The Death Penalty in Africa: Foundations and Future Prospects

Foundations and Future Prospects

A. Novak

• Publisher: Palgrave Pivot
• Year: 2014
• Print ISBN: 9781137438751
• eBook ISBN: 9781137438775
• Topic: Social Sciences
• Subtopic: African History
• Index: Social Sciences

In recent years the death penalty has sharply declined across Africa, but this trend belies actual public opinion and the retributivist sentiments held by political elites. This study explains capital punishment in Africa in terms of culturally specific notions of life and death as well as the colonial-era imposition of criminal and penal policy.

1

Introduction to the Death Penalty in Sub-Saharan Africa

Abstract: This Introduction provides a brief overview of the death penalty in Sub-Saharan Africa, where, as in most of the world, the unmistakable trend is toward abolition. Capital punishment on the African continent is intricately linked with broader rule of law issues, including judicial independence, the size and skill of the legal profession, and due process protections for criminal defendants. The resource constrants and subservient economic position of African countries resulted in erratic and highly political death penalty regimes after independence. This Introduction also provides an overview of the structure of the book, including the historical foundations and modern operations of capital punishment.

Novak, Andrew. The Death Penalty in Africa: Foundations and Future Prospects. New York: Palgrave Macmillan, 2014. DOI: 10.1057/9781137438775.0004.

In August 2009, with a single stroke of a pen, former Kenyan President Mwai Kibaki removed one-fifth of the world’s death row population from the shadow of the gallows when he commuted the sentences of more than 4,000 condemned prisoners to life imprisonment in the largest mass commutation of the modern era.¹ In addition to murder and treason, the Kenyan penal code permits the death penalty for robbery and attempted robbery with violence, holdovers from a period of politically tinged prosecutions by authoritarian rulers after independence. But the death penalty is out of sync with Kenyan legal culture: the country has not carried out an execution in 25 years.² A new constitution from August 2010 fails to give clear authorization for legal capital punishment. “Every person has the right to life,” the constitution states. “A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.”³ The newly established Supreme Court of Kenya must resolve the intentional ambiguity of this circular clause in coming years.

Kenya is not the first country in Sub-Saharan Africa to begin the long journey toward abolition. South Africa led the Western world in executions during the second half of the twentieth century and, with a 1995 decision of the Constitutional Court, became the most vindicating success of anti-death penalty litigation. Tiny Rwanda, the site of some of the worst atrocities in human memory, abolished the death penalty in June 2007 by an overwhelming vote of parliament. Elsewhere around the continent, the death penalty is in terminal decline, in near-universal disuse in French- and Portuguese-speaking Africa and surviving only in Anglophone and Islamic-majority countries. Abolition resulted from a combination of political forces: litigation, legislative reform, and the drafting of new constitutions. The African experience shows that “the death penalty lives many different lives and dies many different deaths,” and the roads taken by Kenya, Rwanda, and South Africa are not the only ones.⁴

On some level, the death penalty is the same in Africa as it is anywhere else, and it raises the same philosophical, practical, and economic questions. Is it a deterrent? Can it be fairly applied? Is it cost-effective? Should the state, so grossly mismanaged in world history as in African history, have the power to take life at all? Yet, the death penalty in Africa is distinctive because Africa, as a continent, shares a common historical thread of human bondage, colonial domination, economic underdevelopment, and persistent political instability unique to its shores. The death penalty is ultimately an expression of state power. Since independence, the African state has been notable for its high level of repression and its low institutional capacity: “The weakness of the state as an institution precludes the granting of civil and political rights that might undermine its own fragile existence,” and the state’s projection of strong coercive power is a symptom of its lack of legitimate authority.⁵ In the 1980s, when the continent faced sustained economic crisis, observers noted the organizational failures of African governments; their deep ethnic divisions; and the lack of control over substantial territories or populations.⁶ The erratic operation of state executions, seemingly at the political whim of a strongman or military junta, represented a much deeper crisis of the insecure African state.

Thirty years later, the African state may still be weak, but it no longer seems to be in crisis. In general, African governments have become more democratic, better-organized, and less predatory on their economic wealth, and now possess greater capacity to respond to serious challenges such as poverty, corruption, and disease. The continent records some of the highest economic growth rates in the world, including in countries that had once been on the brink of collapse.⁷ Africa has always been a continent of staggering diversity, but the diversity seems greatest now. The “rule of law” revolution on the continent has improved judicial independence, provided stronger protections for criminal defendants, ensured more transparent government action, and made capital punishment more non-political and rule-bound. Certainly, there are wide variations and exceptions on a continent that has endured more than its share of stereotypes—indeed, these variations and exceptions will consume most of this book—but it is generally true that the death penalty in Africa has never been less political than it is at present, or closer to abolition, precisely because of the relative and recent success of the African state.

