Call to abolish capital punishmentdoes a murderers sanctity of life carry more weight than that of the murdered??

By Tavonga George Chigudugudze Zimbabwe is at this juncture embroiled in a crusade to forge a new constitution after unanimous consensus on the superfluity of the current Lancaster House constitution. One of the fundamental issues that have raised sentiment amongst Zimbabweans at home and abroad has been the issue of the death penalty. Section 12 protects the right to life. However this right is not an absolute one, it is subject to certain qualifications. Section 12(1) expressly provides for the death penalty. The death penalty may only be imposed in Zimbabwe for murder, treason and certain military offences. The death sentence may not be passed on a pregnant woman, a person over the age of 70 or a person who was under the age of 18 when he or she committed the offence. Only the High Court has the power to impose the death penalty. A plethora of criticisms have been levelled against the death penalty and there have been various calls for its abolition. I have listened and read the arguments opposing the death penalty and I find that they are not at all convincing. This article deals with death penalty on murderers. The death penalty has been abolished in South Africa.In S v Makwanyane 1995 (3) SA 391 (CC), the Constitutional Court found the death penalty to be in conflict with the right to life and the guarantee against cruel, inhuman or degrading punishment. Langa J (as he then was) held that the State should be a role model for society and demonstrate its own respect for human life and dignity by refusing to destroy the life and dignity of criminals. He linked respect for life and dignity and a de-emphasis on retributive justice with the African philosophical concept of ubuntu. It has been said the death penalty has been found to be tortuous, inhuman degrading and contrary to the Bill of Rights. Some have even argued that the death penalty is unconstitutional. Firstly it is submitted that the death penalty and delay in carrying out a death penalty are two different things. Delay in execution is of course unconstitutional as it is inhuman and degrading therefore contrary to section 15. The death penalty isnt. Abolitionists interpret from the Bill of Rights Section (12) right to life, especially murders! And they also point to section 15, which states that no one shall be subjected to inhuman and degrading punishment. From this abolitionists self-righteously declare that the death penalty violates both of these rights. But in fact nowhere in that bill is the death penalty specifically or impliedly condemned as a human rights violation. In fact it is specifically provided for as an exception to the right to life. If we were to follow, the reasoning of abolitionists, then we will need to do away with prisons because you know whatliberty is much of an important right! Indeed it is apparently clear that the drafters of the Bill of Rights had the moral coherence to recognize the distinction between crimes and punishment which abolitionists try to desperately erase. What the Death Penalty is is a punishment for human rights violation, not human rights violation itself. Anyone with any amount of moral judgment and coherence would recognize and respect that difference. All abolitionists are trying to do is to protect human rights violators at the expense of their victims by trying to pass off the just punishment of human rights itself, an analysis that one would have to be totally lacking in sound moral judgment to accept since it is so obviously contradictory as well as morally and logically skewed.

DEATH PENALTY AND THE THEORY OF RETRIBUTION According to the retributive theory, punishment is justified because it is Xs just desert. Retribution is the restoring of the legal balance which has been disturbed by the commission of the crime. Punishment is the payment of the account which, because of the commission of the crime, X owes to society. This simple truth was explained by CR Snyman, Criminal Law 4th ed at pg14 as follows; The legal order offers every member of society a certain advantage while at the same time burdening him with a certain obligation. The advantage is that the law protects him in that it prohibits other people from infringing upon his basic rights or interests, such as his life, his physical integrity and property. However, this advantage can only exist as long as each member of society fulfills his obligation, which consists in refraining from infringing upon other members rights. In other words, there is reciprocity between the advantage and the obligation and duty. The advantage has a price, namely the duty to refrain from injuring anothers interests. If everybody exercises the required self restraint and refrains from injuring anothers interests, the two scales of justice are evenly balanced; the advantages and disadvantages are evenly distributed. However, if a person voluntarily refrains from exercising the required self-control and commits an act harming or injuring anothers interests, the scales of justice are no longer in balance. X (the wrongdoer) renounces a duty which others voluntarily take upon themselves, and in so doing he acquires an unjustifiable advantage over those who respect their duties to society. He enjoys the advantage of the system without fulfilling his obligations. In so doing he becomes a free rider. By implication X sends out a message to Y( the individual who is harmed) or to society that his(Xs) wishes and rights are worth more than those of Y or of other law-abiding citizens. He also sends out a message that the safety of law-abiding citizens is in jeopardy. According to the philosophy underlying retribution (or just desert), X now has a debt which he owes to society. By