By Dickson Jere
A lady Zambia Air Force (ZAF) officer was arrested and charged with an offence of assault on a child. She was later found guilty by the Magistrate Court and sentenced to six years simple imprisonment. Consequently, she was dismissed from ZAF where she was serving as Lieutenant.
However, whilst in prison, the President released her on what appeared to have been a Presidential pardon as part of the Independence Day celebrations. She then wrote to ZAF demanding to be reinstated, arguing that a presidential pardon erases the conviction.
ZAF refused to bring her back on the grounds that her release was a “conditional” pardon which did not erase her conviction.
Being dissatisfied with ZAF response, she petitioned the Constitutional Court averring that presidential “pardons” erases the conviction and therefore she should be reiterated.
The Court heard both sides and intimated that the Presidential pardon can either be “conditional” or “unconditional” and the two have different legal effects. But there is also a third one which is a “remission of sentence”.
The Judges observed that the ZAF officer was in fact granted a remission of sentence and not pardon when one reads the actual content of the Presidential Order of Release.
“Nowhere is it suggested that the concerned persons have been pardoned,” the Judges observed after reading the Order of Release.
“Had the framers of the Constitution intended that a pardon and a remission should overlap, they could have expressly stated so,” the Judges said, adding that remission is separate from pardon.
The ConCourt said Article 97(1) of the Constitution empowers the President to exercise various acts of Prerogative of Mercy, which includes “conditional” and “unconditional” pardons as well as “remissions”.
The officer was therefore given a remission which is different from pardon.
“The remission entails that her conviction remains intact and the legal disqualification which triggered the termination of her employment is not extinguished,” the Judges explained.
They guided that when one is not sure as to which relief the President has given to the convict, they should read the content of the Release Order, which gives details of the decision.
Case citation – Mildred Luwaile v Attorney General (2023/CCZ/0022).
This case is important as it explains the three different types of Prerogative of Mercy given by the President. Only the unconditional one erases the criminal record of the person and he is treated as if he never committed an offence.
