COURT WATCH 1/2018
[26th March 2018]
Presidential Clemency Order : Commutation of Death Sentences
Reduction of Other Sentences
Clemency for Certain Death Row Prisoners
Clemency Order No. 1 of 2018 [link], signed by the President on 10th March 2018 and gazetted on 19th March, includes the following paragraph:
“10. Commutation of the death sentence to life imprisonment is hereby granted to all prisoners who have been on death row for ten years and above.”
This means that all inmates of death row who were sentenced to death before 10th March 2008 no longer face execution. They will serve sentences of life imprisonment instead.
Comment: In commuting these sentences the President has acted where the judiciary was reluctant to commit itself. When Veritas tried to assist long-time inmates of death row with a court application seeking commutation of their death sentences, the Constitutional Court dismissed the application on technical, procedural grounds and avoided a decision on the applicants’ basic point (backed by strong legal precedent) that subjecting death row prisoners to prolonged periods of uncertainty about their fate is cruel, inhuman and unconstitutional. Most of the applicants in that case (Chawira and 13 Others v Minister of Justice, Legal and Parliamentary Affairs and Others), will now easily qualify for commutation under the President’s clemency order.
Parole for These Prisoners
Thanks to another court case brought by Veritas in 2016 (Makoni v Commissioner of Prisons & Another), the prisoners whose death sentences have been commuted may be eligible for early release on parole. In that case the Constitutional Court ruled it unconstitutional for life prisoners to be denied the right to be considered for early release under section 115 of the Prisons Act. The section has not yet been amended to comply with the Court’s ruling, but even before such an amendment life prisoners must be considered for early release.
Abolition of the Death Penalty
The Clemency Order is welcome step, albeit a small one, towards abolition of the death penalty. No executions have been carried out in Zimbabwe since 2005, so there is an effective moratorium on the death penalty which is likely to continue for as long as the President, known to favour abolition, remains in office. In view of this it seems not only cruel but futile for the courts to continue sentencing people to death.
Section 48 of the Constitution allows a law to provide for the death penalty; it does not say the law must do so. Hence abolition would not entail amending the Constitution, just a simple Act of Parliament removing references to the death penalty from the Criminal Law Code and the Criminal Procedure and Evidence Act.
Veritas has written to His Excellency the President asking him to enact legislation abolishing the death penalty. We have also provided the Minister of Justice, Legal and Parliamentary Affairs with a draft Bill to abolish the penalty.
It is to be hoped that, having taken so many people off death row, the government will go further and abolish this cruel, inhuman and barbaric punishment.
Other Aspects of the Clemency Order
Apart from commuting death sentences, the Clemency Order benefited many other prisoners, some 3 000 in all:
Release of some prisoners serving life imprisonment
Paragraph 9 of the clemency order orders full remission of sentence [i.e., immediate release from prison] for the following prisoners:
- male prisoners sentenced to life imprisonment on or before 28th February 1998
- female prisoners sentenced to life imprisonment on or before 31st December 2010.
Some may question whether this gender discrimination is constitutional.
Release of other prisoners
The clemency order grants immediate release for:
- convicted female prisoners, other than those sentenced to life imprisonment or death,
- all prisoners under the age of 18,
- prisoners who have served a quarter of any sentence of 36 months or less [other than prisoners excluded from the amnesty – see below],
- all prisoners at the open prison,
- all prisoners over 60, or sentenced for stock theft, who have served one-third of their sentence,
- prisoners who are blind or seriously disabled.
Reduction of sentence for certain long-term prisoners
For prisoners who were sentenced to more than 36 months’ imprisonment and who have already served at least a third of their sentences, the order grants a reduction of one-quarter of the remaining period they have to serve.
Prisoners excluded from benefiting
Certain prisoners are excluded from the order – habitual criminals; repeat offenders who benefited from a previous amnesty; prisoners sentenced by a court martial; escaped prisoners still at large; and male prisoners sentenced to a fixed term of imprisonment for murder, treason, a sexual offence, car-jacking or armed robbery.