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THE release of several groups of prisoners earlier than they ever hoped, although all must have served at least some of their sentence behind bars and some a lot of years, is reasonable and rational as well as merciful, but highlights the need for our next judicial and prison reform: probation.
A large part of the reason for the latest exercise in Presidential clemency, with the consent of Cabinet, was to decongest our prisons which, apart from a handful of prison farms, were all built in colonial times when populations were a lot lower.
Democratic rights did cut back the number of people imprisoned, since we now all can vote and so long as we do not call for violence, can express our views freely. The introduction of community service removed a lot of people guilty of lower level crime where a fine would have been too lenient.
But all these changes still leave a hard residue of criminals who really do need to be taken out of circulation and confined, even if the stress these days is to try and rehabilitate them.
A lot of the debate on prison is for lengthening sentences for particular crimes, those of extreme violence like rape and robbery, and those where people are severely hurt for profit, like drug dealing. And keeping the corrupt inside a bit longer would probably find public support.
The result of the community service option for lower level non-violent crime plus the pressure for longer sentences for the most violent and dangerous obviously increases the percentage of prisoners inside for longer periods and the percentage of prisoners serving sentences for the worst sort of crimes.
Spending a lot of taxpayers’ money on building new high-security or medium-security prisons might be briefly popular, but we need to realise that this diverts money that should be spent on schools, hospitals and the like rather than on keeping people behind bars. So there are practical reasons for the periodic declarations of sentence reduction.
It needs to be stressed that having your sentence reduced is not a pardon. The criminal conviction remains on the record, along with any suspended portions of a sentence, and if after you are released you re-offend, the suspended portion is applied, along with a longer sentence since you did not learn from your last spell in prison.
There are also the effects of that criminal record, such as thieves finding it harder to find jobs where they are trusted with money, and those jailed for sexual offences finding it basically impossible to be employed in a variety of jobs, especially those involving children.
The latest clemency action is selective. Those who benefited from a previous amnesty and re-offended do not get a second chance, for example, and while some violent criminals can benefit, they have to have spent at least three quarters of their effective sentence behind bars rather than the one third that a sneaky thief can get away with.
Other violent people do not even get that amount of clemency. The old, the youths and some women are given a bit more mercy. Quite correctly, since they are either too old to re-offend, are young enough to be allowed a second chance, or belong to a group with exceptionally low levels of re-offending.
Zimbabwe is not alone in facing the problems of potential prison overcrowding, and facing a general desire to allow those who are non-violent and who are highly likely to behave once they are outside to be allowed to go home a bit earlier. This is why probation is a growing option in many jurisdictions and one that Zimbabwe now needs to think about adopting.
Under a probation system, a prisoner who has served a set portion of their effective jail sentence can be released early, once their behaviour, their co-operation and the level of rehabilitation they have reached are considered.
But such a prisoner does not get a free release; they remain on the books and have to report to their probation officer at regular intervals, have to keep authorities posted on any change of address and how they earn a living, and sometimes even need permission to move.
If they commit any sort of offence while still serving their probation, back they go to prison to serve the rest of their sentence. This has all the advantages of the Zimbabwe clemency orders, but still allows those released early to be monitored and guided.
While Zimbabwean prisons are not medieval dungeons, the accommodation and diet are fairly basic, healthy, but lacking all possible luxury. That combines with the actual confinement, never being able to take a walk or nip out for a drink, and then having to live and work continuously within a community of criminals. So most people on release are fairly determined not to go back.
Prisoners tend to behave. As in many other countries, you can get out a bit earlier if you do. In Zimbabwe this is one third of your sentence that is automatically remitted if you never threaten, never get into a fight, never bully, obey the rules and generally co-operate. That is a major incentive to behave properly.
But there are still variations in behaviour, there are still records of past behaviour on release, and several other factors where the “one size fits all” of a clemency order can be inappropriate.
Depending on how a probation system would operate, it is likely that many of those going home now with the latest one, especially with its multiple categories of prisoners, would have still gone home if we had probation, but some would remain inside and even the most reformed would still be checking in with the authorities to make sure they trod the straight and narrow on release.
The clemency order also tackles another area where legal change is now necessary, the death penalty and its alternatives.
The order commutes all death penalties imposed more than 10 years ago to life imprisonment, a fairly regular housecleaning, and allows lifers to go home after a minimum of 20 years; with that one-third remission this is the equivalent of at least a 30 year sentence.
We have had no executions for almost 20 years now and there is certainly no reason to suppose that any Cabinet would now agree to a hanging, and it is a Cabinet decision to hang.
Amending the Criminal Procedure and Evidence Act to impose life imprisonment for murder would effectively abolish the death penalty entirely, since it is only allowed for men committing aggravated murder.
We would still then need to allow judges’ discretion. In many jurisdictions, a judge imposing life imprisonment can also rule when probation can be considered, if the prisoner deserves that break, say after 15 years, or 20 years, or 30 years, depending on the case.
And in some cases, the worst murders, there is the whole life sentence; you die in jail. The 20 years minimum of the clemency order is fairly typical of most countries for most murderers and the most violent robbers and rapists, where probation is common with those serving life sentences, but without that post-release monitoring that you get with probation.
So while in practice, with clemency orders and with that de facto moratorium on executions, we are in the front line of modern penology, we now need to sit down with experts, judges and the like and start to create a permanent system that takes into account all factors and which we can entrench into our legal and prison systems.
Online Reporter