During the Second Regional Conference on the death penalty organised in April 2010 in Cotonou, Benin, by the African Commission on Human and People’s Rights (hereafter referred to as the Commission), States expressed the need to draft an additional protocol on the death penalty to the African Charter on Human and People’s Rights³², (hereafter referred to as the African Charter).
One of the recommendations of this Conference was to propose the drafting of a Protocol to the African Charter on Human and Peoples’ Rights on abolition of the Death Penalty in Africa, to fill in the gaps and expand the provisions enshrined in the Second Optional Protocol to the International Covenant on Civil and Political Rights, and place stronger emphasis on restorative rather than retributive justice.”³³.
Article 66 of the African Charter provides for special protocols or agreements, if necessary to supplement the provisions of the aforementioned Charter³⁴. The Protocol was drafted by the Working Group on the Death Penalty in Africa of the African Commission on Human and People’s Rights³⁵ and presented at the 56th Ordinary Session of the Commission. The latter adopted the draft Protocol in May 2015³⁶. The text is now before the African Union for adoption.

The process, although already making progress, therefore finds itself at a crucial stage.
More than ever, the abolitionist movement and African civil societies have an important role to play at several stages in order to accelerate:
• Adoption of this draft by the African Union³⁷;
• Ratification of/accession to the Protocol by at least 15 Member States of the African Union in order to allow for its entry into force³⁸;
• And then its ratification/accession by all the other Member States of the African Union which have not yet abolished the death penalty.

But what exactly would be the added value of a new instrument? Maya Sahli Fadel, Commissioner at the Commission and member of its Working Group on the Death Penalty in Africa gives us her answer³⁹.

Can you tell us more about the Working Group on the Death Penalty in Africa?
This group was created in 2007. Its first task was to initiate a study into the death penalty in Africa, research which will be updated soon. All regions were assessed and the study contained proposals and recommendations. Among the recommendations was the idea of moving towards drafting an African protocol, supplementary to the African Charter but specifically dedicated to abolition of the death penalty. It was felt that there was already a movement towards abolition and we wanted to reinforce that. The question had been asked as to what format this initiative should take: guiding principle, general observation, guide? In the end, the Working Group decided to create a legally-binding instrument, an additional protocol.

So, all the States which sign this protocol must abolish the death penalty?
Yes. Those which have already abolished it, and there are 19 of them⁴⁰, will already be State parties automatically. However, often the problem is that some of them have abolished the death penalty but have not yet begun procedures to revise the criminal code and, in particular, the constitution, both of which provided for the death penalty. This Protocol will be legally-binding for all those who accede to it or ratify it. The States which ratify it and which still have a moratorium in place must therefore continue their efforts; they must make the move towards definitive abolition by revising internal texts. International work will follow; that is the second phase. As for retentionist States, if they integrate the Protocol, as a minimum they will be asked to apply a moratorium before finalising all the procedures to integrate the Protocol. This is therefore the first legally-binding instrument on this issue for African States.

What is the added value of this Protocol compared to the Second Optional Protocol to the International Covenant on Civil and Political Rights which seeks to abolish the death penalty⁴¹?
For several years now, there has been a trend in Africa to develop its own instruments. This Protocol is part of this trend to develop the law of the African Union, particularly as regards conventional instruments. Although a universal instrument already exists, the African one is supplementary and takes into account African specificities. The African Charter on the Rights and Welfare of the Child, for example, goes above and beyond what had already been done. There are specificities relating to African children.

What are the obstacles to abolition which, in your opinion, are inherent to the African continent?
First of all, there are all the obstacles which I would put under the umbrella of security. There are still a number of conflicts and crises with some regions affected much more than others, particularly in Central Africa. At the moment, there is a crisis in Burundi and the DRC. Certainly, for these States abolition of the death penalty is not yet a priority. Stability and peace must be ensured first. Respect for human rights must go hand in hand with this process but unfortunately there are priorities in respect for human rights. In my opinion, the first right where intervention is necessary is respect for the right to life. These crises have a direct impact on this right which makes the situation very difficult. On the other hand, in areas which enjoy stability some States remain reticent to abolition for religious, cultural or socio-cultural reasons and sometimes also the ignorance of the population. It is necessary to access these populations to explain and interpret the information in detail. To do this, it is essential to have go-betweens on the ground, channels through which messages can be passed (NGOs, the media, etc.), because the State can’t do everything. Indeed, States often offload their responsibility by saying “we agree, we want to abolish it but public opinion is resistant…” but, in the meantime, these same States do nothing to open up public opinion and begin work to explain, educate, mobilise and raise awareness. As this pitfall, this gap, exists at State level, other partners are required to do the work in their place. That is where civil society comes into play in all its various categories: NGOs, bar associations, professional bodies, etc. - any organisation which can give the population very straightforward explanations.

Do you think that Africa will be the next continent to abolish the death penalty?
I think that’s optimistic but why not? That kind of optimism is behind the work of the African Commission. We have good support from those I call the champion States such as Benin, Côte d’Ivoire and Senegal, and we are counting on a snowball effect […]. At the Cotonou conference in 2014, the justice ministers put it very well in the declaration: “We are assisting the African Commission in the process to draw up a draft protocol”. So, they are ready as abolitionists to carry out this work with their peers from other countries which currently have a moratorium in place. That is already a very important step. Of course, there are retentionists where work needs to be done as regards the approach but I remain optimistic. If we manage to raise awareness on the ground, involving all the parties (parliamentarians, magistrates, universities, etc.), we will see results.