The Sowetan, May 10, 2000
Colonial Era Punishment Scrapped In Zambia
By Newton Sibanda in Lusaka and Hobbs Gama in Blantyre
Johannesburg - A Landmark high court ruling in Zambia has scrapped an "inhuman and degrading" legacy of the colonial era - corporal punishment.
Human rights groups have welcomed the move by Judge Elliot Chulu, which effectively outlaws caning in the Zambian penal system and in schools. The supreme court is expected to confirm the ruling at a later date.
Judge Chulu heard an appeal from a 19-year-old man who had been sentenced to 10 strokes of the cane for causing malicious damage.
Lawyers for the man argued that the punishment was a brutal relic of British rule, which had only been used against black people and contravened a constitutional ban on inhuman and degrading punishment. The judge agreed.
"This is a good development which shows we are moving with the times," said George Kunda, chairman of the Law Association of Zambia.
Judge Alfonse Kamanzi, acting director of the Zambia Law Development Commission, said his organisation and several human rights groups had been calling for the repeal of legislation empowering courts and schools to use the cane.
"There was resistance, especially from the ministry of education," said Judge Kamanzi. "But now the court has ruled and they will have to abide." Corporal punishment was introduced by the British in 1930. A maximum of 12 strokes to the buttocks was permitted, and the penalty was imposed as an alternative to custodial sentences - particularly for younger offenders - for crimes such as burglary and theft.
A recent survey of magistrates found most accepted that the punishment was inhuman and degrading but, in the absence of a higher ruling against it, felt obliged to use it occasionally as an alternative to prison.
Welcoming Zambia's move, Rinos Simbulo, of the Southern African Human Rights Network, pointed out that corporal punishment did not reform criminals but could make them more hardened.
Alfred Zulu of the Zambia Independent Monitoring Team wondered why it has taken the country so long to abolish the measure when the former colonial masters had long since outlawed it in Britain.
"There are many other laws that are archaic and need to be done away with," he said.
Pressure is growing for a review of sections of the Public Order Act, which can be used to restrict public marches and meetings, and the Official Secrets Act, which can prevent public access to state information. These were brought in by the British to suppress Zambian nationalism.
Human rights and church groups are also lobbying for the abolition of hanging, which is still imposed infrequently for murder.
Meanwhile, president Frederick Chiluba has promised amendments to the penal code to allow for more non-custodial sentences - such as community service - for minor offences. This would help speed up the judicial process and ease the burden on chronically overcrowded jails.
Neighbouring Malawi recently introduced a system of community service on a trial basis.
"I could not believe it when the magistrate said I could offer my labour rather than be sent to jail," said Zeneus Kalikokha, 24, who was found fighting in a public place.
Kalikokha, of Makhetha township in Blantyre, could have been imprisoned for a month for the offence. Instead, community service enables him to spend the same period working eight hours a day without pay, labouring at a building site for a new teachers' housing development.
He is one of the first offenders to take part in the experiment which, if successful, will be enshrined in law. Those found guilty of minor crimes, such as illegal gambling, petty theft or possession of small quantities of marijuana, can be placed under the supervision of a public institution to work out their sentences.
The system is partly designed to reduce overcrowding in Malawi's prisons and to cut costs. A national committee overseeing the trial studied an earlier pilot project in another southern African country, Zimbabwe. There the expense of keeping an offender in jail far outweighed the cost of community service.
The Zimbabwean project also helped to rehabilitate offenders through employment. Some performed their duties so well that they were offered jobs by the institutions involved.
"There are real benefits from community service," said Justice Michael Mtegha, a high court judge chairing the Malawi national committee.
But he conceded that there were some initial problems, including an insufficient response from placement institutions, difficulties in providing adequate supervision and a lack of civic education.
Courts are required to ensure that offenders given community service are not dangerous to society.
This message has not fully got across in a country where armed robbery has been on the increase.
Some members of parliament have expressed opposition to community service, and public support is patchy. - Gemini News (Newton Sibanda is a senior reporter with the Zambia Daily Mail newspaper; Hobbs Gama is a Malawian freelance journalist.)
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