The death penalty;

Is there any real justification for it? Is it inhuman and
degrading?
By Emmanuel T. Nhachi
The right to life as contained in section 48 of our constitution is subject to limitations, it states
that a law may permit the imposition of the death penalty. The criminal code already
prescribes the death penalty for various crimes related to treason and murder, however, the
death penalty can now only be imposed in murder committed in the most aggravating
circumstances. Despite the fact that the new constitution held on to death penalty, by using
the word may not must it gave the lawgivers the power, when amending the criminal law
code, to either allow or disallow the death penalty. This paper calls for the relegation of the
medieval practice. Our constitution also gives judges a discretion on whether or not to impose
the death penalty. This paper also calls for judicial activism against the death penalty because
there is no justification for it and it is inhuman and degrading.
The amendment of the criminal code and judicial activism to disallow the death penalty is
crucial because the primary duty of the state and law is to make human rights grow and
blossom in order to meet the just demands and aspirations of an ever-developing society.
Human rights are not conferred by constitutions, conventions, or governments. These
instruments do not give rise to human rights but simply recognize them and provide the
machinery for their protection and enforcement. Human rights must emanate from society
and from the greatest needs of society. Life, the means to sustain it and the dignity of the
human being then becomes the perennial springs of human rights from which all other rights
flow. If the state and law was to have any greater function than any other, it must be the duty
to preserve, sustain and maintain the dignity and sanctity of human life by abolishing the
death penalty.
The death penalty which is an act of killing or executing a person, who is found guilty of a
heinous crime, by the government, is mainly justified as deterrent, retributive and
proportionate measure to capital crimes. Many arguments have also been put forward to
justify the death penalty making it a messiah of the penal system, however every argument
put forward be it moral or academic it is based on a false premise that the death penalty
makes everything better.
The main justification of the death penalty is retribution. The synonyms of retribution are;
vengeance, reckoning, payback, reprisal and retaliation. This is also known as "an eye for
eye" justice. Therefore using this logic, the appropriate punishment for murder is death. Some
crimes are so horrific that some people think that revenge, reprisal or retaliation is the only
option. This reasoning is not based on logic; but rather, it is based on emotions. The desire for
revenge is one of the lowest human emotions it is not a rational response to a critical
situation. To kill the person who has killed someone is simply stooping to the level of the
murderer, and continuing the cycle of violence which is ultimately destructive. It is a myth
that execution somehow give 'closure' to a tragedy. It does not drain away anything, it’s just
another tragedy. The life of the criminal cannot compensate for the crime committed.
Basically, two wrongs do not make a right. This can also be buttressed by the fact that in our
traditional system, which is similar to the South African Culture of Ubuntu, where
compensation for murder “Kuripa ngozi” brought closure to the victims.
It is argued that prisons are for rehabilitating convicts who will eventually leave prison, and
therefore prison is not for people who would never be released from prison alive. This is an
illogical argument as the duty of the state is not only to care, protect and help those who are
not criminals but to every citizen. It is just the same as arguing that a person sick of terminal
disease does not have the right to medical attention because they are never going to live the
hospital alive. Everyone deserves dignified and human treatment regardless of their criminal
nature. The duty of care the state has, means that the purpose of rehabilitating prisoners is not
only so that they can go back into society and not harm other people but also to help them to
be better individuals throughout the rest of their life whether it will be spent in jail or not.
The other justification given by proponents of the death penalty is that, it is a deterrent
measure designed to scare people from committing serious crimes. However there is no
scientific proof that nations with capital punishment have a lower rate of crime, therefore the
risk of the death penalty does not seem to deter crime according to American Civil Liberties
Union (ACLU)"There is no credible evidence that the death penalty deters crime more
effectively than long terms of imprisonment. States that have death penalty laws do not have
lower crime rates or murder rates than states without such laws. And states that have
abolished capital punishment show no significant changes in either crime or murder rates.
