Special Issue: Sentencing in Zambia
| Author | Kapianga, K. |
| Citation | (2020) 33 SACJ 66 |
| Pages | 66-87 |
| Published date | 06 July 2020 |
| Date | 06 July 2020 |
Sentencing in Zambia
KELLY KAPIANGA*
ABSTRACT
Zambia faces numerous problems relati ng to sentencing, including
unwarranted sentencing d isparities and an unmanageable pr ison population
attributable to, among other factors, a fa ilure to make sufcient use of
non-custodia l sentences. One consequence of Zambia’s history a s a former
British protectorate is t hat its Constitution requ ires Zambia to borrow from
English law and practice in m atters that are not covered by Zambian law.
The article high lights the shortcomings i n Zambia’s sentencing system and
recommends that Zambi an sentencers adopt and adapt the English a nd
Welsh sentencing guidelines to help address t he problems currently faced
by sentencers in this jur isdiction. Sentencing g uidelines are fast becomi ng
a staple feature of sentencing systems worldwide i ncluding several Afr ican
jurisdictions. T hey are proving to be a useful device for not only restrai ning
unwarranted sentencing d isparities, but also incor porating non-custo dial
sentences into a sentencing system as one of se veral measures of ensur ing
the efcient use of penal re sources. The English and Welsh sentencing
guidelines have proved to be part icularly inuentia l in the development of
guidelines across t he world, including on the Africa n continent.
1 Introduction
Most Zambians agree that a person convicted of a c riminal offence ought
to be punished. At rst glance, there is l ittle controversy regarding the
forms of penalties to be imposed. Conventional knowledge dictates
that the most severe forms of punishment, such as capital pun ishment
and imprisonment should be reserved for serious offences, and the less
severe ones for less serious crimes. Upon closer examination, however,
things are not so simple. First, determi ning what a ‘serious offence’
is, is not easy. For instance, while manslaughter intuitively sounds
more serious than irreg ular entry into a countr y, under Zambian law,
the latter carries a ma ndatory minimum sentence of 15–20 years’
imprisonment,1 which the former does not.
Second, even where some consensus is achieved regarding a
hierarchy of seriousness of offences, determin ing the severity of
penalties for equally-placed offenders convicted of the same offence is
problematic. Many factors need to be considered. No two sentencers
* MSc in Crim inology and Crim inal Justice (Universit y of Oxford). Legal prac titioner
admitted to prac tice in the Republic of Zam bia; currently read ing for a Master’s of
Laws (Harvard Univer sity).
1 Section 9 of the An ti-Human Trafck ing Act 11 of 2008.
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(2020) 33 SACJ 66
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are alike which impacts sentences because sentences are in uenced
by the sentencer’s experiences and perspective. Moreover, the
volume of potential sentencing factors means that even very simil ar
offenders committing the same of fence in similar circum stances can
be differentiated by sentencing factors that may, for instance, relate
to their personal situation. Th is latter problem has led the Supreme
Court to ‘acknowledge that the absence of comprehensive statutory
sentencing guidelines does not make any solution feasible in the near
fu t ur e’. 2
This article di scusses sentencing guidelines as a tool for preventing
unwarranted disparities at sentenci ng in Zambia. It begins with a
discussion of some of the principles regulati ng sentencing in Zambia
and notes features that lead to unwarranted inconsistencies in
sentencing. Thereafter, it reviews some of the guidelines issued by
the courts to supplement the statutory pr inciples. The text highlights
some of its shortcomings. Finally, the essay discusses the use of
formal sentencing guidelines in Za mbia and proposes a modication
of the English and Welsh sentencing guidelines for application in this
jurisdic tion.
2 Sentencing principles in Zambia
The principles that regulate sentencing in Zam bia emerge from two
sources: written laws and judicial guid elines. The stat utory principles
are contained in the Constit ution of Zambia and statutes that deal wit h
crimes and crim inal procedures.
2.1 Principles under written laws
The Constitution is the bed rock of legal institutions in Za mbia. Its
provisions are relevant to sentencing in several ways. First, it envisages
that crimina l punishments are imposed as pa rt of citizens’ social
contract with the state. The state under takes to enact laws to establish
conditions of secu rity for individual s3 and protect communal interests.
In return, citizen s agree to abide by these laws and to be punished when
they violate them.4 Therefore, the Const itution permit s derogations
from the rights to life, libert y, property, movement, and freedom
from compulsory labour as punish ment to enforce this agreement.5
Furthermore, it provides requirement s that sentences must meet. First,
2 In Kamfwa v The People Supreme Court (App eal No 125/2017) [2018] ZMSC 48
(12 June 2018) J6.
3 A Ashworth Senten cing and Criminal Justice 6ed (2016) 77.
4 Ibid.
5 Article 11 of the Cons titution of Zambia 1991.
Sentencing in Zambia 67
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