Yes to death penalty?

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HARARE – Justice, Legal & Parliamentary Affairs minister Emmerson Mnangagwa — who officiated as guest speaker at  commemorations marking World Day Against Death Penalty in Harare recently told anti-death activists that capital punishment must be completely abolished from the country’s statutes as it is inhuman and degrading.

The minister’s call comes barely half a year after the country endorsed a new Constitution which retained the ultimate punishment.

In a press release of October  10, 2013, Amnesty International Zimbabwe said, “Time the former liberation movements show leadership and support the global trend towards abolition of the death penalty.”

There has been a spate of articles, publications and commemorations recently arguing for the abolition of capital punishment.

However, as the opponents of capital punishment appear to command more publicity than those who support it do, it seems quite appropriate to attempt to put forward some contrary views… to attempt to put things back into perspective… to attempt to restate the truth which slowly is being abolished… to attempt to remind the renegade that death penalty is a punishment of human rights violations not human rights violations in itself… to attempt to remind abolitionists that the murderer’s sanctity of life does not carry more weight than that of the victim(s)… to attempt to illustrate the absurdity and repugnancy of giving criminals more rights, more attention, more sympathy without any corresponding concern for the magnitude or the victims of their crimes… to attempt to remind NGOs that as a sovereign nation, Zimbabwe defined its national interest as regard to the death penalty in the new Constitution and no other country, pressure group, resolutions, communiqué and recommendations should define the interest of the country of Zimbabwe… to attempt to argue that contrary to the minister’s sentiments, capital punishment indeed has a place in a civilised society.

In so doing, I am restricting myself to the use of capital punishment for murder.

Countries like Malaysia, Thailand, Singapore and China use it for other crimes such as drug trafficking and in such cases where the only purpose for capital punishment can be deterrence.

I do not wish to invite myself into the debate of whether it achieves that end.

When the minister says “…our justice delivery system must rid itself of this odious and obnoxious provision…” does this not shock the national congency? 

The majority of Zimbabweans continue to believe that those who show utter contempt for human life by committing remorseless, premeditated murder justify forfeit the right of their own life.

They forfeit not their right to live amongst us, but their right to live at all.

Capital punishment is a form of societal self-defence.

We ought to choose to mark the seriousness of certain crimes by indicating that those crimes should be death — eligible in certain circumstances. A nation ought to be concerned about the safety and security of its citizens that certain crimes against its people ought to be designated as death — eligible.

So minister…there is nothing ‘odious and obnoxious’ about the death penalty…there is everything ‘odious and obnoxious’ about the crime of murder … there is everything ‘odious and obnoxious’ about an unqualified call for the total abolition of capital punishment.

There are killers of monstrous evil and undoubted guilt for whom any lesser penalty would be a travesty.

The death penalty ‘brings down’ the murderer to the same level as the victim, and expresses solidarity, not only with the victim, but with the maintenance of justice in general.

Society can only express its condemnation of a crime through the nature of a punishment it metes out.

Capital punishment is an expression of society’s moral outrage at particularly offensive conduct.

It is an expression of the community’s disapproval of murder and if this sanction is not given recognition then the disapproval may also disappear.

A community which is too ready to forgive the murderer may end by condoning murder.

Murder is the greatest crime there is… anything short of execution says we don’t value the victim’s life enough to punish the killer fully.

Death penalty support is based upon the sanctity of life just as incarceration is based upon a reverence of freedom. Certain crimes are themselves so grievous an affront to humanity that the only adequate response might be the death penalty.

We the people have expressed solidarity with the spirit of capital punishment by endorsing it in the new Constitution.

We the people have unequivocally expressed that death penalty is the only adequate, appropriate, necessary and meaningful response to unjustified murders.

During swearing-in Mnangagwa swore to obey the Zimbabwean Constitution and not resolutions, communiqué and recommendations of the international community.

A minister is a creation of law and an ideal one ought to abide by the Zimbabwean Constitution.

The just endorsed Constitution does not seem to suggest that it’s time Zimbabwe abolish the death penalty. Perhaps the wise words of former Chief Justice of Zimbabwe Gubbay merit recital at this juncture; “One must not only take

account of the emerging consensus of values in the civilised international community (of which Zimbabwe is a party) as evidenced in the decisions of other courts and the writings of leading academics, but of contemporary norms operative in Zimbabwe and the sensitivities of its people.”