being given a punishment and serving such punishment he owes to society. In this way the score is made even again It is submitted herein that retribution does not mean vengeance. By vengeance is meant the idea of an eye for an eye and a tooth for a tooth. This is the primitive or Old Testament meaning of the word (Gen 9:6, Exodus 21:23-25) According to this meaning of the term the very same harm or injury inflicted by the wrongdoer should be inflicted upon himself. It is completely wrong to assign this meaning to the term retribution It might have had this meaning in primitive societies but modern writers on criminal law reject this meaning, and favor the more enlightened meaning described above, namely the restoring of the legal balance which has been disturbed by the commission of the crime. The idea of proportional relationship between harm and punishment, inherent in the retributive theory, is of great importance in the imposition of punishment. Abolitionists argue that capital punishment ought to be replaced with life imprisonment. The murderer, having denied a law- abiding citizen his right to life, should be sentenced to life in prison, where he gets free food, free uniforms ( from tax payers money when young people and old aged are languishing out there) and most of all enjoying free oxygen which he/she denied his/her victim. Punishment in the form of retribution brings down the offender to the same level as the victim, and expresses solidarity, not only with the victim, but with the maintenance of justice in general. It must be noted that retribution respects freedom of will and explains culpability requirement. Snyman CR (supra) pointed out that a very important difference between the retributive theory and the relative theories(preventive, deterrent and reformative) is the following: the retributive theory operates within an indeterministic construction of society; it

therefore presupposes that man has a free will. The relative or utilitarian theories, on the other hand operate with deterministic construction, which, at least on its original, unadulterated form, presupposes that man does not have a freedom of choice but is the victim of outside forces such as heredity, the environment or upbringing. He is the product of circumstances and is being manipulated or at least capable of being manipulated by outside circumstances. The reformative(or rehabilitation) theory, for example, presupposes that the transgressor is a sick person who, like other sick people, could be changed by therapy into once again becoming a normal law-abiding citizen. The importance of the distinction is the following: Free people can be held responsible for their choices, provided the choices were made voluntarily. They have in a certain sense merely brought the punishment upon themselves. They can fairly be blamed for what they did and their punishment is their just desert. They have earned their punishment. According to the utilitarian model, on the other hand, the transgressor cannot be blamed for acting in the w3ay he did, because what he did was not the result of his own free choice, but of outside forces. He may arouse our pity or compassion, but blame is out of place. Since the general requirement for criminal liability known as culpability (mens rea or fault) is based on Xs blameworthiness, it the retributive theory, and not the utilitarian theories, which offers the best explanation of the culpability requirement. In the case of murder such considerations will mitigate sentence. It is even more surprising how abolitionists call for abolition of capital punishment when it is only available for unmitigated first degree murder! If one considers the deterrent theory, one finds that people can be deterred from crime even by punishing somebody who transgressed the norms of criminal law while lacking culpability. One can in fact deter people from crime even by punishing not X himself, but his family, friends or loved ones something common in authoritarian regimes. As far as rehabilitation is concerned, one need not necessarily wait till a person has committed a crime before sending him to rehabilitation centre; the mere manifestation of an inclination to behave contrary to accepted social or criminal norms would be sufficient to warrant sending the suspect for rehabilitative treatment in order to make him change his ways. Thus if one follows the relative theories, completely discarding the retributive theory, it cannot be said that culpability should necessarily be a prerequisite for criminal liability. It is therefore submitted that capital punishment in matters of murder is highly necessary as it is compatible with the retributive theory of punishment. Retribution respects human dignity and I do not understand what abolitionists mean when they say the death penalty destroys human dignity. As Kant emphasized, mans dignity requires him to be treated not as a means to an end, but as an end in itself. His worthy is not based upon his utility to others, as utilitarians and abolitionists would have me be, but upon an inherent, inalienable dignity. Snyman on this note opines that by applying the retributive theory the lagal order respects Xs human dignity, because is treated not as a depersonalized cog in a machine, but as a free responsible human being. THAT THE DEATH PENALTY DOES NOT DETER MURDERERS Constitutional lawyer and chairman of the Department of Public law at the University of Zimbabwe Professor Lovemore Madhuku described the death penalty as an old method of punishment that failed to deter would-be murderers. Dismissing capital punishment on that basis requires us to eliminate all prisons as well because they do not seem to be any more effective in the deterrence of crime. Is the purpose of punishment deterrence and deterrence alone?

