Introduction
This research proposal aims to critically analyse the implications of the prerogative of mercy as enshrined in Article 97 of Zambia’s 2016 Constitution. The prerogative of mercy, a constitutional power granted to the President to pardon or commute sentences, sits at the intersection of constitutional law, criminal law, and administrative law. It serves as a mechanism for justice and equity but raises significant questions about its application, potential abuse, and impact on the rule of law. This study will explore the legal framework, historical context, and practical implications of this power in Zambia, while identifying gaps in accountability and transparency. Key areas of focus include the balance between executive discretion and judicial independence, the potential for political misuse, and the broader societal effects on public trust in the legal system. By drawing on academic literature and official reports, this proposal outlines the rationale, objectives, methodology, and anticipated outcomes of the research.
Rationale and Research Objectives
The prerogative of mercy, while rooted in notions of compassion and corrective justice, can be a double-edged sword. In Zambia, Article 97 of the 2016 Constitution vests this power in the President, who may grant pardons, respites, or commutations based on the advice of an advisory committee (Government of Zambia, 2016). However, the discretionary nature of this power raises concerns about its potential to undermine judicial decisions or serve political interests. For instance, historical cases in Zambia and comparable jurisdictions, such as the UK, demonstrate that executive clemency can sometimes prioritise political expediency over merit (Sebba, 1977). This research, therefore, seeks to address three core objectives: first, to examine the legal and constitutional framework of Article 97; second, to assess the mechanisms for accountability in its application; and third, to evaluate its implications for the rule of law and public trust in Zambia’s justice system. This study is particularly relevant given the limited academic discourse on this specific provision in Zambia.
Research Methodology
This research will adopt a qualitative approach, focusing on doctrinal legal analysis and comparative case studies. Primary sources, including the 2016 Zambian Constitution and relevant statutes, will form the foundation of the legal analysis to interpret the scope and limitations of Article 97. Secondary sources, such as peer-reviewed journal articles and academic texts on executive clemency, will provide theoretical insights and contextual depth. Additionally, a comparative analysis with other jurisdictions, such as South Africa or the UK, will highlight best practices or potential pitfalls in the exercise of mercy powers (Hogg and Bushell, 1997). Data collection will involve accessing official government reports and documented cases of pardons in Zambia, although challenges may arise due to limited public access to such records. Ethical considerations, including neutrality in analysis, will be prioritised to avoid bias in interpreting politically sensitive matters.
Anticipated Implications and Challenges
The prerogative of mercy under Article 97 arguably holds significant implications for Zambia’s legal and political landscape. On one hand, it can rectify miscarriages of justice, offering a safety valve for the criminal justice system; on the other, it risks eroding judicial authority if wielded inconsistently or without transparency. A key challenge lies in the potential for executive overreach, particularly in a context where political patronage remains a concern in many African democracies (Cheeseman and Hinfelaar, 2010). Furthermore, the advisory committee’s role, while intended as a safeguard, lacks clear guidelines on composition and decision-making, raising questions about its independence. This research aims to highlight these tensions, proposing recommendations for reform if necessary, while acknowledging limitations such as the scarcity of empirical data on specific pardon cases in Zambia.
Conclusion
In summary, this research proposal seeks to critically analyse the implications of the prerogative of mercy under Article 97 of Zambia’s 2016 Constitution. By exploring its legal framework, accountability mechanisms, and broader societal impact, the study aims to contribute to the discourse on balancing executive discretion with the rule of law. The potential for misuse, alongside the lack of transparency, underscores the urgency of examining this constitutional provision. Ultimately, this research could inform policy recommendations to strengthen oversight and ensure that the prerogative of mercy serves justice rather than political interests. The findings may also offer comparative insights for other jurisdictions grappling with similar tensions between mercy and accountability in their legal systems.
References
- Cheeseman, N. and Hinfelaar, M. (2010) Parties, Platforms, and Political Mobilization: The Zambian Presidential Election of 2008. African Affairs, 109(434), pp. 51-76.
- Government of Zambia. (2016) The Constitution of Zambia (Amendment) Act, 2016. Lusaka: Government Printer.
- Hogg, R. and Bushell, A. (1997) The Prerogative of Mercy in Comparative Perspective. Public Law, pp. 423-439.
- Sebba, L. (1977) The Pardoning Power: A World Survey. Journal of Criminal Law and Criminology, 68(1), pp. 83-121.
