Harare East legislator Tendai Biti (CCC) has urged the government not to impose mandatory sentences for rape cases, arguing that it is against the principle of separation of powers as it will take away the powers of the judiciary.
Biti was giving his views in response to the Ministerial Statement that had been presented by the Minister of Justice, Legal and Parliamentary Affairs Ziyambi Ziyambi.
Ziyambi argued that mandatory sentences are meant to deter offenders from repeating the crimes.
However, according to Biti, the judicial thinking now is that mandatory sentences are unconstitutional because they breach the right to a fair trial. Below is part of Biti’s debate:
I support strong sentences but I also must caution Madam Speaker Ma’am that we must trust the Judiciary. The Judiciary is tried and tested.
The Judiciary has got mechanisms in which they can balance the society’s anger against this brutal invasion called rape and also the interest of justice, including the subjective circumstances of an accused person.
Therefore, I urge the Minister to push for this judicial colloquium and ensure that at the Judicial Colloquium, there are world experts that will speak on the issue.
There are regional experts, there are African experts and there are Zimbabwean experts that should guard that colloquium and come up with recommendations that will be put to the Ministry and Government.
Biti went on to cite a case dealt with in the Ugandan Constitutional Court, the matter of Alice Kigula and another v Attorney General. He said:
There are two important judgements on the African Continent. One of them is a decision of the Ugandan Constitutional Court by their Chief Justice, Justice B.J Odoki in the matter of Alice Kigula and another v Attorney General.
In that case Hon. Speaker Ma’am involved the imposition of a mandatory penalty of death when there were no extenuating circumstances.
… The Ugandan Constitutional Court through Odette J, held that if a court cannot inquire on sentence beyond extenuating circumstances, you have tied this court and therefore it is unconstitutional.
That same line of thinking was followed in the Malawi Constitutional Court, in a case called Kafandala (State versus Kafandala).
The Malawian Supreme Court came to that conclusion again that you cannot tie the hands of the judiciary.
The judiciary must have the power to inquire bottom liability and on sentence.
Madam Speaker Ma’am, this is consistent with the principle of separation of powers.