Imperial Gallows: Murder, Violence and the Death Penalty in British Colonial Africa, c.1915-60 (Empire’s Other Histories) 1350302643, 9781350302648

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IMPERIAL GALLOWS

Empire’s Other Histories Series Editors: Victoria Haskins (University of Newcastle, Australia), Emily Manktelow (Royal Holloway, University of London, UK), Jonathan Saha (University of Durham, UK) and Fae Dussart (University of Sussex, UK) Editorial Board: Esme Cleall (University of Sheffield, UK), Swapna Banerjee (CUNY, USA), Lynette Russell (Monash, Australia), Tony Ballantyne (University of Otago, New Zealand), Samita Sen (Jadavpur University, India, and University of Cambridge, UK), Nurfadzilah Yahaya (National University of Singapore, Singapore), Onni Gust (University of Nottingham, UK), Martina Nguyen (CUNY, USA), Meleisa Ono-George, (University of Oxford, UK) Empire’s Other Histories is an innovative series devoted to the shared and diverse experiences of the marginalized, dispossessed and disenfranchized in modern imperial and colonial histories. It responds to an ever-growing academic and popular interest in the histories of those erased, dismissed or ignored in traditional historiographies of empire. It will elaborate on and analyse new questions of perspective, identity, agency, motilities, intersectionality and power relations. Published: Unhomely Empire: Whiteness and Belonging, c.1760–1830, Onni Gust Extreme Violence and the ‘British Way’: Colonial Warfare in Perak, Sierra Leone and Sudan, Michelle Gordon Unexpected Voices in Imperial Parliaments, edited by José María Portillo, Josep M. Fradera, Teresa Segura-Garcia The Making and Remaking of ‘Australasia’: Southern Circulations, edited by Tony Ballantyne Across Colonial Lines: Commodities, Networks and Empire Building, edited by Devyani Gupta and Purba Hossain Imperial Gallows: Murder, Violence and the Death Penalty in British Colonial Africa, c.1915–60, Stacey Hynd Forthcoming: Spiritual Colonialism in a Globalizing World, Christina Petterson Vagrant Lives in Colonial Australasia: Regulating Mobility and Movement 1840–1920, Catherine Coleborne Arctic Circles and Imperial Knowledge: The Franklin Family, Indigenous Intermediaries, and the Politics of Truth, Annaliese Jacobs Claydon

IMPERIAL GALLOWS

Murder, Violence and the Death Penalty in British Colonial Africa, c.1915–60

Stacey Hynd

BLOOMSBURY ACADEMIC Bloomsbury Publishing Plc 50 Bedford Square, London, WC1B 3DP, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland BLOOMSBURY, BLOOMSBURY ACADEMIC and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2024 Copyright © Stacey Hynd, 2024 Stacey Hynd has asserted her right under the Copyright, Designs and Patents Act, 1988, to be identified as Author of this work. For legal purposes the Acknowledgements on pp. vii–viii constitute an extension of this copyright page. Series design by Tjaša Krivec. Cover image: Mau Mau suspects at the Thompson Falls stockade in Kenya, 1953. The camp gallows can be seen in the background. Photo © Hulton-Deutsch Collection/CORBIS/Corbis via Getty Images. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Bloomsbury Publishing Plc does not have any control over, or responsibility for, any third-party websites referred to or in this book. All internet addresses given in this book were correct at the time of going to press. The author and publisher regret any inconvenience caused if addresses have changed or sites have ceased to exist, but can accept no responsibility for any such changes. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. ISBN: HB: 978-1-3503-0264-8 ePDF: 978-1-3503-0265-5 eBook: 978-1-3503-0266-2 Series: Empire’s Other Histories Typeset by Integra Software Services Pvt. Ltd. To find out more about our authors and books visit www.bloomsbury.com and sign up for our newsletters. Chapter 5 draws on Stacey Hynd, ‘“More an Inspiration than a Deterrent”? Capital Punishment and British Colonial Counter -Insurgency, c. 1916–73’. In Oxford Handbook of Late Colonial Insurgencies and Counter-Insurgencies, edited by Martin Thomas and Gareth Curless, 215–233. Oxford: Oxford University Press, 2023. Previous versions of sections of Chapter 7 appear in Stacey Hynd, ‘Killing the Condemned: The Practice and Process of Capital Punishment in British Colonial Africa, 1900–50s’, Journal of African History 49, no. 3 (2008): 403–18.

CONTENTS List of Illustrations vi Acknowledgementsvii Glossary and List of Abbreviations ix Introduction CAPITAL PUNISHMENT AND COLONIAL RULE: PUNISHMENT VIOLENCE AND ‘CIVILIZATION’ IN BRITISH AFRICA

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Chapter 1 ‘THE EXTREME PENALTY OF THE LAW’: LAW, COURTS AND COLONIAL CRIMINAL JUSTICE

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Chapter 2 THE ULTIMATE DETERRENT IN A COLONIAL CONTEXT? CAPITAL PUNISHMENT IN COLONIAL PENAL REGIMES

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Chapter 3 TO HANG OR NOT TO HANG? CAPITAL SENTENCING, CATEGORIES OF COLONIAL CRIMINALITY AND THE ROYAL PREROGATIVE OF MERCY

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Chapter 4 CULTURAL DEFENCE NARRATIVES, AFRICAN VOICES AND THE EMOTIONAL LANDSCAPES OF COLONIAL MERCY

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Chapter 5 AN EXCEPTIONAL PENALTY FOR EXCEPTIONAL CRIMES: INSURGENCY, COLONIAL VIOLENCE AND THE EXTENSION OF THE DEATH PENALTY

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Chapter 6 SHOCKING CRIMES AND SCANDALOUS PUNISHMENTS: IMPERIAL

POLITICS, HUMANITARIAN SENTIMENT AND THE DEATH PENALTY

167

Chapter 7 ‘IN A HUMANE AND DECOROUS MANNER’: RITUALS OF EXECUTION FROM PUBLIC HANGINGS TO DEATH ROW

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CONCLUSION: THE IMPERIAL GALLOWS AND COLONIAL RULE IN BRITISH AFRICA

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Bibliography232 Index251

ILLUSTRATIONS Figures Graph I Outcomes in Capital Cases in Nyasaland, 1903–57 Graph II Executions in Colonial Peno-Legal Reporting, 1920–60 Graph III Disposition of Capital Cases in the Gold Coast, 1925–65 Graph IV Disposition of Capital Cases in Nyasaland, 1903–47 Graph V Disposition of Capital Cases in Kenya, 1908–55 Graph VI Ascribed Motives in Capital Cases, Nyasaland, 1903–47

56 60 64 83 83 86

Tables Table I Comparative Data on Executions for 1930–55 58 Table II Capital Sentences and Executions in Emergency-Era Kenya, 1952–58158

ACKNOWLEDGEMENTS The research for this book was funded as part of a doctoral research project by the Arts and Humanities Research Council, with fieldwork also generously supported by the Beit Fund and the African Studies Centre at the University of Oxford and the College of Humanities at the University of Exeter. Research was conducted with the invaluable assistance and support of the staff at the Kenyan National Archives in Nairobi, the National Archives of Malawi in Zomba, the Public Records and Archives Administration Department of Ghana in Accra, the United Kingdom National Records and Archives in London, Rhodes House Library/Weston Library and the Bodleian Law Library in Oxford, and the University Library in Cambridge. A special thank you to the Zomba archive staff for the dance lessons. Between Migrated Archives, chronic illness and global pandemics, this book has taken much longer than anticipated to emerge. It would not have been completed without the help and support of my colleagues, mentors and friends from the Universities of Oxford, Cambridge and Exeter: I am extremely grateful for all their support. It is a great sadness to me that my DPhil supervisor Jan-Georg Deutsch never got to see this book published; his no-nonsense but always upbeat encouragement kept me going throughout my doctoral research. He also suggested the title and would have relished pointing out my grammatical errors. Many thanks for their constructive criticism, encouragement and intellectual inspiration are due to David Anderson, Jocelyn Alexander, David Pratten, Daniel Branch, Gabrielle Lynch, Leigh Gardner, Nicholas Cheeseman, Taylor Sherman, Ruth Watson, Meghan Vaughan, Derek Peterson, John Lonsdale, Emma Hunter, Martin Thomas, Justin Jones, Sarah Barker, Gajendra Singh, Richard Ward and Andrew Thompson. A particular thank you to the Nairobi National Archives staff, Michelle Osborne and Julie MacArthur for their kindness when I became ill during my research, and to Laura Abbott, Elizabeth Thornberry, Miranda Worthen and Joanna Craigwood for their care, friendship, sage advice and fabulous culinary skills. The collective support from the ‘Exeter Ladies of History’ and the Centre for Imperial and Global History has been utterly invaluable, but special thanks are owed to Beccy Williams, Nandini Chatterjee and Emily Bridger for their input. I also want to thank my PhD students Gareth Curless, Elizabeth Laruni, Temilola Alanamu, Rhian Keyse, Charlotte Kelsted, Stuart Mole, Bethany Rebisz, Diana Valencia Duarte, Chessie Baldwin, Shibani Das, Yuan Wang, Liang Wan, Marlen von Reith and Melike Batgiray Abboud: working with and learning from you gave me new insights and has made me a better scholar. I have also been extremely privileged to benefit from the feedback, advice and support from a global network of researchers on African, imperial and legal histories. This book owes an intellectual debt to a number of fantastic and generous

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scholars, but I want to particularly thank Florence Bernault, Clare Anderson, Richard Waller, Carolyn Strange, Pieter Spierenburg, Peter King, Michael Lobban, Katherine Bruce-Lockhart, Erin Braatz, Ruth Ginio, Dior Konaté, Elizabeth Thornberry, Richard Roberts, Benjamin Lawrence, Christian de Vito, Saheed Aderinto, Luise White, Tom McCaskie, John McCracken, John Parker, Shane Doyle, David Killingray, Marie Rodet, Shaunnagh Dorsett, John McClaren, Richard Ward, Will Jackson, Emily Manktelow, Raquel Sirotti, Nana Osei Quarshie, Benoît Henriet, Lizzie Seal and Alexa Neale for sharing their knowledge, and Brett Shadle for also sharing his sources. April Jackson was a wonderfully efficient and effective proofreader, and Thaïs Gendry has been a terrific co-author and intellectual collaborator. I am very grateful to my reviewers and editors for their astute and insightful feedback. Above all else, I owe this book to the support of my family, my friends, my ever-amusing and ever-present cats and my partner, Adam Watt. Without you all, I would not have had the confidence and strength to finish this project.

GLOSSARY AND LIST OF ABBREVIATIONS KNA NAM PRAAD TNA WL

Kenyan National Archives, Nairobi National Archives of Malawi, Zomba Public Records and Archives Department, Accra National Archives, London Weston Library, Oxford

ASAPS Anti-Slavery and Aboriginals Protection Society BHC British High Commission DC District Commissioner CO Colonial Office CRO Commonwealth Relations Office DO Dominions and Commonwealth Relations Office EOKA National Organization of Cypriot Fighters KLFA Kenya Land and Freedom Army, also known as Mau Mau MP Member of Parliament NFD Northern Frontier District, Kenya OIC Officer-in-Charge PC Provincial Commissioner UDI Unilateral Declaration of Independence, Rhodesia ZANU Zimbabwean African National Union ZAPU Zimbabwean African People’s Union All E.R. EACA E.A.C.A. E.A.L.R LRK W.A.C.A HC JCPC SC SDC R.N.C.A. CA CC CPC IPC s/o w/o

All England Reports East African Court of Appeal East African Court of Appeal Reports Eastern African Law Reports Law Review of Kenya West African Court of Appeal Reports High Court Judicial Committee of the Privy Council Supreme Court Special District Court, Kenya Rhodesia and Nyasaland Court of Appeal Reports Criminal Appeal Case Criminal Case Criminal Procedure Code Indian Penal Code son of wife of

Afenfie

Sacred chamber

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Glossary and List of Abbreviations

Akpeteshie Ankhose Asantehene Baraza Ekwi ju-ju Epun

Spirit distilled from palm wine or sugar cane Marriage guarantors/Counselors Monarch of Ashanti Assembly, Meeting Place Local spirit Mixture of soot, mud and blood, used in the ceremonial blackening of stools Esiere, esere Poison bean ordeal Hudud Deterrent punishments for crimes considered ‘claims of God’ in Islamic law; boundaries of acceptable behaviour Kachasu Distilled beverage Liretlo Medicine murder Maliki School of Sunni Islamic law, prevalent in North and West Africa Ohene Chief, or king Omanhene King Okyeama Linguist, a spokesperson or ambassador for an Akan chieftaincy Panga Machete; Long knife Shari’a Body of Islamic law Shauri Court, argument or debate Tembo Palm wine Thangata Agricultural labour by tenants in lieu of cash rent, generally unpaid Ulolwe Grain pestle Homicide

Capital offence; Act of killing a human being; may be unlawful depending upon criminal jurisdiction. M’Naghten Rules English legislation for establishing criminal insanity, applied in British Africa Manslaughter Non-capital offence; Unlawful killing of a human being without intent to kill; may be voluntary or involuntary. Murder Capital offence; Unlawful killing of a human being with malice aforethought. In flagrante delicto While [the crime] is blazing (Latin); Being caught in the act; legal euphemism for being found in sexual intercourse. Amongst other things (Latin) Inter alia Mens rea Guilty mind (Latin); Standard common law test of criminal liability; Criminal intent. Unwilling to pursue (Latin); Prosecutor’s application to discontinue Nolle prosequi criminal charges before trial or up until, but before, verdict. Pro bono publico For the public good (Latin); Legal work undertaken voluntarily without payment as a public service. Under judgment (Latin); Particular case is currently under trial, or Sub judice being considered by a judge or court.

I N T R O DU C T IO N C A P I TA L P U N I SH M E N T A N D C O L O N IA L R U L E : P U N I SH M E N T, V IO L E N C E A N D ‘ C I V I L I Z AT IO N ’ I N   B R I T I SH A F R IC A

In August 1943, as battles and extreme forms of violence raged across the globe during the Second World War, the Director of Prisons for the Gold Coast (presentday Ghana), R. H. Dolan, requested a meeting with the colony’s Governor, Sir Alun Burns. In the course of their meeting, they discussed how the condemned Africans awaiting their deaths in James Fort Prison, Accra, should be killed. Nolan noted that the death row accommodation was ‘extremely unsatisfactory’, and Burns agreed that immediate action was needed, stating ‘it is of paramount importance that the condemned cell is in close proximity to the gallows’. At that time, the cell was twenty yards away, which meant that the condemned had to be paraded, or rather dragged, across the prison yard to their deaths in view of the other inmates. Dolan asserted, ‘This may seem a small distance scarcely worth mentioning, but in the circumstances under discussion, it is absolutely essential that the distance to be traversed should be the irreducible minimum.’ Burns and the colonial secretary in Accra approved funds for the construction of a new condemned cell, with a door wide enough for three men opening onto the gallows so that ‘the delinquent could be placed on a scaffold within the space of a few seconds’.1 Even in the midst of a global war, colonial states were aware that the use of lethal violence against their African subjects had become a fraught and disputed subject. Capital punishment was the lethal apogee of colonial power, aimed at securing law, order and British justice; it was not simply a legal penalty but also a form of violence that served expressly political ends, during both times of peace and crisis. The death penalty was intended to deter colonial subjects from violent crime and disorder. Its use, however, was both contentious and contested, as differing metropolitan, colonial and African views clashed over the levels and forms of violence that were acceptable for use against ‘deviant’ or criminal subjects under systems of 1. Director of Prisons to Colonial Secretary, 24 August 1943, Condemned Prisoners – Amelioration of Conditions of, Public Records and Archives Administration Department, Accra [PRAAD], CSO 15/3/224.

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self-proclaimed ‘civilized’ colonial governance. In British Africa, the figuration of capital punishment, and penal systems more broadly, was a result of the dialogical tensions between ‘civilization’ and ‘violence’ within colonial governance. This led to repeated debates across colonies as to who should be executed, and how: how ‘irreducible’ could the minimum of judicial violence be and still achieve its penal and politico-legal aims? And at what point did the legal violence deemed necessary by the colonizer to punish the colonized become an indictment of the nature of colonial rule itself? The death penalty was foundational to colonial order and structures of power in British Africa, symbolically and sometimes instrumentally. In the early twentieth century, public executions were central to colonial iconographies of violence. Gallows would be erected reflecting the state of local colonial infrastructures – from a rope over a tree to long-drop scaffolds carefully mimicking British technologies of death. African troops would be performatively on view to maintain security and embody the threat of colonial violence, whilst colonial officials, in pristine dress uniforms, gave the order for the execution to commence. Crowds of Africans would be summoned to watch the purported power and majesty of British law, as the condemned person had the noose tightened and was dropped to their death.2 And yet, less than forty years later, colonial states sought to conceal the evidence of such executions even within their own prisons, reducing (or at least shrouding) their violence to an ‘irreducible minimum’. As colonization progressed, the role of executions changed. The spectacular display of colonial sovereignty publicly taking the life of an African subject became increasingly unacceptable. Driven by shifting political imperatives and cultural sensibilities, public executions were abolished in favour of carefully calibrated hangings behind prison walls in central prisons, which officials regarded as more humane and civilized.3 By 1950, Kwame Nkrumah, nationalist leader and future prime minister of the Gold Coast, was imprisoned under emergency regulations in James Fort Prison for leading a civil disobedience campaign. He reflected that ‘the most demoralizing moments that I experienced in prison were when a prisoner was committed to be hanged’. Nkrumah recalled being locked away in an upstairs cell with the other prisoners before 6.00 am so they could not witness any stage of the execution, but still finding ‘an occasional bloodstain on the ground’ afterwards. What colonial states perceived as an ‘irreducible minimum’ of violence in an execution was still lethal violence, and still shocking. Nkrumah wrote that ‘[t]o see a man brought in one day and disappear completely a few days later was something that really affected other prisoners’. His experiences prompted him to question ‘whether 2. For a photographic record of one such execution, see ‘Scaffold for public execution in Mombasa, c. 1910’, Royal Geographical Society, https://www.gettyimages.co.uk/detail/newsphoto/scaffolds-for-public-execution-in-mombasa-there-is-no-news-photo/1034329654 (last accessed 21 November 2021). Photographs of executions are not reproduced in this book on ethical grounds. 3. See Punishment: Execution Equipment and Procedure, The National Archives, Kew, London [TNA], CO 859/445.

Introduction – Capital Punishment and Colonial Rule

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capital punishment was a solution to murder cases. Criminals are, after all, human beings. No man is born a criminal, society makes him so’.4 There was no complete ‘civilizing’ reform of capital punishment in British Africa that reduced penal violence to a minimum, either to render prison hangings ‘humane’ or to limit or abolish the penalty itself. Violence was a constant within colonial societies, and penal reform was only ever intended to reframe and moderate the violence of punishment rather than eradicate it. Hangings may have been hidden behind prison walls, but colonial states never stopped using the death penalty and at certain times its use increased exponentially: this was particularly the case when colonial control came under threat, as during anticolonial rebellions. Normally, only murder and treason, and in some territories rape, were capital offences under common-law-based criminal justice systems in Britain’s African territories. However, a wide range of lesser offences also became capital crimes under state of emergency legislation to combat anti-colonial insurgencies, as occurred most infamously during the Kenyan State of Emergency. There, records suggest around 1,090 Gikuyu men were hanged under emergency regulations between 1952 and 1960 for being part of what was known in British colonial discourse as the Mau Mau rebellion, in a recrudescence of colonial penal violence.5 These Kenyan Emergency hangings were the most intensive and extreme use of capital punishment in twentieth-century Africa, and indeed across the whole British Empire in that period, and one of the aims of this book is to contextualize these exceptional executions within the wider normative framework of the imperial gallows. In a 1910 speech to the British House of Commons, Winston Churchill famously stated that ‘the mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country’.6 This book explores the evolving usage of capital punishment as a legal sentence, a penal punishment and as a tactic of colonial violence in Britain’s African territories. In doing so, it illuminates ‘the mood and temper’ of colonial states towards their recalcitrant African subjects, but also the attitudes of those African subjects towards the colonial death penalty. It analyses the process of capital sentencing: from the discovery of the crime, through trial, conviction and confirmation of sentence, through to the condemned person’s death on the gallows. Punishment is treated not just as a method of crime control, but as a social institution itself, granting detailed insights into the nature of a society, and its strategies of control and domination.7 The death penalty is the supreme site of this punishment and 4. Kwame Nkrumah, The Autobiography of Kwame Nkrumah (London: Thomas Nelson & Sons., 1957), 131–2. Under Nkrumah, post-independence Ghana did itself execute offenders. 5. David M. Anderson, Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire (London: Weidenfeld & Nicholson, 2005). 6. Hansard, 5th series, 20 July 1910, xix, 1354. 7. See David Garland, Punishment and Modern Society: A Study in Social Theory (Oxford: Oxford University Press, 1991).

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control, focusing as it does on the life and body of the condemned subject, and its use touches on many different areas of colonial history and experience. To understand capital punishment properly, we must look its brutal fulfilment on the imperial gallows to view the full scope of the sentence, and the legal, cultural and political contexts which shaped its enactment. This book therefore moves between macro- and micro-scales of analysis, from imperial politico-legal debates down to discussion of an accused murderer’s guilt in their local communities. The focus here is not just colonial punishment, but rather colonial penality. Penality, as David Garland outlines the concept, is the broader sweep of criminal justice, the networks of laws, processes, institutions and discourses which make up the penal realm from courtroom to government policymakers, to prisons and gallows, and offers a more holistic framework for analysis.8 Capital punishment here serves as a lens through which to view the clashes and cleavages of colonial governance and African societies across Britain’s African territories. Kenya, Nyasaland (present day Malawi), and the Gold Coast act as central case studies within this study of British colonial Africa in order to compare and contrast the experiences of settler state and ‘peasant’ states, and those of East, Central and West Africa.9 As Alexander Paterson, the celebrated British penologist noted of his visit to East Africa in 1939, ‘it is inevitable that crime and conscience should not coincide when a penal code that is founded upon a European ethic is imposed upon an African people whose ideas of right and wrong are so completely different’.10 Colonial and customary African criminal justice systems certainly differed in their definition and punishment of murder, which was the primary offence for which death sentences were pronounced throughout the colonial era. Murder is a prime indicator of sites of extreme social tension within African communities, which were rapidly changing under the impact of colonialism.11 Its punishment by death illustrates not only the penal practices of a colonial state, and the use of violence in its strategies of governance, but also the boundaries of acceptability and inclusion within that state for its subjects. The death penalty was primarily deployed in colonial Africa as a didactic and deterrent punishment, but it was as much a lesson in white rule as an instrumental penal strategy for

8. Ibid., 17, 249–50. 9. This comparative study builds on previously published work on Nyasaland and Kenya. See, e.g., Stacey Hynd, ‘Murder and Mercy: Capital Punishment in Colonial Kenya ca. 1909–1956’, International Journal of African Historical Studies 45, no. 1 (2012): 81–101; ‘“The Extreme Penalty of the Law”: Mercy and the Death Penalty as Aspects of State Power in Colonial Nyasaland, c.1903–47’, Journal of Eastern African Studies 4, no. 3 (2010): 542–59. 10. Alexander Paterson, Report on a Visit to the Prisons of Kenya, Uganda, Tanganyika, Zanzibar, Aden and Somaliland (Morija: Government Printer, 1944), 1. 11. See Paul Bohannan, ed., African Homicide and Suicide (Princeton: Princeton University Press, 1964).