The deterrent effect of the death penalty is also hard to realize because most murders are not
done by serial killers especially here in Zimbabwe but by first offenders. Most people who
have killed it was not premeditated, when one could consider the risks of being caught and
receiving the death sentence but occurred at the spur of the moment where one would
actually come to their senses when they would have killed already. Then the so called
“deterrent effect” becomes of no force or effect at all. Therefore we cannot keep such a grave
penalty when it has no significant effect however on managing crime levels.
Furthermore it is argued that the deterrent effects of the death penalty are not realized
because it is not carried out wide enough and that the state is not executing enough people
and there must be televised executions. This is insane, you do not nature a culture of peace
and justice by using violence and instilling fear in people. The same reasons will be used to
justify massacres by the government of the day and it can also be used to eliminate opposition
and instil fear in opposition. During the reign of terror in the late 18
th
century France more
than two thousand people died every day because the government wanted to instil fear in its
subjects but what they did was only to fuel rebellion and the people’s resentment of the
government. Even here in Zimbabwe and neighbouring South Africa’s history the white
settlers passed laws and policies which deprived people of their rights and later started to use
force, mass executions and massacres thinking that they could control the people through that
but what they got was a rebellion which overthrew both Governments. Any force you exert
upon the people will only be met by an antagonist and equal force. Violence is never the way
to resolve crime. Institutionalizing criminals by use of an effective and incorruptible police
force and judiciary system, and also giving them a chance to be better people is the only way
to reduce the crime rate.
It is also argued that the cost of spending life in prison is higher than just killing the criminal
and a person who has ended another’s life does not deserve to live, have shelter, food and
clothing at the expense of taxpayer’s money, so it is better is we just kill him. This is also
argued in line with the theory that the punishment must equal the crime. This cannot be
allowed to stand because the life of an individual cannot be quantified in monetary terms. The
same goes to the punishment of a criminal offence cannot be also be quantified in monetary
terms with the crime he has committed. For instance the statutory sentence for stock theft is 7
years for one cow. Taking that an average cow is valued at us$300-350, then the question is
whether US$350 equal to the amount needed to keep 1 person in jail feeding him and
providing him with food and clothing for 7years. So the bottom line is that this argument
cannot be allowed to stand as a reason for giving people the death sentence.
In the Zimbabwean legal system the death penalty becomes pointless because the criminal
justice system treats you better if you are rich and guilty than if you are poor and innocent.
This is because the rich, besides having enough money to bribe judicial officers, can afford
top Lawyers who are world-class manipulators. They know how to cover up facts and
misdirect thinking. They know how to find obscure technicalities and use any other means
necessary to get their client off without any punishment. On the other hand poor criminal
defendants cannot afford to hire these top guns; they must make do with an ineffective pro-
deo system or some other cheaper attorney, if they are lucky. This is an immoral condition
that makes rejecting the death penalty on moral grounds not only defensible but necessary for
those who refuse to accept unequal or unjust administration of punishment. Capital
punishment will then mean that, “those without the capital get the punishment”.
There is also risk that the wrong person could be charged of a crime and then sentenced to
death. There are several documented cases in the U.S.A. where DNA testing showed that
innocent people were put to death, what then of our own system where D.N.A. testing is just
but a dream. We have an imperfect justice system where poor defendants are given minimal,
if they are lucky, attention by often lesser qualified individuals. Some would blame the court
system, not that death penalty itself for the problems, but we can't risk mistakes where the
death penalty is involved. Genuinely innocent people will be executed and that there is no
possible way of compensating them for this miscarriage of justice. The other danger is that,
the person convicted of the murder may have actually killed the victim and may even admit
having done so but does not agree that the killing was murder. Often the only people who
know what really happened are the accused and the deceased. It then comes down to the skill
of the prosecution and defence lawyers as to whether there will be a conviction for murder or
for culpable homicide. It is thus highly probable that people are convicted of murder when
they should really have only been convicted of culpable homicide. Without the death penalty,
if new evidence arises it is possible to release the person from prison and compensate him. A
dead person cannot be raised from the dead and there is no going back.
