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36 J. Afr. L. 103 (1992)
Developing the Criminal Law in Zambia: The Penal Code (Amendment) Act, 1990

handle is hein.journals/jaflaw36 and id is 109 raw text is: DEVELOPING THE CRIMINAL LAW IN ZAMBIA:
Until recently, the Penal Code in Zambia, which was first introduced in
1931, had remained essentially unchanged. The Penal Code Amendment
Act, 1990 (Act 3 of 1990) therefore represents a landmark in that it has
introduced several major changes to the Code. In particular, the Act
alters the law relating to murder, duress and self defence. A consideration
of these will form the basis of this note.
Regarding the crime of murder, the Act makes two significant
amendments. The first is the removal (with one exception) of the
mandatory death sentence for murder. Thus a court must now impose
upon a person convicted of murder any other sentence where there are
extenuating circumstances. These are defined as any facts associated
with the offence which would diminish morally the degree of the convicted
person's guilt. This is similar to the approach in both Zimbabwe and
(until recently) in South Africa,' and is certainly a major and extremely
welcome change of policy. Perhaps the one problem with the definition is
that a court is only able to take into consideration factors which are
associated with the offence. This is, arguably, too restrictive in that
other factors unrelated to the crime, such as the youth of the accused, his
or her behaviour after the commission of the crime, or the fact that he or
she has no criminal record, might be equally important in determining
sentence.' In this respect, it would have been preferable to require the
court to take into account all relevant factors, both mitigatory and
In determining whether there are extenuating circumstances, the court
shall consider the standard of behaviour of an ordinary person of a class
of the community to which the convicted person belongs. This test is
virtually identical to that used to determine whether an accused person
acted under provocation (see section 206(l) Penal Code). The use of the
ordinary person test is important because it enables a court to take into
account the differing backgrounds of the people of Zambia, including local
beliefs and conditions. Of course, how a court will determine community
standards, for example, in a high density urban area inhabitated by
people of different backgrounds, remains to be seen.
Two related issues require attention. Firstly, it is suggested that in
every case the Supreme Court should be empowered to exercise an
independent discretion as to whether there were extenuating circumstances.
In other words, based solely on its own view of the evidence it should be
able to overturn the findings of the High Court that there were no
extenuating circumstances. At present the Supreme Court of Zambia Act
(Cap. 52) does not cover the point. In similar circumstances in Zimbabwe,
the Appellate Division has held that it is powerless to interfere even
though on the facts of the case it would not itself have imposed the death
sentence.4 It would be extremely unfortunate if this were the case in
'See, for example, S. v. Letsolo, 1970 (3) S.A. 476 (RSA); S. v. McBride, 1988 (4) S.A. 10
(RSA); and S. v. Muchimika, S-93-86 (Supreme Court of Zambia, unreported).
2See, for example, the comments of FRIEDMAN, AJ.A., in S. v. Masina, 1990 (4) S.A. 709,
at 714.
'See, for example, the South African Criminal Law Amendment Act 107/90 which
abolished the concept of extenuating circumstances and replaced it with the broader test of
mitigating or aggravating factors.
iSee S. v. Timothy, A-178-71 (unreported).

Statute Notes

Vol. 36, No. I

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