In February this year, anti-death penalty campaigners welcomed the Zimbabwean Cabinet’s approval of principles for a bill to remove the death penalty from the Criminal Law (Codification and Reform Act) Chapter 9:23 and the Criminal Procedure and Evidence Act Chapter 9:07, as well as the granting of leave for a private member to introduce a private members’ bill in Parliament.

Yet, this marks just the beginning of Zimbabwe’s road to the abolition of the death penalty. While there are policymakers supportive of the removal from Zimbabwe statutes of this form of punishment, there is a group of pro-death penalty proponents who are pushing for the retention of the death penalty in the erroneous belief that it acts as a deterrent to crime and ensures justice for families of victims of murder.

Deterrence, but is it really?

The belief that the more severe a punishment is, the higher the chances that there will be a reduction in crime, lies at the centre of the deterrence argument. Those in support of the death penalty argue that would-be offenders will not commit murder out of fear of the death penalty.

There is however no empirical evidence that the use of the death penalty results in the reduction of crimes worldwide. Studies and analysis of trends in some countries render the deterrence argument weak.

The Death Penalty Information Centre, which analyses murder statistics for states in the US, says that the average murder cases in states which use the death penalty were higher than those without the death penalty for the period 2013 to 2020. Studies in Canada also brought out that the abolition of the death penalty in the country did not result in an increase in murder cases.

Joseph Oliphant’s 2023 research on the relationship between the death penalty and murder rates in four US states showed that an introduction of a moratorium did not result in an increase in murder cases. It is not credible to use the deterrence argument as the basis for the retention of the death penalty and there is no guarantee that the use of the death penalty will stop people from committing murder.

Furthermore, this reductionist approach does not consider the complex interplay of various factors which impact crime rates. Socioeconomic factors such as poverty, high levels of unemployment and drug and substance abuse can contribute to high rates of murder. Imposition of death sentences in such circumstances is unlikely to deter would-be murderers. Addressing inequality and socioeconomic malaises such as poverty may go a long way in reducing the rate of murder cases.

Read more in Daily Maverick: Poverty and unemployment lurk in the shadow of the murder of a German tourist at Numbi Gate

Retributive justice

The need for justice for the family of the victim has been used by pro-death penalty advocates to campaign for the retention of the death penalty. They argue that justice is best served if the murderer’s life is taken, an argument which they do not use in cases of other serious offences such as rape. Without doubt, families of victims deserve justice but it does not follow that retributive justice is the best option.

Retributive justice makes the state complicit in committing violence which is sanctioned by the law and in the process inculcates a culture of violence through encouraging the use of violence to address crime.

The African cultural perspective on justice

Retributive justice goes against African culture and tradition which takes a restorative approach to justice with the focus being restitution, as retributive justice alienates people. Important to note is that the retributive approach is a feature of the justice system which was introduced during colonialism.

Prior to colonisation, indigenous African groups never used the death sentence in addressing wrongs between individuals. Presently, there are other alternatives to the use of the death penalty which can equally serve justice, such as life imprisonment with the option of parole.

The death penalty is a cruel, inhumane, and degrading form of punishment which violates the right to life as proclaimed in the Universal Declaration of Human Rights. Therefore, the punishment should not continue to be in the laws of Zimbabwe.

Currently, it is accommodated under Section 48 of the Constitution which provides that a law may provide for the death penalty in cases of murder committed under aggravating circumstances. The laws which provide for the punishment are the Criminal Law (Codification and Reform) Act Chapter 9:23 and the Criminal Procedure and Evidence Act Chapter 9:07.

Way forward

If the bill before Parliament is enacted, these two laws will be amended, effectively abolishing the death penalty in Zimbabwe. The death penalty clause under Section 48 of the Constitution will be rendered redundant through the amendment.

It is important to note that since Section 48 does not establish the death penalty in Zimbabwe, a constitutional amendment is not required for the death penalty to be abolished, although an express constitutional abolition will be a safeguard against the reintroduction of the death penalty in future legislation. The removal of the death penalty from the statutes is a step in the right direction. DM

Lucia Masuka is Executive Director of Amnesty International Zimbabwe.