How Zimbabwe reached the point of abolishing the death penalty

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Your gift can help support a healthier democracy. To donate, please go to donate.theconversation.com. That's donate.theconversation.com. And you can follow the link for that directly from our show notes. Thanks very much for your help. Now on with this week's episode. Zimbabwe is on the cusp of abolishing the death penalty. Its death penalty abolition bill was approved by the Senate on December the 12th and is now sitting on the desk of Zimbabwe's president, Emerson Manangagwa, waiting for his assent. In this episode, we speak to two experts on the death penalty who explain how Zimbabwe got here and what abolition means for both the country and the continent. I'm Gemma Ware and this is the Conversation Weekly, the world explained by experts. Hi, Keguri. Hi, Gemma. Great to have you on the show. How is Nairobi today? Nairobi is nice and sunny. I'm jealous. I'm jealous. Cold here in London. So, Keguri Gachechi, you are the peace and security editor for East Africa based in Nairobi for the conversation. What kind of stories come across your desk most often? So thanks for having me on the podcast, Gemma. I typically cover stories that track conflicts in the countries that make up the wider Eastern Africa region. This includes the Horn of Africa, but because of how vast the area is, we do tend to find ourselves kind of dipping into other countries across the continent. I also look at efforts being made to build lasting peace in what can be a rather volatile region. And the story we're talking about today is about Zimbabwe in Southern Africa and really about that journey to build lasting peace and justice in some way. It's about Zimbabwe's recent decision to abolish the death penalty. What's just happened? So Zimbabwe has just become the 127th country in the world and the 27th in Africa to abolish the death penalty. It's been a long time coming. There's been a lot of lobbying around it, but finally Zimbabwe has made the decision after last carrying out an execution in 2005. That's a long time ago, and Zimbabwe is one of a number of countries in Africa that still retained a law to have a death penalty, but wasn't actually executing anyone. Yes, so this makes Zimbabwe what was known as a de facto abolitionist state. This means that it hasn't executed anyone in at least 10 years. Now it has dropped off the list and that just leaves 16 African countries that are still considered de facto abolitionists. This list of course includes Kenya, which retains the death penalty by hanging, but lots of other countries this year have made the decision to drop the death penalty law. And do you think people in Kenya are looking at what's happened in Zimbabwe? I think there's a lot of great interest in Kenya. Just because of the trajectory that the death penalty law is taking in Africa, there is interest in not being left behind. Kenya last carried out an execution in 1987, and research has shown that people who carry out crimes like murder, treason or robbery with violence are not really deterred by the death penalty, and the public also has no strong sentiment for keeping the death penalty. So it's a matter of lobbying and possibly time to just see the death penalty being dropped in Kenya. And when the news broke about Zimbabwe moving towards abolition, you began working with a couple of researchers, Caroline Hoyle and Prafé's Jabba, who is here in the UK actually, who look a lot at death penalty research and trying to abolish it. Can you tell us a bit more about them and how you've been working with them? So I first worked with Caroline and Pavé's on articles that highlight their research on why Kenya still retains the death penalty law, and their findings that prisoners on death row were actually not deterred by the threat of a death penalty. So they have vast experience in this area, they are excellent at translating their research for a non-specialist audience. They've done lots of work around just the death penalty in countries that still retain it. Caroline is the director of the University of Oxford Death Penalty Research Unit, and Pavé's, as well as being a visiting professor with Caroline at the unit, is also a practicing lawyer and executive director of the death penalty project, which is an NGO that works around the world supporting those seeking to abolish the death penalty. They've worked quite closely on the Zimbabwe case. They were able to highlight the lack of public support for the death penalty, and this research helped move the needle. Well, great, Kegori, you've introduced them both to us, and we've had a really interesting conversation which we're about to hear, but thank you for setting out the context. Thanks, Gemma. Caroline, can you tell us a little bit about the death penalty in Zimbabwe and what kind of punishments used to happen in the country for murder before the colonial era began? Zimbabwe's colonial history started back in the 1880s. This was European colonialists arriving with Cecil Rhodes and the British South Africa Company. Before that time, people were generally not sentenced to death. Rumour has it that the Shona people were worried that killing someone would lead to that person's spirit tormenting the living, and the traditional idea in the region, this idea that people talk about Ubuntu, which focuses on peace and reparation, that typically guided responses to serious crime. And there was also this idea of compensation for murder, which some countries still have that under Sharia law, for example. So that was the idea that the offender's community would transfer property, maybe a goat, sometimes actually, slightly concerningly, a woman to the victim's community. Other tribal groups did use the death penalty, but really parsimoniously, it was imposed only for intentional homicide, but not for other killings and certainly not for other offences. So when was it introduced? It came with the colonial powers from the