Parliament and the death penalty

month, NEXT Zimbabwe will mark 15 years since the last execution of a prisoner on death row.

AS a result, Zimbabwe is considered a de facto abolitionist State, despite retaining capital punishment on its statutes. There are 84 prisoners on death row right now.

The country has been without a hangman since the last one retired in 2006.

In terms of our penal code, the Criminal Law (Codification and Reform) Act imposes the death sentence for murder, insurgency, sabotage, banditry, treason and terrorism, while the Defence Act imposes capital punishment for certain military offences.

President Mnangagwa is a known agitator for the abolition of capital punishment.

Barely six months after assuming office in November 2017, the President commuted death sentences to life sentences for 16 death row inmates who had served 10 years or more.

In a similar act of clemency, eight other death row inmates survived the hangman’s noose after the sentences were commuted to life earlier this year.

Inasmuch as these commutations are praiseworthy, they are largely a symbolic effort that does not entirely address the problem of the unpopularity of capital punishment among a vast majority of Zimbabweans.

A report released last week by two civil society organisations — Death Penalty Project and Veritas — revealed that 90 percent of Zimbabweans were against the death penalty and wanted it abolished.

The report titled “Time to Abolish the Death Penalty in Zimbabwe: Exploring the views of its Opinion Leaders” concluded that 60 percent of respondents to the study agree that innocent people have been sentenced to death.

In a foreword to the report, President Mnangagwa acknowledged the unpopularity of capital punishment:

“Most Zimbabweans know that the death penalty is a subject on which I feel deeply. As I have said in the past, I believe it to be a flagrant violation of the right to life and dignity.

“This report, and the research on which it is based, follows upon a wider survey conducted in 2017, which revealed that only a small majority of our citizens are in favour of keeping the death penalty, and that out of those who favour it, 80 percent will be prepared to go along with abolition, if the Government so decides.

“It is my sincere hope that, in the near future, Zimbabwe will formally abolish the penalty by removing it from our statute books.”

But if the death penalty is this unpopular among Zimbabweans, how then did it end up engraved in our supreme law?

As we have always argued, the Zimbabwean Constitution is imperfect, by virtue of it being born out of compromise between three political rivals.

Architects of our Constitution have at many fora given varying reasons why the death penalty was maintained, albeit with vast alterations, in the 2013 Constitution.

Crafters of the Constitution narrowed the scope of capital punishment, restricting it to males above the age of 21 years only.

The death penalty was abolished for young people up to and including the age of 21, and for people aged 70 and over while women cannot be sentenced to death.

It has often been said that there was cross-party support for the death sentence during the Constitution-making process, albeit for vastly differing reasons.

On the Zanu PF side, support for capital punishment was largely motivated by the need for a deterrent sentence against high crimes that include treason and subversion.

Support for the death penalty from the MDC side was premised on the need for ultimate deterrence against politically motivated violence.

Given that the Constitution-making process took place on the back of the highly polarised and violent June 2008 Presidential election runoff, support for capital punishment was largely for political expedience and not sober reflection.

Seven years after adoption of the Constitution and tempers having naturally cooled, this should maybe be the time to look back at the issue, soberly.

Worryingly, aside from the President, no other politician or leading public persona has dared to publicly pronounce themselves on the issue. It could be fair to conclude that this could be a result of the assumed perception of public support for the death penalty. This is in spite of millions of pages of data showing growing public abhorrence of capital punishment.

Research shows that in the 40 years between 1977 and 2017 the number of countries to abolish the death sentence has risen from 16 to 142.

During that period, between 1980 and 2001 Zimbabwe executed 76 people.

The courts have also continued to sentence people to the death row, with five people having been sentenced to face the hangman in 2018, according to official figures, which is why our Parliament needs to take the lead and push for the abolishment of capital punishment.

There appeared to be bi-partisan support to a motion moved by Proportional Representation Parliamentarian Dorcas Sibanda (MDC-A) in the National Assembly in February calling for the immediate abolishment of the death penalty.

She invoked Mbuya Nehanda to push through her argument of possible wrongful convictions in the courts.

“I always think of Mbuya Nehanda, Madam Speaker, during the colonial era that if Mbuya Nehanda could have had a competent lawyer, maybe those who are older than us could have seen her,” she said.

“However, because there was no lawyer and whoever to stand for Mbuya Nehanda, there she was, she was executed.”

She added: “We commit to using all our Parliamentary prerogatives and our privileged position to promote the human rights and abolition of the death penalty in our country and throughout the world.”

We, therefore, expect Parliament to observe this commitment and make sure that the death penalty is abolished.