CONSTITUTION WATCH 10-2015

CONSTITUTION WATCH 10/2015

[5th June 2015]

Reintroduction of the Death Penalty

Introduction

The Criminal Procedure and Evidence Amendment Bill, which is ready to be presented in Parliament, will amend provisions of the Criminal Procedure and Evidence Act [the CP&E Act] relating to the death penalty so as to bring them into line with section 48 of the Constitution.  The effect of the amendments is to reintroduce the death penalty because, as will be explained below, our courts currently cannot impose it.

In other words, the death penalty has been abolished in Zimbabwe; the Bill will re-impose it.

The Death Penalty and the Constitution

Section 48 of the Constitution protects the right to life, but goes on to say:

A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances …”  [underlining by Veritas]

The Constitution does not itself impose the death penalty, therefore; nor does it say that a law must provide for the penalty to be imposed.  It merely says that a law may provide for the penalty to be imposed on offenders convicted of murder committed in aggravating circumstances.

Section 48 goes on to list a series of restrictions that must be contained in a law which provides for the death penalty:

- The law must allow the court a discretion to impose the penalty [i.e. the penalty cannot be made mandatory].

- The penalty may be carried out only in accordance with the final judgment of a competent court [i.e. the penalty cannot be carried out until the convicted person has exhausted his right of appeal].

- The penalty cannot be imposed on women, or on men younger than 21 or older than 70.

- The convicted person must have a right to approach the President to seek his pardon or an alteration of the sentence.

Unconstitutionality of our Current Law

Currently our law relating to the death penalty does not comply with section 48 of the Constitution:

- The death penalty can be imposed for crimes other than murder, i.e. for treason [section 20 of the Criminal Law Code and section 338 of the CP&E Act] and for the crime of insurgency, banditry, sabotage or terrorism [section 23(1) of the Criminal Law Code] as well as for attempted murder or incitement or conspiracy to commit murder [section 47(3) of the Criminal Law Code].

- The death penalty can be imposed for murder whether or not there are aggravating circumstances; indeed it must be imposed for murder – it is mandatory – unless the court finds there are extenuating circumstances [section 337(1) of the CP&E Act and section 47(2) of the Criminal Law Code].

- The penalty can be imposed on women, unless they are pregnant [section 338 of the CP&E Act].

- The penalty can be imposed on anyone, male or female, between the ages of 18 and 70 [section 338 of the CP&E Act].

These provisions are completely at variance with section 48 of the Constitution and cannot be construed so as to comply with the section.  As a result, they are void because section 2(1) of the Constitution states quite clearly:

“This Constitution is the supreme law of Zimbabwe and any law…inconsistent with it is invalid to the extent of the inconsistency.”

In other words, the provisions providing for the death penalty were effectively repealed by the Constitution.

Hence we no longer have a death penalty in Zimbabwe.

Effect of the CP&E Amendment Bill

In so far as the CP&E Amendment Bill relates to the death penalty, it will not simply align the CP&E Act with the Constitution:  it will re-impose a penalty which is currently abolished. 

By voting for the Bill in its current form, members of Parliament will be voting for the death penalty.  Members of Parliament who will be called upon to vote on the Bill must be made aware of its true effect. 

Individuals and organisations that have for long been advocating the abolition of the death penalty should call upon the Government to reconsider the Bill and on Parliamentarians not to pass the relevant clauses of the Bill.

[The CP&E Amendment Bill is available from Veritas at the addresses below]

 

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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