By Nathan Majuru and Vimbai N Tavaziva
The right to life is the most basic human right afforded to every human being simply because one is human. The Zimbabwean Constitution guarantees the right to life stating that; “Everybody has the right to life. “This means that no one has the right to take away someone’s life.
There is, however, only one limitation to the right to life. A limitation is a condition that makes it lawful to take away a right. Where a limitation exists, the individual concerned cannot enjoy this right. The limitation to the right to life in Zimbabwe is the death penalty.
What is the death penalty?
The death penalty is a punishment given out by a court when it sentences an individual accused of committing a crime to death. It is also known as ‘capital punishment’. In Zimbabwe, people sentenced to death are hanged. In other countries such as China the death sentence is carried out by shooting, while in the United States of America they use methods like lethal injection or electric chair.
The last execution in Zimbabwe was carried out on 22 July 2005, on Mandlekosi Never Masina Mandla, for committing murder. Before him, in 2004, Edmund Masendeke and Stephen Chidhumo were hanged after they had escaped from Chikurubi Maximum Prison. They were infamously well known for murder, rape and armed robbery.
Which offences attract the death penalty?
Previously, people could be sentenced to death if they had committed serious criminal offences such as murder, attempted murder, and incitement to commit murder, treason, genocide and terrorism acts (for example causing people to forcibly resist the Government or law enforcement forces). Terrorism was punishable by death if it was committed using weapons (for example knives, guns etc.) or if there was any threat of the use of weapons and if the accused had an idea that the use of such weapons would risk the injury or death of any person.
The Constitution of Zimbabwe which was adopted in July 2013, in section 48(2), provides that the death penalty may be imposed only in terms of law, on a person convicted of murder committed in aggravating circumstances. This means that only when an individual has committed murder can they be sentenced to death.
The Constitution does not explain what “aggravating circumstances” are and so it is left to judges to decide what they think “aggravating circumstances” will be in a given case. An example of aggravating circumstances is when someone kills someone using an axe by chopping off body parts, one after the other. This kind of murder will show that the person intended to kill the person, wanted to cause them the greatest amount of pain and had no intention of sparing the other person’s life.
Who can be sentenced to death?
According to the Constitution, the following people cannot be sentenced to death:
- People who are less than twenty-one (21) years old at the time that they commit a crime (Section 48(2)(c)(i))
- People who are more than seventy (70) years old at the time that they commit a crime (s 48(2) (c) (i) and (Section 48(2) (c (ii).)
- All women, whether they have committed murder or any other crime (Sections 48(2) (d) of the Constitution).
This means that the death penalty can only be imposed on men who are above 21 years old and below 70 years old who will have committed murder.
Is the death penalty final? Does the person sentenced to death have a chance to have his sentence changed?
A person sentenced to death has a right, in terms of the Constitution, to seek pardon (to be forgiven) or to seek commutation (to have his sentenced changed from the death penalty to life in prison) from the president of the Republic Zimbabwe as per Section 48(2) (e) of the Constitution.
If the request for pardon or for commutation is rejected, the person will be hanged to death.
Is the death penalty necessary?
There are different views on whether or not the death penalty is a necessary element of the criminal justice system.
Those in support of the death penalty argue that it provides a harsh punishment for terrible crimes and eliminates criminals from society. They also argue that the death penalty acts as a deterrent, that is, it keeps people from committing serious violent crimes.
Those against the death penalty say that it is a cruel form of punishment, an undignified way to die and cannot be corrected if the sentence was erroneously imposed (that is if the person was not in reality the one who committed the crime for which they were accused and sentenced).
The current Vice President of Zimbabwe, who is also doubling as the Minister of Justice, Mr Emmerson Mnangagwa has spoken up against the death penalty. He was sentenced to death under the Smith government for his involvement in the liberation struggle and as a result he knows how unjustly the death sentence can be used. He is fighting to seek an end to it. His opinion is that, “The death penalty is the ultimate denial of human rights and a cold blooded and abhorrent killing of a human being by the state in the name of justice.”
The death penalty in the SADC region
In Southern Africa; Zimbabwe, Zambia, Swaziland, Malawi, Lesotho, DRC, Comoros, and Botswana still have the death penalty in their laws. All the other countries no longer have it as it has been abolished (outlawed) through constitutions and laws that clearly say there shall be no death penalty. Angola abolished the death penalty in its 1992 Constitution, Madagascar in 2012, Mauritius in 1995, Mozambique in 1990, Namibia in 1990 and Seychelles in 1993. South Africa is unique in that, the death penalty was outlawed by judges and not by parliament. In the case of S v Makwanyane the Constitutional Court of South Africa said; “Unjust imprisonment is a great wrong, but if it is discovered, the prisoner can be released and compensated; but the killing of an innocent person is irremediable. While this court has the power to correct constitutional or other errors retroactively…it cannot, of course, raise the dead.”
What are your views on the death penalty? Does it help to prevent people from committing crime? Is it a good way of punishing people; what if a court is wrong and their mistake is discovered after the person has already been hanged? Do you think it is fair that only men can now be sentenced to death?