The Abolition of the Mandatory Death Penalty in Africa: A Comparative Constitutional Analysis

The mandatory death penalty for the crime of murder is in rapid retreat worldwide. Originally diffused to the common law countries of the Caribbean, Africa, and South and Southeast Asia by way of the British Empire, the penalty has been found unconstitutional and incompatible with human rights norms in at least ten Caribbean nations since the year 2000. A new wave of litigation has appeared in the postcolonial common law nations of East and Southern Africa, and courts in Malawi, Uganda, and now Kenya have found an automatic sentence of death unconstitutional and have replaced mandatory schemes with discretionary ones that allow consideration of mitigating factors in the capital sentencing process.1 The resulting criminal justice regimes operate in closer conformity with international human rights norms and explicitly adopt these norms in their domestic legal systems. This harmonization of death penalty regimes across borders is no accident: it was the deliberate intention of a small network of international antideath penalty advocates to create a body of transnational jurisprudence from which to draw in bringing incremental challenges in national courts.2 By initially petitioning the United Nations Human Rights Committee and the InterAmerican Human Rights System to find the mandatory death penalty incompatible with human rights treaty obligations, this core of advocates succeeded in developing a corpus of persuasive reasoning on which they could