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crime prevention.12 Studying patterns in sentencing shows how constructions of race, gender, generation and ethnicity shaped colonial perceptions of what forms of violence were most threatening to social order and colonial control. Above all, tracing the evolution of capital punishment’s pronouncement and enactment illustrates the interconnections between ‘civilization’ and ‘violence’ in colonial governance, the ideology and practice of which impacted across the whole of colonial experience.13 The death penalty was fundamentally different from other forms of colonial punishment because it was an expressly politicized penalty – the final decision on every capital sentence lay not with a judge, but with the governor of a territory, to whom the royal prerogative of mercy was delegated. Ultimately, the death penalty is an instrument of state politics, as much as, if not more than, a penal policy, and it is this which makes it a valuable topic for understanding the operation of colonial governance and violence.14

Situating the imperial gallows: Race, violence and penality in colonial capital punishment This book offers the first empirical and comparative analysis of the death penalty in colonial Africa, and in the British Empire outside of dominion territories. Britain was not alone in its deployment of capital punishment in its African territories – with the exception of Portugal which had abolished the penalty domestically, all of the European imperial powers did so.15 However, the death penalty appears to have had a particular resonance in British imperial minds and strategies of governance that makes analysis of its use in British Africa particularly apposite. In part this stems from metropolitan inheritances, with the gallows forming the cornerstone of the English criminal justice system in particular, and occupying

12. Deterrence is the most common justification for capital punishment given by governments, despite the fact that there is no established evidence to support such claims. See Roger Hood and Carolyn Hoyle, The Death Penalty: Worldwide Perspectives, 5th edn. (Oxford: Oxford University Press, 2015), 389–425. 13. ‘Civilization’ is used throughout this text in its emic, normative sense to connote the superiority ascribed by British imperialists to their culture and society in contrast to African societies. Violence is used to refer both to the acts of aggression and abuse intended to cause injury, and to denote the use of political force in the public domain. It has both direct and indirect, physical and symbolic manifestations. See J. Brady and N. Garver, eds., Justice, Law and Violence (Philadelphia: Temple University Press, 1993). 14. Richard J. Evans, Rituals of Retribution: Capital Punishment in Germany, 1600–1987 (Oxford: Oxford University Press, 1996), vii. 15. See Chapter 2 for more details.

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a bloody space in the national consciousness.16 This book, however, argues that there was no unmitigated, direct importation of the metropolitan death penalty into African colonies: instead, a specifically colonial form of capital punishment emerged, one shaped by the legal demands and racialized regimes of violence that suffused the operation of colonial penality. This colonial death penalty was widely and systematically deployed across Britain’s African territories, more so than in the metropole. According to colonial records, between 1930 and 1955 some 3,821 persons, the vast majority of whom were Black Africans, were convicted and executed under standard criminal codes in Britain’s main tropical African territories of Nigeria, Tanganyika, Uganda, Kenya, Northern Rhodesia, Southern Rhodesia, Nyasaland, the Gold Coast and Sierra Leone.17 This figure rises to around 4,800 when the Kenyan State of Emergency hangings are included.18 These territories had a combined population slightly less than that of the United Kingdom in 1939, but their use of the death penalty was exponentially greater than the metropole, where some 349 people were executed in the same time period.19 And this was despite the fact that the royal prerogative of mercy was deployed to commute approximately 30–40 per cent of death sentences in many years.20 Britain’s Black African colonial subjects undeniably faced trial in a racist and unequal criminal justice system that functioned as a tool ‘to conquer and control indigenous people by the coercive use of legal means’.21 As Jackson argues in her study of the death penalty across the Straits Settlements, Fiji and Natal, British colonial punishment was highly racialized at all stages of its enactment, from courtroom to the Royal Prerogative of Mercy, and it particularly focused on crimes that threatened white lives, property, profit or authority.22 This study demonstrates that racial ideologies of imperial rule underpinned both the exceptional and the routine use of the death 16. See Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson and Cal Winslow, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (London: Penguin Books, 1977); V. A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994); Lizzie Seal, Capital Punishment in Twentieth-Century Britain: Audience, Justice and Memory (London: Routledge, 2014). 17. This argument is explored in more detail in Chapter 2. Data taken from the Police, Prisons and Judicial annual reports for these territories. 18. Capital Punishment in Kenya during Emergency, TNA CO 822/1256. 19. See Great Britain, Report of the Royal Commission on Capital Punishment 1949–53 (London: HMSO, 1953), 298–302 [Hereafter the Gowers Commission]. Last-minute appeals as a convict man went to the gallows irritated officials, who regarded them as legal trickery the face of justice. Last Minute Appeals for Clemency, 1946, TNA CO 1026/27. 20. See Chapters 3 and 4. 21. John L. Comaroff, ‘Colonialism, Culture and the Law: A Foreword’, Law and Social Inquiry 26, no. 2 (2001): 306; Martin J. Wiener, An Empire on Trial: Race, Murder, and Justice under British Rule, 1870–1935 (Cambridge: Cambridge University Press, 2008), 5–9. 22. April Jackson, ‘Execution and Empire: A History of Judicial Killing under British Colonial Rule, c.1826–1970’ (PhD, University of Leicester, forthcoming).

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penalty in British Africa. Race was a significant but plurivalent factor in capital sentencing, operating through discourses of both dehumanization and colonial paternalism, which meant that the same racist tropes of African ‘primitivism’ that condemned some Africans could, in some circumstance, spare others. The book sits at the intersection of three fields of historical scholarship, providing a comparative, African-focused intervention into each: global histories of the death penalty; studies of colonial crime, law and punishment in Africa; and histories of British colonial violence. The extensive historical and socio-legal scholarship on the death penalty, both in Britain and across the globe, provides a key intellectual foundation for this study. Global and Eurocentric debate has focused on whether the transition from public to private executions and movements towards abolitionism have been a result of political or cultural change.23 Orthodox historiography on capital punishment long assumed that the abolition of public execution was a result of progressive, humanitarian reform: a step towards a more civilized and humane administration of the law.24 Perhaps the most influential perspective however has been Michel Foucault’s work on bio-power and disciplinary regimes, which argued that public punishments were abolished not because they were inhumane, but because they were ineffective.25 Foucault asserted that in Europe exemplary and demonstrative punishments were replaced in the nineteenth century by a new penal economy of power, which sought more efficient, less arbitrary punishment that acted on the mind rather than the body.26 In contrast, Norbert Elias’ concept of the ‘civilizing process’ has offered a cultural framework for interrogating the evolution of capital punishment.27 For Elias, the ‘civilizing process’ describes a long-term socio-cultural and psychic change resulting from the monopolization of violence by the state, lengthening chains of social interdependence and the development of bureaucracy which created a more internally disciplined, restrained citizenry. This led to an increased revulsion against the open display of physical violence such as public executions and a consequent decline and tempering of corporal and capital punishments. However, in a society under threat, ‘civilization’ can be disrupted and

23. See Randall McGowen, ‘History, Culture and the Death Penalty: The British Debate, 1840–70’, Historical Reflections/Réflexions Historiques 29, no. 2 (2003): 229–49. David Garland, ‘Why the Death Penalty Is Disappearing’, in Capital Punishment: A Hazard to a Sustainable Criminal Justice System?, ed. Lill Sherdid (Ashgate: Taylor & Francis, 2014), 77–91. 24. See Leon Radzinowicz and Roger Hood, A History of English Criminal Law and Its Administration from 1750: The Emergence of Penal Policy, 5 vols. (Oxford: Oxford University Press, 1990). 25. Michel Foucault, Surveiller et punir: naissance de la prison (Paris: Gallimard, 1975). 26. Ibid. 27. Norbert Elias, The Civilizing Process: The History of Manners and State Formation and Transformation [1936], trans. Edmund Jephcott (Oxford: Blackwell, 1994). See Pieter Spierenburg, A History of Murder: Personal Violence in Europe from the Middle Ages to the Present (London: Polity, 2008).

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rapidly inverted, resulting in a recrudescence of severe, violent punishment on a large scale in the penal realm – what Elias termed the ‘decivilizing process’.28 But do these Western theories of capital punishment have relevance in a colonial context? The answer is both yes and no. Capital punishment is the ultimate assertion of righteous indignation, of power asserting its own infallibility. Despite its drama and horror, the death penalty is not sui generis.29 Colonial penal regimes operated through very different political structures, social contracts and socio-economic imperatives, but in their governmentality and the mentalities and habitus of the white officials who imposed their punishments, there are resonances that can usefully be interrogated through the application of ideas of both bio-power and the (de-)civilizing process, as the following chapters will show. Historians of empire are increasingly becoming aware of the usefulness of the death penalty as a thematic lens for viewing colonial violence and governance, but few have sought to explore the full range of its meaning and deployment.30 Most major explorations of capital punishment in the British world have focused on the White Dominions, with studies of executions and ‘frontier justice’ in Australia and racialized sentencing and discretionary justice in South Africa and Canada illuminating settler colonial dynamics of judicial execution in these territories.31 In sub-Saharan Africa, David Anderson’s Histories of the Hanged tells the stories of the State of Emergency in Kenya from the perspective of capital trials, rather than being an analysis of capital punishment per se, so the analysis of the death penalty in Kenya presented herein serves to contextualize and further its account of the brutality of the Emergency executions.32 Recent work by Thaïs Gendry on the death penalty in French West Africa meanwhile highlights its shifting colonial figurations between 1900 and 1950, from combating rebellion to establishing the parameters of public order, whilst April Jackson’s thesis will provide a first comparative, globally situated, analysis of the death penalty in the British Empire, 28. Elias, The Civilizing Process, 273–314. 29. Austin Sarat, ‘Presentist Preoccupations: Reflections on State Killing in the Contemporary United States’, Réflexions historiques 29, no. 2 (2003): 361–2, 373. 30. See Clare Anderson, ‘The Execution of Rughobursing: The Political Economy of Convict Transportation and Penal Labour in Early Colonial Mauritius’, Studies in History 19, no. 2 (2003): 185–97; Michael Vann, ‘Of Pirates, Postcards and Public Beheadings: The Pedagogic Execution in French Colonial Indochina’, Historical Reflections/Réflexions Historiques 36, no. 2 (2010): 39–58. 31. See, e.g., John Mcguire, ‘“Judicial Violence and the Civilizing Process”: Race and the transition from Public to Private Executions in Colonial Australia’, Australian Historical Studies 29, no. 3 (1998): 186–209; Robert V. Turrell, White Mercy: The Death Penalty in South Africa 1900–48 (Westport: Praeger, 2004); Steven Anderson, A History of Capital Punishment in the Australian Colonies, 1788–1900 (London: Palgrave Macmillan, 2020); Carolyn Strange, The Death Penalty and Sex Murder in Canadian History (Toronto: University of Toronto Press, 2020). 32. Anderson, Histories of the Hanged.

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taking the Straits Settlements, Fiji and Natal as its case studies.33 This study draws from these perspectives to analyse the specifically British and African colonial dynamics of capital punishment, highlighting the nexus between civilization, violence, race and law which drove its extensive use. Analysis of the death penalty’s use in Africa’s past also highlights the colonial legacies that continue to shape its operation in the present, and one of this study’s key contributions is to present the first rigorously archival-based analysis to identify these legal legacies in order to facilitate future decolonial research and interventions.34 The death penalty however cannot be fully understood in isolation from the broader regimes of colonial criminal justice and penality.35 In its analysis, this study draws from across the flourishing field of African criminal, legal and penal histories that has emerged in the last twenty years.36 In colonial Africa, punishment was primarily a mechanism for states to reinforce their authority and remake subaltern subjectivities in line with the needs of white political and economic dominance.37 The identification and punishment of new ‘social deviants’ and 33. Thaïs Gendry, ‘Le droit de tuer: la peine de mort au service de l’ordre colonial en Afrique occidentale française, 1900–50’ (PhD, Université de Genève, 2020) and ‘“Seule une répression sévère est de nature à contenir leurs instincts sanguinaires”: Peine de mort et politique coloniale en Afrique Occidentale française, 1890–1945’. French Colonial History (forthcoming); Jackson, ‘Execution and Empire’. 34. See Andrew Novak, The Death Penalty in Africa: Foundations and Future Prospects (London: Palgrave Pivot, 2014); Aimé Muyoboke Karimunda, The Death Penalty in Africa: The Path towards Abolition (London: Routledge: 2014); Biko Agozino, ‘Imperialism, Crime and Criminology: Towards the Decolonisation of Criminology’, Crime, Law and Social Change 41, no. 4 (2004): 343–58. 35. See Diana Paton, No Bond but the Law: Punishment, Race and Gender in Jamaican State Formation (Durham, NC: Duke University Press, 2005); Taylor Sherman, State Violence and Punishment in India (London: Routledge, 2010); Mark Brown, Penal Power and Colonial Rule (Abingdon: Routledge, 2014); Clare Anderson, Convicts: A Global History (Cambridge: Cambridge University Press, 2022). 36. For historiographical overviews, see Richard Roberts, ‘Law, Crime and Punishment in Colonial Africa’, in Oxford Handbook of Modern African History, ed. John Parker and Richard Reid (Oxford: Oxford University Press, 2013), 171–88; Richard Waller, ‘Crime and the Law in Colonial Africa’, Oxford Bibliographies (2017), https://www. oxfordbibliographies.com/view/document/obo-9780199846733/obo-97801998467330158.xml (last accessed 2 November 2022); Erin Braatz, Katherine Bruce-Lockhart and Stacey Hynd, ‘Introduction: African Penal Histories in Global Perspective’, Punishment & Society 24, no. 5 (2022): 759–70. 37. See Florence Bernault, ‘De l’Afrique ouverte à l’Afrique fermée: comprendre l’histoire des réclusions continentales’, in Enfermement, prison et châtiments en Afrique: du 19e siècle à nos jours, ed. Florence Bernault (Paris: Karthala, 1999), 15–64 and ‘The Shadow of Rule: Colonial Power and Modern Punishment in Africa’, in Cultures of Confinement: A History of the Prison in Africa, Asia and Latin America, ed. Frank Dikötter and Ian Brown (Ithaca: Cornell University Press, 2007), 55–94.

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criminal ‘Others’ were central to processes of state formation and social control. Contrary to Foucauldian narratives of disciplinary penal modernity, colonial penal regimes in twentieth-century Africa normalized high levels of judicial punitiveness, penal excess and embodied violence – including both corporal and capital punishment – as well as extra-legal forms of violence.38 Capital punishment formed a central pillar of these colonial penal regimes and the ‘coercive networks of empire’.39 This book argues that capital punishment was systematically deployed throughout the colonial period, although the rate of death sentences pronounced and executed varied between colonies and fluctuated over time in response to local cultures of penality. With the transition from public to private executions, its use was also shaped by liberal penal reform movements in the inter-war years that sought to make colonial penal systems more ‘humane’ and bring them into line with metropolitan practice. However, metropolitan liberal penality found limited purchase in over-burdened, under-resourced and racially disarticulated African colonies. Indeed, as some scholars have argued, penal violence was in fact a central element of liberal colonial governance.40 Colonial penal reform was therefore always more discursive than an enacted reality, and largely unsuccessful.41 The reform of capital punishment facilitated its continued use in Britain’s African territories rather than abolishing or decreasing the penalty’s deployment, highlighting the tensions between the rhetoric of reform and ‘civilization’ and the realities of systemic violence which underpinned colonial penality. As both a politicized penalty and a legal punishment, the colonial death penalty was shaped by the natures of colonial states, and the regimes of violence that underpinned them. The term ‘colonial state’ describes not a static, uniform entity, but a genus of historically fluid forms and processes, underpinned by unique rationalities that were particular to their colonial contexts, and yet influenced also

38. See Foucault, Punir et Surveiller; Bernault, ‘The Shadow of Rule’; Daniel Branch, ‘Imprisonment and Colonialism in Kenya, c.1930–52: Escaping the Carceral Archipelago’, International Journal of African Historical Studies 38, no. 2 (2005): 239–66; Emilie Bourgeat, ‘Penality, Violence and Colonial Rule in Kenya, c. 1930–52’ (University of Oxford, DPhil thesis, 2014). 39. Taylor Sherman, ‘Tensions of Colonial Punishment: Perspectives on Recent Developments in the Study of Coercive Networks in Africa, Asia and the Caribbean’, History Compass 7, no. 3 (2009): 659–77. 40. See Brown, Penal Power and Colonial Rule; Bourgeat, ‘Penality, Violence and Colonial Rule’. 41. See Stacey Hynd, ‘Law, Violence and Penal Reform: State Responses to Crime and Disorder in Colonial Malawi, c. 1900–59’, Journal of Southern African Studies 37, no.  3 (2011): 431–47; Lizzie Seal and Roger Ball, ‘The Howard League and Liberal Colonial Penality in Twentieth-Century Britain: The Death Penalty in Palestine and the Kenya Emergency’, The Howard Journal of Crime and Justice, https://doi.org/10.1111/hojo.12513 (last accessed 27 January 2023).

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by metropolitan ‘impulses of modernity’.42 Colonial regimes were never monolithic or omnipotent, but were rather incomplete, and riven with internal tensions between development and repression, liberalism and autocracy, modernity and the preservation of African custom.43 Colonial governmentality in British Africa was fundamentally marked by two contradictory ideological and instrumental imperatives: ‘violence’ and ‘civilization’. Law was a prime site of these tensions, acting both to protect colonized rights and control violence, and to impose colonial rule and sovereign power.44 In this latter capacity, colonial states operated a form of ‘lawfare’ ‘to impose a sense of order upon its subordinates by means of violence rendered legible, legal and legitimate by its own sovereign word’.45 Capital punishment often proved a prime site of this lawfare, particularly in regards to its role in colonial counterinsurgency.46 This book demonstrates that the colonial death penalty’s operation in twentieth-century British Africa was characterized by its close association with state security and the repertoires of emergency violence. Imperial nostalgia within Britain has encouraged the idea that its imperial rule was relatively benign, but as this study demonstrates, colonialism relied on both normative and exceptional forms of violence to maintain its rule. Historical research has proven that despite all the discourse and rhetoric of the civilizing mission, strategies of violence remained central to governance throughout the colonial period in British Africa, and indeed across all European empires.47 Colonial violence was not uncontested, however. This study reveals that capital punishment was always a double-edged sword for colonial states, often revealing its weakness and fear as much as, if not more than, its power.

42. John Comaroff, ‘Governmentality, Materiality, Legality, Modernity: On the Colonial State’, in African Modernities: Entangled Meanings in Current Debate, ed. Jan-Georg Deutsch, Peter Probst and Heike Schmidt (Oxford: James Currey, 2002), 118–21. 43. See Frederick Cooper, Colonialism in Question: Theory, Knowledge, History (Berkeley: University of California Press, 2005). 44. Michael Lobban, Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa (Cambridge: Cambridge University Press, 2021), 17. 45. Jean Comaroff and John Comaroff, ‘Law and Disorder in the Postcolony: An Introduction’, in Law and Disorder in the Postcolony, ed. Jean Comaroff and John Comaroff (Chicago: Chicago University Press, 2006), 29–30. 46. See also Ian Brown, ‘Rebels, the Death Penalty and Legal Process in Late Colonial Burma’, The Historical Journal 62, no. 3 (2019): 813–32. 47. See Caroline Elkins, ‘Looking beyond Mau Mau: Archiving Violence in the Era of Decolonization’, American Historical Review 120, no. 3 (2015): 852–68; See Dierk Walter, Colonial Violence and the Use of Force (London: Hurst & Co, 2017); Michelle Gordon, Extreme Violence and the British Way: Colonial Warfare in Perak, Sierra Leone and Sudan (London: Bloomsbury, 2020); Thijs Brocades Zaalberg and Bart Luttikhuis, eds., Empire’s Violent End: Comparing Dutch, British and French Wars of Decolonization, 1945–62 (New York: Cornell University Press, 2022).

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Historical context for colonial punishment: The death penalty in precolonial Africa The colonial death penalty was shaped by the contours of its metropolitan inheritances and the politico-legal landscapes of imperial governance, but also through its engagement with customary attitudes towards the punishment of murder in local African cultures. Contemporary legal debates on the death penalty in Africa rage over whether it is an authentically African penalty or a colonial imposition, with many abolitionists supporting South African judge Albie Sachs’ view that ‘the relatively well-developed judicial processes of indigenous societies did not in general encompass capital punishment for murder’, whilst retentionists consider that capital punishment has roots in precolonial African cultures and believe abolishing the death penalty would be a capitulation to Western, neocolonial human rights norms.48 Historical knowledge about capital punishment in precolonial polities and African communities is fragmentary, with much of the data originating from colonial-era testimonies gathered by administrators or ethnographers that were dictated as responses to colonial interventions, but the preponderance of evidence suggests that the death penalty was a reality in many parts of Africa prior to colonization.49 Colonial states ‘only legalized and extended an existing practice and introduced new methods of execution’.50 According to colonial commentators, the greatest difference between customary African and colonial conceptions of law was ‘in respect of punishment’.51 Early colonial governments believed that precolonial African social order and morality had been heavily reliant on ‘barbaric’ physical punishments. Hector Livingstone Duff, the Indian-born first chief secretary of Nyasaland, noted: ‘Murder, battery, abduction, robbery, theft: these are the principal crimes which [the African] recognises, and all of them, like most other offences, he was wont to punish, according to his severe and simple code, by the supreme penalty of death.’ Duff recorded that local communities attributed the rise in thefts and adultery under colonialism to the abrogation of such penalties.52 In West Africa, accounts from military officers or missionaries displayed distinctly racialized views of African

48. State v. Makwanyane, 1995 (3) S.A. 391 (C.C.) § 381 (Sachs, J., concurring), cited in Novak, The Death Penalty in Africa, 58; Karimunda, The Death Penalty in Africa, 2–3. 49. Customary law as it was recorded in the twentieth century was in many respects a colonial invention rather than an authentic pre-colonial inheritance. See Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (Portsmouth: Heinemann, 1998). 50. Karimunda, The Death Penalty in Africa, 16. 51. See Great Britain, Report of the Commission of Enquiry into the Administration of Justice in Kenya, Uganda and the Tanganyika Territory in Criminal Matters, May 1933 (London: HMSO, 1934), 57. [Hereafter Bushe Commission]. 52. Hector Livingston Duff, African Small Chop (London: Hodder and Stoughton, 1932), 335 and Nyasaland under Foreign Office Rule (London: G. Bell, [1906]1937), 239, 317.

