Why the death penalty is losing favour in sub-Saharan Africa

Former Egyptian President Mohamed Mursi waves at his trial with other Muslim Brotherhood members in Cairo, in May. He was subsequently sentenced to death. Egypt is among a handful of African countries that regularly execute. Reuters/Mohamed Abd El Ghany

The death penalty is declining worldwide despite a surge in executions during the first few months of 2015 in countries such as Saudi Arabia and Pakistan. The African continent is a vanguard of this trend.

The death penalty has been abolished or has fallen into disuse throughout Portuguese and French-speaking Africa. The same goes for South Africa and Namibia. Only a handful of countries regularly execute, most prominently Egypt, Sudan, Somalia, and Libya. Several verge on abolition. Zambia has had a moratorium for 25 years.

In 2012, the Ghanaian government endorsed a constitutional change to abolish capital punishment. The death penalty in Kenya, historically mandatory for robbery and rape, faces frequent court challenges. Executions that do occur on the continent, as in The Gambia in 2012 or Nigeria in 2013, generate controversy at home and abroad.

A macabre foreign import

As with most aspects of criminal justice, the death penalty as it exists in law is a colonial import. Except in centralised empires, criminal justice before the modern era was a private matter in which a victim’s family, clan, or kin group negotiated compensation from a perpetrator’s kin under threat of spiritual harm. Law enforcement and punishment were collective and crime could result in misfortune for the group. Compensation restored the harmony of a community, a nascent concept of restorative justice that resonates today.

While the death penalty was known for religious reasons in Islamic-majority Africa, elsewhere the use of capital punishment was spotty. Crimes that caused spiritual harm, such as incest or adultery in some societies, often triggered the most severe sanctions. Among the Igbo peoples of Nigeria and the Maasai of Kenya, murder of a kinsman was treated more harshly than murder of an outsider. Execution rituals were intricately linked to beliefs about authority and the afterlife. For instance, the king of Dahomey “owned” the heads of his subjects and therefore carried out executions by decapitation.

Attitudes toward the death penalty in pre-colonial or colonial times are still relevant. The Batswana of Botswana practiced capital punishment for murder while the Shona of Zimbabwe used an intricate system of compensation for wrongs. Unlike Botswana, Zimbabwe suffered excessive political executions during the colonial period.

In Ian Smith’s Rhodesia, even petty security offences by African nationalists could result in death sentences, many imposed by secret military courts. No wonder, then, that Botswana remains committed to legal capital punishment while Zimbabwe’s political establishment is not. The vice president, Emmerson Mnangagwa, once a political prisoner during the Rhodesian War, has publicly stated his opposition. Zimbabwe’s new constitution also drastically restricts the scope of capital punishment.

Elsewhere, misuse of the death penalty during the colonial era or in the period of one-party and military rule after independence continues to haunt. In Kenya, more than 1,000 executions of militants took place during the Mau Mau conflict in the 1950s. During the Algerian War, the French government even carried out executions for sabotage and other property crimes.

Newly independent governments learned these lessons all too well. The sham capital trials of environmental activist Ken Saro-Wiwa by the Nigerian military government, opposition leader Orton Chirwa in Hastings Banda’s Malawi, and human rights attorney Koigi wa Wamwere in Kenya under former president, Daniel arap Moi, are only the most well-known examples among thousands.

The case for abolition

African political leaders do not need me, an American academic, to tell them that the death penalty is an ineffective tool of criminal justice. I have no moral authority here: the United States executes more efficiently and frequently than the entire African continent combined. These executions have significant costs: 154 death row exonerations since 1976 – and at least two likely wrongful executions, routinely botched executions and an increasingly desperate search for scarce lethal injection drugs.

African countries have similar struggles. Forensics and police investigations are weak in many countries. The Innocence Project South Africa and the Wits Justice Project at the University of the Witwatersrand uncover the same problems of poor forensic evidence that plague capital cases in the United States.

In 2010, Benard Tagoe was released from 24 years on death row in Ghana due to faulty evidence. Resource constraints contribute to a chronic shortage of legal aid for indigent defendants. Swaziland and Zimbabwe have had difficulty hiring executioners who can properly carry out hangings, a vanishing skill. The staggering diversity of the continent, divided into legal systems that operate in often-unfamiliar languages and with bewildering procedures, is its own obstacle.

The question confronting political leaders of all retentionist nations is whether the death penalty is worth the cost and the risk of error. But on a continent with a legacy of misuse by powerful, unchecked executives, the case against the death penalty may be even more compelling.

Certainly, some brutal dictatorships in the world today have abolished capital punishment, but their job is harder. The death penalty is a dramatic expression of state power. Though only a small part of the rule of law landscape, the implications of abolition for judicial independence, transparency, and trust in authority may be far-reaching.