UK. By then Britain itself had already started significantly reducing the number of offences punishable by death, cutting them down from around 220 to just four. Murder, high trees, and piracy with violence and arson in the royal dockyards. But in practice, it meant that in the UK, we were only really using it for murder. In 1923, Southern Rhodesia became a self-governing British colony and introduced its first constitution. That's when other things that were also happening in the UK came into the Zimbabwean law. No executions of pregnant women, for example. No executions in infanticide cases. And then what's interesting, if you look forward to then what happened in 1965, this, of course, was the year that in the UK we abolished. It was also the year that things started to change in Rhodesia. It was this pivotal moment when Ian Smith's Rhodesian front took over governance of what we now call Zimbabwe. And there was this hiatus where Britain kind of withdrew. It didn't support the transition of power between the Swiss government, but it also didn't impose sanctions. And what happened in this period is you had a civil war within Zimbabwe. The 15-year civil war was fought between the white minority government of Ian Smith and a number of African militant liberation groups, including the military wing of the Zimbabwe African National Union, Zanu, led by Robert Mugabe. And at that time, they started to use the death penalty a lot, as often happens in civil war. So the number of offences increased to about 28 death sentences in '65, for example, 71 in 1968. During this period of conflict within Zimbabwe, you had a lot of use of the death penalty. The war ended in 1979, and the following year the country won official independence, adopting the names in Zimbabwe. Mugabe was elected prime minister. During that time of Zimbabwe's new independence, as it were, from 1980, the death penalty then was used for murder, for rape, for robbery, for political offences. And while there had been many death sentences and executions during the 15 years of white minority rule, it started to drop quite significantly and really very few executions during that period of time. And were people still being given a sentence of death in some cases, but just not being executed? Yes, yes. Zimbabwe didn't abolish the death penalty at the end of colonial rule, but it did adopt a new constitution in 2013, and it retained the death penalty in that constitution. And there was a lot of discussion at the time about whether it should or shouldn't, but it further restricted its application, it restricted it just to murder, committed in aggravating circumstances, so not to all killings. And it further abolished the mandatory death penalty and prohibited the execution of offenders aged 21 and under at the time of the offence, and also, bizarrely, aged 70 and above, which few countries do. That constitution also prohibited death-sensing and execution of women. And is there a specific means of execution that's still on the statute books? Hanging, which was also a colonial relic. They inherited that from us, and they kept that on their books. The last man to be hanged was a convicted murderer called Mandela Kozi Masina in July 2005. Paves, what do we know about the views of Zimbabweans towards the death penalty? We first started working in Zimbabwe in 2015. We were invited out there to try and work with local NGOs, talk to government and so on, and see whether a country that hasn't executed, as Karen mentioned since 2005, so a decade, could move towards abolition. So I remember quite vividly going out there having those first meetings in 2015. And the issue that always came up in every conversation, whether you were pro-death penalty or against the death penalty, amongst policymakers, government and others, was people would say, personally, I'm against the death penalty. And then at the same time say, but unfortunately, the public want it. We wanted to try and see, is that true? In all of the work that we've done throughout the years, what we generally tend to know is that if you ask the binary question, are you in favour, are you against, you'll always get a much higher figure for in favour. We wanted to delve a little bit deeper. In 2017, the Death Penalty Project, that's the NGO that Paves runs, commissioned a public opinion survey of about 1,200 people. The polling was carried out by the Zimbabwean-based Mass Public Institute. The main finding was that the majority of Zimbabweans supported the death penalty, 61% of those that we surveyed. But then when we did more questioning, what we found out was that 80% of that 61% said, not the standing that I'm in favour of the death penalty. If the government were to decide to abolish the death penalty, we would accept that. That is for what governments do. The survey also presented participants with vignettes or scenarios involving incidents or killings taking place in Zimbabwe. And they were then asked if each particular case warranted the death penalty. In five of those six scenarios, people were opposed to the death penalty. There was a complete contradiction to this kind of idea that the majority were in support. When they looked at these cases, they said, oh yeah, but not in that case. What you could see there was that actually the more information you provided to somebody, the more knowledge they obtained, the less likely they actually supported the death penalty. The people being surveyed were then asked questions about what they thought the best ways were to control crime. 