THE matter regarding the constitutionality of the death penalty and life sentences has been raging for some time now with cases of death row inmates rolling before the highest court on constitutional matters in the land.The coming into effect of the current Constitution brings to the fore contentious legal questions vis-à-vis the constitutionality of the death penalty.
Sometime in mid-October last year two matters initiated by legal think- tank Veritas were brought before the court. Two applicants, convicted in separate cases of murder and sentenced to death in July 2002 and May 2012 respectively, were challenging the legality of the death penalty in light of the new Constitution. There was the matter of Ndhlovu versus the Minister of Justice (case CCZ50/15) and the case of Makoni versus Commissioner-General of Prisons and Correctional Services and Another (CCZ48/2015) which involved a prisoner convicted of murdering his girlfriend in 1995. The two were convicted before the new Constitution came into operation. Veritas, therefore, cited that although the two were lawfully sentenced to death, the sentence now had to be set aside because of the provisions of the Criminal Procedure and Evidence Act (CPEA) under which the condemned were sentenced which has since become inconsistent with Section 48 of the new Constitution.
According to Section 48(2) of the new Constitution: “A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances.” It is in this regard that the CPEA is not in conformity with the Constitution of Zimbabwe on the imposition of the death penalty. In other words, this law, contemplated in Section 48, is not yet in existence and therefore the death sentence cannot be passed. If this law is passed, then the death penalty can be passed under it. Otherwise, as things stand, this country cannot pass the death sentence and it thus remains important that finality is reached on the matter.
The recent death penalty case challenge by Chawira and 14 others versus Minister of Justice has the prisoners seeking an order that their death sentences be commuted to life imprisonment as Section 53 of the Constitution protects everyone including convicted prisoners against torture or cruel, degrading treatment. They want the Constitutional Court to define their fundamental rights as enshrined in sections 51 and 53 of the national charter. They want the Constitutional Court to commute their sentences to life imprisonment and their plea is being facilitated by Veritas again. Convicted murderer Cuthbert Tapuwanashe Chawira (45) and 14 other murder convicts have been languishing in prison for periods of between four and 20 years.Chawira has been on death row since September 2000 over a 1999 armed robbery which led to a murder in Gweru. In their affidavit they state: “That being so because of the torture we have been subjected to while waiting for a long time on death row, it will be unconstitutional to execute us and therefore the sentence should now be committed to that of life imprisonment. The anguish of being not told the day of execution is unbearable. There is nothing as challenging to a human being as living a life without hope. Most of us have no hope that we will live and we are just sitting in dark waiting to be executed.”
Now, the matter has stood for long and it is overwhelmingly urgent that finality is reached. There have been two strong schools of thought with one group rooting for the abolition of the death penalty while others contend that those who don’t value the lives of others ought not to be spared themselves. Without wading into the contentious debate, it is in the nation’s best interest that this matter is conclusively dealt with as to settle the confusion surrounding the matter. Undeniably, in view of the new Constitution, Zimbabwe cannot pass the death sentence unless Parliament enacts a law which provides for it. The new order leaves the decision to the legislature. In the absence of the specific law providing for the death sentence, it cannot be passed.
Also, it is a valid argument that the death penalty, to a huge extent, violates Section 51 of the current Constitution which unequivocally states: “Every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected.” Section 53 as well protects against cruel, inhuman or degrading punishment. The 15 death row inmates being represented by Tendai Biti would be right to seek the court to define their fundamental rights as espoused in both sections 51 and 53.
It is crucial that conclusiveness is reached on the matter because, honestly, the anguish of prisoners not being told when they would be hanged is agonising. Finality, either way, it brings a sense of certainty as well as relieving prisoners of the psychological torture. Let’s bring finality to the death penalty issue.
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lLearnmore Zuze is a legal researcher, author and media analyst. He writes here in his own capacity. E-mail:[email protected]