In any case it is herein submitted that the Death Penalty is a deterrent to crime. A common argument is that statistics do not show that the death penalty deters crime when we compare death penalty states with non-death states. Of course it doesnt! The states that have the death penalty do not use it enough to show anything! One American complained: Less than fifty executions out of eighteen thousand murders arent going to accomplish much! I bet eighteen thousand executions would deter some crime! I bet the murder rate would fall quicker than the 1929 stock market! Similarly in Zimbabwe, about 49 people on death row as per 2009 statistics but there havent been an execution since Masendeke and Chidhumo! I also personally think that we need TELEVISED executions every night at 8:00pm on ZTV. Lets have posters all over town with some murderer hanging down the rope. Lets have bill boards too. Let the public demonstrate solidarity and respect to the office of the executioner as they do to soldiers, the two are championing public security. Forget movie of the week. Lets just have 12 million people sit down every night and see some little children crying about their mother who was raped and murdered. Lets see some mothers and fathers mourning over their little baby girl who was molested and murdered by some wicked devil, and then lets see the rascal get what he deserves. I bet that would deter some crime! You say, Man, youre crazy!Am I? Did you ever read how God commanded the Israelites to execute people? It was a PUBLIC STONING! Is God crazy too? John McAdams once said: If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call Furthermore the issue of life imprisonment in case of the penalty must be taken with a pinch of salt, since somebody who has received such a punishment may be released on parole. Abolitionists again fail to explain how imprisonment for life would deter would be murderers.1995 I was still very young but I have heard stories about the wave of panic and pandemonium that swept across Zimbabwe when news spread that Chidhumo and Masendeke had escaped out of Chikurubi Maximum Prison. These two were notorious for molestation, rape and murder. THE MORALITY OF CAPITAL PUNISHMENT It has been repeatedly said that the main purpose of criminal law is to prevent socially intolerable conduct or, at least, to hold it within socially acceptable limits. By threatening punishment the criminal law tries to suppress anti-social conduct likely to disrupt society. Burchell and Milton in Principles of Criminal Law at 2:The criminal law is a social mechanism that is used to coerce members of society, through threat of pain & suffering, to abstain from conduct which is harmful to various interests of society. Its object is to promote the welfare of society & its members by establishing & maintaining peace and order. The special nature of criminal law was touched by Wechler The Challenge of a Model Penal Code; Whatever views one holds about the penal law, no one would question its importance to society. This is the law on which [people] place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. Nowhere in the entire legal field is more at stake for the community or for the individual.It is submitted herein a crime is as severe as the punishment that follows it. As Edward Koch once said It is by exacting the highest penalty for the taking of human life that we affirm the highest value of human life

Murder is the most terrible crime there is. Anything less than death penalty is an insult to the victim and society. It saysthat we dont value the victims life enough to punish the killer fully. Lord Justice Denning, Master of the Rolls of the Court of Appeals in England said to the Royal Commission on Capital Punishment in 1950: Punishment is the way in which society expresses its denunciation of wrong doing; and, in order to maintain respect for the law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider then objects of punishments as being a deterrent or reformative or preventive and nothing else The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not. In JJ Rousseaus The Social Contract written in 1762, he says the following: Again, every rogue who criminously attacks social rights becomes by his wrong, a rebel and a traitor to his fatherland. By contravening its laws he ceases to be one of its citizens: he even wages war against it. In such circumstances, the State and he cannot both be saved: one or the other must perish. In killing the criminal, we destroy not so much a citizen as an enemy. The trial and judgements are proofs that he has broken the Social Contract, and so is no longer a member of the State It is pertinent and crucial to note that giving up this penalty award an unimaginable advantage to the criminal over his victim, the advantage of life over death. The problem with the criminal justice system is that criminals have more rights, get more attention, get more sympathy than the victims themselves, its disgustingitsdisgusting! Well, I can tolerate it to some extentjust not to the extent of rationalising abolition of the death penalty