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Wednesday, June 23, 2021

Opinion: Does Romeo Kangombe Qualify For August 2021 elections

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Following the sentencing of Sesheke Member of Parliament, Romeo Kang’ombe, to 12 months imprisonment with hard labour on charges of assault and abduction of two police officers, a sentence which the Subordinate Court suspended for 2 years, the question has arisen in the legal fraternity as to whether Mr. Kangombe can join the parliamentary race in the 2021 General Election. The simple and straightforward answer is NO, he is not eligible. Here is why.

What is a suspended sentence?
A suspended prison sentence is the term given to a custodial or prison sentence imposed by the court, and then suspended, that is, the execution of the sentence is delayed at the discretion of the court for a period of time determined by the court.

By virtue of Section 16 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia, criminal courts in Zambia enjoy the inherent and discretionary power to suspend sentences prior to their execution. A suspended custodial sentence may be accompanied by a fine. If it becomes necessary for the court to impose a custodial sentence, it will fix the term of imprisonment according to the gravity of the offence, and then decide whether the case is one in which the prison sentence can properly be suspended.

Where the execution of a custodial or prison sentence has been suspended and the offender has, during the period of the suspension, observed all the conditions specified in the order, the sentence shall not be enforced. However, if the defendant breaches the terms of the suspended sentence, or commits another offence, they are likely to be sent to prison to serve the original prison term imposed. The fact is that a fine, a custodial sentence, suspension of sentence and any disqualification flowing therefrom, must all be considered as part of the total punishment

Constitutional Provision
The relevant constitutional provision is Article 70(2) (f) of the Constitution of Zambia which reads:

“A person is disqualified from being elected as a Member of Parliament if that person is serving a sentence of imprisonment for an offence under a written law.”

A sentence can be a sentence of imprisonment, one which can be served in or outside prison at the discretion of the court or a sentence where fine is paid or both or a sentence of death. The above provision is concerned with the serving of a sentence of imprisonment, which can be served in or outside prison.

From this point, it is important to define the key words in this provision. According to Oxford Dictionary, the term serving means “to spend a period of time doing something.” The Black’s Law Dictionary defines a sentence as “the judgment that a court formally pronounces after finding a criminal defendant guilty or the punishment imposed on a criminal wrongdoer” and imprisonment as “the act of confining a person, especially in a prison.”

The paraphrased version of Article 70(2) (f) of the Constitution of Zambia, therefore, means that a person who is serving a prison sentence, even if such sentence is suspended by the court for any period of time, is disqualified from being elected as a Member of Parliament. This is because that person is spending a period of time under sentence of a prison term following a judgment formally pronounced by a court after finding that person guilty as a criminal defendant and imposing such prison sentence as punishment imposed on a criminal wrongdoer, which includes confinement of that person, especially in a prison for an offence under a written law.

In effect, Mr. Kang’ombe is serving the 12-month prison sentence, except that the court has decided not to confine him to prison or a correctional facility, on condition that, over the next 2 years, he does not commit another offence or breach any of the conditions imposed by the sentencing court.

Historical Perspective of Article 70(2)(f)
Similar provisions of Article 70(2)(f) can be traced to Article 65(1)(c) of the 1991 Constitution of Zambia as well as in Article 65(1)(c) of the Constitution of Zambia (Amendment) Act No. 18 of 1996. The following articles read as follows:

“Article 65(1)(c) Constitution of Zambia, 1991
“No person shall be qualified to be elected as a member of the National Assembly who is under sentence of death imposed on him by a court in Zambia or a sentence of imprisonment, by whatever name called, imposed on him by such a court or substituted by a competent authority for some other sentence imposed on him by such court.”

Article 65(1)(c), Constitution of Zambia (Amendment) Act No. 18 of 1996

“A person shall not be qualified to be elected as a member of the National Assembly if that person is under a sentence of death imposed on him by a court in Zambia or a sentence of imprisonment, by whatever name called, imposed on him by such a court or substituted by a competent authority for some other sentence imposed on him by a court.”

However, in both the 1991 and 1996 Constitution, the law expressly excluded an instance where one is serving a suspended sentence, from being disqualified for election as a Member of Parliament. The law respectively enacted in clauses 6 and 8 of Article 65, the following independent clause:

“In this Article, the reference to a sentence of imprisonment shall be construed as not including a sentence of imprisonment the execution of which is suspended or a sentence of imprisonment in default of payment of a fine.”

During the amendment process to the Constitution of Zambia after 2011, the framers of the law attempted to retain this same provision as above that excluded one being barred from running for parliamentary office if one was under a sentence of imprisonment the execution of which has been suspended, or more simply put, when one was under a suspended prison sentence. The 2012 Draft Constitution had thus included the said provision in the proposed Article 137(4).

However, the provision was dropped from the Final Draft Constitution produced in 2013. The Constitution of Zambia as amended in 2016 no longer has a provision that excludes one from being disqualified if they are serving a suspended prison sentence.

The implication of the suspended sentence imposed on Mr. Kangombe
Let me remind the reader, that the Sesheke lawmaker was slapped with a sentence of 12 months imprisonment with hard labour on charges of assault and abduction of two police officers. This sentence has been suspended for 2 years. Can we say, therefore, that because the court suspended the prison sentence for 2 years, Mr. Kangombe is not serving that sentence? The answer is No!

Mr. Kang’ombe is very much under that sentence, and is serving it, except that the custodial portion has been delayed at the discretion of the court. If he breaches the conditions for the suspended sentence imposed by the court at any time over the next 2 years, then the suspension of the custodial portion, will be revoked by the court and Mr. Kang’ombe will “go in”, he would be arrested and taken into custody to serve the 12 months custodial sentence.

It may be argued that a suspended sentence means one is not “serving” a term of imprisonment but would only do so if the conditions for the suspension of the sentence are breached. The definition of “serving a sentence”, based on both the Oxford and Black’s Law Dictionary, is simply that serving a sentence means that one is spending a period of time under a judgment that a court formally pronounced after finding a criminal defendant guilty.

The sentence which was imposed on Mr. Kangombe by the court, is that of imprisonment, that is, 12 months’ imprisonment with hard labour for charges of assault and abduction, suspended to 2 years.

A suspended sentence means that one still has unfinished business with the convicting court for the duration of the sentence. Under a suspended sentence, one is serving a sentence, except that, that person is not incarcerated or placed in custody. Though not incarcerated, Mr. Kangombe has a sentence of imprisonment hovering over his head for the duration of the suspension of that sentence.

To be clear, Mr. Kangombe would have qualified to stand in an election if the 1991 and 1996 provisions which excluded a suspended sentence, were not taken out from the Constitution.

Conclusion
Here, it is shown that serving a sentence of imprisonment does not mean that one must be in prison. A sentence can be a sentence of imprisonment which can be served in or outside prison at the discretion of the court. One can serve a sentence of imprisonment outside prison, in a scenario in which execution of the sentence has been suspended or where one is doing community service or is probation as opposed to being placed in custody in a prison.

Clearly, it was not the intention of the framers of the law to say one must be in prison to be disqualified from running for parliamentary office, otherwise they would have expressly provided that one is not disqualified from running for office if one is under a suspended sentence of imprisonment. The intention was to exclude those who serve a sentence, either in prison or outside prison, provided such a sentence was one of imprisonment.

As can further be seen from the analysis, the provisions which excluded one from being barred when one is serving a suspended sentence, were excluded from the Constitution of Zambia as amended in 2016. If Mr. Kangombe wants to proceed with filing nominations, he is free to do so but he should certainly expect a legal challenge to his nomination and it would provide a good opportunity to test the law once again.

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