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Martin Stobart
THE Minister of Justice, Legal and Parliamentary Affairs, Cde Emmerson Mnangagwa recently said Zimbabwe could soon do away with the death penalty. “I believe that our justice system must rid itself of this odious and obnoxious provision,” said Minister Mnangagwa, renewing the old debate on whether it is appropriate for the country to retain or abolish capital punishment.
Personally, I think supporting the scrapping of the death penalty smacks of passion and sentimentality towards and in sympathy with what I would term common murderers, callous persons who terminate other people’s lives for the mere pleasure of sexual gratification (the commission of rape) and for robbery. We have heard stories of people who rape, rob and kill women.
As a staunch advocate of the retention of the death sentence in our statutes I would underscore the term justice as an imperative operative: the courts of law dispense justice as per the national statutes and in accordance with the gravity of the crime/offence.
Many people in society, many organisations as well as some presiding magistrates and judges talk about sentences that have a deterrent effect on society or on would-be criminals. Deterrence or a deterrent sentence has nothing to do with justice.
Philosopher Immanuel Kant puts it succinctly when he articulates the principle of equality. When justice is adhered to and applied in the courts purely on the basis of equality the “scale of justice is made to incline no more to the one side than to the other.”
In fact, justice should be retaliative or retaliatory and it should contain both quantity and quality; for bereft of these, it is not justice.
A person who is born today will not be deterred by the hanging or garrotting of another some 20 years ago. In truth a criminally-inclined person cares little about the consequence of his crime. It has been said by some profilers and other human rights advocates and activists that “innocent” people have been hanged because the courts have erred in their judgments. This writer elects not to deny this claim so that he might proffer a juxtapositional analysis in line with the imperatives of justice. In cases of this kind as in many other cases there is always collateral “damage.”
We know for certain that worldwide there are more murderers and rapists who have gone scot-free either by acquittal or they have not been apprehended by the police in the first place. However, the innocent who have been hanged are one in a million worldwide.
Yes, the discontinuation of the death penalty is in vogue in many countries of the world. This is not surprising. Humanity, this writer observes, seems to want to fail collectively. Not a single country wants to share its success with another. The abolition of the death penalty has nothing to do with civilisation. Instead, it has to do with abject failure to protect society from common incorrigible murderers. We should not glorify premeditated murder by being insensitively passionate in favour of common murderers while conveniently ignoring the physical, spiritual and mental and emotional trauma and suffering that is endured by the bereaved for the entire duration of one’s life. When one’s loved one is no more at the hands of a murderer, when a family’s bread winner has been murdered, are we being human and humane when we narrate the “agony” of a killer who is on death row.
These murderers do not know what we are talking about. Hence I am saying that the abolition of the death sentence is an admission of failure by the world community to put an end to the crime of premeditated murder. This failure should be owned up to and not located in trendy linguistic apparel. Nor should we emulate other countries which have rid themselves of the punishment we are discussing. We should not emulate other countries nor should we look at the crime of murder through the prism of the Sadc countries or through the magnified lenses of the US.
Each and every country of the world has its own set of circumstances that is peculiar to itself and which influence the manner in which it deals with the laws affecting its citizens in respect of all criminal acts and civil offences. If Zimbabwe as a nation should decide to abolish the death sentence and expunge it from the national statutes, then let that decision be predicated upon collective consensus and not on bodies such as Copac or that body which usurped its authority and mandate and subverted the will of the people when it inserted into the draft the threshold of 21 years and a horizon of 70 years in respect of the death penalty. The crime of murder, as is common cause, affects the “common” people due to their vulnerability by virtue of their socio-economic circumstances. It is they whose collective voice should be heard and upheld. This is what is termed justice.
I am wholly in favour of retaliatory justice as expounded by Kant: “….. The best equaliser of punishment and crime in the form of public justice is death.”
Can we ask for a mere explicatory definition? The State has a sacrosanct duty to protect communities as segments of society. Therefore, “If you kill another (with constructive intent, let us emphasise) you kill yourself; if you `slander another you slander yourself; and if you steal from another you steal from yourself.”
This is the essence of justice. We should not indulge in romanticism. Society, broadly speaking, must always extend commiseration to the bereaved by its utterances in public and by the application of the laws relating to such human killings as we are discussing.
South Africa does not need the death penalty. Yes, and so what? This penal code became redundant from the start. According to some statistics there is a murder every three minutes in South Africa. This makes this kind of punishment ineffectual. Crime has overwhelmed society in South Africa. The role of the police, in general, is merely token and symbolic. This is unlike in our peaceful Zimbabwe where a murder in Mutare or Beitbridge causes revulsion countrywide. We therefore should retain the death penalty as it is serving its useful purpose, that of protecting society from those who nurture a propensity to commit murder.
The message we got from the public during the constitutional outreach programme was clear – the death sentence must remain in force. Premeditated murder in some countries is a way of life or even second nature. It is not in Zimbabwe.
Online Reporter