The purpose of this book is not to advocate for death penalty abolition across the continent of Africa, but to provide an honest and objective account of the origins, operations, and future of capital punishment—the most severe criminal sanction available to a government under the rule of law. But perhaps the death penalty in Africa should be abolished, notwithstanding the improvements in institutional capacity of many countries. The inherent weaknesses of forensics and police investigations do little to reduce the risk of wrongful executions; similarly, due to resource constraints, the chronic shortage of legal aid to indigent defendants is far worse in Africa than in the Western world. The staggering diversity of the continent is its own obstacle: thousands of different ethnic, religious, and linguistic groups are divided by artificial boundaries into foreign-imposed legal systems that operate in unfamiliar languages and with bewildering procedures. The power over life and death is grave, and risks being misused by strong executive rulers with little check on their authority.

The death penalty in Africa: a rough sketch

As in most of the world, the momentum is on the side of death penalty abolition in Africa. As of 2012, 16 African countries have abolished the death penalty, while 24 are abolitionist in practice. Two countries, Mali and Tunisia, are on the verge of making their informal abolition formal, although as of early 2014 Tunisia’s new constitutional draft retains capital punishment.⁸ Portugal’s five former colonies of Angola, Cape Verde, Guinea-Bissau, Mozambique, and São Tomé e Principe are abolitionist, as are the former apartheid regimes of South Africa and Namibia in the south. A host of Francophone states, including Benin, Burundi, Côte d’Ivoire, Djibouti, Gabon, Madagascar, Rwanda, Senegal, and Togo have also abolished capital punishment. An enormous swath of the continent is de facto abolitionist—defined as a country that has not carried out an execution in at least ten years—from Algeria and Morocco on the Mediterranean, down to Ghana and Liberia on the Atlantic Ocean, eastward across the dry Sahel and the dense jungle of the Congo River basin to Kenya and Tanzania on the Indian Ocean and down to the highlands of Zambia and Zimbabwe. In February 2014 Equatorial Guinea agreed to a moratorium on the death penalty.⁹ Finally, there are ten holdouts, those countries that remain committed to legal capital punishment: Ethiopia, a host of common law Anglophone countries (Botswana, The Gambia, Nigeria, South Sudan, and Uganda), and a handful of majority-Islamic countries (Egypt, Libya, Somalia, and Sudan).¹⁰

Despite a clear trend toward legal abolition, the number of executions on the continent has been relatively consistent. In the first year after independence in 2011, South Sudan carried out at least ten executions, and reports indicate that at least another five prisoners were hanged in 2012 and four in 2013.¹¹ Tiny Gambia sparked an international outcry when it executed nine death row inmates in August 2012 at the notorious Mile 2 Central Prison; these death sentences were troubling because they fell on foreign nationals or were reinstated after commutation to life imprisonment.¹² In June 2013, Nigerian President Goodluck Jonathan urged state governors to sign death warrants; a week later, four prisoners at Benin Prison were hanged, all of whom still had appeals pending.¹³ Between 2000 and 2005, more than 2,000 death sentences were handed down in Africa and at least 157 prisoners were executed. In 2010 alone, 670 death sentences were imposed in 28 countries, while 6—Botswana (1), Egypt (4), Equatorial Guinea (4), Libya (18), Somalia (~8), and Sudan (~6)—carried out executions.¹⁴

The focus of this book is on judicially sanctioned capital punishment, not extrajudicial executions. But why does a handful of judicial executions imposed on condemned prisoners matter when compared with potentially far greater numbers of illegitimate state killing, in forms such as police brutality, conditions of detention, or vigilantism? In general, countries that have abolished capital punishment also tend to have lower rates of extrajudicial executions.¹⁵ But it also appears true that extrajudicial executions are higher in countries where the functioning court system is overburdened and slow-moving and where the public thirst for justice in some form means that police must shoot to kill, as evidenced by the large number of so-called encounter killings in India.¹⁶ By definition, judicial executions require the existence of a legitimate government authority to carry them out: what relevance is the distinction between judicial and extrajudicial executions in precolonial stateless societies, or even in the modern post-Cold War phenomenon of collapsed states? As Futamura and Bernaz write, death penalty policies in transitional countries are not simply a matter of human rights, but part of a greater agenda that includes restoring order and security, embracing legitimacy, and rebuilding an impartial legal system.¹⁷ The fragility of the African state adds a new dimension to the global death penalty debate.

The organization of the book

The six chapters that follow will explore many of ...

Table of contents

• Cover
• Title
• 1  Introduction to the Death Penalty in Sub-Saharan Africa
• 2  Capital Punishment in Precolonial African Society
• 3  Executions and State Power during the Colonial Period
• 4  The Politicization of the Death Penalty after Independence
• 5  An Opening: The Death Penalty in an Era of Democratization
• 6  The Operation of the Modern Death Penalty in Africa
• 7  Conclusion: The Future of the Death Penalty in Africa
• Bibliography
• Index