African women, violent crime and the criminal law in colonial Zimbabwe, 1900-1952

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African women, violent crime and thecriminal law in colonial Zimbabwe,1900-1952Tapiwa Zimudzi aa University of ZimbabwePublished online: 04 Aug 2010.

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Journal of Southern African Studies, Volume 30, Number 3, September 2004

African Women, Violent Crime and theCriminal Law in Colonial Zimbabwe,1900–1952

TAPIWA B. ZIMUDZI*(University of Zimbabwe)

This article contributes to the emerging historiography on violent female crime in Africa byexamining African women’s violent crime in colonial Zimbabwe using a feminist conceptualframework of female criminality. It attempts to reconstruct and analyse the experiences ofviolent African female offenders in the colonial legal system by focusing on colonial HighCourt judges’ perceptions of African women as perpetrators of violent crime and on thefemale offenders’ perceptions of their own criminality. Two interrelated issues constitutethe central focus. First, the article aims to show that colonial judges’ interpretations ofviolent African female criminality often sought to diminish these women’s moral responsi-bility for their crimes and to deny the rational nature of their crimes. Judicial treatment ofsuch accused women was also highly paternalistic and partly based on the offenders’conformity to traditional gender-role stereotypes. Second, the agency of violent Africanwomen is highlighted by arguing that, contrary to the opinion of colonial judges, suchfemale offenders were rational agents who had an awareness of the legal merits of theircases and often made a conscious effort to exploit those aspects of the colonial criminaljustice system which they believed could work in their favour. The courtroom demeanourof African female offenders and their interpretations of their own crimes are givenparticular focus. The article is based mainly on an analysis of High Court of SouthernRhodesia criminal records relating to the most preponderant violent crimes committed byAfrican women. These were intra-familial murders, namely spousal murder, the murder ofother men and women closely related to the female offender, and the murder of newborntwins.

Introduction

The subject of African female criminality in colonial Zimbabwe has either been totallyignored by scholars or not been dealt with in a systematic and substantial manner.1

Published monographs on the history of African women in colonial Zimbabwe by such

* I would like to thank Deborah Gaitskell and Diana Jeater for helpful comments on earlier drafts of this article.1 Previous contributions to the historiography of crime in colonial Zimbabwe include the following: H. J.

Simons, ‘The Criminal Law and its Administration in South Africa, Southern Rhodesia and Kenya’ (PhDthesis, London School of Economics, 1936); H. J. Magan, ‘Rhodesian Criminal Law: Its Development andAdministration’ (PhD thesis, University of London, 1972); T. O. Ranger, ‘Criminal Court Records and theSocial History of the Zimbabwean South-West: Witchcraft Belief and Accusation’ (unpublished paper,Oxford, 1994); T. O. Ranger, ‘Murder, Rape and Witchcraft: Criminal Court Data for Gender Relations inColonial Matabeleland’ (unpublished paper, London, 1995); T. O. Ranger, ‘Tales of the Wild West:Gold-Diggers and Rustlers in South-West Zimbabwe, 1898–1940: An Essay in the Use of Criminal CourtRecords for Social History’, South African Historical Journal, 28 (1993), pp. 40–62. None of these studiesoffers any substantial analysis of the criminality of either black or white Rhodesian women.

ISSN 0305-7070 print; 1465-3893 online/04/030499-20 © 2004 Journal of Southern African StudiesDOI: 10.1080/0305707042000254047

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500 Journal of Southern African Studies

scholars as Elizabeth Schmidt and Diana Jeater2 have made significant contributions toreconstructing their economic and social circumstances but say relatively little about femalecriminality. What analysis exists is confined mainly to non-violent female crimes such asprostitution, adultery and violations of colonial laws proscribing interracial sex.

Legal scholarship on such themes has focused mainly on the contemporary status ofwomen under customary and criminal law and has not concerned itself with women andcrime during the colonial period. In addition, much of this work concentrates on women asvictims rather than perpetrators of crime.3 This article departs from this approach byfocusing primarily on African women as perpetrators of violent crime, highlighting colonialjudicial perceptions about violent African female offenders as well as the agency of theseoffenders in the colonial criminal courtrooms. However, viewing African women asexclusively either victims or perpetrators of violent crime not only fragments existingknowledge about these women, but also creates an analytically unhelpful dichotomy whichreduces these women to homogeneous stereotypes. It ignores the possibility that violentAfrican women could be simultaneously victims and offenders. The article will thereforealso highlight some of the circumstances in which women could be so viewed.

The study begins in 1900, two years after the High Court of Southern Rhodesia wasestablished and ends in 1952. In 1953, Southern Rhodesia became one of the threeterritories comprising the newly created Federation of Rhodesia and Nyasaland, theestablishment of which effected some changes in the administration of the criminal justiceand penal systems there. These included the establishment of the Federal Supreme Court asthe Final Court of Appeal from criminal and civil case decisions of the High Courts of allthe Federal Territories. The Federal Prison Service, established in 1954 took over the fulladministration of all prisons and reformatories in the Federal Territories.4

The reliability of colonial Zimbabwean crime statistics as indicators of African criminal-ity is highly dubious for a variety of reasons – among which is the failure by the legalauthorities to adhere to a uniform system of compilation. Besides, a quantitative approach,because of its principal focus on numerical trends and overviews, cannot provide profoundinsights into the nature of violent female criminality. Hence, the article adopts a qualitativeapproach, which makes it possible to avoid anonymous and unreliable colonial crimestatistics and to focus on eliciting from the court records the voices of African femaleperpetrators of violent crime, as well as those of the white colonial judges who presidedover their cases.

The article is divided into three major sections. The first discusses the feministcriminological theories within which the study is situated – theories that are now alsobeginning to be applied to Africa.5 It also establishes the historical context of the criminal

2 E. Schmidt, Peasants, Traders and Wives: Shona Women in the History of Zimbabwe, 1870–1939(Portsmouth, NH, Heinemann, 1992); D. Jeater, Marriage, Perversion and Power: The Construction of MoralDiscourse in Southern Rhodesia, 1890–1930 (Oxford, Clarendon Press, 1993); D. Jeater, ‘Their Idea ofJustice is so Peculiar: Southern Rhodesia, 1890–1910’, in P. Coss (ed.), The Moral World of Law (Cambridge,Cambridge University Press, 2000), pp. 178–195.

3 J. May, Zimbabwean Women in Customary and Colonial Law (Gweru, Mambo Press, 1983); A. Armstrong,Culture and Choice: Lessons from Survivors of Gender Violence in Zimbabwe (Harare, Violence AgainstWomen in Zimbabwe Research Project, 1998); J. Stewart et al., In the Shadow of the Law: Women andJustice Delivery in Zimbabwe (Harare, WLSA, Zimbabwe, 2000); J. Stewart et al., Joy or Despair? Womenand Gender-generated Reproductive Crimes of Violence (Harare, WLSA, Zimbabwe, 2001).

4 W. V. Brelsford (ed.), Handbook to the Federation of Rhodesia and Nyasaland (London, Cassell andCompany, 1960), pp. 656–657.

5 Among the studies that have employed feminist perspectives to examine the experiences of African womenas victims and perpetrators of violent crime are D. Rude, ‘Reasonable Men and Provocative Women: anAnalysis of Gendered Domestic Homicide in Zambia’, Journal of Southern African Studies, 25, 1 (1999),pp. 7–27 and L. Tibatemwa-Ekirikubinza, Women’s Violent Crime in Uganda: More Sinned Against thanSinning (Kampala, Fountain Publishers, 1999).

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African Women and Violent Crime 501

cases discussed by giving a general outline of crime and criminalisation in colonialZimbabwe between 1900 and 1952. The second examines the experiences in the High Courtof African women primarily charged with spousal murder. The final section explores thefate of women accused of murdering newborn twins.

