EDITORIAL COMMENT : Death penalty can be replaced by life in jail

The death penalty in Zimbabwe has now been reopened for public debate as the Ministry of Justice, Legal and Parliamentary Affairs, backed by the Centre for Legal Research and the Swiss Embassy, has started a grassroots consultation within communities.

There have been no executions for 18 years in Zimbabwe as we effectively apply a moratorium, and in any case Zimbabwe, unlike colonial Rhodesia, has never had a hanging culture, with the death penalty only carried out in the 1980s and 1990s for the worst killers, and even the 2005 hanging of two men who killed a prison guard as they broke out of jail was a blip in what was becoming an informal moratorium.

So if we restored implementation of death penalties it would be a major change to our present practice, and that would require a lot of thought.

It would also require in the end a willingness of a majority of Cabinet to be willing to approve every execution, since the signing of an execution warrant is a Cabinet decision. And that follows a detailed process. The killer is tried in the High Court, and must have a defence lawyer, even if they cannot afford one. Appeals are automatic, and the Supreme Court must confirm both conviction and sentence.

The High Court judge and the three appeal judges have to submit special confidential reports. So we do not take it lightly.

In the first grassroots consultations there was support for maintaining the death penalty, and ending what even women saw was reverse discrimination by our constitutional clause that allows the death penalty to be applied only to adult male killers involved in aggravated murder.

There was also support for abolishing the penalty altogether, and a small minority arguing to extend the range of crimes where it can be applied. Those wishing to maintain the death sentence for murder were not seeking revenge, or even appropriate punishment, but argued that murder needed to be deterred by all means available, which at least is a rational argument.

However, research and findings in multiple jurisdictions where the death penalty has been abolished or where there is a formal or informal moratorium suggests that the critical deterrent is adequate police resources so that killers are caught, preferably a near certainty that they will be caught, and that followed by a harsh sentence.

Long, very long, jail terms appear to do the job of deterrence as well as death penalties. But the important point is catching the killers.

The CID Homicide unit does do this well in Zimbabwe. There are very few unsolved murders in Zimbabwe and the major problem is that some killers manage to leave the country before being tracked down and arrested, and that is a problem regardless of sentence.

Fortunately our neighbours are helpful and are more than willing to grab any Zimbabwean wanted for murder back home and to deport them, under armed guard.

But we still need to ensure that CID Homicide does have adequate manpower and resources if we wish their excellent arrest record to be the deterrent it has been for so long.

We can see in some other crimes how low arrest percentages can allow some crimes to flourish. This is one reason, for example, why our crime rate for illegal drugs is growing fast and why the present blitz, concentrating on dealers and smugglers rather than users, should produce results, but it needs to be continuous and it needs the required resources.

There are several problems with executing killers. First, despite all the precautions in the legal system, the possibility remains that an innocent person will be convicted. It is not probable, but the possibility exists, and if we have hanged the wrongly convicted person then we cannot offer any redress.

The second problem is that it reduces us, as a nation and a society, to the level of a murderer, that killing someone solves a problem. It does not, and we need to make that clear.

That said, we need not be too tender-hearted over sentencing. We are already seeing in trials of women killers in serious circumstances sentences of 30 years, with the judges saying that these killers have lost their right to be in society. We agree.

One advantage of switching sentencing from the death penalty to long terms of imprisonment is that sentences can be tailored.

You start with life imprisonment, that is the killer goes to jail and does not come out unless, if you are very merciful, just for the last couple of months of their life as they die of cancer or some other fatal illness.

Many countries have probation systems, that is a criminal can be released earlier if a probation board is satisfied that they have reformed, do realise the severe wrong they have done and have behaved well behind bars and are exceptionally unlikely to re-offend.

In Zimbabwe, we do a bit of this by knocking off one third of the effective sentence for well-behaved prisoners who co-operate with those trying to rehabilitate them. It is a serious incentive.

But for the worst killers, judges usually have an option to ensure that there is no probation, no early release. This is called a whole-life sentence, or life imprisonment without any possibility of parole.

Even in other cases, the judge can state that no probation can be considered by some future probation board for say 25 or 30 or even 40 years. Sometimes second sentences, such as for robbery, are added so someone may be inside for many more years.

Extending the range of crimes that can lead to a death sentence seems a total regression of what Zimbabwe has been doing after inheriting the colonial hanging book of laws, chopping them away. We do not need to go back to that era. While we recognise, and understand, those who want to retain death sentences for murder as a deterrent, we think there are better ways, ensuring that killers are caught, are brought to court and that the evidence is gathered that will convict them if the right person is caught.

Then a long sentence, preferably life imprisonment but with the judge being able to recommend the minimum time that must be served behind bars before any future probation system can operate.

Killers have lost their right to live in society, but we can keep them out of society without going down that terrible tunnel to their argument that killing someone is a solution.