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Sharon Hofisi Legal Letters
I was confused – I mean absolutely confused – when I came across the question, “When is death?” I have been at the bar for some time, and my training is to ask people questions.

I have been asking people several questions in the courtroom. Even at law school, on our pathway to the bar with my friends, learned colleagues at the legal bar, asking legal questions was our passion.

As a lawyer, I understand the distinction between question marks and rhetorical questions. Even simple rhetoric. This is not like Amos the prophet asking rhetorically, “Do two walk together unless they are in agreement? Does a lion roar when there is no prey?”

There are some questions which I want to ask the accuser of my client on our way to the courtroom. There are questions which I feel like asking the accuser during cross-examination. There are questions which I actually ask the accuser. But the best questions are the questions that I ask myself after the accuser has left the witness box.

Such questions give me the answers which assist me to mount a defence for my client. To sound philosophical, the question that confused me had to be answered in some way. Who will know that there is death unless he or she has tasted the beauty of life?

Or has seen someone facing the inevitability of death? The law then comes in the picture and tries to answer the question for us.

The definition of death involves many aspects: molecular, subcellular, cellular, organ, system, corporeal, mental and spiritual aspects are involved (Vere, 1979:9). I will not attempt to define it in any simple way.

From a value-based system, the Constitution of Zimbabwe protects the right to life.

Put simply, the sanctity of the right to life is protected by the supreme law of our land.

The Constitution even envisages a situation where there is a law that even protects the right of unborn babies.

Because the supreme law protects the right to life, this article argues that the normative framework in the Constitution allows one to mount serious challenges on the legality or otherwise of morally diverse issues such as abortion, assisted suicide and mercy killing.

The present article aims at discussing some viewpoints on “mercy killing”, as understood by some sections of the Zimbabwean society.

An argument may be put thus: Showing mercy can be an inborn thing for every human being. Man strives to control death. The human conscience strives to come to terms with the effects of death.

Seeing a sibling, parent, friend, neighbour or confidante on the death bed creates a lot of emotions. The law does not allow us to “stop the pain”. It’s murder. The gravamen of the offence of murder include intention; framed in the mind – a troubled mind.

Man is a tripartite being in some religious circles.

He has a spirit that has a soul and lives in a body. Most faith groups believe that body minus the spirit equals to death. Death is an enemy for many, and her companions are bad weather, floods, beasts, disease and crime.

Two streams of mercy killing were observed by this writer when he did some media monitoring.

Sickness has been one of the motivating factors that has caused some people to devise gruesome methods of death control, it is no understatement that HIV and Aids have ravaged mankind and we have also been affected by their effects in one way or another.

The other stream, again understood from gleaning through newspaper articles, relates to animals.

About 630 animals have been euthanised for various reasons ranging from the economic downturn to general concern for the welfare pets – which must not walk aimlessly on the streets. They may be run over by cars or may be abused in some cruel way. This article will not make analysis of this stream in the present article.

Using the first stream, emotions are usually at play. Family members usually know that a certain family member could be sick in some way. We are affected because of his or her situation. We love them. We all love to hear them tell us confidently that “Love is a powerful word”.

We have been told that “stigma is worse than HIV and Aids”. We sometimes want to show our relative that “we understand how they feel”. We avoid reminding each other of the terrible effects of sickness. We hope that we will celebrate life together for a long time.

“Do you understand how I feel mukoma?” This is a question that sends us to some soul-searching exercises. We learn from such questions that whenever we exaggerate situations, we lose. Whenever we underestimate situations, we lose. If we are luckily empowered, we are told that we have to empathise with our sick brother or sister, this needs some basic counselling.

The first stream takes me to what I was reading in some local newspaper which carried a story that was entitled, “HIV+ brother mercy killing: He kills the brother to ‘stop the pain’”. The deceased was born with the disease but was yet to fall ill. His brother used a knife to cut off his throat. Surprisingly, he had told one of his parents of his intentions.

I am no medical doctor, but I have read somewhere that most of the cells which line the gut live for only one or two days. Because they are continually renewed, the tract remains alive. It then contributes to the total life of the person whose gut it is.

If much of the tract died because of corrosive poison, a person might linger on “alive” for a few days, and hypertension and metabolic changes may take his life away. The person might become permanently unresponsive, mentally dead, despite persistence of heart beat and breathing.