Criminological Theories and Violent Female Criminality

The main thrust of feminist criminological theories proposed by Smart, Heidensohn andothers6 has been to expose and challenge the erroneous assumptions about female offendersin the traditional androcentric criminological theories offered by scholars such as Lombrosoand Ferrero or, more recently, Wilson and Hernstein.7 Female offenders in this morehidebound work have been characterised as unnatural and lacking femininity, motivated intheir criminal acts by their unstable and irrational personalities. Feminist criminologicalscholars’ theories have argued, by contrast, that the criminality of women should not belocated in biological characteristics beyond their control, but in considerations which arejust as rational as those that motivate criminal actions by men. They also contend thatwomen’s experience of criminal justice is, despite some similarities, in many ways differentfrom that of men. In particular, they emphasise women’s interpretations of their owncriminality and how traditional gender role expectations have influenced their treatment bycriminal justice systems. In consonance with these feminist views on female criminality,this article likewise attempts to elicit African women’s own interpretations of theircriminality, highlighting the rational considerations that underlay their violent crime incolonial Zimbabwe.

Two main rival interpretations of violent female crime have emerged among feministcriminologists. The first views violent female criminality as a reaction to long-termphysical, psychological and verbal abuse by their husbands and other men involved in theirlives.8 It has portrayed women as inherently non-violent and their violent crimes asintra-familial, taking place in the domestic surroundings to which most of their activities areconfined. The second view, largely a reaction to the first and whose main exponents includethe feminist writer and crime journalist, Patricia Pearson, has claimed that not all violentcrimes perpetrated by women can be viewed as a response to their victimisation by men.Scholars who subscribe to this view have tried to demonstrate that women’s potential forviolent crime can equal or even surpass that of men. Pearson argues that feministcriminologists have, in their efforts to challenge androcentric criminology and rehabilitateviolent female criminals, erroneously explained the violence of these women away andportrayed them as innocent victims of male actions.9 On its own, neither view satisfactorilyexplains violent female criminality. This article therefore attempts a synthesis of the two by

6 See C. Smart, Women, Crime and Criminology: A Feminist Critique (London, Routledge & Kegan Paul,1976); F. Heidensohn, Women and Crime (London, Macmillan, 1985); A. Morris, Women, Crime andCriminal Justice (London, Basil Blackwell, 1987); H. Kennedy, Eve Was Framed: Women and British Justice(London, Vintage, 1992).

7 C. Lombroso and W. Ferrero, The Female Offender (London, Unwin, 1895); W. I. Thomas, The UnadjustedGirl (Boston, Little Brown & Co., 1923); O. Pollak, The Criminality of Women (Philadelphia, University ofPennsylvania Press, 1950); J. Q. Wilson and R. Hernstein, Crime and Human Nature (New York, Simon andSchuster, 1985).

8 Scholars who subscribe to this view include: A. Jones, Women Who Kill (New York, Fawcett Columbine,1981); A. Browne, When Battered Women Kill (New York, Free Press, 1987); Kennedy, Eve Was Framed.

9 P. Pearson, When She was Bad: Violent Women and the Myth of Innocence (London, Viking, 1997), p. 40.Scholars who share this view include A. Kirsta, Deadlier Than the Male: Violence and Aggression in Women(London, Harper Collins, 1994); R. Denfeld, Kill the Body, the Head Will Fall: A Closer Look at Women,Violence, and Aggression (New York, Vintage, 1997).

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arguing that, although violent African female criminality in colonial Zimbabwe was largelya reaction to male violence and abuse, African women were, in certain situations, willingaggressors engaging in violence that was not merely reactive.

Another limitation of the two competing interpretations of female violence outlinedabove is that the exponents of these views have, in their efforts to explain violent femalecrime and to account for the differential treatment of men and women by legal systemsthroughout the world, focused mainly on male-on-female violence or the converse anddevoted very little attention to female-on-female violence. Although not a central focus ofthis article, attention will be drawn to the existence of African intra-female violence incolonial Zimbabwe as one of the forms of violence demonstrating wilful aggression byAfrican women.

Feminist legal scholars have also drawn attention to the manner in which traditionalgender-role stereotyping influences the treatment of female offenders in criminal justicesystems. Many of these scholars have argued that female offenders, whose courtroomdemeanour and character background conform to male judicial stereotypes of women’sgender roles, have benefited from lenient treatment from male judges. While acknowledgingthe salience of such influences, this article does so only with important qualifications.

It is not argued that violent African offenders were treated leniently solely on the basisof their demeanour or that courtroom demeanour was the most decisive factor in determin-ing the sentences passed on African female offenders. The separate legal merits ofindividual cases were vitally important. The article argues that violent African femaleoffenders consciously used courtroom demeanour together with specific explanations andrationalisations of their crimes as legally aware strategies aimed at gaining favourabletreatment from colonial judges. To contend that sympathetic treatment derived exclusivelyfrom courtroom demeanour suggests that female offenders were treated leniently because oftheir facial expressions and general bearing in court rather than their ability to engage with,and exploit, the openings in the colonial criminal justice system. By highlighting the agencyand legal consciousness of violent African female offenders in the High Court, this researchsets out to show that these offenders were not the passive beneficiaries of colonial judges’recommendations to mercy.

African Women, Crime and Criminalisation in Colonial Zimbabwe

At this point, a very brief outline of the origin and development of the High Court ofSouthern Rhodesia up to 1952 provides the necessary background for grasping the legalposition of women during this period.10 Established in 1898, the High Court of SouthernRhodesia had jurisdiction over every civil and criminal offence, but usually limited its workto trying only the most serious criminal and civil offences. It also had the power to overturnon appeal any decisions made by the lower courts in criminal and civil cases. While basedin the Rhodesian capital, Salisbury, it also held permanent criminal sessions in Bulawayo,Fort Victoria and Umtali, the other major cities in the country. Prior to Federation in 1953,any appeals from the High Court of Southern Rhodesia were made to the AppellateDivision of the Supreme Court of South Africa. Subsequently, the newly created FederalSupreme Court became the Final Court of Appeal from criminal and civil case decisions ofthe High Courts of all the Federal Territories.11

10 Detailed accounts of the origin and development of the Southern Rhodesian criminal court system are givenby C. Palley, The Constitutional History and Law of Southern Rhodesia 1888–1965 (Oxford, Clarendon Press,1966) and H. Rolin, Rolin’s Rhodesia (Bulawayo, Books of Rhodesia, 1913).

11 Brelsford, Federation of Rhodesia and Nyasaland, pp. 656–657.

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Trial by jury for criminal cases in the High Court was introduced in early 1898. Allcriminal cases had to be heard by one or more judges assisted by a jury of nine men.Women and non-Europeans were by law not permitted to become jury members.12 It wasunheard of to have female lawyers operating either in or out of the courtroom during thisperiod. The formulation, interpretation and enforcement of law were masculine preservesthat marginalised women of all races.

During the period under discussion, the colonial courts were characterised not only byracism, but also by a lack of professional judicial training on the part of many of itsmagistrates. Extra-judicial killings of black men accused of engaging in criminal activitiesagainst whites were not uncommon during this period.13 In 1927, the jury system in theHigh Court was replaced by a system in which one or more judges assisted by two assessorstried cases. After 1927, only European offenders continued to have a right to trial by juryand they could choose whether they wanted to be tried by jury or by a judge and twoassessors.14

The colonial legal system defined crime at two levels: first, as an offence that waspunishable by the legal statutes or, alternatively, the act of contravening legal civil andcriminal codes, and, secondly, as behaviour or activities that offended the social code of thegeneral community – which in practice was the European settler community. This definitionof crime at a social level is borne out by the fact that under the ‘repugnancy clause’ of theNative Law and Courts Act of 1937 any African customary practices that offendedEuropeans could be defined as criminal conduct.15 This led to the criminalisation of certainaspects of African customs or behaviour that had been legal during the pre-colonial period.However, some customary practices that discriminated against African women were notviewed as repugnant and were sometimes upheld by colonial legislation.16

Under colonial criminal law, a distinction was drawn between civil and criminal law,and criminal offences were regarded as being crimes against the state rather than againstindividuals. All of this was alien to the African legal institutions that often settled legalcases by payment of compensation to the victims of crime rather than through penaltiesimposed directly by the state.17

