Then last week there was a gruesome botched execution of Romell Broom in Ohio, USA.
It is reported technicians tried but failed to find a vein to administer the required mortal fluids and at one time Broom lay on his side trying to help them find the vein.
On March 25 1997 in Florida, Pedro Medina was on the electric chair awaiting his fate. With the first jolt of 2 300 volts blue and orange flames sparked from the mask covering Medina’s face. Flames up to a foot long shot out from the right side of Medina’s head for 6-10 seconds. The execution chamber was clouded with smoke and the smell of burnt flesh filled the witness room.
We all remember the sorry sight of Saddam Hussein as he was led to the gallows with a very strong barbaric rope round his neck, with taunts echoing in the background. Doesn’t society have better methods of dealing with its malcontents?
The death penalty remains a controversial sentencing sanction. The debate on its merits or lack thereof is probably as old as the sanction itself. It is with great interest that the MDC-T last week published their red zone on constitutional reform issues in Zimbabwe. Inevitably the party stated that it was advocating the abolition of the death penalty in Zimbabwe — the subject of this article.
The death penalty has been on Zimbabwe’s statutes for a long time.
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Probably some of the most celebrated death row victims are the spirit mediums Mbuya Nehanda and Sekuru Kaguvi who were hanged by the colonialist regime in 1898. Capital punishment is provided for by Section 12 of the Zimbabwean constitution which states “it shall be lawful for a person to be killed following a death sentence imposed on him/her by a court”.
Various offences can attract the death penalty in Zimbabwe including first-degree murder and treason. The Zimbabwe Prison Service reports that 76 African male prisoners were executed between April 1980 and December 2001.
In the same period 244 inmates were sentenced to death by the High Court of Zimbabwe. Approximately two thirds of those sentenced had their sentences quashed by the Supreme Court or commuted to life imprisonment. Chidhumo and Masendeke are probably the latest high profile inmates executed in Zimbabwe.
This does not imply that there has been universal support for executions in Zimbabwe. Two former Chief Justices are noted to have voiced their concern over executions. Chief Justice Enoch Dumbutshena is noted as having told the Herald (December 7 1987) “I believe that many people we sentence to death for killing somebody should not be sentenced to death but given a life imprisonment term”. His successor Chief Justice Anthony Gubbay is recorded as having said: “what may not have been regarded as inhuman or degrading a few decades ago may be revolting to new sensitivities which emerge as civilisation advances”.
He was ruling on whether delaying executions and appalling conditions of incarceration were not contrary to Section 15 (1) of the constitution (CCJP v AG and others (1991) (1) ZLR 242. More significantly the draft constitutions produced by the Chidyausiku Commission and the National Constitutional Assembly in 2000 did not contain the death penalty, neither does the controversial Kariba Draft.
At international level it can safely be said that we are moving towards abolition of the death penalty. Legally speaking the death penalty is not prohibited by international law, nor is abolition yet a norm of international law.
The celebrated International Covenant for Civil and Political Rights (ICCPR) which is binding on most countries of the world actually does not prohibit the death penalty. Article 6 (2) of the same merely restricts its use to the “most serious crimes”. “Most serious crimes” is aptly unqualified and subjective to each country and region. However the Second Optional Protocol to the ICCPR adopted in 1989 does prohibit the death penalty to state parties to the protocol (Article 1). Henceforth it remains optional. Efforts have been made through the United Nations to adopt resolutions abolishing it.
In 1971 through Resolution 2857 and 1977 through Res 32/61, the UN took the first steps towards declaring abolition of death penalty as a universal goal and calling for restrictions on its use. However it was only in 1989 that the UN GA adopted the Second Optional Protocol to the ICCPR.
In addition both instruments instituting UN International Tribunals for Former Yugoslavia (ICTY) and for Rwanda (ICTR) did not carry the death penalty as a sanction. These tribunals were formulated to prosecute very serious crimes of interest to the international community: that is genocide, war crimes, and crimes against humanity.
About 96 countries have abolished the death penalty for all crimes, eight for ordinary crimes and 43 are de facto abolitionist. In Africa there are at least 15 abolitionist states and 21 de facto abolitionist (those who have the death penalty but haven’t used it in the last 10 years and have committed not to use it).
Sadly for Africa as of November 2008 Amnesty reports only six of the 53 states had ratified the second optional protocol to the ICCPR on abolition of the death penalty. Ninty percent of all world executions are carried out by six countries: the US, China, Iran, Iraq, Sudan and Pakistan.
Drawbacks have been encountered as some states have reinstituted the death penalty after abolition. Eg the Philippines abolished it after the overthrow of President Marcos in 1989 but brought it back in 1993.
It is the progression of the human rights movements that have had a major impact on abolishing the death penalty.
The Council of Europe has made abolition a prerequisite for membership. In April 1983 it adopted Protocol No 6 to the European Convention on Human Rights which abolished the death penalty in peacetime only. However in 2002 Protocol No 13 was adopted which abolished capital punishment in all circumstances.
As a result Europe is a death penalty free zone and there has not been an execution since 1997. In 1990 the General Assembly of the Organisation of American States adopted Protocol to the American Convention on Human Rights to abolish the death penalty.
