A Zimbabwean prisoner who is on death roll, waiting to be hanged, yesterday approached the Supreme Court challenging his death sentence, saying the new Constitution only allowed passing of a death sentence in situations where there were aggravating circumstances.
Chris Chakufora Gota has been on the 'waiting list' of getting hanged for the past two years after he was sentenced by High Court judge Justice Samuel Kudya in 2012, over the murder of Ester Nyarai Kamupini nine years ago.
Through his government-assisted lawyer Farai Siyakurima, Gota urged the court to set aside the death sentence and take into consideration the applicability of the new Constitution, arguing it would save him from the hangman's noose.
Siyakurima quoted Section 18(9) of the sixth schedule of the new Constitution, which says: "All cases, other than pending constitutional cases, that were pending before any court before the effective date of this Constitution may be continued before that court or the equivalent court established by this Constitution, as the case maybe, as if this Constitution had been in force when the cases were commenced."
Siyakurima added: "In terms of the new Constitution, death sentence should only be passed in cases committed only in aggravating circumstances of which this one is not one of such cases.
"The full story remains untold and the evidence, circumstantial as it is, does not lead to the conclusion that the appellant committed the offence for which he was convicted and sentenced to death."
Prosecutor-General (PG)'s representative Richard Chikosha, however, argued that the matter should not be dealt with in terms of the new Constitution as it would amount to applying the law in retrospect.
"On the question of sentence, we cannot apply the law in retrospect. The issue of constitutionality of this case is not for this court and cannot be brought through the back door. Applying the new Constitution in this case would be an injustice because the elements that were taken into account by the lower court are not the same elements that this court would be called upon to look into," Chikosha said.
However, judges of appeal, Justice George Chiweshe in concurrence with Justices Ben Hlatshwayo and Elizabeth Gwaunza, said the problem with the matter was that it had spilled over into the new era.
"And when being determined we are required to take into account the provisions of the new Constitution," the bench said before reserving judgment.
Gota was convicted on circumstantial evidence following the disappearance of Kamupini on March 15 2003. Kamupini's body was later discovered in a disused mine in Mapinga.