Last week, on World Day Against the Death Penalty, there was a new attempt to build a religious and civil coalition for Zimbabwe to move from an unofficial administrative moratorium on executions to replacing the death penalty with non-lethal sentences.
Basically 20 years ago Zimbabwe stopped routine executions under the strict system already then in place, which required automatic appeal and a final Cabinet decision, and 16 years ago there was a single execution, for a murderer who had killed a prison officer as he escaped, a special circumstance.
But since then no warrants of execution have been signed and no one has been hanged although the courts have continued to pass the death sentence and confirm the sentence on appeal since judges are bound to uphold the law, regardless of what personal views they may have.
Legal amendments after independence removed the death penalty from a wide range of crimes, some capital offences dating back into the depths of Roman Dutch law and a whole swathe of crimes deemed capital offences by the settler regimes as they battled, totally unsuccessfully, to block the nationalist and liberation movements, basically by hanging a lot of political prisoners.
Between 1980 and 2001 just 76 people were hanged, all for what any rational person would regard as aggravated murder with the July 2005 execution for an ultimate aggravated murder. In all cases a proper procedure was followed that was deemed by legal experts as a way of ensuring that a wrongly convicted person could not be hanged.
The High Court trial, where every defendant had to be defended by a competent lawyer and was forbidden to plead guilty, saw the sentence imposed. The appeal to the Supreme Court was automatic. The judges had to prepare, in addition to the public judgment, a confidential report for the Executive that highlighted just how close the accused had been to a finding of extenuation. The Cabinet then made the final decision.
The reason for the final Cabinet decision, rather than just a ministerial decision as it had been in the past, was that a growing number of ministers were opposed to the death penalty. Zimbabwe was never “rope-happy”.
In 2013 the legal process of abolishing the death penalty started. The new Constitution that came into force limited the death penalty solely to aggravated murder committed by a man between 18 and 70. Final remnants of potential execution for other crimes were abolished and women were exempted even for the most despicable murder.
During the consultations on the Constitution there had been a strong lobby to abolish capital punishment altogether, but groups of conservative people wanted it retained and the final agreement was about as far as they were prepared to go, where they drew their line in the sand. But it is now eight years later.
What has been happening since 2001, with just that one 2005 exception, is that every now and again the President, again on Cabinet advice, had exercised the prerogative of mercy to reduce the death sentences to life imprisonment, an administrative decision. More recently many lifers, including those whose sentences were commuted from death, have been released after 20 years behind bars. That, with the one-third of a jail sentence remitted for good behaviour as a standard practice, would be equivalent to a 30-year term. Older people may have got out a bit sooner under other provisions of the amnesty proclamations.
Our political leadership is opposed to the death penalty. President Mnangagwa, who himself had to sit on death row as a young man after taking up arms in the liberation war, has carried his detestation of the penalty through his political career. In public forums, from the moment when as Vice President he also assumed the portfolio of Justice, Legal and Parliamentary Affairs, he made it clear that he would not as the responsible minister even ask the Cabinet to make a decision on signing a warrant.
On practical matters, with his amnesty proclamations, he seems to believe that a very long jail term for a killer is the correct sentence. When you murder someone you lose the better part of your adult life. No one would disagree. It is a terrible crime and the punishment must fit.
Interestingly, the leader of the opposition, Senator Douglas Mwonzora, is also on record as opposing the death penalty. And last week traditional leaders came out against the death penalty at the seminar, saying it was never part of customary law which was far keener on recompense than on retribution, the beggaring of the killer’s family rather than the death of the killer being seen as a major and effective deterrent.
This sort of meeting of minds opens the door to Parliament taking action. There are two approaches. One is to recognise that the Constitution does not lay down that the death penalty must be imposed, only that Parliament can impose it only for aggravated murder by adult men under 70. The present law can thus be changed. But the potential agreement among all three groups of Parliamentarians, the two major political parties and the traditional leaders, appears to even allow a constitutional amendment.
One reason why some want to retain the penalty is pure revenge. That is ignoble and can be ignored. The second is that it is seen as a deterrent. However our Zimbabwean experience since 2001, once we adjust for population size and the growing percentage of adults in that population, suggests that this is not the case.
What does deter is the near certainty of arrest, and even in the most straightened times the police have been finding the resources to track down and arrest killers. We have very few unsolved murders indeed. Along with that certainty there must be a long sentence, a very long sentence. The combination of arrest and the best part of your life behind bars does work.
It should be possible for us to use the experience gained in some other countries where the standard sentence is life imprisonment, but the judge can lay down the minimum that must be served before parole, which means supervised release on something close to standard bail conditions, can be considered. And sometimes there is no minimum set, the judge wants a whole life sentence which means you stay inside until you die of old age. The worst killers get this.
It should not be difficult for our legal experts to start considering the possible legal amendments required that can transform the administrative decisions made over the last 20 years into formal law that can be used by the courts and give experienced judges, and it will still require the trial judge and the three appeal judges, the flexibility they need to ensure that a killer is suitably punished, that the crime is deterred, and that a dangerous person is kept out of circulation, three critical factors that must be considered. But it can also offer the possibility of redemption.