Attorney-General Prince Machaya
Fidelis Munyoro Chief Court Reporter
The Attorney-General Advocate Prince Machaya says the omnibus General Laws Amendment Bill will address the long-drawn issue of the death penalty.
The Bill sailed through Parliamentary Legal Committee without amendments recently and is now ready for the second reading.
Adv Machaya said the constitutionality of Sections 47 of the Criminal Code and sections 337 and 338 of the Criminal Procedure and Evidence Act were still applicable to convicts of murder after the publication date of the new Constitution.
“The provisions of the new Constitution cannot be applied in retrospect,” said Adv Machaya.
He was responding to a constitutional application by two death-row inmates — Farai Lawrence Ndlovu and Wisdom Gochera who are challenging the legality of the death penalty.
“The constitutionality of section 47 of the Criminal Code and sections 337 and 338 of the C.P and E Act (Chapter: 9:07) are being addressed under the General Laws Amendment Bill BH3, 2015 and the Criminal Procedure and Evidence Amendment Bill No HB2 2015 in a manner which addresses the shortcomings of those provisions and seeks to align provisions of the Acts with the new Constitution,” said Adv Machaya.
The chief Government lawyer disagreed with a proposal by Ndlovu and Gochera that all prisoners on the death row should have their sentences commuted to life sentences.
“Prisoners on the death row do not automatically qualify to have their sentences to capital punishment commuted to life,” said Adv Machaya.
“The Constitution provides in section 48(2) (e) that such prisoners have to apply for such commutation to the President . . . and not a court of law.”
Adv Machaya said the relief sought by the duo was untenable and their application for commutation of sentence was not brought to the proper forum.
Through their lawyer Mr Tendai Biti, Ndlovu and Gochera launched a legal assault on the validity of the death penalty last month, arguing that it was not in conformity with the new constitutional dispensation.
They want it scrapped from the statutes Sections 47 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) and Sections 337 and 338 of the Criminal Procedure and Evidence Act (Chapter 9:07).
The duo argue that the sections are not in conformity with the Constitution and should be declared unconstitutional.
They also want an order for all prisoners on death row awaiting execution to have their sentences commuted to life in light of the provisions of Section 48 of the Constitution.
Ndlovu has been on the death row for three years, while Gochera has cloaked 13 years at Chikurubi Maximum Security Prison awaiting execution.
Under the new law, the penalty of murder can only be imposed where murder has been committed in aggravating circumstances, among other things.
Neither the Code nor the Criminal Procedure and Evidence Act makes any reference to aggravated circumstances.
Ndlovu and Wellington Kadzira were in 2012 convicted for the murder of Michael Sunderland and Geoffrey Andrew Povey.
Kadzira has since died in prison.
The trial court heard that the two told the deceased pair that there was a gold rush near Kwekwe River and got into the back of the deceased’s vehicle.
They put cyanide poison into water bottles that were at the back of the vehicle, resulting in the death of Sunderland and Povey after they drank the poisoned water.
Gochera was convicted of murder with actual intent by the High Court in 2002 for murdering South Africa’s Spoornet International Railway executive secretary in September 2001.
Both Ndlovu’s and Gochera’s automatic appeals were dismissed, leaving them with one last option, to plead for Presidential parole.
Vice President Emmerson Mnangagwa who is in charge of the Justice, Legal and Parliamentary Affairs ministry and the Attorney-General are listed as respondents in the duo’s application.