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April 10 2010 | ZIMBABWE


Inmate challenges death penalty and appeals to Supreme Court. Hopes for abolition to come soon

versione stampabile

The Herald

Published by the government of Zimbabwe

Zimbabwe: Rethink Death Penalty


HarareZIMBABWE must now rethink the death penalty, and be ready to move from the informal moratorium now in place to abolition, replacing this ultimate sentence with life imprisonment, without possibility of release.

No executions have been carried out in Zimbabwe since 2004, and the hangings of that year can be considered a special case, of convicts who murdered a prison guard while escaping from a maximum security prison.

The bulk of those sentenced to death in the past 20 years have seen their sentences commuted by executive action to life imprisonment. And they are rotting in jail, as they deserve to rot.

Independent Zimbabwe has never been liberal with the death penalty. The only crime attracting a death sentence since April 1980 has been murder, for which such a sentence is mandatory if there are no extenuating circumstances.

During the 1980s the criminal law was revised to remove the option of a death penalty for several other crimes, such as rape and robbery, even though no one had been sentenced to death for these in living memory. It still remains an option for treason and certain security crimes, although the only time this was imposed and executed was on a terror gang and they were hanged only after it was found that they had committed murder as well.

Zimbabwean law requires a lengthy process before a death penalty is executed. Not only is the appeal to the Supreme Court automatic from the High Court, but both the trial judge and the president of the appeal court must submit confidential reports to the executive.

And the final decision to hang is made by majority vote in the Cabinet, after all factors have been considered. This majority has always been difficult to get, according to several reports, and becomes harder each year.

There are only two arguments for retaining the death penalty: as a deterrent to would-be killers and traitors, and as retribution by society on those who commit the ultimate crime.

The first argument can now be addressed by fact. The informal moratorium on executions has seen no rise in murder rates. This fits in with experience in other countries.

What is a deterrent for murder is the near certainty of being arrested and convicted, followed by a very harsh sentence. The homicide units of the Zimbabwe Republic Police have an enviable record of solving murders. Teams of detectives work round the clock to hunt down a killer and almost always succeed. There have been only a handful, literally, of unsolved murders since independence.

The evidence is pretty conclusive that life imprisonment would be an adequate deterrent backed by the same magnificent police work.

We acknowledge that South Africa still has a high murder rate but it had a high murder rate when the death penalty was still in force there and that murder rate appears to have more to do with poor arrest rates than the abolition of the death penalty.

The fact that no death penalties have been executed for treason or for very serious security crimes where there has been no murder suggests that these crimes do not need this ultimate deterrent.

Again life imprisonment would act as the same deterrent for this sort of crime, especially as those committing acts of terrorism want to be heroes, not prisoners rotting in jail for the rest of their lives. So long as all in Zimbabwe make it clear that all who commit serious terror crimes will stay in jail for life, then that should have the same deterrent as hanging.

It would still be possible to debate, if Zimbabwe abolished the death sentence, whether those serving full life sentences would be released on a medical certificate once they were within days of death. That tiny mercy would cost nothing, although strong arguments remain that a killer should stay behind bars until he dies.

Some countries, as an intermediate step between using the death penalty and full abolition, have retained the right to impose death sentences for certain crimes in time of war, when circumstances are admittedly different. This is a possible intermediate step for Zimbabwe to take, although we would favour full abolition. Being in the middle of friendly neighbours we are unlikely to ever have to fight the sort of survival war where extreme measures might be needed.

The second argument, that those who kill others deliberately have forfeited their right to life, has always been weaker. It reduces us, the people of Zimbabwe, to the level of the killers, that a death can solve a problem and that some people deserve to die. We must rise above such base feelings.

We concur that the sort of people as have been hanged or sentenced to death since independence have forfeited their right to belong to society. But life imprisonment would be adequate to accomplish that goal.

Arguments put forward in a recent constitutional appeal, that jail is not very comfortable do not hold water. Lifers should not get special treatment in our view.

We acknowledge that the death penalty still has its supporters. But more and more countries around the world are abolishing this sentence and Zimbabwe should join them. It has been shown to be an unnecessary cruelty that we can rise above.


Zimbabwe: Murderer Challenges Death Penalty

Harare — A self-confessed murderer who was sentenced to death in November last year has challenged the constitutionality of the death penalty at the Supreme Court.

Shepherd Mazango was sentenced to death in terms of Section 337 of the Criminal Procedure and Evidence Act.

He has described hanging as "horrendous, barbaric, inhuman, brutal and uncivilised".

"God knows when I am going to be executed. I am anxious about this everyday. It is traumatising," he said.

Through his lawyer, Mr Innocent Maja of Maja and Associates -- under instruction from International Bridges to Justice -- Mazango, argues that the imposition of the death penalty offends provisions of Zimbabwe's Constitution.

"Punishment should be humane and should accord with human rights standards. I still hold rights irrespective of the fact that I have been convicted of murder.

"The cruelty of the death penalty is also shown by the mere fact that it does not only rob me of the right to life but has the effect of robbing me all other rights guaranteed by the Constitution," he argued.

Mazango says the last execution was carried out in 2004 and there are 50 inmates on death row, some of whom have been there for 13 years.

"Among us are George Manyonga who has spent 13 years awaiting execution, James Dube and Bright Gwashinga who have spent 10 and five years respectively, awaiting execution.

"This has caused severe trauma on the inmates that some of them are losing their mind...

"Worse still, to think that I can spend 13 years before execution like my colleague George Manyonga crushes me," he further argued.

Mazango said the cells were small, dirty, and had poor ventilation.

"The few blankets that are there are tattered and I am usually cold the whole night. There is no toilet in the cell.

"I use a five-litre container that is kept in my room the whole day and night.

"I am in solitary confinement for 23 hours. I am not allowed any entertainment and I am not allowed to read anything in the cell, even a newspaper.

"I am out of touch with the world so much so that I do not know what day it is, what time it is and what is happening on the outside world.

"I am advised that there were amendments to the Constitution that were made in 1990 and 1993 with the effect that a death sentence cannot be suspended only by virtue of it contravening Section 15 of the Constitution.

"These amendments should be struck off the Constitution on the basis that they have the effect of taking away the right not to life and the right not to be subjected to cruel, inhumane and degrading treatment and punishment.

"The amendments fly in the face of the essential features doctrine," he argued.

He also claims that he was convicted of murder because he could not afford a lawyer and gave statements without appreciating the essential elements of the crime.

"I verily believe that the imposition of the death penalty is an arbitrary deprivation of life in contravention of Section 12 of the Zimbabwean Constitution.

"Life is sacrosanct and should not be taken away even when a person is convicted of murder. "The 'justice' of 'an eye for an eye and 'a tooth for a tooth' is not acceptable in a democratic society and offends human rights as shown above.

"On the premises of the above, I believe that I have set out a case for the relief sought. Accordingly, I humbly pray for an order in terms of the draft," said Mazango.

The State is cited as the respondent.

Mazango was convicted of murder with actual intent for killing a Marondera farmer.

Facts are that on September 6, 2002, Mazango and his two accomplices, met the unsuspecting farmer at a service station and told him that they were selling affordable fertilizer.

The victim became interested and they made him drive to Karimazondo Farm.

They ordered him to park his vehicle and led him into a bush where he was supposed to see the fertilizer, while Mazango walked behind him.

"I picked up a log. I used it to strike him on the head and he fell on the ground.

"I continued assaulting him with the same log till it broke. I then picked some stones, which I used to strike him on the head.

"I took his Z$3 000, shoes, trousers and vehicle keys and went home," Mazango told the court during trial.



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