Daniel Nemukuyu Senior Court Reporter
At least 16 death row inmates, who have spent between four and 18 years awaiting their fate, have challenged their pending execution on the basis that the current legal framework does not allow anyone to be hanged.
The prisoners also argue that they have overstayed on death row, a situation they say is a violation of their constitutional rights.
Fourteen of the inmates want the court to remove them from death row and commute their sentences to life imprisonment.
Two of them, on separate cases, have challenging the death penalty on the basis that Zimbabwe does not have an Act of Parliament stipulating how capital punishment may be implemented in terms of the new supreme law.
The duo’s argument is premised on Section 48 of the Constitution that guarantees everyone’s right to life.
Section 48 (1) and (2) of the Constitution, according to the prisoners’ lawyer Mr Tendai Biti of Biti Law Chambers, states that a law shall be put in place to specify the circumstances under which one may be sentenced to death.
The Section reads:
(1)Every person has the right to life.
(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and:
(a)The law must permit the court a discretion whether or not to impose the penalty;
(b)The penalty may be carried out only in accordance with a final judgment of a competent court;
(c)The penalty must not be imposed on a person;
(i)Who was less than twenty-one years old when the offence was committed; or
(ii)Who is more than seventy years old;
(d)The penalty must not be imposed or carried out on a woman; and;
(e)The person sentenced must have a right to seek pardon or commutation of the penalty from the President.”
The Minister of Justice, Legal and Parliamentary Affairs and the Attorney General of Zimbabwe are cited as respondents in the Constitutional cases.
One of the prisoners, Emmanuel Dolosi, in his founding affidavit argued that in the absence of an Act of Parliament regulating death penalty, no one should be sent to the gallows.
“It is my respectful contention that the law envisaged in Section 48 (2), which is the law that may permit the death penalty to be imposed, has not yet been passed by Parliament,” he said.
“Because that law has not yet been enacted, it is my respectful contention that at the present moment in Zimbabwe, there is no law that provides for capital punishment and, therefore, sentencing me to death, as was done by Justice Mwayera, was wrong.
“Put in simple terms, until the law envisaged in Section 48 (2) of the Constitution of Zimbabwe is enacted by Parliament, no one can be executed in Zimbabwe.
“That being so, it is my respectful contention that my right to life was infringed by the High Court of Zimbabwe which sentenced me to the penalty of death when the law envisaged in Section 48 of the Constitution of Zimbabwe has not been passed.”
The 14 prisoners want capital punishment imposed on them in their different cases to be quashed on the basis of the time they have spent waiting to be executed.
“As the above schedule will show, the majority of us the applicants have been incarcerated for periods that range from six years to 20 years and we have been on death row for periods that range from four years to 18 years,” they argued.
“It is our respectful contention that subjecting us to such a lengthy period on death row results in permanent stress, constant fear, resulting in extreme physical, psychological and emotional harm.
“Our contention in this matter is that we are entitled to the right to human dignity protected by Section 51 of the Constitution of Zimbabwe. In addition, we are entitled to protection from torture or cruel inhuman or degrading treatment or punishment,” they said.
“We contend that subjecting us to lengthy periods of imprisonment amounts to a breach of our right to human dignity and our right not to be subjected to physical or psychological torture or to cruel inhuman or degrading treatment or punishment.”
The 14 argued that life imprisonment would be appropriate under the circumstances.
“That being so, because of the torture we have been subjected to whilst waiting for a long time on death row, it will be unconstitutional to execute us and, therefore, our sentence should now be commuted to that of life imprisonment,” argued the prisoners.
The 16 were convicted of murder cases committed in different places and periods and they were all sentenced to death by the High Court.
The Supreme Court confirmed the penalties, but no executions have been carried.
At least 74 prisoners are on death row in Zimbabwe and for more than 12 years no one has been executed.