Africa's glimpse at a global transformation on death penalty

For the first time, the death penalty became illegal in more than half the world in 2015. That shift comes in large part due to changes in sub-Saharan Africa.

There was little global fanfare last year when two small African states – Madagascar and Congo Brazzaville – announced that they had outlawed the death penalty.

On the surface, the legal change in both countries appeared little more than cosmetic – neither had carried out an execution in more than 30 years, a far cry from from places like China, Iran, Saudi Arabia, or Pakistan that execute hundreds of criminals every year. But beneath the global radar, Madagascar and Congo had helped put a thumb on the scales of history.

In 2015, for the first time ever, the death penalty was illegal in more than half the world’s countries, according to a report released today by Amnesty International. In addition to the two African countries, the states that tipped the balance were Fiji, Suriname, and Mongolia. They are all part of a dramatic global shift away from capital punishment over the last two decades, which has seen the number of states where the practice is entirely illegal nearly double, from 60 to 102.

And perhaps in no region has this transformation been more significant than sub-Saharan Africa, where abolishing the death penalty has been part of a broader movement in many countries to close the door on colonial-era laws – including those criminalizing everything from homelessness to homosexuality – developed for a world order that no longer exists.

“The death penalty in Africa is overwhelmingly a product of colonialism,” says Andrew Novak, an adjunct professor of criminology, law, and society at George Mason University in Virginia and author of a forthcoming book on the death penalty in Africa. “Colonial powers used executions to showcase state power and put the fear of god in their subjects. It was a tool to make people comply with the law by terrifying them.”

Brutality of colonial history

That dark history has warped the continent’s contemporary views on capital punishment, Mr. Novak says, though not always in straightforward ways.

In some countries, like South Africa, Namibia, Zimbabwe, and Kenya, the brutality of colonial executions – particularly those carried out against the countries’ freedom fighters – led to a dramatic reduction or outright abolition of the practice after independence. South Africa, which in the waning days of apartheid executed more people annually than any other country, abolished the practice formally in a unanimous court decision in 1995, echoing back to the country’s apartheid-era justice system when it argued that “retribution cannot be accorded the same weight under our Constitution as the right to life and dignity.”

Other countries, however, learned a more sinister lesson from their colonial experience: capital punishment works as a tool to intimidate your population into submission. In the past year, four countries in Africa – Somalia, Chad, South Sudan, and Sudan – carried out at least 43 executions according to Amnesty, though the organization believes the true figure in some of those countries may be considerably higher.

“What the African countries who executed people in 2015 all have in common is a history of systematic violation of human rights” more broadly, says Netsanet Belay, Amnesty International’s Africa director for research and advocacy. “They are all places known for grossly unfair trials and the suppression of basic rights.”

Across the continent, 443 new death sentences were imposed in 2015, down from 909 in 2014. But most of those criminals will likely never be executed, says Novak, since many have paradoxically been sentenced to death in countries that never or almost never carry out the practice.

Kenya, for instance, has one of the largest death rows in the world, owing to laws that make a sentence of death mandatory for both murder and armed robbery. But the country’s last execution – for coup-plotting – was carried out nearly 30 years ago.

And while both Zimbabwe and Swaziland technically allow the death penalty, each has struggled in recent years with an unusual staffing problem – they can’t find a qualified hangman.

A broken system

Still, “one shouldn’t overlook the people trapped in a broken system,” says Thomas Probert, a senior research with the unlawful killings unit at the University of Pretoria’s Centre for Human Rights. “There are likely thousands of people on death row across the continent for whom the fact that their government hasn’t executed anyone for 10 years is only a small consolation.”

Even in African countries where the death penalty is rare or de facto prohibited, activists say it can continue to haunt the legal system, draining disproportionate resources from already over-burdened courts and prisons.

But in countries saddled with a wide spectrum of human rights concerns – including, in many cases, extrajudicial killings by police, militaries, and armed groups – formally abolishing the death penalty is often low on national priority lists. Just 18 of Africa’s 54 countries have outlawed the practice completely, although Amnesty considers another 16 to have “de facto” done away with capital punishment.

But advocates for full abolition say these de facto moratoriums on execution can be fragile, particularly when regimes change or wars are waged. Chad, for instance, had not carried out an execution in more than a decade when it executed 10 suspected members of the terror cell Boko Haram last year for carrying out an attack that killed 38 people in the city of N’Djamena in June.

Still, Africa is doing considerably better than its northerly neighbors. In 2015, nearly 90 percent of all executions recorded by Amnesty (which crucially leaves out China, where execution figures are a state secret) occurred in just three countries – Iran, Pakistan, and Saudi Arabia. Globally, the organization notes, executions were up 54 percent in 2015 over the previous year, from 1,061 people globally to 1,634.

But focusing on those figures obscure the march of progress seen in Africa and elsewhere, Mr. Probert says.

“Advocacy around the death penalty for very obvious reasons tends to focus on the really intransigent, retentionist states … that execute scores if not hundreds of people per year,” he says. “But behind those headlines is a less-often-told story about the remarkable decline of the practice of the death penalty in the rest of the world over the last 50 years. Those states that still have the death penalty on their books – in Africa and elsewhere – are behind the curve of history.”