Another object of this article is to prove that the death penalty is inhuman and degrading and
it must not have a place in our society. Section 53 of the constitution states that no person
must be subjected to torture, cruel, inhuman or degrading treatment or punishment. The
language of the section is mandatory whereas as shown above the one that gives the death
penalty is optional. It is mandatory to protect human dignity than to take human life.
Therefore, in order to relegate this horrendous practice, it is pertinent to prove that it is in
contradiction with the rights given in section 53 mentioned. When proved, it means that we
have to sacrifice our blood thirst to promote human dignity, which is an obligation.
To prove this it is pertinent to look at how the South African court in the case of S v.
Makwanyane and Mchunu, when the South African Constitutional court sat to consider the
constitutionality of the death penalty for murder. CHASKALSON, P., giving the judgment of
the court, focused on the issue of whether the sentence violated section 11(2) of the
Constitution which prohibited the use of cruel, inhuman or degrading treatment or
punishment. He took this interpretation taking the fundamental principle of interpretation of
matters affecting fundamental human rights, i.e.; a wide approach has to be taken. He added
that rights which were associated with section 11(2) and which were of particular importance
to the case included section 8, 9 and 10 namely, the right to life; the right to respect for and
protection of his or her dignity; and the right to equality before the law and to equal
protection of the law. In our constitution an exception of the death penalty is given to the
right to live and this has taken the effect of making all the other rights the constitution had
granted meaningless.
An argument that the constitution emanated from a democratic exercise and it was the will of
the majority to retain the death penalty in our constitution has been advanced. However
CHASKALSON, P., noted that: "The very reason for establishing the new legal order,…was
to protect the rights of minorities and others who cannot protect their rights through the
democratic process. Those who are entitled to claim this protection include the social
outcasts and marginalised people of our society.” He continued: "This Court cannot allow
itself to be diverted from its duty to act as an independent arbiter of the Constitution by
making choices on the basis that they will find favour with the public.” This seeks to show
that there are other things that a majority cannot decide. If the majority was to always have its
way it will become chaos. In any Zimbabwean high density suburbs it is possible that a
person can be lynched by the mob for stealing a single chicken. This is not justice human life
ought to be preserved even if the majority do not see the value of it.
With regards to proportionality, in the Makwanyane case it was an "ingredient" to be taken
into account when deciding whether a penalty is cruel, inhuman and degrading. Factors
included: disparity between the crime and the penalty; the irredeemable character of the death
sentence in circumstances where neither error nor arbitrariness can be excluded; and
disparities based on the race, poverty and other subjective factors relating to the accused.
These were to be evaluated with other relevant factors, including the right to dignity and the
right to life. After having considered all these factors, CHASKALSON, P., reached the
conclusion that the death penalty was indeed a cruel, inhuman and degrading punishment.
On the issue of deterrence, the court considered whether the death sentence was justifiable
under the South African Constitution, and in particular whether it was a deterrent to violent
crime. It rejected the argument that the substantial increase in violent crime during the five
years when the death sentence had not been enforced as attributable to the fact that
imprisonment was not a sufficient deterrent. Rather it emphasized that the causes were social
and economic factors such as homelessness and unemployment, and the political turmoil and
conflict during that period.
It was further noted that the there was no proof that the death sentence was a greater deterrent
than life imprisonment. CHASKALSON, P., emphasized that the greatest deterrent to crime
is the likelihood that offenders will be apprehended, convicted and punished something that is
presently lacking in the South African and also in the Zimbabwean criminal justice system.
At present the criminal justice systems in most African countries are under intense pressure
with rising crime and falling conviction rates and with police forces that are generally
underequipped, understaffed and corrupt. The imposition of the death penalty is not necessary
response to the crime wave. However in reality the death sentence debate deflects attention
away from the fundamental issue of the critical need for governments to improve the
operation of their criminal justice systems.
