ZIMBABWE is now thinking seriously about replacement sentences as the Death Penalty Abolition Bill moves steadily through the Parliamentary processes with support from both sides of the House of Assembly and Senate.
Debate is now around getting the sentencing policy right.
The death penalty is an all-or-nothing sentence, and replacing it with mandatory life imprisonment for all murders would not be a dramatic advance, removing the discretion that judges must have as they take into account all the aggravating and mitigating factors.
But sentencing has to be consistent and the Minister of Justice, Legal and Parliamentary Affairs, Ziyambi Ziyambi, last week brought up part of the difficulty when he noted that some judges, in order to avoid a death penalty, actually set a prison sentence for a murder that many might regard as less culpable than another judge thought deserved the death penalty.
We have also been seeing the effects of first the Government becoming very reluctant to confirm death sentences, and for almost 20 years, has refused to confirm a death penalty.
An execution warrant in Zimbabwe must follow a Cabinet decision and the growing opposition to the death penalty means that such a decision is now impossible. Instead at fairly regular intervals, the Presidential prerogative of mercy has been used to convert all death penalties, at least in cases where the convict has been on death row for several years, to life imprisonment.
The occasional ad hoc Presidential clemency order, designed to decongest prisons and give many convicts a second chance, has generally released lifers after they have served a minimum of 20 years, a bit less if they are very old.
Release after 20 years corresponds to an effective 30-year jail term, since a prisoner is automatically released after serving two thirds of an effective jail term so long as they have generally behaved well in prison, that is stayed out of trouble, generally followed the rules and at least pretended to accept rehabilitation.
This is one reason why we do not have serious violence within our prisons or prison riots and it is a policy that has been in force for many decades.
That 30-year jail term is also roughly what many judges start with when looking at a sentence once they have decided a death sentence is inappropriate, so the clemency orders do correspond to what the courts feel is fitting.
But they are also a fairly blunt instrument, treating each very serious case the same. Murder is a very serious crime, deliberately taking away someone's life, and so a severe sentence is required to meet the expectations of society.
It is also a deterrent. Minister Ziyambi correctly noted that the death penalty itself is not a deterrent, as the practical moratorium in Zimbabwe has shown and the formal switch from death penalties in other jurisdictions has proved. What is a deterrent is an exceptionally high risk of arrest and conviction, coupled with a long sentence that takes a killer out of society for a major chunk of their adult life.
Zimbabwe has a low murder rate because the Zimbabwe Republic Police, even in very bad times, has always managed to maintain a high-end homicide squad to track down killers, and a killer knows that regardless of what sentence is passed, they are going to spend at least 20 years behind bars.
Minister Ziyambi has now thrown into debate the Government thinking that mandatory life sentences need to be imposed for murder committed during insurgency, banditry, sabotage or terrorism, and also when the murder is coupled with another exceptionally serious crime such as rape or robbery, or the murder of a police officer or murder when escaping lawful custody.
Most of us would agree with this thinking, and the judiciary are likely to agree since these are the crimes where sentences of death or life imprisonment are already being passed.
But by bringing in the certainty of life imprisonment, it is being made very clear to potential offenders that this is what is going to happen.
In other murder cases, the "ordinary" murder, if such a concept is possible, our judges are already passing fixed if very long prison terms. We have had a judge passing a 35-year sentence on a young man who she thought was capable of rehabilitation, for example.
The Judicial Service Commission recently set sentencing guidelines for many crimes, a sort of standard sentence or range of sentences that a magistrate or judge would then adjust after considering all mitigating and aggravating circumstances, and having murders included would not be a major effort.
Starting with the effective 30-years of the clemency orders is as good a place as any for a starting point and judges could then increase all the way to life in very aggravating circumstances, or reduce to say 25 years or even exceptionally to 20 years as mitigating circumstances piled up.
The other area where Parliament is being practical over crime and sentencing is the attempt, seemingly by a legal drafter, to reintroduce the crime of deliberate infection with a serious sexually transmitted disease.
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This was largely abolished when knowing infection with HIV was decriminalised, largely on the basis that the crime is almost impossible to prove.
There were no known successful convictions. So the Government is right to want this potential amendment to be dropped.
However, there are many sentencing examples of rape convictions, or convictions of sexual relations with a person below the age of consent, where a magistrate or judge has considered infection, regardless of whether it could be deliberate or accidental, as an aggravating circumstance and has not hesitated to add a few years to the sentence. This is one of those areas where judicial discretion appears to be more appropriate, rather than have Parliament trying to second guess what is appropriate.
Parliaments are good at setting maximum penalties, although not in all cases, and especially those where the circumstances can vary so widely, and occasionally minimum sentences might have to be set. But otherwise, since each crime is unique, the judicial officer trying the case can within sentencing guidelines be the best person to set the particular penalty.
And in this case, as Minister Ziyambi indicated, the sentencing stage is the appropriate place rather than trying to define a crime that is in most cases, almost impossible to prove.
