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The docket of the Constitutional Court is growing fast as more and more questions, which were once decided in Parliament or in society at large, are now going to the highest court of the land. The latest is the difficult question of the death penalty. Until the passage of the new Constitution this was mandatory in murder cases where the trial court could not find, as a question of fact, that there were extenuating circumstances.
The judge, in passing sentence, had no discretion; once the court established certain facts it had to pass the sentence set by Parliament. The new Constitution took a different course. Only adult men can be sentenced to death and the judge has the discretion over sentence, with the death penalty just an option for aggravated murder, not a compulsory sentence.
A number of questions now come to the fore. First there are people in prison under sentence of death whose sentence was passed under the old law, because the crime took place before the new Constitution came into effect.
Should these people have the right to at least a new hearing over sentence? Generally, the law forbids changes to apply to the past, both in the sense that people cannot be convicted of a crime that was not defined when they committed it and cannot appeal if the crime was later abolished. But when there is a potential life or death issue that could perhaps be different.
The court will further have to consider if the death penalty, although permitted under certain circumstances, can ever be applied constitutionally. This will be an interesting decision.
The Constitutional Court will also be asked to address the sentence of life imprisonment without any possibility of parole. This decision is possibly even more critical.
There are many in Zimbabwe who would welcome the abolition of the death penalty and more who would at least acquiesce in its abolition. But we suspect a majority of those enthusiastic or grudging abolitionists would also want to see a full life sentence as at least an option in the worst murder cases.
We will no longer kill killers, but they will have forfeited their right to return to society. But it can be argued that removing any reward for reform is also cruel. The precise balance of rights of individuals and the rights of society are probably best set by a group of senior judges.
But this must not mean society and its Parliament have to abdicate their own responsibilities. The Constitutional Court can only set the boundaries. How we operate within those boundaries is a legislative decision, not a judicial decision and Parliament should have the courage to debate difficult issues and be a leader as well as a follower of public opinion.
Before anyone is hanged in Zimbabwe the Cabinet has to approve the execution. It has been clear for many years that a majority of the Cabinet are simply not prepared to vote in favour of a hanging.
We suspect this extends to the majority of Parliament and on this issue the rejection of the death penalty is one of those non-party issues. So Parliament needs to abolish the death penalty as an option, but in light of conviction and public opinion allow judges in certain cases to impose a full-life sentence.
That will be tested before the Constitutional Court, of course, but if the court decides that there must be some possibility of parole under people’s constitutional rights then it must be willing to give precise guidelines over the criteria that could be applied in granting parole, and in that case Parliament would be able to go to the constitutional limit when amending the law to effect the judgment.
What we are arguing is that while our Constitutional Court has a critical role to play, it should not be the only source of change. It would be far better if it, in its developing docket, carefully set boundaries and explained in some detail why the boundaries were set. Then the real source of change must be the people, through their elected representatives who, respecting the boundaries, decide how they want their laws to work.
Online Reporter