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effect to the new Constitution: The death penalty - Constitution
October 28, 2013
effect to the Constitution: The death penalty
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
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
- 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
- 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.
abolition of the death penalty require a Constitutional amendment?
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
then, the death penalty can be abolished simply by repealing the
laws which provide for it.
Laws currently provide for the death penalty?
There are several
laws which currently allow the death penalty to be imposed:
and Evidence Act:
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.
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
women [the section does not say what will happen to them after
they have given birth];
or women over the age of 70;
- men or
women who were under the age of 18 when they committed murder
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,
court finds there are extenuating circumstances.
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.
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.
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].
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].
conspiracies or incitements to commit any of the above offences
[Paragraph 40 of the Schedule].
of the Defence Forces, even if pregnant, are liable to the death
penalty if they commit these offences.
Geneva Conventions Act
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.
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
carrying out the death penalty breach Section 53 of the Constitution?
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”.
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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