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1.1 The author of the
communication dated 15 October 2002 is Webby Chisanga, a Zambian citizen
currently on death row. Although he does not invoke any provisions of the
International Covenant on Civil and Political Rights (the Covenant), his
claims of human rights violations by Zambia seem to raise issues under
articles 14, paragraphs 1, 2, 3(b), and 5 together with article 2; 7; 6,
paragraph 2 and 6, paragraph 4 together with article 2 of the Covenant. He
is not represented by counsel.
1.2 On 28 October 2002, the Human Rights Committee, through its Special
Rapporteur on New Communications, requested the State party, pursuant to
Rule 92 (old Rule 86) of its Rules of Procedure, not to carry out the death
sentence against the author whilst his case was under consideration by the
Committee. By letter of 22 March 2004, the State party informed the
Committee that it would comply with the request.
FACTUAL BACKGROUND
2.1 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.
2.2 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.
2.3 In a submission to the Committee dated 5 December 2002, the author
transmitted copy of a "Notification of result of final appeal" of the Master
[Registrar] of the Supreme Court dated 4 December 1997, informing him that
his case had been heard on the same day by the Supreme Court, which had "set
aside the death sentence and imposed a sentence of 18 years with effect from
the date of arrest".
2.4 By further submission of 3 November 2003, the author informed the
Committee 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.
2.5 According to the author, once his death sentence was commuted in 1997,
he was moved from death row to the section of the prison for prisoners
serving long-term sentences, where he performed carpentry work. He claims
that this can be verified in the prison records. He recalls that death row
prisoners do not work. After two years of service, he was put back on death
row on 1 November 1999.
2.6 By letter of 28 March 2004, the author informed the Committee that death
row prisoners were being moved to the long-term section of the prison. He
indicates that only those who had been on death row for more than ten years
were covered by a Presidential amnesty for death row inmates. The author,
who had been in prison for eleven years, was kept on death row because he
had served two years in the long-term section of the prison and thus only
spent nine years on death row.
THE COMPLAINT
3.1 The author argues that his trial was not fair as he was convicted on the
sole testimony of one witness, as the original of the medical report on the
victim's wounds was never presented in Court, and because the weapon of the
crime was not investigated with regard to finger prints. He contends that he
was not presumed innocent, that his alibi witness was "denied", and that he
was not given the chance adequately to prepare his defence, as his counsel
was prevented from seeing him.
3.2 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.
3.3 He argues that the crime for which he was sentenced to death, i.e.
aggravated robbery with use of a firearm, is not one of the "most serious"
crimes within the meaning of article 6, paragraph 2.
3.4 The author contends that the method of execution in Zambia, death by
hanging, constitutes inhuman, cruel and degrading punishment, as it inflicts
severe pain.
3.5 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, paragraphs 1, 2,
3(b), and 14, paragraph 5, together with article 2; 6, paragraph 2, and
article 6, paragraph 4, together with article 2; and 7.
THE STATE PARTY'S SUBMISSION ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION AND AUTHOR'S COMMENTS
4.1 By letter of 31 March, and Note verbale of 12 May 2004, the State party
commented on the admissibility and merits of the communication. 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.
4.2 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.
4.3 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.
5. By letters of 14 November 2004, 18 January and 3 April 2005, the author
commented on the State party's submission. In reply to the State party's
argument that he did not exhaust domestic remedies, he argues that he sent
three petitions for clemency to the President in 2001, 2003 and 2004, but
never received any reply. He acknowledges that his case was heard on 6 June
1996, but reaffirms that the judgment against him was issued on 4 December
1997, and that his death sentence was commuted to 18 years of imprisonment.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
ADMISSIBILITY CONSIDERATIONS
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, 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.
6.2 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, paragraph 2 (a), of the Optional Protocol.
6.3 With respect to the State party's argument that the author did not
exhaust domestic remedies in failing to request a Presidential pardon, 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 [FN2] that presidential pardons are an
extraordinary remedy and as such do not constitute an effective remedy for
the purposes of article 5, paragraph 2 (b), of the Optional Protocol.
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[FN2] See Communication 1033/2001, Nallaratnam Singarasa v. Sri Lanka, Views
adopted on 21 July 2004
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6.4 With regard to the author's claim under article 14, paragraph 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.
[FN3] 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.
