To Kill A Murderer Just Deserts?

By Agyver Yvonne Sawunyama

Arguments against capital punishment almost invariably begin by drawing from religious teaching, especially Christian belief. Some elements have argued that legal problems such as this cannot be solved by non-legal tools that are faith-based dogmas. This is not only misleading, it is also palpably faulty in terms of understanding of the law. Essentially, the criminal law seeks to institutionalise the moral position of the majority in a society by debarring certain unpopular conduct. The main purpose of criminal law is to prevent socially intolerable conduct or, at least, to hold it within socially acceptable limits1. By threatening punishment the criminal law tries to suppress anti-social conduct likely to disrupt society. As a result, you have say, the presumed Zimbabwean abhorrence for homosexual liaisons hence there is the crime of sodomy. Ask for the reason behind this hatred and you get such assertions as it is unnatural, UNGODLY and just not right. Similarly with the death penalty, the greater society is from a religious, or humanitarian perspective hence the current position of the law on capital punishment is not a true representation of our social mores as very few are at peace with the idea of legalized murders. Why else would there be difficulty in employing a hangman for over 3 years now? The ordinary person in the street would decline that job offer without thinking twice about it no matter their poverty! In fact, even upon interrogating the customary law position, the practice of killing a murderer was dropped with the beginning of what I like to call civilization. From oral tradition2, this writer gathered that whereas capital punishment was used to solve the problem of grave anti-social offences such as incest and murder, the ritual was dropped with the settling/ development of clans from nomadism to settlement existence. Can it not be seen then that African culture in its dynamism underwent transition from barbaric fetishes of complete elimination of social offenders to more humane forms of punishment including simple banishment3 and compensation (kuripa ngozi)? True it is no longer tenable to banish from Zimbabwean society offenders so as to cleanse the system but it is submitted that means other than killing can solve this problematic. Recently, the courts were seized with adjudicating a case of murder in cold blood but the reality of the situation demanded more than the remedies
1

G Feltoe, Guide to Criminal Law in Zimbabwe Input mainly from Chief Saunyama and others See Amnesty International Report on Death Penalty 2011

offered under general law. In the case of S v Machaya & Ors4, the accused was convicted of murder and sentenced to 15 years imprisonment but more had to be suffered before the body of Francis Chokuda could be laid to rest. It took 35 herd of cattle and several thousands in US dollars to settle this particular injury5. The family of the bereaved sought to be compensated rather than to be seen baying for the blood of their son`s murderer. Since the burial, there has hardly been any fracas over the issue but it is doubtful whether such closure and societal appeasement would have been achieved by the hangman`s noose. Combinations of traditional as well as state remedies worked to achieve eventual restoration of the social balance which could never have come about had there been a hanging. The bereaved family got justice in the end. Quite clearly then capital punishment is unZimbabwean and a remnant of the colonial past, dead weight to be loosed at the earliest opportunity. Granted the abolitionist is faced with the truth that protection of the right to life under the Constitution of Zimbabwe is more apparent than real. S 12(1) of the Constitution permits the taking of life on pain of criminal punishment. No doubt this is fed by a belief in the so-called retributive justice, getting what`s coming to you, your just deserts. Being alive to the utility of the theories of punishment, it is submitted that the idea of just deserts was postulated with a mind to inflict punishment on a person in such a manner as to settle a score, to balance the order of things. In this way, a convicted robber can suffer imprisonment for a time sufficient to restore the upset balance of ordered life but it has never been our practice to rob the robber. The misguided reasoning behind retentionist feeling if not killed timeously will soon have us castrating rapists all in the name of just deserts. That the accused should receive the heaviest sentence permissible according to law6 solves little. In fact such behaviour is itself sardonic if not Satanic. This legal fiction that animates by promising societal closure through the hangman`s killing of the killer should be seen for what it really is, legal fiction. The reality is far less fantastical. Death by hanging is intended to drain away life in a painful manner quite akin perhaps only to the vampire draining a victim of its blood by the neck artery. According to section 39 and 40 of the Prisons Act read together with section 73(2), a medical officer is charged with periodic examination of death row inmates. The statute surreptitiously ensures that prisoners are in good health before they are eliminated. It is more like fattening livestock before slaughter. In fact, should a gaolbird fall mentally sick before they can
4

As yet unreported See The Legal Monitor issue number 117 S v Makwanyane 1995 (3) SA391@p391

