Mr. Webby Chisanga v. Zambia

October – 3 November 2005

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.

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.

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.

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.

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. 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 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. 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. 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. 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. 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.

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. It refers to its jurisprudence in another case concerning the State party, 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. 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.

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.

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. 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. 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. 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. [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.]