Abolishing the death penalty: progress and setbacks
Laws recently passed in Malaysia significantly reduce the scope of the death penalty, and in Zambia it has been entirely abolished. Changes were made by new governments following campaigning by civil society, which argues for abolition as part of a broader series of demands to respect human rights. They form part of a global trend of abolition or moderation. However, a few states are extending the scope of their application of the death penalty and increasing the numbers of executions. The worst offenders are all states with closed civic space, where the death penalty offers the ultimate tool to silence dissent. More states need to be urged to join the side of abolition.
An important step forward for human rights is on the cards in Malaysia. On 11 April parliament’s upper house passed two bills to abolish the mandatory death penalty. Having been passed by the lower house the week before, the bills now await the king’s signature.
Progress in Malaysia
Until now, 33 offences carried the death penalty, which was mandatory for 12. The new laws remove the mandatory death penalty from those 12 offences, including murder, treason and terrorism. They further end any possibility of applying death sentences for another seven offences. Life sentences are also replaced by prison terms of 30 to 40 years.
This move was long a key demand of Malaysian civil society. It has been taken by the new government that came to power following the November 2022 election, which made Anwar Ibrahim, a politician with a reputation as a reformer, prime minister.
A moratorium on executions has been in place since 2018, but people have continued to be handed death sentences. As a result, there are over 1,300 people currently on death row, most having exhausted all appeals. Once the law goes into effect, prisoners will have 90 days to apply to be resentenced.
Malaysia retains the possibility of imposing death sentences for some offences, including drug trafficking. It’s one of a few remaining countries where the death penalty can be applied for drug-related offences. However, for most sentences where the death penalty is possible, judges will now have discretion to impose a jail sentence instead, in addition to corporal punishment. Civil society will continue to campaign for the complete abolition of the death penalty, along with an end to the use of caning as a punishment.
While the change is important, civil society is hoping for more progress under the new government. The state continues to use restrictive laws to repress dissent and harass peaceful protesters. Most forms of protest face restriction – including protests last year against the use of the death penalty in neighbouring Singapore. The new government has continued with the old administration’s attacks on LGBTQI+ rights, recently banning three books over their LGBTQI+ content. The government has been criticised for failing to meet manifesto commitments to repeal laws that severely limit free speech.
Civil society will see the move to limit the death penalty as offering some grounds for optimism. It proves the government can, if it wishes, make changes that advance respect for human rights. Now it will expect more progress to reverse other regressive laws.
Global progress but national holdouts
For civil society, there’s a lot to object to with the death penalty. There is, of course, the fact that miscarriages of justice are inevitable, and these are likelier in regimes where the criminal justice system is flawed and trials are unfair. There’s no evidence of a deterrent effect, in which the existence of the death penalty makes it less likely people will commit crimes.
More fundamentally, the death penalty is a clear denial of basic rights: the rights to life and to freedom from cruel, inhuman or degrading punishment are enshrined in the 1948 Universal Declaration of Human Rights. International law has developed norms on none-use of the death penalty, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, ratified by 90 states, and similar protocols in regional human rights conventions in the Americas and Europe.
The broad global trend is one of positive change, including outright abolition, moratoriums and limitations in what crimes the sentence can be applied to. In 2021, a record low number of states – 18 – carried out executions. Increasing numbers of states are supporting calls for a moratorium at the United Nations (UN).
But there are some notable holdouts, and foremost among these are authoritarian states where executions are not just continuing but the numbers are going up. The country with the highest number of executions – although it’s impossible to give an accurate figure due to intensive secrecy – is China, estimated to account for 90 per cent of the world’s executions.
The other countries with the highest levels of executions are Egypt, Iran, Saudi Arabia and Syria. All these countries have closed civic space, where the state stamps down on any expression of dissent. In such conditions, the death penalty represents the ultimate tool for the state to silence critics.
