Capital punishment in precolonial Africa: the authenticity challenge

ABSTRACT

The modern debate over death penalty abolition in Sub-Saharan Africa frequently references the precolonial period. Has the death penalty truly existed since time immemorial, or is it largely a European imposition? The extent to which precolonial societies used capital punishment is difficult to discern, as many of the anthropological and legal sources that document this period were influenced by colonialism. These sources nonetheless show that the use of capital punishment in the precolonial period was tied to notions of political authority and the spirit world, though legal procedures and even methods of execution varied enormously among societies. This article considers the reliability problems of the extant sources and attempts to make tentative conclusions as to the existence of the death penalty prior to the onset of European rule, bearing in mind that these conclusions are not exhaustive or even necessarily representative of the continent's diversity.

KEYWORDS:

• Africa
• death penalty
• criminal justice
• customary law
• precolonial law

Acknowledgement

I would like to thank Lill Sherdin and Stacey Hynd for helpful comments on my initial idea for this article, and to Justice Aime Karimunda for sending me a helpful source. This article is loosely based on a paper presented to the North-South Criminology Conference at Maynooth University, Ireland, in June 2016.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. At least seventeen countries have abolished capital punishment altogether: Angola (1992), Benin (2012), Burundi (2009), Cape Verde (1981), Cote d'Ivoire (2000), Djibouti (1995), Gabon (2010), Guinea-Bissau (1993), Mauritius (1987), Mozambique (1990), Namibia (1990), Rwanda (2007), Sao Tome e Principe (1990), Senegal (2004), Seychelles (1993), South Africa (1995), and Togo (2009). Another twenty-six have not carried out executions in the past ten years (date of last execution in parentheses): Algeria (1993), Burkina Faso (1989), Cameroon (1997), Central African Republic (1981), Comoros (1997), Republic of Congo (1982), Democratic Republic of the Congo (2003), Eritrea (1982), Ghana (1993), Guinea (2001), Kenya (1987), Liberia (2000), Lesotho (1995), Madagascar (1958), Malawi (1992), Mali (1979), Mauritania (1989), Morocco (1993), Niger (1976), Sierra Leone (1998), Swaziland (1989), Tanzania (1994), Tunisia (1981), Uganda (2006), Zambia (1997), and Zimbabwe (2005). Equatorial Guinea has announced an official moratorium even though it carried out executions more recently than ten years ago. This leaves ten countries that are officially retentionist: Botswana, Chad (for terrorism), Egypt, Ethiopia, The Gambia, Libya, Nigeria, Somalia, South Sudan, and Sudan (Novak 2016, 16–17).

2. If Libya, Egypt, Sudan, and Somalia are excluded, the only executions in Sub-Saharan Africa in 2016 were in Botswana (1) and Nigeria (4). In 2015, the only executions in Sub-Saharan Africa were in Chad (10), for terrorism. Amnesty International, “The Death Penalty in 2016: Facts and Figures,” 11 April 2017, https://www.amnesty.org/en/latest/news/2017/04/death-penalty-2016-facts-and-figures.

3. State v. Makwanyane, 1995 (3) S.A. 391 (C.C.) at 381 (Sachs, J., concurring).

4. Furthermore, the impulse to codify local custom was not universal. Shadle (1999, 411–412) explains how Kenyan colonial administrators resisted attempts to codify customary law, preferring to protect the discretion of district officers. A fluid, unwritten law provided colonial administrators greater latitude to shape society. This allowed Africans to control their own legal knowledge to some degree, especially in intra-African disputes.

5. In addition, the colonial-era sources themselves are ambiguous. Early anthropologists and ethnologists used male pronouns to describe offenders without explanation as to the role gender played in punishment. Some societies may have treated men and women identically for purposes of administering punishment, but this assumption is by no means universal.

6. Colonialism encountered “various mixtures of rudimentary democratic institutions and despotisms.” Even among centralized polities, these ranged from strong absolutism to moderate aristocracy (Simiyu 1995, 51, 55).

7. Kenya Criminal Procedure Code, sec. 175 (2009).

8. Anna Chibamu, “Zimbabwe: Traditional Leaders Call for Abolition of the Death Penalty,” 19 January 2016, NewZimbabwe.com (retrieved from AllAfrica.com).

9. “Zimbabwe: Death Penalty—PDP Slams Mnangagwa's Double Speak,” 24 February 2016, NewZimbabwe.com, available at: http://allafrica.com/stories/201602250248.html.

10. Kgafela (In re: Gabaokelwe) v. Attorney General, Crim. App. No. CLCGB-027-12 (27 April 2012).

11. Working Group on the Death Penalty in Africa, Study on the Question of the Death Penalty in Africa (2011), available at: http://www.achpr.org/files/news/2012/04/d46/study_question_deathpenalty_africa_2012_eng.pdf

12. Anti-Homosexuality Bill, No. 18 of 2009, Uganda Gazette No. 47, 25 September 2009.

13. This is not to say that the precolonial existence of capital punishment is necessarily the only explanation for this difference. Colonial Zimbabwe (Rhodesia) had a long and prolific misuse of capital punishment against political opponents. The death penalty was not subject to the same level of misuse in colonial Bechuanaland (Novak 2016).