Death row inmates' fate hangs in balance

HARARE - Death row inmates will have to wait longer before knowing their fate after the Constitutional Court (Con-Court) on Wednesday struck off the roll their case in which they sought abolishment of capital punishment.

The two applicants, Farai Lawrence and Wisdom Gochera, through their attorney, Tendai Biti, are challenging their death sentences.

The condemned prisoners cited Justice minister, Emmerson Mnangagwa, and attorney general, Prince Machaya, as respondents.

Deputy Chief Justice, Luke Malaba, who led the full Con-Court bench of nine judges, struck the matter off the roll after ordering the prisoners to cite the proper Section of the law under which they are making their application, which is Section 85 (1) (a).

The court also expressed reservations on the nature of the application by the prisoners and their locus standi to make the request on behalf of other inmates on death row.

However, Biti said his clients’ request was clear without need to mention Section 85, which he argued is just a colouring.

But the court said the section was a fundamental provision that needed to be enforced.

“I will definitely come back,” Biti said, before the matter was struck off.

In the application, the duo argued that the death penalty was unconstitutional in terms of Section 48 (2) of the Constitution, which states that, “no person can be sentenced to death unless they are sentenced under a law that permits the imposition of death only for murder committed in aggravating circumstances”.

However, the State further argued that the two cannot apply to have the law work in retrospect, since their sentences were imposed before the new Constitution came into force.

In their arguments, Lawrence and Gochera said that even though they were convicted and sentenced before the coming in of the new Constitution, they were entitled to protection of the law because they are challenging current and on-going sentences.

“So this case has nothing to do with the ‘retroactivity’ or ‘retrospectivity’ of the new Constitution,” the inmates’ lawyer argued.

They said that the court should provide a remedy by way of an order commuting their sentences of death to life in prison.

Gochera, convicted in 2002 for murdering South Africa’s Spoornet International Railway executive secretary in September 2001, has been awaiting execution for over 13 years.

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