CLAIM: Abolishing the death penalty would require a constitutional amendment.
SOURCE: The Conversation Africa
VERDICT: False
Dzivarasekwa legislator and member of the Parliamentary Legal Committee, Edwin Mushoriwa began the legal process towards abolishing the death penalty in Zimbabwe when he first brought the motion to bring the Private Member’s Bill to Parliament in November 2023. The motion was adopted by the National Assembly and in December 2023 the Bill was gazetted.
Public hearings are currently underway, scheduled to end on 10 May 2024.
The Conversation Africa, an independent source of news and views from the academic and research community, published a story on 7 May 2024 titled Zimbabwe’s likely to abolish the death penalty: how it got here and what it means for the continent.
The introduction to the story reads, ‘Zimbabwe is likely to abolish capital punishment, following a cabinet decision on 7 February 2024. However, its parliament still has to endorse the move and pass the necessary law enabling the change. The question is when this will happen, especially since it appears that it would require a constitutional amendment’.
The Zimbabwe Constitution alludes to the death penalty in Section 48 dealing with the right to life:
48 Right to life
(1) Every person has the right to life.
(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and⎯
(a) the law must permit the court a discretion whether or not to impose the penalty;
(b) the penalty may be carried out only in accordance with a final judgment of a competent court;
(c) the penalty must not be imposed on a person—
(i) who was less than twenty-one years old when the offence was committed; or
(ii) who is more than seventy years old;
(d) the penalty must not be imposed or carried out on a woman; and
(e) the person sentenced must have a right to seek pardon or commutation of the penalty from the President.
(3) An Act of Parliament must protect the lives of unborn children, and that Act must provide that pregnancy may be terminated only in accordance with that law.
While the Constitution makes provisions and gives limitations on the imposition of the death penalty, it does not dictate that the death penalty should be carried out. It gives the responsibility of imposition of the death penalty to Parliament through an act of law. Hence, while a law may permit the death penalty within the parameters set out by the Constitution, the law may also decide against the imposition of the death penalty in all circumstances.
Therefore, while Section 48 of the Constitution protects the right to life, it states that a law may permit a court, in limited circumstances, to impose the death penalty on men convicted of aggravated murder.
The memorandum to the Death Penalty Abolition Bill, points out that Section 48 is, however, permissive, and its effect is that Zimbabwean law does not have to provide for the death penalty, even for murder.
Veritas, an organisation that provides information on the work of the Parliament of Zimbabwe and the Laws of Zimbabwe and makes public domain information widely available, states the same in its assessment, Should Zimbabwe Abolish the Death Penalty? The Facts : The Case for Abolition:
The Constitution does not say that the law must provide for the death penalty and does not say that people convicted of aggravated murder must be sentenced to death. It leaves it to Parliament to decide whether or not a law should provide for the death penalty.
What it means
There are a number of laws that refer to the imposition of the death penalty in Zimbabwe. These are section 47 of the Criminal Law Code, sections 337 to 342 of the Criminal Procedure and Evidence Act, Section 4 of the Genocide Act, and Section 3 of the Geneva Conventions Act.
The Death Penalty Abolition Bill seeks to repeal all these references to the death penalty in the various laws;
Abolition of death penalty
Notwithstanding any other law—
(a) no court shall impose sentence of death upon a person for any offence, whenever committed, but instead shall impose whatever other competent sentence is appropriate in the circumstances of the case;
(b) the Supreme Court shall not confirm a sentence of death imposed upon an appellant, whenever that sentence may have been imposed, but instead shall substitute whatever other competent sentence is appropriate in the circumstances of the case;
(c) no sentence of death, whenever imposed, shall be carried out.
Clause 3
This clause will amend the Criminal Procedure and Evidence Act by deleting references to the death penalty and repealing sections that set out how the penalty is to be imposed and carried out.
Clause 4
This clause will remove a reference to the death penalty from section 4 of the Genocide Act, which allows it to be imposed for the crime of genocide. Since the section allows the death penalty to be imposed even for conduct that does not amount to murder committed in aggravating circumstances, it is unconstitutional. For that reason alone the section needs to be repealed.
Clause 5
This clause will remove references to the death penalty from various sections of the Criminal Law Code. The effect of the clause is that the maximum penalty for murder will be imprisonment for life.
Clause 6
This clause will remove a reference to the death penalty from section 3 of the Geneva Conventions Act, which allows the penalty to be imposed for grave breaches of the Conventions, even if they do not involve murder.
Death sentence as a deterrent
A report by the National Research Council, titled Deterrence and the Death Penalty, stated that studies claiming that the death penalty has a deterrent effect on murder rates are “fundamentally flawed” and should not be used when making policy decisions.
The report concluded:
The committee concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide. Consequently, claims that research demonstrates that capital punishment decreases or increases the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy judgments about capital punishment.
In the United States, the murder rate in non-death penalty states has remained consistently lower than the rate in states with the death penalty, and the gap has grown since 1990. In 2020, the murder rate in states with no death penalty was 5.3, lower than the rate in states with the death penalty which stood at 7.5.
Conclusion
The claim that abolishing the death penalty in Zimbabwe would require a constitutional amendment, has been rated as false. The Constitution does not make the death penalty mandatory but allows Parliament to make the laws on its use. Therefore, to abolish the death penalty, Zimbabwe will only need an Act of Parliament to repeal the laws allowing for the imposition of the death penalty. Hence the death penalty will be abolished in Zimbabwe if Parliament passes an Act amending section 47 of the Criminal Law Code and repealing sections 337 to 342 of the Criminal Procedure and Evidence Act. The Constitution does not have to be amended.
