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KILLING THE CONDEMNED: THE PRACTICE AND PROCESS OF CAPITAL PUNISHMENT IN BRITISH AFRICA, 1900–1950s

  • STACEY HYND (a1)
Abstract
ABSTRACT

Capital punishment in British colonial Africa was not just a method of crime control or individual punishment, but an integral aspect of colonial networks of power and violence. The treatment of condemned criminals and the rituals of execution which brought their lives to an end illustrate the tensions within colonialism surrounding the relationship between these states and their subjects, and with their metropolitan overlords. The state may have had the legal right to kill its subjects, but this right and the manner in which it was enacted were contested. This article explores the interactions between various actors in this penal ‘theatre of death’, looking at the motivations behind changing uses of the death penalty, the treatment of the condemned convicts whilst they awaited death, and the performance of a hanging itself to show how British colonial governments in Africa attempted to create and manage the deaths of their condemned subjects.

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References
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1 C. Clifton Roberts, Tangled Justice: Some Reasons for a Policy of Change in Africa (London, 1937), 88.

2 See Florence Bernault, ‘De l'Afrique ouverte à l'Afrique fermée: comprendre l'histoire des réclusions continentales’, in Florence Bernault (ed.), Enfermement, prison et châtiments en Afrique: du 19e siècle à nos jours (Paris, 1999), 40–1.

3 See Michel Foucault, Surveiller et punir: naissance de la prison (Paris, 1975); Foucault, Security, Territory and Population: Lectures at the Collège de France, 1977–78, ed. M. Senellart, trans. G. Burchell (London, 2007).

4 These territories were South Africa, the High Commission Territories, Rhodesia, Nyasaland and Kenya. A mandatory death sentence was on the statute books for instigating foreign invasion, waging war against the sovereign, arson at royal dockyards and piracy, but these regulations seem to have been used rarely, if ever. Most territories also exempted pregnant women and youths under the age of 18 from the death penalty under their penal codes.

5 The major exceptions to this were during the Chilembwe Uprising in Malawi, 1914–15, when 36 men were executed for a combination of murder and high treason, and Mau Mau in Kenya, 1952–60, when some 1,090 men were executed for Emergency offences. National Archives of Malawi (NAM), S1/496/19 (Sir George Smith, ‘The empire at war: Nyasaland’, 8); David M. Anderson, Histories of the Hanged: Britain's Dirty War in Kenya and the End of Empire (London, 2005).

6 See Michel Foucault, Society Must be Defended – Lectures at the Collège de France, 1975–76, ed. M. Bertani and A. Fontana, trans. D. Macey (London, 2003), 254–7.

7 Stacey Hynd, ‘Imperial gallows: capital punishment, violence and colonial rule in British colonial Africa, c. 1908–68’ (unpublished D.Phil., Oxford, 2007). This is a rate comparable with England and Wales during 1900–47, where roughly half of condemned convicts were granted mercy. See Peter Wilson, Twentieth-Century Hangings (London, 2002).

8 The exception to this was South Africa, where, between 192 and 1964, a higher percentage of Europeans were executed than of Blacks. See Robert Turrell, White Mercy: The Death Penalty in South Africa, 1900–48 (Westport, 2005), 262. Convicted Indian/Asian prisoners, however, also experienced high rates of execution in Kenya and South Africa, and more research is needed into the reasons behind this. See Turrell, White Mercy, 263; Kenya National Archives (KNA), MLA/1 series; AG/52/238 (HC CC77/19 Sajaad Hussein); AG/52/428 (SC 118/38 Mohamed Shah); Kenya Colony, Blue Books (Nairobi, yearly), capital sentencing returns.

9 Hynd, ‘Imperial gallows’.

10 Nigeria not only had a greater population, it also had a different system of law: in Northern Nigeria, the emir's courts were the only Native Authorities (aside from in Buganda before 1917) to retain capital sentencing powers in their own courts. See David Killingray, ‘Punishment to fit the crime? Penal policy and practice in British colonial Africa’, in Bernault (ed.), Enfermement, prison et châtiments, 198–201; Alan Milner, The Nigerian Penal System (London, 1972), 333.

11 NAM, J5 and S1 series, Annual Returns from Judicial and Prison departments.

12 KNA, MLA/1 and AG series, Annual Returns from Judicial and Prison departments.

13 For a wider discussion of colonial coercive capabilities, see Killingray David, ‘The maintenance of law and order in British colonial Africa’, African Affairs, 80 (1986), 411–37.

14 Deutsch Jan-Georg, ‘Celebrating power in everyday life: the administration of the law and the public sphere in colonial Tanzania, 1890–1914’, Journal of African Cultural Studies, 21 (2002), 95100.

15 See Henry Ward Price, Dark Subjects (London, 1939), 90–1; David Rooney, Sir Charles Arden-Clarke (London, 1982), 33–4; W. S. Blunt, Atrocities of Justice Under British Rule in Egypt (London, 1906), 32–57.