Scholars remain divided in their views of the extent of the female rights underZimbabwe’s pre-colonial legal and social systems. While the social structure of that eramade African women socially and economically dependent on men, the picture was not oneof total and unlimited gender subordination.18 Then, the advent of colonial rule had a mixedimpact on the legal and social status of African women. Legal openings were created bythe proscription through colonial legislation of practices such as child-pledging, forcedmarriages and witchcraft accusations, of which African women had been victims during thepre-colonial period.19 During the first three decades of colonial rule, from the 1890s to the1920s, African women were able to take advantage of these openings in the colonial legalsystem ‘challenging fathers, husbands and guardians in the colonial [civil] courts’.20

12 Palley, Constitutional History, pp. 152, 158, 515, 523–525.13 P. Gibbs, The History of the BSAP, Volume 2 – The Right of the Line 1903–1939 (Salisbury, Kingstons Ltd.,

1974), p. 43; H. M. Hole, Old Rhodesian Days (Bulawayo, Books of Rhodesia, 1928), pp. 65–73.14 Palley, Constitutional History, pp. 152, 158, 515, 523–525.15 E. V. Mittlebeeler, African Custom and Western Law (New York, Africana Publishing Company, 1976),

pp. 20.16 A. Hellum, Women’s Human Rights and Legal Pluralism in Africa: Mixed Norms and Identities in Infertility

Management in Zimbabwe (Harare, Mond Books, 1999), pp. 139–141.17 Mittlebeeler, African Custom and Western Law, pp. 96–97.18 May, ‘Social Aspects’, pp. 2–62; A. P. Cheater, ‘The Role and Position of Women in Pre-Colonial and

Colonial Zimbabwe’, Zambezia, 13, 2 (1986), pp. 65–79.19 Schmidt, Peasants, Traders and Wives, pp. 111–117.20 Ibid., p. 105.

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However, from about 1915 onwards, African women found it more difficult to exploit anysuch openings. This was partly because, in order to strengthen ‘indigenous authoritystructures’ presided over by African rural patriarchs and on which colonial control ofAfricans partly depended, the colonial state together with the rural patriarchs constructedand gave legitimacy to a particular version of customary law for Africans, seeking to keepAfrican women subservient to the rural patriarchs. In addition, the colonial state, motivatedmainly by economic considerations, passed, in 1916 and in the 1920s and 1930s, a seriesof laws aimed at regulating the labour, mobility and sexuality of African women.21

Rural African women sought to escape the adverse economic conditions and patriarchalcontrols in the rural environment by moving to the towns, mines, mission stations andEuropean farms. The urban environment in particular made it possible for some Africanwomen to develop alternative lifestyles, which enabled them to evade and minimise thepatriarchal controls to which they had been subject in the rural environment.22 Earliergenerations of African women had very narrow options, which compelled them either to putup with their husbands’ unpleasant relatives or to return to their own lineage groups. Thegrowth of towns allowed such women, as well as those who ran away from their husbandsor refused to get married, to exercise an unprecedented third option. Married Africanwomen could now lead autonomous lives with their husbands, far away from difficult oruncongenial in-laws. Unmarried African women or women who had deserted their husbandscould cohabit with men of their choice in the towns and mine compounds in ‘mapotomarriage’ relationships which did not constitute formal marriages according to eitherEuropean law or African customary law. These informal alliances ‘allowed African womento retain their independence, while gaining male protection’.23 However, the new sites thatAfrican women moved to also generated pressures and conflicts, which resulted in somewomen becoming involved in violent crime. On European farms and in the towns and minecompounds, disputes with co-habitees over money and sexual fidelity could result inspousal murders in which African women were victims and perpetrators. The urbanenvironment, as Jeater has pointed out, also made African women more susceptible togender-based violence because African men were unable to resort to the traditionalsanctions they had used to control female behaviour.24

On the mission stations, European missionaries and their African converts were at theforefront of efforts to terminate Africans’ adherence to customs such as the killing ofnewborn twins. The 1940s and early 1950s were characterised by continued efforts byAfrican women to evade colonial laws and weaken the influence of patriarchal forces intheir lives.25

African Women and Spousal Murder in Colonial Zimbabwe

This section analyses the social and legal context in which spousal murder perpetrated byAfrican women was generated in colonial Zimbabwe, showing the ways in which Africanwomen accused of spousal murder can be viewed as both victims and perpetrators. It thenproceeds to examine the colonial judges’ responses to African female offenders chargedwith this crime and the agency of these African female offenders in the High Court.

21 Ibid., pp. 106–110.22 Jeater, Marriage, Perversion and Power, p. 176.23 Ibid., p. 179.24 Ibid., p. 182.25 T. Barnes, ‘“We Women Worked So Hard”: Gender, Labour and Social Reproduction in Colonial Harare,

Zimbabwe, 1930–1956’ (PhD thesis, University of Zimbabwe, 1993), pp. 445–446.

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Two main arguments are advanced. First, I contend that colonial judges’ interpretationsof the crimes of African spousal murderesses were profoundly paternalistic and did notview these female offenders as rational and responsible agents in the commission of theircrimes. The importance of demeanour and gender-role stereotyping in influencing judicialresponses to African women charged with spousal murder is also examined. Second, it isargued that African women charged with spousal murder were not passive recipients ofrecommendations to ‘mercy’ or sympathy from colonial judges but manifested their agencyin the High Court in several ways, including the following: showing an awareness of thelegal merits of their cases, sometimes openly challenging the criminal identities that thelegal process imposed on them and consciously using demeanour to exploit in their favourthe traditional gender-role notions held by colonial judges. The discussion of the agency ofthese African female offenders also shows that, contrary to the claims of feministcriminological theory, female offenders in colonial Zimbabwe were not intimidated by therituals and procedures of the colonial criminal courtroom.

The Social and Legal Context of Spousal Murder in Colonial Zimbabwe

Spousal murder by African women in colonial Zimbabwe was predominantly, but notexclusively, a response to male violence and abuse. African women were, during the periodunder consideration, often seriously assaulted or killed by their husbands and lovers for,amongst other reasons, alleged infidelity and disrespect to their husbands, refusal to havesex, neglect of children and running away from home.26

The gender violence perpetrated by and on African women was fundamentally rootedin subordinate female economic and social status. The patriarchal nature of African societyand of the white men who presided over the colonial criminal justice system enabledAfrican men to ‘discipline’ their wives with little interference from the colonial state andthe judicial structures in their own societies. Both sets of institutions (likewise run bypatriarchs) usually took violence against African women seriously only when it reachedlife-threatening proportions. The colonial courts can be said to have encouraged violenceagainst African women by passing relatively light sentences on African men guilty ofspousal murder and by rationalising violent male behaviour through attributing it to factorssuch as the drunkenness of the male perpetrator and the ‘provocative’ behaviour of womenwho were the victims of spousal violence.27

In addition, it was not easy for married African women, especially those in rural areas,to divorce or leave their husbands. Abusive African men often seriously assaulted or killedtheir wives if they attempted to run away,28 or got violent with people who assisted escapeor gave runaways sanctuary.29 The violence perpetrated by African women against theirhusbands and lovers can be seen as essentially the violence of victims-turned-offenders whowere reacting to the emotional and physical violence they were subjected to in their lives.30

In desperation, some killed abusive husbands who consistently opposed or frustrated theirefforts to be granted official divorces or settle other major marital problems in the colonialcivil courts.31

26 National Archives of Zimbabwe, Harare (as with all subsequent archival references), S628/6, Rex v Mayemba(1900); S628/7, Rex v Fende (1900); S628/60, Rex v Marongedza (1900); S628/589, Rex v Jikaramba (1911);S628/934, Rex v Msekapazura (1916); S628/1472, Rex v Munenza (1921); S1679/3417, Rex v Mapukwani(1935); S1793/6888, Rex v James (1951).

