Capital Punishment in Sub-Saharan Africa: Positive developments but difficulties ahead


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Ezekiel Dobelsky


Capital punishment has been declining over the past century, as more and more countries abolish the law. Proponents of abolition argue the death penalty is an abuse of international human rights values and principles, that such punishment fails to deter crimes, and that such abuses contribute to the inevitable execution of innocent people. The countries that maintain the death penalty are among the world’s largest and wealthiest - including China, the USA, and India. Yet across Sub-Saharan Africa (SSA) there were a paltry 16 executions over 2020, a tiny sum when compared to other regions such as East Asia and the Middle East.

Recently, in 2021 Sierra Leone abolished the death penalty, becoming the 23rd country in Africa to legally end capital punishment. Just under half the nations in SSA have now abolished the death penalty de jure, while the number of African countries where capital punishment has been de facto abolished (no executions over a significant period) has risen- contributing to a combined total of 40 abolitionist countries across the continent. Over the past two years, only 4 countries in SSA have carried out executions - including Botswana, Somalia, Sudan, and South Sudan. A further 11 countries continue to sentence people to death, but have not carried out executions.


Interestingly, this abolitionist trend has only occurred over the past 30 years. In 1990, Cape Verde was the only country in Africa that was officially abolitionist. Such achievements concerning the topic of capital punishment represent an extremely positive outlook for the human rights in the region. However, noting the SSA’s notoriously spotty human rights record, these positive developments beg the question - what has caused this uptick in abolition? And is it feasible that the trend will continue to gather momentum until the entire continent is free of capital punishment?


Positive Progress


Policymakers note several significant reasons behind the decline in capital punishment across SSA. This includes the increase in activity and collaboration between civil society actors, coordinated advocacy in-tandem with the passage of domestic and regional human rights instruments, and developing social opposition to the colonial legacy of capital punishment.

Civil Society & Human Rights


Ending capital punishment has been a common cause for numerous Non-Government Organisations (NGO), especially since the end of the Second World War. NGOs such as Amnesty International have produced region-specific toolkits, designed for local actors and advocates to campaign for abolition. Organisations such as Amnesty International are vital for providing information on the current state of the death penalty, especially in states with weak governance and reporting structures.

Since 2015, there has been a concerted campaign by several high-level human rights organisations to end capital punishment on the continent. This involves the World Coalition against the Death Penalty along with other international and regional NGOs - including FIACAT, International Federation for Human Rights (FIDH), and Botswana based advocacy group “Ditschwanelo”. To achieve this goal, their activities have concentrated upon strengthening local civil society and civic participation.

This strategy has successfully yielded results in Sierra Leone, where activity from a combination of international and regional NGOs successfully presented the case for abolition to the President of Sierra Leone. This demonstrates the importance of collaboration between NGOs, especially in the relationships between the Global North-South where a combination of international standards, regional understanding, and local support has proven instrumental in achieving success.

The work of NGOs feeds into the promotion of international human rights treaties, pushing states towards the signing and ratification of additional regional and international agreements which elevate human right protections. Internationally, widespread compliance by states vis-a-vis the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) acknowledges its express aims to abolish the death penalty, where such is considered fundamentally incompatible with human rights. Along with the 2017 draft “Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa,” advocacy groups and NGOs are concentrated on pressuring governments to adopt such international agreements while also compliant with established norms under international customary law. These consolidate the long-term trends of abolitionism, as once signed to an international agreement there exist a variety of ramifications associated with withdrawal.

Colonial History


Another reason why abolition has been successful in SSA, especially when compared to other regions with a colonial history such as South-East Asia and the Middle East - is the lack of historical legitimacy of capital punishment.

Numerous African lawyers, judges, and advocates of abolition argue that capital punishment is largely a colonial legacy, one imported by European colonizers as a means of enforcing control and imposing subjugation upon indigeous peoples. Although the death penalty was used in some parts of pre-colonial African society, capital punishment was employed far more frequently under colonial administrations, and abused as a tool to safeguard colonial interests and control over the populace. Following decolonisation and independence, capital punishment remained codified within legal codes as an accepted norm within criminal justice systems. In the immediate post-colonial era, many counties such as Botswana subsequently adopted capital punishment into their national constitutions.


Therefore, there is lived experience across the continent concerning the misuse of power by the state. This abuse of power combined with the lack of hisotircal legitimacy of the overall system, as existed during the South African Apartheid regime, was a key argument for the removal of capital punishment in South Africa once Apartheid fell in the early 1990s. In the landmark post-Apartheid case of S v Makwanyane and Another (1995) before the South African Constitutional Court, Justice Sachs passed his judgement abolishing capital punishment for all crimes in South Africa. Herein, Sachs commented the lack of historical legitimacy as a chief reason behind the decision, while also acknowledging the disproportionate effect of the practice upon indigenous South Africans.


Troubling Issues


However, the job is still not complete. For one, there remains the possibility of numerous African nations reversing their stance on capital punishment, particularly where they have not signed onto international agreements. Malawi recently overturned the decision to formally abolish the death penalty, one which had only been enacted several years prior.

Another major issue is the use of de-facto death sentences, where the execution is not functionally carried out. The mere act of sentencing people to death presents a moral issue, one which carries major psychological consequences for the condemned. Being on death row is psychologically torturous, and can have major emotional and economic ramifications for the family of the accused as well. From a political perspective, the possibility of capital punishment can also inspire constant fear in citizens and stifle civil rights and political activism, particularly in instances where the state in capable of exercising capital punishment both arbitrarily and capriciously. While the number of executions remain relatively low, those receiving the death sentence across SSA number in the thousands.

Further, there persist issues in attempting to shift the stance of retentionist countries, in part due to colonial history. Many of the African countries that retain capital punishment are governed by Sharia Law, and abolition is often met with blowback from proponents of capital punishment according to Islamic law. Such supporters exhibit the perception of human rights as a solely Western concept, one seeking to undermine local sovereignty, laws, and values. Conversely, Sudan’s 2020 decision to abolish the death penalty for apostacy rasies confidence concerning the compatibility of human rights with local religions, customs, and traditions. Regardless, this trend of indigenous religious and cultural opposition highlights the difficult and fraught nature of such a controversial topic, and how Western support can be a hindrance in certain areas.

Finally, the difficulty of increasing and maintaining the current momentum surrounding abolition is a constant concern. Ironically, the low levels of executions vis-a-vis death penalty convictions in SSA, especially relative to other regions, means that there has been little impetus to formally abolish it. According to Victor Mhango of the Centre for Human Rights, Education, Advice and Assistance - this situation has been observed in Malawi, where the death penalty is viewed as an effecive means of precluding mob justice and vigilantism.


Conclusion


In the aftermath of the post-colonial independence era, the decline in the use of the death penalty across SSA is no doubt a positive development. The effectiveness of NGOs and advocacy groups, in combination with regional and international agreements, show that it is possible to effect meaningful change in support of human rights. However, given the rise of complex issues surrounding the perception of threats against state sovereignty and local customs across Africa, international human rights organisations and local advocates must evolve their strategies in continuing their fight against capital punishment.



 

Ezekiel Dobelsky completed his Master of International Relations from the University of Melbourne in 2020, to go with his undergraduate double degree of Arts & Economics from Monash University. He previously interned at EcoPeace Middle East, a regional NGO focused on environmental peacebuilding in Israel, Palestine and Jordan. He is currently an editorial assistant at E-IR, an intern at Circular Economy Victoria and teaches chess on the side.

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