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23 Afr. J. Int'l & Comp. L. 1 (2015)

handle is hein.journals/afjincol23 and id is 1 raw text is: EMERGING AFRICAN JURISPRUDENCE SUGGESTING THE DESIRABILITY OF THE ABOLITION OF CAPITAL PUNISHMENT C. ANYANGWE * I. INTRODUCTION The death penalty has for thousands of years been the most dreaded1 and probably the most misused2 form of punishment ever. It continues to raise moral and religious issues as well as issues that impinge on law enforcement and the administration of criminal justice. It is thus not only a subject of continuing controversy but also one of continuing research interest. The right to life is the primary right that conditions all others and thus has supreme value because without life, all human rights are superfluous. Unfortunately, although several international treaties outlaw capital punishment neither the International Bill of Rights nor the African Charter on Human and Peoples' Rights explicitly does so. However, the Bill narrowly circumscribes the scope of capital offences and stringently regulates the application of the death penalty thereby strongly suggesting that abolition of that penalty is desirable. After some initial hesitation, there is now developing jurisprudence by the African Commission and a number of African Municipal Courts strongly suggesting that abolition of that penalty is desirable. While this paper briefly recalls the pros and cons of the death penalty, its focus is on the emerging abolitionist jurisprudence in Africa. The death penalty is still very much alive in Africa, a continent burdened with religious, cultural, historical and legal diversities. Many factors account for its retention by the majority of African countries. The penalty is generally seen as an 'appropriate tool' in the 'war' against serious crimes even though there is no compelling and conclusive evidence to that effect. In some countries, the penalty is said to be warranted by religious injunctions or by the necessity to ensure political and social stability. Public opinion in Africa mistakenly tends to see the death • Professor of Laws and Executive Dean, Faculty of Business, Management Sciences and Law, Walter Sisulu University, Republic of South Africa. 1 W. Andrews, Old Time Punishment, Dorset Press (1991); M. Monestier, Peines de Mort. Histoires et Technique des Execution Capitales des Origines a Nos Jours, Le Cherche Midi (1994). 2 L. Chenwi, Towards the Abolition of the Death Penalty in Africa: A Human Rights Perspective, Pretoria University Press (2007). African Journal of International and Comparative Law 23.1 (2015): 1-28 Edinburgh University Press DOI: 10.3366/ajicl.2015.0108 © Edinburgh University Press www.euppublishing.com/journallajicl

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