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Sikhumbuzo Moyo

Bulawayo Bureau 

IT’S been 6 273 days since Zimbabwe hanged a condemned person. 

For the gruesome murder of Themba Nkiwane, the High Court sentenced Never Masina Mandlenkosi to death in 2002 and he was executed on July 22, 2005. 

Since then no other prisoner has been executed.

With President Mnangagwa being outspoken about the death penalty, it is not surprising that the country is a de facto abolitionist, even though it retains capital punishment in its criminal law. 

The country doesn’t even have a hangman. 

“Zimbabwe has no hangman,” Mrs Virginia Mabhiza, Judiciary Services Commission (JSC) secretary told our Bulawayo Bureau. 

No hangman and executions in the last 17 years for Zimbabwe but the courts keep on passing death sentences as enshrined in the 2013 Constitution that was adopted following a referendum after a constitutional review process. 

Currently there are 62 prisoners on death row in Zimbabwe as the country looks set to continue with its moratorium on executions. 

 In 2013, as Justice Minister then, President Mnangagwa publicly declared his disdain for capital punishment of prisoners. 

 “As someone who has been on death row myself and only saved by an ‘age technicality’, I believe that our justice delivery system must rid itself of this odious and obnoxious provision,” President Mnangagwa was quoted saying at the Harare Gardens on October 10 of that year. 

In a report at the ongoing 51st regular session of the United Nations Human Rights Council on the question of the death penalty, the human rights committee states that article 6 (6) of the International Covenant on Civil and Political Rights reaffirms the position that States parties that are not yet totally abolitionist should be on an irrevocable path towards complete eradication of the death penalty, de facto and de jure, in the foreseeable future. The death penalty cannot be reconciled with full respect for the right to life, and abolition of the death penalty is both desirable and necessary for the enhancement of human dignity and the progressive development of human rights.

“Some 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have suspended executions for more than 10 years. In 2020, the General Assembly adopted resolution 75/183, in which it called upon States to establish a moratorium on executions, with a view to abolishing the death penalty. In their submissions for the present report, several States described their process of and support for abolition,” reads the human rights committee report. 

According to a paper by Professor of Criminology Carolyn Doyle on Lets Abolish Death Penalty in Zimbabwe by The Death Penalty Project in partnership with a Zimbabwe based Non-Governmental Organisation, Veritas, the United Nations considers Zimbabwe as a de facto abolitionist, having not executed anyone since July 2005. 

 While a new Constitution in 2013 failed to abolish the death penalty, it narrowed its scope and imposed restrictions on its use. Article 48 abolished the mandatory death penalty and the new discretionary death sentence can be imposed only for murder where there are aggravating circumstances. The new Constitution also abolished the death penalty for young people up to and including the age of 21 (at the time of the crime),1 for people aged 70 and over, and for all women.

 The Death Penalty Project considers views of opinion leaders of 42 influential persons who could be considered opinion formers or key influencers, including those who work in positions of responsibility within the criminal justice process. Interviewees included politicians, legal practitioners, religious leaders, leading members of civil society or academia, senior public servants, leading members of trades unions, those with a background in defence, including war veterans, and influential members of the media.

 “Interviewees were asked about their views on: the retention and administration of the death penalty; the likelihood of abolition and how that could be achieved; the possible benefits and demerits of the death penalty; the implications of retention or abolition in respect to Zimbabwe’s place in the wider Southern African region, as well as the international community; and other, more effective, measures to tackle violent crime,” reads the report. 

Of the interviewed opinion leaders, 90 percent supported the abolition of the death penalty, 64 percent believe the retention of the death penalty has damaged the country’s international reputation and 69 percent believe the death penalty does not deter violent crime.

 “Most Zimbabweans know that the death penalty is a subject on which I feel deeply. As I have said in the past, I believe it to be a flagrant violation of the right to life and dignity.