27 S628/1612, Rex v Rusere (1923).28 S1347/4352, Rex v Manwele (1937); S628/3654, Rex v Ziji and Mawushi (1937).29 S404/2059, Rex v Tarubona (1920); S1679/3417, Rex v Mapukwani (1936).30 S628/2448, Rex v Beri (1930); S628/2620, Rex v Ziwi (1931); S1679/3843, Rex v Mopani (1938); S336, Rex

v Kami (1945); S1793/6765, Rex v Muringiswa (1951).31 S1679/3492, Rex v Matemberere (1936); S336, Rex v Esther and Karikoga (1952).

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However, African women could also kill their spouses in violent attacks that cannot beclosely correlated with any long-term violence and abuse to which they had been subjected.For younger women, other motivations for spousal murder included a desire to exchangenon-violent but boring and old husbands for much more exciting younger lovers, orsubstitute those who had more wealth and power for very poor husbands who generallytreated them well.32 In what illustrates their inherent capacity for aggressive behaviour,African women also killed each other in the disputes over money and accusations ofprostitution that often took place at beer-drinks and entailed the use of dangerous weaponssuch as knives and razors.33 The rivalries and jealousies between women in polygamousmarriages could result in their killing one another.34 African female violence could alsotarget female relatives of their husbands with whom they were on bad terms.35

Colonial law generally viewed unpremeditated killings leniently, and women who killedin the heat of the moment were often charged with culpable homicide, which was not acapital offence.36 Poisoning and hut-burning were the most common forms of wilful andpremeditated violence carried out by African women against their spouses and other closemale and female relations. Colonial law, which reserved its stiffest penalties for premedi-tated forms of violence, took a grim view of both types of violence, imposing deathsentences in almost all cases in which women were found guilty of these crimes. In 1921,Justice Tredgold observed that ‘cases of hut burning are far too common a form of revengeand when the consequences are so serious they should be heavily punished’.37 Poisoning,which, in consonance with androcentric views of crime, was associated with men ratherthan women, rarely elicited recommendations to mercy by the trial judges.38

The British High Commissioner in South Africa was the only colonial authorityempowered to confirm death sentences or to commute these sentences to terms ofimprisonment. However, in exercising his prerogatives to mercy, the High Commissionerrelied closely on recommendations made by the trial judge. During the period underconsideration, six African women sentenced to death by the High Court were executed.39

All other African women sentenced to death had their death sentences commuted to varyingterms of imprisonment. It is significant that, in the case of all the executed female offenders,the trial judges made no specific recommendation to mercy.

Colonial Judges’ Interpretations of Spousal Murders Committed by African Women

Among the salient characteristics of colonial judges’ interpretations of the spousal murderscommitted by African women were paternalism, gender-role stereotyping and a dominantperception of the crimes committed by these women as essentially irrational crimes carriedout by offenders who were not responsible agents. Throughout the period under consider-ation, many female offenders in spousal murder cases were recommended to mercy largelyon the grounds that they were intellectual simpletons whose ‘dullness of intellect’ made itimpossible for them to appreciate the gravity of the nature and consequences of their

32 S336, Rex v Foli and Nyekeli (1940); S1679/4386, Rex v Tabayiwa (1940).33 S628/2330, Rex v Dzivaidzo (1929); S628/2817, Rex v Makuku (1932); S1347/4870, Rex v Bajiti (1936).34 S1347/4216, Rex v Freza (1936).35 S1679/3708, Rex v Guya (1937).36 S628/106, Rex v Marutzi (1902); S404/680, Rex v Gombo (1908); S628/944, Rex v Tapeza (1916);

S1793/6859, Rex v Sabina (1951); S1793/6970, Rex v Seriya (1952).37 S336, Rex v Newone (1921).38 S336, Rex v Chaisa (1937).39 S336, Rex v (1) Katsura, (2) Gutsa and (3) Tete (1922); Rex v Hlobili and Malinga (1931); Rex v Kamwendo

(1939); Rex v Fandi and Liba (1940); Rex v Sikande (1944).

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offences.40 Other female offenders in such cases were paternalistically characterised asshowing only ‘a childish awareness’ of the nature of their offences.41

The crimes of female offenders in spousal murder cases were also sometimes explainedin terms of mental states linked with bodily functions, particularly menopause, defencesgiven professional credence by European doctors, whose evidence in such cases was usuallyaccepted by the presiding judges. In one such case in 1941, the accused’s brutal murder ofher husband was partly attributed to her menopause, which, according to the Europeandoctor, ‘was responsible for increased mental excitement or oppression and a certain lackof balance’.42 A similar explanation was offered in the case of another woman charged inthe High Court in 1947 with murdering her husband by striking him three times with an axewhile he was sleeping. It was said that she ‘had just passed her menopause and was at aperiod notoriously associated with lack of mental balance’.43

Numerous cases in which African women were jointly charged with African men for themurder of the women’s husbands provide further evidence that colonial judges sought todeny the rationality and responsibility of these offenders. By and large, they would notconcede to female offenders any capacity to commit violent acts independently of theirmale accomplices. Presiding judges repeatedly concluded that the women concerned hadeither been coerced or duped into murdering their husbands by their lovers.44 According tothese judges, the intellectual ‘feebleness’ of African women made them liable to ‘yield overeasily to suggestions that they should become accomplices in deliberate murders’.45

The strength of these views is well illustrated by two cases that came before the HighCourt in 1918 and 1934 respectively. In the first, a young woman, Mavu, was about to beexecuted, after the High Commissioner confirmed death sentences passed on her and a maleaccomplice for the murder of her husband. Although the man was indeed executed, Mavuwas granted a reprieve after Sir Charles Coghlan, then Southern Rhodesian Prime Ministerand a lawyer by training, made urgent representations to the High Commissioner in herfavour, arguing that Mavu was ‘an onlooker’ who was ‘merely a consenting party in thecrime’ and therefore ‘a passive rather than an active agent in the matter’.46

In the second case, the death sentence passed on Motasi, another young African womanwho had murdered her husband using poison which she claimed had been given to her byher lover, Masimoko, was commuted to ten years’ imprisonment. This was after JusticeRussell had based his recommendation to mercy for the accused on his conviction that shecould not have acted independently and was manipulated into killing her husband. JusticeRussell stated: ‘She [the accused] was obviously a mere tool in the hands of Masimoko. Ido not think she herself would ever have thought of killing the deceased’.47

The importance of traditional gender-role stereotypes in partly determining colonialjudges’ attitudes towards African women accused of spousal murder and other violentintra-familial crimes is evident in the importance that colonial judges attached to thedemeanour of the accused. Both male and female offenders could reflect a demeanour thatworked in their favour or against them. However, it can be argued that demeanour was morecrucial for African women because of the assumption by most colonial judges that theywere not responsible agents and did not understand court procedures. Hence, it may have

40 S336, Rex v Gutseni (1926); S1679/4065, Rex v Manyanga (1939).41 S1793/4540, Rex v Kambuya (1941).42 Ibid.43 S336, Rex v Malashi (1947).44 S1347/4284, Rex v Amuna (1936); S1347/4294, Rex v Siabela (1936).45 S336, Rex v Foli and Nyekeli (1940); Rex v Faki (1947).46 S628/1134, Rex v (1) Manyanji (2) Mwerengani and (3) Mavu (1918); S336, Rex v Mavu (1918), Sir Charles

Coghlan to Douglas-Jones, 19 July 1918; Sir Charles Coghlan to Justice Tredgold, 5 August 1918.47 S336, Rex v Motasi (1934).

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been more important for these women to be seen rather than heard when they appeared inthe High Court. Courtroom demeanour was also important for African women appearing incolonial courts as victims or witnesses. Rape victims had to reflect a demeanour that wouldconvince colonial judges and juries that they had genuinely suffered assault, while thebearing of witnesses had to enhance the credibility of their testimony.

