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20 Ottobre 2009 | ZIMBABWE


"E' il momento di abolire la pena di morte"

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Zimbabwe: The Case for Abolishing the Death Penalty


"YOU are killing an innocent man and ..." These are recorded as the final words of death row inmate Roy Roberts as he was executed in Missouri, USA in 1999. Discomforting evidence later emerged that cast doubt on his conviction for murder. Then last week there was a gruesome botched execution of Romell Broom in Ohio, USA.

It is reported technicians tried but failed to find a vein to administer the required mortal fluids and at one time Broom lay on his side trying to help them find the vein.

On March 25 1997 in Florida, Pedro Medina was on the electric chair awaiting his fate. With the first jolt of 2 300 volts blue and orange flames sparked from the mask covering Medina's face. Flames up to a foot long shot out from the right side of Medina's head for 6-10 seconds. The execution chamber was clouded with smoke and the smell of burnt flesh filled the witness room.

We all remember the sorry sight of Saddam Hussein as he was led to the gallows with a very strong barbaric rope round his neck, with taunts echoing in the background. Doesn't society have better methods of dealing with its malcontents?

The death penalty remains a controversial sentencing sanction. The debate on its merits or lack thereof is probably as old as the sanction itself. It is with great interest that the MDC-T last week published their red zone on constitutional reform issues in Zimbabwe. Inevitably the party stated that it was advocating the abolition of the death penalty in Zimbabwe -- the subject of this article.

The death penalty has been on Zimbabwe's statutes for a long time.

Probably some of the most celebrated death row victims are the spirit mediums Mbuya Nehanda and Sekuru Kaguvi who were hanged by the colonialist regime in 1898. Capital punishment is provided for by Section 12 of the Zimbabwean constitution which states "it shall be lawful for a person to be killed following a death sentence imposed on him/her by a court".

Various offences can attract the death penalty in Zimbabwe including first-degree murder and treason. The Zimbabwe Prison Service reports that 76 African male prisoners were executed between April 1980 and December 2001.

In the same period 244 inmates were sentenced to death by the High Court of Zimbabwe. Approximately two thirds of those sentenced had their sentences quashed by the Supreme Court or commuted to life imprisonment. Chidhumo and Masendeke are probably the latest high profile inmates executed in Zimbabwe.

This does not imply that there has been universal support for executions in Zimbabwe. Two former Chief Justices are noted to have voiced their concern over executions. Chief Justice Enoch Dumbutshena is noted as having told the Herald (December 7 1987) "I believe that many people we sentence to death for killing somebody should not be sentenced to death but given a life imprisonment term". His successor Chief Justice Anthony Gubbay is recorded as having said: "what may not have been regarded as inhuman or degrading a few decades ago may be revolting to new sensitivities which emerge as civilisation advances".

He was ruling on whether delaying executions and appalling conditions of incarceration were not contrary to Section 15 (1) of the constitution (CCJP v AG and others (1991) (1) ZLR 242. More significantly the draft constitutions produced by the Chidyausiku Commission and the National Constitutional Assembly in 2000 did not contain the death penalty, neither does the controversial Kariba Draft.

At international level it can safely be said that we are moving towards abolition of the death penalty. Legally speaking the death penalty is not prohibited by international law, nor is abolition yet a norm of international law.

The celebrated International Covenant for Civil and Political Rights (ICCPR) which is binding on most countries of the world actually does not prohibit the death penalty. Article 6 (2) of the same merely restricts its use to the "most serious crimes". "Most serious crimes" is aptly unqualified and subjective to each country and region. However the Second Optional Protocol to the ICCPR adopted in 1989 does prohibit the death penalty to state parties to the protocol (Article 1). Henceforth it remains optional. Efforts have been made through the United Nations to adopt resolutions abolishing it.

In 1971 through Resolution 2857 and 1977 through Res 32/61, the UN took the first steps towards declaring abolition of death penalty as a universal goal and calling for restrictions on its use. However it was only in 1989 that the UN GA adopted the Second Optional Protocol to the ICCPR.

In addition both instruments instituting UN International Tribunals for Former Yugoslavia (ICTY) and for Rwanda (ICTR) did not carry the death penalty as a sanction. These tribunals were formulated to prosecute very serious crimes of interest to the international community: that is genocide, war crimes, and crimes against humanity.

About 96 countries have abolished the death penalty for all crimes, eight for ordinary crimes and 43 are de facto abolitionist. In Africa there are at least 15 abolitionist states and 21 de facto abolitionist (those who have the death penalty but haven't used it in the last 10 years and have committed not to use it).

Sadly for Africa as of November 2008 Amnesty reports only six of the 53 states had ratified the second optional protocol to the ICCPR on abolition of the death penalty. Ninty percent of all world executions are carried out by six countries: the US, China, Iran, Iraq, Sudan and Pakistan.

Drawbacks have been encountered as some states have reinstituted the death penalty after abolition. Eg the Philippines abolished it after the overthrow of President Marcos in 1989 but brought it back in 1993.

It is the progression of the human rights movements that have had a major impact on abolishing the death penalty.

The Council of Europe has made abolition a prerequisite for membership. In April 1983 it adopted Protocol No 6 to the European Convention on Human Rights which abolished the death penalty in peacetime only. However in 2002 Protocol No 13 was adopted which abolished capital punishment in all circumstances.

As a result Europe is a death penalty free zone and there has not been an execution since 1997. In 1990 the General Assembly of the Organisation of American States adopted Protocol to the American Convention on Human Rights to abolish the death penalty.

However this protocol only calls for restriction of use rather than erasure. The African Charter does not mention the death penalty. However in 1999 the African Commission on Human and Peoples' Rights adopted a moratorium on the death penalty. Very few states have observed the moratorium.

Crucial to these human rights instrument is the provision in most that prohibits subjection to inhuman or degrading treatment, (European Convention on Human Rights Article 3, American Convention on Human Rights Article 5, African Charter Article 5, ICCPR Article 7).

Various court judgements from these regions have expanded on what "inhuman and or degrading treatment" is to attack most methods and process of execution.

In Soering v UK the European Court of Human Rights ruled that the death row phenomenon in the US constituted inhuman and or degrading treatment fouling Article 3 ECHR. The same judgement was found in Zimbabwe by the Supreme Court in Catholic Commission of Justice and Peace v Attorney General and others 1993.

Other judgements have centred on the methods of execution. The UN Human Rights Committee ruled the use of gas chambers constituted cruel, inhuman treatment in Ng v Canada. It found also public executions incompatible with human dignity.

What are the merits or demerits of the death penalty? Most Muslim states argue that their Islamic laws and religion allows executions for various offences.

The Islamic Council adopted a Universal Declaration of Rights which guaranteed the right to life but also provides for the death penalty under authority of the law under article 1(a). Some Christians also argue that the Bible prescribes executions as just. Jesus Christ was crucified on the cross apparently for being blasphemous. Leviticus 24:17-21 says "he who kills a man shall be put to death". Genesis 9:6 reads: "Whoever sheds blood of man; by man shall his blood be shed."

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