Why Zimbabwe Should Amend the Constitution to Abolish the Death Penalty
While abolishing mandatory death penalty, the 2013 Zimbabwean Constitution allows its imposition in certain circumstances. The shift of attitude in both ruling and opposition quarters, alongside support from civil society organisations and traditional and religious leaders, provides a historic moment to build a strong cross-party coalition to amend the constitution to abolish the death penalty – writes Senator Douglas Mwonzora.
In January 2019, President Emmerson Mnangagwa announced that he ‘wholeheartedly’ agrees that the death penalty constituted an affront to human dignity. This was not entirely unexpected from a man who was himself on death row during Zimbabwe’s independent struggle. In March 2018, he commuted to life imprisonment the sentences of prisoners who had been on death row for more than 10 years. The Minister of Justice, Legal and Parliamentary Affairs, Ziyambi Ziyambi, has similarly denounced the death penalty.
Despite these sentiments, no significant official steps have been taken to strike the penalty off statute books. Between 1980 and 2001 the government hung 76 people and the death penalty remains a key element of Zimbabwe’s Penal Statutes. Even though Zimbabwe last hung a prisoner on 22 July 2005, the courts continue to sentence people to death. In 2018, courts reportedly sentenced five people to death and at least 81 prisoners remain on death row.
Church organizations, traditional leaders, and civil society organsiations have now joined in the movement to abolish the death penalty. Considering that the legal basis for the death penalty has been retained in 2013 Zimbabwean Constitution, the success of these movements depends on garnering the political and popular consensus necessary to amend the Constitution.
The death penalty in the 2013 Constitution
The Zimbabwean Constitution allows parliament to enact laws authorising the death penalty only where a person has been convicted of murder in aggravating circumstances. Where extenuating circumstances exist, courts may not impose the penalty. However, even where aggravating circumstances exist, the constitution gives courts discretion over imposing the death penalty. As a compromise between those who supported the death penalty and those who opposed it during the constitution drafting process, the Constitution abolished mandatory death penalty, and the death penalty is excluded for women, persons below the age of 21, and persons above the age of 70. All persons sentenced to death have the right to seek pardon from the president.
During the 2013 Zimbabwe Constitution Building Process, two opposing groups advocated for the death penalty. However, this advocacy may have been motivated by the death penalty’s use as a retributive tool rather than as a legitimate principle. The first group, composed of predominantly Zanu-PF supporters, advocated for the death penalty for crimes of murder and treason. The second group, made up of predominantly of Movement for Democratic Change (MDC) supporters, advocated for the death penalty in politically motivated murders. At that time, a number of MDC leaders, including its president Morgan Tsvangirai, had been accused of treason (a crime that the Zanu-PF supports wanted to impose the death penalty for), and some Zanu-PF supporters had been accused of politically motivated murders (a crime that the MDC supporters wanted to impose the death penalty for).
While no law imposing the death penalty has been enacted since the 2013 Constitution was adopted, the constitutional provision has validated existing laws carrying the penalty. Zimbabwe’s main penal statute, the Criminal Law (Codification and Reform) Act, provides for the imposition of the death penalty for the offences of murder, treason, insurgency, banditry, sabotage and terrorism. The Defense Act also allows for imposing the death penalty for certain military offences.
The case against the Death Penalty in Zimbabwe
The arguments for and against the death penalty are well known. Proponents of the death penalty have several arguments as to why the death penalty should be retained. In particular, the penalty is presented as the ultimate deterrence against serious crimes. Proponents hold that the death penalty provides retribution, not revenge, because the death of the convicted prisoner will provide the victim’s family with a feeling of justice. In response to the possibility of executing innocent persons, proponents argue that the modern methods of crime detection and the elaborate opportunities to challenge convictions minimize these risks.
Despite these arguments, the world is moving towards abolition of the death penalty. In the words of the United Nations Secretary General the death penalty ‘has no place in the 21st century’. There is increasing recognition that the death penalty violates the fundamental right to life, dignity and other human rights. Most prisoners on death row are kept in solitary confinement with minimum movement until their execution. They are not informed of the exact date of their execution until sometimes a day before their execution. This leads to a continuous fear that each day is their last. Some prisoners go through this ordeal for as long as 20 years! This combination of solitary confinement and the burden of facing impending but uncertain death amounts to torture.
The death penalty was never part of Zimbabwe’s traditional culture.