92% of those that we surveyed considered policies other than executions to be more effective for crime control. And in all of the surveys that we've done in other jurisdictions, we've consistently seen that, which is when they have to rank it, the things that come up at the top for effective crime control are better education of young people, better policing, arresting people, etc. Executions or more executions are right at the bottom. Zimbabwean President Emerson Manigagwa has long been a vocal opponent of the death penalty. In 1965, Manigagwa was convicted of sabotage during the fight for independence and sentenced to death. He avoided death by hanging because he was deemed too young, but he spent 10 years in prison and the experience shaped his views on capital punishment. Manigagwa became president in 2017 after Mugabe's death, but that didn't make abolition a done deal. Leaders want to be popular. They want to be popular with their people, but they also want to be popular within their government. It's quite hard to push on certain things, especially when there are competing issues to push through and there always are for political leaders. In 2017, Carolyn led a follow-up survey of opinion leaders in Zimbabwe, including politicians and leaders from religious and civil society groups. She found very high levels of support in favour of abolition among the 42 people who were interviewed. 90% of them supported abolition of the death penalty, and when they asked them why, it was really around issues like they saw it as an abuse of human rights, or some of them said it was against their religious beliefs. But they also were of the view that it didn't really help at all in deterring crime. They didn't trust the criminal justice system. That's the other point. They didn't trust it to be safe and to be fair in all cases. The most recognised that wrongful convictions occur, at least sometimes, even in death penalty cases. But at the time, when we asked them why hasn't it happened yet, given that it had at that point been abolitionist de facto for a long time, they thought at the time there wasn't sufficient political leadership to push it over the line. Manangagwa actually wrote the forward to Carolyn's report. He welcomed the findings and said that it was his sincere hope that, in the near future, Zimbabwe will formally abolish the penalty by removing it from our statute books. One of the biggest barriers to making this happen is always the issue of public opinion. Politicians can be reluctant to lose political capital over something they know doesn't have majority support on paper among citizens. Carolyn, it's rare, isn't it, for a country to actually have majority support for abolishing the death penalty before it does so. What do we know of what happens after it's abolished? Is there any support for the death penalty to diminish? Yeah, so I think there's been two countries that did support abolition prior to abolition happening. Which two countries is that? I think it's Norway and Ireland. But in most countries, public attitudes shift over time. So most of us take some time to go along with a new culture that grows and starts to see death penalty as something of a relic, of a cruel and inhumane past. It's like West Germany, when West Germany abolished in 1949. I think they had at the time something like three-quarters percent of the public in favour of retention. And by the time it came to 1980, that figure had fallen to just a quarter. So a massive reduction, a period of time, sure, but a reduction. The same thing happened in New Zealand, Australia. You went from a sort of majority support of over 50% to about a 25% support for the death penalty a few decades later. There's often a generational divide on the issue. It tends to be the older generations who look back to a past which might have felt more safe, that still support it. So new generations have grown up in an abolitionist country. And they've also grown up with a rhetoric of human rights and it becomes more powerful. Zimbabwe's journey towards abolition reflects this generational divide too. After the last hangman retired in 2005, the country advertised repeatedly for a new one, but had no applicants. They only managed to fill the post in 2013. And now in the end, that new hangman has never actually had to do their job. Just before Covid, there'd been some debates in the Zimbabwean Parliament about the death penalty. But any progress towards abolition had taken a back seat during the pandemic. Then in September 2023, Parvez and Caroline were invited to Harare, to meet with their local partners, a charity called Veritas Zimbabwe. We held a roundtable meeting that was hosted by Veritas. And there we established a number of MPs who wanted to bring this forward. And what we decided was that the way to do it was to bring a private member's bill. That was brought by an opposition MP, Edwin Musharower. He was somebody who was very well respected. And that really started the legislative process. That went before Parliament. The government decided that they were going to support the bill, which was fantastic because it was an opposition member's bill. In February 2024, Zimbabwe's cabinet approved the bill, beginning a parliamentary process that terminated in mid-December when the Death Penalty Abolition Act received approval by the Senate. It's now awaiting Manangagwa's signature. The new law will remove the death penalty for civilian crimes. There is still retention in relation to military crimes, although the assumption is that if anybody ascends to death, they will be commuted to life. But they come under the Military Provision Defense Act. But for all ordinary crimes, the death penalty will be abolished. What happens now? What issues can emerge in the wake of a death penalty abolition in the country? I think there are still around 60 people on death row in Zimbabwe. What's going to happen to them? Good question, actually. It's an important one. First and foremost, once abolition happens, the question is what do you do with those who are currently under sentence of death? Because they have a sentence that no longer is a lawful sentence. The next step really for them will be to decide how they are to be resentenced. That's something that we're working on now, which is what would that process be for them to be resentenced for another sentence to be substituted. The other issue is what happens going forward for those who are charged, convicted of a homicide? Where the