Judges’ descriptions of the demeanour that the accused were supposed to exhibit incourt if they were to be recommended to mercy shows that they were influenced by whatthey considered to be the appropriate male and female gender norms. African men chargedwith spousal murder were expected to conduct themselves in ‘a manly way’48 in thecourtroom and to show that they were not men of ‘violent passions’.49 African women socharged were expected to convey the qualities of gentleness, quietness, modesty and goodmotherhood, which judges associated with the prevalent stereotypes of conventionalfemininity.

Two cases that came before the High Court in 1936 and 1938 respectively, illustratethese considerations well. In both, the female offenders were found guilty of havingmurdered their husbands by poisoning. Their death sentences were subsequently commutedto terms of imprisonment on the basis of strong recommendations to mercy made by thepresiding judge, Justice Lewis, drawing favourable attention to their courtroom demeanour.He described the eighteen-year-old woman in the first case as ‘an exceptionally goodnatured and gentle girl’ who ‘had no comprehension whatever that she had committed aheinous offence’. His recommendation to mercy was based not only on the generaldemeanour of the accused, which was ‘that of a simple gentle young girl’, but ‘also on thesimplicity of her answers … here in court’.50 In recommending the other female offender tomercy, Justice Lewis drew attention to her ‘frail physique and meek appearance’, statingthat she had ‘addressed the court with sincerity and dignity’ and that ‘her demeanour andquiet manner of address suggested a kindliness of nature not to be associated with amurderess’.51

The Agency and Legal Consciousness of African Women Charged with SpousalMurder

Many feminist legal scholars have drawn attention to the alienating and intimidating effectthat the male-dominated environment of the criminal courtroom has on female offendersand victims of crime.52 This emphasis has only a partial foundation in reality, and largelyserves to reinforce the powerlessness of women in the courtroom. Any timidity that Africanwomen may have exhibited in the colonial criminal courts was largely confined to the firstdecade of colonial rule, roughly 1890–1900. It can also be said that this was not the timidityof people afraid of the colonial courts, but of those who were observing and adjusting tothe manner in which such courts operated. By the time the High Court of SouthernRhodesia was established, African women had already had eight years of court experiencein colonial civil and criminal courts. Throughout the half- century considered here, theydisplayed increasing boldness and agency in the High Court.

The legal consciousness of African women charged with spousal murder manifesteditself in numerous ways, often showing their awareness of those openings in the coloniallegal system that could work in their favour. Many women attempted to cheat the legalsystem in its very initial investigative stages by staging false suicides and disappearances

48 S628/1728, Rex v Nattan (1924); S336, Rex v Butete (1942).49 RU 1/1/1/71, Rex v Dafu (1924).50 S1347/4294, Rex v Siabela (1936).51 S1679/3843, Rex v Mopani (1938).52 Kennedy, Eve Was Framed, pp. 12–13.

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of the husbands they had killed.53 African women also took advantage of the stronginclination of colonial judges to believe that they were not independent or responsibleagents in the commission of spousal murders by mounting defences that appeared toconform to judicial gender stereotypes. ‘I did not kill my husband. Makuza and Kembo[both men] killed him. I am only a woman. Being a woman how could I kill him?’ askedone female offender who appeared in the High Court in 1946 charged with murdering herabusive husband.54 It was particularly common for African women who had poisoned theirhusbands to claim that their male lovers had manipulated them into doing so. In many suchcases, these claims formed an important part of the basis on which these offenders wereacquitted or, upon conviction, were recommended to mercy or given significantly lessersentences than the men with whom they were jointly charged.55

Most female offenders in spousal murder cases also made a conscious effort to adopta courtroom demeanour in which they came across as relatively harmless and dignifiedwomen, incapable of the violent crimes with which they were charged. However, whilesome offenders consciously projected diminished responsibility, it is also crucial toacknowledge the existence of a different type of offender. These were African women who,in explaining their own criminal conduct, openly sought to present themselves as rationaland responsible individuals. Such women emerge in the numerous cases of murder through‘hut burning’ that came before the High Court during the period under consideration.Revealing the capacity of African women to engage in wilful violence, their modusoperandi was to set alight huts in which their victims were sleeping after firmly securingthe doors from the outside, making it impossible for the occupants to escape. The mainmurder-victims were husbands, lovers and (for offenders in polygamous marriages) rivalwives and their children.56

These accused often gave rational explanations of their crimes and portrayed themselvesas responsible agents. Among the rationalisations put forward by such offenders werefailure by lovers to carry through their promises of marriage; infidelity and abuse byhusbands; and disputes with other women married to the same men.57 In a 1936 case, theyoung woman who had set fire to the hut in which her lover, Sumasuma, was sleeping,explained her crime by stating, ‘I was very angry with Sumasuma because after being hisprospective wife for two years he refused to marry me’.58 In another case in 1946, theaccused said of her husband, ‘He used to hit me every day, so I became angry that is whyI set fire to the hut’.59

African women who killed husbands who had subjected them to long-term physical andmental abuse also gave rational interpretations of their crimes, which challenged those ofthe colonial judges.60 In a case from 1947, Justice Tredgold imputed the accused’s murderof her husband to her emotional instability. The accused, however, explained her crime interms of the abuse to which she had been subjected, saying of her husband, ‘now he is deadhe cannot assault me anymore and make my life miserable anymore’.61

53 S628/2197, Rex v Chisiwa (1928); S628/2448, Rex v Beri (1930); S1679/3411, Rex v (1) Tshikeyi, (2)Zwimbane and (3) Sukwedza (1935); S1679/3471, Rex v Sukutai (1936).

54 S1793/5321, Rex v Makumbgwa (1946).55 S336, Rex v Zibane and Mbuya (1934).56 S628/1474, Rex v Bopoto (1921); S336, Rex v Mtoyi (1940); S1793/5171, Rex v Mandurungu (1945).57 S1793/6253, Rex v Fungesai (1949); S1793/6400, Rex v Swareyi (1949); S1793/6636, Rex v Maggie (1950);

S1793/6687, Rex v Konjiwa (1950); S1793/6909, Rex v Mwanseyi (1951).58 S628/3568, Rex v Komo (1936).59 S1793/5409, Rex v Leonara (1946); S1793/6636, Rex v Maggie (1950).60 S628/2448, Rex v Beri (1930); S628/2620, Rex v Ziwi (1931); S1679/3843, Rex v Mopani (1938); S336, Rex

v Kami (1945); S1793/6765, Rex v Muringiswa (1951).61 S336, Rex v Malashi (1947).

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There is considerable evidence to show that African female offenders were notintimidated by the legal paraphernalia and procedures of what was the highest criminalcourt in the country. One of the best examples of intra-female violence and of the boldnessand agency of African female offenders in the High Court is evident in a case from 1944.Changara, an elderly African woman, was charged with murdering another ‘native’ womanand her infant daughter, following a dispute in which Changara had accused the deceasedwoman of facilitating a courtship between her son and another woman of whom shedisapproved. The overt attempts made by Changara and some of her female relations toinfluence the testimony of the key state witness in the case, a young woman called Sekina,is well described in Justice Lewis’s report on the case:

The witness Sekina was reluctant and afraid at first to give her evidence. After a series of timidwhispers at the outset of her evidence, she suddenly declined to continue. It then transpired thather mother, who is [the] accused’s daughter, was seated with a formidable array of womencompanions in the front seat of the public benches. The accused herself was glaring at thewitness in a menacing manner from the dock. After all women were ordered to leave the courtand the witness told to give her evidence facing the Bench and not the dock, the witness gainedcourage and unfolded her story without fear.62

The boldness, legal consciousness and fearlessness of some female offenders is alsoreflected in those who were openly combative in the High Court. In one such case in 1943,a young woman, Marita, was charged with killing another African woman in a fight overa man at a beer-drink in the African compound of a European farm. At her trial, Marita wasvery combative in the witness box, challenging Justice Hudson and his assessors onquestions of motive and also rejecting the criminal identity that the legal process wasimposing on her. Addressing the judge, she stated, ‘Finally, I say what was my motive forkilling the deceased? It is a false charge which has been laid against me. My father died.He never killed anyone. Why should I want to kill a person?’63