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[FN3] See Communication 541/1993, Errol Simms v. Jamaica, Views adopted on 3
April 1995, paragraph 6.2 and Communication 1169/2003, Antonio Hom v.
Philippines, Inadmissibility Decision of 30 July 2003, paragraph 4.3
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6.5 With regard to the claims under article 14, paragraph 2 that the author
was not presumed innocent, and 14, paragraph 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.
6.6 The Committee considers that the remaining claims under articles 14,
paragraph 5 together with article 2; 7; 6, paragraph 2, and 6, paragraph 4,
together with article 2 of the Covenant are admissible and proceeds to the
consideration of the merits.
CONSIDERATION OF THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
7.2 With regard to the contradictory notifications about the outcome of the
author's appeal to the Supreme Court, the Committee notes that the author
and the State party have provided conflicting versions of the facts.
According to the author, he was handed two verdicts on appeal, one commuting
his death sentence to 18 years of imprisonment, the subsequent one upholding
his death penalty and sentencing him to an additional 18 years of
imprisonment. According to the State party, this is incorrect, as there is
only one judgment, which upheld the death sentence and sentenced him to an
additional 18 years imprisonment. 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. That the author was thereupon transferred from death row to the
long term section of the prison and put to work has not been challenged by
the State party. This comforted the author in his belief that his death
sentence had indeed been commuted. In the light of the State party's failure
to provide any explanation or comments clarifying this matter, due weight
must be given to the author's allegations in this respect. 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, paragraph 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, paragraph 5
taken together with article 2.
7.3 The Committee further considers that to keep the author in doubt as to
the result of his appeal, in particular by making him believe that his
sentence had been commuted, only to inform him later that it was not, and by
returning him to death row after two years in the long-term section, without
an explanation on the part of the State, had such a negative psychological
impact and left him in such continuing uncertainty, anguish and mental
distress as to amount to cruel and inhuman treatment. The Committee finds
that the State party violated the author's rights protected by article 7 of
the Covenant in this context.
7.4 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, paragraph 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. [FN4] It refers to its jurisprudence in another case
concerning the State party [FN5], where it found that the mandatory
imposition of the death penalty for aggravated robbery with use of firearms
violated article 6, paragraph 2 of the Covenant. The Committee notes that
the mandatory imposition of the death penalty under the laws of the State
party is based solely upon the category of crime for which the offender is
found guilty, without giving the judge any margin to evaluate the
circumstances of the particular offence. The death penalty is mandatory for
all cases of aggravated robbery with the use of firearms. The Committee
considers that this mechanism of mandatory capital punishment would deprive
the author of the benefit of the most fundamental of rights, the right to
life, without considering whether this exceptional form of punishment could
be appropriate in the circumstances of his case. [FN6] In the present case,
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.
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[FN4] See General comment No. 6, paragraph 7
[FN5] See Communication 390/1990, Lubuto v. Zambia, Views adopted on 31
October 1995, paragraph 7.2
[FN6] See Communication 806/1998, Eversley Thompson v. St. Vincent & the
Grenadines, Views adopted on 18 October 2000, paragraph 8.2
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7.5 The Committee notes the author's allegations that he was transferred
from death row to the long-term section of the prison for two years. After
he had been transferred back to death row, the president issued an amnesty
or commutation applicable to prisoners who had been on death row for more
than ten years. The sentence imposed on the author, who had been in
detention for 11 years, two of which he had served in the long-term section,
was not commuted. In the absence of any clarifications of the State party in
this regard, due weight must be given to the author's allegations. 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, paragraph 4,
together with article 2 of the Covenant.
7.6 In the light of the finding that the death penalty imposed on the author
is in violation of article 6 in respect of his right to life, the Committee
considers that it is not necessary to address the issue of the method of
execution in use in the State party in relation to article 7 of the
Covenant.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it disclose a
violation of articles 14, paragraph 5 together with article 2; 7; 6,
paragraph 2 and 6, paragraph 4 together with article 2 of the International
Covenant on Civil and Political Rights.
9. In accordance with article 2, paragraph 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.
10. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognised the competence of the Committee to determine
whether there has been a violation of the Covenant or not, and that,
pursuant to article 2 of the Covenant, the State party has undertaken to
ensure to all individuals within its territory or subject to its
jurisdiction the rights recognised in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to the Committee's
views.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
The Covenant and the Optional Protocol of the Covenant entered into force
for the State party on 10 July 1984. |
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