APPLICANTS’ SUPPLEMENTARY HEADS OF ARGUMENT
The Applicants make the following further submissions in response to the Respondents’ Heads of Argument.
APPLICANTS’ CASE IN SUMMARY
The Applicants have spent periods of between 2 and 18 years on death row (see the table on page 3 of the First Applicant’s Founding Affidavit). Their broad submission is that as a result of the protracted periods they have spent on death row in uncertainty and torment under threat of execution, the carrying out of their sentences would constitute an inhuman and degrading punishment. Their sentences therefore fall to be commuted by this Honourable Court as a judicial remedy to protect their constitutional rights, in particular under section 53 of the Constitution.
In advancing the above submission the Applicants invoke the reasoning of the Supreme Court of Zimbabwe in the Catholic Commission case, which decided that detention on death row for more than 2 years rendered the death sentence unconstitutional. They also pray in aid the virtual consensus in common law jurisdictions retaining the death penalty, that there comes a point following the passing of a sentence of death after which carrying it out would be inhuman and degrading. The most recent finding to this effect was the ruling of the Supreme Court of Uganda in the Kigula case, but many other examples are cited in the Applicants’ Heads of Argument. Different views have been taken in different domestic and international jurisdictions about when that point is reached, but the principle is the same. Under Zimbabwe’s current Constitution, there is no reason why that principle should not be applied in Zimbabwe.
The previous Constitution was amended in an attempt to deflect the Supreme Court’s conclusions in the Catholic Commission case. But the proviso inserted into the previous Constitution with that objective has not been preserved in the current Constitution, and it is the protection of the current Constitution that the Applicants invoke. For that reason, the Respondents’ attempts to rely on S v Nyambo, which was decided under the amended previous Constitution, are misplaced: see paragraphs 6.1-6.6 below.
The Applicants also reject the Respondents’ suggestion that their only remedy is to seek executive clemency. That reasoning offends against the separation of powers. It ignores the distinction between the prerogative of mercy and the Applicants’ entitlement to secure judicial protection of their rights under the Constitution. Accepting the Respondent’s submission on this point would be an abrogation of the Constitutional Court’s role as protector of those rights.
The Applicants also raise a supplementary point about the conditions endured by death row prisoners in Zimbabwe. They submit that their protracted detention in the inhuman and degrading conditions described in the evidence constitutes a distinct violation of their right to protection from inhuman and degrading treatment. This is separate from and additional to the torment and inhumanity of being held for a protracted period under threat of execution. For those Applicants who have spent a shorter period of time on death row, the inhumanity of their conditions of detention underscores their claim to have their sentences commuted, even if the Court were to conclude that 2 years spent in anticipation of death is not sufficient by itself to render execution unconstitutional. For those applicants who have spent longest on death row, the Court may conclude that the totality of constitutional violations – very protracted detention in anticipation of execution plus grotesque conditions of detention – requires a remedy going beyond mere commutation to life imprisonment. A determinate period of imprisonment might be appropriate. In any event, the Applicants recognise that the different facts in their individual cases, and the different periods of time they have spent on death row, may be reflected in the individual findings and the remedies afforded by the Court. But all the Applicants maintain that they are entitled, at the least, to commutation of their death sentences to life imprisonment.
B. REPLY TO THE RESPONDENTS’ SUBMISSIONS
Application of Catholic Commission for Justice and Peace v AG
The Respondents rely on S v Nyambo 2005 (1) ZLR 443 to refute the Applicants’ contention, in paragraphs 61-68 of the Applicants’ Heads of Argument, that this Court should be guided by principles recognised and applied by the Supreme Court in Catholic Commission for Justice and Peace v AG 1993 (1) ZLR 242.
The Applicants have not suggested that Catholic Commission v AG is binding on this Court, but they do submit that the Court should apply its reasoning, which is consistent with the principles and spirit of the current Constitution.
Far from supporting the Respondents’ case, the decision in S v Nyambo undermines it, for the following reasons.
S v Nyambo was a decision which rested in its entirety upon the 1981 Constitution. It was decided after an amendment in 1993 to section 15 of that Constitution, to the effect that delay in execution of a death sentence could not amount to inhuman or degrading treatment or punishment. The intended effect of that amendment was to reverse the Supreme Court’s conclusions earlier that year in the Catholic Commission case. The constitutional amendment provided implicit recognition that prolonged delay awaiting execution does amount to inhuman or degrading treatment or punishment for which prisoners have a right to relief. Otherwise, there would have been no need for the amendment. There is no such exception to the protection afforded under section 53 of the current Constitution. This provides the strongest evidence that it was the intention of the framers of the current Constitution that there should be no derogation of protection from inhuman and degrading treatment or punishment for prisoners sentenced to death.
Furthermore, the Constitution represents a new jurisprudential era with a stronger regard for fundamental rights and freedoms. Fundamental rights, such as the right not to be subjected to inhuman or degrading treatment or punishment under section 53, are absolute: they may not be limited or restricted even if “reasonable, necessary or justifiable” Under the previous Constitution, rights could be limited when it was in the public interest, or to ensure the rights and freedoms of other persons (section 11). The Applicants submit that, if it was inhuman and degrading treatment or punishment to keep a condemned man alternating between hope and despair for an excessive period of time under the previous Constitution, it must surely be unconstitutional to do so now under the current Constitution, which has protection of fundamental human rights and freedoms as a founding value.
The Applicants reiterate that restrictions on rights and freedoms are to be given a strict and narrow construction. Scrupulous attention must be paid to the precise limits of any restriction. This was illustrated in Nkomo v Attorney General 1994 (3) Sa 34 (ZS). In that case, the Supreme Court of Zimbabwe held that, even though the 1993 amendment to the previous Constitution disabled a prisoner from seeking remission of sentence on grounds of delay in any claim arising before or after the introduction of the amendment, if those grounds arose before the enactment of the amendment, he was still entitled to a declaration that to execute him would be unlawful (p.43D-E).
More importantly, since a restriction on a fundamental right can only have effect to the extent that it is expressly stated, it follows that such a restriction cannot be read into the Constitution where none was inserted by its drafters.