It was offenders like Marita, with a pugnacious courtroom demeanour inconsistent withtraditional gender-role notions held by colonial judges, who tended to be treated harshly. In1932, Justice Russell refused to recommend mercy in the cases of Hlobili and Malinga, twowomen from the Bulawayo district, whom he had sentenced to death for the murder ofHlobili’s husband, Nkebe. The evidence that emerged at the trial showed that Malingaopenly boasted about her ability to overpower men in physical fights and had, in the heatedverbal exchanges preceding the fight in which Nkebe was killed, challenged Nkebe bystating, ‘I want to fight with you today, I am not like your wife who has no strength’.64

Malinga had also openly bragged about her ability to manipulate the colonial criminalcourts, stating that ‘she was a very clever woman and that when someone had been arrestedfor having a rifle he had got off on account of the evidence she had given’.65 Some of thesecombative female offenders also shocked their state-appointed defence lawyers in thecourtroom by suddenly deviating from previously agreed upon lines of defence.66

Female legal consciousness also extended to challenging the colonial judicial logic ofsentencing to death people convicted of murder. ‘Can I offer to pay compensation? Myrelations promised they would pay compensation on my behalf. By what I have done I haveoffended God, but why should I be hanged for it?’ asked Mtoyi, charged in 1940 withmurdering her husband and his second wife and her two children by setting fire to the hutin which all four of them were sleeping.67 Mtoyi’s question reflected African dislike of

62 S336, Rex v Changara (1944).63 S1793/4805, Rex v Marita (1943).64 S336, Rex v Hlobili and Malinga (1931).65 Ibid.66 S1793/5335, Rex v Makumbgwa (1946).67 S336, Rex v Mtoyi (1940).

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European concepts of justice which, especially in cases of violent crime, equated justicewith severe punishments and disallowed resolution through the payment of compensationby the offender to the family of his/her victim.68

African female offenders also attempted to exploit openings in colonial regulationsrelating to the execution of female prisoners condemned to death. Section 287 of theCriminal Procedure Code (1926) stated that in the case of a pregnant woman who wassentenced to death, execution was to be postponed until the woman was delivered of herchild. Some female offenders condemned to death lied about being pregnant in an attemptto avoid the hangman temporarily.69

‘How could I kill my own grandchildren?’ African Women and theMurder of Newborn Twins in Colonial Zimbabwe

The sacrificial killing of newborn twins was another serious violent crime that broughtAfrican women into the High Court either as offenders or as witnesses. After brieflyexamining the motivations behind the murder of newborn twins in its cultural and legalcontext, this section then proceeds to discuss the way in which African women charged withthis crime were treated by the colonial legal system, emphasising the agency and legalconsciousness of these women and their role as both victims and perpetrators in suchmurders.

Much of the information about the causes behind the murder of twins in colonialZimbabwe and the manner in which they were killed has come from books, articles andother documents produced by colonial anthropologists, judicial officers, administrators andmissionaries.70 Although these sources contain much useful information about the customof killing twins, their authors’ understanding of African society was very incomplete andinformed by a world-view that perceived African culture in general as morally andintellectually inferior to that of the European colonisers.71

There was widespread consensus among colonial officials and anthropologists that thekilling of twins by Africans in colonial Zimbabwe was caused by a superstitious belief thattwins were a cause of ill fortune to both their parents and their community and that unlesstwins were killed soon after birth, local misfortunes, such as drought, would follow.72 Thekilling of twins, however, needs to be located within the context of complex Africanreligious and social attitudes to what they perceived as unnatural infants. Albinos, deformedbabies, babies who were born legs first or who when teething grew their upper teeth first,could also be killed soon after birth.73

68 For a cogent analysis of the differences in African and European concepts of criminal justice in early colonialZimbabwe see D. Jeater, ‘“I am Willing to Pay for the Damage Done.” Parallel Systems of Criminal Lawin White-Occupied Southern Rhodesia, 1896–1923’ (unpublished paper, Naivasha, Kenya, 2002).

69 S336, Rex v Kamwendo (1939); S1793/4757, Rex v Chawo (1943).70 Sources that discuss the custom of killing twins include the following: A. D., ‘A Superstition’, NADA, 1

(1923), pp. 83–84; W. Edwards, ‘From Birth to Death: Notes on the Natives of Mrewa District, SouthernRhodesia’, NADA, 7 (1929), pp. 17–21; E. Hick, ‘Twin Sacrifice’, NADA, 10 (1932), pp. 62–64; F. W.Posselt, Fact and Fiction (Bulawayo, Books of Rhodesia, 1935), pp. 57 & 62 and P. Nielsen, The Matabeleat Home (Bulawayo, Davis & Co., 1913), pp. 5–7.

71 More recent analyses of the custom of killing twins written by European social anthropologists no longerdismiss the custom as superstitious and primitive, but attempt to show that it was part of a subtle and complexworld-view held by Africans in colonial Zimbabwe. A good example of such analysis is H. Aschwanden,Symbols of Death: An Analysis of the Consciousness of the Karanga (Gweru, Mambo Press, 1980),pp. 86–108.

72 Edwards, ‘From Birth to Death’, pp. 17–21.73 Posselt, Fact and Fiction, pp. 57, 62; S401/62, Rex v Masekani (1896).

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There were local variations in how the killing of twins was carried out and the ways inwhich their corpses were disposed of. However, the standard procedure entailed their beingstrangled by either the mother or mother-in-law of the woman who had given birth to them.Other methods used can hardly be described as merciful or painless; these includedthrowing hot ashes on the newborn twins,74 pouring hot water down their throats,75

strangling them with tree bark76 and even poisoning them with arsenic.77 Those Africanparents, particularly women, who were reluctant to kill their newborn twins attractedpunishment from their husbands and chiefs, and they were also stigmatised by theircommunities.78 The murder of newborn twins was not criminalised by Africans; on thecontrary, it was regarded as the necessary ‘removal of something abnormal and unnatural’.79

This meant that most cases involving the killing of twins did not reach the colonial courts.The appearance in the colonial legal system of cases of the killing of newborn twins

predated the establishment of the High Court of Southern Rhodesia and was, in the wordsof Justice Tredgold, ‘the subject of prosecution in all parts of the country’.80 ColonialZimbabwean law drew no statutory distinction between the murder of adults, newborninfants and children. Murder convictions in all such cases attracted the death sentence.However, the killing of newborn twins was one case in which an African cultural practiceproved to be stronger than colonial law, which was, from the outset, compelled to make theconcession of placing twin-murderers in their own special category of violent criminality.Throughout the period under consideration, colonial High Court judges argued that, becausekillers of newborn twins were ‘not prompted by the ordinary motives of a criminal but bythe dictates of their [superstitious] conscience’,81 they did not ‘fall within the category ofordinary murderers’.82 All offenders convicted of killing newborn twins, although invariablysentenced to death, were always recommended to mercy on account of ‘the influence ofnative custom’, adherence to which was always regarded as a mitigating factor in suchcases. No recommendations to mercy in cases of twin-murder were ever rejected and, as aresult, no African convicted of this offence was ever executed.

African Mothers and Grandmothers on Trial

The preponderance of African women among those charged with killing newborn twins ledJustice Clarkson Tredgold, who tried many such cases and made efforts to study the culturalinfluences behind the killings, to make two important observations about the nature of theoffenders in such cases. Firstly, he ‘had long ago come to the conclusion that women adhereto the native custom much more tenaciously than men’83 and were more fearful of theconsequences of allowing abnormal children to live. Secondly, in noting that the strongestadherents of such objectionable customs were old people, he argued that the practice wouldprobably end when that generation died out.84

While plausible, Justice Tredgold’s observations fail to convey the full complexity ofthe relationship of African men and, especially, different generations of African women to

74 S628/775, Rex v Mungera and Chinongwa (1914); S404/1626, Rex v Muchaimura (1917).75 S628/468, Rex v Banje and Ziyakasekwa (1909).76 S628/697, Rex v Mashindi and Hannamoya (1912).77 S1793/6008, Rex v Munadzana (1948).78 S628/468, Rex v Banje and Ziyakasekwa (1909); Edwards, ‘From Birth to Death’, pp. 17–21; Posselt, Fact

and Fiction, pp. 57, 62; N3/31/1-5, Native Commissioner, Rusape, to Superintendent of Natives, Umtali, 11November 1909.

