In solidarity with the National Association for the Advancement of Coloured People (NAACP), one of the organisations fighting for the abolition of capital punishment in America following the terrible fate of Troy Davis on the 21st of September, I posted on my facebook wall a call for signatures to a petition demanding such abolition in America.My Facebook status read,
“The case of Troy Davis brought home to me that we have a similar situation in Zimbabwe. Although the death penalty has not been executed because currently nobody wants to be the hangman, many are languishing in prisons on the death row, some of whom may be innocent. Let us help our American friends to get rid of their death penalty. We help them today and maybe they will also help us when we begin our campaign to do away with capital punishment in Zimbabwe.”
One would presume such a petition would receive positive commitments to sign onto the petition but NO, that presumption would be misplaced as mine was. The responses I got back were resounding no no’s. No, we are not going to sign the petition because we do not believe in what it says. No, poor Mr Davis might be one of the few innocent people who got a raw deal from the existence of capital punishment, but in Zimbabwe we need the death penalty and it remains a necessary evil in order to deal effectively with crime. As one person argued “the nature of wickedness and barbaric acts” that certain individuals commit must be punished with the death penalty. One other person argued that only the death sentence was the answer because these people are evil and a life sentence would not serve the same purpose the death sentence does because the evildoers would continue to “use tax payers money in food and “enjoying” life (though with limitations) which they would have brutally denied of their victims.”
So I ask is the death penalty a necessary evil in Zimbabwe?
I know the feeling of living in fear of dangerous criminals. I remember the fear that filled Zimbabweans’ hearts when Edmund Masendeke, Elias Chauke and Stephen Chidhumo three of the most notorious criminals to ‘grace’ the Zimbabwean landscape escaped from Chikurubi Maximum Prison in 1995. They were infamously known for murder, rape and armed robbery. Masendeke and Chidhumo were the last 2 people to be hanged in 2004.
Since then the ‘Office of the Hangman’ has remained vacant leaving those sentenced to death waiting on the death row. Civil rights defenders in Zimbabwe have reported that some prisoners have been on the death row for an average of four years with some having been ‘waiting to die’ for as long as 13 years. Meanwhile they live in prison conditions that are unsanitary, harzadous to health and can only be summarised as inhumane and degrading.
So I ask again what the purpose of a justice system is. Is retribution the goal or is it not rather restoration? Is the goal of justice to punish human error/folly/wickedness or whatever else may have motivated the murder in the worst possible manner available? Is it not rather to condemn the acts committed, punish them but at the same time restore the values of respect for humanity in the perpetrators that they would have lost when they committed these foul acts?
Why do we have the death penalty in the best place? Are there no other punishments that could serve the same purpose of punishing wrongful acts without giving the impression of being vengeful? Is life imprisonment not punishment enough? So if our version of justice is equal to the murder of those who murder shall we also amputate those who amputate and rape those who rape? Are we serving justice or exacting revenge when we do this? Do we not then lose our humanness and reduce ourselves to the levels of the same criminals that we condemn when we do these things? Are we not ashamed that we could be killing innocent people like Troy Davis?
In a justice system in a state similar to the Zimbabwean situation where the quality and intensity of investigations is poor, the morale of the police is low, the levels of corruption among the prosecutors and magistrates is high and even the integrity of the judiciary and law profession is compromised then the probability of innocent people being convicted based on circumstantial evidence is high. I guess it is more convenient and comforting for the prosecutor and investigating officer of the murder to go home knowing that they got someone convicted for a murder even knowing that the accused could have been innocent than not to have apprehended anyone in connection with the case at all. So then is human life now less important than a criminal investigator’s ego or promotion? Are we really serving justice when we sentence individuals to death?
The following excerpts forming the reasoning of the South African Constitutional Court in the case of the State v Makwanyane answer some of these questions for me. In that case the court concluded that the death penalty was a form of inhumane and degrading punishment and treatment in South Africa and since that decision the death penalty was outlawed in South Africa.
In arguing that the death sentence gives no room for innocent people to vindicate themselves the Court said,
“The differences that exist between rich and poor, between good and bad prosecutions, between good and bad defence, between severe and lenient judges, between judges who favour capital punishment and those who do not, and the subjective attitudes that might be brought into play by factors such as race and class, may in similar ways affect any case that comes before the courts. But death is different, and the question is, whether this is acceptable when the difference is between life and death. Unjust imprisonment is a great wrong, but if it is discovered, the prisoner can be released and compensated; but the killing of an innocent person is irremediable. While this court has the power to correct constitutional or other errors retroactively…it cannot, of course, raise the dead.”[Para 54]
The Bench also refused to be swayed by public opinion as people were also clamouring for the death penalty to be retained and the Court went on to say;
“The carrying out of the death sentence destroys life, which is protected without reservation under section 9 of our Constitution [the South African Constitution], it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable…I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment. [Para 95]
In responding to the Attorney General’s argument that the death sentence was the most effective punitive measure without which the criminal justice system would be compromised the Court said;
“In the course of his argument the Attorney General contended that if sentences imposed by the Courts on convicted criminals are too lenient, the law will be brought into disrepute, and members of society will then take the law into their own hands. Law is brought into disrepute if the justice system is ineffective and criminals are not punished. But if the justice system is effective and criminals are apprehended, brought to trial and in serious cases subjected to severe sentences, the law will not fall into disrepute. We have made the commitment to “a future founded on the recognition of human rights, democracy and peaceful co-existence…for all South Africans.” Respect for life and dignity lies at the heart of that commitment. One of the reasons for the prohibition of capital punishment is “that allowing the State to kill will cheapen the value of human life and thus [through not doing so] the State will serve in a sense as a role model for individuals in society.”Our country needs such role models. Reconciliation contains the following commitment: The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. (Emphasis supplied) [Para 124]
One thing is for sure, advocating the abolition of the death penalty, does not mean playing down the enormity of the crime being punished. Handing down the death sentence does not guarantee deterrence in crime and no credible evidence to this date has shown that the death penalty ensures reduction in crime rates. In fact studies conducted in the US have shown that crime is higher in states that retained the death penalty and lower in those that abolished it. It is an inhumane act that no government should sustain and it goes against the very moral fabric of society that we condemn in those who commit terrible crimes. No society should uphold it or condone it!
I cannot understand how Zimbabweans would want to retain the death penalty given our history and our heritage. We inherited the death penalty form the legacy of colonialism and it is one of the evils we should have gotten rid of upon attaining independence. One of the most significant historical accounts in the struggle for independence is the story of Mbuya Nehanda, the great Zezuru Svikiro who resisted the white colonialists and inspired the Shona people to rise and expel the British from the land. She went to her death in defiance, denouncing the British. Her death by hanging at the hands of the British settlers is condemned even today, not just because she was fighting for a good cause but also because they denied her dignity at the moment of her death. Her last words “My bones shall rise” are a source of inspiration, at least to me as I continue the struggle for dignity, equality and freedom that she began. I believe she is turning in her grave when the same noose that sent her to her death bed is still being used to destroy human life, regardless of whether the people getting killed are innocent or guilty.
Life is life.