And relatives feel like they need to end the suffering by having the medical doctor inject their sick relative with a lethal pill. In the twinkling of the eye – they strongly believe that they will still love their departed relative. They strongly believe that he was not necessarily “alive” – only that two systems – cardiovascular and respiratory – still functioned.

Using our Zimbabwean society, which is largely conservative, we may moralise the argument: “Hama haipuwi munhu (You cannot give away or wish away your relative, worse still through death)”.

Add the legal definition to this puzzle and you understand that pulse and breathing are unequivocal signs of life. In our reported example, death did not come with medical science or some graded process though.

Shockingly, it came by way of a seemingly cruel way of redefining family life. The killer brother felt like he had to respond to others simply because human death is “all other states of organisation or disorganisation”.

But we may pause here and argue that the brother had not yet fallen ill. He wasn’t bedridden. He had not shown that he was wasting away in any way. The brother who wanted to “stop the pain”, did not share his intentions with the deceased.

This is why the brother who “stopped the pain” was arrested and as reported, “was assisting the police with investigations”. He had even shown that he came back to his senses after committing the act judging from his conduct after the act.

I read that immediately after the act, the commission of that heinous, shocking or “stopping the pain” act – put it in any way -he went on to hide his knife a kilometre away from the scene of the crime. He then fled the scene, leaving his brother in a pool of blood. We can as well describe him as having become a fugitive of justice.

The results were unbearable. The deceased, still in his teens, died an excruciating death. A family and village tragedy! A sibling murder! All because the sibling was “tired” of seeing his brother taking antiretroviral drugs. On the fateful day, the two went to sleep: the “killer” in a family hut, and the deceased outside the family hut – because of hot weather.

The newspaper report shows us another problem of accepting “stopping the pain” as a new form of mercy killing. The perpetrator did not suffer from any mental illness. Even the history of mental illness. This was not cerebral murder.

The “stopping the pain” was deliberate, not requested, and saw the deceased being subjected from some cruel end of his life.

Inasmuch as it may be argued that we have variegated beliefs on controlling death, this is one case which calls for a sound theory of right action.

We have heard from philosophers that the heart has reasons which reason (the mind) has not. We have been told that the mind sees from a distance because it analyses. The import from such statements is that humans must strive to go for the good.

We are called not to abuse violence. Put differently, it is true that man finds it difficult to end violence. But he appreciates that it is very easy for him to choose end their misuse of violence. The deceased could have been an affable character. Violence took its toll. A life was ended prematurely, all in the name of “mercy”.

Even in some indigenous language systems, death represents “false death”, kufanhema.

We are socialised to believe this. Even some faiths describe our departed ones as “falling asleep”.

In this moment of “fake death”, a brother lost a life. Properly, he was arrested for murder.

The story shows that we really need to understand the legal definition and a few aspects on legal methods of killing for mercy. The practical method for death control, which is increasingly considered, is “voluntary euthanasia” (literally death without suffering).

Vere (1979: 7) describes it both in its traditional usage as a “way to make death easy”, and in its modern usage as “death induced in order to terminate suffering in incurable diseases”.

The justifications are plenty: recovery is impossible, and there is mutual benefit on the part of the sufferer and the euthanasiast.

For one to escape criminal punishment, they have to get legal permission to practise it.

Arguments have also been made that euthanasia must be made compulsory, and must be allowed for non-fatal but disabling disorders and prolonged illnesses.

Three main arguments in favour of euthanasia are that: (1) it protects and promotes the freedom of the individual to choose death, (ii) compassion protects the assumed “right to die”, and there is family progress.

The first two arguments are complex. Hypothetically, if one is given the right to life, he must also be allowed to have a “right to die”, which according to Vere (ibid), means the right to have one’s life ended in certain circumstances.

This has now been broadened to include much more the assumed right to be allowed to die from natural causes.

The proponents of this view include Russell (1977) as cited in Vere (ibid). Using our arguments in my last article, the law is again used to regulate human choices. This is notwithstanding various attempts by humans to legitimise their arguments on euthanasia.

Using the first pillar on “stopping the pain” shown above, one has to look at Zimbabwean law. Mercy killing is not allowed. Doctors are not even allowed to perform euthanasia.

Our Constitution protects the right to life. The Criminal Law (Codification and Reform) Act criminalises acts of intentional killing as murder.

Those who kill negligently would have committed the offence known as culpable homicide. Those who want to terminate their pregnancy can only do so under the circumstances that are listed in the Termination of Pregnancy Act.

• Sharon Hofisi is a lawyer and writes in his personal capacity.