Authored By: Prudence Phiri
University of Zambia
Case Details
Court Name and Bench: Constitutional Court of Zambia
Coram: Munalula, PC; Sitali; Mulenga; Mwondenga and Mulife JJC
Date of Judgment: 11 October 2024
Parties:
– Petitioner: Mildred Luwaile, a former commissioned officer in the Zambia Air Force (ZAF).
– Respondent: The Attorney General, representing the Government of the Republic of Zambia.
Facts of the Case
The petitioner, Mildred Luwaile, was enlisted as a direct entrant officer in the Zambia Air Force (ZAF) on 22 March 2012 and commissioned as a Second Lieutenant after completing military training in May 2014. In 2016, she was promoted to the rank of Lieutenant. However, on 22 January 2021, she was convicted by a subordinate court sitting at Lusaka for the offence of assaulting a child and sentenced to six years of simple imprisonment. Following her conviction, ZAF terminated her employment through a letter dated 21 October 2021 authored by a Lieutenant Colonel. The letter communicated her dismissal based on the conviction.
Subsequently, on 24 October 2021, the President of the Republic of Zambia exercised his prerogative of mercy under Article 97(1)(a) of the Constitution of Zambia (the Constitution), and a Gazette was issued notice granting an unconditional pardon to the petitioner. Believing that she had been unconditionally pardoned, Luwaile wrote to the ZAF Commander on two occasions requesting reinstatement to her former position. Her applications were rejected through a letter dated 5 May 2023 from Brigadier General C. Chipasha, who explained that the pardon was conditional and amounted only to a remission of the remainder of her sentence.
Feeling aggrieved, the petitioner filed a constitutional petition on 28 November 2023 seeking declarations that the presidential pardon had erased her conviction and restored her to her previous legal status, and that the ZAF’s refusal to reinstate her was unconstitutional. She further sought an order of reinstatement and costs. In contrast, the respondent contented that the presidential act in question was a conditional remission, not an unconditional pardon, and that the termination of her service was therefore lawful and not in contravention of the Constitution.
Legal Issues
Based on the petition and the responses, questions raised for determination before the Court were as follows:
- Whether or not Regulation 10A (1) of the Defence Force Regulation was discriminatory against the petitioner who was pardoned.
- Whether or not the Constitutional Court had jurisdiction to entertain the petition under Article 128 of the Constitution.
- The nature and effect of the prerogative of mercy granted by the President under Article 97(1) of the Constitution.
- Whether or not the release of the petitioner from prison amounted to an unconditional pardon or a remission.
Ratio Decidendi (Rule)
Article 128 of the Constitution.
The Constitution Court has jurisdiction over all matters relating to the Constitution apart from matters emanating from the bill of rights. These encompass matters concerning the interpretation, violation, or contravention of the Constitution.
Article 97(1) of the Constitution.
On the advice of the Advisory Committee, the President may:
- Conditionally or unconditionally pardon a convict.
- Substitute a less severe punishment for one imposed by a court.
- Remit whole or part of the sentence.
Davison Namukombo v The Attorney General.
The jurisdiction of the Constitutional Court does not extend to rights enforcement; its mandate is confined to constitutional interpretation, except for matters under the Bill of Rights, which lie with the High Court.
Gough v Davies.
The effect of a pardon depends entirely on the wording and interpretation of the governing statute. The case highlighted that determining the scope and consequences of a pardon requires examining the instrument through which it is granted, as the statute itself defines its nature and extent.
Masemola v Special Pensions Appeal Board.
The Constitutional Court of South Africa established the class and effect of both the conditional and unconditional pardon, it did so by interpretating both the enabling law and the exact wording of the pardon.
Mutembo Nchito v The Attorney General.
The Constitutional Court of Zambia held that a wrong or erroneous citation of a legal provision does not invalidate an otherwise lawful exercise of power, provided that the authority to act exists and can be traced to a legitimate source in law. The Court emphasised that what matters is the substantive legality of the act, not the accuracy of the provision cited.
Rajendra Mandal v The State of Bihar and Others.
The Supreme Court of India held that a remission reduces the punishment imposed but does not erase the conviction. It does not overturn a judicial decision, rather, it allows the convict to benefit from the State’s act of clemency.
Umkhonto WeSizwe Political Party and Jacob Zuma v Electoral Commission of South Africa and Others.
The Electoral Court of South Africa held that a remission of sentence does not erase a criminal conviction or its legal consequences. The Court clarified that while remission shortens or reduces the period of imprisonment, it does not nullify the underlying conviction or remove the statutory disqualifications that arise from it.
Holding
The court declined to entertain legal issue one, holding that they are precluded by Article 128 of the Constitution from entertaining questions arising from part three of the Constitution. It further held that owing to the constitutionality of the issue raised by the petition, it had jurisdiction.