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custom, foregrounding narratives of ‘savage’ violence that conflated murder, human sacrifice and capital punishment.53 In the Gold Coast, the Asante empire, or Ashanti as it was known in colonial discourse, became infamous in British popular thought for its allegedly widespread use of ‘bloodthirsty’ human sacrifices.54 African testimonies were shaped by memories of often unsettled years preceding colonial pacification, whilst other accounts were skewed by nostalgia or political motives. Customary law was itself a fluid and contested colonial construct.55 In general, unlike European legal codes which were based on principles of retribution, systems of law in precolonial Africa were often predominantly restorative, being based upon the re-establishment of social equilibrium through compensation and reconciliation rituals: ‘In the native mind what the British system regards as a crime against the public peace was essentially a private wrong.’56 The death penalty formed part of both restorative and retributive justice in precolonial Africa, being applied for political offences or crimes against the crown, homicide, supernatural crimes (such as witchcraft or sorcery), sexual offences, and for dangerous or habitual offenders.57 In Islamic regions of Africa, including Northern Nigeria, Zanzibar and Sudan, capital punishment was permitted for certain hudud crimes (offences against God), such as apostasy or heresy, whilst the prevalent Maliki school of Islamic jurisprudence, common in North and West Africa, also recognized a category of ‘heinous murder’ as deserving of the death penalty even where the next of kin pardoned the killer.58 Methods of execution used across the continent included shooting, spearing, drowning, stoning, mutilation, burying alive, burning alive, cutting the throat, strangling, impalement, or decapitation, but hanging was not a common method of death.59

53. Clifford Williams, ‘Asante: Human Sacrifice or Capital Punishment? An Assessment of the Period 1807–84’, International Journal of African Historical Studies 21, no. 3 (1988): 433–41; Ivor Wilks, ‘Human Sacrifice or Capital Punishment? A Rejoinder’, International Journal of African Historical Studies 21, no. 3 (1988): 443–52. 54. Frederick Boyle, Through Fanteeland to Coomassie: A Diary of the Ashantee Expedition (London: Chapman and Hall; 1874), 342–4. 55. See Chanock, Law, Custom and Social Order. 56. James S. Read, ‘Crime and Punishment in East Africa: The Twilight of Customary Law’, Howard Law Journal 10, no. 2 (1964): 168. 57. See Taslim Olawale Elias, The Nature of African Customary Law (Manchester: Manchester University Press, 1956), 260; Bohannan, ed., African Homicide and Suicide. 58. Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge: Cambridge University Press, 2006), 44, 49. 59. Some societies also used trial by ordeal which could result in the death of the offender. Karimunda, The Death Penalty in Africa, 17–26, 35; Alan Milner, Nigerian Penal System (London: Sweet and Maxwell, 1972), 335; E. E. Evans-Pritchard, Nuer Religion (Oxford: Oxford University Press, 1977), 293–7; G. M. Wilson, ‘Homicide and Suicide among the Joluo of Kenya’, in African Homicide and Suicide, ed. Paul Bohannan (Princeton: Princeton University Press, 1960), 182–3.

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Murder was almost universally regarded as a grave offence, one that could trigger spiritual harm for a whole community, but responses to this crime varied widely. A distinction between intentional murder and unintentional homicide often did not exist in customary law: homicide was defined by the harm to the victim, and punishment was often determined by the relationship between the victim and offender and by their relative social status, with offences against chiefs or monarchs being more severely punished.60 Awudiei (murder) was regarded as a particularly serious crime by the Asante, not just because of the loss of life, but because it challenged the Asantehene’s sovereign monopoly over the right to death.61 Punishments for homicide could include exile, ostracism or banishment, enforced suicide, or enslavement, but in many societies, murder was atoned for through the payment of compensation – either in material goods or the transfer of a person to the victim’s family – and undergoing the appropriate reconciliation rituals to prevent supernatural harm.62 In the Gold Coast, among Northern Territories communities, murder was apparently regarded as a sin against a victim’s lineage and ancestors, reconciliation for which required sacrifices offered by perpetrator’s family, to which the victim’s family also contributed.63 Colonial ethnography and postcolonial memory in Nyasaland suggest that capital punishment was seldom inflicted, apart from among the Angoni where a range of treasonable offences against chiefs could result in an individual’s death.64 Chewa communities were reported to punish murder through the payment of nkuku (admission of guilt) and lipo (compensation), the lipo being heaviest where kucita dala (intention) was admitted. The death sentence was available for serious or repeat offenders but was generally carried out only where the offender refused to reveal the reasons behind his actions or where his family refused to pay lipo.65 The sentence was determined not by the crime itself but by the level of threat posed to the community by the offender. In Kenya, future anti-colonial leader and President Jomo Kenyatta’s

60. Novak, The Death Penalty in Africa, 12. 61. R. S. Rattray, Ashanti Law and Constitution (Oxford: Clarendon Press, 1929), 295. 62. J. S. Read, ‘Kenya, Tanzania and Uganda’, in African Penal Systems, ed. Alan Milner (London: Routledge and Kegan Paul, 1969), 104–6; D. D. Phiri, History of the Tumbuka (Blantyre: Dzuka Publishing, 2000), 51–2; Karimunda, The Death Penalty in Africa, 40; John Parker, In My Time of Dying: A History of Death and the Dead in West Africa (Princeton: Princeton University Press, 2021), 83–9, 109–16. 63. Meyer Fortes, ‘The Political System of the Tallensi of the Northern Territories of the Gold Coast’, in African Political Systems, ed. Meyer Fortes and E. E. Evans-Pritchard (Oxford: Clarendon Press, 1940), 238–71. 64. C. J. W. Fleming, ‘Crime and Punishment in Northern Malawi’, The Society of Malawi Journal 30, no. 1 (1977): 9; L. J. Chimango, ‘Traditional Criminal Law in Malawi’, The Society of Malawi Journal 28, no. 1 (1975): 25–39; Chanock, Law, Custom and Social Order, 6–7, 125–7. 65. W. H. J. Rangley, ‘Notes on Cewa Tribal Law’, The Nyasaland Journal 3 (1948): 5–10; Duff, African Small Chop, 334, 340.

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anthropological study of Gikuyu custom asserted that homicide was normally a matter for compensation, but habitual theft, causing death by poison, or witchcraft ‘was looked upon as a crime against the whole community, and the penalty was death by burning’.66 With the coming of colonialism in the nineteenth and early twentieth centuries however, homicide became increasingly criminalized, leading to the institutionalization of the death penalty across British colonial Africa, and creating a specifically colonial form of capital punishment that attempted to serve often conflicting colonial and African demands for justice.

Evidence of crime, proof of punishment – Writing colonial histories through criminal records This empirical study is framed around multiple levels of analysis, combining different methodological perspectives: it ranges from a micro-historical analysis of individual murder trials and their outcomes at a local level, to colony-level social and criminal histories that combine qualitative approaches with some basic quantitative analysis, and finally to broader imperial history perspectives on the wider politico-legal functioning of the death penalty. A central focus of this book is the comparative study of three colony case studies across Britain’s West, East and Southern African territories. This comparative focus facilitates nuanced analysis of how different common law-based legal regimes intersected with racial and ethnic constructions and socio-political concerns to shape the functioning of the death penalty from local to colonial contexts. The three colony case studies have been selected to highlight how capital punishment operated across varied forms of colonial states. Kenya serves as the East African case study, selected to offer insights into capital punishment in a settler colonial state with a highly repressive penal regime. Kenya joined the British Empire as part of the British East Africa protectorate in 1895, before becoming a crown colony in 1920 until its independence in 1963. Its criminal justice system operated under the Indian Penal Code until 1930 when it moved to an adapted English criminal code.67 Kenya, as noted above, was also the site of the most infamous and extensive use of the death penalty in the twentieth-century British Empire, during the State of Emergency declared against the so-called Mau Mau rebellion, between 1952 and 1960, when over 1,000 Gikuyu men were hanged for emergency 66. Jomo Kenyatta, Facing Mount Kenya: The Tribal Life of the Kikuyu (London: Secker & Warburg, 1957 [c. 1938]), 230. See also J. S. B. Leakey, ‘Some Notes on the Masai of Kenya Colony’, Journal of the Royal Anthropological Institute of Great Britain and Ireland 60 (1930): 209. J. S. S. Rowlands, ‘Notes on Native Law and Custom in Kenya: I’, Journal of African Law 6, no. 3 (1962): 193; G. S. Snell, Nandi Customary Law (London: Palgrave Macmillan, 1954), 63–5. 67. See Weiner, Empire on Trial, 193–221; Henry F. Morris and James S. Read, Indirect Rule and the Search for Justice: Essays in East African Legal History (Oxford: Clarendon Press, 1972).

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offences ranging from murder to possession of ammunition, swearing oaths and consorting with terrorists.68 This study seeks to place these emergency hangings in a broader Kenyan, and colonial African, context. The southern African case study is Nyasaland, known by contemporaries as Britain’s Cinderella colony. Nyasaland offers insights into intersecting traditions of judicial leniency and penal severity. British control in the area started with the British Central African Protectorate it in 1889, which became the Nyasaland protectorate from 1907 until 1953 when became part of the Federation of Rhodesia and Nyasaland, before gaining its independence from Britain in 1964. This underdeveloped colony highlights the tensions plaguing the operation of colonial justice and penality in the context of a weak colonial economy, overstretched and understaffed infrastructure, and severe social tensions generated by labour migration, shifting gender roles, economic hardship and dearth.69 The West African case study is the Gold Coast, which was a British Crown colony from 1821 until its independence in 1957. British rule in the region expanded throughout the nineteenth century until it comprised four separate jurisdictions by the twentieth century: the Gold Coast itself, Ashanti, the Northern Territories, the three regions which this study focuses on, and the mandated territory of British Togoland.70 The Gold Coast was regarded as a model colony, governed indirectly with the support of traditional chiefs, with a strong colonial legal culture and with early experience of the ‘Africanization’ of colonial administrations. As a case study, the Gold Coast highlights the complexities of how capital punishment operated across three different regional legal jurisdictions with pluralistic inheritances, including exploring the direct importation of English common law and – unusually – both jury trials for Africans and African judges presiding over capital trials in the Gold Coast Colony, compared with the more penally severe and administrative justice of Ashanti and the Northern Territories.71 The chronological focus is predominantly on the 1920s to 1950s as this is the period for which the comparative evidence base is available. Nonetheless, as the legal colonization of the Gold Coast began in the mid-nineteenth century, early colonial trends are sketched, and postcolonial legacies are also touched upon. To contextualize these case studies, a broader analysis of capital cases from African territories was conducted through Colonial Office and Dominions Office archives, and from the Colonial Office Legal Department and Treatment of Offenders Committee file series in the National Archives, Kew. This indicates that there were broad similarities in the form and functioning of capital punishment across British colonial Africa in the twentieth century, including in the case study territories, characterized by a strongly racialized form of didactic deterrence that led to a 68. Anderson, Histories of the Hanged. 69. See John McCracken, A History of Malawi, 1859–1966 (Woodbridge: James Currey, 2012). 70. See Roger Gocking, The History of Ghana (Westport: Greenwood, 2005). 71. Roger Gocking, ‘The Adjudication of Homicide in Colonial Ghana: The Impact of the Knowles Murder Case’, Journal of African History 52, no. 1 (2011): 85–104.

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widespread use of both death sentences and executions whilst discursively asserting the merciful and civilized nature of colonial criminal justice. However, there were localized particularities in the operation of the death penalty in each territory, driven by varying legal codes and political or security concerns. The particularities of Kenya, Nyasaland and the Gold Coast will be explored throughout the following chapters to highlight what variations in penality can reveal about the multifarious nature of colonial rule. This is an account of how colonial governments sought to control and shape their African subjects, but it is also about the violent tragedies in the lives of Africans as victims and perpetrators of murder, the main crime for which execution was imposed. The treatment of capital punishment, and particularly of the executions themselves, presents moral, ethical and methodological questions for the historian. We must remember that we are dealing with real bodily violation, real pain, real death. Chief Justice Charles Belcher recalled one meeting in Nyasaland where he was advising the governor and his executive council as to whether the royal prerogative of mercy should be used to spare condemned murders from the gallows. Belcher recalled that the opinion of many officials was ‘“after all, Nyasaland natives are plentiful and not very vocal”. One of those responsible for the advice to exact capital punishment said when it was being discussed, “I do not think that it would hurt to hang a few of them”. And, no doubt, on a very broad view, it would not’.72 Colonial administrators discussing the death penalty for African criminals may have thought it would not ‘hurt to hang a few of them’, but for the condemned individual it certainly did hurt. In 1916, a Nairobi prison officer described execution processes to (predominantly settler) readers of the East African Standard newspaper, highlighting how African prisoners ‘make a fuss, decline their food, refused to eat, and start to cry. Just before the operations they are so nervous that they shriek at the top of their voices, and struggle for dear life when the Superintendent reads out the order’.73 All the discourses of deterrence, law and justice must not obscure the fact that what we are dealing with is state agents legally killing colonial subjects at the government’s behest – that the greatest victims were those killed by the condemned men and women must also be remembered.74 Over 2,300 capital case files, predominantly for murder trials, from the archives of Nairobi, Accra and Zomba comprise the primary evidence base for this study. These legal records are supplemented by legal and administrative records, penal and judicial statistics, law reviews and appeals, and newspaper coverage and colonial memoirs. From the Gold Coast ‘Murder Books’ containing handwritten trial transcripts, full case files, appeal records and death row petitions from Kenya to the district commissioners’ confidential reports on local attitudes 72. Sir Charles Belcher, ‘Reminiscences’, 223, Weston Library, Bodliean Libraries, University of Oxford [WL], MSS.Brit.Emp.s.347. 73. ‘Diary of a Prison Officer’, East African Standard, 23 June 1916, 16. 74. Gatrell, The Hanging Tree, 29.

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towards murders in Nyasaland, this book draws on a seam of rich and previously unexplored archival data. Due to the evidentiary requirements for a capital conviction, murder case records can grant an unprecedented level of insight into the lives of ordinary Africans who became the victims, defendants and witnesses in these cases. These case files are highly variable – some are a scant two pages with no final outcome recorded, others include a profusion of evidence ranging from trial testimonies by the accused, to extensive witness statements, crime scene photographs, High Court transcripts, appeal records, prison records with medical and ethnopsychiatric evaluations, to death row mercy petitions, handwritten notes, marginalia and sketches from the judges, and even, in one case, the still bloodied (and now very rusty) murder weapon. This allows for detailed analysis of both colonial constructions and discourses of African criminality and deviance, and insights into (often contested) African opinions on crime and punishment that highlight the tensions within customary law and local attitudes towards individual offenders. The representativeness of trends identified in the three colony case studies is contextualized against wider developments across British Africa and the British Empire more broadly: Foreign, Commonwealth and Dominions Office legal, penal and social welfare records and ‘Blue Book’ annual statistics from the National Archives at Kew and digital archives provide the supplementary evidence base here, alongside colonial officials’ private papers, newspapers and non-governmental organization archives. Photographs of executions are not reproduced in this book on ethical grounds. The courts which tried capital cases were not monolithic blocks but sites of contestations where values and beliefs were not only expressed but shaped.75 Genealogies of violence shifted as colonial peoples exploited colonial misunderstandings about the nature of violence, and employed both truth and fiction in their court-room narratives.76 Criminal records can reveal how colonial categories of knowledge  – in this case the ‘African murderer’ or ‘condemned criminal’  – constituted colonized people as objects of study and control in the service of state power. In a sense, history begins where justice ends. Long after the judge finishes a case and sends its record off to gather dust in the archives, a historian can reclaim it for their own purposes. The colonial legal archive is another ‘technology of rule’, embodying ‘documents of exclusion’ as well as inclusion.77 In dealing with legal archives, few historians concern themselves so 75. Richard Roberts, ‘Text and Testimony in the Tribunal de Première Instance during the Early Twentieth-Century’, Journal of African History 31, no. 3 (1990): 447–60. 76. Ann Laura Stoler, ‘“In Cold Blood”: Hierarchies of Credibility and the Politics of Colonial Narratives’, Representations 37, no. 1 (1992): 152–4. 77. Ann Laura Stoler, ‘Colonial Archives and the Arts of Governance: On the Content and the Form’, in Refiguring the Archive, ed. C. Hamilton et al. (Cape Town: Kluwer Academic Publishers, 2002), 83, 89; Catherine Colebourne, ‘Crime, the Legal Archive and Postcolonial Histories’, in Crime and Empire, 1840–1940: Criminal Justice in Local and Global Context, ed. Barry Godfrey and Graeme Dunstall (Cullompton: Willan, 2005), 100.

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long after the crime with the contested issues of guilt or innocence.78 The value of criminal records for history is not so much what they uncover about a particular crime, as what they reveal about otherwise invisible or opaque aspects of human experience, particularly in Africa where our knowledge of communities’ daily lives can be sparse.79 A reliance on judicial records, however, creates a number of practical and methodological concerns for the historian. Violence, as a concept or action, is not constant across chronology and location, and has its own history and cultural specificity.80 Murder trial narratives cannot give us a comprehensive view of manifestations of violence within African communities, or its general treatment in courts, nor even of colonial violence itself, as they are by their nature exceptional narratives of lethal violence. As the disposition of cases is so closely linked to the widely varied circumstances of the crimes, it is difficult to determine localized changes in attitudes towards violence among African communities and colonial states, particularly over a relatively short time period. Despite this, and although many records have not survived in the archive or are incomplete, capital punishment is still an invaluable lens for the study both of colonial violence and penality, and of social conflict and violence within African communities. There are some striking silences in these texts: not just about the facts and circumstances of particular crimes, but larger, structural silences. Whilst discourses of gender, race, ethnicity and generation resound throughout the records, there is little explicit discussion of class tensions, as these are subsumed within racial hierarchies. There is a relative silence around the impact of changing religious beliefs on attitudes towards punishment and death  – somewhat surprisingly considering the spread of Christianity and Islam throughout this period.81 What discussion there is centres around ‘native custom’, particularly about how such custom can motivate or sanction homicidal violence, as with the murder of suspected witches or thieves, or on local practices of compensation and reconciliation ceremonies. Rather than attempting to explain the structures of governmental and inter-personal violence, here their lethal manifestation in Africa is analysed as a form of culturally embedded violence, using the lens of trial narratives to elucidate what colonial officers and African communities thought of such crimes and punishments, and to highlight the tensions within, and between, these sectors of colonial society. History of emotions perspectives also used to explore both colonial intentions and African responses to the death penalty, particularly in courtroom testimony, petitions for mercy and execution reporting. 78. Carlo Ginzburg, ‘Checking the Evidence: The Judge and the Historian’, Critical Enquiry 18, no. 1 (1991): 83–4. 79. Edward Muir and Guido Ruggiero, eds., History from Crime (Baltimore: John Hopkins University Press, 1994), v. 80. John Carter Wood, Violence and Crime in Nineteenth-Century England: The Shadow of Our Refinement (London: Routledge, 2004), 2. 81. See Walima T. Kalusa and Megan Vaughan, Death, Belief and Politics in Central Africa (Lusaka: Lembani Trust, 2013); Parker, In My Time of Dying.

