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Delay and the Death Sentence: The Zimbabwean Approach

Published online by Cambridge University Press:  28 July 2009

John Hatchard
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Extract

In March 1993 it was reported in a national newspaper in Zimbabwe that four men convicted of murder and under sentence of death were to be executed shortly. They were all sentenced between 1987 and 1988 although in all but one case their appeals were not heard and dismissed by the Supreme Court until 1991. The Catholic Commission for Justice and Peace (CCJP) obtained a provisional order from the Supreme Court interdicting the respondents from carrying out the sentences, pending a decision as to whether to (i) declare that the delay in carrying out the sentences of death constituted a contravention of section 15(1) of the Constitution of Zimbabwe; and (ii) order that such sentences be permanently stayed. Section 15(1) provides that:

Type
Articles
Information
Journal of African Law , Volume 37 , Issue 2: LAW AND THE ENVIRONMENT IN AFRICA , Autumn 1993 , pp. 185 - 192
Copyright
Copyright © School of Oriental and African Studies 1993

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References

1 The information was apparently leaked to the press for hitherto the official announcement concerning executions was made after they had taken place.

2 The fourth man's appeal was dismissed by the Supreme Court in 1988.

3 Unreported, SC 73/93. The decision of the five-man bench was given by Gubbay, C. J.

4 At 8.

5 Paragraph 10 of the concluding statement of the Third Judicial Colloquium on the Domestic Application of International Human Rights Norms held in Banjul, The Gambia, November, 1990.

6 At 9. See also the case of Conjwayo v. Minister of Justice 1991 (1) ZLR 105 (SC).

7 (1989) 5 South African Journal of Human Rights 183, 195.

8 Amnesty International, When the State Kills, London, 1989, 8.Google Scholar

9 The situation was graphically described to the court (and not disputed by the State) by a former prisoner who had spent three years on death row for dissident related murders before being given a free pardon to mark Zimbabwe's Tenth Anniversary of Independence in 1990. This, in itself, highlights the “lottery” as to who is and who is not executed.

10 [1979] 1 WLR 1342.

11 See Vatheeswaran v. State of Tamil Nadu 1983 SC 361 and People v. Anderson 493 P. 2d. 880 (1972) at 892–95.

12 [1982] 3 All ER 469.

13 The title of an editorial on the case in [1982] West Indies Law Journal 1. The five men were executed three months after the decision was handed down.

14 [1979] 3 All ER 21.

15 This was in line with the decisions in Bull v. Minister of Home Affairs 1986 (1) ZLR (SC) and United States v. Cotroni 42 CRR 101 at 109 (SC of Canada).

16 Triveniben v. State of Gujurat (1989) 383 (Supreme Court of India); Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 WLR 1342 (PC).

17 [1986] LRC (Const.) 285.

18 See also the United States cases of Richmond v. Lewis 948 F 2d 1473 (1991) and Andrews v. Shulsen 600 F. 408 (1984).

19 Above, at 480. Compare the case of Madhu Mehta v. Union of India where the condemned man had been awaiting a decision on his mercy petition by the President for over eight years. Here the court held that this was too long and altered the sentence to one of life imprisonment.

20 30 March, 1992 Communication Nos. 270/1988 and 271/1988. This approach was recently affirmed by the Committee in Loxley Griffiths v. Jamaica Communication No. (where the applicant had spent 11 years on death row) and Howard Martin v. Communication No., 317/1988. Here the Human Rights Committee concluded examination of the cases in July 1993, some five years after the applications were made.

21 But compare the views of Vogelman and Amnesty International (above).

22 Chambers, C.J., in Chessman v. Dickson 275 F 2d 604 (1960).

23 (1989) 11 EHRR 439.

24 Para. 56.

25 Para. 111.

26 Above at 895. See also District Attorney for Suffolk District v. Watson 411 N.E. 2d. 1274 (1980).

27 See art 14(5) International Covenant on Civil and Political Rights and art 7(1)(a) of the African Charter on Human and Peoples' Rights.

28 See Note in (1972) 57 Iowa Law Review at 831.

29 Note by R. Lillich in (1991) 85 American Journal of International Law at 145.

30 In some cases “negative” factors may contribute to the decision. For example in the United States case of Chessman v. Dickson (above) Chambers, C.J., in rejecting the argument of delay, referred to the applicant as “an arrogant, truculent man spewing vitriol on one person after another” adding that “I think he has heckled his keepers long enough” (at 607–608).

31 At 44.

32 1968 (1) RLR 136.

33 At 155. The court referred to Beadle, C.J., as “one of this country's most illustrious Chief Justices” (p. 16). Given the fact that he presided over many cases which led to the execution of those who opposed the white minority regime (as indeed was the case in Dhlamini), this was a somewhat insensitive remark.

34 At 17, adopting the views of Pannick in Pannick, D., Judicial Review of the Death Penalty, London, 1986, 85.Google Scholar

35 Since 1981 the Supreme Court has been entitled to depart from its own previous decisions: see Supreme Court Practice Direction No. 2 of 1981, 1981 ZLR 417 (SC).

36 The words of the Minister of Justice when introducing a Bill to pre-empt the Supreme Court considering the constitutionality of the death sentence itself: see Parliamentary Debates, 6 December, 1990.

37 Such an order had been made in Conjwayo v. Minister of Justice (above).

38 For example, in India condemned prisoners are not placed on death row until the appeal court has dismissed their appeal against sentence.