Death sentence not applicable

Death sentence not applicable | The Herald 17 October 2014

Zimbabwe cannot pass the death sentence under the current Constitution unless Parliament enacts a law providing for it, a legal expert has said.
This comes amid growing calls to scrap capital punishment from the statutes.
A prominent lawyer, Advocate Thabani Mpofu, said while the old Constitution specifically made provisions for the death penalty, the new order left that decision to the Legislature.

“This, it achieves through section 48 (2) (of the new Constitution of Zimbabwe) which provides that a law may permit the death penalty to be imposed,” said Adv Mpofu.

His analysis of the law comes after the National Prosecuting Authority solicited for his views as a friend of the court in a case in which the NPA wants an order for the courts in Zimbabwe not to impose capital punishment on murder suspect, Joshua Dube, who is held in a South African prison.

South Africa has refused to extradite Dube who allegedly committed armed robbery and rape before fleeing to that country where he was arrested in 2009.

SA does not recognise the death penalty in its statutes and the difference with Zimbabwean laws has created a dilemma for the NPA, which has since approached the Constitutional Court seeking an undertaking that no death penalty would be imposed on such fugitives if extradited for trial here.

In his heads of argument filed at the Constitutional Court, Adv Mpofu made an analysis of the law on death penalty in both the old and new Constitutions as well as the Criminal Procedure and Evidence Act (CPEA), to arrive at his decision. The CPEA as it stands, he said, was not in conformity with the Constitution of Zimbabwe on the imposition of the death penalty.

“The CPEA is an existing law and so are its provisions… The question that arises is whether it is possible for it to be construed in conformity with the Constitution of Zimbabwe,” said Adv Mpofu.

“If it is, the death penalty can be passed under it. If it is not so capable, that means there is no law contemplated by section 48. That too would be consistent with provisions of section 2 (1) of the Constitution of Zimbabwe. It has already been noted that CPEA and the Code cannot be construed. Both are therefore not requisite existing law.”

Adv Mpofu said in view of the differences between section 48 of the Constitution and 12 of the old Constitution and current provisions of the CPEA and what must be contained in the contemplated Act, the law contemplated under section 48 was not yet in existence.

“That being the case, the death penalty cannot at the present stage be lawful. It will remain so unless Parliament enacts a law. Parliament must be discouraged. No place exists for such barbaric retribution in a civilized society.”

Adv Mpofu emphasized that section 48 of the Constitution simply gave the legislature a blank cheque on the issue. The lawyer, however, said the legislature might or might not pass a law providing for the death penalty. In the event that it chooses to pass such a law, he said, it should comply with certain requirements.

“This was probably the best compromise given the irreconcilable views that the parties had on the death penalty,” said Adv Mpofu.