Over the past weeks there have been reports around the abolishment of the death penalty in Zimbabwe following Cabinet’s approval of the principles of a bill that seeks to end the practice.
The death penalty is the killing of a person as punishment for a crime. It is sometimes called ‘capital punishment’.
Most people think that the death penalty is no longer part of Zimbabwe’s correctional system.
A headline by The Chronicle published on February 7, 2024 read “Death sentenced”, and the following day it released an article with the headline “Public welcomes death penalty scrapping”.
This is not true because of section 48 of the constitution of Zimbabwe Amendment (No.20) Act, 2013 (hereinafter referred as the constitution).
Until the constitution section providing for the death penalty has been amended the death penalty remains part of our correctional system.
Zimbabwe carried out its last execution in 2005, but death sentences have continued to be imposed.
This brings the question, how effective is this form of punishment?
Is it meant to deter people or its torture? What happens to the occupants of “death row”?
Dozens of convicted men are languishing on ‘death row’ unsure when they will meet their maker as the country has no executor.
It is reported that there are at present at least 63 people on death row nationwide.
In 2016 it was reported that one man had been on ‘death row’ for over 24 years.
This amounts to cruel and inhuman treatment or punishment prohibited by section 53 of the constitution’
The death penalty is the most extreme form of punishment that a convicted man (emphasis is made on convicted man as it is only male that can be sentenced to death).
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 by the constitution.
In the ordinary meaning of the words, the death sentence is undoubtedly a cruel and inhumane form of punishment.
It is also an inhuman form of punishment for it “……involves, by its very nature, a denial of the executed person’s humanity’ See the case of Furman v Georgia, 408 US 238,290 (1972).
It is dehumanising in the sense that a convict will be subjected to inhumane treatment and reduced to an animal or a thing that has to be completely eliminated from the society.
The limitation to the right to life is discriminatory as it only applies to men and women are excluded.
Section 48(2d) of the constitution as read in pari materia with section 56, which provides for equality and non- discrimination shows that the imposition of the death penalty is discriminatory against men.
In the case of Furman v Georgia (supra) it was held by Douglas J that, “A penalty…..should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatingly’’.
For the purposes of fairness and equality before the law both men and women must be subjected to the same sentence regarding that the crime may have been committed under the same circumstances.
Therefore, applying the view of Douglas J, the death penalty in Zimbabwe is unusually imposed as it is discriminatory.
The death sentence is a peculiar penalty as other sentences preserve rights whilst the executed person loses the right to have rights thus, if a penalty cannot be practiced consistently it must not be administered at all.
This view was adopted in Collins v Collins where it was stated that ‘although most of the public seems to desire, and the constitution seems 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’
In the Supreme Court case of Catholic Commission for Justice and Peace in Zimbabwe v Attorney General & Ors 1993(4) SA 293 (ZSC), the court interpreted the provision on cruel, inhuman or degrading punishment and the death penalty. Gubbay CJ stated that;
‘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 may not have been regarded as inhuman decades ago may be revolting to the new sensitivities which emerge as civilization advances’
Drawing from the above observation, the death penalty is repulsive.
In ascertaining whether the death penalty 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 humanity.
The state must set the record straight that human life is priceless. Section 53 of the constitution outlaws torture however, the death penalty subjects a person to mental and physical suffering.
Gubbay further remarked that:
“From the moment he enters the condemned cell, the prisoner is enmeshed in a dehumanising environment or 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 death sentence 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 on 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 the mind.”
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 the 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.
Evidence strongly suggests that the death penalty has little or no impact on deterring or reducing crime.
A number of studies have demonstrated that countries that have abolished the death penalty have seen their murder rates unchanged or even decline.
The existence of the death penalty in countries that maintain it as well as the threat of its use can be turned into improper purposes, such as instilling fear, repressing opposition and quashing the legitimate exercise of freedoms.
In short, the death penalty is in our common experience, an atavistic relic from the past that should be shed in the 21st century.
The death penalty is an affront to human dignity.
It constitutes cruel, inhumane and degrading treatment and in contrary to the right to life.
The death penalty has no established deterrent effect and it makes judicial errors irreversible.
There is a risk of mistakenly sentencing an innocent party to death and this is irreversible if the person has been put to death.
In Zimbabwe errors have certainly occurred in death sentence cases.
No justice system can be perfect and Zimbabwean judges are just likely to make mistakes.
If judges make mistakes in ordinary criminal trials and send innocent people to prison, the prisoners can be released and compensated.
But if an innocent party is sentenced to death and hanged, there is no remedy, the injustice cannot be put right.
In conclusion the death penalty should be scrapped off based on the following-
- It is a relic of colonialism.
- There is no moral or practical justification for retaining the death penalty in Zimbabwe- it is dehumanising.
- It is against customary practice in Zimbabwe.
- It is imposed arbitrarily and is discriminatory against men.
- It has not been shown to deter crime.
- If innocent people are wrongly convicted and hanged, the mistake is irreversible.
*Mlondolozi Ndlovu is a Zimbabwean media practitioner, trainer and researcher. He is a law student at the University of Zimbabwe and can be contacted on mlondo717@gmail.com