Daniel Nemukuyu Senior Reporter
The High Court cannot impose the death penalty on murderers in Zimbabwe until the legislature enacts a law spelling out the circumstances under which one can be hanged, Justice Charles Hungwe has said.
The landmark ruling spared Jonathan Mutsinze of the Jerusalem Church of Marondera the hangman’s noose for killing a policeman and a security guard in the course of an armed robbery.
Justice Hungwe said there was no law defining “aggravated circumstances,” a condition for one to be hanged.
In the absence of the Act, Justice Hungwe said, the courts cannot impose capital punishment.
He said life imprisonment was appropriate in Mutsinze’s case.
Justice Hungwe ruled that the new Constitution under Section 48(2) stated that death penalty could only be imposed on a person who commits murder under “aggravated circumstances” but there was no Act defining the aggravated circumstances or setting out the conditions under which capital punishment can be imposed.
Justice Hungwe said before the introduction of the new Constitution, the death penalty would be imposed after the court found no extenuating circumstances and the extenuating circumstances were well-defined.
“Section 48 of the new Constitution brings in a new legal terrain, which recognises everyone’s right to life including prisoners.
“Section 48 (2) of the Constitution permits death penalty to be imposed on a person convicted of murder committed with aggravated circumstances and that the law must allow the court a discretion on whether or not to impose the penalty.
“In my view what the Constitution has done is to unfetter the exercise of the discretion which was previously fettered under Section 337 of the Criminal Procedure and Evidence Act.
“The omission of reference to extenuating circumstances and the introduction of aggravated circumstances, in my view, must be interpreted to mean that what is envisaged in an Act of Parliament, will define the term (aggravated circumstances) or set out conditions on which the court will impose death penalty,” he said.
“Alternatively, and in any event, the absence of the definition of the term or what constitutes aggravated circumstances, must mean that they were to be defined in the envisaged law.”
Justice Hungwe interpreted the situation to mean that Zimbabwe was moving away from the death penalty.
“I interpret the legal position to be that in keeping with its international obligations and best practices, Zimbabwe intends to move away from death penalty,” he said.
Justice Hungwe’s ruling confirms an argument by prominent Harare lawyer Advocate Thabani Mpofu in a separate case in which the National Prosecuting Authority was seeking an order barring the High Court from imposing the death penalty on Zimbabwean murder suspects extradited from countries that do not recognise death sentence.
Countries like South Africa are holding on to murder suspects for fear they will be executed when extradited to Zimbabwe.
When Adv Mpofu was asked to give his own analysis of the law as a friend of the court, he said while the old Constitution specifically made provisions for the death penalty, the new order left that decision to the legislature.
Mutsinze, who had been in remand prison for 10 years awaiting sentence, was finally sentenced after the Constitutional Court dismissed his application for stay of prosecution.
He was convicted of murder with actual intent, which usually attracts the death penalty, but the loophole saved him and he was slapped with a life sentence.