CONSTITUTION WATCH 5/2016
[25th January 2016]
Death Penalty Cases in the Constitutional Court this Week
1 Carrying out death sentences is unconstitutional
2 Life imprisonment without parole unconstitutional
Date: Wednesday 27th January 2016
Venue: Constitutional Court, Mashonganyika Building, Samora Machel Avenue, Harare (next to High Court building)
Time: 9:30 a.m.
Case 1: Ndlovu & Another v Minister of Justice & Another (CCZ 50/2015)
Case 2: Makoni v Commissioner of Prisons & Another (CCZ 48/2015)
Please Attend the Court Hearing to Support these Cases
Both these public interest cases have been instituted by Veritas and we urge all those who have been working to abolish the death penalty and to secure humane conditions for prisoners to attend the hearings.
It is not known which case will be heard first.
The constitutional issues in the cases:
Ndlovu & Another v Minister of Justice & Another
Both applicants in this case were sentenced to death for murder before the present Constitution came into force. They argue that their right to life under section 48 of the Constitution will be violated if they are executed now, because the current law providing for the carrying out of the death sentence does not conform with the Constitution. They contend that no prisoners can be executed, and no convicted criminals can be sentenced to death, until the law is amended to bring it into line with the Constitution – and any such amendment cannot apply retrospectively to apply to people such as the applicants, who have been convicted before the amendment is passed. An order is sought that to execute the applicants would violate their right to life under the Constitution.
Makoni v Commissioner of Prisons & Another
In Zimbabwe a sentence of life is imprisonment for the rest of that person’s life: he or she cannot be released on parole. Convicted murderers who are not sentenced to death are often sentenced to life imprisonment, The applicant, who is serving a life sentence, argues that it amounts to cruel and inhuman punishment to keep him in prison without any hope of release on parole, however many years he has served, however good his behaviour and however much he may have repented and reformed. Prison conditions in Zimbabwe are so severe that a long sentence may be tantamount to a death warrant. Put another way, the applicant’s argument is that if it would be cruel and inhuman to execute him – which it would be – it is equally cruel and inhuman to imprison him until he dies through neglect or starvation.
Veritas considered it important to bring this case as, if as hoped, the death penalty is abolished and sentences commuted to life imprisonment the prisoners concerned will be hardly better off.
The Constitution not only endorses the right to life but also the right to human dignity, and it also prohibits cruel and inhuman punishment. The European Court of Human Rights made a strong ruling against life imprisonment without parole as condemning a prisoner to a life without hope. This case argues that life imprisonment without parole is contravening the International Cove nant on Civil and Political Rights (ICCPR) and other international agreements to which Zimbabwe is a party. An order is sought that life imprisonment without hope of parole amounts to cruel, inhuman or degrading punishment.
The court papers are available here
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