The death penalty has been with humanity since time immemorial. It appears to have been universally accepted without question. From about the 19th century, however, the death penalty began to be questioned by ‘abolitionists’. Since then, abolitionists and retentionists have been engaged in a death-penalty debate fraught with emotions, complexities, controversies and contention. Today, some countries retain the death penalty and readily execute criminals sentenced to death by their courts; others have abolished the penalty altogether; while others still have in place, formally or informally, a moratorium on the execution of death row prisoners.
Many African countries retain capital punishment. Three main reasons are advanced in justification for so doing. It is said that the continent is in the throes of political, economic, social and ethnic instability. It is further said that there is strong public belief in retributive justice and that this cannot be ignored. Moreover, it is said, the continent is afflicted by deep religious, cultural, and legal diversity denying it a sense and feeling of common shared values.
While international human rights standards in general strongly affirm the desirability of the abolition of the death penalty, the African Charter on Human and Peoples’ Rights does not speak unequivocally to this nagging question. As a result, the African Commission on Human and Peoples’ Rights, the continent’s human rights monitoring and implementing body, has since felt entitled to consider the matter. A few years ago it set up a Working Group on the Death Penalty and mandated it to undertake a study of the problem and make recommendations to it.
This document is the modest fruit of the labours of that Working Group. The document broadly looks at the historical, human rights law, and practical aspects of the death penalty. It takes a comprehensive approach to the question of the death penalty, bearing in mind the need to provide the African Commission with sufficient information that will enable it to take an informed position on the matter.
The Study is divided into parts. The introductory part gives a global overview of the death penalty with a special focus on Africa. The part that immediately follows dwells on two matters, the human rights law context that informs a major part of the arguments on the death penalty, and the question of the death penalty in Africa from a historical perspective. That history shows that the death penalty existed in pre-colonial African communities. It was normally available for serious crimes such as witchcraft and unlawful homicide. Methods of execution included decapitation, spearing to death, administration of poison, and burial alive. However, a person guilty of a capital offence was not necessarily executed. He/she could be sent on temporary exile or required simply to make restitution or pay compensation (blood money) to the family of the victim. The basis for exacting capital punishment was literal retribution or permanent incapacitation. Two main considerations informed the payment of blood money, namely, the practical necessity to assuage the anger of the victim’s family for the loss suffered, and the need to promote peace and reconciliation. The death penalty for a variety of offences was a prominent feature of legislation in colonial Africa and continues to be so in post-colonial Africa in respect of an expanded list of capital offences in retentionist states.
Provisions in international, regional and national instruments that are relevant to the question of the death penalty are highlighted in the next part of the Study. These provisions provide a framework from which the discussion on the practical arguments, challenges and recommendations draw information in the debate on the death penalty in Africa. Unlike other continents, Europe is today a death penalty-free area. The prospects of other continents also becoming death penalty-free zones any time soon appear elusive. In fact, some states in the Americas, strongly subscribe to the argument that “[I]n a democratic society, the criminal justice system, including the punishments prescribed for the most serious crimes, should reflect the will of the people, freely expressed and appropriately implemented”.
The fourth part of the Study dwells at some length on the practical arguments for and against the death penalty and also discusses the issue of moratoria on executions. The basic argument for the death penalty is that it deters crime, prevents recidivism, and is an appropriate punishment for serious crime. But the opposing argument is that the penalty does not deter criminals more than would do, say, life imprisonment, that it violates human rights, that it entails the risk of executing a wrongly convicted person, and that punishment that allows criminals to reflect and reform themselves is more appropriate than execution. In the matter of the death penalty, some states are said to be abolitionist de facto (i.e. states that have a moratorium on executions). A moratorium on executions ought normally to be a step towards the ultimate decision proscribing the death penalty. Unfortunately, this is not necessarily the case in Africa.
Challenges and Strategies come at the end of the Study. The Study acknowledges that there are challenges in the way of efforts to bring about total abolition of the death penalty in Africa. Some of the key challenges identified are: public support for the death penalty, a support driven by ignorance and exacerbated by illiteracy; absence of effective policing in many countries; the influence of tradition and religion; and the perception by some African governments that abolition is yet another Euro-centric imposition.
Strategies highlighted in the Study consist inter alia: the African Commission working closely with United Nations bodies, in particular the Office of the High Commissioner for Human Rights, as well as with National Human Rights Institutions and Civil Society Organizations in their respective capacities to mobilize towards the abolition of the death penalty; continue engagement with States Parties on the necessity of the abolition of the death penalty, engagement through its Resolutions, Promotional Activities, Special Mechanisms, Examination of State Reports and Communication Procedures; recommend to the African Union and to State Parties the adoption of a Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa; and strongly urge State Parties that still retain the death penalty, that they should, pending the adoption and the entry into force of the proposed Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa take the following measures: impose a moratorium on sentencing to death; impose a moratorium on executions and commute all death sentences already passed into fixed-term or life sentences, depending on the gravity of the circumstances of the offence; and refrain from resuming executions once a moratorium is in place.
In its overall conclusion the Study posits that among countries that still have the death penalty in their statute books and continue to apply it effectively, serious questions do arise which include the following: whether a system based on the rule of law can continue to run the risk of depriving persons of the right to life; whether it is acceptable to apply the death penalty where there are appropriate alternative punishment; whether it is really humane to keep a person on the death row for years, with him/her not knowing if the next day will be his/her last. It is evident from this study that there are individuals , private organizations, lawyers, academics, politicians and members of religious groups who seek the abolition of the death penalty.
The Working Group recognizes that the Study may have some limitations and may call for further study in some areas. However, the Working Group is convinced that in spite of any shortcomings there might be, any additional study is unlikely to change the basic findings of the Study in relation to the necessity for the abolition of the death penalty. What emerges from the survey of the pros and cons of the death penalty is that the abolitionist case is more compelling than the retentionist case.