Mwamba v. Zambia

(2010) AHRLR 32 (HRC 2010)
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Mr. Mwamba was a Zambian national on death row awaiting review of his appeal by the Supreme Court of Zambia. Mr. Mwamba was previously a high ranking police officer before he was arrested and detained on suspicion of murder, attempted murder, and aggravated robbery. During his initial detention in 1999, Mr. Mwamba was allegedly subjected to torture and ill-treatment, including assault. He was then transferred to be secretly detained elsewhere and was deprived of food and water for three days. Mr. Mwamba was again transferred and was placed in a cell covered with urine and excrement for five months.

In 2001, Mr. Mwamba was convicted by the High Court of Zambia of murder and attempted murder and was sentenced to death by hanging, the mandatory sentence. He was acquitted on the aggravated robbery charge due to the negligence of the police officers involved.

Mr. Mwamba claimed that he had been a victim of violations of the International Covenant on Civil and Political Rights (“Covenant”). While his complaint did not invoke specific articles, it appeared that he was concerned with issues under article 6; article 7; article 10, paragraph 1; and article 14 of the Covenant.

The Committee found violations of article 6, paragraph 1; article 10, paragraph 1; article 14, paragraph 2; article 14, paragraphs 3(c); article 15, paragraph 5; article 6; and article 7 of the Convention.

The Committee held that Zambia’s lack of adequate response to Mr. Mwamba’s allegations constituted a violation of its duty to investigate in good faith all allegations of violations of the Covenant made against it and to furnish to the Committee the information available to it.

The Committee found that the imposition of the death penalty without any possibility of taking into account the defendant’s personal circumstances or the circumstances of the particular offence constituted a violation of article 6. The Committee did not find it necessary to examine issues regarding the method of execution.

The Committee also found that the conditions of detention violated Mr. Mwamba’s right to be treated with humanity and with respect for the inherent dignity of the human person, contrary to article 10, paragraph 1 of the Covenant.

The Committee also found that the state party had violated article 14, paragraph 2 because public statements were made that undermined the presumption of innocence afforded to Mr. Mwamba and because Zambia had failed to dispute the statements.

Under article 14, paragraphs 3(c) and 5 read together, there is a right to review without delay. The Committee held that Zambia had violated this right because Mr. Mwamba’s appeal had not been heard over eight years since his conviction and noted that the right is particularly important in death penalty cases.

The Committee also held that the death sentence was imposed in violation of the right to a fair trial, guaranteed by article 14 of the Covenant, and also in violation of article 6 of the Covenant, which guarantees the right to life. Moreover, the Committee found that the imposition of any death sentence that cannot be justified under article 6 automatically entails a violation of article 7, which prevents cruel, inhuman, or degrading treatment.

“The Committee recalls its jurisprudence that the automatic and mandatory imposition of the death penalty constitutes an arbitrary deprivation of life, in violation of article 6, paragraph 1, of the Covenant, in circumstances where the death penalty is imposed without any possibility of taking into account the defendant's personal circumstances or the circumstances of the particular offence. The Committee finds that the imposition of the death penalty itself, in the circumstances, violated the author's right under article 6, paragraph 1, of the Covenant. In light of the finding that the death penalty imposed on the author is in violation of article 6, the Committee considers that it is not necessary to examine issues regarding the method of execution.” Para. 6.3.

“The Committee considers that the author’s claim that his detention on death row, where he has been waiting for over eight years for the hearing of his appeal at the time of consideration of his communication, has affected his physical and mental health raises, issues under article 7. In this regard, it notes the author’s description of the conditions of detention in paragraph 2(5) above. It reiterates its jurisprudence that to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. In circumstances where there is a real possibility that the sentence will be enforced, that fear must give rise to considerable anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence. Indeed, as the Committee has previously observed,14 the imposition of any death sentence that cannot be justified under article 6 would automatically entail a violation of article 7.15 The Committee therefore concludes that the imposition of the death sentence on the author after the conclusion of proceedings which did not meet the requirements of article 14 of the Covenant amounts to inhuman treatment, in violation of article 7.” Para. 6.8.

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