What Is The Future Of The Death Penalty In Africa?

Written by Andrew Friedman

“Everyone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional…. Retribution cannot be accorded the same weight under our Constitution as the right to life and dignity. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be,” so reads the Makwanyane judgment, one of the first delivered by the Constitutional Court of South Africa in 1995.

This decision was widely heralded, as the death penalty held a special place in the apartheid justice system, its racial misuse and overtones a sharp reminder of racial minority rule.

Thanks to Zimbabwean Justice, Legal and Parliamentary Affairs Minister Emmerson Mnangagwa, the death penalty debate has been reignited amongst SADC countries. At the opening of the SADC Lawyers Annual Meeting in Zimbabwe, the Minister stated that while the constitution allows for the death penalty, he personally finds it unfair.

If this were merely the opinion of any government minister it would, perhaps, not have made much news. However, legally, all executions in the country require his personal signature. As such, Mnangagwa has refused to sign the “death warrants” of 97 individuals who were sentenced to death by Zimbabwean courts.

The Minister’s comments come at an important time for the death penalty debate in Zimbabwe, with many of the lawyers who were present at the conference playing leading roles lobbying for change in the law.

According to former Law Society of Zimbabwe President Josphat Tsuma, under the new constitution the death penalty ”…can only be imposed under aggravating circumstances, but there is no provision that explains what the aggravating circumstances are.” This ambiguity is ripe for exploitation at the hands of the government and court system.

As Zimbabwean lawyers look to change their death penalty regime and may have found an ally in Mnangagwa, the trend across the continent is difficult to discern. While some countries are moving towards full abolition, others are embracing the penalty at greater numbers than ever before.

According to Amnesty International 19 African countries handed out a total of 423 death sentences during 2013, a small reduction from the 449 in 2012 but a major increase from the 254 in 2011. Of these 19 countries only 5 actually carried out executions, 64 in total. Despite the reduction in death sentences from 2012, there was an increase by more than half from 2012 when 41 were carried out.

 Amnesty further identified Benin, Comoros, Ghana, Liberia and Sierra Leone as domestically taking concrete steps and legislative review processes that could result in permanent abolition. Additionally, Angola, Guinea-Bissau, the Central African Republic and the Republic of Congo all moved towards accepting international legal regimes that ban the death penalty.

While concrete steps were not present in Tanzania, joining Zimbabwe’s Justice Minister in decrying the practice was the country’s Minister of Justice and Constitution Affairs. Minister Mathias Chikawe told an Ethiopian television program that “A punishment is meant to reform a criminal. The death penalty does not reform anyone let alone deter crime as those convicted to die do not get time to contemplate.”

While several countries took steps towards abolition of the death penalty, the continent’s executions were largely due to two countries.

According to Amnesty, Sudan and Somalia were collectively responsible for 86%, or 55, of the continent’s 64 total executions. Somalia is more than single handedly responsible for the continental increase from a year ago, carrying out 6 in 2012 compared to 34 in 2013. Sudan made less of a jump, up to 21 in 2013 from 19 in 2012.

The other three countries that executed individuals in 2012 were South Sudan and Nigeria with four executions each and Botswana with one.

While Sudan, South Sudan and Somalia have not given abolitionists much to grasp onto, Nigeria and Botswana have made some steps forward.

Nigeria terrified advocates by resuming executions for the first time in 7 years in 2013. However, the country’s capital punishment was challenged in the Economic Community of West Africa’s Regional Court.

The Court determined that capital punishment was prohibited in ECOWAS states and ordered against any further executions. Nigerian Attorney General Mohammed Bello Adoke stated that the country will respect the order but “will take a position as to whether to remove it or not from our statute books after due consultations with the broad spectrum of Nigerian populace.”

Botswana took a less comprehensive step, rejecting calls to end the death penalty but opening up broad citizen consultations on the practice, a significant move for a country whose death penalty practices are notorious for their secrecy.

Since the landmark case in South Africa, use of the death penalty worldwide has sharply declined, going from 37 countries carrying out executions in 1994 to 22 in 2013. This trend across the African continent is less linear.

In 2013, of the 54 member states of the African Union, only 19 still hand out death penalties and, of those, only 5 conducted executions, one of which has since ceased the practice.

A significant debate about the practice has erupted across the continent and prominent politicos have called for its abolition. Only time will tell where this debate leads, but already the practice is isolated to a few states and greater abolition will only further the isolation.

Andrew Friedman is a human rights attorney and freelance consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.