By G. Feltoe, J. Reid-Rowland and B. Crozier
Part 1 - Introduction
Deciding whether to impose the death sentence
One of the most onerous functions of a judge is to decide whether to sentence to death a person convicted of murder. This decision must be made with the utmost care by the trial court and by the appeal court when it goes on automatic appeal. In cases of murder, even if the accused pleads guilty to a charge of murder, the court will always enter a plea of not guilty and there will be a full trial to determine the facts and decide whether the accused is guilty. That determination of the facts is of crucial importance not only in respect of guilt but also in relation to the decision whether the death sentence should be imposed.
This article explores the changes brought about by the 2013 Constitution to the way in which the court is to make its determination on whether to impose the death penalty. It also looks at the sentencing approach when the court decides not to impose the death penalty.
Death penalty through the back door?
It is necessary first to comment on the unsatisfactory way in which the death penalty was re-instated following the 2013 Constitution. Section 48 of the Constitution provides for the right to life but section 48(2) then states that a “law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances.” It further provides that the death penalty may not be imposed on a woman, on a man over the age of 70, or on a male who was under the age of 21 at the time the offence was committed.
The murder provisions in the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”) were amended to allow for the death penalty to be imposed for murder in line with the constitutional provisions. Sections 337 and 338 of the Criminal Procedure and Evidence Act [Chapter 9:07] were also amended to reflect the constitutional provisions stipulating the persons upon whom the death penalty may not be imposed. These amendments were made without any prior debate on whether it was appropriate for the death penalty to be retained in Zimbabwe. This would have been a good opportunity for Parliament to fully debate whether or not to retain the death penalty at all, but the opportunity was lost, for no apparent reason. The use of the word “may” in section 48 of the Constitution gave a discretion to Parliament to decide whether the death penalty should continue to be used. A parliamentary debate on this issue was required, especially in the light of the publicly expressed opinion by the then Vice-President responsible for the Ministry of Justice (now the President) that the death penalty should not be imposed in murder cases.
It should also be noted that there has been a distinct disinclination to execute prisoners who have been sentenced to death. No executions have been carried out since 2005.
Discretion to impose the death penalty
Prior to the 2013 Constitution the High Court was obliged to impose the death for murder if the court considered there were no extenuating circumstances. Although there was case law suggesting it was incumbent on the defence to establish that there were extenuating circumstances, in practice courts decided on extenuation in the light of all the evidence and the submissions made by both parties. Section 48(2) of the 2013 Constitution, as already stated, now provides that the death penalty may be imposed only for murder committed in aggravating circumstances. It also provides that the law providing for such penalty must permit the court a discretion as to whether or not to impose the penalty. In S v Kufakwemba & Ors 2016 ZLR 627 (H) at 635H the court pointed out that the constitutional provisions now give the court a discretion whether or not to impose a death sentence, even where there are aggravating circumstances.
The death penalty may now be imposed only if the court decides that there are aggravating circumstances. This determination must be made by the judge and the assessors with reference to the aggravating circumstances listed in the Criminal Law Code or other aggravating factors that they decide are present.
Sections 47(2) of the Criminal Law Code provide that when a court is deciding the appropriate sentence for murder, it must regard as aggravating in case of murder the factors there set out, although it may regard other factors as aggravating in addition to those laid down. Among the factors which a court must regard as aggravating are if the murder was committed in the course of committing an act of terrorism or kidnapping or rape – and this includes situations where the murder was committed during the commission of an act constituting an essential element of such a crime (whether or not the accused was charged with or convicted of the crime).
The effect of these provisions is that for the death penalty to be imposed for murder the prosecution has to prove that there are aggravating circumstances that warrant the imposition of the death penalty. Thus S v Kufakwemba & Ors (supra) at 635H the court stated that the onus of proving whether or not the death penalty should or should not be imposed has been shifted to the State. It might have been better if the Constitution had explicitly provided that the onus is on the State to prove the presence of aggravating circumstances.
As the court has a discretion to impose the death penalty, the court has to weigh any aggravating factors against mitigating factors and decide whether, taking into account all these factors, the aggravating factors outweigh the mitigating factors such that the imposition of the death penalty is justified. By stating that the courts shall regard these circumstances as aggravating, the impression might be created that the death penalty must be imposed where these circumstances are present. Section 47(4) of the Criminal Law Code only obliquely lays down that the death penalty is not mandatory for murder in circumstances of aggravation by providing that the sentence can be death, life imprisonment or at least twenty years. (The mandatory sentence of not less than twenty years is questionable as even where there are aggravating circumstances there may still be significant mitigating circumstances.)
