THE DEATH PENALTY AND ZIMBABWE.

 Society have used punishment to discourage would-be offenders from committing unlawful conducts and to punish offender or culprits. Most people think that the death penalty is no longer part of our correctional system, this position is not true because of section 48 of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (hereinafter referred as the Constitution). The term death penalty is used interchangeably with capital punishment. On this article, l will look at reasons the death penalty is part of our correctional system and will further raise arguments on the abolishment of the death penalty.  

 

 48 Right to life. 

 (1) Every person has the right to life. 

(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and the law must permit the court a discretion whether or not to impose the penalty; the penalty may be carried out only in accordance with a final judgment of a competent court: the penalty must not be imposed on a person- 

(i) who was less than twenty-one years old when the offence was committed; or 

(ii) who is more than seventy years old', 

the penalty must not be imposed or 

(iii) carried out on a woman; and the person sentenced must have a right to seek pardon or commutation of the penalty from the President. 

(3) An Act of Parliament must protect the lives of unborn children and that Act must provide that pregnancy may be terminated only in accordance with that law. 

 

Capital punishment for murder, treason, arson and rape was widely employed in ancient Greece under the laws of Draco in 7th century. The death penalty can be traced back Babylonian Code of Hammurabi the ancient legal principle of Lex talionis “an eye for an eye, tooth for a tooth, a life for a life.’ Historically, executions were public events, attended by large crowds, and the mutilated bodies displayed until they rotted. From ancient times until well into the 19th century, many societies administered exceptionally cruel forms of capital punishment. 

In Zimbabwe, the death penalty can only be imposed on a person convicted of murder under aggravated circumstances. There is no indication in the constitution to what is meant by ‘aggravated circumstances’ so the meaning of the phrase depends on the peculiarity of the case therefore, any form of legislature that set out factors the court must consider aggravating is void ab initio. Thus, section in the Criminal Law (Codification and Reform) Act [Chapter 9:23]  allows death penalty for treason or for insurgency, banditry, sabotage or terrorism are unconstitutional. Why sacrifice a second life for one already lost? When Corporal punishment is unknown why do we still have the death penalty? 

 

How effective is this form of punishment? No executions have been carried out in Zimbabwe since 2005, but the occupants of “Death Row” have not been reprieved, as at the beginning of February 2017 there were 98 of them.  As of 2016, one man has been on “Death Row” for over 24 years. This amounts to cruel and inhuman treatment or punishment prohibited by section 53 of the Constitution. Dozens of criminals are languishing on Death Row in Zimbabwe unsure when they will die because the country has no executioner. Despite the high unemployment in Zimbabwe, no one wants to take the job of Executioner. 

 

A report published in The Conversation found that 80% of people said they would accept it if the government abolished the death penalty. Today, capital punishment has been abolished as a penalty for murder either specifically or in practice by almost half the countries of the world including the democracies of Europe and our neighboring countries, Namibia, Mozambique, South Africa and Angola. I acknowledge that the right to life in our constitution is not absolute but limited by section 48(2) of the Constitution unlike other constitution. However, no execution has been carried out since 2005, this is an intolerable situation and must be resolved without any further delay. There are people who have been on Death Row for more than 10 years and this violates section 53 of the constitution ‘cruel and inhuman treatment or punishment’. Section 53 was interpreted in the case of S v Chokuramba CCZ 10/19. 

 

The death penalty is the most extreme form of punishment that a convicted criminal is subjected to, its execution is final and irrevocable. It puts an end to all personal rights including the right to life which are entitled to a person in the Constitution. It leaves nothing except the memory in others and the property that passes to the deceased's heirs. In the ordinary meaning of the words, the death sentence is undoubtedly a cruel and inhuman form of punishment. It is also an inhuman punishment for it "...involves, by its very nature, a denial of the executed person's humanity" see the case of Furman v. Georgia, 408 U.S. 238, 290 (1972) Brennan J. It is degrading because it strips the convicted person of all dignity and treats him as an object to be eliminated by the state. 

 

Moreso, in the US Supreme Court of Furman v. Georgia 408 US 238 (1972) Douglas J said, "A penalty ... should be considered 'unusually' imposed if it is administered arbitrarily or discriminatingly (emphasis added)... [t]he extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness." If you look closely at section 42(2d) as read in pari materia with section 56 the right to equality and nondiscrimination. The limitation to the right to life is discriminatory, why are women not subjected to death penalty?. If a crime is committed under the same circumstances both parties must be subjected to the same sentence. 