The court also analysed the question of whether the death sentence served any retributive
purpose and stated that whilst a punishment must be commensurate with the offence, it need
not be equivalent or identical. Further, retribution ought not to be given undue weight in the
balancing process in the New South Africa in which a need for understanding and reparation
had replaced vengeance and retaliation. According to two other judges in Makwanyane,
traditional approaches towards criminal justice have a role to play. MOKGORO, J., noted
that one shared traditional value and ideal in South Africa that ran "like a golden thread"
across cultural lines is Ubuntu which generally translates as "humaneness" and which
embodies the right both to life and dignity. In her view the spirit of Ubuntu was embodied in
the new Constitution and thus impacted on the death penalty. Similarly SACHS,J., asserted
that “the Constitutional Court should take cognisance of traditional African jurisprudence and
noted that "the relatively well-developed judicial processes of indigenous societies did not
encompass capital punishment for murder". This shows how our culture already provided
humane methods of dealing with issues than the inhuman punishment of death
In Tanzania the issue was considered in Republic v. Mbushuu. In the High Court
WALUSANYA, J. held that the death penalty was a cruel, inhuman and degrading
punishment both inherently and in the manner of its execution (by hanging) and those delays
in carrying out executions and the dreadful conditions on death row were relevant in
determining the issue. Further, the imposition of the death sentence was not saved by Article
30(2) of the Constitution as it was not a provision, inter alia, which was in the public interest,
a finding based on factors such as (i) the possibility of erroneous convictions, including the
fact that most poor defendants did not receive adequate legal representation; (ii) sentences of
life imprisonment provided protection against violent crime no less effective than the death
sentence; and (iii) the mode of execution, the inhumane conditions on death row and delays.
This shows that the death penalty does not serve any other purpose than being inhuman and
degrading.
In Mbushuu supra MWALUSANYA, J., commented: "... the only way in which the people’s
confidence in the criminal justice system will be restored is not in killing convicts but in
ensuring that offenders are caught by an uncorrupted police force and they are given the
sentences they deserve by incorrupt judicial officers. Killing a thousand convicts while
people see another thief they caught go free will not deter any crime. The constitution, the
legal system and even the whole state stands on certain fundamental principles which are its
structural pillars, and if these pillars are damaged or demolished, the whole institution will
crumble and such a situation can be brought by the death sentence. The death penalty
deserves no place in today’s society it is inhuman and degrading as it violates everything
there is to be human and helps in no significant way at all. Capital punishment does not serve
any purpose, be it deterrence or retribution.
In the Zimbabwean case of The S v. Ncube & Ors 2 the Supreme Court dodged the issue of
the death penalty but what they had to say about some punishments being inhuman and
degrading, applies to the letter on the issue of the death penalty. In this case, the
constitutionality of a judicial whipping imposed upon a male offender above the age of
nineteen years was challenged. The Supreme Court applied an expansive interpretation to
section 15(1) of the previous Constitution, and declared, firstly, “the raison d’être underlying
section 15(1) is nothing less than the dignity of man. It is a provision that embodies broad
and idealistic notions of dignity, humanity, and decency, against which penal measures
should be evaluated. It guarantees that the power of the State to the Protection and
Enforcement of Fundamental Hu man Rights. Punishment is to be exercised within the limits
of civilised standards. Punishments which are incompatible with the evolving standards of
decency that mark the progress of a maturing society or which involve the unnecessary and
wanton infliction of pain are repugnant. Thus a penalty that was permissible at one time in
our nation’s history is not necessarily permissible today. What might not have been regarded
as inhuman or degrading decades ago may be revolting to the new sensitivities which emerge
as civilization advances…” it is therefore the contention of this paper that the death penalty
by its nature it does not embrace the basic tenets of dignity, humanity and decency and it is
imperative that it must never be used by our courts in this country.
