World Day Against the Death Penalty
[10th October 2019]
"Children, the unseen victims of death penalty"
Bryan Stevenson once said " the death penalty is not about whether or not someone deserves to die, it is about whether or not we deserve to kill." This year marks the 17th commemoration of World Day Against the Death Penalty. The chosen theme for the year focuses on an often forgotten and peripheral victim of the death penalty - children. The theme "children, the unseen victims of death penalty," highlights that the penalty does much more than just kill one person but can affect an entire community. On this day, we take time to raise awareness on the effects of the death penalty and remind the government that the death penalty is slowly facing its hanging day as it has no place in the 21st Century human rights discourse.
Convention on the Rights of Children
This year's theme was chosen to coincide with the 30th anniversary of the Convention on the Rights of Children. Around the world, winds of change have been blowing. There is a growing realisation that the death penalty system is a system that infects everyone it touches and barely heals or deters from the disease of crime. From the convicts, to the prison guards, to the convicts' family and friends to even the hangman himself , no one is free from the psychological and emotional burdens the death penalty comes with. Children are orphaned in this way at the hands of the state. A state which constitutionally pledges to act in the best interests of the child. Children suffer psychological trauma and long term mental illness such as depression due to this practice and often face stigma as a result of their parent's actions. The injustices inflicted upon the victim are never to be negated by empathy for the children but where we have a chance to act humanely , we should take it.
Death penalty laws in the world are said to date as far back as the 18th Century B.C. In Zimbabwe, we trace the death penalty to the hanging of Mbuya Nehanda and Sekuru Kaguvi. It has been argued that traditionally and historically, our society preferred to give either a fine or corporeal punishment as a consequence to crime and in rare instances - the death penalty. At present the death penalty is given its legal character by section 47 of the Criminal Law Code. Under section 48 of the Zimbabwean Constitution the right to life is afforded but in certain instances judges may have the discretion to institute the death penalty. The death penalty is only applicable to men between ages of 21-75, women are exempt.
Death Penalty in International Law
In both regional and international law, the right to life is enshrined. Such a right is often followed by the right to inherent dignity, the right to equality as well as the right to not be subject to cruel, inhumane and degrading punishment. The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) specifically calls for the abolishment of the death penalty and parties to the protocol have wholly and expressly committed themselves to the abolition of the penalty. Around the world, there are countries that have already opted to do away with stringent procedural process of the death penalty and have opted to follow a constitutional and human rights based approach when it comes to punishment.
Most Countries have Abolished the Death Penalty
To date, 106 countries out of 195 in total have abolished the death penalty for all crimes, 8 for ordinary crimes ,20 are abolitionist in practice and 28 are still carrying out executions. As can be seen, the coin has been tossed in the favour of abolition. Our traditions leaned against the death penalty and to date, the death penalty is oddly juxtaposed against our Constitutional values, principles and mandates. Since 2007, different member states have brought forward resolutions on the death penalty at the United Nations. The recurring resolution calls for member states to vote for a moratorium on the penalty with the view of eventually abolishing the death penalty. The vote is usually in December and Zimbabwe is encouraged to vote responsibly and vote in favour the resolution. The time has come for Zimbabwe's moratorium to fall away and let complete abolition take its place.
South Africa Chose Abolition in 1995
Over 20 years ago, our South African counterparts abolished the death penalty. In 1995 the South African Constitutional Court, in the matter of S v Makwanyane, decided that it was arbitrary, against the spirit and purports of the constitution as well as against the spirit of ubuntu. The philosophy of ubuntu recognises that one's existence is intrinsically linked to the existence of another. The court argued that the eye for an eye approach was not used for any other punishments such as rape and violence, so why must the state do so in matters of the death penalty?
As arguments surrounding the abolition of the death penalty persist, the words of South African Chief Justice Arthur Chaskalson in Makwanyane must never be forgotten:
“We would be deluding ourselves if we were to believe that the execution of the few persons sentenced to death during this period, and of a comparatively few other people each year from now onwards will provide the solution to the unacceptably high rate of crime. There will always be unstable, desperate and pathological people for whom the risk of arrest and imprisonment provides no deterrent, but there is nothing to show that a decision to carry out the death sentence would have any impact on the behaviour of such people, or that there will be more of them if imprisonment is the only sanction."
It is Time for Zimbabwe to Abolish the Death Penalty
It is against this background that Zimbabwe is urged to take heed of this landmark judgment by South Africa and realise that the death penalty no longer has a place in our society. Following our call from yesterday's publication, we reiterate that the death penalty is outdated, inhumane and against the spirit of rehabilitation and human rights. The death penalty has many more victims outside its intended target. For every day an inmate's execution is postponed, there is a child hoping that their father will live just a little bit longer. As a nation, we have taken in many practices into our law by way of inheritance. The time has come for us to ponder on whether an inheritance such as the death penalty is a useful and effective tool for us to keep holding onto. May we never forget the children that have been affected mentally and emotionally as a consequence of this punishment.