16 Killingray, ‘Punishment to fit the crime?’ 198–201. Firing squads, however, continued to be used on occasions when gallows were unable to be quickly transported to the location of an execution, as during the Chilembwe Uprising in Nyasaland in 1914, and in the Samburu district of Kenya in 1923. See Rhodes House Library, Oxford (RHL), MSS.Afr.s.487 (Martin Mahony, Barsaloi Diaries, 21 June 1922); The National Archives of the United Kingdom (NA), CO 533/295 (Kenya 1923 Despatches); NAM, S1/496/19 (Smith, ‘The empire at war: Nyasaland’, 8).

17 Ward Price, Dark Subjects, 90–1.

18 KNA, PC/COAST/1/10/7 (Public Executions 1912); NAM, S1/1832/19 (R v. Philemon).

19 Ward Price, Dark Subjects, 90–1.

20 Smith Philip, ‘Executing executions: aesthetics, identity and problematic narratives of capital punishment’, Theory & Society, 25 (1996), 254–6.

21 Rooney, Arden-Clarke, 34.

22 Norbert Elias, The Civilising Process: The History of Manners and State Formation and Transformation, trans. Edmund Jephcott (Oxford, 1994).

23 Rooney, Arden-Clarke, 34.

24 M. Osufsky, A. Bandura and P. Zimbardo, ‘The role of moral disengagement in the execution process’, Law & Human Behaviour, 29 (2005), 371–93.

25 NA, CO 323/1111/6 (‘Executions in the colonies: “Strangled for 14 minutes by law!: the horrors of hanging in Rhodesia”’, Sjambok, 26 Sept. 1930, anon. note).

26 See allocutus from KNA, MLA/1 series and NAM, J5 and S1.

27 ‘A prison officer's diary’, East African Standard, 23 June 1916, 16.

28 Ibid.

29 Smith, ‘Executing executions’, 236.

30 Ibid.

31 KNA, AP/1/526 (Capital Sentences, Judge Hamilton to Colonial Secretary, 29 May 1909). However, as similar circulars were still being issued in 1953 it seems that not all of the procedural details were followed; NA, CO 859/445 (Capital Punishment – Procedures and Equipment 1952–3, Circular 288/53). See the Gowers Commission for a discussion of British procedures. Great Britain, Royal Commission on Capital Punishment 1949–53: Report Presented to Parliament by Command of Her Majesty, September 1953, Cmd. 8932 (London, 1953), 247–56.

32 Clifton Roberts, Tangled Justice, 133. See NA, CO 536/172/14 (Public Executions – Uganda 1932).

33 RHL, MSS Brit.Emp.s.22 G 241 (Calabar Executions [Oron]1923); NA, CO 533/295 (Kenya 1923 Despatches).

34 NA, CO 323/1283/2 (‘Executions in public in the colonies’, The Times, 4 July 1943); NA, CO 533/421/4 (Disarmament of Frontier Tribes & Abyssinian Raids, Kenya, 1923–31); NA, CO 323/1862/13 (Legal – Privy Council Appeals 1943, Brigadier G. Fisher to Colonel Jameson, 20 Sept. 1943); Nigerian National Archives, 7/1/1421 (DO J. Allen to Resident, Calabar, 16 Jan. 1946). Many thanks to David Pratten for this infomation; see Pratten, The Leopard Man Murders: History and Society in Colonial Nigeria (Edinburgh, 2007)

35 NAM, S1/264/23 (R. v. Jim and Makoshonga).

36 KNA, DC/LDW/2/21/18 (Execution of Murderers, 1925); Government of the Gold Coast, Report of the Prison Department 1943–4 (Accra, 1944), 3; NAM, 11-15-1F 185.92 (Medson Evans Silombela v. Regina 1966).

37 KNA, DC/LDW/2/21/18 (Execution of Murderers).

38 Great Britain, Report of the Commission of Inquiry into the Administration of Justice in Kenya, Uganda and Tanganyika Territory in Criminal Matters, May 1933 [Bushe Commission] (London, 1934), 57–8; Alexander Paterson, Report on a Visit to the Prisons of Kenya, Uganda, Tanganyika, Zanzibar, Aden and Somaliland (Morija, 1944), 26; KNA, MLA/1/1368 (Criminal Case – Procedures in Death Sentences 1939–43). See John McGuire, ‘“Judicial violence and the civilising process”: race and the transition from public to private executions in colonial Australia’, Australian Historical Studies, 29 (1998), 186–209, for an analysis of ‘semi-private’ executions. Not all territories adopted this system; Nyasaland rejected it in 1940 as ‘contrary to all principles of decency and decorum’, despite having used the same system before 1924. NAM, 4-4-8R 2952 (Judge Thomas, 12 Feb. 1940).

39 Rooney, Arden-Clarke, 33–4. See the various reports by district commissioners on local attitudes to condemned criminals in KNA, MLA/1 series and NAM, PCC/1/16/1-2 (Confidential Reports on Persons Convicted of Murder and Sentenced to Death).