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The structure of this book follows the process of capital punishment: from investigation and prosecution, through sentencing in court to the governor’s final decision and then death row and the rituals of execution, whilst looking at the main factors which influenced that decision – law, administration, security, race and politics. The subjects under discussion in the book’s three sections illustrate the major contemporary debates on capital punishment which occurred during the colonial period: those relating to the legal limits of the death penalty and the crimes for which it could be inflicted; its role in colonial penal systems; the prerogative of mercy; the use of capital punishment in responses to anti-colonial rebellion; the risk of scandals generated by unpopular or botched executions; and the methods and practice of hangings themselves. Each chapter has a slightly different critical approach as it deals with different types of evidence in assessing these debates. Undoubtedly, there are omissions and elisions in the analysis of capital punishment offered here, but in its thematic and comparative approach this book aims to encourage further study of colonial punishment to fill the gaps, and to challenge or refine the arguments made. The first section sets out the legal and penal contexts to colonial capital punishment. Chapter 1 concentrates on the legal and administrative processes which shaped the death penalty as a legal sentence in Africa. It looks at the prosecution and sentencing of capital cases, which were predominantly trials for the crime of murder. Debates over how capital cases should be tried raged at two levels: between legal and administrative officers within a colonial state, and between the metropole and colony. Metropolitan universality, with its desire for equable legal systems between its colonies and for bringing these territories closer into line with English legal practice, clashed with colonial particularism over whether common law and due process standards could or should be applied in African colonies, whilst the dialectical relationship between the provisions of ‘Law’ and the need to maintain ‘Order’ created tensions with colonies over issues including African juries, mandatory death sentences and the provision of alternative sentences. Chapter 2 takes a penal history approach to give an overview of the rates of capital convictions and executions across Britain’s African colonies and contextualizes capital punishment within broader strategies of colonial punishment from the early to late colonial periods, highlighting the tensions between reformist penal impulses and the realities of continued violence within colonial penality. The second section delves into capital case files from Kenya, Nyasaland and the Gold Coast to explore social histories of crime and deviance and provide a comparative analysis of how the punishment of capital crimes was shaped by the variegated moral and political landscapes of colonialism. Chapter 3 engages with clemency studies to provide a comparative analysis of the royal prerogative of mercy, highlighting key categories of murderers who were, and were not, thought befitting of clemency. It argues that mercy operated on three levels: as an arbitrary modulation of judicial severity; as the implementation of established principles imported from the metropole and adapted to African climates; and as an expression of the racial politics of colonial rule and local landscapes of power. Chapter 4 develops this analysis by focusing on how mercy was shaped by the ideological

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and affective landscapes of colonial governance, with cultural defence narratives operating through both paternalistic and dehumanizing discourses to argue for mercy for individual accused Africans at the price of reinforcing racial stereotypes, and also highlighting how African agency and emotions shaped mercy decisions. Chapter 5 shifts to focus on the greatest source of fear for colonial administrations, looking at the role of capital punishment in combating anti-colonial rebellion, and its functioning as both a didactic and repressive tool in the maintenance of ‘law and order’. Bookended by the 1915 Chilembwe Rebellion in Nyasaland and the Kenyan State of Emergency (1952–60), the chapter contributes to scholarship on colonial counterinsurgency by analysing the relationship between capital punishment and states of emergency, between normative and ‘exceptional’ justifications for the death penalty. Finally, the third section pans back to a broader imperial overview, focusing on the evolving spectacle of the death penalty. Chapter 6 shifts the focus from colonial courtrooms to imperial and metropolitan politics, showing how the death penalty became increasingly politicized against a background of rising humanitarian, abolitionist and anti-colonial sentiment. It shows how capital punishment became a discursive icon for both the ‘civilization’ and ‘barbarity’ of late colonial states. Whilst colonial officers portrayed it as an essential defence of British rule and its ‘civilized’ order, the death penalty alternatively became a powerful synecdoche of the vagaries of colonial rule in the hands of anti-colonial and humanitarian protestors in both Britain and Africa. This chapter is framed around a series of scandals that shaped imperial penality, from public multiple hangings in Nigeria, to the proposed execution of elites for fetish murder in the Gold Coast, through to Malawi’s postcolonial justifications for publicly hanging of enemies of the state as following colonial practice. Chapter 7 investigates the rituals and processes of execution, from death row to the gallows, which marked the lethal culmination of a colonial state’s judicial violence. This chapter draws on socio-legal theories and cultural histories to trace the evolution of colonial executions from public hangings to modernized gallows behind prison doors, looking at how discourses of ‘civilization’ and ‘humanity’ were used to reform and retain judicial executions. It demonstrates how the method of execution was as bound up in the politics of colonial society and the dialectics between metropolitan influences and colonial conditions, as it was with transforming sensibilities towards the public infliction of pain upon criminalized, colonized bodies. Throughout the colonial period in British Africa, capital punishment remained integral to the strategies and practice of colonial rule, representing both its violence and its self-proclaimed civilization, as the following chapters will reveal.

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Chapter 1 ‘ T H E E X T R E M E P E NA LT Y O F T H E L AW ’ : L AW, C OU RT S A N D C O L O N IA L C R I M I NA L J U ST IC E

169. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. 170. Any person convicted of murder shall be sentenced to death.1 – Penal Code of Nyasaland, Ordinance No. 22 of 1929 It is cases like this which throw a flood light on our law of murder and show it up as the barbarous and cruel anachronism it happens to be. It is not surprising that a simple (and probably humane) savage like the prisoner found himself unable to understand why he had been convicted of an offence for which the law compels a judge to pass the sentence of death, and the jury’s obvious reluctance to convict is, in the circumstances, natural and hardly reprehensible.2 – Puisne Judge Aitkens, R. v. Amewudje Awahe, 31 October 1933 In colonial Africa the law was a cultural project, not just integral to but constitutive of colonialism and its attempts to channel and affect social change.3 Criminal justice was central to the operation of British colonial administration and to demonstrating the superiority of British justice to colonized Africans. As Martin Wiener asserts, law ‘lay at the heart of the British imperial enterprise. And criminal justice was the core of law’.4 Law within the British Empire was ‘not simply a beneficent repository of rights and protections’; it was also a form of ‘lawfare’ and a tool ‘to conquer and control indigenous people by the coercive

1. Nyasaland Protectorate, Ordinances of the Nyasaland Protectorate for the Year Ended 31st December 1929 (Zomba: Government Printer, 1930), 92. 2. Amewudje Awahe 1933, PRAAD, CSO 15/3/82. 3. Laura A. Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002), 253. 4. Wiener, Empire on Trial, 9.

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use of legal means’.5 This legal dual nature strongly influenced the operation of the death penalty. In the nineteenth and early twentieth centuries, capital punishment was widely regarded as the ultimate deterrent against violent crime and social disorder, in both Britain and its colonies. Its use, however, was highly contested, particularly in the colonial context. Many officials argued that such lethal violence was unsuitable for the punishment of Africans, whose attitudes towards justice and the taking of human life differed markedly from those of Europeans. Even amongst those officers who supported the introduction of British standards of law and punishment in Africa, opinions varied on how best to apply what officials termed the ‘extreme penalty of the law’ in a colonial context. That the death penalty would be applied in Africa was rarely seriously contested; but what debates between the Colonial Office in London and its colonial governments, and between the administrative and legal sectors of these governments, reveal is that the law was an arena of contested authority not just between colonizers and their African subjects, but within colonial states themselves.6 Debates raged between administrative and legal officials over exactly what colonial ‘justice’ was and how it should be prosecuted: did the strict application of the law and due process, or a more pragmatic, substantive justice offer the best protection of African subjects and colonial order? London’s universalistic yearnings to develop a common framework of criminal jurisprudence across its empire and bring African territories more in line with English law were frequently opposed by colonial governments who stressed the importance of recognizing local particularities in developing suitable legal and penal systems. Whilst there is an extensive literature on colonial law in Africa and the British Empire, the literature on criminal justice is relatively underdeveloped compared to that on customary and civil law.7 This chapter focuses on the legal history of the death penalty in British colonial Africa, drawing on a combination of legal ordinances and criminal codes, legal department records, colonial investigations, and private papers and memoirs from colonial judges and magistrates to analyse both colonial criminal law and its enactment in court. The chapter makes three key arguments. Firstly, although there were common legal definitions of murder and a standard application of the mandatory death penalty to punish it across much of British Africa for most of the colonial period, significant variations emerged in criminal justice systems. The laws and practices of capital punishment were applied in very distinct ways across the empire, and there was a lack of central oversight and 5. Lobban, Imperial Incarceration, 12–20; Comaroff, ‘Colonialism, Culture and the Law: A Foreword’. 6. Kristin Mann and Richard Roberts, ‘Introduction: Law in Colonial Africa’, in Law in Colonial Africa, ed. Kristin Mann and Richard Roberts (London: James Currey, 1991), 3. 7. See Kebreab Isaac Weldesellasie, ‘The Development of Criminal Law and Criminal Justice in Africa from Pre-Colonial Rule to the Present Day’, in The International Criminal Court and Africa, ed. Charles Chernor Jalloh and Ilias Bantekas (Oxford: Oxford University Press, 2017), 247–71, which dedicates two brief paragraphs to the topic.

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accountability from the Colonial Office which allowed such variations to spread.8 Legal differences developed, both between and within colonies, as a result of how the evolution of imperial criminal law and jurisprudence mapped onto historical processes of colonization. This meant that Africans accused of murder were not all tried under the same criminal codes or with the same legal protections. The chapter outlines the process of bringing a murder case to trial to highlight the historical contingency of capital sentencing. Secondly, it argues that colonial criminal justice was shaped by strong tensions between the due process of strict law to protect the rights of accused Africans, and a form of colonial legal pragmatism that supported the adaptation of law to fit the needs of justice in an imperial context. It analyses the tensions between metropolitan universality and colonial particularism, between due process and substantive justice, that shaped the death penalty as a legal sentence. Finally, it argues that whilst judges and colonial administrations accepted the need for the death penalty, and its importation from common law statute, many held significant concerns about its translation and application in an African context, both legally and morally. It analyses the tensions between metropolitan universality and colonial particularism, between due process and substantive justice, which shaped the death penalty as a legal sentence. Ultimately, for all the rhetoric of justice and civilization, these politico-legal contests were really about the nexus of colonial power and its straining filaments of authority.

Criminal law and the colonial order: Capital legislation in colonial Africa During the colonization of Africa, military force and political alliances were essential to the spread and maintenance of colonial hegemony, but the law was also a critical component of colonial power.9 In the Gold Coast, murder trials and executions formed a key locus of the performance of colonial power from the outset. Under the Bond of 1844 signed between Britain and the Fante chieftaincies, ‘[m]urders, robberies, and other crimes and offences will be tried and inquired of before the Queen’s judicial officers and the chiefs of the district, moulding the customs of the country to the general principles of British law’.10 British colonial regimes in particular placed great emphasis on the importance of courts as the cornerstone of imperial justice and law and order: civilization was explicitly equated

8. See Jackson, ‘Execution and Empire’. 9. See Diane E. Kirkby and Catharine Colebourne, eds., Law, History and Colonialism: The Reach of Empire (Manchester: Manchester University Press, 2001); Benton, Law and Colonial Cultures. 10. Bond of 1844 cited in J. J. Crooks, Records Relating to the Gold Coast Settlements from 1750–1874 (London: Cass, [1923] 1973), 296.

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with the rule of law.11 English common law formed the basis of most colonial legal systems, although customary law was to be incorporated into judgements in cases involving Africans where it was deemed ‘not repugnant to justice or morality’.12 What emerged in most British territories was a pluralistic and bifurcated legal system, with Native Courts established to try lesser offences against customary law and colonial regulations, whilst more serious offences would be tried by British officers under adapted English common law in magistrates’ or district courts. Across British Africa, the most serious cases, including murder, were normally reserved for trial in the High or Supreme Court, or later in its assizes in regional capitals. However, in some territories with weaker state infrastructure, such as the Northern Frontier District of Kenya, and in outlying regions of Nyasaland, Uganda and Tanganyika, district magistrates retained the power to try capital cases until the 1930s.13 Colonization was predicated upon establishing a monopoly over the right to violence, and the power of death, by a colonial state. The only Native Courts to retain their customary capital powers into the twentieth century were the Kabaka’s royal courts in Buganda until 1916 and the Emirs’ courts in Northern Nigeria until 1936.14 The retention of capital powers by Emirs proved controversial, particularly where a court applying Maliki law enforced the death penalty for a homicide which would have only been adjudged manslaughter under common law.15 It was conflicts such as these between British justice and African practice that led to tensions between the legal and administrative arms of colonial states, and their African subjects.16 Variegated criminal justice systems emerged from the different forms of colonial state and governance which developed across Africa during colonization in the nineteenth and twentieth centuries. In the nineteenth century, coastal West African territories evolved legal systems closely modelled on English common law, but which also incorporated influences from multiple waves of European colonial intervention and drew directly on global imperial precedents. The legal colonization of the Gold Coast was marked by influences from Danish, Swedish, English and Scots legal cultures, as well as from indigenous Akan, Ga-Adangme, Ewe, Guan and Mole-Dagbane customs.17 The Gold Coast Criminal Procedure 11. Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, 1996), 109. 12. Chanock, Law, Custom and Social Order, 48, 72–4. 13. See Malcolm Hailey, An African Survey Revised 1956: A Survey of Problems in Africa South of the Sahara, 2nd edn. (London: Oxford University Press, 1956), 611–16. 14. David Killingray, ‘Punishment to Fit the Crime? Penal Policy and Practice in British Colonial Africa’, in Enfermement, Prison et Châtiments en Afrique: du 19e siècle à Nos Jours, ed. Florence Bernault (Paris: Karthala, 1999), 199. 15. Alan Milner, The Nigerian Penal System (London: Sweet and Maxwell, 1972), 333. 16. See Kenneth Roberts-Wray, Commonwealth and Colonial Law (London: Stevens, 1966). 17. See Taslim Olawale Elias, Ghana and Sierra Leone: The Development of their Laws and Constitutions (London: Stevens & Sons Ltd, 1962).

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Ordinance of 1876, which remained in force until 1935, was informed by Straits Settlements, Hong Kong, Fiji and Leeward Islands legislation, drawing on earlier Bengal and Queensland codes and amendments.18 After 1935, as part of a wider justice reform, a new Criminal Procedure Ordinance was instituted following the Gambian code.19 On the other side of the continent, in the early twentieth century the East African Protectorate and Sudan adopted legal systems based on the Indian Penal Code (IPC), which was held to be less complex and legalistic than English common law and thus more suited to being applied by administrative officers in African situations. Under the IPC, anyone charged with murder could alternatively be found guilty of homicide not amounting to murder, of causing grievous hurt and of causing hurt.20 Capital punishment was designated a discretionary sentence for murder, alongside transportation for life plus a fine.21 However, numerous cases from Kenya, in particular those where settlers accused of crimes of violence against Africans were cleared or found guilty of lesser charges by juries of their peers, contributed to a sense that the IPC was failing to provide strict justice, and after 1930 it was replaced across East Africa by territorial Penal Codes and Criminal Procedures Ordinances based more closely on common law.22 Nyasaland followed English common law until 1930 when it also adopted the new East African codes.23 In Southern Africa, the High Commission Territories and Southern Rhodesia all adopted Romano-Dutch legal systems after coming under South African overview during their formative years, and it was not until 1964 in the High Commission

18. See Gold Coast, Supreme Court Ordinance, cap 7, s.14; H. F. Morris, ‘A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935’, Journal of African Law 18, no. 1 (1974): 7; Gold Coast, The Gold Coast Handbook (Accra: Government Press, 1923), 304. 19. Morris, ‘A History of the Adoption of Codes of Criminal Law’, 6, 23. This in turn subsequently influenced amendments in Kenya, Ugandan, Tanganyika and Nyasaland. 20. Paul Swanepoel, ‘Codifying Criminal Law in East Africa during the Interwar Period’, Stichproben: Vienna Journal of African Studies 37 (2019): 96. These provisions resulted in much lower conviction and execution rates before 1930 in relation to reported killings. 21. See East African Protectorate, Criminal Procedures Ordinance No. 6 of 1914, s.302. Imprisonment was later substituted for transportation. The death penalty was also available for murder and abetment of the suicide of a child or mentally ill person and was only mandatory for murder of a person under sentence of transportation for life, or attempted murder by someone serving a life sentence. 22. Morris and Read, Indirect Rule and the Search for Justice; Wiener, An Empire on Trial, 196–216. An IPC-based code established in 1899 remained in force in Sudan until independence however as it was judged the most effective legal code for the difficult ‘frontier’ nature of Sudanese governance. See Krishna Vasdev, Law of Homicide in Sudan (London: Butterworths, 1978). 23. Morris, ‘The History of the Adoption of Codes of Criminal Law’, 18.

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Territories that an English common law-based criminal code (based on Kenya’s) was introduced. These countries consequently varied from other British African territories in that after 1935–8 they followed the South African model whereby the death penalty was only mandatory in cases where there were deemed to be no extenuating circumstances that reduced guilt.24 Although capital legislation differed in subsidiary provisions across the various territories, it generally followed British precedent and established the death penalty for a limited number of offences: murder, treason, instigating foreign invasion, waging war against the sovereign, arson at royal dockyards and piracy. The vast majority of capital charges were for murder, with treason charges only arising in times of rebellion and the remaining offences being symbolic legislation transposed from English statutes. Following common law precedent, murder was defined as intentionally causing the death of another person by unlawful act or omission.25 As in Britain, the recognized form of execution was hanging.26 One substantive difference between metropolitan and colonial provisions was that rape also became a capital crime in selected territories  – Natal, Cape Colony, Basutoland, Rhodesia, Nyasaland and Kenya, as will be discussed in Chapter 5.27 Again, following common law precedent, a death sentence was mandatory for every murder and treason conviction except those where the convicted person was either a pregnant woman or adjudged to be a juvenile offender. In such cases, the young offender would be ‘detained at the Governor’s pleasure’ in either a prison or a juvenile reformatory, whilst pregnant women were sentenced to terms of imprisonment.28 The other category of murderer who could not be sentenced to death were those offenders found guilty but insane at trial. These individuals

24. R. D. Leslie, ‘“Lesotho, Botswana, Swaziland” and David Welsh “Capital Punishment in South Africa”’, in African Penal Systems, ed. Alan Milner (London: Routledge and Kegan Paul, 1969), 181–2, 397–9; Enoch Dumbutshena, ‘The Death Penalty in Zimbabwe’, Revue Internationale de Droit Pénal 58, no. 3–4 (1987): 522. See Turrell, White Mercy, 201–30 on South Africa’s discretionary death penalty. 25. See Penal Code of Nyasaland, Ordinance No. 22 of 1929, s. 169. 26. Capital Punishment – Replies to Circular 750/1956, TNA CO 859/637. 27. Simon Coldham, ‘Crime and Punishment in British Colonial Africa’, Recueils de la Société Jean Bodin 58 (1991): 61. 28. See Death Sentences on Young Persons 1915, Kenyan National Archives, Nairobi [KNA] AP/1/934; Death Sentences on Women 1934, TNA CO 323/1283/4. Records often do not reveal the duration of the detention; some were released on reaching adulthood, others transferred to prisons. The age limit for juvenile offenders varied; in many colonies it was eighteen, but the Gold Coast apparently had a minimum age of sixteen years for the death penalty. R. v. Kofi Tawiah, Murder Book Cape Coast, 1940–1, PRAAD SCT 5/8/7. Death sentences were also available for infanticide in some territories until the 1930s but were not enforced in practice. See Women Convicted of Offences Punishable by Death, PRAAD CSO 7/5/39.

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would instead be committed to an asylum, if space were available in these notoriously overcrowded institutions; if not, they would be held in prison until they were determined safe for release.29

Bringing murder to trial in colonial Africa The path from a murder to conviction in court, through appeal, to the gallows could be long and arduous. Although in the early years of colonial pacification the summary trial and execution of suspected murderers or rebels was common, the application of English law and procedures in Britain’s African territories saw the emergence of a sometimes-lengthy procedure for successfully prosecuting a case. Firstly, the body had to be discovered and reported. This aspect of criminal investigation is little documented, and it is sometimes unclear from the archival record how the murder was brought to official attention. Murders were reported to police or local chiefs through eye-witness accounts, missing persons being reported by their families, or by someone simply  – sometimes literally  – stumbling across a body. Others were discovered after failed suicide attempts by the perpetrator.30 In a surprising number of cases, particularly in the early twentieth century, perpetrators openly confessed their crimes to native authorities or district officers: ‘You need not come forward. I have killed my wife Abena Yeboa. I am going to see the District Commissioner.’31 In other cases however, the local community conspired to conceal a murder, often with their native authority’s knowledge, and the decomposed body would only come to light months later with much of the evidence destroyed.32 This was particularly the case where the community supported the perpetrator’s actions and did not wish to draw the disciplinary colonial gaze upon their village, as with the killing of suspected witches.33 Once a body was reported an investigation would be made by the police, often under the charge of the district officer in outlying areas. With limited manpower and very few forensic resources these investigations were usually cursory affairs

29. See Megan Vaughan, ‘Idioms of Madness: Zomba Lunatic Asylum, Nyasaland, in the Colonial Period’, Journal of Southern African Studies 9, no. 2 (1983): 218–38. More generally, see Jock McCulloch, Colonial Psychiatry and the ‘African Mind’ (Cambridge: Cambridge University Press, 1995). 30. Yaw Appiah, 1931, PRAAD CSO 15/3/12. 31. Kojo Buahin, 1940, PRAAD CSO 15/3/46. 32. See R. v. John Seremani, National Archives of Malawi, Zomba [NAM] S1/2627/22; Shunga s/o Njuhiga and Kumonyo s/o Njau, KNA MLA/1/626. 33. Trevor Colchester, ‘Punishment of a Witchdoctor by Death in Meru, 1933’, WL MSS. Afr.s.742(2).

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in intra-African murders.34 Medical and photographic evidence is scarce in the archives. Although autopsies were routinely conducted by local medical officers, in many cases a lack of forensic knowledge and the advanced decomposition of corpses rendered identifying the body difficult and determining the exact cause and time of death impossible, thereby introducing an element of doubt into prosecutions.35 Witness statements and confessions therefore often proved crucial to securing a prosecutable case. As a result, there were frequent allegations of suspects being beaten to extract confessions by African policemen, and sometimes their European officers.36 Once a suspect had been arrested, charged and a prosecutable case established, the case would normally be submitted for preliminary examination in a district magistrate’s court, where the defendant could be either released on insufficient evidence or remanded for trial in the High Court. Whilst on remand, the accused would, where possible, be examined by medical doctors or government psychologists in order to ascertain their mental state and their ability to stand trial. In many cases, however, no suspect could be identified and in others the colonial state was unable to make a successful case against an accused person: in the Gold Coast between April 1923 and March 1938 the police recorded 1,317 murder investigations, of which 840 went to trial and only 378 resulted in a conviction.37 There were large variations in the criminal justice systems which tried accused murderers across British Africa  – sometimes even within the same colony.38 As a result of protracted conquest and colonization, the Gold Coast was split, administratively and legally, into three regions: the Colony of the Gold Coast, the coastal region; the Protectorate of Ashanti, the former Asante Empire which was pacified in 1902 after four wars; and the Protectorate of the Northern Territories, the least developed region. During early colonization in the mid-nineteenth century, asserting jurisdiction over capital punishment was central to colonial attempts to establish authority and negotiate with local elites.39 In the Colony, the 34. See Jeffrey Jentzen, ‘Death and Empire: Medicolegal Investigations and Practice across the British Empire’, in Global Forensic Cultures: Making Fact and Justice in the Modern Era, ed. Ian Burney and Christopher Hamlin (Baltimore: Johns Hopkins University Press), 149–79. 35. See Brekum Konkomba, 1933, PRAAD CSO 4/5/113–4. 36. See KNA AG/52/333–7 and Bushe Commission, 81–93 on investigations into police brutality in Kenya; R. v. A. T. Amponsah, J. K. Boateng, Osumanu Dagomba, Haruna Moshi, Billa Moshie, 4 WACA (1936), 120; Kofie Fofie, PRAAD CSO 15/3/21; R. v. Roberto Simoya and 3 others, NAM, J5/5/67b. 37. Figures taken from the Gold Coast annual prison reports for 1923–38. Chapter 2 looks at colonial perceptions of murder rates in more detail. 38. For more detail on the Gold Coast, see Neal M. Goldman, ‘Fallible Justice: The Dilemma of the British in the Gold Coast, 1874–1944’ (PhD, CUNY, 2016), 412–52. 39. See Erin Braatz, Prisons and Colonial Rule on the Gold Coast, 1844–1957 (PhD, New York University, 2015).