79 Posselt, Fact and Fiction, pp. 57 and 62.80 S336, Rex v (1) Muchari, (2) Mainyenga and (3) Chikono (1923).81 S336, Rex v Msasike (1928).82 S336, Rex v Muzebi and Nerugwa (1927).83 S336, Rex v Verukwere and Bungerai (1923).84 Ibid.

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the custom of killing newborn twins. Although the majority of those charged with killingtwins were women, the murder of newborn infants was not, contrary to androcentriccriminological theories, always a gender-specific crime perpetrated only by women. Africanmen played both an active and indirect role in such murders and were, in many cases,jointly charged with African women,85 or, in quite a number of cases, charged andconvicted on their own.86

On the basis of available evidence, it cannot be denied that a majority of young Africanwomen were victims or ‘reluctant perpetrators’ in the sense that they either had theirchildren killed against their will, mainly by elderly African women and men, or werecoerced by such people into killing their newborn twins themselves. However, we also needto acknowledge the existence of a number of cases in which the young mothers of newborntwins were ‘willing perpetrators’, taking a leading and active role in killing their ownchildren, sometimes against the advice of their husbands and other women.87

African female agency and legal consciousness in twin-murder cases manifested itselfin several ways. In cases that came before the High Court prior to the 1920s, femaleoffenders rationalising or explaining the crime often gave primacy to their need to adhereto conventional cultural practice.88 This was a legally conscious strategy aimed at takingadvantage of the recommendations to mercy made in all cases of people who, motivated bycultural dictates, killed newborn twins. Others during this early period also pleadedignorance of the white man’s law in relation to such killings. While this was not anaccepted legal defence, it could – for African offenders who lived in remote areas far fromthe centres of ‘European civilisation’ – constitute a significant mitigating factor. Thecolonial legal system was informed by a Eurocentric and diffusionist view of civilisation inwhich the degree to which Africans could be regarded as civilised was partly determinedby their proximity to European centres of settlement, including mission stations. From suchnuclei, European moral and religious values were diffused to ‘uncivilised’ Africans livingthere or nearby. Africans who lived far from these centres were not expected to appreciatethe importance of abandoning the custom of killing newborn twins and this could act as amitigating factor in their favour.89 These judicial attitudes showed that, in twin-murdercases, it was not just individual offenders who were on trial. African culture, whichpermitted a practice viewed as ‘barbaric’ and ‘uncivilised’ by the European colonisers, wasalso on trial.

From the 1920s onwards, however, it was felt that colonial moral and religious valueshad made sufficient inroads into African society for most Africans to be aware that thekilling of twins was morally wrong and a serious criminal offence under colonial law.Colonial judges who tried twin-murder cases during this period began to draw a distinctionbetween the ‘tutored native’ and the ‘raw native’. The former had had sufficient contactwith colonial moral and religious values to be aware of the evils of killing twins.Consequently, a tougher judicial stance was taken against offenders who killed twins in thevicinity of European centres such as mission stations.90 It was only the ‘raw native’, residentin areas remote from European centres of civilisation, to whom relative leniency couldcontinue to be shown.

85 S404/893, Rex v Kumbimbili and Mzondaswi (1910); S336, Rex v Tshizwiyi and Mtshena (1928); S336, Rexv Tabagwisa and Chakanyuka (1934); Rex v (1) Kumbuyani, (2) Mwarambeni and (3) Masingita (1949).

86 S404/923, Rex v Muchemwa (1911); S404/1723, Rex v Chitemere (1918); S336, Rex v Dubo (1928); Rexv Msasike (1928); Rex v Labengai (1928); Rex v Tshibaya (1928).

87 S1793/5055, Rex v Pami (1945); S1793/5056 Rex v Makumbe (1945); S1793/5215, Rex v Mukamba (1945).88 S628/135, Rex v Mazikwa and Dhlape (1902); S404/484, Rex v Sitgebo and Tshikuni (1904); S628/344, Rex

v Chakayengeni and Siyanze (1907); S628/775, Rex v Mongera and Chinongwa (1914).89 S1793/5057, Rex v Chenyedzai (1945).90 S336, Rex v (1) Kumbuyani, (2) Mwarambeni and (3) Masingita (1949).

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By the 1920s and 1930s, female offenders in twin-murder cases were aware of theinadequacies of citing adherence to African culture or ignorance of the white man’s law asmitigating factors. In a case that came before the High Court in 1928, Justice Russell notedthat ‘the natives are not content merely to rely on their custom in their defence’.91 In anothercase that came before the High Court in 1945, Justice Lewis also drew attention to thereluctance of offenders in twin-murder cases to cite the influence of ‘native culture’ as adefence.92 Many female offenders who appeared before the High Court during this periodnow sought to project to colonial judges the image of ‘tutored natives’ who had beencoerced by ‘raw natives’ into killing their twins. These female offenders emphasised howtheir efforts or suggestions to take the newborn twins to mission stations, which by then hadbecome well-established sanctuaries for such infants, had been overcome by the determi-nation of the ‘raw natives’ to kill the twins.93

Female offenders were also aware of, and able to take advantage of, the loopholes inthe criminal investigation and prosecution of twin-murder cases. Many female accusedsought to weaken the case against them by insisting that the twins had been born dead, orborn prematurely and were thus going to die anyway.94 Others methods used to try andfrustrate or evade successful prosecution included attempting to bribe the African policeofficers to stop investigating particular cases;95 allowing twins to die through deliberateneglect or ‘convenient accidents’ rather than directly killing them;96 deliberating killingonly one twin and then insisting to the authorities that the mother had given birth to onlyone child; and giving very little or no help to those investigating twin-murder cases.97 Manycases of twin-murder were successfully concealed from the authorities and some femaleoffenders deliberately lied about what had transpired in order to shield important male andfemale relatives from prosecution.98

These strategies developed largely as a response to the intense efforts of somemissionaries and Native Commissioners to closely police certain African communities inorder to suppress the custom of killing newborn twins. James Hay Upcher, Archdeacon andPriest-in-Charge of Rusape Mission, acting on information provided by African converts toChristianity who worked for the mission, often visited kraals in the Umtali District wheretwins had been born in order to warn the parents personally of prosecution by the colonialauthorities if the twins were harmed in any way.99 In Matobo District near Bulawayo, theNative Commissioner, William Robertson Benzies, kept a regular register of all twins bornin the district in order to facilitate the efficient prosecution of parents of twins who did notdie of natural causes.100 The success of Africans in frustrating the colonial investigation andprosecution of twin-murder cases is reflected by the fact that a considerable number of suchcases took years before they were uncovered by the colonial authorities. In 1928, however,Justice Russell, after trying a twin-murder case that had occurred seventeen years earlier,questioned the wisdom of such delayed legal action.101

91 S336, Rex v Dubo (1928).92 S1793/5056, Rex v Makumbe (1945).93 S628/2374, Rex v Masango and Musiwa (1929); S628/2893, Rex v Muwetirwa and Chamunondirwa (1933);

S336, Rex v (1) Kumbuyani, (2) Mwarambeni and (3) Masingita (1949).94 S1793/6176, Rex v Shanduki and Mutendi (1949).95 S336, Rex v Muzebi and Nerugwa (1927).96 S628/166, Rex v Kareza and Hazindise (1903); S1679/3409, Rex v Chinzunga (1935); S1679/3743, Rex v

Gochoto (1937); S1793/5297, Rex v Sekayi (1946).97 S1793/6176, Rex v Shanduki and Mutendi (1949).98 S336, Rex v Labengai (1928); Rex v Tabagwisa and Chakanyuka (1934).99 S628/166, Rex v Kareza and Hazindise (1903).

