Is death penalty still relevant in today’s world

The Supreme Court, in confirming the ultimate punishment on Fungai Mpofu of Inyathi, Vusumuzi Nyoni of Lupane, Ophias Moyo also from Lupane, Jabulani Nkomo of Siganda, Inyathi and Mhlupeki Ngwenya of Umguza, ruled that their appeals were devoid of merit. It also held that the trial courts were correct in concluding that there were no extenuating circumstances in their cases.

Of all the cases that were heard at the Supreme Court in the city, only Elson Munsaka had his appeal upheld and the death sentence set aside. His case was remitted back to the trial court so that an inquiry into his correct age when he committed the offence is made before proper sentence is passed. It appears that Munsaka was 17 years old when he committed the murder. Zimbabwean law says anyone below 18 years cannot be sentenced to death.

Basically all the murders that the Supreme Court dealt with in Bulawayo were wicked and remeditated. A good number of them revolved around love. Others were committed during robbery or after rape.

For instance, Nyoni murdered his lover Kwanele Ndlovu in April 2006 using an axe and a log. In another case, Mpofu, who was once married to Lizzie Mtambo (25) accosted and fatally assaulted her some time in January 2008 after she turned down his new love proposal.

In November 2002, Mandla Dube of Siganda had a dispute with Jabulani Nkomo’s wife whom he accused of backbiting. Dube sought an audience with Nkomo’s wife over the matter. This infuriated Nkomo who beat up Dube. Dube ran away and sought refuge at Tela Cephas Ncube’s homestead. Armed with two spears, Nkomo gave chase and caught up with Dube at Ncube’s home. Ncube tried to quell the fight but ended up in the grave when, in anger, Nkomo speared him on the left side of the chest. He collapsed and died. The High Court found Nkomo guilty of murder and gave him the ultimate punishment. The highest court heard appeals in both cases, but confirmed the sentences.

In yet another hideous and carefully planned murder, not heard at the Supreme Court, Colgate Daffen Mudenda of Binga used a knife to slit the throat of his neighbour, Innocent Mudimba, in a ritual murder in May last year. The High Court convicted Mudenda and sentenced him to death.

In September last year, High Court judge Justice Nicholas Mathonsi sentenced Benjamin Dzika of Gweru to death by hanging twice after finding him guilty of two counts of murder and one of attempted murder. By sentencing Dzika to death by hanging “twice”, the judge handed down a tough, landmark judgment, rarely made, but one that demonstrates the court’s commitment to punish a cold-bloodied criminal in a way that is commensurate with his double murder and an attempt to commit a third.

It is clear that the sampled crimes were premeditated and savage — Mudenda slitting the throat of his adult neighbour to collect human blood and Dzika burgling two homes, hiding in there for some time, before clobbering Robert Henry Vaughn and Raymond Peter Van Rensberg to death in separate incidents. Dzika, who later stole from his victims, committed the crimes within 12 days of each other.

It is a debate that is as old as life and death but do we still need the death penalty in a world that is generally moving away from it? Yes and no.

Yes because some crimes are so beastly that they can best be punished by a retributive sentence like the death penalty. No because some crimes might be savage but you don’t correct a wrong by another; an eye for an eye makes the whole world blind, as Indian icon, Mahatma Gandhi, once said.

But just how else (apart from capital punishment) can a law-abiding society such as ours punish a man like Mudenda who willfully agrees to a verbal contract to kill today, thinks it over overnight and proceeds to actually carry out the murder tomorrow, collecting blood into a plastic bag and accepting $700 payment thereafter? How can the same society punish a man like Dzika who murders two people within such a short period of time, steals from them and tries to kill a third?

Zimbabwe is among 57 so-called retentionist countries that have the death penalty in their statues. Many criminals have been condemned, but the country has, in recent years reportedly not performed any executions.

Section 12 (1) of the Constitution of Zimbabwe which deals with protection of the right to life reads:

“No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted.”

