Death penalty is not a means to an end

Thulani Ndlovu
“YOU’VE set Samson free but what about justice? They deserve to die too. We’ve lost our own in a painful way. We’ll never see him again!” said Maria Mpofu to the prosecutor outside the Bulawayo High Court after the alleged killers of her husband, Ben, had been acquitted of murder due to lack of evidence.

The crime was heinous. Ben was stoned to death, a method associated with pre-mediaeval times. His body was struck six times in the next fusillade, a stone splinter pierced his eye. A witness said a lanky man had shouted that he found the perfect rock and the others should stand aside. The crowd obeyed and watched helplessly as he took careful aim, whirled his arm, and launched his missile with ugly force. It flashed across the 15 yards separating the men from their target and sped accurately as intended, striking the man in the face.

Ben’s murder was an imperturbably cold case of mob justice. Though the details surrounding his death are sketchy, the little information available suggests that Ben was accused of stock theft. His killers, if found, will be arrested, convicted and face the death penalty.

If media reports are anything to go by, Bulawayo and surrounding areas have seen an unprecedented upsurge of murder, robbery and rape cases. There has been an increase in the pleas for the abolishment of the death penalty from many sectors of society. This chorus is however not uniform.

“The sooner my husband’s killers meet their god, satan, the sooner justice is served. He (Ben) was killed in a cruel, inhumane way and undoubtedly his killers deserve the same fate,” said Maria, her eyes masked in tears and visibly distressed.

It’s been two years since Ben was killed.

“My family will never find closure. His killers should be apprehended and killed in the same violent way for me to find closure, relief or a sense of justice. What do I say to Ben’s son? He asks about his dad every day and I still don’t have answers,” said Maria as she welled up.

She clutched onto her sister’s hand. Words escape her; she mumbles and becomes cryptic as the Oracle at Delphi. At that moment, Maria’s sister intervenes and helps her to her feet, before she leads her to a round grass hut meticulously painted in expressive bright colours. As the sun pokes furtively through thick cumulonimbus clouds, relatives and friends gather to slaughter a goat in a ceremony to remember Ben.

In this part of Fort Rixon, few, if any people have moved on. Scores of people still thirst for justice. The family is still trying to come to terms with the grim loss of one of their own. A majority of them feel killing Ben’s murderers will bring them closure. Few can understand the anguish that families and close friends of murder victims bear or how they find ways to cope and make it to the next day. Some take the unnerving step to air their private agonies and speak for the dead by calling for the death penalty to be imposed on perpetrators of the atrocious crime of murder.

But is the death penalty a panacea to rid our society of murderers, robbers and other inhumanely grim crimes?

Sitting in an office cluttered with prison-made furniture, prominent Bulawayo lawyer Dumisani Dube plots his next strategy of defending one of his many pro-deo clients who face the death penalty if convicted of murder in the High Court’s oak panelled chambers. Dube fervently said he believes in justice, but was quick to point out that justice can be an elusive term with different meanings to dissimilar people.

“It’s often said that the death penalty is needed to give closure to the families who have lost their loved ones. My hope is that no mother is forced to endure the loss of a child to violent crime,” said Dube.

“It’s common to hear people say society has always used punishment to discourage would-be criminals from unlawful action and since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty.

“They also believe that if murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life. The reality is that the majority of killings occur in the heat of the moment. That is crimes of passion or of rage. Some perpetrators plead that their murderous action are knee-jerk responses,” he said.

Said Dube: “A lifelong prison term with no option of amnesty or parole will serve the same function of deterring gruesome crimes or even better. Factual evidence also shows that countries which practise capital punishment have higher crime rates than countries which do not carry judicial executions.”

According to experts, on average, countries that do not have the death penalty have lower crime rates. South Africa abolished the death penalty in 1995 while Mexico abolished it in 2005. Both countries have seen a steady increase of violent crimes caused by gang violence and cash heist. On closer inspection, it becomes clear that the causes of murder in those societies are embedded in social standing. There is a direct correlation between poverty and criminality. Those living in poverty have a much greater chance of committing violent crimes. The death penalty is not a means to an end.

Crime is clearly an important problem that must be confronted. Society needs to address the underlying causes of violent crimes such as poverty, patriarchy, abuse of licit and illicit drugs. Communities should be roped in to assist authorities in the fight against all forms of crime. The eye-for-an-eye concept goes against the rich African legal system. The African justice system emphasises reconciling families and society with some form of compensation through a negotiated settlement.

Dube said the death penalty is seen as revenge.

“For me, that’s not the standard of a mature society. Why is it that when people steal from us we don’t steal from them? Revenge is not a sufficient justification for invoking a system of capital punishment, with all its accompanying problems and risks. Our laws and criminal justice system should lead us to higher principles that demonstrate a complete respect for life, even the life of a murderer. I therefore support the abolishment of the death penalty and rather suggest sentences of life without parole,” he said.

Another lawyer who spoke on condition of anonymity said the risk of executing the innocent is high and there is a deeper disillusionment among people that the death penalty reduces violent crimes. He said a majority of those accused of murder are from poor and poverty stricken areas which makes it hard for them to hire skilled legal practitioners.

“The majority of those that face the death penalty are represented on a pro-deo basis. The case is imposed on the lawyer and a majority of lawyers are reluctant to exhaust their resources for no fee,” said the lawyer.

“The High Court walls invoke the fear of God on the accused persons. Most lawyers hurriedly advise their pro-deo clients to confess and promise the accused person that the judge will be lenient on him as he would have saved the court’s time. In reality, the lawyer wants to dispense his pro-deo case as soon as possible in order to attend to cases that will put money into his pocket.”

People calling for the abolishment of the death penalty allege that our judicial system is not infallible and it is fraught with many challenges.

“Despite the best intentions, we can’t be right 100 percent of the time. The risk of executing an innocent person is not limited to cases of incompetence or corruption. Despite their best efforts, human beings are imperfect. In a capital case, even one small mistake can be deadly.

“Contrary to popular belief, the appeals process is not designed to catch cases of innocence. It is simply to determine whether or not the original trial was conducted properly. Most exonerations come only because of the extraordinary efforts of people working outside the system — pro-deo lawyers and family members who pooled their resources together to challenge the state’s prosecutorial machinery,” said Adam Sibindi, executive director of Save Zimbabwe Coalition, a non-profit organisation that specialises in rehabilitating and re-integrating offenders into society. According to Minister of Justice, Legal and Parliamentary Affairs Emmerson Mnangagwa, Zimbabwe has 97 death row inmates. The country has not carried out any executions since 2004, in part because there was no hangman.

The Supreme Court of Appeal (SCA) sitting in Bulawayo has so far upheld 15 murder sentences passed by the High Court. The former highest court in the land granted clemency to one accused, commuting his death sentence to 15 years in prison. In its last sitting, those arraigned for crimes of murder before the SCA were represented on a pro-deo basis. The SCA will be in Bulawayo in about two weeks, for the last time during this year’s court calendar. As is the norm, it is expected that the majority of their case load will be those of murder. While debate for the support or abolishment of the death penalty rages on, there is a need to work in unison with state institutions to eradicate the scourge of violent crimes including white collar ones.