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court system that emerged was closely modelled on that of England.40 A Supreme Court was formally established from 1876, in addition to the native courts and district commissioners’ courts which tried less serious offences. Exceptionally, jury trials were held for Africans charged with serious offences, including murder.41 Jury trials by African peers were highly unusual in Britain’s African territories, apparently being limited to the Gold Coast, Sierra Leone and the Gambia.42 Representation by counsel was also practised in the Colony from the 1860s.43 The Gold Coast developed a particular reputation for its legalistic culture. Officials described it as the ‘land of the “palaver”’ with the people being ‘among the most litigious in the British Empire, if not the world. Faction and inter-tribal fights have very largely disappeared in favour of the law-suit’.44 Despite official misgivings about their disruptive presence, by the mid-1880s qualified English lawyers and Africans trained in Sierra Leone were practising across the Gold Coast Colony.45 By the turn of the century, an elite cohort of English-trained Gold Coast lawyers had emerged, led by the likes of J. E. Casely Hayford, John Mensah Sarbah and later J. B. Danquah, who mobilized their legal knowledge to challenge British rule and established early nationalist movements like the Gold Coast Aborigines’ Rights Protection Society and the National Congress of British West Africa, as well as acting for the defence in high-profile murder cases, as explored in Chapter 6.46 Although they were few in number and spent their careers fighting racist prejudices, African lawyers were also appointed as judges and presided over capital trials from the mid-1930s.47

40. See D. K. Afreh, ‘Ghana’ in Judicial and Legal Systems in Africa, 2nd edn., ed. A. N. Allot (London: Butterworths, 1970), 25–40; Elias, Ghana and Sierra Leone. 41. W. B. Griffith, Gold Coast: A Note in the History of the British Courts in the Gold Coast Colony, with a Brief Account of the Changes in the Constitution of the Colony, by Sir William Brandford Griffith CBE (Accra: Government Printers, [1904] 1936). 42. Penal – Death Sentences, TNA CO 859/37/11; Jury Trials in the Colonies, TNA CO 1026/198. 43. Persons on Trial for Capital and Other Offences – Legal Assistance, PRAAD CSO 4/1/285–6. 44. Sydney Nettleton King-Farlow, Some Gold Coast Judgements 1915, 1916, 1917 and the Masai Case in the Court of Appeal for Eastern Africa, 1913 (Privately Printed, 1917), 1. 45. Goldman, ‘Fallible Justice’, 79–88. Comparably, in Nyasaland the first Englishqualified Africa lawyer, Orton Chirwa, took the bar in 1958, and in Kenya African lawyers only qualified after 1952. A majority of Kenya’s advocates were Indian. Defence in Murder and Rape Cases, 1927–51, KNA AG/52/1525. See McCracken, A History of Malawi, 269; John Lonsdale, ‘Kenyatta’s Trials Breaking and Making an African Nationalist’, in The Moral World of the Law, ed. Paul Coss (Cambridge: Cambridge University Press, 2000), 200. 46. See Björn Edsman, Lawyers in Gold Coast Politics, c.1900–1945 (Uppsala: University of Uppsala Press, 1979). 47. Goldman, ‘Fallible Justice’, 180–96.

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At the other end of the scale came Ashanti and the Northern Territories, which were annexed during the apex of ‘High Imperialism’ at the turn of the twentieth century. Their legal systems followed a model of substantive colonial justice that became common across British African colonies, including Kenya and Nyasaland. The Administration of Ashanti Ordinance (No. 1 of 1902) established that in terms of criminal law, the chief commissioner’s and district commissioners’ courts established in the protectorate should be guided by the Criminal Code of the Gold Coast Colony ‘so far as it is practicable and local circumstances permit’.48 Officials decided that a jury system was not practicable in Ashanti given the weak hegemony of colonial state and a low level of literacy limiting the pool of jurors available. Instead, they instituted a bench system whereby the chief commissioner, or his duly appointed representative, sat in judgement aided only by three assessors whose role was to offer advice on points of local customary law.49 Under the 1906 Courts Ordinance both defence and crown counsels were also prohibited from appearing before the courts in Ashanti as it was not deemed appropriate ‘to introduce among a primitive race argumentative, and sometimes dishonest and ignorant legal practitioners [who could be] … an agency for serious mischief ’.50 The Supreme Court had no jurisdiction in Ashanti before 1935, although the chief commissioner could transfer cases to the Supreme Court if he saw fit. Additionally, appeal to the West African Court of Appeal was only established after 1932, and jury trials were not permitted until 1953.51 The Northern Territories followed the same model of bench trials throughout the colonial period, to the consternation of some officials. As one Colony-based judge noted, ‘when I visited the Northern Territories as Acting Circuit Judge I quickly discovered that standards of justice applicable to cases in the Colony are often wholly inapplicable in the Northern Territories’.52 There was a distinct variation across, and sometimes within, colonies as to who presided over capital trials. In many cases, trials were led by fully qualified and experienced colonial judges. These judges were, as Lonsdale notes, centripetal imperial actors and ‘global professionals’ who circled the globe in their postings and whose ‘precedents were imperial’.53 Walter Harragin appears repeatedly in the 48. Administration of Ashanti Ordinance (No. 1 of 1902), s. 8–9; Ashanti Administration Fourth Amendment Ordinance (No. 7 of 1925), s. 22. 49. Judicature Ordinance (No. 9 of 1919), s. 2–3. A professional assize judge replaced the chief commissioner in all cases, with the exception of those involving customary law, after 1918. 50. Albert Lieck, ed., The Trial of Benjamin Knowles (Edinburgh: William Hodge & Co, 1933), 10. 51. W. C. Ekow Daniels, The Common Law in West Africa (London: Butterworths, 1964), 46. 52. Nassy Konkomba, 1934, PRAAD CSO 4/5/115. 53. Lonsdale, ‘Kenyatta’s Trials’, 200. See Bonny Ibhawoh, Imperial Justice: Africans in Empire’s Court (Oxford: Oxford University Press, 2013).

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following chapters. Born in British Guiana, he started his colonial career in 1914 as a clerk of the peace in Trinidad and Tobago, moved to become attorney-general in Nyasaland in 1927, then Kenya in 1933, before becoming chief justice of the Gold Coast in 1944. After the Second World War, Harragin was president of the West African Court of Appeal, then appointed legal adviser and chief justice of the High Commission Territories (modern Botswana, Lesotho and Swaziland), served as a judge in Kenya during the state of emergency, and ended his career as judge and then president of the Court of Appeal for Basutoland, Bechuanaland and Swaziland. Such imperial networks of legal knowledge inevitably shaped judicial decision-making. In the Gold Coast in 1941, Attorney-General Petridies noted that he and Judge Cooper had both served in the Seychelles and Mauritius. In both territories, killing without premeditation was considered manslaughter rather than murder, and as such Petridies and Cooper both tended to strongly recommend mercy in such cases in the Gold Coast.54 However, these imperial networks were arterial rather than capillary, in Frederick Cooper’s analysis of colonial power.55 As a result of the under-development of the legal systems in many African colonies, particularly before the 1920s, there was a lack of such qualified judges available to hear cases. Due to the understaffed, underfunded and overstretched nature of their legal systems, Kenya, Uganda and Nyasaland all pragmatically decided to grant extended jurisdiction to administrative officers acting as district magistrates in outlying regions to enable them to try capital cases, with review by the High Court.56 This system was a matter of contention, with Judge Grant in Nyasaland decrying it as problematic, stating in 1918 that ‘magistrates are administrative officers with little court experience’, which resulted in ‘police investigation and trial frequently become inexorably mixed, valuable evidence is not sifted from hearsay … charges are not properly made, nor is evidence properly connected with them and findings sometimes do not correspond with the charge’.57 The East African Court of Appeal strongly criticized administrative officers having jurisdiction in capital trials and their use was phased out by 1936.58 Regardless of who they faced as a judge, being on trial for murder in a colonial court would have been a disconcerting experience for African defendants, who often understood neither the ceremonial procedures nor the language in which they were being tried, and sometimes failed to call witnesses or give evidence in their defence.59 Once they took the stand to give evidence, witnesses and the accused would swear to tell the truth on a Bible, Qur’an, fetish or swear a customary oath depending on their religious affiliation. Murder trials were 54. Obeng Kofie, 1941, PRAAD CSO 15/3/209. 55. Frederick Cooper, ‘Conflict and Connection: Rethinking Colonial African History’, American Historical Review 99, no. 5 (1999): 1533. 56. Morris and Read, Indirect Rule and the Search for Justice, 99, 289. 57. Nyasaland Protectorate, Annual Judicial Report for the Year 1917–18, 5–9. 58. See Procedures, NAM 4-4-8R 2952. 59. Deshate Lobi 1935, PRAAD CSO 15/3/26.

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multilingual affairs, routinely being conducted in English, with translation into African vernaculars for the benefit of the accused, witnesses and the audience: cases with accused minority language speakers could involve multiple layers of translation, for example from Adele into Twi and then into English.60 More than one judge in Nyasaland needed to be reminded that his final judgement and sentence must be translated into the vernacular so that the condemned person could comprehend their fate.61 Testimony was normally given in the speaker’s preferred language, with some choosing to testify in English to leverage colonial civilizational prejudgements. Judges and the district officers who presided over murder trials varied markedly in their ability to comprehend the indigenous languages voiced in their courtrooms: most relied heavily on translators, but the linguistic skills of some were sufficient to query the accuracy of translations. Many African witnesses apparently had difficulty understanding the forms of evidence and testimony required from them, with judges and counsel repeatedly bemoaning witnesses’ courtroom behaviour, complaining that they changed their testimonies, lied or were unable to relate simple information such as distances or chronological times in order to reconstruct events in court.62 In a 1937 trial transcript from Sekondi in the Gold Coast, handwritten marginalia from Judge Savary emphatically states ‘liar’ against the testimony of one key witness.63 Magistrate Silberred in Blantyre argued that ‘one used to natives can tell instinctively in a majority of cases if it is the truth that is being spoken in an essential matter. There is almost always falsehood as to the circumstance’.64 Over and above the lies and omissions routinely made in courtroom testimonies, African cultures had very different conceptions of the ‘truth’ and styles of oral testimony than those which were enshrined in colonial court procedures. Conceptions of violence as both real and supernatural also defied accurate translation into colonial legal understandings, and notions of the levels of violence which were acceptable within a community differed sharply.65 It was not just court proceedings that were alien to African accused and witnesses; the moral universes that they and colonial judges inhabited differed 60. Kofi Kumah alias Kofi Konkonte, PRAAD CSO 4/5/107. 61. Memo, 18 April 1914, Judges Notebooks 1912–18, NAM; Letter J. W. Barth to Colonial Secretary, 8 November 1926, Conference of Law Officers, Nairobi 1922–36, NAM S1/615/22. 62. Difficulties in getting the witnesses to court, and frequent disappearances between the preliminary examination and final trial, meant that officials sometimes detained witnesses to guarantee testimony. See Mr T. L. Powys – Inquiries into the Death of, SC160/34, KNA AG/52/25. 63. R v Kofi Ammo, 1937, Murder Book Sekondi, 1936–41, PRAAD SCT 4/8/6. 64. Letter Acting Judge to Chief Secretary, 19 April 1921, R. v. Adalia and Others, NAM S1/164/21. 65. Wyatt MacGaffey, ‘Aesthetics and the Politics of Violence in Central Africa’, Journal of African Cultural Studies 13, no. 1 (2000): 63.

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markedly.66 Colonial judges and magistrates may have prided themselves on conducting fair trials, but their conception of justice and a fair hearing were far removed from those of their African subjects. Most were less concerned with ascertaining the essential truth of a case, than with the evidentiary proof sufficient for conviction or acquittal.67 The accused were further disadvantaged in court by the fact that only in the 1930s did it become standard to provide them with defence counsel; before then they could appear before the court without any legal representation, and with only the judge enjoined to protect their interests, a duty which some took more seriously than others.68 There was a proscription against accepting guilty pleas in cases involving Africans however, which at least meant that all cases had to be fully tried.69 Where defence counsel were permitted, these briefs were normally assigned pro bono publico and were often dispatched with the minimum of effort by counsel, many of whom did not even see their client until he stepped into court. Denys Roberts, crown prosecutor in Nyasaland in the 1950s, noted that ‘in a murder trial in Lilongwe, the defendant had retained Leonard Thorne, a clever English counsel who would have done well anywhere. I was no match for him when he was sober. Fortunately for me he had located a liquor shop in Lilongwe’.70 Still, it is noticeable in Nyasaland and Ashanti that when defence counsels were provided for all accused in capital trials after 1930, the rate of murder convictions dropped substantially with a concomitant increase in manslaughter convictions as defence lawyers were able to successfully plead guilty to the lesser charge, as will be discussed further in Chapter 2. There were two main avenues for Africans to influence sentencing outcomes; the first was to serve as a native assessor, and the second was to sit on a jury. The

66. Diana Jeater, ‘“Their Idea of Justice is so Peculiar”: Southern Rhodesia 1890–1923’, in The Moral World of the Law, ed. Paul Coss (Cambridge: Cambridge University Press, 2000), 178–95. 67. Assize judges also faced a shortage of legal texts to inform their judgements as these were normally kept in Supreme/High Court libraries. In the Gold Coast, books by English-trained African lawyers and law review collections by local officials became crucial reference texts for judges. See John Mensah Sarbah, Fanti Customary Law (London: William Clowes & Sons, 1897); Joseph Ephraim Casely Hayford, Gold Coast Native Institutions: With Thoughts upon a Healthy Imperial Policy for the Gold Coast and Ashanti (London: Sweet & Maxwell, 1903); H. W. H. Redwar, Comments on Some Ordinances of the Gold Coast Colony, with Notes on a Few Decided Cases (London: Sweet & Maxwell, 1909); King-Farlow, Some Gold Coast Judgements 1915, 1916, 1917, 2. 68. Procedures to be followed in Murder Cases in Nyasaland, NAM 4-4-8R 2952. 69. See R v Abderehemani bin Brahim, 2 E.A.C.A 81, cited in Digest of the Criminal Law of Kenya, Findings for Murder, 1945, KNA AG/52/400. 70. Under Secretary of State to Secretary of East African Governor’s Conference, 6 December 1939, NAM 4-4-8R2952; Denys Roberts, I’ll Do Better Next Time (Chichester: Barry Rose, 1995), 67.

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widespread absence of jury trials was a significant difference between English and colonial courts.71 Settler states like Kenya restricted the right to trial by jury to Europeans – a system which proved highly problematic with the persistent failure of white juries to convict their peers on charges of assaulting or murdering Africans despite often overwhelming evidence of their guilt.72 The Colony of the Gold Coast was a rare counter-example where capital cases were tried by a special jury of seven men, usually English-speaking, property-owning Africans, but sometimes also including European jurors.73 According to the Attorney-General, H. W. B. Blackall, this system came to work ‘tolerably well’, except where the criminal had means of corrupting the jurors, as in cases arising out of a ‘party-feud or where jurors are of the same party [tribe] as the accused’.74 Case files show that judges’ opinions were split on juries. Some noted that their jurors were ‘above the average intelligence and were very attentive to the evidence’.75 Others complained that jurors tended to base judgements on their assessment of the accused’s character rather than the facts of the case: ‘they must not allow their sympathy with the prisoner to affect their verdict – it was quite clear to me that there was some considerable danger of such an event taking place’.76 In the rest of British Africa, judges in cases involving African accused sat not with juries, but in bench trials with native assessors. These were usually provincial or village headmen, or elders, but sometimes also experienced European settlers or missionaries, whose function was to advise on any relevant points of African law and custom but whose opinions were not binding for the judge.77 Judges were also divided in their opinions on the usefulness of Native Assessors. Whilst some argued that assessors’ opinions were of the utmost importance in understanding circumstances and motivations behind the crime, others believed ‘that there are [not] two headmen in this district with intelligence enough to give an opinion of any weight; their presence is beneficial only in as much as a convicted native, pleading not guilty, understands that he is not convicted by the European alone,

71. See Jury System 1944–6, TNA CO 96/782/7. See R. Knox-Mawer, ‘The Jury System in British Colonial Africa’, Journal of African Law 2, no. 3 (1958): 160–3. 72. See Brett Shadle, ‘Settlers, Africans and Inter-Personal Violence, c.1900–1920s’, International Journal of African Historical Studies 45, no. 1 (2012): 57–80. 73. Crooks, Records Relating to the Gold Coast Settlements, 24–30. See Goldman, ‘Fallible Justice’, 426–42. 74. H. W. B. Blackall, Notes, WL MSS.Brit.Emp.s.447. 75. Judge Sydney Spencer Sawrey Cookson, April 1934, Kwame Ahadi, PRAAD CSO 15/5/72. 76. Amewudje Awahe 1933, PRAAD CSO 15/3/82. 77. See Benjamin N. Lawrance, Emily Lynn Osborn and Richard L. Roberts, eds., Intermediaries, Interpreters and Clerks: African Employees and the Making of Colonial Africa (Madison: University of Wisconsin Press, 2006).

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on interpreted evidence but that his own people judge him as well’.78 On the other hand, when assessors’ opinions were perceived as reflective of genuine local sentiment, judges would occasionally follow assessors’ recommendations against legal precedent and evidence. In one 1931 trial in Nyasaland, an elderly man Viaji was accused of the murder of his wife Msayu, whom he had taken in a leviratic marriage after his brother’s death. Both Chief Justice Morgan and the assessors believed Msayu was beaten unconscious and then raped with a knife after refusing sexual intercourse, dying from shock and haemorrhage. All three native assessors however found Viaji guilty only of manslaughter due to the provocation given by her refusal. Morgan recorded that although ‘your offence is a particularly obscene and disgusting one … they have taken a lenient view of your offence and shown you mercy. I would not like it to be said that a European judge is less merciful than his native advisers, so I shall accept their advice’ and sentenced him to seven years for manslaughter.79 Most judges were aware of the tensions between English and customary law that their findings could aggravate. As such, they often attempted to accommodate native law and custom within their judgements and mercy recommendations, at least as far as these could be reconciled to English law.80 Nyasaland’s AttorneyGeneral Charles Clifton-Roberts, later to become one of the most vocal critics of the colonial justice system and a member of the Howard League for Penal Reform, stated in 1921 that ‘native custom and native mentality can and I think should be considered, so far as circumstances permit, so long as legal principles as applied at home are not seriously affected in their application to the Protectorate’.81 The courts that tried capital cases were not monolithic blocks but sites of contestation where values and beliefs were both expressed and shaped.82 Where local opinion did not agree with the judgement passed by the colonial court, there was always the possibility of community action being taken against the identified offender, bringing the supremacy of British criminal justice into question. Such concerns highlight the nexus between legal, administrative and popular forms of justice; the legal systems in colonial Africa differed not just by English or customary law, but by the rifts and tensions between and within these reified categories. If the judge found an accused person guilty of murder, then they would be sentenced ‘to be hanged by the neck until dead’. At this point however, an appeal could be launched on questions of law, fact or sentence.83 Where a case 78. DO Ockenden to Chief Justice Griffin, 7 October 1911, R. v. Chibwana, NAM J5/12/7. See also Redwar, Comments on Some Ordinances of the Gold Coast, 106. 79. Criminal Case [CC]7/38 R. v. Viaji, NAM J5/5/62. 80. Zakeyu Sinsangu, 1934, NAM J5/12/34. 81. Attorney-General Clifton-Roberts to DO Hughes, Lilongwe 1921, Chetezera, NAM J5/12/17. 82. See Wiener, An Empire on Trial, 9–19. 83. See Appeals in Criminal Cases, PRAAD ADM 4/5/13.

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was tried in a District Court, appeal lay first to the High or Supreme Court of a territory. From the High Court, murder convictions could be taken to appeal in regional appeal courts: East African Court of Appeal (EACA) for British East Africa (Kenya), Uganda Protectorate and Nyasaland established in 1902; the West African Court of Appeal (WACA) for Nigeria, Sierra Leone, Togoland, the Gold Coast and Gambia, established in 1928; whilst after 1953, the Federal Supreme Court of Rhodesia and Nyasaland became the court of appeal for those territories. Final appeal lay to the Judicial Committee of the Privy Council (JCPC) in London, although it was reluctant to act as a court of criminal appeal. Few appellants could afford to push their appeal this far until in forma pauperis procedures were extended to the empire in 1944.84 It was only in the 1930s that appeals became standard in capital cases. Appeals were often also lengthy processes, with cases taking years to be decided, and concerns were frequently expressed about the length of time taken for capital trials due to appeals and overstretched justice systems.85 A series of appeals in the 1940s to the JCPC from British Somaliland in relation to interclan murders led to complaints from officials that to raise funds for appeals, tribesmen were retelling stories of old quarrels and attacks which were in turn fuelling new killings, creating a vicious cycle of revenge and unrest.86 Although colonial secretariats regarded capital appeals as ‘clutching at straws’, the rate of successful appeal against capital convictions appears to have been higher in Africa than it was in England where there were only twenty-three convictions quashed on appeal between 1900 and 1949.87 Even in the incomplete Kenyan archives, 114 recorded cases were successfully appealed  – having their sentences quashed, reduced or a retrial ordered  – between 1908 and 1955, not including State of Emergency capital offences. This was due primarily to regional courts of appeal finding fault with lesser standards of evidence and judicial direction applied in colonial courts. When appeal was exhausted, it fell to the governor to decide whether to enforce the death sentence, or whether to exercise his royal prerogative of mercy and commute the death sentence, saving the convicted murderer from the gallows – as will be discussed in the following chapters. 84. ‘Privy Council on poor person cases’, West Africa, 5 August 1944; Kwaku Mensah, PRAAD CSO 15/3/213; David B. Swinfen, Imperial Appeal: The Debate on Appeal to the Privy Council, 1833–1986 (Manchester: Manchester University Press, 1987). 85. See for example Capital Punishment Policy 1957–9, TNA CO 859/986; Legal – Privy Council Appeals 1944, TNA 323/1878. 86. Memorandum Brigadier G. T. Fisher, Military Governor Somaliland on Murder of Haji Elmi Ahmed, 9 September 1944, Legal: Privy Council Appeals 1944, TNA CO 323/187/91. 87. Gowers Commission, 298–301. Last minute appeals as a convicted man went to the gallows irritated officials, who regarded them as legal trickery in the face of justice. Last Minute Appeals for Clemency, 1946, TNA CO 1027/27.

