Mushoriwa disagrees with PLC decision on the Death Penalty Abolishment Bill Adverse Report

Mushoriwa disagrees with PLC decision on the Death Penalty Abolishment Bill Adverse Report
Mushoriwa disagrees with PLC decision on the Death Penalty Abolishment Bill Adverse Report

Mushoriwa disagrees with PLC decision on the Death Penalty Abolishment Bill Adverse Report

Dzivarasekwa Constituency legislator Edwin Mushoriwa says he disagrees with the decision of the Parliamentary Legal Committee to issue an Adverse Report on the Death Penalty Abolishment Bill which he has proposed.

Although the PLC issued an Adverse Report on the proposed Bill, the Cabinet on Tuesday considered and approved the Memorandum of the Bill.

The Death Penalty Abolishment Bill is a private members Bill that Honourable Mushoriwa, an opposition legislator, brought.

Below is the full text of what Honourable Mushoriwa said in the National Assembly during the debate of the Adverse Report:

Mushoriwa disagrees with PLC decision on the Death Penalty Abolishment  Bill Adverse Report

HON. MUSHORIWA: Let me start by saying I have looked into the report submitted by the Parliamentary Legal Committee.  Mr. Chairman, it is my submission that I respectively disagree with the finding and opinion that has been submitted to this august House.  Mr. Chairman, I have taken opinion and also before we introduced this Bill to this august House from legal personnel, retired judges and also fundis in this issue.  

Mr. Chairman, I am going to state the following, first and foremost, Section 48 of the Constitution which is the Right to Life, our Constitution. Our Constitution protects the right to life.  That is the first and fundamental issue that I want to submit.  The second issue is that if you read Section 48 (2), it says a law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances.  The key word there is ‘may’.  It is not saying a law must. 

What has happened, Hon. Chair, is that the death penalty is not a creation of the Constitution, but what has happened is that the framers of the 2013 Constitution gave that power to the people of Zimbabwe and to their Parliament to either make a law or not to make a law that introduces a death penalty.  This is the reason, Hon. Chair, I believe that the point of departure which I believe the Committee erred is not to remove or to temper with the provision.  What basically it does and I am going to give you the historical background, we crafted this Constitution in 2013 and from 2013, there was no law that approved the death penalty.  Unfortunately, the High Court judges were actually coming up with the death penalty sentence until the Supreme Court made a ruling to simply say in the Constitution, there is no law that provides for the death penalty.  What then transpired Hon. Chair is that the then Parliament in 2016 brought an amendment to the Criminal Procedure and Evidence Act that introduced the death penalty.

The issue, Hon. Chair, is that the import of this Bill is specific.  If you go through the provisions that are there in the Bill, Clauses 3, 4, 5 which are the operative clauses of this Bill, they tend to do one thing.  They tend to amend the Criminal Procedure and Evidence Act.  That is what it seeks to do.  What does this say Hon. Chair?  The power of the Constitution is not being taken away.  In fact, what this means is that this Parliament should and I am glad that two days ago, the Cabinet of Zimbabwe led by President Emmerson Mnangagwa, approved the principles of this Bill having gone through the various technical support in the Ministry of Justice, Legal and Parliamentary Affairs and the other arms of Government.

Why Hon. Chair?  The reason is simple.  Parliament has got the right to amend an Act of Parliament.  You can introduce an Act of Parliament and Parliament also has the power to amend an Act of Parliament.  For the Committee to then present to say this Parliament cannot amend an Act of Parliament, I think legally it is not correct.  The same thing if you read the Constitution.  Our Constitution talks on, for instance, the President has got the power to appoint certain key personnel.  The President is allowed to appoint Ministers, the Attorney-General, but where there is a provision where it says the President can appoint, it does not remove the fact that the President can actually remove the person that he has appointed.

What basically we are saying, Hon. Chair, is that the decision taken by the PLC is fundamentally flawed and I know where the problem is.  It is coming from that misunderstanding.  What they need to understand is that let us assume this Parliament, because the Government has also taken it on board, we remove the death penalty from our statutes.  Another Parliament comes; they can use Section 48 (2) of the Constitution, introduce another Bill to reintroduce the death penalty.  So, what you can actually tell, Hon. Chair, is that what we are doing is, we are basically looking into the amendments of the Criminal Procedure and Evidence Act.

I have had the chance to discuss this issue with the Chairperson of the PLC showing the various opinions that have come in respect to the adverse report that they had issued.  Hon. Chairman, I had also suggested because if for instance, the PLC, if you read the Bill in the manner that it is, one of the ways that we could basically try to come to a sort of a compromise, is then to seek an amendment to Clause 1 and Clause 2 of the Bill so that instead of saying Death Abolishment Bill, we basically say that it is an amendment to the Criminal Procedure and Evidence Act.

So, we amend that Clause 1 then we also amend Clause 2 of the Bill which basically would then mean we are now removing any reference which is mentioned in Clause 2 on the abolishment of the death penalty.   If we do that, Hon. Chair, what it means is that if you go through Clauses 3, 4, 5, it then talks specifically to the amendment of the Criminal Procedure and Evidence Act and that Hon. Chair, there is no problem of variation because it does not touch on any aspect that can actually be defined as a constitutional matter.

Hon. Chair, before I sit down, I just want to state that this Parliament and the people of Zimbabwe have got the power to make laws and once you make a law and you feel that this law is not meeting the intended intention, you know Parliament has also the power to amend the laws.  This is the reason why, Hon. Chair, you find that we have actually come into this august House with quite a number of laws – the Finance Bills which pass the Finance Act.  We then realise that after they come into operation, they have created problems.  We come back here, and we can then amend.  What we are basically doing, Hon. Chair, is that this Bill therefore amends a statute that we actually passed as a Parliament.

To that extent, Hon. Chair, I would want to urge this august House to say that we will bring the amendment to Clause 1 so that at least we change the title of the Bill.  Instead of saying the Death Penalty Abolishment Bill, it becomes an amendment to the Criminal Procedure and Evidence Act.  So that would be the first amendment.  We also then make sure that we amend Clause 2 so that at least there is no confusion in respect to the question of the death penalty.

The concession, Hon. Chair, of ensuring that we do that is to seek progress so that where the Executive and Legislature are actually seeing things from the same angle.  We could actually move without the need of having a problem where there are some areas of disagreements.  I have shared with the Chair of the Parliamentary Legal Committee, the sort of amendments that we seek to then do when this Bill comes to the Committee Stage in the debate.  I believe that this Bill is the right Bill at the right moment, as it meets the feelings of the public of this country.

To just also add, many people would be aware that for every 100 people in Zimbabwe, 52% of those people are women.  They are exempted, they are not sentenced to death.  You also need to know that everybody who is under 21 years, cannot be sentenced to death. Anyone who is above 70 years cannot be sentenced to death.  What that means is that only 28% of the people in this country can be sentenced to death, 72% of the population cannot be sentenced to death.  We believe that the removal of the death sentence in our courts will go a long way in making sure that we build a just society.  I thank you. Use this link to follow the debate:

Mushoriwa disagrees with PLC decision on the Death Penalty Abolishment Bill Adverse Report