However this protocol only calls for restriction of use rather than erasure. The African Charter does not mention the death penalty. However in 1999 the African Commission on Human and Peoples’ Rights adopted a moratorium on the death penalty. Very few states have observed the moratorium.
Crucial to these human rights instrument is the provision in most that prohibits subjection to inhuman or degrading treatment, (European Convention on Human Rights Article 3, American Convention on Human Rights Article 5, African Charter Article 5, ICCPR Article 7).
Various court judgements from these regions have expanded on what “inhuman and or degrading treatment” is to attack most methods and process of execution.
In Soering v UK the European Court of Human Rights ruled that the death row phenomenon in the US constituted inhuman and or degrading treatment fouling Article 3 ECHR. The same judgement was found in Zimbabwe by the Supreme Court in Catholic Commission of Justice and Peace v Attorney General and others 1993.
Other judgements have centred on the methods of execution. The UN Human Rights Committee ruled the use of gas chambers constituted cruel, inhuman treatment in Ng v Canada. It found also public executions incompatible with human dignity.
What are the merits or demerits of the death penalty? Most Muslim states argue that their Islamic laws and religion allows executions for various offences.
The Islamic Council adopted a Universal Declaration of Rights which guaranteed the right to life but also provides for the death penalty under authority of the law under article 1(a). Some Christians also argue that the Bible prescribes executions as just. Jesus Christ was crucified on the cross apparently for being blasphemous. Leviticus 24:17-21 says “he who kills a man shall be put to death”. Genesis 9:6 reads: “Whoever sheds blood of man; by man shall his blood be shed.”
However the same Bible provides that “Vengeance is mine, I will repay, says the lord”’ in Prov 25; 21.
Retributionists have argued that the death penalty deters criminal behaviour and recidivism.
Scientific studies have consistently failed to find evidence that the death penalty deters crime more effectively than other punishments.
A report in the Wall Street Journal of June 21 2002 stated that in the past 10 years the number of executions in the US had increased while the murder rate had declined. Still the report noted murder rates in non death penalty states were found to have remained consistently lower than states with a death penalty. However South Africa has seen an increase in rape and murder since abolition.
Prof Hag argues “execution of those who have committed heinous murder may deter only one murder per year. If it does, it seems warranted. It is the only fitting retribution for murder I can think of”. John MacAdams remarked: “If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of criminals. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would rather risk the former”. Very retributionist indeed.
These arguments seem to accept that the deterrent effect of the death penalty is at most minimum. To some extent I sympathise with this reasoning. A woman with her 14-year -old daughter are victims of a crime. The offender first rapes the daughter as her mother watches in anguish.
He chops off both arms and lets her bleed to death slowly as the mother watches. He rapes the mother and then shoots her with a pistol through her private parts. He hacks off her breasts and lets her bleed to death slowly.
Graphic and horrendous indeed. These are the stories of the genocide in Rwanda, of Foday Sankoh’s exploits in Sierra Leone. I watched in 2001 as Zanu PF thugs led by Joseph Mwale burnt to death my two colleagues Tichaona Chiminya and Talent Mabika in Buhera. Premeditated, cold-blooded murder. What rights do these criminals have to claim violation of human rights, that execution is inhuman and degrading? What of the methods they used to execute their victims for unlawful reasons?
However it is the realisation that criminal justice systems the world over are shrouded in imperfections that makes the death penalty undesirable. Execution is a totality — irreversible. A recent study by the Columbia University Law School found that two thirds of all capital trials in the US contained serious errors.
When cases were retried over 80% were not sentenced to death and 7% were actually acquitted. The Innocence project in America notes since the reinstitution of the death penalty 176 people on America’s death row have been found innocent. The most telling was the discovery in 2003 that 13 Illinois death row inmates were not guilty as charged.
Developed countries have top resources for their judiciary and yet errors abound. In Zimbabwe most of those sentenced to death are very poor citizens who cannot afford private legal representation.
The human rights movement in Zimbabwe has noted that most are represented by pro bono lawyers supplied by law firms as a social service. However the downside is that law firms mostly make available their most junior practitioners thereby compromising the quality of representation. It is not farfetched then to conclude that a great number could have been saved if the representation was right.
It has been argued that the cost of life sentencing is far greater than executions. However in the US, because of the never- ending appeals and spoilation litigation, death row inmates cost more to the state than those who have been sentenced to life imprisonment. Besides imprisonment without prospect of release is as punishing as any sanction and has an equally deterrent effect. Most lifers actually go insane during their incarceration and the constant thought of guilt, shame, and loss of liberty is more painful than execution.It is for these reasons that I support abolishing the death penalty. There is an advantage to international cooperation, especially in the field of extradition. Abolitionist states would not extradite a suspected criminal to a country which has a death penalty.
Rwanda learned it the hard way when leading genocide suspects fled to Europe and most European countries refused to extradite because Rwanda still had a death penalty. Cooperation only resumed when it was abolished.
The writer is cognisant of the fact that most data used for analysis is foreign and some might not apply to the Zimbabwean context. He can be contacted at [email protected].
By Sanderson Makombe
