via Death row, life imprisonment challenge postponed – Newsday October 22, 2015
THE constitutional application filed by three convicted criminals, two of whom are on death row and one serving life imprisonment, challenging the constitutionality of their sentences, failed to kick off yesterday after the Attorney-General (AG)’s Office requested for a postponement in order to go through the convicts’ supplementary heads of argument.
BY CHARLES LAITON
The matter is now set to be heard during the first week of next year’s first term.
On the first application, the two convicts, Farai Lawrence Ndlovu and Wisdom Gochera, both represented by Tendai Biti, were sentenced to the gallows in 2002 and 2012 respectively after being convicted of murder with actual intent and have since then been awaiting execution.
Another convict, Obadiah Makoni, who is also represented by Biti, was convicted of murder and spared from the hangman’s noose, but sentenced to life imprisonment.
In his submissions over the death sentence, Biti said the position regarding the imposition of the death penalty had changed dramatically since the new Constitution entered into force.
Biti said like anyone else in Zimbabwe, Ndlovu and Gochera were now entitled to the protection afforded by section 48 of the Constitution.
“The effect of section 48(2) is that no person can be sentenced to death unless they are sentenced under a law that permits the imposition of death only for murder committed in aggravating circumstances,” he argued.
The lawyer said if the death penalty is imposed under a law that does not meet the requirements of the Constitution, that penalty would be unconstitutional for violation of the qualified right to life.
“The death penalty cannot lawfully be carried out if it was imposed in violation of section 48(2) . . . (No law may limit the following rights enshrined in this chapter section 86 (3)(a) of the Constitution and no person may violate them) except to the extent specified in section 48,” he said.
“The applicants are entitled to the protection of section 48(2) even though they were sentenced before the new Constitution came into force, because they are challenging their current and ongoing sentences, not a historical event. So, this case has nothing to do with ‘retroactivity or retrospectivity’ of the new Constitution.”
Turning to Makoni’s life imprisonment sentence, Biti said his client was not suggesting that requiring a prisoner to spend his whole life in prison could never be appropriate or compatible with the Constitution.
Biti said what Makoni was submitting was that the decision on whether to release a life prisoner should be taken by a parole board, independent from the Executive, so as to protect the separation of powers that inheres in the Constitution.
AG’s Office representative, Olivia Zvedi is yet to file a response.