As we are commemorating the 12th World Day against the death Penalty, the trend towards abolition of the death penalty in Africa continues to gather both pace and momentum. There is an observable trend towards the abolition of the death penalty in the continent. As at October 2014, seventeen (17) State Parties to the African Charter on Human and Peoples’ Rights (The African Charter) have abolished the death penalty by way of enacting national legislation.[1] Of these, eleven (11) have also become party to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) on the abolition of the death penalty, with Gabon the most recent, earlier this year.[2] A further twenty-five (25) State Parties have not carried out an execution for ten years.[3]
For over a decade, the African Commission on Human and Peoples’ Rights (the African Commission), has urged retentionist States to legally abolish the death penalty or to consider a moratorium on its use. In July this year, the the African Commission’s, Working Group on the Death Penalty and Extrajudicial, Summary or Arbitrary Killings in Africa (the Working Group) and the Government of the Republic of Benin jointly organized a Continental Conference in Cotonou, Benin, where participants adopted a Declaration calling on African Union Member States to support the adoption of the draft Additional Protocol to the African Charter on Human and Peoples’ Rights on the abolition of the death penalty and the proposed UN Resolution on a global observance of a moratorium to be adopted later this year. The Working Group was glad to receive the support of the European Union and partners from civil society organizations in this process.
At national level there has also been welcome progress over the past year, with the ongoing review of the penal code in Comoros, and the drafting of a constitutional amendment to abolish the death penalty in Ghana. In September a new penal code was approved by parliamentarians in Chad that made no allowance for the death penalty, effectively abolishing it. While other elements of this penal code give cause for concern, the African Commission welcomes the step taken towards formal abolition.
This year’s theme, mental illness- “Care, Don’t Kill” is therefore one whose time has come as we continue to witness the growing number of people, particularly in Africa, with intellectual disabilities or mental illness who do not have adequate support and health care. Many African Societies and Governments do not have effective legal provisions as well as adequate and functional support structures to provide for the needs and health of persons with mental illness or intellectual disabilities. Some of these people are either left by family members in the streets to roam and fend for themselves or are kept in very poor condition mental institutions without proper care and when they commit acts of violence, they are at great risk of being subjected to the death penalty or execution upon conviction for the said alleged acts of violence that they have committed.
The African Commission notes that, states globally, have laws which prohibit the sentence to death or execution of persons with mental illness or intellectual disabilities, however, despite these legal provisions, persons with mental illness or intellectual disabilities are subjected to capital punishment and executions in some countries.
The African Commission is concerned that persons with mental illness or intellectual disabilities standing trial for capital offences are usually not provided with appropriate legal representation despite their inability to effectively participate in their defense thereby resulting in unfair trials which culminates in the imposition of death sentences and /or executions.
The African Commission welcomes the international standards set by treaty and professional bodies and calling for prohibition of the death penalty and its imposition or execution on persons with mental illness;
The African Commission calls on all AU Member States to implement the existing international standards aimed at prohibiting the imposition of death sentences and/or executions of persons with mental illness or intellectual disabilities; to provide adequate domestic legal protection for a fair trial of persons with mental illness and intellectual disabilities as well as adequate and accessible mental health care prior, during and after trial and to implement them to the letter;
The African Commission also urges all legal and medical professional bodies to adopt and implement standards/code of conduct aimed at prohibiting members of their profession from acting unprofessionally or unethically in cases of capital offences involving persons with mental illness or intellectual disability;
The African Commission reiterates its call on AU Member States that have not yet ratified legal instruments that prohibit the death penalty to do so, in particular the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty and the Convention on the Rights of Persons with Disabilities and to harmonise their national laws accordingly.
The African Commission equally invites all States that have abolished the death penalty or are observing a moratorium on its application, to support the fifth UN General Assembly Resolution calling for a global moratorium on the death penalty to be adopted later this year.
On the occasion of the 12th World Day on the Death Penalty, the African Commission encourages State Parties that are working towards the abolition of death penalty, and reiterates its call on States that have not yet abolished the death penalty to impose a moratorium on the execution of prisoners on death row by commuting their death sentences to life imprisonment.
A number of State Parties have also accepted recommendations made under the UN’s Universal Periodic Review to work towards abolition of the death penalty at a national level or to make binding international commitments regarding the death penalty. The African Commission notes these positive steps and encourages those State Parties to work expeditiously over the next year to fulfill those commitments.
By abolishing the death penalty in Africa, State Parties will be complying with their commitments under the African Charter to protect the right to life and human dignity; whilst enabling the continent to keep pace with the global trend away from capital punishment.
Banjul, 10 October 2014
[1] Angola, Benin, Burundi, Cape Verde, Côte d'Ivoire, Djibouti, Gabon, Guinea-Bissau, Mauritius, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Senegal, Seychelles, South Africa, and Togo.
[2] In addition to the eleven abolitionist state parties, Angola and Sao Tome and Principe have signed but not yet ratified the Protocol. Liberia has ratified OPII and Madagascar has signed it but neither have yet abolished the death penalty in national legislation.
[3] Algeria, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Democratic Republic of Congo, Eritrea, Ghana, Guinea, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Niger, Saharawi Arab Democratic Republic, Sierra Leone, Swaziland, Tanzania, Tunisia, and Zambia.
