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Zvamaida Murwira-Senior Reporter

After an effective moratorium on executions for more than 18 years, Zimbabwe now intends to permanently abolish the death penalty and replace it with a maximum sentence of life imprisonment with the Death Penalty Abolition Bill gazetted yesterday.

The Bill does not just want to block future sentences of death, but proposes that all those now on death row must be brought before the High Court for re-sentencing. 

While life imprisonment might be the maximum, the High Court will have discretion for sentence as it has in other crimes, and will be able to take into account all the factors in aggravation and mitigation. 

Once re-sentenced, the same convicts will have the right to appeal to the Supreme Court should they be aggrieved with the new sentence, if the Bill becomes law.

Since 2013, the Constitution protects the right to life, but states that a law may permit a court, in limited circumstances, to impose the death penalty on men convicted of aggravated murder. 

The critical concept was that it left the passing of such a law to Parliament, and Parliament was not required to pass such a law permitting the death penalty. This removed the mandatory death sentence for murder.

The new Bill now wants Parliament to exercise that constitutional discretion afresh by not permitting courts to pass such a sentence on anyone, a power Parliament already possesses so no Constitutional amendment is needed.

“Section 48 is permissive, and its effect is that Zimbabwean law does not have to provide for the death penalty, even for murder. The penalty has not in fact been carried out in Zimbabwe for more than 15 years. This Bill will accordingly abolish the death penalty in Zimbabwe,” reads the memorandum for the Bill.

Clause One and Two of the Bill prohibits courts from imposing a death penalty and when the Supreme Court hears an appeal against capital punishment emanating from the High Court, it is obliged to replace it with another sentence.

The critical clause is clause two. “Notwithstanding any other law no court shall impose sentence of death upon a person for any offence, whenever committed, but instead shall impose whatever other competent sentence is appropriate in the circumstances of the case; the Supreme Court shall not confirm a sentence of death imposed upon an appellant, whenever that sentence may have been imposed, but instead shall substitute whatever other competent sentence is appropriate in the circumstances of the case; no sentence of death, whenever imposed, shall be carried out.”

Clause Three will amend the Criminal Procedure and Evidence Act by deleting references to the death penalty and repealing sections that set out how the penalty is to be imposed and carried out.

Clause Four will remove a reference to the death penalty from section Four of the Genocide Act, which allows it to be imposed for the crime of genocide.

“Since the section allows the death penalty to be imposed even for conduct that does not amount to murder committed in aggravating circumstances, it is unconstitutional. For that reason alone the section needs to be repealed,” reads the Bill.

Clause Five will remove references to the death penalty from all sections of the Criminal Law Code. The effect of the clause is that the maximum penalty for murder will be imprisonment for life.

Clause six will remove a reference to the death penalty from section Three of the Geneva Conventions Act, which allows the penalty to be imposed for grave breaches of the Conventions, even if they do not involve murder.

Clause Seven provide for the re-sentencing of prisoners who are under sentence of death and awaiting execution.

These prisoners will be brought before the High Court for re-sentencing, and the court will have power to impose any appropriate sentence on them, taking into account all the circumstances including the nature of the crimes they committed, the length of time they have been in prison awaiting execution, their health and the likelihood of their committing further crimes.

“The prisoners will be entitled, if they so wish, to appeal to the Supreme Court against their new sentences and to apply to the President for clemency under section 112 of the Constitution,” reads the Bill.

“The Minister of Justice, Legal and Parliamentary Affairs, the Prosecutor General and the Commissioner-General of the Prisons and Correctional Service must as soon as the Bill becomes law bring all under sentence of death to the High Court for fresh sentencing, and those prisoners will be entitled to legal representation provided by the State if they cannot afford their own lawyer, exactly as is the position now in murder trials.

 A prisoner is allowed to appeal in all respects including to the President so that the Head of State and Government can exercise the power of mercy conferred on him in terms of section 112 of the Constitution.

Zimbabwe as an independent nation was wary of the death penalty from the beginning and the multitude of colonial laws with hanging clauses were quickly dumped or replaced, and even the option of a death penalty for some ordinary crimes, although never applied, as removed, leaving a death sentence only for murder without extenuating circumstances.

Hanging required a positive decision by a Cabinet majority under the 1980 Constitution, and it became apparent during the 1990s that there was a growing abhorrence of implementing that sentence. This saw the growing number of Presidential clemency orders substituting sentences of life imprisonment, a procedure that has now been routine for a long time.

Zimbabwe when the Bill becomes law will join the majority of countries that have abolished the death penalty.

Meanwhile, Clerk of Parliament, Mr Kennedy Chokuda has gazetted the Finance Bill and Appropriation Bill.

The two Bills seeks to give legal effect to the various fiscal measures announced by Finance, Economic Development and Investment Promotion Minister, Professor Mthuli Ncube during his 2024 national Budget presentation.