The death sentence may only be imposed if the court finds that the murder was committed in aggravating circumstances. But the court does not have to impose the death penalty where it finds that a specified aggravating circumstance is present. What the provision says is that such a factor must be taken into account in deciding upon the appropriate sentence. The court is entitled to decide that although that aggravating circumstance was present, on the facts that aggravating circumstance was not serious enough alone to merit the imposition of the death penalty. Thus in S v Chihota HH-234-15 the court stated that State counsel quite rightly submitted that even where a court finds aggravating circumstances, it has an unfettered discretion not to impose the death penalty. See also S v Milanzi & Ors HH-398-17 where the court said that the fact an accused person has been convicted of murder in circumstances of aggravation does not bind the court to pass the death sentence.
Secondly, even where the court has found that aggravating circumstances were present which might point in the direction of the death penalty, the court must still take into account any mitigating circumstances that may exist and decide whether on balance the death penalty is justified. In other words, by providing in the Constitution that the death penalty should only be imposed where there are aggravating circumstances, it is envisaging that the death penalty will only be imposed where the murder is exceptionally grave or heinous. But even where the murder is exceptionally grave or heinous, there may still be significant mitigating circumstances that justify the court imposing a penalty other than the death penalty. This should have been made clear in the Criminal Law Code provisions by providing that the court must take account all possible mitigating circumstances that have been pleaded or which have emerged from the evidence in the case. In murder cases therefore defence counsel will still seek to establish that there are various mitigating factors which reduce the weight of the aggravating circumstances.
After convicting a person of murder, the court should proceed in this manner on the issue of whether to impose the death penalty:
- Decide whether there are any of the specified aggravating circumstances set out in section 47 of the Criminal Law Code.
- Decide whether there are any other circumstances which should be regarded as aggravating.
- If there are such aggravating circumstances, decide whether those aggravating circumstances are serious enough to justify the death penalty.
- If the aggravating circumstances on their own might justify the imposition of the death penalty, weigh these circumstances against the mitigating circumstances and decide on balance whether to impose the death sentence.
- If there are none of the specified aggravating circumstances, the court must decide on the appropriate sentence taking into account any mitigating circumstances weighed against any aggravating circumstances that it considers are present, other than those specified in section 47 of the Criminal Law Code.
As will be seen later, all these processes afford considerable subjective discretion to the courts, and different judges may approach them in a different manner. Judges who are reluctant to impose the death penalty may more readily find that the aggravating circumstances are not serious enough to justify the death penalty. Or they may find that although the aggravating circumstances are serious, there are sufficiently strong mitigating circumstances to lead to the conclusion that the death penalty should not be imposed.
When the death penalty is not in issue because none of the specified aggravating circumstances are present the courts still have to decide on the appropriate sentence to impose. Here again different judges may differ on what should be the sentencing outcome after weighing aggravating features against mitigating factors. A constant factor in this regard is that the accused has violently ended a human life but on the other side of the line there may be a range of mitigatory features.
The procedures suggested above are similar to the first of the approaches to extenuating circumstances suggested in S v Jacob 1981 ZLR 1 (A), following S v Phineas 1973 (1) RLR 260 (A):
There are two permissible approaches to the assessment of extenuating circumstances in murder cases: the first is to make a finding that extenuating circumstances exist if there are any mitigating features in the case, and then to decide whether, notwithstanding that finding, the aggravating features necessitate the imposition of the death sentence; the second approach involves balancing at the outset the mitigating against the aggravating features and, depending on the result, finding that extenuating circumstances exist or imposing the death sentence.
The court pointed out that both approaches involved a careful weighing up of the mitigating factors against the aggravating factors and the passing of the death sentence only when the latter outweighed the former.
See S v Nangani 1982 (1) ZLR 150 (S) at 154 B and s 271(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
The Criminal Law Code still provides for the death penalty to be imposed for crimes other than murder. Section 20(1) of the Criminal Law Code provides that the death penalty can be imposed for treason, and section 23(1) provides that it can be imposed for the crime of insurgency, banditry, sabotage or terrorism where the commission of the crime results in the death of a person. Section 4 of the Genocide Act [Chapter 9:20] implicitly allows the death penalty to be imposed on anyone convicted of genocide involving the killing of a person [the implication arises because life imprisonment is the penalty for genocide that does not involve killing]. Section 3 of the Geneva Conventions Act [Chapter 11:06], again implicity, allows the death penalty to be imposed a grave breach of a Geneva Convention. The Defence Act [Chapter 11:02] also provides for the death penalty for various military offences. All these statutory provisions are unconstitutional, in so far as they purport to allow the death penalty to be imposed for offences other than murder committed in aggravating circumstances.
S v Lembete 1947 (2) SA 603 (A) and the other cases cited in Reid Rowland Criminal Procedure in Zimbabwe (Legal Resources Foundation, 1997) at page 25-37.
This latter provision is too wide as it would allow the court to impose the death penalty where the State is only able to prove one element of the listed crimes even though it has seen fit to allege and prove that the listed crime in question has been committed.
The headnote to S v Jacob.
Jacob’s case page 5B.