By Christopher Mahove
HARARE – Prominent Harare lawyer, Tendai Biti, on Wednesday attacked a section of the Zimbabwean Constitution which gives the president the sole power to pardon prisoners, saying it was meaningless.
Biti was addressing journalists in Harare soon after Constitutional Court Judge, Chief Justice Godfrey Chidyausiku, sitting with the full bench, reserved judgment in a case in which Obadiah Makoni, who was convicted and sentenced to life in prison in 1995, was challenging the legality of life sentences without an option for a pardon.
“We were basically saying that the issue of people’s rights cannot be left to the capriciousness of executive indulgence and executive discretion. It is the role of judges and courts to protect and assert people’s rights; so executive clemency defined in Section 112 of the Zimbabwean Constitution is absolutely meaningless and by the way it is also applied selectively and very subjectively,” he said.
Biti was seeking an order declaring that a life sentence imposed on a convicted prisoner without the possibility of a parole amounted to inhuman degrading treatment and was therefore ultra vires the provisions of Articles 51, 53 and 56 of the country’s Constitution.
“The issue was the legality of life sentences. The law was amended in 2007 to say life is life, if you are sentenced to life you can rot in prison for the whole of your life. So the argument there was that it becomes disproportionate, it becomes cruel and therefore in breach of Section 53 and 51 of the Constitution and that we must follow international standards, which is why I referred to a lot of law from all over the world, the Caribbean’s, the European Court of Human Rights and Justice, Mauritius, Namibia, Brussels,” he said.
He also wanted the court to declare unconstitutional, Sections 112, 113 and 115 of the Prisons Act Chapter 7.11 as they denied prisoners serving life sentences the right to parole, arguing that subjecting the applicant to further incarceration was in breach of Section 53 of the Constitution.
The State, represented by Mike Chimombe, argued that the applicant could not insist on having the parole board dealing with prisoners serving life sentences when the law prescribed that those issues were dealt with by the president.
“By its very nature, life imprisonment upon conviction of a serious offence and therefore conferring powers on the parole board to consider issues to do with life imprisonment will be tantamount to trivialising the offence,” he said in his head of arguments.
Chimombe said there was nothing wrong with the current arrangement and that it could not be discriminatory. African News Agency
