Mnangagwa opposes death row inmates' appeal

Emmerson Mnangagwa, the minister of Justice, Legal and Parliamentary Affairs, and government's chief law officer Justine Ulandi, have opposed a court application by two women on death row seeking the commutation of their death penalty.

Zimbabwe Women lawyers Association, representing the death-row inmates - Rosemary Khumalo and Shylet Sibanda on a pro-bono basis, approached the Constitutional Court in Harare seeking an order directing the minister of Justice and the prosecutor-general to take steps to ensure that all sentences of death imposed on women be set aside and substituted with appropriate sentences.

The two women on death row approached the Constitutional Court seeking the enforcement of provisions of the new Constitution that spares women from the death sentence.

Death-row inmates Rosemary Margaret Khumalo and Shylet Sibanda want the death sentences imposed on them set aside and substituted with appropriate sentences in light of the new Constitution.

They are being represented by the Zimbabwe Women Lawyers Association (Zwla).

With 77 prisoners on death row, the new Constitution which was voted for by more than 90 percent of the 3,3 million voters in a referendum held on March 16 last year partially abolishes capital punishment.

Zimbabwe's new Constitution spares all women as well as men under 21 at the time of the crime and the over 70s from the death penalty. It also prohibits the imposition of the death penalty as a mandatory punishment.

The new Constitution stays the execution of  Khumalo and Sibanda out of a total 77 inmates on death row.

"The third respondent (attorney general) is directed to take all the steps that are necessary to ensure that the existing laws are aligned to the provisions of section 48(2)(d) of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 within three months of the date of this order," says the Con-Court application.

Sibanda is a 28-year-old woman who was convicted of theft of a motor vehicle and of murder by the High Court of Zimbabwe, sitting in circuit in Mutare in October 2010.

She was sentenced to death on the charge of murder. She was jointly charged with her husband Tongai Zireni Mutengerere and a family friend Darlington Nyaungwe.

Sibanda is currently in solitary confinement at Chikurubi Maximum Prison.

In a supporting affidavit, Sibanda said: "I verily believe and am advised that on 22 May 2013 the Declaration of Rights under the new Constitution of Zimbabwe came into force upon the publication of the Constitution of Zimbabwe Amendment (No. 20) Act in the Government Gazette Extraordinary and that the immediate consequence thereof is that the sentence of death imposed on me by the trial court and upheld by the Supreme Court can no longer be lawfully carried out against me."

Sibanda said it was a violation of her rights for the minister of Justice to detain her without specific sentence on the conviction of murder.

"I urge the Constitutional Court to direct the minister of Justice and prosecutor general to convene my case for re-sentencing by a competent court within three months of the grant of the relief sought by me in the attached draft order, and the minister of Justice appoint pro deo legal representation for me," Sibanda said in her affidavit.

The other woman on death row is Khumalo, a 69-year-old woman convicted of armed robbery and murder with constructive intent.

She was sentenced to 20 years imprisonment for armed robbery and given the death penalty on the murder charge.

Khumalo is currently incarcerated at Chikurubi Maximum Prison. Like Sibanda, Khumalo is appealing to the Constitutional Court to order the minister of Justice and Prosecutor General to arrange for her to be immediately brought before a competent court which must set aside the sentence of death imposed on her and substitute it with a new sentence.

Zwla is representing the two women.

Zwla's objective was stated in the court application as the provision of free legal advice and assistance to children and indigent women.