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Phyllis Kachere Deputy News Editor (Convergence)

For 11 years following his death sentence and confirmation by the High Court and the Supreme Court in Zimbabwe in 2009, Chivhu-born Leo Matibe (39) was confined to a single cell for 23 hours every day.

The remaining hour was dedicated to daily morning and evening 30-minute exercise time at Harare Central Prison.

Locked in his prison single cell for 23 hours a day with only his conscience for company and the prison wardens, during the few minutes they brought him his meals, Matibe had no contact with the outside world.

As a condemned to death prisoner, he had no idea when he would meet his fate as that information was never shared with such inmates.

Any foot-steps shuffling in the prison corridor would bring shivers to his whole body and sweat would break out.

What if the footsteps belonged to the hangman on his way to take him to the gallows?

“My fear would be heightened each time there was a reflection of light from the direction of the gallows’ room lights,” said Matibe, a former tout and police officer who turned armed robber and murderer.

“That could be a preparation for someone’s hanging. That someone could be me or any of my fellow condemned prisoners.

“For 11 years, I lived with this torture. Never knowing when I would be hanged as prescribed by the sentence I received after I killed South African citizen Martinus Jacobus Oosthuyse during an armed robbery turned carjacking.”

Matibe said when he left Harare to go to Bulawayo in 2006, he associated with a gang of two “tried and tested” criminals, terrorising the community, robbing and committing a spate of murders.

“Several times we escaped, even attending the funerals of those we would have murdered,” he said.

Matibe had his death sentence commuted to life imprisonment in 2020 upon which he was moved to Chikurubi Maximum Security Prison.

The Zimbabwe Prisons and Correctional Service officer-in-charge at Chikurubi Maximum Security Prison Chief Superintendent Moses Gukurume said they had 82 inmates, whose death sentences were commuted to life.

“We are also housing four death row inmates who are in transit to start the process of having the sentences commuted to life,” he said. “Removing the death penalty gives the prisoners a second chance to life. It also gives a chance to the work that we do as correctional officers to rehabilitate the prisoners.”

In an interview, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi said: “His Excellency President Mnangagwa, has reiterated that Zimbabwe should abolish the death penalty and as the Ministry of Justice, Legal and Parliamentary Affairs, we are in full support of that position. However, our hands are tied as this issue is a matter to be decided by the people of Zimbabwe.

“Notwithstanding our position as Government on this emotive issue, we believe that the decision to abolish the death penalty should come from the general public, one which we should not impose on them as Government.

“The reason I state this is due to how it was engraved in our Constitution. The current position in the Constitution reflects a compromise agreement between the parties to the Constitution making process, which has largely been viewed as a tremendous starting point towards the total abolition of the death penalty.”

Minister Ziyambi said the process of coming up with the Constitution as an activity included public consultations and a referendum where an overwhelming majority of people voted for retaining the death penalty.

“Resultantly, section 48 (2) of the Constitution permits the sentencing of men between the ages of 21 and 70 years if they are convicted of murder committed in aggravating circumstances,” he said.

“Therefore, the sentence cannot be carried out on women and male persons who are under the age of 21 and over the age of 70 years.

“We believe that the 2013 Constitution ushered in an era in Zimbabwe which has helped highlight the question of the death penalty and has encouraged to sway public perception to move toward the inevitable abolishment of the death penalty in law and practice.”

President Mnangagwa is the leading light in the campaign against the death penalty, having been charged with treason back in 1965 and sentenced to hang only to escape the gallows on account of his young age.

A lawyer with parliamentary and legal watch dog, Veritas, Ms Kuzivakwashe Ngodza told participants to a media sensitisation workshop on World Day Against Death Penalty on October 10: “The waiting period between the date of sentence and date of execution contributes to psychological decline of a person’s health.

“This results in mental distress of anticipating execution. The harsh death row living conditions contribute to physical deterioration. The method of execution causes exceptional pain and anguish not only to the prisoner, but to the family and friends.”

“The death penalty in Zimbabwe can only be abolished through an amendment of the Constitution following a referendum,” he said. “Therefore, the motion to amend Section 48 (2) can reasonably be triggered by the representative of the people in the National Assembly.

“Therefore, a petition from the general public to the National Assembly might be sufficient to trigger the process, taking into account the resources available to conduct the exercise.”

Senior lawyer Mr Brian Crozier told participants that periodically, the President of Zimbabwe amnesties prisoners, commuting death sentences to life imprisonment.

“But the courts continue sentencing people to death, so the death row always fills up and conditions remain appalling,” he said.

“Death penalty is the killing of a person for committing a crime. It is also called capital punishment or the death sentence. In Zimbabwe, the law says it must be carried out by hanging the person by the neck until he is dead.

“Section 339(2) of the Criminal Procedure and Evidence Act says that persons sentenced to death must be hanged by the neck until they are dead, they must be strangled to death.”

Mr Crozier said the last person to be hanged in Zimbabwe was in July 2005 and since then, the murder rate has not decreased significantly, showing that the death penalty did not deter crime.

“Prisoners awaiting execution are kept on death row and are kept in solitary confinement,” he said. “They are not told when they will be hanged — they are in constant suspense. They lose touch with relatives and become just numbers, non-persons.”

Out of the 195 United Nations Member States, only 55 (28 percent) keep the death penalty in practice. In Africa’s 54 States, only 15 (28 percent) carry out executions.

“Out of the 16 SADC Member States, only one carries out executions,” said Mr Crozier. “The UN General Assembly has resolved six times that Member States should suspend all executions pending abolition.

“The African Commission on Human and People’s Rights (ACHPR) has called for the death penalty to be abolished and the UN Secretary General Antonio Guterres has said that the death penalty has no place in the 21st century.”

Mr Crozier said lobbying for the abolition of the death penalty had also involved churches, with the Roman Catholic Church amending its catechism in 2018 to state that the death penalty was inadmissible and that the church worked for its abolition worldwide.

“In 1988, the Anglican Church declared that the church would speak out against the death penalty, while the United Methodist Church in its social principles states that the death penalty denies Christ’s power to redeem human beings,” he said.

He argued that Section 48 of the Constitution of Zimbabwe says that a law may (not must) provide for the death penalty.

“Parliament can pass an Act to remove the death penalty from all statutes that provide for it,” said Mr Crozier. “Abolishing the death penalty does not need a constitutional amendment.”

With 66 prisoners currently condemned to death to date, Minister Ziyambi said Zimbabwe did not have a hangman.

“It is our view as Government that the majority in favour of the death penalty at the time it was enshrined in our Constitution did not realise that section 48 (2) of the Constitution was contrary to section 48 (1) and other provisions of our Constitution that guarantee the right to life for all,” he said.