CONSTITUTION WATCH 17/2015
[26th October 2015]
Reminder: Death Penalty Challenge in the Constitutional Court
Wednesday 28th October
Everyone who is concerned about the Death Penalty is urged to attend the court hearing
The court hearing will start at 9.30 at the Constitutional Court – Cnr. Samora Machel Ave and Third St.
On Wednesday 28th October the Constitutional Court is due to hear an important case, Chariwa & 14 Others v Minister of Justice & Others (CCZ 47/2015), in which 15 prisoners who are languishing on “death row” are seeking a stay of execution. The case has been initiated by Veritas.
The Facts of the Case
The applicants in the case were all sentenced to death for murder in separate trials that took place between four and 20 years ago. Since then they have been kept on “death row” awaiting execution. They argue that they have been kept there so long that it would be unconstitutional to execute them now – unconscionable might be a better word – for the following reasons:
- Section 53 of the Constitution protects everyone, including convicted prisoners, against torture or cruel, inhuman or degrading punishment.
- The lengthy periods they have spent in prison awaiting execution, never knowing from one day to the next when they would be hanged [because death-row prisoners are not told in advance of the date and time of their execution] amounts to torture or to cruel, inhuman or degrading punishment.
- Therefore, the applicants argue, they cannot now be executed and the Constitutional Court should commute their sentences to life imprisonment.
The applicants rely on judgments of the Supreme Court which laid down as long ago as 1993 that it was cruel, inhuman and degrading to keep prisoners under sentence of death waiting for long periods for their sentences to be carried out.
Note: Although there is a de facto moratorium on executing prisoners – the last execution took place in 2005 – the moratorium has not been written into the law and it could be lifted at any time.
Postponement of Wednesday 21st October’s Cases on the Death Penalty
Two cases which were due to be heard by the Constitutional Court last Wednesday were postponed as the lawyer representing the State said she needed more time to prepare.
The two cases were:
1. To stop the death penalty being carried out those convicted before the 2013 Constitution
Ndlovu & Another v Minister of Justice & Another (CCZ 50/15), in which two applicants who were convicted of murder and sentenced to death before the new Constitution came into operation are arguing that the sentence cannot now be carried out because:
- The provisions of the Criminal Procedure and Evidence Act which authorise the imposition and carrying out of the death penalty, are completely inconsistent with section 48 of the present Constitution. They are therefore invalid by virtue of section 2 of the Constitution.
- Hence there is no law that authorises the death penalty to be carried out on the applicants. They cannot lawfully be executed. Their sentences must therefore be commuted to life imprisonment.
2. To permit parole for prisoners sentenced to life imprisonment
Makoni v Commissioner-General of Prisons and Correctional Service & Another (CCZ 48/2015). The applicant in this case was convicted of murdering his girlfriend in 1995 and was sentenced to life imprisonment; he has currently served just over 20 years in prison. He argues that the sentence is unconstitutional because:
- Under the Criminal Procedure and Evidence Act and the Prisons Act, prisoners serving sentences of life imprisonment are not entitled to be considered for parole or early release. They must serve “whole life” sentences, i.e. they are released from prison only by death.
- This, violates section 51 of the Constitution, which guarantees human dignity, and section 53, which protects against cruel, inhuman or degrading punishment. Giving prisoners no hope of release, however good their behaviour in prison and however much they may have reformed, robs them of hope and crushes their dignity.
- Hence, the applicant claims, he should be considered for parole.
This case is important as if successful it will affect all those whose death sentences are commuted to life imprisonment.
Note: The European Court of Human Rights and the South African Constitutional Court have ruled that prisoners sentenced to life imprisonment must have some hope of release on parole. Without such hope their punishment becomes inhuman.
The court papers for all these cases are on the Veritas website
If you are requesting legislation please email veritas@mango.zw or look for it on www.veritaszim.net
Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied
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