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Editor’s Memo

A hanging matter

Iden Wetherell

I WAS interested to read Emmerson Mnangagwa’s remarks on capital punishment in last Saturday’s Herald. He recounted how he had himself escaped the deat

h penalty “by a whisker” as a young man, an experience which had driven his opposition to it ever since.

He said he had gone through “a lot of pain, suffering and torture” in his life which he wouldn’t wish on anybody else. Publication of the interview came a day after four men were executed at Harare Central Prison complex.

I have also been a life-long opponent of capital punishment. I do not believe the state has the right to take lives – especially where, after conviction for murder, it is seeking to instruct society that taking lives is wrong!

There have been cases in the United States and Britain (before it abolished the death penalty) of individuals with diminished mental capacity being executed or whose convictions would not today be regarded as “safe” by the courts. The European Court of Human Rights has ensured that no state in Europe should engage in the barbarity of killing its own citizens as judicial retribution.

In other states the death penalty survives only in exceptional circumstances. But along with the United States – the chief offender – many governments persist in enforcing the death penalty because their publics want it despite the absence of any data to suggest it deters crime. The US has the highest murder rate in the world.

South Africa’s constitution outlaws capital punishment. Significantly, a majority of South Africans would be likely to support it if asked in a referendum. The ANC has repeatedly said this is the sort of issue where government needs to provide an enlightened lead rather than bow to populist demands.

I am inclined to agree, even if there is a democratic contradiction here. But the South African law enforcement authorities need to understand that detection and apprehension are the best guarantees against public disquiet and vigilantism.

I have no doubt that the death penalty constitutes an “unusual and cruel” punishment and that the US keeps it for the same reason it legalises the carrying of weapons – a legacy of frontier justice and militia traditions. It is exactly 50 years this week since Julius and Ethel Rosenberg were sent to the electric chair amidst officially-inspired anti-Communist hysteria for giving the Soviets the secrets of the atomic bomb.

Our courts under the enlightened leadership of Chief Justices Enoch Dumbutshena and Anthony Gubbay developed an impressive record of upholding human rights in line with constitutional provisions. Flogging of youths was for instance forbidden. The present Supreme Court bench hasn’t proved so vigilant. Chief Justice Godfrey Chidyausiku increased sentences against three Americans convicted of arms-of-war breaches a few years ago even though evidence was led that they had been tortured in custody.

Two of those executed last Friday, Stephen Chidhumo and Elias Chauke, were among a group of four who escaped from Chikurubi maximum security prison six years ago while serving sentences for robbery. One of them, shot dead before recapture, killed a warder. The fourth escapee broke his leg and died of injuries in his prison cell. Justice Chidyausiku sentenced Chidhumo and Chauke to death saying “it did not matter who fired the fatal shot”.

In a society where the police have been accused of selective application of the law, torture and other abuses, we cannot trust the state to manage such a sensitive issue with impartiality. Treason is a capital offence and we have seen how it has been manipulated for political purposes in recent months.

Another concern is the low standard of legal representation given to many facing the death penalty. Before his recent retirement from the bench, Justice Nick McNally rebuked a lawyer for coming to plead for a condemned man’s life without even reading the record. Very simply this government cannot be trusted with the death penalty in the same way it cannot be trusted with upholding the law and civil rights. A rogue regime will abuse the death penalty in the same way it is abusing the court process.

Emmerson Mnangagwa has been mentioned in connection with the succession to President Mugabe. In last Saturday’s interview he denied that he had any such ambitions. While it was refreshing to hear his views on such important issues as the death penalty, he should have been asked about human rights abuses and the subversion of the rule of law. If he reacts with horror to capital punishment because of his own experience, why does he not react the same way to reports of torture? He was a strong exponent of law reform in the mid-1990s. What are his views today?

These are the sort of things contenders for high office – even denialists – should be asked so Zimbabweans can assess their leadership qualities. We cannot have people emerging on the basis of their proximity to a tarnished throne.

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