This can be seen in Iran, where the death penalty, and the threat of it, have been deployed as one of the theocratic state’s repressive responses to the mass protests that arose following the death of Mahsa Amini last September. In November, the government started charging protesters with crimes that can carry the death penalty. The following month, it executed two men in connection with protests, one of them in public, and handed at least 11 more death sentences. It killed two more early this year. All in all, as protests surged, executions rose by 75 per cent in Iran in 2022, with the state killing at least 582 people. Since coming to power in 1979, the regime has likely executed tens of thousands.
Across the Persian Gulf in Saudi Arabia, Crown Prince Mohammed bin Salman, the country’s de facto leader, likes to act the moderniser, building hi-tech dream cities in the desert and paying lavish host to global sporting events. But it’s an image betrayed by the fact that he has people who disagree with him beheaded. Executions have almost doubled under his rule, with an average of 129 a year. Many are executed not for violent crimes but for protesting and speaking out to demand political change and human rights. They often come from the country’s repressed Shia minority. People have been executed for offences committed while they were children. Often families aren’t informed in advance.
On just one day, 12 March 2022, Saudi Arabia executed 81 people. Cynically, the country put a temporary hold on executions when it hosted the G20 summit in 2020, only to ramp up the killing afterwards. This month, it even carried out an execution during Ramadan, previously a time when it showed restraint. Bin Salman once promised to get rid of the death penalty for most crimes, but it seems he just can’t give it up. It must be too useful a repressive tool.
In Saudi Arabia, as in Iran, the death penalty comes after flawed trials and the extensive use of torture to extract confessions. It’s therefore part of – and the worst element in – a biased criminal justice system designed to repress rather than respect rights. As shown by Iran and Saudi Arabia, authoritarian states that have the death penalty can virtually be guaranteed to use it to silence critics and dampen demands for rights made by those who least have them.
The death penalty goes hand in hand with repression in Afghanistan too. As the Taliban have returned, so have the executions, including the grisly spectacle of public executions, a method to communicate the regime’s power over life and keep the public subdued.
In Bahrain, the death sentence has been a crucial weapon in the monarchy’s ongoing crackdown in response to protests for democracy that mobilised in 2011. Since then, 51 people have been sentenced to death, and six death sentences have been carried out.
In Belarus, as part of intensifying authoritarian repression that followed the stolen election of 2020, the death penalty has recently been extended: it now applies to military and state officials judged to have harmed national security.
In Myanmar, under military rule for over two years, the junta has sought to suppress the democracy movement by ending a moratorium on the death penalty, in place for three decades. Last July it executed four people, among them a democracy activist and a politician from the ousted ruling party. Around 140 other people have received death sentences, including students and youth activists.
The death penalty doesn’t have to be used to exert a chilling effect. Uganda’s new anti-LGBTQI+ law introduces the death sentence for the crime of what it calls ‘aggravated homosexuality’. It offers a repugnant example of how the death sentence can be used to communicate the state’s hostility towards a particular group of people. The sentence might never be used, but it makes clear that the state doesn’t recognise LGBTQI+ people as having the same rights as other Ugandans, and by doing so authorises discrimination and violence against them.
Positive change in Zambia
There’s a more positive African development in Zambia. As in Malaysia, democratic change has brought progressive movement on the death penalty. Last December, President Hakainde Hichilema signed into law an amendment to the Penal Code that abolished the death penalty. Zambia became sub-Saharan Africa’s 25th country to remove the death penalty entirely, following in the footsteps of countries including Angola, Mozambique and South Africa.
The development is a victory for the civil society organisations that have been consistent in calling for the abolition of the death penalty and for respect of the right to life in Zambia.
The death penalty wasn’t being carried out in Zambia. The last execution was in 1997, since when successive presidents committed not to sign execution orders. But like in Malaysia, this meant a build-up of people on death row: there are said to be 380 people who currently have a death sentence hanging over them. Hichilema claims he could have been among them when, in opposition, he was arrested and detained for treason.
Hichilema swept to power in the August 2021 election promising to respect fundamental freedoms, which had increasingly been attacked by the outgoing government. At the same time as his government abolished the death penalty, it also took a step forward in respecting freedom of expression by ending the offence of criminal defamation of the president. Until then, this was an offence that could bring a three-year sentence.