There is no credible evidence to buttress the assertion that the death penalty deters crime. Countries like China, the USA, Iraq, Saudi Arabia, and Yemen have retained the death penalty without any reduction in violent crime. Nor is there evidence showing any upsurge in murder cases for countries that have abolished the death penalty. During colonialism, the Smith Regime in Zimbabwe imposed the death penalty for all who took up arms against the Rhodesian government. Yet young men and women continued to take up arms against the regime despite the danger of being hanged.
The imposition of the death penalty also ignores the possibility that people can change, mature, or repent. A person who committed murder at the age of 22 may be hanged at the age of 44, and most likely the person who ultimately gets hanged has a totally different personality than the violent offender. By the time of his execution notorious Zimbabwean armed robber and convicted murderer Stephen Chidhumo had actually converted to Christianity.
Additionally, the death penalty disproportionally affects indigent members of society who lack sufficient resources for legal representation. Although the state is obliged to provide lawyers for those facing capital charges, the state may not have the resources to hire these lawyers either (leading many to go without representation). Even when a public defender is appointed, they are often overwhelmed and there may not be sufficient time and resources to launch an effective defence. The conviction of innocent people for crimes they did not commit is a reality. From the United States to Japan, stories of execution of innocent people are not uncommon. In poorer countries, such as Zimbabwe, the risk of innocents being condemned to death is even higher due to Zimbabwe’s limited level of forensic and police resources. Given the finality of the death penalty, the risk of executing innocent persons is simply too high to tolerate.
Zimbabwe must capitalise on the emerging momentum towards abolition of the death penalty both among politicians and the public.
In many countries, including Zimbabwe, the judicial system is directly controlled by powerful executives who manipulate the system against their opponents. For example, former Attorney General of Zimbabwe, Johannes Tomana, notoriously invoked Section 121 of the Criminal Procedure and Evidence Act only against MDC supporters. This section allows prosecutors to ensure the continued detention of persons otherwise admitted on bail. In the same way, the death penalty can be manipulated into a political tool against opponents. The cases of Ken Saro Wiwa of Nigeria, Orton Chirwa of Malawi, and Koigi wa Wamwere of Kenya are all matters of historical record that demonstrate this point.
The death penalty was never part of Zimbabwe’s traditional culture. The traditional justice criminal system was based on compensation and restorative justice. The murderer was always forced to pay reparations to the victim’s family. The colonialists brought the death penalty and used it to subdue indigenous Zimbabweans. The death by hanging of Mbuya Nehanda and Sekuru Kaguvi caused many Zimbabweans to resist British colonialism and white settlers. The use of the death penalty by the Rhodesian government and the apartheid government of South Africa against black nationalists is well documented. It is ironic that independent Zimbabwe has continued this horrible legacy.
Condemning a prisoner to death does not restore the victim to their family and loved ones. The ‘eye for an eye’ justice ignores the fact that two wrongs don’t make a right. Materially, the victim’s family gets nothing from the offender being executed. Considering the existence of alternative sentences that strong deterrence effects, the continued retention of the death penalty, with all the possible dangers, is contrary to the democratic and tolerant Zimbabwe that is at the heart of the current constitutional framework.
A new cross-party coalition against the death penalty
The Zimbabwean government has not yet fully committed to abolishing the death penalty. While crucial faces of the government have made statements against it, it remains in the statues and the justice system continues to make use of it. The fact that the government has not carried out any hangings since 2005 is not enough. Indeed, just before his departure, former President Robert Mugabe indicated his plans to resume executions. As a macabre relic of colonialism, the death penalty does not serve any legitimate purpose in Zimbabwe today. It must be abolished.
With the coming to power of Mnangagwa and the evolution of the position in relation to the death penalty in opposition camps, the tide towards the abolition of the death penalty appears to be at its height. Moreover, a recent report has revealed that, while 61% of Zimbabweans supported the retention of the death penalty, 80% indicated that they would not reject a government policy towards abolition. Support from the people is critical as amendments to the bill of rights, in which the death penalty is located, would require popular approval in a referendum. The support from church leaders, traditional authorities and civil society organisations provides a timely momentum to build a strong cross-party coalition to amend the constitution to remove the death penalty.
Douglas Togaraseyi Mwonzora is a Zimbabwean Senator and Former Secretary General of MDC. He was the Co-Chairperson of the Constitutional Parliamentary Committee (COPAC) that drafted the 2013 Constitution.