Uphold death penalty: Tomana

via Uphold death penalty: Tomana | The Herald 10 November 2014 by Mashudu Netsianda

PROSECUTOR-GENERAL Johannes Tomana says the country should uphold the death penalty as no one has the right to end another person’s life.Speaking during the inaugural National Prosecuting Authority (NPA) workshop in Bulawayo yesterday, Tomana said the death penalty was lawful and should not be abolished.

“The death penalty is lawful for persons aged between 21 and 70. I believe that when you spill blood, you deserve to be killed as well. In fact, from a religious point of view, I stand with those who are of the view that those who intentionally kill should accordingly be punished through a death sentence,” he said.

Tomana’s comments are, however, in direct conflict with Justice, Legal and Parliamentary Affairs Minister, Cde Emmerson Mnangagwa, who wants the death penalty to be abolished.

Speaking during commemorations to mark World Death Penalty Day on October 10, Cde Mnangagwa said although many believe the death penalty acted as a deterrent to certain crimes, he felt that life should not be taken away deliberately.

Section 48 of the new constitution stipulates that every person has the right to life “although a law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances.’

Parts (a) and (b) state: “The law must permit the court discretion whether or not to impose the penalty. The penalty may be carried out only in accordance with a final judgment of a competent court.”

With 77 prisoners on death row, the new constitution, which was voted for by more than 90 percent of the 3,3 million voters in a referendum held on March 16 last year, partially abolishes capital punishment.

Zimbabwe’s new constitution spares all women as well as men under 21 at the time of the crime and the over 70s from the death penalty. It also prohibits the imposition of the death penalty as a mandatory punishment.

Tomana said killing someone was a violation of the right to life.

“It is the denial of human rights to citizens and whichever way we look at it, it is inhuman to kill another person,” he said.

The last executions carried out in Zimbabwe were those of the notorious criminals, Edmore Masendeke and Stephen Chidhumo, in 2004 for serious crimes of murder, rape and robbery.

Tomana said the creation of the NPA was in response to the fight against corruption.

“We want to deal with corruption and that is precisely why the NPA was created as a new investigative arm of the state. It is a critical part of the justice delivery system working in conjunction with other players,” he said.

Tomana said the NPA was an independent institution which would increase public scrutiny of, and accountability for, the actions of the prosecutorial authority. He urged prosecutors to have a better understanding of the constitution.

The new constitution transferred the responsibility for criminal investigations from the Attorney-General’s Office to the new NPA established under Section 258 of the constitution.

The Attorney-General continues to give legal advice to Government.

Tomana said no one is above the law except the President.

“No one is above the law except the President since he carries the responsibility of ensuring that the Constitution is adhered to.
“Politicians can speak casually about corruption but it should also be noted that the NPA’s decision to prosecute any person hinges on the substantial evidence procured and once we are satisfied with that, it is our obligation to then go ahead and prosecute.”

“Everyone is supposed to oblige to the law regardless of political persuasion and prosecutors should carry out their mandated functions as is constitutionally obliged not to act in a partisan manner; not to further the interests of any one political party or cause; not to prejudice the lawful interests of any other political party or cause, not to be an active member of any political party and not to violate the fundamental rights or freedoms of any person,” he said.

The Prosecutor-General reiterated his position that VP Joice Mujuru, who stands accused of corruption, will be prosecuted once a formal report is made to the police. Tomana also defended the move by the NPA to engage police prosecutors, arguing that there was a shortage of trained and qualified prosecutors.

The Zimbabwe Law Officers Association has filed an application at the Constitutional Court challenging the use of the police officers as prosecutors, claiming they pose a threat to the right to a fair trial for criminal suspects.

ZILOA is seeking an order forcing the NPA and Prosecutor-General to disengage all members of the security services within its ranks, arguing that the independence and impartiality of the officers was not guaranteed.

ZILOA secretary-general Dereck Charamba deposed an affidavit accusing the NPA and Tomana of breaching the Constitution by using security officers to prosecute suspects.

The organisation cited the NPA, Tomana, Justice, Minister Mnangagwa and Police Commissioner-General Augustine Chihuri as respondents.

Tomana said under Section 259 of the Constitution, the Prosecutor-General and other officers of the national prosecuting authority are a public office, but do not form part of the civil service.

“It is clear that the National Prosecuting Authority, not being part of the Civil Service as expressly provided by the Constitution, is insulated from constitutional restrictions that prohibit members of the security services from being employed or engaged in civilian institutions,” he said.

“Members of the police service can thus lawfully be authorised by the Prosecutor-General at his discretion to appear on his behalf in any court of law,” he said.