Draft Constitution 2012
Draft Constitution Paves Way for Abolishing the Death Penalty
Alex T. Magaisa
Few issues divided opinion in the constitution-making exercise as did the death penalty. To be fair, it is an issue that divides opinion across the world. While it has been abolished in countries like the UK and South Africa, some US states still impose the death penalty. It is not a matter over which there is consensus.
So contentious was the issue that for months it remained one of the ”Parked Issues”, meaning that it would have required the intervention of the political principals in the negotiating exercise. In the end, however, a compromise was reached – recognising on the one hand the need to progress towards abolishing the death penalty and on the other hand, the gravity of some murders which require stern punishment.
Personally, I am not in favour of the death penalty not necessarily for the reason that it is barbaric but because it has the consequence of finality that the court must be sure to have got it right in the decision-making process. However, experience has shown that not all cases can have total certainty. If the court gets it wrong, and this has happened before – either the wrong person is executed or the evidence is later found to be incorrect – and yet there is no way to reverse that sentence as the person would have been executed.
Furthermore, less known is the fact that the death penalty serves a strategic political purpose, particularly in politically-related offences such as treason. Treason is one of the offences that have traditionally carried the sanction of the death penalty under Zimbabwean law. It is the Sword of Damocles that hangs over the head of every opposition politician.
Zimbabwe’s history is replete with examples of treason charges against opposition leaders and activists – including Ndabaningi Sithole and Morgan Tsvangirai. A recent charge of treason against political activist Munyaradzi Gwisai and others, on the basis watching videos of the revolts in Egypt and Tunisia was withdrawn before trial. Mbuya Nehanda, heroine of the First Chimurenga, was a victim of the death penalty – employed as it was for political ends. Liberation fighters during the Second Chimurenga were also executed for treason. The use of the death penalty as a strategic political tool must never be underestimated.
It must be noted however, that there is no consensus even on both sides of the political divide. Mnangagwa, for example, is a key ZANU PF figure who has never made secret of his revulsion towards the death penalty. He escaped the death penalty by a whisker during the liberation struggle on account of his youthfulness at the time.
In searching for a solution to “unpark” the issue, the NCA Draft Constitution became a useful platform. The NCA Draft Constitution restricts the death penalty to cases of aggravated murder, with the state having the burden of proof (that it is aggravated murder and the sentence must be imposed) so that the death sentence is not automatic in all murder cases.
Therefore Clause 4.1 (2) states that: “A law may permit the death penalty to be imposed only on persons convicted of murder committed in aggravating circumstances”. What is critical here is that in fact the Constitution is effectively abolishing the death penalty until such time that a law is passed permitting the death penalty to be imposed in cases of aggravated murder. If the draft constitution is adopted the death penalty will be in abeyance until Parliament passes a law permitting its use in the specified cases of aggravated murder. It is important to note that there is no mandatory obligation on Parliament to pass such a law, hence the use of the word “may” so that Parliament has an option not to pass such a law.
It also means that even if the present Parliament passes that law, there would be nothing to stop a future Parliament from reversing that law, thereby effectively banning the death penalty. The clause provides the flexibility that Parliament needs to deal with issue depending on changing ideas, attitudes and views towards the death penalty over time. It strikes a compromise between those wishing for an outright ban and those preferring a clear imposition of the death penalty as a derogation from the right to life. It leaves it to society, through its Parliamentary representatives to choose an approach that goes with its time.
In addition, it means that even where the death penalty is permitted it will no longer be used in politically-related cases. The constitution is only permissive to the extent that the penalty may be imposed in cases of aggravated murder. No longer will there be misuse of treason charges and related political offences on the back of a threat of the death penalty.
Furthermore, even when such a law is passed the death penalty can only be imposed on certain conditions namely:
- the penalty may be carried out only in accordance with a final judgment of a competent court. Due process must have been followed. This prevents extra-judicial executions.
- the penalty must not be imposed on a person—
- who was less than twenty-one years old when the offence was committed; or
- who is more than seventy years old;
- the penalty must not be imposed or carried out on a pregnant woman
- the law must permit the court a discretion whether or not to impose the penalty; and
- the person sentenced must have a right to seek pardon or commutation of the penalty from the President.
These are in-built safeguards to ensure that the death penalty is not imposed unless it is absolutely unavoidable. The discretion that is given to court whether or not to impose the penalty is very important because even if Parliament has passed a law permitting the death penalty in specified cases of aggravated murder, the courts themselves may develop their own judicial approach to the death penalty which would be consistent with the changing times and attitudes.
As I have said, this one is a matter which divides opinion across political lines. Like abortion, there are moral, religious and cultural issues involved. Driving along Harare’s Beatrice Road, with the busy Mbare high-density suburb on one side and the dormant industries on the other side, one is struck by a large billboard with a picture of Mbuya Nehanda, heroine of the First Chimurenga and the words, “Mbuya Nehanda would have said “NO” to the Death Penalty”. She was hanged by the settler regime in the aftermath of the uprisings, itself the most prominent use of the death penalty for political purposes. That the death penalty continues to this day is surely an affront to her memory.
waMagaisa