The court relied on certain factors to consider whether a penalty can be considered to be
inhuman and degrading. The four features which it considered were: firstly, the manner in
which it is administered. In light of the issue of capital punishment which is carried out by
hanging or electrocution this feature applies. In some cases prisoners don’t die instantly as
evidenced in the case of Catholic Commission for Justice and Peace in Zimbabwe v.
Attorney-General, where a prisoner on the death roll gave evidence that he witnessed an
execution where the prison guards battered a man with a hammer because he had not died yet
from the hanging. And also the fact that a prisoner on death roll has to live each day waiting
for his execution, in a cell where he can hear and sometimes see other convicts being
executed; it becomes the highest form of torture in itself which few or non can endure. It is
evident that in the same case that some prisoners went insane on death roll and some even
killed themselves, something which rather seems pointless for a person on death roll, but
because of the way the penalty is administered seemed justifiable.
Secondly, “by its very nature it treats members of the human race as non-humans.
Irrespective of the offence he has committed, the vilest criminal remains a human being
possessed of common human dignity.” Capital punishment does not respect the sanctity of life
and condemns certain members of the human race that they do not deserve to live thus
treating them as non humans, like wild animals which can culled to control their numbers.
According to an article by Agyver Yvonne Sawunyama
1
“Death by hanging is intended to
drain away life in a painful manner quite akin perhaps only to the vampire draining a victim
of its blood by the neck artery. According to section 39 and 40 of the Prisons Act read
together with section 73(2), a medical officer is charged with periodic examination of death
row inmates. The statute surreptitiously ensures that prisoners are in good health before they
are eliminated. It is more like fattening livestock before slaughter. In fact, should a gaolbird
fall mentally sick before they can be hanged, the prison officials have to wait until they are
sane enough to appreciate the punishment to be meted out on them.” This certainly shows the

1
To Kill A Murderer Just Des erts?
inhumane nature of the death penalty upon members of society, irrespective of the offence
they committed they are still entitled to humane and dignified treatment.
Thirdly, “No matter the extent of regulatory safeguards, it is a procedure easily subject to
abuse in the hands of a sadistic and unscrupulous prison officer who is called upon to
administer it” if judicial whipping was seen as prone to be subjected to abuse in the hands of
a sadistic and unscrupulous prison officer what then the death penalty would cause in an
unscrupulous and sadistic government or legal system?
Lastly, “It is degrading to both the punished and the punisher alike. It causes the executioner,
and through him, society, to stoop to the level of the criminal. It is likely to generate hatred
against the prison regime in particular and the system of justice in general.” Violence is
never they way to resolve crime. Institutionalizing criminals by use of an effective and
incorruptible police force and judiciary system, and also giving them a chance to be better
people is the only way to reduce the crime rate and increase the people’s confidence in the
criminal justice system. What the death penalty does is to divert people’s attention from the
failures of the criminal justice system which is corrupt and lets offenders go free but what it
does is to legalise the same form of diabolical activity it seeks to extinguish. Instead of
promoting justice the death penalty will become state initiated premeditated murder, the
highest of its kind. If an equivalency is to be drawn, the death penalty would have to punish a
criminal who had warned his victim of the date at which he would, inflict a horrible death on
him and who, from that moment onward, had confined him at his mercy for months until the
day he finally beheads him. Death is also an unusually severe punishment, unusual in its pain,
in its finality, and in its enormity therefore it must not be imposed in this country.
It is therefore evident that the death penalty does serve any deterrent or retributive function.
The way to reduce crimes is to have an effective and incorruptible criminal justice system
which makes sure that offenders are sent to jail and serve their sentences other than killing
convicts. The other way to make them pay is to make sure that the victims get compensation
from the perpetrators as in our traditional way. Furthermore capital punishment for murder is
not reasonable and justifiable in an open and democratic society based on freedom and
equality. The death penalty has no place in our current society, it is inhuman and degrading.