Upon analysing the Order of Release, the Constitutional Court found that the document was headed Remission of Sentences and repeatedly used the word remission. Nowhere did it mention pardon. Although the Order cited Article 97(1)(a) of the Constitution, the Court concluded that this was an inadvertent error and that the President had in fact exercised his powers under Article 97(1)(c), which concerns the remission of a sentence. The Court thus held that the petitioner had received a remission and not a pardon.
Accordingly, the Court found that her conviction remained intact, and the disqualification that led to her dismissal from ZAF service persisted. The petition was dismissed for lack of merit, and each party was ordered to bear its own costs.
Rationale of the Court
Owing to the emanation from the bill of rights of the claim of the petitioner, that Regulation 10A was discriminatory, the Court dismissed the issue stating its lack of jurisdiction over such matters. In support of its lack of jurisdiction, the Court cited the case of Davison Namukombo v The Attorney General, which affirms that the enforcement of rights is strictly the duty of the High Court (under Article 28 of the Constitution). Mandating the Constitutional Court with constitutional interpretation. In addition, the court reaffirmed its jurisdiction over the petition, stating that the petition required the determination of the nature of the prerogative of mercy in dispute. Which falls within its authority under Article 128 of the Constitution. Therefore, requiring the Court to interpret Article 97(1) which is a constitutional provision.
In reaching its decision, the Court undertook a detailed interpretation of Article 97(1) of the Constitution, which empowers the President to grant various forms of mercy: (a) conditional or unconditional pardons, (b) substitution of a lesser punishment, and (c) remission of fines or imprisonment. The Court reasoned that the Constitution clearly distinguishes these forms of mercy and that each has different legal consequences.
Drawing on comparative jurisprudence from England and South Africa, particularly Gough v Davies and Masemola v Special Pensions Appeal Board, the Court held that where the wording of the instrument is ambiguous, the true nature of the mercy should be ascertained by examining both the language of the document and the enabling constitutional provision. Applying this test, the Court found that the President’s Order of Release was unambiguously a remission because it expressly referred to the release of convicts to commemorate Independence Day and conditioned their release upon not committing similar offences during the remainder of their sentences.
The Court rejected the argument of the petitioner that a remission operates retrospectively to erase the conviction, noting that remission only mitigates punishment but does not expunge the conviction. In support, it cited the Indian case of Rajendra Mandal v State of Bihar, which affirmed that remission merely reduces the sentence and does not undo a conviction. The Court also referenced the South African case of Umkhonto WeSizwe Political Party and Jacob Zuma v Electoral Commission of South Africa and Others, reinforcing that remission does not remove the legal consequences of conviction.
Regarding the argument that the citation of the wrong constitutional provision invalidated the order, the Court held that an erroneous reference does not vitiate an otherwise valid exercise of power, provided that the authority to act exists under the law. The Court relied on its own precedent in Mutembo Nchito v Attorney General, where it held that a wrong citation does not invalidate the substance of a lawful act. Thus, even though the President cited Article 97(1)(a), the act of remission remained valid under Article 97(1)(c).
In summary, the Court concluded that the prerogative exercised by the President was a remission, not a pardon. Consequently, the petitioner’s conviction remained intact, and her employment could not be reinstated. Her petition was dismissed as misconceived but not frivolous; each party was ordered to bear its own costs.
Significance
The case provides a critical clarification on the constitutional interpretation of the presidential prerogative of mercy in Zambia. It underscores the legal distinction between a pardon and a remission and their respective implications for convicted persons, particularly those seeking reinstatement to public service. The decision of the Constitutional Court affirms that a remission does not erase a conviction or restore legal rights lost as a result of conviction, but simply reduces the punishment imposed. The judgment reinforces the principle that the wording of the presidential instrument is decisive in determining the nature and effect of the act of mercy. This approach ensures that constitutional powers are exercised transparently and within their proper limits.
Furthermore, the Court’s insistence on constitutional coherence and deference to jurisdictional boundaries demonstrates its commitment to upholding constitutionalism, separation of powers, and the integrity of the judicial process in Zambia.
Bibliography
Statutes
The Constitution of Zambia as Amended by the Constitution of Zambia (Amendment) Act No.2 of 2016.
Cases
Davison Namukombo v The Attorney General (2016/CC/003).
Gough v Davies [1856] S.C. 25 L.J. Ch.677; 4 W.R 618.
Masemola v Special Pensions Appeal Board (2019) ZACC 39.
Mutembo Nchito v The Attorney General [2020] ZMCC 7.
Rajendra Mandal v The State of Bihar and Others Writ Petition 9 Criminal No. 252 of 2023.
Umkhonto WeSizwe Political Party and Jacob Zuma v Electoral Commission of South Africa and Others [2024] ZAEC 5.
