THE taking of human life has been strongly condemned by most world religions and philosophies over the centuries.
International human rights law has in turn sought to uphold this most sacrosanct of rights in a number of treaties. The life of an individual is clearly protected from being arbitrarily taken by the State. The Constitution of Zimbabwe protects the right to life.
The right to life in the Constitution is not, however, as inviolable as it might seem at first glance. There are only two situations where the State may deprive individuals of life itself and to which the Constitution does not raise an objection. The Constitution allows the imposition of the death penalty – is one such example.
Human rights law does not prohibit the use of the death penalty as a punishment for crimes, but does encourage its abolition and seek to limit its use. The use of violence in self-defence lies at the base of other justifications for the taking of human life.
It would appear that the Constitution also allows the termination of pregnancies in certain circumstances that should be stipulated by law Section 48(3).
Rights at stake
According to the Constitution every human being has the inherent right to life and this right must be protected by law.
However, this right is not as sacrosanct and inviolable as it sounds. The main principle provided in the Constitution is that no-one shall be arbitrarily deprived of life meaning that state can take human life provided laws and procedures are followed.
There are six situations where the State may deprive persons of their lives without breaching the Constitution. These exceptions are based on the premise that violence used in self-defence is justified.
The Constitution gives the following circumstances were a death penalty may be imposed only on a convicted person who would have committed murder in aggravating circumstances;
The court should be allowed to use its own discretion to impose or not to- impose the penalty,
The penalty can only be carried out in accordance to a final judgment of a competent court,
The penalty cannot be imposed on a
(i) person who is less than 21 when the offence was committed,
(ii) who is more than seventy years old,
The penalty must not be imposed or carried out on a woman,
The person sentenced must have a right to seek pardon or seek commutation of the penalty from the president.
Violations of the right to life may be committed by agents acting outside the official mandate of the government eg Youth militia, militant groups, political party activists or quasi government forces.
They may operate outside the official military and police forces but are deemed to be agents of the state since they are often set up and supervised by the authorities to operate in situations of internal conflict or disturbance. They are therefore subject to scrutiny for human rights violations in the same way.
Rights of victims
Victims of extrajudicial killings, summary or arbitrary executions are entitled to adequate compensation from the state where the violation was committed.
Besides granting compensation the state has the additional obligation to conduct investigations and punishment of perpetrators.
International and regional instruments for protection and promotion
The position of the application of customary international law according to the constitution of Zimbabwe in Section 326 is that Customary International Law is part of the law of Zimbabwe as long as it is consistent with the Constitution or an Act of Parliament.
What is international law? The International Law Association defines “general customary international law” as a rule or principle that is widely, consistently and uniformly practiced (such as diplomatic immunity), which gives rise to legitimate expectations in the future.
This law is binding on all States, whether or not a particular State believes or consents to the rule. In other words, it is not necessary for the consent of a State for it to be bound by a rule of international law.
International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms.
In Zimbabwe National Law takes precedence over international treaties and as such a specific law may be required to give a ratified international treaty the force of a national law.
What this means practically according to Section 327 once the State has ratified or acceded to an international treaty the executive has to bring it to Parliament in order that it be incorporated into the law through an act of Parliament.
The binding treaties can be used to force the government to respect the treaty provisions that are relevant for the human right to life. The non-binding instruments, such as declarations and resolutions, can be used as a name and shame mechanism to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies.
Why should we remove the death Penalty in Zimbabwe
According to the International commission against the death sentence the following are reasons why we should abolish the death sentence;
There have been and always will be cases of executions of innocent people. No matter how developed a justice system is, it will always remain susceptible to human failure. Unlike prison sentences, the death penalty is irreversible and irreparable.
The death penalty is often used in a disproportional manner against the poor, minorities and members of racial, ethnic, political and religious groups.
The death penalty violates the right to life which happens to be the most basic of all human rights. It also violates the right not to be subjected to torture and other cruel, inhumane or degrading treatment or punishment. Furthermore, the death penalty undermines human dignity which is inherent to every human being.
The death penalty lacks the deterrent effect which is commonly referred to by its advocates. As recently stated by the General Assembly of the United Nations, “there is no conclusive evidence of the deterrent value of the death penalty” (UNGA Resolution 65/206). It is noteworthy that in many retentionist states, the effectiveness of the death penalty in order to prevent crime is being seriously questioned by a continuously increasing number of law enforcement professionals.
Public support for the death penalty does not necessarily mean that taking away the life of a human being by the state is right. There are undisputed historical precedences where gross human rights violations had the support of a majority of the people, but which were condemned vigorously later on. It is the job of leading figures and politicians to underline the incompatibility of capital punishment with human rights and human dignity.
It needs to be pointed out that public support for the death penalty is inextricably linked to the desire of the people to be free from crime. However, there exist more effective ways to prevent crime.
Abammeli Human Rights Lawyers Network