on murderers. Does the sanctity of life of the murderer carries more weight than that of the victim?? Abolitionists really have a lot of gall claiming that they are motivated to oppose the death penalty by their reverence for human life when the only people that they are interested in preserving are those who display the least of itthe least reverence for human life. There is in circulation this other clichd argument why do we kill people to show that killing is wrong? That two wrongs do not make a right; therefore executions are equivalent to murder. Logically the word murder can not be used to describe executions since the death penalty is the law and murder is UNLAWFUL killing among other essential ingredients of the crime. To do so will therefore obviously constitute an abuse of semantics. Moreover, comparing executions to murders is like comparing incarcerating people to kidnapping or charging taxes and fines to extortion. There is a difference between violent crime and punishment. Is there a contradiction in a policeman speeding after a speeder to enforce speeding law? One displays a serious lack of moral judgement to believe that just because two practices share a physical similarity means that they are morally identical. I am sure one may be pardoned for calling that person an idiot! It is submitted that public safety is not some trivial privilege, but an unalienable human right for every decent citizen. Murderers are a threat to public safety. Every civilised nation has a moral responsibility to defend the safety of their decent civilians at least: as diligently as they defend national security with an army. As aptly pointed out by Professor Donald Atwell Zoll from Arizona University: Capital punishment ought not to be abolished solely because it isrepulsive, if infinitely less repulsive than the acts that invoke itIf we are to preserve a humane society we will have to retain sufficient strength of character and will to do the

unpleasant in order that tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is anecessary, if limited, factor in that maintenance of social tranquillity and ought to be retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival. I too, like many other commentators, find it hypocritical that the same countries who have abolished capital punishment because it is barbaric to defend public safety that way are at the same time prepared to enforce political power and defend their territorial claims through infinitely more bloodshed and violence than the death penalty would require. It has been rightly pointed out that those nations are just trying to rationalize their apathy and scorn for any institution that doesnt serve their self serving and political interests. Even famed Russian author of War and Peace and pacifist Leo Tolstoy referred to capital punishments morality to criticize warfare when he said For the executioner only holds himself in readiness to kill those who have been adjudged to be harmful and criminal, while a soldier promises to kill all who he is told to kill event though they may be the dearest to him or the best of men This writer emphatically believes that the whole reason why nations and governments exist is to defend their decent citizens from vicious criminals. It is therefore humbly submitted that when a society ignores their moral duty to defend the safety and security of their decent citizens and leaves them at the mercy of the violent criminals, they are not being civilized, they are being negligent. CAPITAL PUNISHMENT VERSUS THE BIBLE Another weapon used to attack capital punishment is the Holy Bible, the source of all morality Some Christians claim that man have no right to play God by pointing out to the 6th Commandment in Exodus 20:13 which states: Thou shall not kill but this did not forbid lawful executions, because the root Greek word did not cover all killing. The literal meaning of the commandment if directly translated from the original Hebrew version is Thou shall not commit MURDER. And murder is the UNLAWFUL killing of a person with malice and aforethought. Capital punishment is not unlawful. The death penalty was first instituted by God Himself in Genesis 9:6 Whoso sheddeth mans blood, by man shall his blood be shed: for in the image of God made he man Man didnt invent the death penalty, why should man push to abolish it? God gave man the moral duty to execute to execute those who choose to take the lives of others. Exodus 21:12 says He that smiteth a man, so that he die, shall be surely put to death Supporting the death penalty seems to me like honoring the Makers will. I know some are probably saying thats just the Old Testament, Jesus changed and abolished it with the New Testament. Well, I didnt read this book much but I think there is somewhere Jesus warned that he did not come to abolish the law. Abolitionists use Matthew 7:1, Judge not, that you be not judged to say that the death contradicts Christian values. I personally think this is funny. Looking at the whole picture you see that Jesus was referring to the hypocrite and not the entire Justice System! I am afraid such line of reasoning means we should do away with the entire prison system and all forms of adjudicating. Thats not only insane but reasonably inconceivable. Exploring the entire New Testament it seems to me like God has never changed His Law of capital punishment (Read Acts 25:11; Roman 13:1-4; Revelation 13:10) Revelation 13:10 reads He that leadth into captivity shall go into captivity: he that killethwith the sword