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‘Due process’ v ‘administrative justice’: The struggle for control of the law and lethal violence It was during the inter-war years that tensions between administrative and legal officers heightened over the nature of British justice and law in Africa. Mahmood Mamdani argues that colonial courts failed to serve as the torchbearers of colonial civilization, morally surrendering to become a ‘law and order administration’.88 However, in relation to the death penalty, the ideology and mentality of the civilizing mission remained integral to the ‘law and order administration’ of justice. As Kolsky and Wiener have argued for British India, criminal law was neither fully benevolent nor fully despotic, constrained by race and inequality in one direction, and constitutionalism and an ideological adherence to the rule of law in the other.89 Colonial criminal law was dual natured; in one register it was a ‘means to control violence and protect rights’, in another ‘a tool for imposing rule and asserting sovereign power’.90 As Lobban asserts, in imperial contexts, ‘rule by law was often more important than the rule of law’.91 In some spaces, the rule of, and by, law came into tension with broader notions of justice. In debating how far English criminal law was suitable for wholesale adaptation in Africa, there were two distinct competing schools of thought. The first school, predominantly judicial officers, supported due process – the full application of common law and procedures. The other school, predominantly colonial administrators, favoured a form of colonial legal pragmatism, adapting criminal legal systems to local realities, with a focus of achieving ‘justice’ rather than enforcing ‘law’. Due process supporters asserted that the complexities and technicalities of English law were integral safeguards in the provision of justice, and any racialized application of a lower standard of justice for Africans was legally, politically and professionally abhorrent. Winston Churchill supported such views: ‘Necessary as it is to trust to personal authority in the control of native races of the lowest standard, it is not less necessary to assign well-marked limits to that authority, and, above all, to place the simple primary rights of accused persons to what we at home are accustomed to call a “fair trial” outside its scope’.92 Unfamiliarity with local cultures was deemed by strict due process legal professionals to be a strength, a shield of impartial judgement that relied not on ‘someone who knew the people and their ways’ but on ‘evidence proven in court’.93 On the other side were those who called for a more pragmatic system of substantive justice that took African mentalities and the weaknesses of colonial 88. Mamdani, Citizen and Subject, 109. 89. Wiener, An Empire on Trial; Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge: Cambridge University Press, 2010). 90. Lobban, Imperial Incarceration, 17. 91. Ibid. 92. Winston Churchill, My African Story (London: Leo Cooper, 1908), 28. 93. Lonsdale, ‘Kenyatta’s Trials’, 200.

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infrastructure into account. They sought to ‘make the punishment fit the crime and the law be damned’: even if that meant ignoring laws of evidence and allowing hearsay statements to secure convictions, or allowing diya, or ‘blood money’, in compensation to accommodate local custom.94 The essential difference between these views was that legal officers were primarily concerned with the enforcement of the ‘Law’ against an individual offender, whereas administrative officers were rather concerned with the maintenance of ‘Order’ among the African population.95 Tanganyika’s Acting Governor Philip Mitchell summed up this viewpoint when he pithily wrote to Chief Justice Alison Russell in 1926, ‘Livingstone under his mango tree probably got a great deal nearer to the truth and to justice than a judge on the bench at Dar es Salaam.’96 Even some senior legal officers came to adopt such perspectives after years of adjudicating and reviewing cases in Africa. Charles Ross, a senior crown counsel in 1930s Nyasaland who also served as acting chief justice and attorney-general, similarly questioned: ‘I often wondered whether [Africans] thought the “White Man’s Law” was rather foolish, as indeed I often thought it was.’97 Charles Frederic Belcher, an Australian who served as Puisne Judge, senior crown counsel, attorney-general and chief justice in 1910s and 1920s Kenya and Nyasaland, believed that ‘it should be the object of the judge in these unsophisticated African dependencies to see that the principles of English law and justice are maintained with as little technicality, or friction with the executive authorities as possible’.98 Similarly, Nyasaland’s Chief Justice in the 1950s, Ronald Sinclair, was ‘a New Zealander, who had been a District Commissioner before he became Magistrate … [and] had reputation for wisdom. He was not fond of law and tried to avoid it [where] it offended what he thought to be sensible’.99 Despite the limited structure and basic facilities of its legal system, the government and judiciary of Nyasaland were in some ways more liberal on punishment than their metropolitan counterparts. This liberalism was driven by a combination of benevolent paternalism and pragmatism. Officials there held serious  concerns about whether the death penalty was a suitable punishment for Africans, who lacked understanding of colonial law. Officials believed most murders by Africans were unpremeditated affairs, fuelled by superstition, quarrels or beer, that did not deserve the extreme penalty of the law. In 1922, they proposed

94. G. A. Tomlinson, safari diary, 5 February 1938, cited in Robert Heussler, British Tanganyika: An Essay and Documents on District Administration (Durham, NC: Duke University Press, 1971), 30. 95. E. K. Lumley, Forgotten Mandate: A British District Officer in Tanganyika (London: Hurst, 1976), 89–90. 96. Zambian National Archives DSA 2860/42 cited in Chanock, Law, Custom and Social Order, 36. 97. Charles Ross, ‘Reminiscences’, 57, WL MSS.Brit.Emp.s.35. 98. Charles Belcher, ‘Reminiscences’, 202, WL MSS.Brit.Emp.s.347. 99. Roberts, I’ll Do Better Next Time, 41.

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therefore to scrap the mandatory death penalty ‘in capital cases where the convicted person would clearly not be executed’.100 The Punishment of Murder (Natives) Ordinance established that a ‘native African’ convicted for murder could be directly sentenced to life imprisonment for a term not exceeding twenty years.101 In pressing for this measure, Chief Justice Mark Jackson argued that commutation rates in Nyasaland were significantly higher than in England. The mandatory death sentence, he felt, was inhumane and inefficient, causing unnecessary work and stress for all involved.102 Jackson felt the death penalty had less importance as a punishment in Nyasaland than in more developed communities. Discussing the Bill with Attorney-General Belcher, Jackson wrote that Nyasaland’s high proportion of mercy ‘must be based on the comparative instability of the native mind and the natural tendency of primitive peoples towards violence. For though individual weaknesses or inflammability may not be taken into consideration many would hold that tribal or racial characteristics should be given weight’.103 Governor Smith also supported the Bill, claiming that whilst he did not want to derogate his own responsibilities over the lives of the condemned, ‘considering native mentality, its obsession by superstition and a belief in witchcraft, it is preferable to leave to the Court a fuller discrimination as to the gravity of the offence and the determination of what would be the appropriate punishment’.104 Although Nyasaland’s officials were unanimous in their support for the Bill, London refused to sanction it. Lord Devonshire, the Secretary of State for the Colonies, replied to Governor Smith that ‘the passing of a law such as is proposed would be equivalent to a public announcement that murder could be committed without its involving sentence of death’.105 The Colonial Office’s legal advisers maintained that infliction of a punishment so outstandingly different and so serious as that of death should be compulsory, and responsibility for such sentence should rest on the law and not the judges. Devonshire stated that circumstances in Nyasaland did not differ so much from those in other protectorates inhabited by ‘primitive tribes’ as to warrant such exceptional legislation – and could Zomba please submit its execution returns as required under statute so London could keep track of how many people were actually being executed?106 Jackson however, felt that the real reason the Colonial Office opposed the Bill was that it feared individual judges’ 100. Local legislation to Obviate the Necessity of Passing Sentence of Death, NAM S1/42/22. 101. Ibid. 102. Ibid., High Court Blantyre to Chief Secretary Zomba, 26 August 1922. 103. R. v. Morris 1922, NAM J5/5/22; R. v. Boa, Mzifei, Ntumbisako, Tabaliri 1912, NAM J5/12/8. 104. Governor Smith to Secretary of State for Colonies, 21 September 1922, Local Legislation to Obviate the Necessity of Passing Sentence of Death, NAM S1/42/22. 105. Ibid., Devonshire to Smith, 30 November 1922. 106.  Ibid., Devonshire to Smith, 8 January 1923. Many colonies proved tardy or failed to submit these returns.

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repugnance of executions would result in their avoidance of sentencing Africans to death, which would rob the death penalty of much of its deterrent effect.107 Tensions between due process and substantive justice came to a head in the 1930s. Criminal justice had largely been regarded as a domestic concern for colonial governments in the early twentieth century. However, the imperial centre began to pay increasing attention in the interwar period after multiple scandals erupted, from mass executions in Calabar, Nigeria, to white juries in Kenya refusing to convict their peers for lethal assaults on Africans, and ‘Black Peril’ scares in Southern Rhodesia.108 Such scandals, as Chapter 6 explores, questioned the nature of colonial justice and highlighted its racialized enactment. These scandals, combined with growing awareness of the weaknesses of indirect rule and new international legal and humanitarian norms, led to burgeoning pressures for the professionalization of colonial legal systems and wider criminal justice reform.109 The Colonial Office legal department pushed for an increasingly universalist criminal justice system bringing Britain’s African territories closer into line with metropolitan justice, stressing the need for efficient and humane punishment, and for the provision of a full, impartial justice with expeditious sentencing. In 1932, the Colonial Office assistant legal adviser, Henry Grattan Bushe, a longtime proponent of full parity of law across British territories, was sent to East and West Africa to investigate their legal systems and advise on necessary reforms.110 The 1933 Bushe Commission report into the administration of criminal justice in East Africa became a landmark report for criminal justice reform, with the Commission deciding strongly in favour of the judiciary and due process. The death penalty formed an important part of the Bushe Commission’s deliberations, drawing evidence from administrations, judiciary, police, settlers and native authorities across Kenya, Uganda, and Tanganyika.111 As the colonial era progressed, in the face of rising crime rates and ever more murder cases brought before the courts, African judges and officials increasingly opined that capital punishment was not ‘the ultimate deterrent’ in an African

107. Ibid., Note, 8 January 1923. 108. Calabar Executions [Oron] 1923, British & Foreign Anti-Slavery and Aborigines Protection Society, WL MSS.Brit.Emp.s.22 G241; Wagishu murder case: inquiry into alleged brutality, TNA CO 533/391/10; Wiener, Empire on Trial, 193–221; Jock McCulloch, Black Peril, White Virtue: Sexual Crime in Southern Rhodesia, 1902–1935 (Bloomington: Indiana University Press, 2000). 109. Charles Clifton Roberts, Tangled Justice: Some Reasons for a Change of Policy in Africa (London: Macmillan, 1937). 110. Visit of H. G. Bushe to West Africa, TNA CO 554/90/13. 111. See Bushe Commission, 66, 71–80. Although the Bushe Commission investigated justice in East Africa, its conclusions were taken to apply widely across British Africa; see Morris, ‘English Law’, 73.

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context. If it was not an effective deterrent, then many felt that the penalty could not be justified, and alternatives should be sought. The Bushe Commission debated whether the death sentences should remain mandatory in murder trials.112 Many administrators, and even some judges, thought that it was cruel to pass sentence of death where it was certain that sentences would not be carried out, and as such the death penalty should be discretionary. As the Acting Governor of Kenya, Henry Moore, wrote to the Commission, ‘if the justice of our administration is to be maintained in African eyes, the important thing is that in certain classes of cases the sentence of death should not be passed by the Court at all’.113 Substantive justice preferred a discretionary death penalty, applied by judges, easily adaptable to African conditions. However, Kenya’s Chief Justice, J. W. Barth, wrote in opposition to his acting governor, arguing that a discretionary death penalty put too much responsibility on an individual judge and the final disposition of sentence should remain a matter for the executive, as English law and custom dictated, a position the Bushe Commission decided to uphold.114 The Bushe Commission also debated whether life imprisonment, collective punishments or the payment of ‘blood money’ compensation could be adopted instead of the death penalty, but firmly dismissed these administrative suggestions. One legal change that the Bushe Commission did support however was extending the definition of provocation to facilitate more homicides being tried as manslaughter rather than murder and thereby avoiding the pronouncement of death sentences that were unlikely to be confirmed. Whilst in England only wrongful acts counted as provocation, the Bushe Commission proposed a colonial extension of provocation to include: ‘any wrongful act or insult of such a nature as to be likely, when done or offered to an ordinary person … to deprive him of the power of self-control and induce him to assault the person by whom the act or insult is done or offered’.115 The ‘or insult’ provision was introduced because Africans were deemed to be prone to impulsive, violent reactions against insults to their, or their families’, honour.116 Subsequently, a number of territories – including Kenya and Nyasaland – adopted legislation to expand the legal definition of provocation with reference to violent crimes committed by Africans – a rare example of legal discrimination expressly predicated to limit violence against Britain’s African subjects.117 Although in practice oral insults alone were rarely accepted as causing ‘grave and sudden provocation’ sufficient to reduce an offence to manslaughter, it seems that many judges did apply a wider standard of provocation in relation to

112. No reference was made to the 1922 Nyasaland Punishment of Murder (Natives) ordinance. 113. Bushe Commission, 108, Annex 1. 114. Ibid. 115. Ibid.; Nyasaland CPC ch. 13, s. 214 rev. 1957. Author italics. 116. Bushe Commission, 76, s.205. 117. Capital Punishment in the Colonies 1956, TNA DO 7368.

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violent assaults than would have been the case in a British court, thereby reducing the number of murder convictions and execution rates.118 Bushe’s investigations in East and West Africa helped to drive criminal justice reform, including bringing Ashanti and the Northern Territories more into line with the Colony by extending the Supreme Court’s jurisdiction into those territories.119 However, tensions remained on the ground between substantive justice and strict legal positions, between local and African conceptions of justice, and between metropolitan universalism and colonial pragmatism. In one illustrative case history, in February 1936, a Poka Tumbuka tribesman called Kaimange Chisambo, a former mission station gun-boy turned suspected hired killer, was convicted of shooting a man named Roger dead in Mzimba district, Northern Nyasaland. Kaimange confessed to the crime, along with two accomplices, but insisted that he had been paid to shoot Roger by another local man, Dodoma, ‘a wealthy and sophisticated North Nyasa native’ who wanted Roger’s wife for himself. Kaimange testified that Dodoma had promised him nine cattle to kill Roger, but when Kaimange baulked, Dodoma had viciously taunted him until Kaimange, inflamed by drink, went ahead and shot Roger. At trial, Judge Johnson found it a ‘cold blooded and deliberate murder. I have no recommendation to make’, and sentenced Kaimange to death.120 Local opinion regarded this as a miscarriage of justice – in their eyes, Dodoma was clearly the principal instigator of the offence with Kaimange being merely his tool. After a failed appeal, Governor Kittermaster commuted Kaimange’s sentence to life imprisonment. He also wrote back to Johnson stating that ‘justice will not be satisfied until Dodoma is punished for his crime’. However, as the only witnesses available to testify against Dodoma were Kaimange’s accomplices, the Crown did not have enough evidence to secure a conviction. Kittermaster wrote: ‘We are thus faced with a dilemma: either violence must be done to a rule of evidence based on legal precedent or the Government must agree to be party to the compounding of a felony.’121 Attorney-General Hodgson reviewed the case and determined that had the case been heard under customary law by a native court, the outcome would have been quite different: Kaimange’s drunkenness at the time of the offence and the verbal insults offered him by Dodoma would have diminished his responsibility, and Kaimange would not have been liable to any penalty. Dodoma would have been considered the primary offender and been required to pay compensation, in the form of cattle, cloth or two to three of his female relatives, or 118. See R. v. Sajaad Hussein CC77/19, E.A.C.A judgement, 18 August 1920, KNA AG/52/238; Alan Milner, ed., The African Law Reports – Malawi 1923–60, vol 1 (New York: Oceana Publishing, 1968), 102–6, 510. 119. Visit of H. G. Bushe to West Africa: Report, TNA CO 554/90/13; Griffith, Gold Coast, 10–37. 120. Judge Johnson to Governor Kittermaster, 12 February 1936, R. v. Kaimange Chisambo HC CC23/35, NAM S2/2/36. 121. Ibid., Kittermaster to Johnson, 27 February 1936.

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otherwise to face death. When Kaimange ‘seized the knees’ of his chief and district commissioner and confessed his crimes, it would not have entered his mind or the local community’s that he would end up facing a capital charge. For Hodgson, in such clashes between African and colonial conceptions of justice ‘trouble between the families is bound to ensue and the Chiefs and people complain to the District Commissioner that English legal procedure anatembenuza diko [has upset the country]’.122 With an arson attack destroying Dodoma’s hut, the threat of mobjustice could not be ignored. In an attempt to resolve the impasse, Governor Kittermaster instructed the closest district commissioner, W. H. Murphy at Karonga, to investigate locally with a view to gathering evidence against Dodoma for a civil compensation trial in the Native Court. However, civil claims for ‘blood-money’ could only be submitted following a criminal conviction, and Native Courts were not empowered to try capital offences. As district commissioners also sat as district magistrates in Nyasaland, attempting to parse these legal constrictions made Murphy uncomfortable: ‘If I make myself responsible in any way, even by hinting at [trying Dodoma] I may find myself in my capacity as a Magistrate in an extremely questionable position in my relation to the High Court.’123 Murphy’s recalcitrance outraged Kittermaster who wrote irritably to his chief secretary that ‘our idea of legal justice must differ from a native’s idea of substantial justice’. Murphy, Kittermaster complained, ‘needed to forget for a moment that he was a son of a [English] Magistrate’ and do his job, whilst Hodgson suggested that ‘fear of the Legal Department’ had prevented Murphy carrying out his instructions, highlighting the tensions between the legal and political arms of government. Seeking support for his plan to force Dodoma to pay compensation, Kittermaster wrote to London that ‘extra-judicial administrative action’ was required and he wanted to empower the Native Authority, Chief Mwafulira, to act accordingly. The Secretary of State for the Colonies, William Ormsby-Gore, and his legal advisers decried such obvious political interference with justice, replying that any attempt by the deceased’s relatives to bring a claim for civil damages or ‘blood-money’ against Dodoma ‘would in effect mean that Dodoma would be tried for murder in the Native Court … which had no jurisdiction for murder’. This was ‘improper’ and ‘a great source of embarrassment’ for any colonial government.124 Back in Nyasaland, Judge Johnson similarly informed Kittermaster that any such action would be ‘improper and probably illegal. It would be in effect the Executive “taking the law into its own hands”. How far that might be “an oppression, committed out of England by a Colonial Governor” and within the Criminal Jurisdiction Act 1802 [leaving Kittermaster himself liable to prosecution before the King’s

122. Ibid., Attorney-General Hodgson, 28 March 1936. 123. Ibid., DC Murphy, Karonga to A-G Hodgson, Lilongwe, 21 June 1936. 124. W. Ormsby-Gore to Kittermaster, 25 August 1936, Death Sentences Nyasaland, 1936, TNA CO 525/161/1.

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Bench in London] I express no opinion’.125 Driving home his argument about the inefficiencies and weaknesses of the criminal justice system in Nyasaland, Johnson asserted that as Dodoma was bound to boast about escaping justice, any competent policeman would have stationed plain clothes men at local beer drinks to catch him bragging about instigating the crime, but as ‘I have reminded Your Excellency ad nauseum, there is no officer of police in the Northern Province’. In the end pragmatism won out. After the political dispute died down, in early 1937 the civil suit against Dodoma went ahead, with Dodoma being ordered to pay fifteen cows in compensation.126

Conclusion Kaimange Chisambo’s case highlights how the ideology of British justice tended to mask the contradiction between the purported judicial independence of colonial courts and their role as part of the colonial administration in Africa. That the running of courts was administrative and political, rather than professionally legal, was underscored by the wide divergences between colonial legal practices and the ideological model of British law: in the absence of the separation of powers; in the lack of trial by jury for African accused (outside West African colonies), and in the administration’s frequent hostility to the legal profession. Where the prosecution of murder differed from England in colonial Africa was not so much in law as in practice. The format of trials inculcated a colonial legal pragmatism rather than due process, where a case could be tried in a few hours, with laws of evidence and procedure being misinterpreted or disregarded, where the accused appeared undefended, and where multiple languages and worldviews clashed to obscure crimes and disrupt trials. The boundary between law and culture is fluid and permeable, and actors in trials bring everyday cultural understandings – or in the colonial case, cultural misunderstandings  – to bear on legal discourse. The myopia and incomplete knowledge of colonial states regarding the life and legal cultures of their African subjects meant that their power was imperfectly expressed and exercised. Networks of judicial and administrative power overlapped and competed, particularly in the trial and punishment of capital cases, as this legal-administrative nexus closely linked the operation of justice to the maintenance of order and the defence of colonial states and societies. The legal implementation of capital punishment was also shaped by the competing notions of imperial universality emanating from London and particularism in the colonies, as individual colonial governments sought to defend their fragile hegemonies from imperial overrule. Capital punishment became a synecdoche for wider tensions between the ‘Law’ and ‘Order’ of colonial governance in colonial 125. Judge Johnson to Governor Kittermaster, 11 August 1936, R. v. Kaimange Chisambo HC CC23/35, NAM S2/2/36. 126. Ibid., Civil Case 41/37 before Chief Mwafulira, 12 February 1937.

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discourse. Even though judicial execution by hanging was a British punishment imposed on Africa, substantive justice and jurisprudential adaptation – through measures such as rendering rape a capital crime and expanding the definition of provocation  – created the death penalty as a specifically colonial form of punishment. Whilst in the early twentieth-century colonial debates over capital punishment and criminal justice focused on their legal enactment, in the 1930s the focus shifted from legal reform to penal reform, to thinking about how the death penalty functioned within the wider realm of colonial penality, as the next chapter explores.

