The Abolition of the Mandatory Death Penalty in Africa: A Comparative Constitutional Law 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. The article discusses Malaysia and Singapore as ‘the holdouts’ from page 275 onwards.