Prominent lawyer quashes death penalty

PROMINENT lawyer Thabani Mpofu says the death penalty in Zimbabwe is null and void unless Parliament enacts a law providing for it.

This comes amid growing calls to scrap capital punishment from the statutes. Advocate Mpofu said while the old Constitution specifically made provisions for the death penalty, the new order left that decision to the legislature.

"This, it achieves through section 48 (2) (of the new Constitution of Zimbabwe) which provides that a law may permit the death penalty to be imposed," said Adv Mpofu.

His analysis of the law comes after the National Prosecuting Authority solicited his views as a friend of the court in a case in which the NPA wants an order for the courts in Zimbabwe not to impose capital punishment on murder suspect, Joshua Dube, who is held in a South African prison.

In his heads of argument filed at the Constitutional Court, Adv Mpofu made an analysis of the law on death penalty in both the old and new Constitutions as well as the Criminal Procedure and Evidence Act (CPEA), to arrive at his decision. The CPEA as it stands, he said, was not in conformity with the Constitution of Zimbabwe on the imposition of the death penalty.

"The CPEA is an existing law and so are its provisions… The question that arises is whether it is possible for it to be construed in conformity with the Constitution of Zimbabwe," said Adv Mpofu.

"If it is, the death penalty can be passed under it. If it's not so capable, that means there is no law contemplated by section 48. That too would be consistent with provisions of section 2 (1) of the Constitution of Zimbabwe. It has already been noted that CPEA and the Code cannot be construed. Both are therefore not requisite existing law."

Adv Mpofu said in view of the differences between section 48 of the Constitution and 12 of the old Constitution and current provisions of the CPEA and what must be contained in the contemplated Act, the law contemplated under section 48 was not yet in existence.

The Zimbabwean Constitution provides for death penalty to male murder convicts aged between 23 and 69, while women are exempted from the punishment.