Zimbabwe’s likely to abolish the death penalty: how it got here and what it means for the continent

Zimbabwe is likely to abolish capital punishment, following a cabinet decision on 7 February 2024. However, its parliament still has to endorse the move and pass the necessary law enabling the change. The question is when this will happen, especially since it appears that it would require a constitutional amendment.

When this happens, Zimbabwe will not only draw a line under a long-standing colonial legal import, but also bolster continental and regional trends towards abolition. It will also provide certainty to – and spare the lives of – the 62 prisoners currently on death row.

The change was initiated by a member of the main opposition party, Citizens Coalition for Change, MP Edwin Mushoriwa, through a private member’s bill. This rarely used process was introduced before the National Assembly in November 2023. According to prescribed procedure, the National Assembly had to approve the official tabling of the bill before it could be gazetted for formal consideration. Now that the executive has signalled its backing, it is all but assured that the Zanu-PF-dominated parliament will formally adopt the bill.

The cabinet decision to abolish the death penalty should not come as a great surprise. Zimbabwe has been a de facto abolitionist state for almost two decades. Although its law still allows for the death penalty, it last executed a prisoner in 2005.

My academic work is concerned with human rights at the domestic and regional level in Africa. In my view, the trend towards abolition of the death penalty in Africa is one of the hopeful indicators of human rights consolidation.

Public opinion

Legal reform on the death penalty often pits legislatures against public opinion. It is not entirely clear what the Zimbabwean general public’s views on the issue are. In its statement, the cabinet said grassroots consultations were conducted in 30 districts. But it does not say what the outcomes of these consultations were.

A 2018 survey found 61% of Zimbabweans supported retention of the death penalty. However, a 2020 survey of Zimbabwean opinion leaders showed strong support for abolition.

It is probably Zanu-PF’s fear of a popular push back that has stifled action towards abolition. Doing it via a private member’s bill insulates the ruling party from any potential popular backlash, to some extent. It is no coincidence that the 2023 abolition of the death penalty for ordinary crimes in Ghana also came via a private member’s bill.

While some opposition is to be expected, indications are that the general Zimbabwean public will take the government’s lead on this.

It is significant that the 2018 study also found that 80% of those favouring retention indicated that if the death penalty were to be abolished, they would accept it as government policy. The reasons for this level of support for abolition lie in the country’s “pre-colonial” culture and colonial history, as I explain below.

Presidential support

It is surprising that the latest decision did not come earlier. President Emmerson Mnangagwa is well known to be an opponent of the death sentence. He was sentenced to death in 1965 for sabotage by the white minority Rhodesian regime. His sentence was reduced to 10 years’ imprisonment, thanks to his youthful age of 22.

Soon after he took office, in 2018, Mnangagwa commuted to life imprisonment the sentences of inmates detained for longer than 10 years. In 2016, as vice president, he had publicly declared the death penalty an archaic imposition of British colonialism that is at odds with the values of pre-colonial Shona societies.

In Shona cosmology, murder is understood as affecting the whole community. It calls for a restorative – rather than a retributive – approach. Payment of reparations to the deceased’s family averts the wrath of an “avenging spirit” (kuripa ngozi).

Colonial relic

Colonialism left its imprints on Zimbabwe’s criminal justice system. One was the introduction of capital punishment for common law offences such as murder. Abuses during the era of white rule negatively influenced popular attitudes towards the death penalty.

Especially following the unilateral declaration of independence in 1965 by the Rhodesian regime of Prime Minister Ian Smith, it was used as a tool for repression and subjugation. During the liberation struggle against the Rhodesian regime, the offence of “petrol bombing”, for example, carried a mandatory death sentence.

The multiparty agreement that brought about changes to the 2013 constitution reflected the national consensus based on historical misgivings about the death penalty. Article 48 of the constitution, which deals with the right to life, allows that “a law may permit the death penalty”, but limits its application to cases of “aggravated murder”. It further excludes from a possible death sentence all female offenders, offenders over 70 years, and those who were younger than 21 when they committed relevant offences.

It seems inescapable that the complete eradication of the death penalty would require that article 48 be scrapped. Because this provision is part of the bill of rights, its amendment requires a two-thirds majority in parliament, and majority support in a referendum (article 138 of the 2013 constitution).

Regional and continental significance

Zimbabwe’s abolition of capital punishment will buttress an African and southern African trend towards abolition. Half of Africa’s countries have abolished the death penalty.

Half of the 16 Southern African Development Community (SADC) states have formally abolished it.

In addition, 16 African states are abolitionist in practice. Among these are six SADC states: Comoros (last execution in 1997), DRC (2003), Eswatini (1983), Lesotho (1995), Malawi (1992), and Tanzania (1994).

Should Zimbabwe join the list of abolitionist states, a tipping point could be reached. Its scrapping the penalty for all crimes may inspire these states that are abolitionist in practice, but not in law, to follow suit.

A turn towards abolition is also what African Union human rights bodies require. While the African Charter on Human and Peoples’ Rights does not deal with the death penalty, its monitoring body, the African Commission on Human and Peoples’ Rights, has adopted a number of resolutions urging African states to observe a moratorium on the death penalty. It also called on these states to take steps towards abolishing the death penalty, and to support an African treaty on the abolition of the death penalty in Africa.

The African Court on Human and Peoples’ Rights declared the mandatory imposition of the death sentence a violation of the African Charter. It also found that hanging as a means of execution violates the charter, but fell short of outlawing all forms of capital punishment.

However, an abolitionist practice can easily be undone, as shown by the decision of the Democratic Republic of Congo in March 2024 to lift a 21-year moratorium on the execution of the death penalty.

Looking forward

Prisoners sentenced to death are exposed to the agony of living in uncertainty about their fate for prolonged periods. In 1993, the Zimbabwe Supreme Court found that excessive delay in executing the death penalty, combined with deplorable conditions of detention, violated the constitutional guarantee against torture and cruel and inhumane punishment.

Abolishing the death penalty in its totality will place Zimbabwe on the right side of history, at a time when it is looking forward to its readmission to the Commonwealth.

Frans Viljoen, Director and Professor of International Human Rights Law, Centre for Human Rights, University of Pretoria

This article is republished from The Conversation under a Creative Commons license. Read the original article.