40 NAM, PCC/1/16/1-2 (R. v. Zakaria, R v. Jason and Wiskot, 1947).

41 Bushe Commission, 73–9, 210–15.

42 See Bernault (ed.), Enfermement, prison et châtiments; Alan Milner (ed.), African Penal Systems (London, 1969). Colonial prisons did not have officially designated ‘death rows’; the term is used here to refer to the general state of awaiting execution.

43 See Florence Bernault, ‘The shadow of rule: colonial power and modern punishment in Africa’, in F. Dikötter and I. Brown (eds.), Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America (Ithaca, 2007), for an overview of condition in colonial prisons; Branch Daniel, ‘Escaping the colonial archipelago: imprisonment and colonialism in Kenya, c. 1930–52’, International Journal of African Historical Studies, 38 (2005), 239–66.

44 NA, CO 859/442 (Capital Punishment: Treatment of Offenders).

45 See for example KNA, AG/16/290 (Prisoner's Record: Nairobi 1368/D, Mrs. Teja Singh Dillon).

46 NA, CO 859/445 (Capital Punishment – Execution Equipment and Procedures); KNA, AP/1/905 (Death Sentence – Correspondence).

47 Nyasaland Protectorate, Annual Report on the Administration of the Prisons Department during the Year 1947, 13.

48 Tanganyika Territory, Annual Report on the Administration of Prisons during the Year 1947, 14.

49 NA, CO 859/442 (Capital Punishment: Treatment of Offender, 1 Mar. 1952 John Wyatt to P. Rodgers).

50 See Anderson, Histories of the Hanged.

51 NA, CO 267/674/2 (Capital Sentences, Irregularities in Carrying Out, Sierra Leone, 5).

52 ‘A prison officer's diary’, 16.

53 NAM, S.1.1328.19 (Prison Regulations 1919–29); NA CO 533/462/9 (Death Sentences: Execution and Commutation).

54 Executions were supposed to occur within thirty days, at most, of the warrant being signed; the actual length of time varied between weeks and one day.

55 See Protectorate of Nigeria, Annual Report on the Administration of Prisons (1947–50); Tanganyika Territory, Annual Report on the Administration of Prisons (1941, 1946).

56 Paterson, Report on a Visit to the Prisons, 26.

57 See NAM, S.1.1328.19 (Prison Rules, 1919–29); KNA, MLA/1/1368 (Procedures in Death Sentences, 1939–43).

58 NAM, S.1.1328.19 (Prison Rules, 1919–29); KNA, MLA/1/1368 (Procedures in Death Sentences, 1939–43).

59 NAM, S.1.1328.19 (Prison Rules, 1919–29); KNA, MLA/1/1368 (Procedures in Death Sentences, 1939–43).

60 See James Mellet, If Any Man Dare (Dublin, 1963), 57, for one such attempt.

61 NA, CO 323/1346/16 (Death Sentences – ‘Justice?’, Law Times, 11 Nov. 1933). Although it was not specified where in Rhodesia the case occurred, colonial officers reading the case commented ‘probably Southern Rhodesia’.

62 See Paterson, Report on the Prisons, 25–7; NAM, 4-4-8R 2952 (Procedures to be Followed in Murder Cases, 1924–59, 55).

63 This notably changed during Mau Mau in Kenya, where, due to the high number of executions, many were held after dark in Nairobi Prison, with barely twenty minutes between hangings. KNA, DC/MRU/2/17/2 (Reports of Execution).

64 NA, CO 859/445 (Capital Punishment, Circular 288/53, Colonial Secretary to all Governors).

65 Paterson, Report on a Visit to the Prisons, 26.

66 David Garland, Punishment and Modern Society: A Study in Social Theory (Oxford, 1990), 236.

67 Ibid.

68 KNA, DC/MRU/2/17/2 (Reports of Execution).

69 NA, CO 323/1111/6 (‘Strangled for 14 minutes by law!’).

70 It was only after Colonial Office requests for specific causes of death to be recorded that certificates began listing ‘dislocation of vertebrae’ or ‘shock’ in hangings. See KNA, AP/1/905 (Death Sentence Correspondence, Circular from L. Amery, 30 Apr. 1929).

71 NA, CO 267/674/2 (Capital Sentences).

72 NA, CO 859/164/4 (Capital Punishment: UK Criminal Justice Bill 1948); NA, CO 859/985-90 (Capital Punishment, 1957–9); NA, CO 1032/512 (Capital Punishment for Political Offences in Peace Time 1966).

73 Turrell, White Mercy, 251.

74 See Strange Carolyn, ‘Penal undercurrents: punishment and the body in mid-twentieth century Canada’, Law & History Review, 19 (2001), 362.

75 Steven Pierce, ‘Punishment and the political body: flogging and colonialism in Northern Nigeria’, in S. Pierce and A. Rao (eds.), Discipline and the Other Body: Correction, Corporeality and Colonialism (London, 2006), 186–214.

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