 

In addition to the above, the death penalty is a unique penalty other sentences preserve rights whilst the executed person loses the right to have rights thus, if a penalty cannot be practised consistently it must not be administered at all. This view was adopted in Callins v. Collins where Blackmun J said "although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it must not be administered at all"(emphasis added).  

 

Society is concerned with the possibility of a particular crime happening in the case of an unreformed recidivist murderer if the death penalty is abolished. ACKERMANN J said, “With the abolition of the death penalty society needs the firm assurance that the unreformed recidivist murderer or rapist will not be released from prison, however long the sentence served by the prisoner may have been, if there is a reasonable possibility that the prisoner will repeat the crime. Society needs to be assured that in such cases the state will see to it that such a recidivist will remain in prison permanently.” There are other better alternatives than the death penalty the court can imposed to a person convicted of murder.  

 

At this point, l will look at how our courts have interpreted the provision on cruel, inhuman or degrading punishment and the death penalty in the Supreme Court case of Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others 1993(4) SA 239 (ZSC). Gubbay CJ had this to say about it (at 247 I - 248 B):  

"It is a provision that embodies broad and idealistic notions of dignity, humanity and decency. It guarantees that punishment...of the individual be exercised within the ambit of civilised standards. Any punishment...incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the infliction of unnecessary suffering, is repulsive. What might not have been regarded as inhuman decades ago may be revolting to the new sensitivities which emerge as civilisation advances".

I concur with observation made by the then Chief Justice the death penalty is repulsive in ascertaining whether capital punishment is inhuman or degrading one must take into account the emerging consensus of values in the civilised international community which Zimbabwe is part of. The death penalty has been the bases of mockery of our civilisation and humane the state must set the record straight that life is priceless. Our law outlaws torture (section 53 of the constitution) however, the death penalty subjects a person to mental and physical suffering Gubbay further made these observations: 

“From the moment he enters the condemned cell, the prisoner is enmeshed in a dehumanising environment of near hopelessness. He is in a place where the sole object is to preserve his life so that he may be executed. The condemned prisoner is ‘the living dead’..... He is kept only with other deathsentence prisoners with those whose appeals have been dismissed and who await death or reprieve; or those whose appeals are still to be heard or are pending judgment. While the right to an appeal may raise the prospect of being allowed to live, the intensity of the trauma is much increased by knowledge of its dismissal. The hope of a reprieve is all that is left. Throughout all this time the condemned prisoner constantly broods over his fate. The horrifying spectre of being hanged by the neck and the apprehension of being made to suffer a painful...death is ...never far from mind.” 

 

Death is truly an awesome punishment, the calculated killing of a human being by the state involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident; a prisoner remains a member of the human family. In comparison to all other punishments, the deliberate extinguishment of human life by the state is uniquely degrading to human dignity see section 51 of the Constitution. Brennan J further stated that,  

“Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering... Since the discontinuance of flogging as a constitutionally permissible punishment..., death remains the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death... The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself.”

There is an outstanding feature in our culture ubuntu or hunhu translated to humanness (personhood and morality), which values life and human dignity. The main themes of this concept is that one’s life is important as yours and respect the dignity of everyone. Capital punishment destroy our cultural beliefs it is anti-African the test established by Langa on the concept of ubuntu is as follows “the test of our commitment to a culture of rights lies in our ability to respect the rights not only of the weakest, but also of the worst among us”. There is an expression that umuntu ngumuntu ngabantu, while it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. In our culture a person’s life is priceless no cattle can buy it.  

 

There are other better punishments that a convicted person of murder under aggravated circumstances can be subjected to punishment imprisonment period. We should now  think progressively  and move away from this barbaric form of punishment. However, we cannot challenge the validity of a constitutional clause since the Constitution is the supreme law in the land see section 2 of the Constitution. The death penalty can be removed by amending the Constitution and removing it as a limitation to the right to life. Alternatively, challenge the constitutionality of death row see Soering v United Kingdom (1989) 11 EHRR 439. I strongly view that the death penalty should be abolished. See the South African case of S v Makwanyane & Anor CCT/3/94.  

 

In section 344A of the Criminal Procedure and Evidence Act [Chapter 9:07], where a court can sentence a person for life imprisonment , is that constitutional? The section is unconstitutional, because imprisoning a person without hope of release violates human dignity and amounts to cruel and inhuman punishment. However, jurisdictions like Germany that have outlawed the death penalty have taken the view that life imprisonment is constitutional. Others like India are of the view that the life imprisonment is an alternative punishment for death.  

Do not forget to leave a comment on the comment section on whether the death penalty should be abolished or not.