TO hang or not to hang convicted murderers has generated ardent debate in Zimbabwe.
The debate has an emotive space of contention among Zimbabweans with lay and expert voices differing on what constitutes human rights and the sanctity of life.
This comes as the authorities have set in motion legislative processes to remove the death penalty from the country's statutes in line with global human rights standards, following nationwide consultation.
Zimbabwe is one of about 16 out of 54 countries in Africa where the death penalty is still in the statutes.
The Death Penalty Bill was gazetted recently and will be debated in Parliament.
It seeks to obliterate the death penalty and replace it with a maximum sentence of life imprisonment, after an effective moratorium on executions for more than 18 years.
The Bill does not just want to block future sentences of death, but proposes that all those now on death row must be brought before the High Court for re-sentencing.
The Bill has elicited sharp and conflicting views with some arguing that it should be retained as a deterrent measure to reduce murder cases while others are of the opinion that it should be abolished.
Those supporting the abolishment of the ultimate penalty strongly feel the practice of using the death penalty in contemporary society undercuts any conceivable alternate moral message since the primary message conveyed by an execution is one of brutality and violence.
Veteran lawyer Mr Muchadeyi Masunda said the Bill is consistent with the abolitionist stance which President Mnangagwa has always taken on this conundrum even before the advent of the Second Republic in November 2017.
"I endorse the proposal in the Bill under consideration that the current death row inmates should be brought before the High Court for re-sentencing.
"However, I submit that a clear distinction should be drawn between recently condemned criminals and those who have been languishing in death row for over 20 years," said the renowned legal expert and former Harare mayor.
In his view, the latter category of death row inmates should be entitled to immediate release albeit on stringent parole conditions to be determined at the unfettered discretion of the High Court while the rest should have their respective cases reviewed along the lines envisaged in the proposed Bill.
The Church strongly feel that public policies that treat some lives as unworthy of protection, or that are perceived as vengeful, fracture the moral conviction that human life is sacred.
It believes in the sanctity of life.
"Life is sacred and God-given and cannot be taken away by anyone, under whatever circumstances," said Bishop Erick Ruwona, the Bishop of Anglican Diocese of Manicaland.
"Those who commit serious crimes deserve to be punished but capital punishment must not be part of it."
While he concedes that punishment of murder must be severe, Bishop Ruwona, submits that multiple life sentences should be imposed, even without option for parole.
For almost over two decades, Zimbabwe has been viewed as a de facto abolitionist.
Although it retains capital punishment in its criminal law, the country has not carried out any execution since 2005.
In 2018, more than five murderers were sentenced to death and more than 81 people remain on death row.
A social analyst Dr Geoffrey Chada says anyone who deserves death sentence should be committed to life sentence and never see light of the day. He should not go back to the community. That is the only way to prevent a potential conflict in the community he comes from.
In his opinion, death penalty will never stop crimes of the worst order and he views such kind of penalty as merely a tit-for-tat judgment, which does not bring a permanent solution.
"Even during the colonial era, the Smith regime executed many Africans in a bid to instil fear among the masses seeking freedom from the bondage of colonialism, but more and more young men and women were inspired to revenge against the atrocities of the brutal regime by tracking to Mozambique to join the liberation war, as they sought to revenge for the loss of their loved ones at the hands of the brutal regime," he said.
Dr Chada said it is high time the authorities explored a more humane way of keeping these people who have killed away from society.
"People who commit crimes that deserve death penalty are already mentally dead and capital punishment is no correction to that mental condition," says Dr Chada adding:
"Death penalty is no correction to that mental condition. It's not a deterrent to committing heinous crimes in society."
"Away from the society, that is where the life sentence comes in," he says. "One effective element in the punishment of life sentence is isolation. It is the greatest form of punishment to a human being because we are naturally gregarious."
Prisons are there to provide correctional services. They correct inmates from deviant behaviour back to normal behaviour and to achieve this the correctional institutes employ preachers and Dr Chada says chances are that the person on life sentence is likely to end up being saved by God because he has been preached to.
"So death penalty will deprive this person from being saved because he will not be preached to," he says quoting a Bible verse, which says "Don't take revenge. It is mine to revenge. I will pay".
