History, current status and operation of the death penalty in Africa

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Background to the study

By committing ourselves to a society founded on the recognition of human rights we are required to value [the right to life and dignity] above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals.1 Central to this study is the generally accepted view that the death penalty is a major threat to fundamental human rights. 2 It is one of the most divisive and impassioned human rights issues throughout the world. 3 The application of the death penalty cannot be separated from the issue of human rights. 4 This view has been supported by the United Nations (UN) Commission on Human Rights (UNCHR), which has expressed its conviction that “abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights”.5 Therefore, the death penalty is treated in this study as a human rights issue. In support of this, Commissioner Chirwa, at the 36th Ordinary Session (2004) of the African Commission on Human and Peoples’ Rights (African Commission), openly stated that the death penalty was a human rights issue.

Nature and magnitude of the problem to be investigated

Considering that the use of the death penalty in Africa is a threat to fundamental human rights, the topic of this study “Towards the abolition of the death penalty in Africa: A human rights perspective” is crucial. The study seeks to tackle the following questions: Why do most African states retain the death penalty? In what ways does the current operation of the death penalty in African states conflict with human rights? What causes obstruction to challenges to the death penalty in Africa? Is it appropriate for African states to join the international trend for the abolition of the death penalty?

Specific objectives and significance of the study

Abolition of the death penalty is generally considered to be an important element in democratic development for states breaking with a past characterised by terror, injustice and repression. 39 This study is, therefore, of particular significance given that Africa is going through a transitional phase, from dictatorship to democracy. Bearing in mind the fact that most African states have experienced a past characterised by injustice and repression, some are still experiencing it today, and some are in the process of democratic development, abolition of the death penalty thus seems to be one of the most important elements that will help these states in the process of democratic development. Therefore, studies like this, which make African states see the abolition of the death penalty as a necessity with regard to the development of, or respect for, human rights, are essential.