must be killed with the sword. Here is the patience and the faith of the saints So you tell me if the death penalty is no longer in effect why do we have this verse in the New Testament? Apostle Paul says in Acts 25:11 For if I be an offender, or have committed any thing worthy of death, I refuse not to die: but if there be none of these things whereof these accuse me, no man may deliver me unto them. I appeal unto Caesar Interesting! So Paul admits that he was willing to die if he was guilty of such an offence, murder is surely the first of those things worthy of death There must be an uproar on the efficiency of the Criminal Justice System to make sure that murderers are guillotined and innocent people, after being fairly tried, are acquitted. Sentence me to death in the High Court but protect my right of appeal to the Supreme Court. The essence here, as Paul seems to be saying is not to do away with the whole death penalty but simply making sure that guilty people are adequately punished and innocent people are acquitted which is the whole basis of an effectively functioning Justice System In Zimbabwe the death penalty has been used sparingly. A person convicted and sentenced to death in Zimbabwe gets an automatic appeal to the Supreme Court. This gives the accused person(s) any opportunity to introduce evidence that may have been either overlooked or not considered in the first instance. Failure to get relief from the Supreme Court, a convicted felon has another chance to apply for a pardon from the president of Zimbabwe. These checks and balances in the Zimbabwe legal system minimizes of miscarriage of justice. Buy what right does the state imposes capital punishment? Without even going to the Social Contract Theory lets go to the Bible you so dearly loves but understands so little. In Romans 13:1-4 Paul says: Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God: and they that resisteth the power resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that dweth evil It is said here those in authority are ordained by God (just as in Genesis 9:6) to execute wrath upon evil doers. Paul said, he beareth not the sword in vain A sword is used for one thing: KILLING! We even waste much time worrying about how man will extinct this planet through pollution, global warming and all those scientific and environmental theories wherein the bible says this old planet will survive. Do you know what the Bible identifies as the source of environmental pollution? God said the land is polluted and defiled when killers go free not through emitting carbon monoxide into the ozone layer. See Numbers 35:16-21; 35:30-31 So ye shall not pollute the land wherein ye are. For blood it defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it. Defile not therefore the land which ye shall inhabit, wherein I dwell vs. 31-34. Some religious people or should I say purportedly religious people argue that since we cannot create human life we should not take it. Well, if you accept the premises of religion then not only can we not create human life, we cannot destroy it. We can only destroy the flesh that temporarily houses the immortal soul. What happens to the soul is Gods business, no one elses.

Having said this, I will not hesitate to say that I find all biblical interpretations against the death penalty to be frivolous, at best, because no where does the bible repudiate capital punishment for murder. In fact it the one crime in the Bible for which no restitution is possible (Number 35:31-33) Christians who oppose the death penalty in deserving cases tend to subordinate the justice of God to the love of God. Conclusion The death penalty in cases of unmitigated first degree murder must not be scrapped. This writer feels that such a movement could make at least a little sense if it was with regards to crimes like treason and a call for an unqualified detachment of capital punishment is not only misinformed and misguided but grossly negligent. Even if death penalty can be said not to deter murder, but it is submitted here that it gives community the feeling that justice is being done; that murderers pay for their misdeeds; that there is recognition of communitys condemnation of the crime; and that the murderers right to life does not weigh more than the right to life of the murdered victim or that of other members of society. The punishment of murderers by death penalty ironically sends a message that the law places a high value on life. Abolition will leave expressions such as the right to life and sanctity of human life with no concrete meaning for the people of this beloved country of the Republic of Zimbabwe, a country which flows with milk and honey.