If newspaper reports, surveys and Copac reports and the subsequent referendum are anything to go by it can therefore be asserted with the greatest of confidence that the majority of people are not against capital punishment and that those who call for its abolition are a minority group.

For any system of justice to work, it must be credible in the eyes of the people of the country concerned. For this reason, the courts, the legislature and the Executive’ attitudes should not be radically different from those of society as a whole.

It has been aptly observed that the instinct of retribution is part of the nature of man, and challenging that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law.

When people begin to believe that organised society is unwilling or unable to impose upon murderers the punishment they “deserve”, then there are sown the seeds of anarchy, of self-help, vigilante justice and lynch law. If you are too soft on crime you make Zimbabwe become like South Africa.

Nigeria’s Edo State governor Adams A. Oshiomhole while reacting to the UN, EU and others over the hanging of the four armed robbers sentenced to death by hanging by the Supreme Court, has informed the international community that Nigeria as a sovereign nation will always uphold its Constitution. I must confess that I find this approach attractive.

Barely half a year after the people of Zimbabwe endorsed the death penalty, our very own minister starts parroting the same hymn with the minority groups… am I the only one embarrassed?

Am I missing something? Minister, what are you not saying?

Mnangagwa should be sending out a message to Amnesty International and the world that in Zimbabwe we hold murderers accountable.

We incarcerate those who commit violent and repetitive crimes and we execute those who take innocent human lives without justification.

That should send out a message to the murderers and potential murderers that our society has a responsibility to protect citizens from those who commit murder and an obligation to hold accountable those who commit the ultimate crime.

What the death penalty is is a punishment for human rights violation, not human rights violation itself.

Anyone with any amount of moral judgement and coherence would recognise and respect that difference.

All anti-death penalty activists are trying to do is to protect human rights violators at the expense of their victims by trying to pass off the just punishment of human rights itself, an analysis that one would have to be totally lacking in sound moral judgement to accept since it is so obviously contradictory as well as morally and logically skewed indeed it is apparently clear that the drafters of the bill of rights had the moral coherence to recognise the distinction between crimes and punishment which abolitionists try to desperately erase.

Amnesty International calls the death penalty the premeditated and cold blooded killing of a human being by the state.

Abolitionists’ arguments concerning the death penalty always seem grossly unsatisfying.

Concepts of retribution, deterrence and just punishment are discussed in the most thoughtful terms, but nowhere do we find a clear discussion of the crimes at issue.

Nowhere do we find an acknowledgement — one called by common decency — that the murderer is not the victim, and whatever pain the murderer may suffer incident to his execution pales in comparison to the agony and terror he inflicts on his victim.

The crime of murder is somehow conveniently omitted in the discussion for abolition of death penalty. The act of execution becomes the discourse’s heart and soul.

These discussions are like playing Hamlet without the ghost —  reviewing the merits of capital punishment without revealing just what a capital crime is really like and how the victim(s) have been brutalised.

The minister disclosed that 89 people are on death row, consisting of 87 men and two women. It suffices to note that all 89 have been convicted of murder with actual intent or murder in the course of robbery where no extenuating circumstances existed.

Zimbabwe last carried executions in 2004 — the hangman post fell vacant in 2005 following the retirement of the executor — it is with great joy to learn that the post has since been filled.

Now we would want to see government live upto its oath and start effecting these executions… for crying out loud they are long overdue.

Seven countries namely Botswana, Egypt, Equatorial-Guinea, Ethiopia, Libya, Somalia and Sudan are reported to have carried out executions as recent as in 2007. And together with Zambia they all refused to vote in favour of the UN General Assembly resolution 63/166 calling for a moratorium on executions.

Section 48 of the Constitution of Zimbabwe exempts all women, men under 21 at the time of the crime and over 70s from the death penalty.

It also prohibits the imposition the death penalty as a mandatory punishment and for any other crimes than murder “committed in aggravating circumstances.”

*Chigudugudze is a final year Law Student at the University of Zimbabwe. He writes in his personal capacity.

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