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Chapter 2 T H E U LT I M AT E D E T E R R E N T I N A C O L O N IA L C O N T E X T ? C A P I TA L P U N I SH M E N T I N C O L O N IA L   P E NA L R E G I M E S

The justification of the death penalty is that it acts as a deterrent to others.1 – Bushe Commission, s. 186, 1934 The idea that crime should be suppressed for the public benefit, that punishment should be humane and aim at reforming the offender is only beginning to be realised.2 – Charles Clifton Roberts, former Judge and Attorney-General of Nyasaland, Tangled Justice, 1937 During the conquest and pacification of much of Africa from the nineteenth to early twentieth centuries, imperialism was marked by the idea of a civilizing mission that tied Africa’s integration into a global capitalist economy with the liberation of the continent from its so-called ‘primitive’ status.3 This period saw the importation of penal strategies from England as a punitive but also modernizing measure. Colonial penal systems were characterized by both the mobilization of prisons and penal labour to develop colonial economic and political infrastructure, and the frequent deployment of both corporal and capital punishment to establish racial hierarchies of power and deter Africans from pursuing behaviours British officials regarded as uncivilized or a threat to colonial order. In the interwar years however, the apparent failure of the civilizing mission led to the adoption of indirect rule, a policy which was supposed to allow African territories to develop under British guidance, but which would protect African cultures from the degenerative effects of rapid social change and exposure to Western, urbanized cultures.4 The interwar 1. Bushe Commission, 66. 2. Roberts, Tangled Justice, 93. 3. Megan Vaughan, ‘Africa and the Birth of the Modern World’, Transactions of the Royal Historical Society 16 (2006): 143–62. 4. Frederick Lugard, The Dual Mandate in British Tropical Africa (Edinburgh: W. Blackwood & Sons, 1923).

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years were therefore marked by an unresolved tension between colonial efforts to modernize, capitalize and industrialize Africa, and the fear that such efforts would detribalize African communities, destroying social stability and creating a rise in crime – including murder – as well as endangering the colonial project more broadly. These tensions were replicated within colonial penal systems in the competing imperatives to control, reform and punish African convicts, as the widespread criminalization of African lives created an ever-growing number of ‘deviant’ subjects whose classification and punishment proved central to the processes of state formation and social control.5 By the late 1930s, and particularly after 1945, the emergence of anti-colonialism, African nationalism and the welfare state in Britain pushed the British Empire into a new welfarist, interventionist, developmental model of colonialism to justify its continued rule.6 At this point, new technologies of rule and an increasingly universalist colonial penal model emerged, which stressed the need to reform offenders rather than punish them. Reformist policies sought the widespread introduction of industrial training and education in prisons to create modern, economically productive and disciplined colonial subjects, and to eradicate, or at least diminish, punitive violence. This however proved more difficult to enact than London had anticipated. There was frequently a disconnect between the rhetoric of imperial reform and the reality of continued coercion and exploitation on the ground, particularly as colonial control came under threat from nationalist agitation and rising crime rates. Violence remained integral to the operation of colonial penality from the early to late colonial periods, finding its ultimate expression in the imperial gallows that sent thousands of condemned Africans to their deaths. This chapter argues that capital punishment was deployed throughout the colonial era, functioning as both a routine and an exceptional sanction: routine in the frequency of capital sentences and their execution, exceptional in the direct, state-sanctioned, lethality of the violence it judicially imposed on African bodies. It argues that whilst in the early stages of conquest and pacification the death penalty was focused on eliminating threats to colonial domination, by the 1910s–20s it had become a tool of colonial modernity and an instrument of the civilizing mission that served both political and judicial ends. The chapter highlights the racialized ideologies that underpinned colonial penal repertoires, and that drove high levels of penal violence. Whilst studies of the death penalty frequently analyse it in isolation from other forms of punishment, this chapter situates capital punishment within the broader functioning of colonial penal systems to offer a more holistic analysis of its

5. Bernault, ‘De l’Afrique ouverte’. 6. See Frederick Cooper, Decolonization and African Society: The Labour Question in French and British Africa (Cambridge: Cambridge University Press, 1996).

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place in the ‘coercive networks’ and penal repertoires that underpinned imperial rule in Africa.7 It combines qualitative and quantitative data on sentencing and executions to explore the role that the death penalty played in managing criminality and targeting violence within Britain’s colonies, and to demonstrate how this shifted over time and place. The chapter argues that contextualizing capital punishment within colonial regimes of punishment reveals both its power and its limitations as a penal sanction in different stages of colonial rule.

Early colonial executions: Establishing colonial control and penal systems All of the major colonial powers in Africa relied on capital punishment in their colonies, with the exception of Portugal, which had abandoned the death penalty in 1867 and instead used its colonies as sites of convict and penal labour.8 Germany  made use of spectacular public executions to establish and combat threats to its control in German East Africa and German South-West Africa, as did Belgium in the Congo and France across its African territories.9 Gendry argues that the death penalty was an important ‘imperial lesson’ and played a potent role in the establishment of colonial control in French West Africa, particularly between 1890 and 1915. There the colonial modality of capital punishment was characterized by its close correlation with military repression, being focused on

7. Whilst ‘penality’ refers to the nexus of criminal justice infrastructure and discourses, the term ‘coercive networks’ includes often non-state and extra-judicial networks of power that facilitated colonial rule. See Sherman, ‘Tensions of Colonial Punishment’. 8. Novak, The Death Penalty in Africa, 25; Fernando O. Gouveia da Viega, ‘Portuguese Africa’, in Alan Milner, ed., African Penal Systems (London: Routledge and Kegan Paul, 1969), 217; Anderson, Convicts, 9–21. 9. Jonathon Glassman, Feasts and Riot: Revelry, Rebellion and Popular Consciousness on the Swahili Coast, 1856–1888 (London: James Currey, 1995), 253–8; Union of South Africa, Report on the Natives of South-West Africa and Their Treatment by Germany; prepared in the Administrator’s Office, Windhuk, South-West Africa, January 1918 (London: HMSO, 1918), 151; Karimunda, The Death Penalty in Africa, 123–5; Florence Bernault, ‘Body, Power and Sacrifice in Equatorial Africa’, Journal of African History 47, no. 2 (2006): 218–19; Jean-Luc Vellut, ‘8. La peine de mort au Congo colonial. À propos de l’exécution de Bwana François, 1922’, in Congo. Ambitions et désenchantements 1880–1960, ed. Jean-Luc Vellut (Paris: Karthala, 2017), 247–83. Bénédicte Brunet-La Ruche, ‘“Crime et châtiment” aux colonies: poursuivre, juger et sanctionner au Dahomey de 1894 à 1945’ (PhD thesis, Université Toulouse 2 Le Mirail, 2013), 575; Gendry, ‘Le droit de tuer’; Nancy A. Rushohora, ‘Graves, Houses of Pain and Execution: Memories of German Prisons after the Majimaji War in Tanzania (1904-1908)’, Journal of Imperial and Commonwealth History 47, no. 2 (2019): 279.

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rebel leaders and those Africans guilty of violence against whites.10 In British colonial Africa, the death penalty was a significant weapon in the coercive arsenal of colonial forces as they sought to establish and routinize imperial control, with public hangings accompanied by military patrols and British officers in pristine dress uniforms generating a didactic theatre of colonial power and African subjecthood.11 It operated as part of a spectacular repertoire of colonial violence enacted on African bodies. But whilst it may have been the ‘extreme penalty of the law’, the death penalty was not necessarily the most extreme or exceptional mechanism of colonial repression when viewed alongside the intensive and extensive violence of the punitive expeditions, extra-judicial killings and collective punishments that frequently accompanied the process of colonization.12 It was after control had been established, and needed to be maintained through the operation of courts and laws, that the gallows assumed their iconographic significance to the maintenance of British control, providing a juridical façade that helped to legitimate as well as uphold the broader repertoires of colonial violence. The operation of the death penalty highlights both the strength and the limitations of colonial legal and penal authority in the early stages of British rule. During the violent colonization of Nyasaland in 1890–1910s, legal and penal infrastructures were geared towards the suppression of resistance, the neutering of indigenous authority, and expediting expansion through measures like hut tax collection and firearms regulations.13 A widespread criminalization of African life ensued, which was enforced judicially through fines, whips and prisons, or through more coercive mechanisms such as the seizure of wives as hostages or burning of homesteads for tax defaulting.14 Officials investigating murder cases noted that in early years of colonization ‘offenders were easily apprehended by villagers themselves and evidence was comparatively easy to obtain’ from a ‘purely savage community’.15 African chiefs were reported as supporting the use of the death penalty: Chief Zamula told officials in Lilongwe that ‘in the old days anyone who killed a man was punished with death’.16 High Court murder cases in the early 1900s reveal spousal murders, child killings, poisonings, revenge killings, suspected cannibalism and drunken fights that ended in death appearing before

10. ‘Suele une “Seule une répression sévère”,’ 12–15. 11. Foucault, Surveiller et punir, 48–9. 12. See Walter, Colonial Violence. The role of executions in repressing anti-colonial resistance movements is explored in Chapter 5. 13. See Hynd, ‘Law, Violence and Penal Reform’, 433–4. 14. Magistrate’s Court Case Book, Lilongwe, 1914–16, WL MSS.Afr.s.2475; Northern Province, Native Affairs Annual Report for the Year Ending 1926 (Zomba: Government Printer, 1927), 3. 15. Nyasaland, Annual Judicial Report April 1917–May 1918, Judge Grant, 29 May 1918. 16. R. v. Humba, 1910, DNC Lilongwe for Central Angoniland, NAM J5/12/4.

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colonial courts, suggesting that colonial jurisdiction had been quickly established over intra-African social tensions. Records however also reveal significant concerns about race relations and the fragility of colonial political infrastructures and hierarchies of authority.17 Court registers show at least three European settlers were tried for killing African or Indian employees, but they were either acquitted or convicted of manslaughter, highlighting their racial privilege.18 Meanwhile an Indian trader was taken from Blantyre ‘with due care and secrecy’ to be publicly hanged in Zomba for beating to death an African he suspected of stealing from him, only for his sentence to be commuted to life imprisonment ten months later: this was an unusual and protracted process, and likely a result of concerns about a political and economic backlash from the Indian trader community if one of their number was hanged.19 Case files demonstrate that whilst British officials were keen to establish a monopoly of violence, there was also an awareness of the need to avoid antagonizing the native authorities who were willing to ally themselves with British rule. The most telling case was that of Namademula, headman of a village near Mlanje, who killed his sister by striking her in the head with an axe, after becoming jealous that his people kept leaving to live in his sister’s village. The district magistrate of Mlanje noted that the assessors did not recommend mercy for this ‘heinous’ crime, and that in the previous two months there had been three unjustifiable homicides and six further deaths in the locale, which gave him ‘grave doubts as to the expediency of commuting sentence of death’, especially as the accused was an intelligent man ‘who understands the principles of Government justice’. Governor Sharp however baulked at hanging a headman and Namademula’s sentence was commuted to fifteen years imprisonment.20 Whilst indigenous authorities seemed willing to acquiesce to British jurisdiction over most forms of homicide, the category they appeared most reluctant to relinquish control over was the punishment of killings associated with witchcraft, as British courts rejected the rationality of belief in, and thus, to African eyes, the reality of, occult power and therefore refused to act against it. In the nineteenthcentury Gold Coast, Braatz notes that chiefs continued to attempt executions of individuals convicted of witchcraft whilst voluntarily giving up murderers whom they knew the British would punish. Law reports from East Africa highlight the continuation of tribal councils imposing death sentences on suspected witches, including the burning to death in 1913 of two Gikuyu men under the orders of the local Kiama (council).21 17. See NAM J5/12/1–10 series. 18. They were W. Arnott in 1904, William H Humphrey in 1905 and Alexander Paterson in 1907–8. 19. R. v. Omar Jar Mohammed, 1903, NAM J5/12/1. 20. R. v. Namademula, 1909, NAM J5/12/3. 21. See Braatz, ‘Prisons and Colonial Rule on the Gold Coast’, 52; R. v Karoga wa Kithengi and 53 Others, CC88/1913, 5 East African Protectorate Law Reports, 50. See Karimunda, The Death Penalty in Africa, 95.

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Colonial capital punishment was shaped by a combination of racialized ideologies of power and officials’ pragmatic attitudes towards justice, but also the need to render the penalty comprehensible and acceptable to local customary understandings of justice and punishment. This can be seen in the payment of blood money compensation in cases of murder. Precolonial African legal systems were often restorative and predicated on compensation rather than individual punishment as restitution for an offence, with offenders often providing compensation to the victim’s family to compensate for their loss.22 The term ‘blood money’ however is colonial nomenclature and a misnomer, as compensation was usually paid in material goods or human capital.23 Colonial authorities were ambivalent towards blood money. In the early colonial period, some judges accepted the practice and chose on occasion to incorporate it into the sentences they handed down: in Kenya between 1912 and 1913 three men were sentenced to pay compensation ranging from eighty goats to thirty cattle in addition to prison sentences.24 However, whilst payment of blood money helped to reconcile colonial and African conceptions of justice, and to prevent further bloodshed in cases where death was commuted, it was considered by most legal officers to be contrary to the dictates of English legal practice to allow compensation in addition to another penalty for a crime, and it was quickly phased out.25 Archives reveal occassional colonial politico-legal tactics of deploying additional or alternative punishments in response to African resistance to British justice in murder cases, as in 1918, when a collective fine was imposed on 750 men, 862 women and 959 children after the harvest when no information was provided relating to the murder of Paulo wa Jeffwa in Kakoeni, Kenya.26

The disposition of colonial justice: Murder, conviction and execution rates The evidence on capital punishment in the era of colonization is fragmentary at best, but better coverage is available from the 1920s onwards. Records reveal that there was a distinct ambivalence, if not outright contradiction, in British perceptions of murder in Africa. On the one hand, officials believed that the ‘primitiveness’ and ‘savagery’ of African cultures meant that Africans were particularly prone to impulsive acts of violence and murder. On the other, it was repeatedly stated that ‘grave offences against the person, including murder … cannot be regarded

22. Blood Money – Claims General 1956–7, KNA AG/52/255; Gurreh Affairs, KNA PC/ GRS/3/1/48. 23. The term diya was also used, reflecting Islamic legal influences. 24. Kenya Colony, Blue Books, 1912–13. See also H. F. Morris, ‘The Award of Blood Money in East African Manslaughter Cases’, Journal of African Law 18, no. 1 (1974): 104–12. 25. Ibid., s.201–2. 26. Murder  – Setoki Location & Imposition of Collective Fine 1918, KNA PC/ COAST/1/10/13.

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as unduly prevalent’.27 Whilst many Kenyan police reports expounded on ‘brutal murders’ committed by Africans, or the prevalence of killings stemming from jealously, intoxication, feuds and spear-blooding, the 1928 report proclaimed that there were only thirty-nine cases of murder that year, ‘an amazingly low figure in view of the population and one which is a great tribute to the African’s powers of self-control and respect for life’, whilst the 1925 report gave the murder rate as ‘1 in 100,000 in Kenya as opposed to 4 in 100,000 in England’.28 Historical homicide data drawn from police reports is sporadic and likely underreports the actual incidence of murder, with figures notably higher in regions where colonial infrastructures were more established, particularly urban environments, and where ethnic communities had greater engagement with colonial authority, as with the Gikuyu in Kenya.29 The Gold Coast police investigated nearly 2,500 suspected murders between 1904 and 1938. From the available data, the average homicide rate between 1927 and 1938 was 2.78 per 100,000 population, fluctuating year on year but being slightly higher in 1930s.30 In April 1930–March 1931 in the Gold Coast, the police investigated eightynine murders, resulting in sixty-two criminal trials, forty-two of which resulted in convictions, and the death sentence was enforced in ten of those.31 In Kenya the homicide rate in 1936–41 was 2.4 per 100,000 overall, whilst in Nyasaland, the homicide rate per 100,000 was 1.8 in 1930–5, rising to 3.2 in 1945–50.32 As the apex of the colonial criminal justice system, capital trials were exceptional in both their occurrence and character. To give some indication of this, in Kenya in 1930, from a population of some 2.5 million people, there were 36,723 criminal convictions passed, of which only twenty-six were capital convictions for murder, and twelve of those resulted in executions.33 In April 1930–March 1931 the Gold Coast police investigated eighty-nine murders, resulting in sixty-two criminal trials, forty-two of which ended in convictions, and the death sentence was 27. King-Farlow, Some Gold Coast Judgements, 1915, 1916, 1917, 1. 28. Colony and Protectorate of Kenya, The Kenya Police Annual Report for the Year 1928 (Nairobi: The Government Press, 1929), 17; Annual Police Report 1925, 15. 29. Many thanks to Richard Waller for sharing this information. 30. Data taken from Gold Coast, Annual Reports of the Police, and Blue Books. 31. Gold Coast Colony, Report on the Police Department for the Year 1930–31 (Accra: Government Printer, 1931). 32. Data taken from Annual Reports of the Police Department and Blue Books for both colonies. These findings are in line with Paul Bohannan’s analysis of homicide among various ethnic communities in Kenya, Uganda and Nigeria, where homicide rates varied but were broadly in the 2–4 per 100,00 population range. See Bohannan, ed., African Homicide and Suicide, 158, 230–66. By the mid-twentieth century, Western European homicide rates had reached a historic minimum of less than 1 per 100,000 population. See Dietrich Oberwittler, ‘Lethal Violence: A Global View on Homicide’, Oxford Research Encyclopaedia of Criminology and Criminal Justice, 11, https://doi.org/10.1093/acrefore/9780190264079.013.402. 33. Kenya Colony, Blue Books; Annual Report on the Administration of the Colony during the Year 1930 (Nairobi, 1931), s. 24–5.

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Graph I  Outcomes in Capital Cases in Nyasaland, 1903–57. Source: NAM, Judicial Department and Secretariat Records, Murder & Manslaughter Cases, 1903–47.

enforced in ten of those.34 In Nyasaland, police records indicate that between 1922 and 1938 some 457 homicide cases were investigated by the police, from which 255 cases were taken to court and 105, or 23 per cent, resulted in convictions. Rates of conviction fluctuated widely year on year across the three case studies, as a result of the nature of individual cases and numbers of accused involved as well as shifting legal cultures and practices, with anywhere between 20 and 90 per cent of homicide cases brought to trial resulting in a conviction. From the 897 archived capital cases in the Zomba archives dated between 1903 and 1947, nolle prosequi was entered in sixty-four cases, a not guilty verdict was entered in 129, and a further 194 were convicted of manslaughter rather than murder. The existing scholarship on capital punishment in colonial Africa has tended to focus on spectacular events, rather than on tracing broader trends and patterns in its use. Aimé Muyoboke Karimunda’s broad comparative analysis of capital punishment in colonial-era Africa is a rare attempt to do so. Based largely on data drawn from published law reviews, Karimunda argues that in many British African territories there was ‘little inclination towards death sentences’ before the late colonial period.35 He argues that East African Law Reports suggest that between 1897 and 1930 there were only four death sentences handed down in East Africa (incorporating Kenya, Uganda, Tanganyika and Zanzibar), and 158 between 1931 and 1950, whilst in Nigeria no death sentences were confirmed before 1948.36 He contrasts the situation in Southern Rhodesia, where he states the death penalty was

34. Gold Coast, Annual Report of the Police during the Year 1930–31. 35. Karimunda, The Death Penalty in Africa, 108. Karimunda miscites this author’s previously published work in his analysis of the colonial death penalty. See 90, 99. 36. Ibid., 99, 108.

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imposed only twice before 1960, with that in Northern Rhodesia and Nyasaland, where before 1960 twenty-six and nine persons were executed respectively, arguing that the ‘full influence of English law’ in the latter territories resulted in greater use of the death penalty compared to Southern Rhodesia’s Roman-Dutch legal influences. Karimunda argues, ‘The absence of recorded cases in law reports leads to the conclusion that capital crimes did not interest the colonisers … Under British rule, legal problems between Africans fell within the bounds of native law.’37 A review of colonial archival data however contradicts this assertion and provides a more comprehensive picture of sentencing. Colonial states were in fact consistently and intensely interested in capital crimes, and routinely deployed the death penalty to combat lethal violence within African communities. The variations between legal systems, populations and available evidence make detailed comparison over time and place between British territories in Africa difficult. Only a few of the annual returns of capital sentences that were supposed to be sent to London by each colony exist in the National Archives in Kew. Comparative analysis of Kenya, the Gold Coast and Nyasaland reveals that the annual returns listed in Blue Books, prisons, police and judicial reports often do not match the evidence from archived capital cases are inconsistent in the data categories they record, and frequently contradict each other, particularly as many cases stretched across reporting for multiple years.38 Capital punishment figures demonstrate both the difficulty of using quantitative methods for assessing crime and punishment in Africa where data sources are incomplete and hinder statistical analysis. Furthermore, these figures highlight the need for a nuanced investigation of the relationship between punishment, colonial governance and archives. Indicative figures and general trends, however, can be identified. Looking broadly across British Africa, from the available data between 1910 and 1960, Northern Rhodesia and Sierra Leone, executed around 4.5 people annually, Nyasaland 5 people and Southern Rhodesia 6.8. The Gold Coast executed an average of 12 people annually and Kenya 13.4 (for ordinary murders outside of State of Emergency cases). Meanwhile, Uganda, Tanganyika and Nigeria employed capital punishment most frequently, executing 21.3, 23 and 62.2  people on average, respectively. Nigeria judicially executed the highest number of its subjects, with 3,193 hangings recorded between 1914 and independence in 1960, but its population was almost that of Britain’s other African territories combined. At the other end of the scale, in the Gambia, where reported murders were few and executions fewer, capital punishment existed in 37. Ibid., 107. 38. For example, reports shift between recording hangings or prisoners admitted under sentence of death, or not mentioning executions at all, recording the number of cases in which there were convictions versus the number of persons convicted, and between recording murder convictions separately and conflating these with manslaughter convictions. The duration of many cases from trial and conviction to final resolution meant that cases were sometimes recorded in the statistics for multiple years.

