Sundaymail Editor
Vimbai Nyemba
AT independence, Zimbabwe inherited a criminal sentencing regime that had the death penalty as one of the permissible sentences for offenders convicted of various offences, including murder.
Subsequent to the attainment of independence in April 1980, the first major milestone towards abolishing the death penalty was brought about by the Constitution of Zimbabwe in 2013, which effectively abolished capital punishment as a permissible sentence in all offences, save for murder committed in aggravating circumstances.
Significantly, women offenders, offenders under the age of 21 and those above the age of 70 were all exempt from the death penalty.
Another major signal of Government’s serious intention to bring about the abolition of the death penalty came about on April 13, 2021, when President Mnangagwa ordered, through Clemency Order No. 1 of 2021, among other things, the commutation to life imprisonment of the death sentences of all prisoners who had been on death row for at least eight years.
Fast-forward to 2024, the Death Penalty Abolition Act was enacted on December 31, 2024 by the Parliament and the President of Zimbabwe, effectively abolishing capital punishment as a permissible sentence for murder committed in aggravating circumstances.
The Act has both prospective and retrospective application, meaning that no court can sentence to death a person convicted of murder after December 31, 2024, and the sentences of all prisoners who, before December 31, 2024, were under sentence of death have been annulled.
The latter category of offenders will be brought before the High Court to be sentenced afresh for the offence for which the death sentence was imposed on them.
Resentencing
It must be noted that Section 8(2) of the Death Penalty Abolition Act mandates “the Minister of Justice, the Prosecutor-General and the Commissioner-General of Zimbabwe Prisons and Correctional Service (ZPCS) to do everything within their respective competences to ensure that, as soon as practicable after the 31 December 2024, every prisoner under sentence of death is brought before the High Court to be sentenced afresh . . .”
To this end, on February 5, 2025, in my capacity as Permanent Secretary for the ministry responsible for justice, I convened a meeting of all the key stakeholders, including the Judicial Service Commission (JSC) to map the way forward regarding the implementation of the Death Penalty Abolition Act.
The meeting resolved that as a first step, the ZPCS was to provide detailed information on all prisoners under sentence of death to enable the JSC to retrieve the court record of proceedings of each and every such inmate.
By February 7, 2025, ZPCS delivered the required information.
JSC being the custodian of the relevant court records of proceedings, using the information provided, has so far located and retrieved 44 of the 48 records.
What I can say without going into too much detail is that the next step will be for the JSC and the NPA (National Prosecuting Authority) to co-ordinate for purposes of bringing the offenders before the High Court for purposes of sentencing them afresh.
It is important to note that each case will be determined on its own merits and the judge seized with the matter has the discretion to impose what he or she will consider to be an appropriate sentence, taking into account various factors, some of which are provided in the Death Penalty Abolition Act.
The only sentence the judge cannot impose is the now-defunct death penalty.
The process of resentencing the erstwhile prisoners under sentence of death is multi-faceted, involving the judge, prosecution and assigned defence counsel reading through the full record of proceedings to enable each of the them to be adequately informed for the pre-sentencing hearing which precedes the actual sentencing.
So, the matter is receiving utmost attention.
As already alluded to, there are 48 prisoners under sentence of death.
Significance
Apart from joining the majority of nations of the civilised world which have done away with the death penalty, it must also be acknowledged that it was never a part of our Zimbabwean culture to kill someone on account of having committed a murder — so, in a sense, we are reclaiming our cultural beliefs.
Additionally, it is also my view that as adherents of human rights and Christianity, we are simply practising that which we hold dear. Remember, even the scriptures teach us that an eye for an eye is antediluvian.
The significance of resentencing prisoners under sentence of death is a recognition that each case has its own unique circumstances and it, therefore, follows that you cannot take a one-size-fits-all approach.
This is why the law in Section 8(4) of the Act provides a non-exhaustive list of circumstances that a judge must consider in arriving at an appropriate sentence.
It provides that —
(4) The High Court shall impose upon a prisoner brought before it in terms of subsection (2) whatever sentence, other than the death sentence, the court considers appropriate, taking into account all relevant circumstances including —
(a) the nature and circumstances of the offence; and
(b) the personal circumstances of the prisoner; and
(c) the interests of society; and
(d) the length of time the prisoner has been under sentence of death, and the treatment accorded to him or her during that time; and
(e) the likelihood of the prisoner committing further offences.
Mrs Vimbai Nyemba is the Permanent Secretary for Justice, Legal and Parliamentary Affairs. She was responding to questions from The Sunday Mail‘s Tanyaradzwa Rusike.
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