Common Law | Unconstitutional? Why Parliament’s legal committee has issued an adverse report on Death Penalty Abolition Bill

What next for death penalty (pic: Jekesai Njikizana)

Common Law with Mike Murenzvi

“I believe life imprisonment is far worse than the death penalty.” ~ Nick Yarris

In November 2023, Edwin Mushoriwa, the CCC MP for Dzivarasekwa, seconded by (former) CCC MP for Harare East, Allan “Rusty” Markham, successfully introduced a Private Member’s Bill in the National Assembly for the abolition of the death penalty from the country’s statutes. After presentation and initial debate, the Bill was referred to the Parliamentary Legal Committee (PLC) for review on constitutionality.

The full text of the Death Penalty Abolition Bill was gazetted in December 2023. It seeks to create a new Act that expressly abolishes the death penalty and stops any court from imposing such a sentence, as well as confirming any sentence from being carried out. The rest of the Bill speaks to the deletion of all instances in various acts where the death penalty is a prescribed punishment and replaces it with life imprisonment. Furthermore, it calls for the resentencing of all inmates currently on death row.

Bipartisan Support

In a rare show of bipartisanship, MPs from ZANU-PF also supported the introduction of the Bill with great gusto, invoking the views of President Emmerson Mnangagwa on the topic. It is well-documented that Mnangagwa was once sentenced to death and was only saved by reportedly being too young. Despite being one of the country’s longest serving justice ministers, his distaste for the death penalty came to light when he became President.

Mushoriwa’s speech touched on African traditional justice systems that focused on compensation and restorative justice, as opposed to retribution.

Naturally, some members of the National Assembly pushed back against the motion. They said the punishment was a necessary deterrent for serious crimes.

Cabinet Approval

In sync with the President’s views, Cabinet, in its first meeting of 2024, approved the principles of the Bill which would pave the way for smooth debate in Parliament and no obstacles from the Minister of Justice. This show of support is nearly unheard of for legislation proposed by the opposition.

PLC Report

The PLC is made up of members of Parliament who are also legal practitioners. Its members are Agency Gumbo (CCC – Hatcliffe), Fadzayi Mahere (CCC – Mount Pleasant, since resigned), Energy Mutodi (ZANU-PF – Bikita South), Jonathan Samkange (ZANU-PF – Mudzi South), Eddison Zvobgo (ZANU-PF – Masvingo Central), Itayi Ndudzo (ZANU-PF – Wedza North) (Chairperson)

On 23 January 2024, the PLC issued an adverse report on the Bill, and this was presented to the National Assembly on 8 February 2024 for consideration. An adverse report means that parts or the whole of a piece of legislation are inconsistent with the Constitution and should either be removed or reworded to bring it into line. In summary, the PLC said the Bill, in its current form, is unconstitutional because it is trying to limit the Constitution when it is not a Constitutional Amendment Bill.

The Constitution, in section 48 (2) says:

“A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances.”

Furthermore, Section 2 of the Constitution establishes the supremacy of the Constitution and any law, practice, custom and conduct inconsistent with it is invalid to the extent of the inconsistency.

In contrast, Section 2 of the Bill states:

“Notwithstanding any other law—

  • no court shall impose a 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;
  • 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;
  • no sentence of death, whenever imposed, shall be carried out.”

According to the PLC, this Bill cannot take away what the Constitution allows. It is the committee’s view that any amendment to the death penalty provisions must be brought about through a Constitutional Amendment Bill.

Debate

There was spirited debate both for and against the report’s conclusion.

Mushoriwa led the dissent in defence of his Bill. He argued that in his consultations with various legal professionals, the word “may” in section 48(2) did not pose a challenge as it did not make the death penalty a must at law. Furthermore, the same Section 48 enshrines the Right to Life. He then proposed to change the Bill to be an Amendment to the Criminal Procedure and Evidence Act, and likely change the wording of Section 2 to remove any confusion that it is going against the Constitution.

Mutodi led the defence of the report as a member of the PLC. Firstly, Mutodi charged that because Mushoriwa is not a legal practitioner, he was not knowledgeable in certain matters. However, his defence was premised on the need for a deterrent sentence for the most heinous crimes, such as the Tapiwa Makore murder.

Pupurai Togarepi, the ZANU-PF Chief Whip, closed the debate with a plea for the two sides to find each other within the spirit of the intention of the Bill. The motion for the removal of the death penalty was largely supported by the majority of the House and therefore there must be a way to structure the Bill’s wording to bring that into effect. At the insistence of the Deputy Minister of Justice, Tichaona Muzungunye, the debate was suspended to allow the House to sit again another day as they work out a compromise.

Simple Analysis

The Bill’s intentions are pure and widely supported, and even internationally, there are calls for the total abolition of the death penalty. The issue here is of wording and how it can be structured to not offend the Constitution but also meet its objective.

The word “may” within Section 48(2) of the Constitution is a key element to the arguments for the Bill. In normal speak, it implies that there is permission to do something, but it is not mandatory.
In slight contrast, the start of Section 2 of the Bill says “notwithstanding any other law”. This puts the Bill’s provisions above any other law that exists, and that is another key element. The Bill is subservient to the Constitution. It cannot make declarations that will stop any other current or future law from imposing a sentence of death for a major crime.

The subsequent sections of the Bill, however, go into detail where they amend various pieces of legislation to replace sentences of death, with life imprisonment.

It appears that Section 2 of the Bill is the real offending provision that must either be removed or reworded. Everything else within the Bill is well within the powers of Parliament to propose and enact.

General View

The death penalty is a particularly emotive subject worldwide and there are many arguments for and against it. However one feels about it, our Parliament, and Government, has reached the stage of calling for its removal from our penal system. Let that process be done within the framework of the Constitution and still achieve its goal.

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Mike Murenzvi writes in his personal capacity and his views are not associated with any organisation he is, or may be, affiliated with.