“I welcome this report, which shows that almost all Zimbabwean opinion formers are of the same mind, in that they wish to see the death penalty abolished. This report, and the research on which it is based, follows upon a wider survey, conducted in 2017, which revealed that only a small majority of our citizens are in favour of keeping the death penalty, and that out of those who favour it, 80 per cent will be prepared to go along with abolition if the Government so decides.

“There has not been an execution in Zimbabwe since 2005. For nearly 15 years, therefore, we have had a de facto moratorium on the death penalty. It is my sincere hope that, in the near future, Zimbabwe will formally abolish the penalty by removing it from our statute books,” wrote President Mnangagwa on the foreword of the report in 2020. 

Early this week, Equatorial Guinea became the 25th African State to abolish the death penalty.

Now, the question is: Is Zimbabwe ready and willing to abolish the death penalty? 

Mrs Mabhiza said the Ministry of Justice fully supports abolition of the death penalty but says their hands were tied as the issue is a matter of public opinion.

“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. 

 “As you may be aware that the process of coming up with the Constitution also as an activity included public consultations and a referendum were an overwhelming majority of people voted for retaining the death penalty,” said Mrs Mabhiza. 

As a resultant, 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. 

Mrs Mabhiza said the same 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, as Ministry 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,” she said.

President Mnangagwa has reiterated that Zimbabwe should abolish the death penalty and the Ministry of Justice is in full support of that position, she added. 

Victoria Falls-based lawyer, Mr Matshobana Ncube of Ncube Attorneys, supports the abolition of the death penalty, describing it as cruel and inhumane.

“The whole world is moving away from the death penalty, it is cruel and inhumane, it’s the most brutal kind of punishment, it’s judicial sanctioned murder, it has not been proven to reduce crime. 

“If it is later found that the wrong person has been hanged, there is no recourse. In the US, we have seen people who have been in jail for over 40 years being exonerated? What would have happened if the person had been hanged,” said Mr Ncube.

Mrs Mabhiza said the death penalty in Zimbabwe could only be abolished through an amendment of the Constitution following a referendum with the motion to amend Section 48 (2) being triggered by a 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,” she said.

It is the Government’s view that when the Constitution was enshrined, the majority that were in favour of the death penalty were ignorant of the fact that section 48 (2) of the Constitution was contrary to section 48 (1) and other provisions of the Constitution that guarantee the right to life for all, said Mrs Mabhiza.

 “The right to life is complemented by other rights which include but not limited to the right to human dignity, and the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, section 56 guarantees that all persons are equal before the law and have the right to equal protection and benefit of the law. Furthermore, that both women and men have right to equal treatment and equal protection from discrimination on the basis of age and sex. 

 “Having identified these inconsistencies, the Government is cognisant of its duty to respect, protect, promote and fulfil the rights and freedoms in the Bill of Rights that also includes the right to life. Moreover, criminological researches have revealed that the death penalty does not deter the commission of crimes but rather compounds it.

The possibility of the sentence being meted out on innocent persons cannot be ruled out and once executed, by its nature, the sentence is unfortunately irrevocable,” she said.

Mrs Mabhiza said the executive, legislature and judiciary as well as all agencies of Government are bound by the Bill of rights, thus must endeavour to balance conflicting interests and this is the main reason why the Justice and Legal and Parliamentary Affairs Ministry has endeavoured to save prisoners on death row from execution by petitioning Cabinet to consider granting clemency so that the death penalty is commuted to life imprisonment. 

In 2017, the late President Mugabe called for the restoration of the death penalty in what he said was due to an increase in murder cases in the country.

 “I think let’s restore the death penalty. If you hear people are being executed, know Mugabe’s thinking has prevailed,” the former President said during the burial of national hero Cde Don Kwaedza at the National Heroes Acre.

His remarks were triggered by the chilling murder of a Catholic nun Plaxedes Kamundiya while she was praying at a shrine in Mutoko. 

The late President was Catholic.