dyton mupawaenda
Zimbabwe has not hanged anyone since 2005, with what has now become almost routine Presidential clemency orders commuting the small batches of death sentences imposed by the courts to ones of life imprisonment.
This effective moratorium on executions has last more than 17 years and combined with the work of the police to track down and arrest almost all killers along with the long effective sentences that murderers still have to serve, has kept the murder rate per million people at roughly the same low level, so the move away from hanging has not opened the doors to more killings.
In the first 25 years of independence, until that last execution in 2005, Zimbabwe performed just 79 hangings, an average of just over three a year, and all were for murder. This was hardly hanging running wild, and compared to colonial rule in general and the last couple of decades in particular, as a minute figure.
During the last few years of that first quarter century of independence the rate of commutations to life imprisonment was rising and executions had reached the stage where only the most heinous killers went to the gallows.
During that period the large number of security offences that the settler regime had introduced that carried the death penalty, sometimes a mandatory death penalty, were scrapped as soon after independence as possible while the death penalty was removed as an option for ordinary law offences, such as robbery and rape, although the penalty was never imposed for these crimes.
By 2013 the attitudes of society had sufficiently changed that during the debate on the new Constitution, that Parliament could only pass a law concerning the death penalty that would see the sentence imposed on men who committed aggravated murder when aged between 18 and 70.
Before then the death penalty was automatic for murder when there were no extenuating circumstances; now it became optional and only for a particular group of murders.
The possibility of a constitutional ban on the death penalty was discussed in the consultations and while there was growing support for the notion, there was not yet majority opinion in favour.
The argument was that we were to a degree reducing ourselves to the level of the murderer, by hanging murderers, especially when we had the option of removing them from society with very long terms of imprisonment.
The Government appeared to be in advance of the general views in the society of the general population, probably because of the actual steps the Government itself had to take over an execution.
Zimbabwe required a lot of steps before anyone was hanged. For a start the accused had to be legally represented, something retained in the Abolition of Death Penalty Bill since the person can still be locked up for life.
The prosecution had to prove the case. Guilty pleas were not accepted, and even a free confession had to be solidly backed by supporting evidence.
On conviction and imposition of a death sentence there was automatic appeal to the Supreme Court, again with legal representation, free if necessary.
The trial judge and the president of the appeal bench then had to write confidential reports, and these went to Cabinet with the rest of the file. A majority of the Cabinet had to approve the execution before the Justice Minister could sign the execution warrant.
Having to consider each warrant obviously made Government leaders think very hard. It was known that as executive Prime Minister and executive President, Cde Robert Mugabe was generally opposed to the death penalty, and President Mnangagwa, when he was responsible Justice Ministry, made it clear that his opposition was total.
He had escaped hanging by a hair’s breadth in his formative years and had to sit in a maximum security prison listening to fellow prisoners being taken to the gallows.
The Abolition of Death Penalty Bill now going to Parliament does not require a constitutional amendment, which might well require a referendum, because the relevant clause simply gives Parliament an option of passing legislation to allow a death penalty for adult men under the age of 70 convicted of aggravated murder.
Parliament has the option, and the new Bill simply asks Parliament not to exercise that option.
The question arises, of course, as to what sentence is appropriate. The Bill gives the option of life imprisonment, but even here there can be shades of meaning in most jurisdictions. In some a “lifer” can be paroled or released after as little as 15 years behind bars.
In the last few clemency orders from President Mnangagwa, and as the exercise of the prerogative of mercy requires Cabinet consent this means he has been backed by his Ministers, a pattern has emerged of releasing prisoners serving life imprisonment, including those who death sentences were commuted, after a minimum of 20 years actual incarceration.
It can be slightly less for old people, but even they have to spend a long time in jail.
With the standard one third of any sentence knocked off for good behaviour this corresponds to a judge-imposed sentence of 30 years, a very long term in anyone’s language.
The Bill does not lay down any sentencing guidelines, although all those who are under sentence of death at present must be returned to court for a prison sentence to be assessed.
Sentencing guidelines are likely to come from the Judicial Service Commission, as they have come for other crimes, and here High Court judges can be given guidance on how to set a sentence for murder and aggravated murder.
The effective 30-years set in the more recent Presidential clemency orders does not seem a bad starting point.
That could be raised or lowered depending of the actual circumstances of the deliberate killing.
Many countries, after abolishing the death penalty, came up against the practical point that parole and other clemency issues could see life-prisoners released after a long jail term, but not dying in jail.
All of them, for the most heinous killings, thought a judge, confirmed on appeal, needed an option for what was called a “whole life” sentence, or a sentence of “life without parole”.
The judge could also set a minimum term before a parole board could entertain an application, such as no parole before 20 years or 30 years or even longer. The sentencing guideline would need to include this sort of thing.
It seems difficult to imagine that any legislator will oppose the Bill, but there still needs to be debate. Most African countries have now abolished the death penalty, or have been practising a moratorium for some years.
So Zimbabwe is not out of kilter, rather we are converting into our law the practice we have been following for 17 years and joining the ever growing group of nations that have abolished the death penalty formally.
Online Reporter