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Opinion Saul Gwakuba Ndlovu
THE position taken by Minister of Justice, Legal and Parliamentary Affairs Emmerson Mnangagwa on the death penalty is both surprising and interesting. He is opposed to the death sentence and is obviously not signing the sentences of 96 prisoners some of whom have been languishing in the condemned cells for a number of years because of his strong sentiments.

The country’s constitution, adopted as recently as last year, and which Cde Mnangagwa solemnly swore to uphold and protect when he took office also last year, empowers the courts to pass the death sentence in certain circumstances.

Cde Mnangagwa is a former freedom fighter. He was arrested and sentenced to death during Zimbabwe’s liberation struggle but was not executed because of his young age.

He spent a number of years in the death cells, an experience which he says made him oppose capital punishment.
He most probably would have loathed that type of punishment even if he did not go through the harrowing death-cell experience merely because of moral and humane factors.

However, that is not important for this discussion whose major focus is on the constitution and laws of Zimbabwe.
The death sentence is the most severe punishment any criminal court can impose on a law-breaker. Some legal minds argue that it is not a punishment in that it does not seek compensation for the aggrieved, nor does it correct the criminal’s character but it physically eliminates him from society.

Quoting the analogy that one does not correct a thieving dog’s behaviour by killing it, those opposed to the death sentence say the purpose of any punishment should be either to correct or to make good the loss or damage caused by the law-breaker.
How can a court correct or make good the loss of human life as a result of murder?

In old Shona tradition, a girl was given as compensation to the family of the murdered person by that of the murderer. She would become a wife of one of the siblings of the deceased and reproduce on behalf of the murdered person.

However, in today’s socio-political environments where the promotion of human rights is the order of the day, that practice would be condemned as it would be a violation of the girl’s right to choose her own husband freely.

So, compensation by way of replacement is not of question especially in Zimbabwe where gender issues are a priority on the national socio-economic and politico-cultural agenda.

It would be better that such compensation be in financial or any other material that can be qualitatively and quantitatively evaluated.
The murdered person’s worth can be calculated quite easily from the time he was murdered up to when he would have retired if he was formally employed.

The snag with that way of dealing with this matter is two fold: the murderer may be himself or herself so poor that he or she is dependent upon other people for his or her existence, or the murdered person might have been virtually of no monetary value but of very great sentimental worth to his kith and kin.

The other problem with this would be the costs to those claiming compensation as they would have to handle it as a civil law matter. That is how the Zimbabwean legal system functions at present.

It is a fact of our age that many people suffer losses or damage at the hands of criminals but fail to get compensation because they do not have the necessary cash to launch a civil court claim.

How then does the death sentence help the Zimbabwean society in this type of legal environment? It is meant to have a deterrent effect on would-be murderers. It is the considered opinion of this article’s author that the occurrence rate of murder in Zimbabwe would be higher if the country did not have the death sentence.

It would be a very regrettable piece of folly to abolish the death sentence in a country with such a high rate of unemployment (about 90 percent) and where the police are publicly urged to promote human rights rather than to protect the rule of law.

One would have thought that Cde Mnangagwa as a lawyer himself would be showing an objective instead of a subjective attitude to the country’s fundamental law, the constitution. Lawyers are by profession expected to be adherents of constitutionalism.

Cde Mnangagwa’s predisposition to the death sentence is subjective in that it is based on his frightening experience in prison. It is influenced by the past.
It was indeed a very sad period of Cde Mnangagwa’s life, living an uncertain life, from one second to the next, and wondering each time there was a knock on the cell’s door whether it was the hangman who had come to lead him to the scaffold.

However, it is not advisable to defy the present by reliving one’s past. One should be objective by living today’s life today, meeting its demands and fulfilling one’s responsibilities especially as laid down by the nation in such inviolable documents as the constitution if one is a senior government official.

But, all said, something has to be done to the constitution should the Cabinet agree with Cde Mnangagwa’s sentiments. It should be amended to replace the death sentence with life imprisonment.

That would not be difficult to do since the ruling party, Zanu-PF, has an overwhelming Parliamentary majority. To amend the constitution, two thirds majority vote is needed, and that can be mustered easily by the ruling party.

But before replacing the death sentence with life imprisonment, it would be wise to seek the learned opinions of criminologists, sociologists, political scientists, psychologists, social anthropologists, legal experts, traditional and religious leaders.

Consultations with such a wide cross-section of the country’s enlightened people could help the national political leadership decide whether or not abolishing the death sentence would have a socially, culturally, economically and politically good effect on the country as a whole.

We should be wise enough not to imitate the legal practices of countries such as South Africa where murders are so widely and frequently committed that they are not news.

What is news there is when murder has not been committed in any locality. Meanwhile, South African prisons are bursting at the seams with murderers serving life sentences. Many of those prisoners are Zimbabweans. The death sentence was abolished in that country some years ago.

Saul Gwakuba Ndlovu is a Bulawayo-based retired journalist. He can be contacted on 0734 328 136 or [email protected].