Specifically, the case against the state argues that the death penalty offends human dignity, constitutes inhumane and degrading punishment, and amounts to an arbitrary deprivation of life, all in breach of express or implicit provisions of the Zimbabwe Constitution. In addition to the aforementioned constitutional violations, the fact that a sentence of death is mandatory also denies citizens of their right to fair trial, violates the principle of separation of powers by depriving the judiciary of one of their essential functions, and, in practice, discriminates against indigent accused persons.

The petitioner describes hanging, the method used in Zimbabwe, as “horrendous, barbaric, inhumane, brutal, and uncivilized.” It focuses on the significant delays characteristic of Zimbabwe’s death row, stating that delays in execution lead to anxiety and severe emotional and physical trauma, particularly given current prison conditions. The case centers on the idea that prisoners retain some rights, even after conviction. Most fundamentally, under Zimbabwe’s Constitution, it maintains that all citizens have a right to be free from arbitrary deprivation of life and a right not to be subjected to cruel, inhumane and degrading punishments.

Though the last execution happened in 2003, currently, there are at least 49 prisoners on death row at Harare Central Prison. In the past, executions have been suspended for years due to a lack of a public hangman. While they wait, prisoners on death row have to deal with horrendous prison conditions. In Zimbabwe, twenty-five men are held in a single nine meters by four meters cell. Food portions are meager and consist of barely edible or spoilt food. Unsanitary conditions in both the over-crowded cells and the kitchen threaten the wellbeing of all prisoners.

Innocent became involved in this case after a junior lawyer at his law firm, assigned to the matter on a pro bono basis, represented Mazango during the trial in which he was convicted of murder and sentenced to death. Immediately, they decided to challenge the death penalty based on his sentence. For the purposes of monitoring the progress of the case closely and media interface, it was filed through Maja and Associates, Innocent’s law firm. Thus far, an application to the court has been filed, and both Innocent and Mazango await the state’s response, while the legal team prepares heads of argument to file with the court.

A number of state-sponsored Zimbabwe newspapers have featured Sheperd Mazango’s case, giving it a fair amount of in-state media attention. Recently, international newspapers have also expressed interest in the case. This attention comes as a result of interest and awareness in Zimbabwe on the rights of the accused. Conversely, the case and the media attention it receives are likely to attract a wider audience to the debate on the death penalty and rights retained by the accused in Zimbabwe.

According to Innocent, “Most indigent persons in Zimbabwe, who cannot afford legal counsel, are given inexperienced lawyers to represent them. Oftentimes, this leads to conviction and death sentences. It is a denial of justice. The death penalty is atrocious, in that it takes away human life. Once a human life is taken away, the rights of that person are taken away as well. The mode of killing (i.e. hanging) is horrendous, inhumane, and degrading. It is torturous.”

Violent robberies in Kenya are considered by law as intent to commit homicide. So whether someone with an AK 47 Assault Rifle robs a bank, or someone uses a stick to steal a bicycle, both can receive a death sentence.  Despite the death penalty not being carried out since 1983, the number of people on death row continues to rise.

The last known official executions in Kenya were in 1987 during former president Daniel Arap Moi’s time in office. Among those hanged were Hezekiah Ochuka and Pancras Oteyo Okumu, accused of organising the 1^st August 1982 attempted coup.

Since then thousands have been sentenced to death and are awaiting execution. Between 2001 to 2005, a total of 3,741 were sentenced to be hanged – an average of  748 a year according to the Kenya Prisons Service.

Is it effective?

“I believe that even if someone has killed another, you do not correct the situation by killing another person. That leaves two dead people,” one activist said recently. What do you think about this? The family of the victim needs justice to be delivered; but can the hanging of the murderer be considered “fair and just?”

Currently death penalty inmates here are not allowed to work. This means that they have no savings or work experience to prepare them for life outside prison in the event of release.

On the other hand, human rights organizations have constantly questioned whether the death penalty helps to reduce violent crime, which is on the rise in Kenya – and suggested it may even be contributing to an increase in the number of murders committed.

An analyst indicated that there have been large numbers of young people involved in car-jacking, who then kill the victims in order to eliminate any witnesses of the crime. “They kill … for fear of conviction if the witness were to live to testify.” The analyst said, noting that the abolition of the death penalty would reduce the number of such murders.

The analyst also raised doubts about the guilt of some individuals currently on death row. Kenyans say that there have been claims of false accusations, and convictions without adequate evidence – especially in politically instigated cases of the one party state that Kenya was before 1992.

Since the death penalties remain unimplemented, analysts feel its inhuman and degrading to convict people and then leave them on death row for years on end, living in constant fear of execution. As a criminal justice defender I find this to be a double penalty and therefore unjust!

Kenyans feel that a lot more has to be done to make the prison institution more responsive to the prisoners’ needs. There are claims that regular trainings held for the prison officers and police units will improve the success rates of prisoner rehabilitation. Consequently, this will reduce the frequency and number of capital offences, and in turn, eliminate the need for a death penalty.  What do you think?

Not all death row inmates are inspired by ill motive. For 16 years, Grace Mokeira sat on death row — one of more than 4,000 convicted Kenyans awaiting uncertainly for their fate. Grace was only 17 when the crime she was accused of committing took place, and should therefore have been considered a minor. But things changed when the President of the Republic of Kenya in August 2009 replaced the death penalty with life imprisonment.

Read Grace’s story at:

http://www.usatoday.com/news/world/2009-09-15-deathpenalty_N.htm

Discussion Points

• Are countries justified in retaining the death penalty?
• Is the death penalty a good form of deterrence against capital crimes?