But like in Malaysia, Hichilema is criticised for being slow to act on other repressive laws, including those that can easily criminalise people for taking part in protests and speaking out online. There’s also a concern that because the constitution hasn’t been changed – something that would have required a referendum – a future president with a parliamentary majority could simply reverse the changes to the Penal Code.
Voices from the frontline
Macdonald Chipenzi is outgoing executive director of the Governance, Elections, Advocacy, Research Services (GEARS) Initiative Zambia, a civil society organisation (CSO) that promotes democracy and electoral integrity.
There was consistent advocacy from a majority of civil society towards the abolition of the death penalty to comply with the principle of respect for the right to life enshrined in our constitution. The elimination of the death penalty from the Penal Code means no court will be able to issue a death sentence and the highest sentence for those convicted of capital offices will be life imprisonment.
The development is therefore a victory for the CSOs that have been consistent in calling for the abolition of the death penalty and for respect of the right to life in Zambia. However, there remains the gigantic job of removing the death penalty from the constitution – which is important to do, because if one day the country is led by a bloodthirsty leader they could still apply it if they find a constitutional provision allowing it.
We found the basis to anchor our advocacy work for the abolition of the death penalty in the decades-long practice by Zambian presidents of refusing to sign death warrants against convicts sentenced to death. This made the death sentence clause of the constitution redundant and strengthened the position of human rights and pro-life CSOs.
Advocacy took the form of submissions to Constitutional Review Commissions and the African Union’s African Peer Review Mechanism as well as position papers presented at local and international meetings such as the UPR sessions where the Zambian government was present. CSOs also made presentations and submissions at international forums and had one-on-one meetings with foreign missions of countries that had abolished the death penalty and with those of states concerned with human rights, such as the European Union, the UK and the USA.
UN Human Rights Council Universal Periodic Review sessions and parallel events, including a recent one that GEARS Initiative was able to attend with support from CIVICUS, were used as a platform to advocate for the repeal of the death penalty. The creation of a critical mass of human rights CSOs synergised partnerships for joint and consistent advocacy activities that helped build momentum and compelled the government to act. It was also very crucial to build working synergies with local and international media to disseminate advocacy initiatives.
Our next steps are to continue advocating for a speedy legal review process of other repressive laws by undertaking public engagement and media activities, auditing obnoxious sections of these laws and submitting our reports to state authorities and other stakeholders, including the media, CSOs, donor communities and parliamentarians.
This is an edited extract of our conversation with Macdonald. Read the full interview here.
As shown in the case of Zambia, international scrutiny can play a big role in bringing about positive change. In the UN Human Rights Council’s Universal Periodic Review process, the human rights records of states are assessed by other states, with civil society input, and recommendations are made. The issue of the death penalty had been raised at successive rounds of reviews with numerous states urging the Zambian government to abolish it. Its continuing existence threatened to be internationally embarrassing, while its abolition offered an opportunity to present the country as progressive and a good international partner.
But in both Malaysia and Zambia, it isn’t enough that progress has been made in ending the death penalty. These are important steps, but for civil society, they should symbolise and presage a greater wave of change in which states significantly expand their protection of human rights. Such moves must come with a commitment to respect and open up civic space, both because civic freedoms are fundamental rights, and because civic space enables people to advocate for further criminal justice reforms.
Globally, civil society needs to keep campaigning for more states to join the trend towards the abolition of the death penalty, particularly longstanding democracies such as Japan and the USA, which increasingly are international outliers. As part of this, civil society needs to engage with and persuade currents of public opinion that support the death penalty. With such action, the retention of the death penalty should become a global mark of shame.
OUR CALLS FOR ACTION
Malaysian civil society should support campaigns for death penalty moderation in other Southeast Asian nations that continue to carry out executions.
Zambian civil society should urge the government to follow up its abolition of the death penalty by enacting further reforms to respect civic freedoms.
Global civil society should urge states that still apply the death penalty to commit to abolition or, failing that, moratoriums.
Cover photo by Fabrizio Bensch/Reuters via Gallo Images