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Zim High Court refuses to impose death penalty

by Staff reporter
22 Oct 2014 at 08:07hrs | Views

The High Court of Zimbabwe has refused to impose the death penalty on murderers arguing that the legislature must first enacts a law spelling out the circumstances under which one can be hanged.

The landmark ruling by Justice Charles Hungwe spared Jonathan Mutsinze of the Jerusalem Church of Marondera the hangman's noose for killing a policeman and a security guard in the course of an armed robbery.

Justice Hungwe said there was no law defining "aggravated circumstances," a condition for one to be hanged.

In the absence of the Act, Justice Hungwe said, the courts cannot impose capital punishment.

He said life imprisonment was appropriate in Mutsinze's case.

Justice Hungwe ruled that the new Constitution under Section 48(2) stated that death penalty could only be imposed on a person who commits murder under "aggravated circumstances" but there was no Act defining the aggravated circumstances or setting out the conditions under which capital punishment can be imposed.

Justice Hungwe said before the introduction of the new Constitution, the death penalty could be imposed after the court found no extenuating circumstances and the extenuating circumstances were well-defined. "Section 48 of the new Constitution brings in a new legal terrain, which recognises everyone's right to life including prisoners.

"Section 48 (2) of the Constitution permits death penalty to be imposed on a person convicted of murder committed with aggravated circumstances and that the law must allow the court a discretion on whether or not to impose the penalty.

"In my view what the Constitution has done is to unfetter the exercise of the discretion which was previously fettered under Section 337 of the Criminal Procedure and Evidence Act.

"The omission of reference to extenuating circumstances and the introduction of aggravated circumstances, in my view, must be interpreted to mean that what is envisaged in an Act of Parliament, will define the term (aggravated circumstances) or set out conditions on which the court will impose death penalty," he said.

"Alternatively, and in any event, the absence of the definition of the term or what constitutes aggravated circumstances, must mean that they were to be defined in the envisaged law."

Justice Hungwe interpreted the situation to mean that Zimbabwe was moving away from the death penalty and argued that unless a piece of legislation supporting that is enacted death penalty would be null and void.


Source - Zimpapers