MUNASHE O'BRIAN GUTU*
The grisly Tapiwa Makore murder trial has, arguably, been one of the most followed cases in the history of Zimbabwean law and jurisprudence. And, following the imposition of the death sentence upon Tapiwa Makore Snr and Tafadzwa Shamba by Justice Mutevedzi, the debates surrounding the contentious subject of the death penalty in Zimbabwean law have resurfaced with pressing palpability; both online and offline.
The two capital felony convicts were sentenced to the hangman's noose for murdering Tapiwa Makore Jnr (then 7 years old) in what has been concluded to be a brutish, barbarous ritual murder. The convicts had told the court that they killed the boy intending to sell his body parts for US$1 500.00 to beef up their cabbage-selling enterprise.
While many countries have moved against the death penalty for one reason or another, Zimbabwe has obstinately maintained the legality of capital punishment. In fact, the death penalty is currently constitutional – and is provided for under section 47 of the Constitution of Zimbabwe, 2013.
When do Zimbabwean courts impose the death penalty?
The court is empowered to hand the death penalty on someone [read convicted criminal] who commits murder in aggravating or disturbing circumstances.
These include butchering a person to death using painfully savage and irritating methods.
Similar to the ghastly Tapiwa Makore murder, the two adult males dismembered the body of the deceased innocent child into pieces and collected his body parts for advancement to ritual undertakings. The boy`s head is yet to be located, leaving a heart-wrenching trail of debilitating emotional trauma for the parents, relatives, and friends.
According to Zimbabwean laws, the death penalty cannot be imposed on a woman or a male adult under twenty-one. It is restricted to male adults who commit heinous murder crimes.
The last execution was done in 2005, following which executions have been temporarily suspended.
Nevertheless, the death penalty remains a major part of Zimbabwe's criminal law – with several applicants, including two women, vying for the hangman's (or hangperson’s?) job.
Arguments against the death penalty
There is a wide range of arguments against the death penalty. The one which stands out from the abolitionist propositions is permeated with human rights/humanist undertones.
Those who argue for the abolition of the death penalty in Zimbabwe and elsewhere propound the idea that to place a human being (no matter how macabre the crime committed or the circumstances thereof) on the death row is a flagrant abuse of the right to life and dignity.
The other rights-premised argument advanced is that capital punishment does not meet the progressive values that our contemporary 21st century civilisation is associated with. In simpler terms, it is no morally condemnable and therefore no longer desirable.
Arguments for the death penalty
In criminology, arguments for the death penalty are founded on the crime-control approach towards handling crimes; so as to achieve reasonable levels of safety in society.
This is a legal jurisprudential approach which forms the core basis of criminal law as we know it. Not only in Zimbabwe but across the world.
The purpose of crime control is to ensure deterrence of members of the public from committing murder in irritating circumstances. This method seeks to discourage people from acts of murder by way of showcasing the hanging of murder convicts.
The most conspicuous psychological effect associated with the existence of the death penalty in any ‘criminal justice system’ is to reduce the rate of disturbingly barbarous murder crimes through instilling an immense fear of being hanged in potential offenders.
Is there need for law reform in Zimbabwe?
Due to the excruciatingly harsh political, social, and economic material conditions prevailing in Zimbabwe’s ever-troubled political economy, there has been a notable upsurge in the rate of crimes generally. It is an unsettling truism that cannot be wished away.
Over the past half-decade, gruesome robberies, disturbing mine violence, child trafficking and ritual murders have dominated news cycles with a cynical flair of discomforting ubiquity.
The freshest cases in this worrying phenomenon of brutal criminal acts include the Tapiwa Makore case and, more recently, the notorious, infamous Muvevi [psychopathic] episodes of killings.
This upward trend of crime records in the Zimbabwean ‘Second Republic’ has left Zimbabweans extremely fearful and paranoid of losing their lives when transiting and even in the comfort of their homes.
For some, this worrisome trend evidently justifies the need to hold on to the death penalty.
One of the purposes of criminal punishment is to punish the offender and to pacify the victims.
Because the basic tenet of criminal law is that an affront has been committed against the public (the state), which is why in criminal law it is the state that prosecutes the case unlike in private law where individuals institute prosecution proceedings.
While the death penalty will not bring back the deceased's life, it does, to a certain extent, soothe the grief of the deceased`s close ones. Though the extent of such soothing is arguable.
The death penalty also confirms that the right to life is equal for every individual.
The question supporting this is – Who are you, in the first instance, to take the life of another human being? If you take a life, then the state may also deem it fit to take yours so as to pacify the distressed public.
Against this backdrop, to argue that the death penalty (when appropriately qualified and handed down) is a flagrant violation of the convict`s right to life might be construed as a misconception of the raison d'etre of the death penalty.
In actual fact, capital punishment upholds the right to life by placing a higher value on the loss of it. It meets the justice of the case by valuing the life that has been lost in a gruesome fashion.
Writing in a classic treatise on natural rights, prominent French scholar John Locke opined that;
the regard for the right to life can be shown emphatically by the adoption of the rule that he who violates that right in another forfeits it for himself, and while no other crime that he can commit deprives him of the right to live, this shall.
Dissimilarly, abolitionists' human rights proposition places a higher value on the right of the murderer than those of the victim and their remaining loved ones. Because, what gives the state the prerogative to take the life of another being? Who are they to kill another individual just because the latter committed a similar offence? This is as absurd as it is contradictory.
It is an archaic proposition that flaws against the same human rights standard the abolitionists purport to advance. Indeed, we live in a world full of contradictions.
The bizarre yet perceptible condition called human existence should be approached from a deep understanding (and praxis) of dialectics. We live in a world full of contradictions.
Conclusion: Observations from public consultations and surveys
Recently, the government of Zimbabwe has been conducting public consultations on whether the death penalty should cease to be part of Zimbabwe's criminal legislation.
There seems to be a balance in the statistical data. Owing to some civic organisations’ advocacy campaigns against the death penalty, there has been a paradigm shift towards its abolition in 2022 than during 2018.
Interestingly, the Tapiwa Makore case has proven otherwise. A massive chunk of the public on social media platforms applauded Justice Munamato Mutevedzi's judgment.
Justice had been served for most people, and the courts had upheld that sketchy concept called the ‘rule of law’. Now that Zimbabweans have a practical understanding of when the death penalty can be imposed, will they buy the abolitionist stance?
We’d love to hear your thoughts on this contentious subject.
*Munashe Obrian Gutu is an attorney, writer and blogger based in Harare. He opines in his personal capacity.
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