Specific objectives and significance of the study

Declaration
Dedication
Acknowledgment
Chapter 1: Introduction
1.1 Background to the study
1.2 Nature and magnitude of the problem to be investigated
1.3 Specific objectives and significance of the study
1.4 Work already done in this field
1.5 Methodology adopted in the study.
1.5.1 Literature review
1.5.2 Comparative method
1.5.3 Modus operandi
1.6 Scope of the study
1.7 Clarification of terms
1.7.1 Capital punishment / death penalty
1.7.2 Abolitionist / de facto abolitionist / retentionist
1.7.3 Mitigating factor / extenuating circumstance
1.8 Overview of chapters
1.9 Limitations of the study
1.9.1 Generalisation about Africa
1.9.2 Inaccessibility of data and materials
1.9.3 Analysing criminological arguments
1.9.4 Taxonomy of African states
1.9.5 Time frame
1.10 Conclusion
Chapter 2: History, current status and operation of the death penalty in Africa
2.1 Introduction
2.2 Historical background to the death penalty in Africa
2.3 An analysis of the current status and scope of the death penalty
2.3.1 Status of the death penalty
2.3.2 Scope of the death penalty
2.3.2.1 Restrictions on the imposition of the death penalty
2.3.2.2 Offences for which the death penalty is imposed in Africa
2.4 Application of the death penalty in African states
2.4.1 The application of the law in capital trials
2.4.1.1 Pre-trial phase
a Investigations
b Bail
2.4.1.2 Trial phase
a Evidence
b Mitigating factors
2.4.1.3 Post-trial phase
a Constitutional challenges
b Pardon or commutation
2.4.2 The question of the mandatory imposition of the death penalty
2.4.3 Death row
2.4.4 Execution
2.4.5 Scale of death sentences and executions between 2000 and 2004
2.5 Conclusion
Chapter 3: Rebutting the arguments for the retention of the death penalty in Africa
3.1 Introduction
3.2 International law
3.2.1 The death penalty is provided for in international law
3.2.2 Rebuttal of argument
3.3 Traditional African societies
3.3.1 Some African traditional philosophies allow for the imposition of the death penalty
3.3.2 Rebuttal of argument
3.4 Religions in Africa .
3.4.1 Major religions in Africa prescribe the death penalty
3.4.1.1 The death penalty is prescribed in the Bible
3.4.1.2 Rebuttal of argument
3.4.1.3 The death penalty is prescribed in the Shari’a
3.4.1.4 Rebuttal of argument
3.5 Public opinion
3.5.1 Public opinion in Africa favours the death penalty
3.5.2 Rebuttal of argument
3.6 Criminological justifications for the imposition of the death penalty in Africa
3.6.1 Retribution
3.6.1.1 The death penalty has to be imposed for the purpose of retribution
3.6.1.2 Rebuttal of argument
3.6.2 Deterrence
3.6.2.1 The death penalty serves as a deterrent to crime
3.6.2.2 Rebuttal of argument
3.6.3 Prevention
3.6.3.1 The death penalty prevents an offender from committing other crimes
3.6.3.2 Rebuttal of argument
3.6.4 Rehabilitation .
3.6.4.1 Rehabilitation is expensive and ineffective
3.6.4.2 Rebuttal of argument
3.7 Conclusion
Chapter 4: The right to life and the death penalty in Africa
4.1 Introduction
4.2 The right to life under the United Nations human rights system
4.2.1 The Universal Declaration of Human Rights
4.2.2 The International Covenant on Civil and Political Rights
4.2.3 The United Nations Human Rights Committee
4.3 The right to life in the African human rights system
4.3.1 The African Charter on Human and Peoples’ Rights
4.3.2 The African Commission on Human and Peoples’ Rights
4.4 The right to life in African national constitutions
4.5 Jurisprudence of African national courts
4.5.1 The Court of Appeal of Botswana
4.5.2 The Supreme Court of Nigeria
4.5.3 The High Court and Court of Appeal of Tanzania
4.5.4 The Constitutional Court of South Africa
4.6 Jurisprudence of other national courts and their relevance to Africa
4.6.1 The Canadian Supreme Court
4.6.2 The Hungarian Constitutional Court
4.7 Conclusion
Chapter 5: The prohibition of cruel, inhuman or degrading treatment or punishment and the death penalty in Africa
5.1 Introduction
5.2 Prohibition of cruel, inhuman or degrading treatment or punishment under the United Nations human rights system
5.2.1 The Universal Declaration of Human Rights
5.2.2 The International Covenant on Civil and Political Rights
5.2.3 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
5.2.4 Other United Nations standards
5.3 Prohibition of cruel, inhuman or degrading treatment or punishment in the African human rights system
5.3.1 The African Charter on Human and Peoples’ Rights
5.3.2 The African Commission on Human and Peoples’ Rights
5.4 Prohibition of cruel, inhuman or degrading treatment or punishment in African national constitutions
5.5 The death row phenomenon
5.5.1 Main elements of the death row phenomenon
5.5.1.1 Prolonged delay
5.5.1.2 Conditions on death row
5.5.2 Jurisprudence the United Nations Human Rights Committee
5.5.3 Comparative jurisprudence: The European Court of Human Rights
5.5.4 Jurisprudence of African national courts
5.5.4.1 The Supreme Court of Zimbabwe
5.5.4.2 The Constitutional Court of South Africa
5.5.5 Jurisprudence of other national courts and their relevance to Africa
5.5.5.1 The Judicial Committee of the Privy Council
5.5.5.2 The Supreme Court of India
5.5.5.3 The position in the United States of America
5.6 Methods of execution as cruel and inhuman
5.6.1 The United Nations Human Rights Committee
5.6.2 The High Court and Court of Appeal of Tanzania
5.6.3 The Supreme Court of the United States of America
5.7 Conclusion
Chapter 6: Fair trial rights and their relation to the death penalty in Africa
6.1 Introduction
6.2 Fair trial rights under the United Nations human rights system
6.2.1 The Universal Declaration of Human Rights
6.2.2 The International Covenant on Civil and Political Rights
6.2.3 Other United Nations fair trial standards
6.2.4 The United Nations Human Rights Committee
6.3 Fair trials rights in the African human rights system
6.3.1 The African Charter on Human and Peoples’ Rights
6.3.2 The African Commission on Human and Peoples’ Rights .
6.4 Fair trial rights in African national constitutions
6.5 Respect for fair trial rights in capital trials in Africa
6.5.1 The right to be tried within reasonable time
6.5.2 The right to be presumed innocent until proven guilty by a court of law
6.5.3 The right of an accused to have adequate time for the preparation of his or her defence
6.5.4 The right to a fair hearing by an independent and impartial court established by law
6.5.5 The right to be present at the trial
6.5.6 The right to legal assistance and proper defence
6.5.7 The right to appeal to a higher judicial body
6.5.8 The right to seek pardon or commutation
6.6 Consequences of failure to respect fair trial rights in capital trials in Africa
6.6.1 Discriminatory and disproportionate use
6.6.2 Arbitrary application of the death penalty
6.6.3 Risk of executing the innocent increases
6.6.4 Using the death penalty as a tool of political repression
6.7 Conclusion
Chapter 7: Conclusion and recommendations
7.1 Introduction
7.2 The abolition movement
7.3 International abolition trends
7.3.1 Abolition trends in the United Nations human rights system
7.3.1.1 United Nations human rights instruments
7.3.1.2 United Nations resolutions
7.3.1.3 United Nations sponsored tribunals
7.3.2 Abolition trends in the African human rights system
7.3.2.1 African human rights instruments
7.3.2.2 African Commission on Human and Peoples’ Rights policies
7.3.2.3 Commutation of death sentences and other recent developments
7.3.3 Abolition trends in the European human rights system
7.3.4 Abolition trends in the Inter-American human rights system
7.4 Conclusion
7.5 Recommendations
7.5.1 Recommendation to the African Union
7.5.2 Recommendations to the African Commission on Human and Peoples’ Rights
7.5.3 Recommendations to African governments (comprising the executive, judiciary and legislature)
7.5.4 Recommendations to civil society (including Non-Governmental Organisations)
Bibliography