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Tuesday, 4 November 2014

Pardoning Criminals

The last act of President Michael Sata was to pardon 975 inmates as Zambia marked the National Independence Golden Jubilee. The president has powers under Article 59 of the Constitution of Zambia to exercise the prerogative of mercy, which includes pardoning criminals.

This is the second largest number of inmates released on presidential amnesty in the history of Zambia after more than 2,318 were released in 2012, also by Michael Sata. The total number of criminals allowed back on Zambian streets since the PF came to power now stands at around 5,700.

The driving reason for the releases are that "the conditions in the prisons have always been a concern of the Patriotic Front (PF) Government, and this move is in line with the Patriotic Front manifesto of turning the prisons into correctional facilities”', according to the Home Affairs Minister Simbyakula. In short we need these large amnesties because of appalling prison conditions.

No one can certainly argue with the  state of our prisons. Prison overcrowding in the country is appalling - currently estimated above 200%. Very little prison capacity has been delivered since the colonial era. The level of service is inhumane with rape and HIV very rampant. But whatever one thinks of the prison conditions, amnesties are not a lasting solution to these problems.

We know from international evidence amnesties in other countries have not sustainably reduced prison populations. Indeed in most cases it has led to increases in crime. At the time when the country has insufficient police officers, though government is hiring more, releasing people onto our streets who have not been adequately punished for their crimes is not the solution to improving law and order.

There's of course also the important question of justice. What is our conception of justice as a people? Some may rightly ask, if someone commits acts of violence against someone and is sentenced for 10 years, and then the victim hears the man only served 4 years because of the presidential amnesty, would the victim be happy? Absolutely no! The point is that the presidential pardon though legal has huge ramifications and these need further debate.

Amnesties will not solve our prison problem which are largely due to an imbalance between supply of prison infrastructure and demand of it. The demand is not only due to crime levels, but also because we produce many laws that we don't need. We also have fewer court and judicial capacity which has led to high remand levels which currently stand at 35%. We need to get remand down by improving court processes!

1 in 3 prisoners are presumed innocent and being held on remand without trial. If we can reduce on that through more efficient court processes we can reduce on remand. There are people on remand who should not be incarcerated and with proper policies ought not to be on remand if the system can be made more efficient. The priority therefore should not be on amnesties but on bringing remand down by improving court processes.

Also we need to row back on custodial sentences. There many custodial sentences which are churned out for minor offences like stealing a cob of maize, petty thieving and bouncing cheques has not helped. Its clearly much more effective to impose monetary fines. And where the offender cannot pay, community based sentences should be explored.

These ideas of course have "retributive justice" problems. The punishment clearly has to fit the crime and therefore government needs a better criteria for how certain offences are defined as crimes against the state, and also as custodial rather than monetary penalties or civil offences. This is not the domain for lawyers alone, economists and other professionals have a strong role to play here.

The Human Rights Commission has also helpfully noted the need for a serious look at the "rehabilitation agenda". It has previously observed that "it is greatly concerned that today, Zambian prisons still echo the times when such facilities were viewed as places of punishment instead of being centres for rehabilitation of offenders who would later be integrated back into society after serving their respective sentences". What they have in mind are initiatives like one donor funded projects which is helping prisoners get back to school.

Amnesties as currently practised by this administration have other problems. The criteria Sata has been using is not clear! One day it is wildlife offences. Next it is corruption offences (as was the case in June 2012). We surely need more lasting solutions to the prison population than random amnesties whose criteria is unknown! How do we know those released are not PF supporters imprisoned by under the old regime? Also rather than undertake blanket pardons, have alternative options been explored?

Why can't those released for example work on community sentences to repair our much needed infrastructure? There are many alternatives that ensure that justice is seen to be done - though it is ironic that where justice is needed, for remandees held for 5-6 years without trial, very little is being done to bring it down. We are letting criminals go scot free and keeping people who may be  innocent in jail for long periods without trial. No one wants amnesties for remandees, what is needed is to make the court system for remandees more efficient. That should be the priority not prisoner amnesties.

In any case the President should not have such powers. In other more developed nations amnesties are undertaken by the Legislature or subject to Legislative clearance. There's a principle of justice that cannot simply be vested in one man. Presidential amnesties are also bound to be abused and become very corrupt as suggested above. As a nation we should be limiting presidential discretion not increasing it. If we are serious about reducing corruption in the Executive Branch.

Chola Mukanga
Economist | Researcher
Copyright © Zambian Economist 2014


  1. According to the US ZAMBIA 2013 HUMAN RIGHTS REPORT
    [, first page], prison conditions are "life-threatening". If that is so, isn't there a moral obligation on government to set all prisoners free, till a prison regime has been established that is not life-threatening?
    The prison system ["abuses by security forces, including reports of unlawful killings, torture, and beatings" - same source; furthermore Zambia's minimum penalties, like 15 years for indecent assault, are immensely unfair, and low-income suspects who cannot benefit from a lawyer suffer very disproportionately] seems to be more criminal than crime itself.

    On itself, late President Sata's decision to release significant numbers of prisoners is to be respected and commended. The criteria he relied upon might be debated and improved.

  2. The phrase "releasing people onto our streets who have not been adequately punished for their crimes..." contains several crucial assumptions.
    First, that the length of Zambia's prison terms is normal and fair. Have comprehensive international comparisons been done? Zambia's death penalty is no doubt an international anomaly (in particular for aggravated robbery), but also its minimum punishments, by which lawmakers leave the judge no room to take attenuating circumstances into account.
    Second, that the conditions of imprisonment are normal. They are not, they are life-threatening (HIV, tuberculosis, physical abuse by inmates and officers, rape) and more (lack of hygiene, lack of food, lack of access to health care ...). Which is a good argument for lawmakers and judges (to the extent they have discretion) to reduce the length of all prison terms by say 50%. Has there been any criminological research in Zambia on the extent to which penalties have a deterring effect? With many illiterates and under-educated persons, it is likely that most offenders have no clue about the prison terms they risk by their misbehaviour.
    Third, that the convicts are guilty, assuming there are no miscarriages of justice. In developed countries that is not true. Has there been research on this issue in Zambia?
    Fourth, that all convicts will be recidivists. Also doubtful.


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