He added: "Death penalty is a final judgment, but did God give us the power to give final judgment on his people? Only God has that power of final judgment. Only God has this power to revenge."
So, in his view those who commit murder in aggravating circumstances must stay in jail until they die.
But Mr Kudzai Rangarirai, a legal expert is of the view that Government has to fully interrogated the effects of abolishing the death penalty.
He says looking at the crime rates in some countries which have abolished the death penalty would have greatly assisted the Government in coming up with this Bill.
"High murder rates in countries such as SA and the UK are a direct consequence of the abolishing of the death penalty," he says, adding that "A death penalty acts as deterrent to would-be murderers."
Mr Rangarirai says the death penalty allows society to show convincingly that murder is an intolerable crime which will be punished in kind.
Since society has the highest interest in preventing murder, the legal expert, strongly feels that it should use the strongest punishment available to deter murder, and that is the death penalty.
"If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life," he says.
He says any lessor punishment would undermine the value society places on protecting lives.
"I know it is in vogue to abolish the death penalty but we should be aware of the consequences of such a move," he says.
"What quickly comes to mind is the supposedly progressive abolishing of corporal punishment in schools. We just copied from other jurisdictions but we did not know the consequences of such a move.
"The current drug abuse issues were birthed as a consequence of that decision. We risk the same by abolishing the death penalty."
Mr Edison Chikuruva, a communal farmer in Gomola village, Zhombe, agrees that abolishing death penalty is tantamount to weakening the values and sanctity of victim's life and dignity.
"Looking at it, both as a deterrent and as a form of eternal incapacitation, the death penalty helps to thwart future crime," he said.
"Though death penalty is viewed on the other angle as violating the right to life, the most basic of all human rights, we must first of all consider the victims right to life first. It will be unfair to remove death penalty in our statutes. Think about the viciousness of armed robbers," said Mr Chikuruva.
Zimbabwe ratified the International Covenant on Civil and Political Rights (ICCPR) in 1991, it has not yet ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (ICCPR-OP2).
Needless to say, the arguments for and against capital punishment have raged on from time immemorial and will continue to do so for eternity, but as a progressive country, Mr Masunda says Zimbabwe should take due cognisance of the resolution which the General Assembly of the United Nations passed as far back as 1971 to the effect that in order to guarantee the right to life, as enshrined in the Universal Declaration of Human Rights, there should be a restricted number of offences for which the death penalty could be imposed with a view towards abolishing it altogether.
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"Maybe Zimbabwe should be bold enough to take a leaf from South Africa which used to have one of the highest execution rates in the world until the death penalty was outlawed by our illustrious neighbour's Constitutional Court in 1995 during President Nelson Rolihlahla Mandela's second year in office following the advent of uhuru in April 1994," he says.
"The South African Constitutional Court declared that capital punishment was not only incompatible with the human rights culture but also the prohibition against cruel, inhumane or degrading punishment."
Since 2013, the Constitution protects the right to life, but states that a law may permit a court, in limited circumstances, to impose the death penalty on men convicted of aggravated murder.
The critical concept was that it left the passing of such a law to Parliament, and Parliament was not required to pass such a law permitting the death penalty. This removed the mandatory death sentence for murder.
The new Bill now wants Parliament to exercise that constitutional discretion afresh by not permitting courts to pass such a sentence on anyone, a power Parliament already possesses, so no Constitutional amendment is needed.
A prisoner is allowed to appeal in all respects, including to the President so that the Head of State and Government can exercise the power of mercy conferred on him in terms of section 112 of the Constitution.
Zimbabwe as an independent nation was wary of the death penalty from the beginning and the multitude of colonial laws with hanging clauses were quickly dumped or replaced, and even the option of a death penalty for some ordinary crimes, although never applied, as removed, leaving a death sentence only for murder without extenuating circumstances.
Hanging required a positive decision by a Cabinet majority under the 1980 Constitution, and it became apparent during the 1990s that there was a growing abhorrence of implementing that sentence. This saw the growing number of Presidential clemency orders substituting sentences of life imprisonment, a procedure that has now been routine for a long time.
When the Bill becomes law, Zimbabwe will join the majority of countries that have abolished the death penalty.
