In 2013, Zimbabwe adopted a new home-grown Constitution to replace the Lancaster House Constitution.
PROCEED MANATSA SUNDAY VIEW
The adoption and coming into force of a new constitutional dispensation has been hailed by many as a great leap forward considering the shortcomings of the erstwhile Lancaster House Constitution. However, this is not to say that the new constitution is a perfect document.
Being a negotiated document, the new charter is not without its own flaws as shall be demonstrated below.
From a gender law perspective, the new charter has been viewed by gender activists as a panacea for gender main-streaming in that it has made the relations between men and women its guiding principle as reflected by most of its provisions.
However laudable the new constitution may be, there have been concerns from the general citizenry that the capital punishment clause under the new Zimbabwean Constitution (section 48(2) (d)) does not strike an acceptable balance between the rights of men and women. Having read and analysed the new charter, I am inclined to conclude that indeed the capital punishment clause leaves a lot to be desired.
According to section 48 (2) (d) of the new constitution of Zimbabwe, capital punishment must not be imposed on a woman.
Yet the same punishment may be meted out on a male offender who would have committed murder in aggravating circumstances. With respect, this is an example of a badly crafted constitutional provision.
It is hereby argued that the stance taken by the constitution makers, namely sparing women the death penalty when men are not being spared, is overly feministic rather than gender centric.
By empowering the woman and disempowering the man, the new charter is shooting itself in the foot in the sphere of equality.
With respect, it boggles one’s mind what was in the minds of the constitution makers when they contemplated such a legal exemption only for women when the same exemption is not afforded or extended to men. A fundamental question that could be asked then is:
By making provision for exempting only women from the most dreadful punishment, are we not opening floodgates for the use of women by men as proxies in committing murder in aggravating circumstances?
A man who wishes to commit murder may avoid capital punishment by partnering with a woman, using the latter as an actual perpetrator and proxy knowing fully that the latter enjoys an exemption from the imposition of capital punishment and cannot face the death penalty.
In the end the man may escape capital punishment for the simple reason that he would be regarded as an accomplice to murder and hence the sentence that is meted out to the actual perpetrator is the one that is meted out unto him.
To add on to the above, I don’t see the moral or legal justification for qualifying the right to life for men while the women’s right to life is not.
It is submitted that the situation would have been better had only pregnant women been exempt from the carrying out of the death penalty.
In such a case, there would have been a moral ground for the exemption because you can’t kill an innocent life in the form of a foetus.
However, in the absence of an express justification, it remains unclear what was in the minds of the constitution makers in contemplating such a legal exemption.
Furthermore, that the right to life of men is qualified when that of women is not is utterly unjustifiable considering the equality clause under the same Constitution (section 56 (1)) which stipulates that:
“All persons are equal before the law and have the right to equal protection and benefit of the law.”
This then speaks volumes about how the new charter is contradicting itself. Thus, one begins to wonder whether men and women are not equal beings before the law contrary to the spirit and ethos of section 56 (1) of the new constitution.
While section 56 (6) (a) and (b) of the new constitution allow the State to take reasonable legislative and other measures to promote the achievement of equality through affirmative action and to protect or advance people or classes of people who would have been disadvantaged by unfair discrimination, it should be borne in mind that sparing women from the death penalty is in no way a measure towards affirmative action.
This is so because history has it that ever since the execution of Mbuya Nehanda, no females convicted of murder have been executed to date. Thus, women have not been disadvantaged by unfair discrimination so as to warrant their being exempted from the imposition of capital punishment through affirmative action.
Drawing from the above, the author is of the view that section 48 (2) (d) of the constitution (on exempting women from capital punishment when men are not spared) is utterly unjustifiable. Further, as has been aptly demonstrated above, there is not any legal or moral justification for exempting women from the wrath of capital punishment when men are not spared the same punishment in circumstances they would have both committed murder in aggravating circumstances. All this leads to an inescapable conclusion that the death penalty clause under the Zimbabwean constitution is a lost opportunity for gender parity.
l Proceed Manatsa is a registered lawyer, research fellow and teaching associate in the Private Law Department at Midlands State University. He can be contacted at firstname.lastname@example.org or cell number 0773 820 735.