This is the section of the supreme law that permits capital punishment, only on criminal offences. It is one of the contentious clauses as the country goes about writing a new onstitution.

According to Amnesty International, an organisation that campaigns against capital punishment, the United States, Iraq, Saudi Arabia, China and Iran topped the list of states with the highest number of executions worldwide last year. At least 18 750 people remained under death sentence at the end of last year and at least 680 people were executed worldwide in 2011, excluding China.

“The death penalty is the ultimate denial of human rights,” says Amnesty International.

“It is the premeditated and cold-blooded killing of a human being by the State. This cruel, inhuman and degrading punishment is done in the name of justice. It violates the right to life as proclaimed in the Universal Declaration of Human Rights. Amnesty International opposes the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.”

Some people believe that the ultimate sentence is a necessary evil and must be reserved for premeditated murderers like Dzika. In many countries however, the punishment contravenes constitutional guarantees to the right to life and human dignity. This is the case with Zimbabwe, according to Section 12 (1) of the Constitution.

In China, capital crimes include corruption, drug-trafficking and forcing someone to donate an organ. In Iran, like most of the Islamic world, executions can be done in public and one can get the sentence if convicted of murder and other crimes. In Saudi Arabia, a conviction for crimes like sorcery is punishable by death. Iraqi courts can condemn a criminal to death for crimes like kidnapping, rape and murder and other violent crimes. In that country, courts can decide to give the ultimate punishment after trials lasting just a few minutes. America is the only country in the G8, a grouping of leading global economies to carry out executions in 2011.

South Africa is among the 141 abolitionist countries. In a landmark 1995 judgment in the case of the State against Makwanyane, that country’s Constitutional Court ruled: “The carrying out of the death sentence destroys life, which is protected without reservation under section 9 of our Constitution (the South African Constitution), it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable . . . I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment.”

Having said this, I remember the fear that Edmund Masendeke, Elias Chauke and Stephen Chidhumo unleashed on Zimbabwe in the 1990s. The trio is arguably the most dangerous criminal gang Zimbabwe has ever had.

They committed an array of unspeakable crimes ranging from ordinary theft, murder, rape, to armed robbery. In 1995 they had the nerve to escape from Chikurubi Maximum Prison although they were later re-arrested.

How do you punish criminals like the notorious trio, which commit heinous crimes, are sent to jail, but escape to continue with worse crimes? It is a tough question, but vengeance is not the best punishment (if there is anything like “best punishment”). By sanctioning deaths of those who transgress, and executing them, does our society not lose its humanness as well and reduce itself to the level of the same criminals that it condemns? Life sentence or multiple life sentences perhaps?

The ongoing constitution-making exercise in Zimbabwe presented opponents of the death penalty with an opportunity to campaign for its exclusion from the new supreme law. Copac heard their views, but only partially. Its draft proposes to remove the death penalty on all crimes and people aged below 21 and above 70 years but retain it on aggravated murder. Strangely though, the draft seeks to maintain capital punishment on men only, not on women. This provision has been roundly condemned for failing the gender equality test.

Section 4.5 of the draft reads, “(1) Every person has the right to life. (2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and-

(a) The penalty may be carried out only in accordance with a final judgment of a competent court;

(b) The penalty must not be imposed on a person:

(i) Who was less than 21 years old when the offence was committed; or

(ii) Who is more than 70 years old;

It is difficult to understand why Copac included a gender dimension to what must be a straightforward clause because aggravated murder is aggravated murder regardless of the sex of the offender. While the minimum age threshold seems high, Copac, to some extent rightly presumed that a person who is below 21 years is not in a mature state of mind to be held responsible for murder and be executed for that. Copac was also right to spare 70-year-olds the gallows because time will soon take them anyway.

It is true that fewer women than men are on death row and that fewer women commit the more brutal crimes, but there is no need for the constitution to assume that women are incapable of committing them. A crime follows the person who commits it. “Mhosva haiende pamuti” as one Pengaudzoke song goes.