be hanged, the prison officials have to wait until they are sane enough to appreciate the punishment to be meted out on them. And they will talk about just deserts when the conscience itself has buckled to the pressure of guilt; they continue with the kill even when the mind itself is dying. In the name of just desert they`ll hit you, they`ll kick you and they`ll tell you it`s fair7. Subsection 2 simply states that the Minister shall report to the President. One wonders where the executive comes in on a judicial matter. What does the President know about justice that he is afforded the prerogative of mercy8? When mere politicians are entrusted with the pardon of common persons who may not express their gratitude through the ballot come next election since they have gone gaga, this writer sees no hope in the way of justice. Moreover this writer does not see how retribution via the death penalty cannot be taken as vengeful or vindictive. Clearly the age-old savagery of tit for tat, an eye for an eye, hangman for cutthroat still haunts modernity. What then of reformation? When an individual commits a brutal murder in cold-blood do they need to be hanged, cannot they be saved? If there is no hope for a psychopath does that automatically assign the role of culling human life to the state in order to contain a contaminated society? Does the state give the right to life or it simply guarantees protection of such right to persons on Zimbabwean soil? It is volunteered that life is not given by state and therefore ought not to be taken by the state. After all, nemo dat quod non habet, none can give what (s) he does not have. When we acquiesce to lordship by the state we do not cede our right to life to the state but simply entrust it with the protection of that right and it is with protection of that right where the matter ought to end. The state does not hold title to individual rights, much less the most fundamental right to life from where all other rights flow. For as long as the state is incapable of creating persons, it should cease and desist from eliminating persons; let no one tell you any different. True, many issues that face legal policy-makers are essentially ethical issues. Abortion is one, the death penalty is another. Lawyers like to think they are peculiarly well-equipped to discuss and decide such issues, but without a proper grounding in ethics or moral philosophy their discussions are no better informed than those of any lay-person.9 It is thus out in the open that the case of the death penalty is one of grave import that cannot be whisked away by rhetoric and legal argumentation but requires far more than that.
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Attributed to Michael Jackson, Beat It S 31I of the Constitution P1, Legal Ethics, A Handbook for Zimbabwean Lawyers, Crozier B.D

In the famous South African case, S v Makwanyane10, it was well reasoned that retributive justice has for enough failed to whip society into the idealised balance hoped for. The court found that, The rights to life and dignity are the most important of all human rights, and the source of all other personal rights By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the state in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby. In the balancing process the principal factors that have to be weighed are on the one hand the destruction of life and dignity that is a consequence of the implementation of the death sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital punishment, and the existence of a severe alternative punishment (life imprisonment) and, on the other, the claim that the death sentence is a greater deterrent to murder, and will more effectively prevent its commission, than would a sentence of life imprisonment, and that there is a public demand for retributive justice to be imposed on murderers, which only the death sentence can meet. Retribution cannot be accorded the same weight under our constitution as the right to life and dignity, which are the most important of all the rights in Chapter Three. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative life imprisonment would be. Taking these factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder, has not been made out. This requires no elucidation, to do so would be to add a fifth wheel to the coach. In Mr T. Chigudugudze`s article on the self-same subject, there is much trumpeting of Hebrew scripture and its endorsement of capital punishment. It is tendered that the book of the Bible expresses chiefly the stages of a particular nation`s development from savagery through barbarism, slavery, feudalism and the Jesus-Caesar age of capitalism11. As such, there are zealotrous and recurring statements in favour of capital punishment since the book was compiled long before the Common Era which has seen the light. Now mankind accepts that execution by hanging is degrading to both the punished and the punisher alike. It causes the executioner, and through
10

1995 (3) SA 391

11

See BW Anderson`s on The Old Testament as well as History of Roman-Dutch Law class notes by Mr Munyaradzi Gwisai

him society, to stoop to the level of the criminal 12. But Zimbabwe is not only a modern state, it is a secular country that embraces different religious philosophies as according to the Bill of Rights13 therefore this Christian if not Hebrew trumpeting is of no relevance and shouldnt be entertained.

Life imprisonment suffices to punish any murderer however hard core (s) he might appear. As at January 2011, there were said to be 52 persons on death row according to an inquiry by human rights organizations14. The majority have been on death row for at least 2 years living in solitary confinement with anxiety borne of a mind to the day of reckoning. Clearly they have died a painful death for every day they have awakened expecting it to be their last. In the seminal case of Catholic Commission for Justice and Peace v Attorney- General & Ors 1993 (1) ZLR 242, it was said that, Prisoners No matter the magnitude of the crime, they are not reduced to non-persons. They retain all basic rights, save those inevitably removed from them by law, expressly or by implication. Also in S v a Juvenile15, Dumbutshena CJ as he was then asserted that, Irrespective of the offence he has committed, the vilest criminal remains a human being possessed of common human dignity. Just consider the amount of torture they undergo and you realise that death row is hell. In District Attorney for the Suffolk District v Watson & Ors16 Hennessey CJ said of the death penalty: The mental agony is, simply and beyond question, a horror. Their minds are ravaged by fear. Is that not punishment enough? To think that justice is attained in the execution of a murderer is to entertain a fantasy so fanciful it has no place in legal discourse. It is notoriously accepted that the justice delivery system is itself imperfect. There is no guarantee that the threshold of guilty beyond a reasonable doubt required in criminal trial for a conviction is always met. What usually prevails is guilty from the looks of it and should one be convicted and hanged on such basis then what because the process of hanging is an irreversible culling. Resurrections, even at the instance of the state are not known to occur therefore there is no reason to risk lives that cannot be brought into resurgence. So, the cause for the retention of the death penalty is itself a vile agenda, an antiquated fetish that this nation had dropped with the adoption of a moratorium on the death sentence during the 80s. Criminals (convicted
12

Dumbutshena CJ on corporal punishment in S v a Juvenile 1989 (1) ZLR 61 (SC) S19 Protection of Freedom of Conscience See ZNGO Human Rights Forum Anti-death Penalty Workshop Report, 2011 1989 (1) ZLR 61 (SC) (1980) 411 NE 2d 1274 (Mass) at 1283

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14

15

16

murderers in particular), ought to be put to good use in the prisons, working for the common weal which they would have tainted by murderous activity. After all there is provision for inmates to labour for the benefit of the free under the Prisons Act. More can be realised by the national purse from yes murderers than by the Grim Reaper who is the hangman!