Fidelis Munyoro
Chief Court Reporter
THE debate over retaining the death penalty in the country’s statutes should not cloud the court when assessing murder sentences, a High Court judge said after condemning two robbers to death for killing a taxi driver two years ago.
Zimbabwe’s Constitution allows death sentence to be passed on adult men convicted of aggravated murder, but since 2005 there has been a de facto moratorium on executions with all those sentenced to death after a few years having their sentence commuted to life imprisonment.
But Justice Tawanda Chitapi said it has to be accepted that murders committed by men in the course of robbery invariably attract the death penalty in the absence of hefty mitigatory circumstances.
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Romeo Jambara (29) and Norest Tamangani (31) were convicted of murder with constructive intent of taxi driver Taruvinga Mutiza.
Murder with constructive intent means that the killing was not premeditated, but that the killers were prepared to use extreme violence and were utterly reckless.
It is a common verdict when someone is killed during a robbery, but the original intent was to rob rather than kill.
After the murder, the two dumped the body along Acacia Road in Westgate after stealing the taxi and driver’s property, which included USB cables, chargers, modulators, a cellphone and a wallet.
Arrested accomplice Dallen Mary Mukupe was acquitted of the murder, while the other accomplice only identified as Last, is still at large.
In passing the death penalty, Justice Chitapi took a judicial notice that apart from the debate there has been no execution of the death sentence since 2005, which clearly showed lack of appetite by the Executive to carry out the sentence and authorise the execution.
Those sentenced to death have an automatic appeal to the Supreme Court, and if that court confirms the sentence then the matter goes to Cabinet.
A decision to hang a murderer is a Cabinet decision with the death warrant signed by the Justice Minister. Since 2005 no Cabinet has made the decision to carry out an execution.
Argument was even made by the duo’s pro deo lawyers that there was no point of imposing a sentence, which would not be executed.
But Justice Chitapi disagreed and took the view that, “this is a court of law”, and should apply the law as it is given.
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“Until the death penalty is removed from the Constitution and statute books, the judge would be abrogating his or her sworn oath to uphold the Constitution and the law where he or she to refrain from passing a competent sentence befitting a particular offence because public opinion is against the imposition of that type of sentence,” said Justice Chitapi.
It was also the court’s view that the argument that no death row prisoners were being hanged was an issue for the Executive, which is charged with carrying out the executions.
The court has no power to direct the Executive to carry out the executions, said the judge.
However, Justice Chitapi said the murder was committed in aggravating circumstances hence the court had a discretion to impose any of the three sentences provided for in terms of the law, including the penalty imposed on the duo.
While Zimbabwe has not carried out any executions since 2005, at the end of last year about 80 people were on death row. In March this year, President Mnangagwa commuted to life imprisonment the death sentences of all those convicts that had been on death row for at least 10 years.
Being a former death row prisoner, the President has made it clear in public for several years that he totally opposes the death penalty and is working on legal modalities to remove the penalty from the country’s statutes.
Former President Robert Mugabe, was also opposed to the death penalty, although not in public, but was willing to be outvoted in Cabinet in the early years of independence.
President Mnangagwa narrowly escaped the gallows in the 1960s on the technicality that he was below 21 years when his contemporaries were hanged after they were caught while on a radical mission to disrupt infrastructure inside the then Rhodesia, as they fought against white colonial rule.
– HERALD
