Supplementary Heads of Argument in Chawira & 13 Others v Minister of Justice & 2 Others

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.

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