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‘Aggravating Circumstances’ May Have Just Ended The Death Penalty In Zimbabwe

‘Aggravating Circumstances’ May Have Just Ended The Death Penalty In Zimbabwe

“Aggravating Circumstances.”

The future of the death penalty in Zimbabwe will come down to the meaning of these words. Or, perhaps, their lack of clear meaning.

According to the country’s 2013 constitution, even while “every person has a right to life,” “a law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances.”

According to Zimbabwean High Court Justice Charles Hungwe, this is simply not enough guidance. Until the country’s parliament enacts a law detailing just what constitutes aggravating circumstances, the country’s courts will not be able to sentence individuals to death.

According to the Justice, the inclusion of the “aggravating circumstances” standard in the new constitution, something that was not present in the old Criminal Procedure and Evidence Act that previously defined criminal law and punishment, is meant “to unfetter the exercise of…discretion” that previously existed for sentencing courts.

To Hungwe’s point, other than “aggravating circumstances,” the conditions under which capital punishment may be used are remarkably well defined by the country’s constitution.

Section 48(2), the country’s article that deals with the fundamental “Right to Life,” ensures that courts are given discretion whether or not to sentence an individual to death, thus disallowing mandatory death sentences for crimes, the provision also forbids the death penalty against men under 21 or over 70 and all women.

The constitution also specifically allows individuals who are sentenced to death the ability to seek “pardon or commutation from the President” and maintains that the judgment must only be carried out after a final order by a Court.

With this level of detail, Hungwe ruled that no Zimbabweans could be sentenced to death until Parliament further describes exactly what constituted “aggravating circumstances.”

There is extensive disagreement between international criminal systems as to whether such “aggravating circumstances” or “aggravating factors” should be spelled out by the code or left to the discretion of the sentencing judge.

According to Dr. Barbora Hola, an Assistant Professor at the VU University of Amsterdam’s Law Faculty and a scholar of sentencing guidelines, “many domestic jurisdictions provide acceptable factors concerning aggravation of a sentence…” For instance, the United States Criminal Code includes 16 separate aggravating factors for homicide, in addition to 11 others that apply to other crimes that can warrant the death penalty under Federal Law.

However, such specificity is not the case in all circumstances, Hola goes on to discuss the sentencing regimes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International

No Legal Framework

Criminal Tribunal for Rwanda (ICTR), which provide no legal framework but prefer the discretionary, judicial method. The Appeals Chamber for the ICTY noted the wide discretion, saying “Trial Chambers have some discretion as to the rubric under which they treat particular factors.”

Taking the detail oriented constitutional provision to favor detail over discretion, Hungwe also wrote that he “interpret[ed] the legal position to be that in keeping with its international obligations and best practices, Zimbabwe intends to move away from the death penalty.”

There appears to be some support for this idea amongst prominent politicos in the sub-Saharan state. Justice Minister Emmerson Mnangagwa has vowed to sign no “death warrants,” the final step in the execution process, during his tenure. He has said that even while the constitution allows for such a punishment, he personally finds it unfair.

Mnangagwa is himself intimately familiar with capital punishment, having been sentenced to death by hanging under the regime of Ian Smith in the 1960’s, while he was in his teens. Not only did he escape the noose due to his youth, he has managed to rise to a position where he has immeasurable control over potential executions.

As we have previously discussed here at AFKInsider, a Zimbabwe that is moving away from the death penalty fits within the wider trend across the continent.

In the past few years less and less African countries have sentenced individuals to death or carried out such sentences, but the countries that do have seemingly doubled down. This has increased the total number of executed individuals even as the number of countries falls.

While 2013 saw 16 individuals in Zimbabwe sentenced to death, Minister Mnangagwa’s presence ensures that no individuals are executed. Should the country’s parliament not intervene on Hungwe’s ruling and it survives appeal, the country will also no longer sentence individuals to death. This would mean that despite a constitution that specifically provides for the death penalty, there would be a de facto ban in the country, a major victory for abolition advocates even without constitutional or legal change.

Andrew Friedman is a human rights attorney and freelance consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.