100 BE 8/11/1/1, pp. 140–142.101 S336, Rex v Mabangira (1928); Rex v (1) Kumbuyani, (2) Mwarambeni and (3) Masingita (1949).

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Contrary to the emphasis laid by some colonial writers on the powerlessness in thecourtroom of African female offenders in twin-murder cases,102 such accused were notintimidated by the procedures of the High Court and were able to withstand rigorous andprolonged cross-examination.103 Another legally conscious strategy used by female offend-ers charged with killing newborn twins was to try and rebut the charges of murder levelledagainst them by appearing to conform to traditional notions of motherhood held by colonialjudicial officials. High Court judges often wanted those African mothers charged withkilling twins to demonstrate that they had not abdicated or rejected their maternal role byfailing to make strenuous efforts to stop their twins from being killed. To this end, manyfemale offenders sought to conform to this gender-role stereotype by emphasising theirmaternal roles as mothers and grandmothers.

In 1929, one elderly African woman who was found guilty of murdering her daughter’snewborn twins was asked by the presiding judge, Justice Bisset, if she had anything to sayas to why sentence of death should not be passed upon her. The woman responded, ‘Howcould I kill my own grandchildren?’104 This was a rejoinder loaded with cultural meaning,emphasising the protective role of the mother in African society. No African woman, unlessshe was a witch, was expected to harm her own children or grandchildren. Others claimedcoercion by their husbands and justified their submission to this coercion in terms oftraditional gender-role stereotypes held by colonial judges. Thus, in 1936, the accusedasked, ‘How could I refuse or disobey the order from my husband? Even you authorities,when you give an order or instruction to your wife and she refuses, you are bound to hither, therefore she has to obey every order you give her’.105

Colonial judges also closely observed the demeanour of female offenders who claimedthat they had been coerced into killing their children, to establish whether they exhibitedthe emotional distress expected of any mother genuinely mourning the loss of herchildren.106

African Women’s Resistance to the Murder of Twins

African female agency in twin-murder cases is also reflected in the contribution ofopponents of the custom in bringing the practice to an end. Colonial writers who notedAfrican women’s resistance to having their twins killed, imputed it not to any moralreasoning or ‘civilised’ values on the part of the African women, but to the strength of thelong-standing bonds that they believed existed between all mothers and their newbornchildren. Such mothers were ‘torn between primitive instincts [to protect their newbornchildren] and primitive beliefs [in the custom of killing twins]’.107 These writers credited thecolonial legal system with introducing into African society the idea that twins should notbe killed.

Such views are fundamentally flawed, however, because they deny African women arational and morally based role in ending the custom. By failing to acknowledge theexistence of pre-colonial resistance to the custom and exaggerating the effectiveness ofcolonial law in countering African adherence to it, this approach also denies the ability ofAfrican culture to transform itself. As for the power of the law alone to alter custom, manycolonial judges, including Justices Beaufort, Tredgold and Russell, noted, rather, the

102 Hick, ‘Twin Sacrifice’, p. 62.103 S628/2374, Rex v (1) Masango and (2) Musiwa (1929).104 Ibid.105 Rex v (1) Zwanisayi, (2) Muchayana and (3) Rowodza (1936).106 S336, Rex v Verukwere and Bungerai (1923); Rex v (1) Zwanisayi, (2) Muchayana and (3) Rowodza (1936).107 J. Maclean, The Guardians: A Story of Rhodesia’s Outposts and the Men and Women Who Served in Them

(Bulawayo, Books of Rhodesia, 1974), p. 84; Hick, ‘Twin Sacrifice’, p. 63.

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ineffectiveness of the death sentences passed by the High Court in ending African resort totwin-murder.108

African women’s resistance to the killing of newborn twins took various forms, ofwhich two common types are revealed in the High Court records. First, with the assistanceof midwives also opposed to the custom, mothers could refuse to give up their babies tothose elderly women assigned to kill them, who then had to resort to stealing them,sometimes from mothers seeking to delay the process by volunteering to kill the childrenthemselves.109 Secondly, African mothers could give their twins to sympathetic EuropeanChristian mission staff or nurse their children within the safety of mission premises. Africanmothers who came from ethnic groups that did not recognise the killing of twins resistedthe killing of these children by husbands who belonged to communities upholding thepractice.110

There is also evidence that even during the pre-colonial period there were Africans,especially women, who were unhappy with the custom. Parents could cheat the system bysecretly separating the twins at birth and having one brought up by relatives in anotherdistant community, covering up their action by claiming that the mother had given birth toonly one child. Other women played an important role in this type of resistance; it wouldnot have been possible without the collusion of female midwives.111

Conclusion

The evidence presented in this article has attempted to show how the High Court ofSouthern Rhodesia was a site of both gender and legal contestations between colonialjudges and African women appearing before it charged with killing their husbands, newborntwins, and close male and female relatives. African female offenders were not passivesubjects of colonial justice. They demonstrated their agency and legal consciousness bymanipulating and challenging colonial judges’ perceptions of their criminality. They alsotook advantage of the loopholes in the colonial criminal justice system’s investigation andprosecution of violent crimes such as the murder of newborn twins. The article has alsotried to put forward a more nuanced view of female criminality that sees African womenin colonial Zimbabwe as both victims of violent crime and violent offenders in their ownright.

The cases analysed here were tried between 50 and 100 years ago (although many ofthe more interesting cases come from the 1940s). Since then many important reforms havebeen introduced which have enhanced the post-colonial social and legal status of Africanwomen. These changes have also resulted in some African women becoming prosecutors,lawyers and judges in the criminal justice system. However, the continued importance ofgender-role stereotyping in the post-colonial criminal justice system is reflected in recentrulings in the High Court of Zimbabwe. In these, judges have been divided about whetheror not, in the light of considerable improvements in their social status, female offendersshould continue to be treated more leniently than their male counterparts. Some have arguedthat since women are ‘becoming more daring criminals’, sometimes engaging in violentassaults and robberies that are not in consonance with their traditional gender roles, ‘the

108 S404/1626, Rex v Muchaimura (1917); S404/3930, Rex v Tabagwisa and Chakanyuka (1934).109 Maclean, The Guardians, pp. 83–85.110 S404/1723, Rex v Chitemere (1918).111 S1793/5055, Rex v Pami (1945). The manner in which some African people were, during the pre-colonial

period, able to cheat the system and keep their twins alive is explored in two Shona novels, Norbert MafumbeMutasa’s Mapatya (Salisbury, Longman Rhodesia, 1978) and Claudius M. Matsikiti’s Rakava BunoRisifemberi (Gweru, Mambo Press, 1995).

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courts should be equally stern with them as with male criminals’.112 Others contend that,although female criminality has increased while there have simultaneously been significantchanges in the role and status of women, there is no proven correlation between the two;equality of the sexes in other spheres of life does not mean that there should also be‘equality of treatment in criminal cases’.113

Post-colonial responses to spousal violence against African women have included theintroduction of statutory measures aimed at protecting women against male violence and theestablishment of numerous shelters for battered woman. However, despite these measures,spousal violence by husbands has continued, and African women have, partly as a responseto this violence, also continued to be perpetrators themselves of spousal homicides. Thesecontinuities reflect some of the ways in which post-colonial judicial attitudes to violentAfrican female offenders have been structured and influenced by dynamics from thecolonial era.

TAPIWA B. ZIMUDZI

History Department, University of Zimbabwe, PO Box MP 167, Mount Pleasant, Harare,Zimbabwe. E-mail: [email protected]; [email protected]

112 ‘Women Becoming More Daring Criminals Says Judge’, Daily Gazette, 9 November 1992, p. 8; See also S.v Jones and Another, Zimbabwe Law Reports, 1 (1984), pp. 34–80.

113 S. v Moyo, Zimbabwe Law Reports, 1 (1984), pp. 74–79.

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Documents

African women, violent crime and the criminal law in colonial Zimbabwe, 1900-1952