CONSTITUTION ABOLISHES DEATH PENALTY … BUT NOT FOR MEN

 

Alex T. Magaisa

 

The issue of the death penalty has previously been covered on this platform (see link at:  http://newzimbabweconstitution.wordpress.com/2012/05/17/draft-constitution-paves-way-for-abolishing-the-death-penalty/ However, there have been some significant changes between the version of the draft Constitution that was analysed in that blog and the draft Constitution that was released last week.

 

As with the previous version, Clause 4.5 abolishes the death penalty except in cases of aggravated murder, in which case a law may permit the use of the death penalty. This means that if Parliament does not pass the law, there will effectively be no death penalty in Zimbabwe.

 

There is however, no definition of what constitutes “aggravated murder” which is presumably left to Parliament or the courts to make that determination. It would be ideal if the Constitution provided clearer guidance on what constitutes “aggravated murder” rather than leave it to Parliament or the courts with the risk that they might define and construct it more widely than is intended by the Constitution.

 

However, even where a law is passed permitting the death penalty in cases of “aggravated murder” there are categories of persons that are exempted from the imposition or carrying out of the death penalty. These are:

 

• A person who was less than 21 years old at the time of the offence
• A person who is at least 70 years old
• A woman

 

There is no serious problem with the first two exemptions as the basis for exempting them is youth or old age.  It is the last category that is likely to cause controversy.

 

By specifically exempting women from the death penalty, the provision last exemption clearly discriminates between men and women. The basis of this discriminatory approach is not clear. It is in direct contradiction with the equality and non-discrimination clause under Clause 4.13 part of which states that “women and men have the right to equal treatment …” and prevents discrimination on the grounds of gender and sex. Clause 4.13 (4) states further that a person is treated in a discriminatory manner if they are “subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected;  or other people are accorded directly or indirectly a privilege or advantage which they are not accorded”.

 

Plainly, the exemption of women of the death penalty treats men differently on the ground of gender or sex. It subjects men to a condition to which women are not subjected or provides women with an advantage or privilege to which men are not accorded. Although Clause 4.13(5) allows for fair discrimination if it is fair, reasonable and justifiable in an open, just and democratic society based on human dignity, equality and freedom, it is not clear how this discrimination between men and women would pass this test.

 

It is also difficult to understand the basis of the unequal treatment between men and women on the death penalty when one of the strongest points of this draft is the theme of gender equality and equity which runs through most of its clauses. It might even be regarded as patronising towards women and perpetuates the societal attitudes that women are weaker and inferior to men and therefore deserving of special treatment when the whole idea of promoting gender equality is premised precisely on debunking these myths and attitudes towards women.

 

The exemption that is usually allowed for women is where the woman is pregnant and the moral basis for this exemption is clear. This is what the original draft provided for but this has now been changed to exempt all women from the death penalty. There is probably a persuasive explanation for the distinction in treatment and if it is there hopefully it will be provided otherwise controversy on this issue will dilute otherwise positive aspects of the draft Constitution and gains made in promoting gender equality.

 

The practical effect of this is that where two persons – a man and a woman – have committed a gruesome murder which is regarded as aggravated murder, the man may be sent to the gallows while the woman’s life is spared. This would be the case even if both the man and the woman participated equally in causing the aggravated murder.  Now one could argue that the same reasoning could be applied in cases where a 40 year old man commits aggravated murder with a co-accused who is 18 years old – the former would face the death penalty while the latter would be exempted on the basis of his age. However, the gender/sex discrimination attracts more attention and scrutiny because of the background of the understandable clamour for gender equality which has been one of the hallmarks of this constitution-making process.

 

Finally, the discrimination ignores the fact that women may themselves be victims of or are affected by aggravated murder committed by other women. A mother whose child is murdered by a woman grieves and expects justice in the same way as if her child was murdered by a man. If she expects the male murderer to face the death penalty, she would no doubt expect the same even if her child’s murderer were a woman.

 

Overall, for those of us who are opposed to the death penalty (and I am aware that there are those who support it), the clauses are step further than where we are currently. It is particularly important it has been restricted so that it no longer applies to cases of treason because in that arena allegations have been used for political purposes – often targeting political activists in cases that have not gone anywhere beyond initial harassment.

 

waMagaisa (2012)

 

This information reflects my personal views and not the views or opinions of any person or organisation with whom or which I may be remotely associated. Anyone who wishes to use this information commercially or otherwise, should seek my express permission prior to using it, and may be asked to make a modest contribution to charity for use of this material. Email: wamagaisa@yahoo.co.uk