death penalty doesn't exist? What is the sentence that will be imposed? That will be set out in terms of the maximum sentence that can be given, which would be a life sentence and so on. What we want to do is make sure that you don't replace essentially an inhuman and degrading punishment with one that's another inhuman and degrading punishment. You're both in the UK and in your work for global facing organisations that try and abolish the death penalty. Do you ever get criticism that you're kind of imposing this idea from the outside into a country like Zimbabwe? We do sometimes. I think what we say in response to that is we're not campaigning organisations. We're an NGO that provides free legal representation on this issue. Death penalty research unit led by Carolyn Hoyle is an academic institution. So we're there to provide our expertise. We do not go into countries and seek to abolish the death penalty. We go into countries where we're invited and what we do is we work with local organisations and others, individuals or whoever, and provide support to them. Now Zimbabwe is the fourth country to abolish the death penalty in Africa in recent years. Ghana did so in 2023 last year. Central African Republic did it in 2022. Yes, the same year. What's the bigger picture here for the continent? The world has been changing a lot. If you go back to the early years of independence in Zimbabwe, so 1980s, I mean these 35 countries had abolished the death penalty for all offences. Another 27 had abolished it practice, but not in law. So that's what we call abolitionist de facto countries. Whereas now we have 125 countries worldwide have abolished. 40 are abolitionists in practice, so they still centre to death but they're not executing, leaving just 36 countries actively retaining capital punishment in law and in practice. Once a country abolishes the death penalty, it's very rare for it to be brought back. So the Philippines did it once and then abolished again. Myanmar was abolitionist de facto for pretty much 40 years and then carried out some executions under military rule last year. Out of the 33 countries around the world that actively retain the death penalty, only 12 have actually executed somebody in the past five years. Only Somalia in sub-Saharan Africa is among those 12. So Africa as a continent is not among the heavy executing states that you would see in the Gulf states across Asia. And the US. And the US, although they're declining too. If you look then at the African Union, you see that 27 of the African Union states have abolished and 19 are abolitionist de facto. So abolitionist de facto, centre to death, not executing for at least 10 years is a big part of the picture in Africa. There have been some bills to abolish the death penalty before parliament in the last few years. So Kenya and Liberia, for example. Parvez, why are we seeing this direction of travel? Why are more countries in Africa moving towards abolishing the death penalty? We can clearly see an African trend or an African centric approach to abolition. Sometimes the accusation is this is some western influence drive and so on. I don't think this is. I think what you're seeing is the African continent making decisions for itself. And I think that realignment is whether it's progressive, more humanistic, whatever it may be, it's an approach that they seem to be taking. They're influencing themselves, and I think that's really important. I think they're seeing other countries in the region, East Africa, West Africa, wherever it may be, abolishing the death penalty and considering doing it. It's clearly influenced by its international optics rather than saying Europe has done it. This is going to be the next big thing and abolition in the continent will happen. That domino effect. Bawe says that this shift is also a rejection of colonial era laws that remain on the statute books. In the same way we're seeing conversations about reparations and so on, there is some reckoning about what they have, why they have it. So many of these jurisdictions would say we never had the death penalty until colonial rule. We used to deal with it in a different way. So I think they are looking like that and they are projecting it as a colonial era punishment and trying to find something different. Again, what we say is we're obviously as death penalty litigators, academics, specialists. We're very keen to see countries move away from abolition, but that doesn't mean that all the problems are resolved. While abolition is a positive step, it's not a solution to all human rights challenges. In Zimbabwe, those include human rights abuses, such as threats of violence, assault and extrajudicial killings. Some would say that's actually the real death penalty, not death penalty on the statute, but these are important opportunities, I think, because you're getting international credit. It's a really important marker, but you must do more. What we say is this is a good opportunity when you make a fundamental shift like this, to then use this as an opportunity to look at other issues and take those further too. Thank you both so much for your time in explaining the context of this decision and giving us some of the background, so thank you. My pleasure. Absolutely. That's it for this week's episode. It was written and produced by Mende Marawani and me, Gemma Ware, with production assistants from KT Flood. Sound design was by Michelle Macklam, and our theme music is by Nita Sal. Stephen Kahn is our Global Executive Editor. You can get in touch with us directly by email at [email protected] and do also sign up for the conversation's free daily newsletter by clicking on the link in our show notes. The conversation is a non-profit news outlet dedicated to sharing the work of academic experts with a wider audience. If you like what we do, please support us at donate.thecombassation.com and please do also rate and review the show wherever you follow us. It really does help. Thanks for listening. [music fades out]