Death Penalty, 3rd Edition

The Supreme Court has been asked to declare as unconstitutional a section in the Zambian Constitution that provides that anyone convicted for aggravated robbery while armed with a firearm should be given a mandatory death sentence. This is in a matter where Alex Njamba, who was sentenced to a mandatory death sentence by the Lusaka High Court on November 21, 2008, has appealed against his sentence arguing that the sentence was arbitrary and unconstitutional. According to the defence team the appeal was not a challenge to the death penalty per se, but rather it is "the mandatory requirement of death penalty" which allegedly "deprives the Judiciary of an essential judicial function in clear violation of the constitutional principle of separation of power".

Presumably this has repercussions not only for "death" penalty but on all mandatory sentences. At the heart of the debate is whether the Legislature and Executive (by specific statutory instruments) have the power to set mandatory sentences for crimes. I think there are actually two ways to look at this issue. The first is whether government is acting unconstitutional or not. It clearly isn't. The Legislature is tasked with setting the laws of our country - it is the only body that is directly reflects people's preferences. If it decides that judges should be harsh on certain crimes, that is not unconstitutional. The Judiciary of course also makes "laws" through precedence but that is within the limit defined by the Legislature.  A related question is whether it "makes sense" to have mandatory sentences.  I think that is a harder question because the whole purpose of mandatory sentences is to remove discretion of judges and guarantee minimum applications of retributive justice. This may especially be the case where judges are too liberal relative to the population.

That said, I should note that it is folly to have a death penalty for "anyone convicted for aggravated robbery while armed with a firearm". The death sentence may be better justified where life is taken - "a life for a life". Putting someone to death for armed robbery is shocking to say the least. We have previously touched on the death penalty here and here.