.

The second restriction, which the Court of Appeal did not explore, is that the sentences should not run consecutively where this will result into a disproportionately harsh sentence. On this score, Professors John Hatchard and Muna Ndulo have thus argued that “the restriction on the use of consecutive sentences is that such sentences should not be added together to produce an aggregate sentence which is totally out of proportion to the gravity of the individual offences. The court must look at the total course of behavior and impose a sentence commensurate with such behavior.”

For the foregoing reasons, it is humbly submitted that the decision of the Court of Appeal to sentence the appellant to 105 years is inconsistent with constitutional norms. The case highlights the urgent need for reforming the sentencing law in Zambia. The judiciary could lead the way in reforming the law either through propounding jurisprudence that wells-up from the constitution and giving constitutional norms sinews and flesh in meting out sentences, or by adopting sentencing guidelines for the entire judiciary.

[The author is a lecturer in the School of Law at the University of Zambia]