How African countries can turn away from the death penalty

Thirty of Africa’s 54 countries have not abolished the death penalty. Photo: Matthew Lee High (via Flickr) (CC BY-NC 2.0)

This is the first of a monthly series by People’s Law, a five-month programme that trains community-based paralegals in Cape Town. This month’s article is on the abolition of the death penalty in South Africa and progress towards abolition on the rest of the continent.

2025 marks 30 years since the Constitutional Court handed down the S v Makwanyane judgment that abolished the death penalty in South Africa. At the time, South Africa was only the 10th country in Africa to abolish capital punishment.

Under apartheid, between 1960 and 1989, the government executed nearly 3,000 people. The 80s were by far the most violent period, with over 1,100 executions over just ten years. This exceeded some of the most authoritarian governments of the time, like Iran and China.

With the fall of apartheid and a new Constitution, the question of the death penalty’s legality was inevitable. The initial framers of the Constitution were silent on the matter, so it fell to the Constitutional Court. On 6 June 1995, Justice Chaskalson gave the unanimous decision that the death penalty was inconsistent with the new Constitution. In particular, they highlighted that the death penalty was a “cruel, inhuman and degrading punishment”.

Despite the breakthrough for human rights, the decision was not widely popular. One study found that nearly half of those interviewed believed the death penalty should be applied more frequently. Only 15% believed it should be abolished.

South Africa’s move to abolish the death penalty relied on two key features: a Constitution based on human rights, and incremental but significant change toward abolition. Before the 1995 ruling, FW de Klerk had issued a moratorium on the death penalty. Although people were still being sentenced to death, the government had not carried out an execution since 1989. This approach can also be seen in other abolitionist countries.

Zimbabwe

On new year’s eve 2024, Zimbabwean president Emmerson Mnangagwa signed the Death Penalty Abolition Act into law.

The death penalty was a particular issue for Mnangagwa. On multiple occasions, he voiced his distaste for it before passing the law.

Mnangagwa was once sentenced to death during the fight for independence from British colonial rule. He only survived by lying about his age.

Like South Africa, Zimbabwe had not executed anyone for years before the death penalty was outright abolished. This made it one of the many countries that Amnesty International classifies as “abolitionist in practice.” The last execution in Zimbabwe was carried out in 2005.

However, complete abolition remains an important step. For one, it places international pressure on other countries that both retain and utilise the death penalty. Secondly, prisoners on death row, even if they will not be executed, tend to have limited rights. When Mnangagwa passed the Death Penalty Abolition Act, there were around 60 people on death row, all of whom had to be resentenced.

Kenya

Kenya is another one of the many African countries on the cusp of abolition. Capital punishment is still legal in Kenya and hundreds of people are sentenced to death each year. But, like Zimbabwe, it has been years since the last execution in 1987.

Prisoners on death row have limited rights while incarcerated. They are separated from the rest of the prison population, prevented from working, and restricted from educational and rehabilitative programmes.

Following a similar path as South Africa and Zimbabwe, Kenya has taken important steps toward abolition in recent years. In 2017, the Supreme Court ruled that the automatic death penalty for those convicted of serious crimes was inconsistent with the constitution. This allowed judges to consider alternatives when sentencing people convicted of murder, aggravated assault, or robbery with a weapon.

In 2023, Kenyan President William Ruto commuted the sentence of 600 people inmates who had been sentenced to death. Most recently, the Kenyan Parliament established a task force comprising law enforcement, parliamentarians, lawyers, and human rights experts to review the effectiveness, legality, and future of the death penalty.

Continued pressure from human rights groups, both internally and internationally, and a constitution based on human rights and dignity have moved Kenya closer to abolition.

Generally, African countries are moving toward abolition. But there is concern from human rights groups that countries that still actively utilise the death penalty are executing more prisoners than ever. In 2023, Amnesty International recorded 1,163 executions, representing a nearly 30% increase over the previous year (not including countries like China, North Korea, and Vietnam, whose numbers are unknown). In sub-Saharan Africa, executions tripled over the same time, all of
which took place in Somalia (an increase from 11 executions in 2022 to 38 in 2023).

Botswana also carries out about one execution per year. In 2001, this caused an international incident when it secretly hanged a South African immigrant, Mariette Bosch. However, the newly-elected president Duma Boko has voiced his displeasure at the practice, and has announced plans for criminal justice reform.

Calls to reinstate the death penalty are also rising, both locally and abroad. It is crucial, at this junction, that rights groups and parliamentarians maintain pressure to do away with the death penalty and move toward a criminal justice system based on human rights, dignity, and rehabilitation.

Support independent journalism
Donate using Payfast