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Giving effect to the new Constitution: The death penalty - Constitution Watch 38/2013
Veritas
October 28, 2013

Giving effect to the Constitution: The death penalty

Introduction

The Minister of Justice, Legal and Parliamentary Affairs, Mr Emerson Mnangagwa, in an address at a reception on Amnesty International Day, spoke strongly against the death penalty and as, Minister responsible for signing death certificates, said he would not be doing so. His remarks gave rise to speculation that the government might seek to abolish the death penalty, but some commentators have suggested that abolition would require a constitutional amendment. Are they correct?

What the Constitution says about the death penalty

Section 48 of the Constitution states that everyone has the right to life, but qualifies this by saying: “A law may permit the death penalty to be imposed …” The section goes on to restrict the circumstances in which the penalty may be imposed under such a law, and the persons who may be sentenced to it:

• It can be imposed only for murder committed in aggravating circumstances. There is no definition of aggravating circumstances, so if it were to imposed, it would be up to the courts to determine on a case-by-case basis what circumstances are sufficiently aggravating to justify a sentence of death.
• It cannot be a mandatory penalty; a court must have a discretion whether or not to impose it.
• It cannot be imposed on men or boys younger than 21, or on men older than 70.
• It cannot be imposed on women, whatever their age.
• Anyone sentenced to death must be allowed to seek clemency from the President.

There is one other section that has a bearing on the death penalty: section 53, which prohibits the infliction of torture or cruel, inhuman or degrading punishment. We shall deal with this section later.

Would abolition of the death penalty require a Constitutional amendment? - NO

All section 48 of the Constitution says is that a law “may” permit the death penalty to be imposed. “May”, not “must”: the section is permissive. The effect of the section is quite clear:

• The death penalty, if it is to be imposed, must be authorised by a law.
• A law may, but need not, authorise the penalty to be imposed.
• In the absence of a law authorising its imposition, the death penalty cannot be imposed.

Quite clearly, then, the death penalty can be abolished simply by repealing the laws which provide for it.

Which Laws currently provide for the death penalty?

There are several laws which currently allow the death penalty to be imposed:

1. The Criminal Procedure and Evidence Act:

• Section 337(a) states that the High Court must [not may] pass the death sentence on an offender convicted of murder unless the court is of the opinion that there are extenuating circumstances; the section also prohibits the imposition of the death sentence on a woman convicted of murdering her new-born child.
• Section 337(b) states that the High Court may [not must] pass the death sentence on an offender convicted of treason.
• Section 338 prohibits the imposition of the death sentence on the following people:
  
  • pregnant women [the section does not say what will happen to them after they have given birth];
  • men or women over the age of 70;
  • men or women who were under the age of 18 when they committed murder or treason.

2. The Criminal Law (Codification and Reform) Act [the Criminal Law Code]:

• Under section 20, anyone guilty of treason is liable to be sentenced to death or to life imprisonment [i.e. death penalty is optional].
• Under section 23, anyone guilty of insurgency, banditry, sabotage or terrorism is liable to the death sentence if their crime has resulted in the death of a person - even if the death was not intended [i.e. death penalty is optional].
• Under section 47(2), anyone guilty of murder must be sentenced to death unless:
  
  • he or she was under the age of 18 when the crime was committed, or
  • the court finds there are extenuating circumstances.

Note, incidentally, that section 47 gives no exemption to old people over the age of 70, or to pregnant women.

• Under section 47(3), anyone convicted of attempted murder, or of incitement or conspiracy to commit murder, may be sentenced to death and here there is no exemption at all, not even for young people, or old people or pregnant women.

3. The Genocide Act:

• Section 4 provides that anyone guilty of genocide involving the killing of a person is liable to the same punishment as may be imposed for murder which presumably means that it must be imposed in the absence of extenuating circumstances and that it cannot be imposed on people who were under the age of 18 when they committed the crime. Whether pregnant women and people over the age of 70 are exempt from the punishment is unclear.

4. The Defence Act:

The First Schedule to the Act gives courts martial power to impose the death penalty on members of the Defence Forces for several military offences:

• Aiding the enemy [by abandoning a post which should be defended, or handing over weapons to the enemy, or protecting enemy soldiers, and so on] [Paragraph 2 of the Schedule].
• Communicating with the enemy or giving the enemy useful information [Paragraph 3 of the Schedule].
• Mutiny and failing to suppress a mutiny [Paragraphs 8 and 9 of the Schedule].
• Treason or murder committed outside Zimbabwe [Paragraph 39 of the Schedule].
• Attempts, conspiracies or incitements to commit any of the above offences [Paragraph 40 of the Schedule].

Women members of the Defence Forces, even if pregnant, are liable to the death penalty if they commit these offences.

5. The Geneva Conventions Act

Under section 5 of the Act, anyone who commits a grave breach of any of the four Geneva Conventions is liable to be sentenced to death if the breach involved the willful killing of a person protected by the Conventions. The death sentence, it seems, can be imposed regardless of the offender’s age or gender.

Some of these laws are inconsistent with each other, and all of them are inconsistent with section 48 of the Constitution.

Need for quick decision on death penalty

Since the laws that currently provide for the death penalty are unconstitutional providing for the death penalty in many more cases than the Constitution permits they will have to be amended to bring them into line with section 48 of the Constitution. The Criminal Procedure and Evidence Act and the Criminal Law Code, in particular, must be amended as soon as possible because murder trials are being held weekly, if not daily, during court term-time, and when sentencing offenders convicted in those trials the courts must apply laws that conform with the Constitution.

Ideally, a decision to retain or abolish the death penalty should be made before the laws are amended, because it would be fatuous to amend them to allow a constitutionally-acceptable death sentence to be imposed [i.e. to allow it to be imposed only for murder committed in aggravating circumstances] and then to amend the laws again to abolish the death penalty altogether.

Does carrying out the death penalty breach Section 53 of the Constitution?

One further point needs to be considered, even if there were to be a law under section 48 of the Constitution allowing the imposition of a death sentence within the limited circumstances prescribed by that section, the carrying out of the death penalty would have to be consistent with section 53 of the constitution, which states that no one may be subjected to “physical or psychological torture or to cruel, inhuman or degrading treatment or punishment”.

Traditionally the death penalty in this country has been carried out by hanging. In 1995 the South African Constitutional Court ruled that the death penalty by hanging constituted cruel, inhuman and degrading punishment. If the death penalty were to continue to be permitted by law here, a case could be brought our Constitutional Court for a ruling as to whether or not the way in which the death penalty is imposed [i.e. by hanging] would render it unconstitutional, and our court might follow the precedent set by its South African counterpart.

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