Zimpapers Logo

Fidelis Munyoro Chief Court Reporter
Two death-row prisoners have launched a legal assault on the validity of the death penalty, arguing that it is not in conformity with the new constitutional dispensation. In a lawsuit filed in the Constitutional Court recently, the two — Farai Lawerence Ndlovu and Wisdom Gochera listed Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa and Prosecutor-General Mr Johannes Tomana as respondents.

They are seeking to scrap from the statutes Sections 47 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) and Sections 337 and 338 of the Criminal Procedure and Evidence Act (Chapter 9:07).

The duo argue that the sections are not in conformity with the Constitution and should be declared unconstitutional.

They also want an order for all prisoners on death row awaiting execution in the country to have their sentences commuted to life in light of the provisions of Section 48 of the new Constitution.

Prominent lawyer Mr Tendai Biti is representing the duo in the case that draws fresh attention to the ongoing argument over whether the penalty should be used in Zimbabwe at a time when most developing countries have abandoned it.

Ndlovu has been on the death row for three years, while Gochera has cloaked 13 years at Chikurubi Maximum Security Prison awaiting execution.

Under the new law the penalty of murder can only be imposed where murder has been committed in aggravating circumstances,among other things.

Neither the Code nor the Criminal Procedure and Evidence Act makes any reference to aggravated circumstances.

Ndlovu, in his affidavit submitted to the apex court in the land, stated that the new Constitution that came into force on May 22 2013, provided for the right to life under Section 48.

“It, however, allowed derogation of the right to life through a law that may be passed imposing the death penalty,” he stated.

“Neither section 47 of the code nor section 337 and 338 of the criminal procedure and evidence act…are in conformity with the constitution in particular section 48 of the Constitution of Zimbabwe.”

He further stated that although the two were convicted and sentenced in terms of the old law under an old Constitution, they were entitled to the benefit of the current supreme law.

“I contend that we cannot be executed now in light of the provisions of the new law and more importantly in light of the fact that the law envisaged under section 48 (2) of the Constitution has not been passed,” he said.

He argued that the question of sentence and the carrying out of any sentence was a matter of procedure governed by the existing law.

Gochera also filed his supporting affidavit. Ndlovu and Wellington Kadzira were in 2012 convicted for the murder of Michael Sunderland and Geoffrey Andrew Povey.

Kadzira has since died in prison.

The trial court heard that the two told the deceased pair that there was a gold rush near Kwekwe River and got into the back of the deceased’s vehicle.

They put cyanide poison into water bottles that were at the back of the vehicle, resulting in the death of Sunderland and Povey after they drunk the poisoned water.

Gochera was convicted of murder with actual intent by the High Court in 2002 for murdering South Africa’s Spoornet International Railway executive secretary in September 2001.

Both Ndlovu’s and Gochera’s automatic appeals were dismissed, leaving them with one last option, to plead for Presidential parole.