Zim Death Row Inmates Fight Capital Punishment

By Professor Matodzi

Harare, October 20, 2015 – More than 10 Zimbabwean prisoners on
death-row and others serving life imprisonment terms are banking on
the Constitutional Court for relief after they petitioned the
country’s apex court seeking an order to set aside their death
sentences.
The Constitutional Court will on Wednesday and early next week preside
over and make a determination on applications filed by 18 prisoners
challenging the harsh prison sentences.
On Wednesday, the Constitutional Court will first hear two cases, one
on the constitutionality of the death penalty and the other one on the
constitutionality of “whole life” imprisonment.
On Wednesday next week, the apex court will hear another case on the
death penalty.
In the first case, the two applicants whose challenge was initiated by
Veritas, a local rights monitoring group, were convicted in separate
cases of murder and sentenced to death in July 2002 and May 2012
respectively, before the new Constitution came into operation. The
applicants argue that although they were lawfully sentenced to death,
the penalty cannot now be carried out because the provisions of the
Criminal Procedure and Evidence Act (CPEA) which authorize the
imposition and carrying out of the death penalty, are completely
inconsistent with Section 48 of the new Constitution and hence they
are therefore invalid by virtue of Section 2 of the Constitution.
The applicants also argue that the provisions of the CPEA under which
they were tried and sentenced, are now invalid and therefore their
sentences must therefore be commuted to life imprisonment.
In the second case, which will be heard on Wednesday, the applicant
who was convicted of murdering his girlfriend in 1995 and was
sentenced to life imprisonment and who has currently served just over
20 years in prison, argues that the sentence imposed on him is
unconstitutional.
In his court challenge, the applicant argued that under the CPEA and
the Prisons Act, prisoners serving sentences of life imprisonment are
not entitled to be considered for parole or early release and must
serve “whole life” sentences and they are released from prison only by
death.
This, the applicant argued, violates Section 51 of the new
Constitution, which guarantees human dignity, and Section 53, which
protects against cruel, inhuman or degrading punishment.
Giving prisoners no hope of release, however good their behaviour in
prison and however much they may have reformed, robs them of hope and
crushes their dignity, argues the prisoner who claims that he should
be considered for parole.
Next Wednesday, the Constitutional Court will have a busy day when it
hears a case brought by 15 prisoners who have been on death-row for
varying periods of up to 20 years.
The prisoners who have been in detention awaiting execution want the
court to issue an order to the effect that their death sentences be
commuted to life imprisonment because Section 53 of the Constitution
protects everyone, including convicted prisoners, against torture or
cruel, inhuman or degrading punishment.
The 15 applicants argue that the long periods they have spent in
prison awaiting execution, never knowing from one day to the next when
they would be hanged [because death-row prisoners are not told in
advance of the date and time of their execution] amounts to torture or
to cruel, inhuman or degrading punishment.
The prisoners argue that they cannot now be executed.
The court challenges are certain to bring the spotlight on
Vice-President and Justice, Legal and Parliamentary Affairs Minister,
Emmerson Mnangagwa, who in recent years has thrown his weight behind
the anti-death penalty campaign and pledged to push for the abolition
of the capital punishment.
Mnangagwa, who is a death penalty survivor, has undertaken to “speak
against the death penalty” even though Zimbabwe’s new constitution,
adopted two years ago, upholds the death penalty.
According to Amnesty International Zimbabwe, the troubled southern
African country has 95 prisoners on death row. A total of 10 prisoners
were sentenced to death in 2014 pushing the number of inmates on death
sentence to 95 as authorities resorted to capital punishment to combat
crime.