CONSTITUTION WATCH 18/2015
[29th October 2015]
Postponement of Constitutional Challenge to Death Penalty
Yesterday an important case on the constitutionality of the death penalty, Chariwa & 14 Others v Minister of Justice & Others (CCZ 47/2015), could not be heard by the Constitutional Court because the Court’s time was taken up by an earlier case on the roll.
The case has been postponed until January next year, to a date yet to be notified.
Last week two other cases involving the death penalty and life imprisonment were also postponed to January.
When the set-down dates for the three cases are known, Veritas will notify subscribers.
What is at Issue in the Three Cases
In Chariwa’s case 15 prisoners who were sentenced to death for murder in separate trials that took place between four and 20 years ago argue that they have been kept on “death row” so long that it would be unconstitutional to execute them now 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.
In the second case, Ndlovu & Another v Minister of Justice & Another (CCZ 50/15), 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.
In the third case, Makoni v Commissioner-General of Prisons and Correctional Service & Another (CCZ 48/2015), the applicant 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.
The court papers for all these cases are on the Veritas website
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