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Table I  Comparative data on executions for 1930–55. Territory

Number of executions

Annual average

Nigeria

1439*

60

Kenya

1353†

52

Uganda

592

22.8

Tanganyika

592

22.8

Gold Coast

343

13.2

Southern Rhodesia

163*

6.5

Northern Rhodesia

117

4.5

Nyasaland

109

4.2

Sierra Leone

100

3.8

4808

21.1

Combined total

Source: Annual Prisons Reports, Judicial Report and Blue Books, 1930–55. * Data missing for one or two years, so actual number will be higher. † Kenyan data includes State of Emergency executions.

the statute books largely as symbolic legislation – the threat of punishment being more important than its actual implementation.39 The inaccuracies and inconsistencies in colonial census data make it difficult to  adjust figures by population. In general, those countries with the largest populations held the largest number of executions, but the Gold Coast executed over three times as many Africans as Nyasaland, despite its population being approximately twice as large, indicating a more intensive penal regime. The available data indicates that across these nine major British African territories at least 4,808 executions were recorded between 1930 and 1955.40 By comparison, in the metropole, there were some 349 recorded executions across the United Kingdom in the same time period, with the metropolitan population of 47.5  million in 1939 being greater than that of the above-mentioned territories combined.41  Capital punishment was evidently a well-established and accepted 39. Mark S. Gaylord and John F. Galliher, ‘Death Penalty Politics and Symbolic Law in Hong Kong’, International Journal of the Sociology of Law 22, no. 1 (1994): 19–37. 40. This figure does not include those hangings carried out in the High Commission territories of Swaziland, Basutoland and Bechuanaland, or in British territories in the Horn of Africa and North Africa, namely Sudan, British Somaliland and Egypt, where differing legal regimes with Romano-Dutch and Islamic influences operated. 41. Gowers Commission, 298–302; Capital Punishment U.K., http://www. capitalpunishmentuk.org/contents.html (last accessed 31 October 2022). These are figures for England, Wales and Northern Ireland that include wartime executions for spying and treason. Many thanks to Lizzie Seal and Alexa Neale for sharing their knowledge on British execution figures. On racialized sentencing in Britain, see their article, ‘Racializing Mercy: Capital Punishment and Race in Twentieth-Century England and Wales’, Law & History Review 38, no. 4 (2020): 883–910. Population figures taken from Blue Book statistics and Office of National Statistics data.

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weapon in colonial penal repertoires, and it was over thirteen times more frequently deployed to punish (predominantly Black) African offenders in the empire than (predominantly white) British offenders in the metropole.42 To contextualize this data with an imperial comparison, Thaïs Gendry’s detailed study of capital punishment in French West Africa similarly highlights how the death penalty was both more frequently pronounced, and more frequently enforced in that colonial federation than in the metropole. Of 676 archived federal capital cases dated between 1903 and 1946, 438 resulted in execution.43 In France, there were 917 death sentences between 1904 and 1944, but the population of mainland France was 40 million compared to around 12 million in French West Africa.44 The rate of death sentences per population was 1:40,000 in metropolitan France compared to 1:10,000 in French West Africa. Death sentences were therefore 3.5 times more common in French West Africa than mainland France, whilst the rate of executions was double that of the metropole, with 64.5 per cent of archived death sentences in French West Africa resulting in execution, whereas 65 per cent of capital convictions in France were pardoned.45 Whilst both empires developed a highly racialized colonial modality of capital punishment, deploying the death penalty more frequently against their Black African subjects than their (predominantly) white metropolitan populations, Britain’s use of the death penalty in its African colonies was even more extensive than that of France. In his study of capital punishment in eighteenth-century London, Peter Linebaugh adopted the term ‘thanatocracy’ to ‘characterise a government that ruled by the frequent exercise of the death penalty’. Linebaugh’s use of the term emphasized not just the rate of hanging under the so-called ‘Bloody Code’, whereby over two hundred, often minor, offences were punishable by death, but the ‘definition of sovereignty in terms of it and its exercise in close calibration with money’.46 In  British colonial Africa, there was no Bloody Code, in that executions were largely restricted – with notable exceptions under state of emergency regulations – to the crime of murder. The widespread pronouncement and enforcement of the death penalty, however, highlights that colonial states’ assertion of the right to kill their African subjects was an integral aspect of colonial governance, but one that operated through race and racial hierarchies of power rather than economic ones. These were however not constant or consistent colonial thanatocracies, because the

42. Or indeed white offenders in African colonies, as later chapters will explore. 43. Gendry, ‘Le droit de tuer’, 39 and ‘“Seule une répression sévère”’: 5–7. 44. Nicholas Picard, Le châtiment suprême. L’application de la peine de mort en France (1906–1981) (Paris: Institut Universitaire Varenne, collection des Thèses, 2018). 45. Gendry, ‘Le droit de tuer’, 39 and ‘“Seule une répression sévère”’: 5. 46. Peter Linebaugh, The London Hanged: Crime and Civil Society in Eighteen-Century England, 2nd edn. (London: Verso, 2006), 50.

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Graph II  Executions in Colonial Peno-Legal Reporting, 1920–60. Sources: Blue Books Annual Statistics, Annual Reports for the Department of Prisons, Annual Reports for the Judicial Departments; Great Britain, Gowers Commission. Kenya data excludes State of Emergency cases.

discursive and functional relationship between colonial sovereignty and the death penalty shifted over time and place, as ideas of race, crime, and acceptable forms of violence and punishment evolved. Between the 1910s and 1930s, executions moved from being public spectacles of colonial power to being hidden behind prison walls (as Chapter 7 explores).47 And once colonial rule was fully established, murder, or at least intra-African murder, was not viewed as the primary threat to colonial authority, at least in comparison to the growth of an African ‘criminal class’ and recidivism in urban spaces, labour resistance, anti-colonial protests or inter-racial sexual offences.48 It might be expected that settler colonies – commonly regarded to be the most oppressive and violent regimes in British Africa  – would display the greatest use of capital punishment. Both Kenya and Southern Rhodesia certainly had some of the highest levels of imprisonment and corporal punishment, and enforced punitive

47. See Public Executions – Uganda 1932, TNA CO 536/172/14. 48. See Andrew Burton, African Underclass: Urbanisation, Crime and Order in Dar es Salaam (Oxford: James Currey, 2005); David. M. Anderson. ‘Sexual Threat and Settler Society: “Black Perils” in Kenya, c. 1907–30’, Journal of Imperial and Commonwealth History 38, no. 1 (2010): 47–74; Martin Thomas, Violence and Colonial Order; Police, Workers and Protest in the European Colonial Empires, 1918–1940 (Cambridge: Cambridge University Press, 2012).

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labour economies and penal systems.49 Yet, these countries were not those with the greatest numbers of executions within normative colonial criminal justice: it was with the extended application of the death penalty under state of emergency regulations that occurred during the State of Emergency in Kenya in 1952–8 and the Rhodesian War of Liberation in 1964–79 that these states became exceptional in their use of the death penalty.50 In Kenya, a survey of 1,296 death sentences extant in the Nairobi archives – excluding those prosecuted under state of emergency regulations – reveals that 550 persons were executed between 1908 and the beginning of 1956, with approximately 42 per cent of convictions ending in hangings. Kenya executed 332 persons between 1929 and the start of the Emergency in 1952, during which time neighbouring Tanganyika hanged 546 people. Uganda and Tanganyika meanwhile both recorded more executions than South Africa between 1923 and 1948, despite South Africa’s population being greater than those two colonies combined: South Africa reported 466 executions to the Gower’s Commission’s investigation of capital punishment, whereas colonial data for Uganda records 530 hanging 1923–48 and 440 in Tanganyika from 1929 to 1943.51 Under normative criminal justice, Southern Rhodesia hanged 163 people between 1930 and 1955, whilst Nyasaland executed 109 and Northern Rhodesia 117 people. However,  Southern Rhodesia had a commutation rate of over 50 per cent between 1919 and 1968, higher than neighbouring Nyasaland, which commuted an average of 40 per cent of convicted murders before its independence in 1964.52 In Nyasaland, from the 897 capital trial records available in the Zomba archives between 1903 and 1947, 380 death sentences were handed down from which 181 persons were executed. These files do not document all cases, however, and colonial statistics record some 205 executions during this period. The routine use of capital punishment was therefore a common element of colonial penal repertoires rather than a unique facet of settler colonial violence. To nuance this picture, a close study of the Gold Coast highlights the shifts over time and regional variations that occurred within capital punishment regimes. There are significant difficulties in calculating the exact figures of conviction and

49. See Bernault, ‘Shadow of Rule’, 63–5; Branch, ‘Imprisonment and Colonialism in Kenya’, 248. Figures for corporal punishment are difficult to determine due to lack of records covering their use in lesser courts, but see Corporal Punishment Returns and Copy of Corporal Punishment Chart, TNA CO 859/1344; Southern Rhodesia, Report of the Secretary, Department of Justice for the Years 1933–60 (Salisbury, 1934–61); Tanganyika Territory, Report of the Tanganyika Territory Committee on Corporal Punishment, 1953 (Dar es Salaam, 1954) and Killingray, ‘Punishment to Fit the Crime?’, 193–8. 50. See Chapters 5 and 6. 51. Data gathered from Gowers Commission, prisons, judicial, police and Blue Book records. 52. See Southern Rhodesia, Annual Reports of the Commissioner, British South African Police; Annual Reports of the Secretary, Department of Justice; Gowers Commission, 728.

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execution across the Gold Coast due to patchy archives and incomplete recording of legal cases in Ashanti and the Northern Territory, a lack of clarity in official documentation between figures for the coastal Colony of the Gold Coast and the Gold Coast colony as a whole, as well as inaccuracies and contradictory figures in the records of the Judicial and Prisons Departments. The archiving of capital trials is less systematic in the national archives in Accra compared to Zomba or Nairobi, with two main types of documentation archived. Firstly, historians can access the ‘Murder Books’, which contain handwritten transcripts of capital trial proceedings in the Supreme Court assizes in the Colony from 1905 to independence in 1957. These provide valuable information on the circumstances of the crime and judges attitudes to murder, but do not list the final outcome of cases. More significant for the present analysis are the series of murder trial records in the CSO 15/3 series originating between 1930 and 1947, which allow a comparative analysis with the Kenyan and Nyasaland data.53 The CSO 15/3 series contains 298 case files, of which 268 are workable files detailing offences and outcomes from the Gold Coast Colony, Ashanti and the Northern Territories.54 Of the 268 cases documented, 176, or approximately 65 per cent, resulted in execution, with 189 persons being hanged. Twenty-six of the death sentences were commuted to life imprisonment, and a further eighteen to lesser sentences of imprisonment with hard labour after commutation. Overall, forty-four cases, 16 per cent of the series, received commuted sentences from the governor through the royal prerogative of mercy. A further thirteen were detained at the governor’s pleasure, either as juvenile offenders or after being found insane. There were also twenty-seven successful appeals to the West African Court of Appeal, with seven resulting in acquittals and twenty sentences being reduced to manslaughter, and one successful appeal to the Judicial Committee of the Privy Council in London (by a British doctor). Prisons and Blue Book data suggests that there were 233 recorded executions overall between 1930 and 1947, and some 493 murder trials between April 1930 and March 1938, so the CSO 15/3 records are only partial.55 From this wider data, between 1922 and 1938, legal and prison statistics suggest that an average of 56 per cent of death sentences resulted in execution. Capital sentencing in the Gold Coast varied at a regional level due to the differing legal regimes in place. Whilst the Colony allowed trial by jury and legal representation for Africans accused of murder, Ashanti and the Northern 53. The CSO 15/3 series emerges from assize records of homicide trials gathered under the colonial secretary’s orders, following the conviction and appeal of a British doctor for murder in Ashanti. It is not clear on what basis these particular cases were archived. 54. Twenty-seven cases were convictions for manslaughter or grievous bodily injury. The remaining files are empty, incomplete or contain incorrectly archived documents. 55. With data missing from the war years, it is impossible to calculate what percentage of cases were archived in the CSO 15/3 series, but Gocking estimates that the series represents less than 20 per cent of murder trials from the period. Gocking, ‘Adjudication of Homicide’, 99.

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Territories were governed under a pragmatic model of colonial criminal justice that prohibited juries, defence counsel and appeals.56 Criticism of this inequitable legal system mounted steadily among African political and legal elites and bar associations during the 1920s.57 The editor of the Gold Coast Independent, a leading nationalist newspaper, demanded reform of the administration of justice in Ashanti, asserting that it was ‘incompatible with British justice’.58 J. B. Danquah, an English-qualified lawyer who would become one of Ghana’s leading nationalists, informed the Independent’s readers that this ‘atrophied remainder of the cave man’s justice’ had rendered the peoples of Ashanti subject to greater state force than those in the Colony. Danquah highlighted the fact that in 1927–8 more people had been condemned to death in Ashanti – twenty-three as opposed to six in the Colony – despite Ashanti’s population being one-third that of the Colony.59 However, a successful appeal to the Judicial Committee of the Privy Council by a British doctor convicted of murdering his wife in Ashanti highlighted the inequities of this system and forced reform.60 The Colonial Office Legal Adviser, Henry Grattan Bushe, was sent to West Africa to advise on the necessary criminal justice reforms.61 Ashanti was subsequently opened up to legal practitioners in 1933, and the first Puisne Judge was appointed to Kumasi, the Gold Coast African Justice Charles Edward Woolhouse Bannerman.62 With the formal extension of Supreme Court jurisdiction to Ashanti and the Northern Territories in 1935, judges, defence and prosecuting attorneys could henceforth serve across the three territories, standardizing procedures and judgements.63 Additionally, after 1931 in the Colony and 1932 in Ashanti and the Northern Territories, convictions could be appealed to the newly reconstituted West African Court of Appeal (WACA).64 The immediate result of these changes was that the conviction and execution rate in Ashanti murder cases dropped significantly to below that of the Colony.65 Of the 268 cases from the CSO 15/3 series detailed in the archive, forty-six date prior to 1933: twelve murder cases

56. See Chapter 1. 57. Gocking, ‘Adjudication of Homicide’, 88; National Congress of British West Africa, Resolutions of the Conference of British West Africans (Accra: Government Printer, 1920). 58. ‘Law and justice in Ashanti’, Gold Coast Independent, 8 December 1928. 59. Almost 90 per cent of the Ashanti capital trials extant in the PRAAD CSO 15/3 series from before legal reform in 1933 resulted in execution. 60. The trial and appeal of Dr Benjamin Knowles is discussed in detail in Chapter 6. 61. Visit of H. G. Bushe to West Africa: Report, TNA CO 554/90/13. 62. Ashanti and Northern Territories Judicial System, TNA CO 96/705/1. 63. Gocking, ‘The Adjudication of Homicide’, 94–100. 64. After this date, most cases from Ashanti and the Northern Territories were sent for appeal but appeals from the Colony were less routine and seem to have been less successful, which was likely a result of WACA’s belief in the higher standards of law and justice applied in the Colony’s assize courts and jury trials. 65. See PRAAD CSO 15/3 series.

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Graph III  Disposition of Capital Cases in the Gold Coast, 1925–65. Source: Blue Book Annual Statistics from the Supreme Court and Prisons Department Annual Returns. NB: Supreme Court figures before 1935 were only for the Colony.

from Ashanti, all of which resulted in execution, and thirty-one cases from the Colony of which twenty-two resulted in execution. From the 224 cases after 1933, seventy-three were from Ashanti and the Northern Territories, and 151 from the Colony. In Ashanti and the Northern Territories, 53 per cent of the cases resulted in executions. In the Colony, that figure sat at 61 per cent. In the late colonial period, execution rates dropped to 29 per cent in 1951–4, before rising again in the immediate years before decolonization to 65 per cent.66

Capital punishment and colonial penality in the interwar years To understand both the frequency of capital sentences and executions, the death penalty needs to be placed within the wider context of colonial crime, penality and cultures of violence. The ‘extreme penalty of the law’ was not the only severe sanction available to the colonial government to combat violent crime and maintain law and order; it rather formed the apex of a system of corporeal and extractive or pecuniary sanctions. Under a colony’s Penal Code, the following punishments were routinely available to colonial and Native Authority courts: the death penalty, imprisonment, corporal punishment, fines, deportation orders and compensation.67 More broadly, executions formed part of an extended colonial 66. This increase may be partly linked to a change in data reporting, with the last annual report preceding independence covering twenty-one months and therefore encompassing more completed cases. 67. See e.g. Penal Code (Laws of Nyasaland) 1929, s. 25. Other, less frequently imposed, sanctions were being bound over, police supervision, and forfeiture.

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punitive regimen that operated along a continuum of legal and extra-legal forms of violence, ranging from beatings to torture, floggings and corporal punishment, to collective punishments (including livestock or property seizures), banishments, population displacement and extrajudicial killings. As Mark Brown argues, the colonial penal sphere was a ‘polyvalent enterprise’ that encompassed civil, criminal and sometimes military contexts.68 Colonial punishment was a means by which the state established or extended its authority and reworked subaltern subjectivities, shoring up racial hierarchies of power.69 As Bernault and Branch have argued, no Foucauldian biopolitical carceral archipelago emerged in Britain’s African territories; colonial penal systems were fundamentally coercive but incompletely disciplinary.70 Colonial penality was not simply a result of transporting metropolitan punishments into African societies, or a hybrid format emerging from the intersection of British penal practices and African customs: instead, a specifically colonial punitiveness emerged that served the localized political and economic objectives of colonial authorities and their indigenous allies. Penal power was inchoate, unevenly distributed and vulnerable to both African resistance and contestations between legal, penal and political authorities.71 Whilst the nuances of penal regimes were shaped by local dynamics and colonial chronologies, key trends and commonalities can be observed. In Britain’s African territories, colonial penality served to promote the reproduction of dominant power through racial hierarchy and economic development, not to reclaim and transform individual Africans: a perceived need for punitiveness intersected with the desire for productivity.72 Prisons, whips and fines were the central pillars of penality across British Africa, serving to incorporate African labour into the colonial economy – with penal labour produced both by sentenced criminals and those who were unable to pay fines – and to discipline labouring bodies. Violence, both spectacular and quotidian, remained integral to colonial punitive repertoires, fuelled by racial ideology, weak state structures and the inherent contradictions of colonialism itself. But what role did capital punishment serve within these interwar penal systems? During the era of colonization, it had provided the lethal apogee of colonial power, aimed at securing law, order and British justice through spectacular displays of violence, with the routinization of colonial power the functionality of the noose shifted. The death penalty was marginal to the political economies of colonial punishment, except indirectly in how it shored up the social hierarchies of capitalist labour regimes and land ownership where murders occurred over wages or employment conditions, or over the control of land or theft of goods: executions, after all, served to eliminate rather than exploit offenders for their labour. Capital punishment’s primary function was rather one of didactic 68. Brown, Penal Power and Colonial Rule, 192. 69. See Sherman, State Violence and Punishment. 70. Bernault, ‘The Shadow of Rule’; Branch, ‘Imprisonment and Colonialism’. 71. Bourgeat, ‘Penality, Violence and Colonial Rule in Kenya’, 19. 72. Bernault, ‘De l’Afrique ouverte’, 40.

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deterrence, of managing rather than eliminating lethal violence within African communities, and tackling dangerous, disruptive or ‘repugnant’ behaviours that threatened social order. Research suggests that the majority of murders punished in colonial courts resulted from quarrels between friends, families and neighbours; offenders and victims tended to come from the same communities, and hired, ‘pathological’ or inter-racial killings were relatively few.73 Domestic and spousal murders were in many years the largest category of homicides tried before colonial courts in Kenya, Nyasaland and the Gold Coast.74 Few of the murder cases in the 1920–30s were identified as being expressly anti-colonial in focus. Instead, a major concern within colonial penality was the growth of determined criminality across African populations, particularly in urban spaces, which was heralded as a marker of detribalization, and the degeneration of traditional African custom and social values.75 This was common across both many British African territories and French West Africa, where the prime focus of capital convictions shifted from ritual murders, crimes associated with African custom, in the 1920s to modern urban criminality in 1930s.76 In British Africa, police, legal and political records are replete with officials’ complaints about the emergence of ‘criminal types’, ‘sophisticated’ crime and ‘recidivists’. This concern with intensifying criminality was replicated in murder trials and influenced sentencing decisions, with murderers whose offences were seen as stemming from premeditated and ‘criminal behaviours’ being more harshly punished than those whose offences were regarded as a result of ‘African’ impulsive violence, as Chapters 3 and 4 explore in more detail. Colonial anxieties about African criminality became particularly sharp around the socio-economic disruption generated by the Great Depression’s impact on the continent. Kenya, the Gold Coast and Nyasaland all experienced a rapid expansion in rates of imprisonment, with financial distress driving up crime rates and increasing numbers being incarcerated for tax defaulting or inability to pay fines.77 However, there was no uniform correlation of impact on

73. See Bohannan, ed., African Homicide and Suicide. 74. Stacey Hynd, ‘Fatal Families: Narratives of Spousal Killing and Domestic Violence in Murder Trials in Kenya and Nyasaland, c.1920–57’, in Domestic Violence in Africa: Historical and Contemporary Perspectives, ed. Richard L. Roberts, Elizabeth Thornberry and Emily S. Burrill (Athens: Ohio University Press, 2010), 159–78. 75. Paterson, Report on a Visit to the Prisons, 27. 76. Gendry, ‘“Seule une répression sévère”’, 25. 77. See Branch, ‘Imprisonment and Colonialism in Kenya’, 247; Stacey Hynd, ‘Law, Violence and Penal Reform: State Responses to Crime and Disorder in Nyasaland, c.1915–64’, Journal of Southern African Studies 37, no. 1 (2011): 438; Stacey Hynd, ‘“Insufficiently Cruel” or “Simply Inefficient”? Discipline, Punishment and Reform in the Gold Coast Prison System, Ghana c. 1850–1957’, in Transnational Penal Cultures: New Perspectives on Discipline, Punishment and Desistance, ed. Vivien Miller and James Campbell (London: Routledge, 2014), 17–20.

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capital punishment. Kenya saw an elevated use of capital punishment during the Depression era, with 113 people hanged in 1929–34, compared with fifty in 1923–8 and sixty-five in 1935–40, whereas Nyasaland saw a steady diminution, from forty-seven, to thirty-two, to seventeen hangings in the same periods, and the Gold Coast saw a sustained increase, from fifty-seven in 1923–8, to seventytwo in 1929–34, to seventy-six in 1935–40.78 This indicates that use of the death penalty was primarily driven by local politico-legal agendas and the determinants of individual cases, rather than broader colonial or imperial penal strategies or political economies of punishment. Analysis of the shifting usage of capital punishment to combat threats to public order reveals its limitations as a tool of colonial authority in this period as much as its strengths. In the Gold Coast, local political disputes in Ashanti and the Colony frequently resulted in civil disorder and violence, particularly destoolment attempts between local chiefs and their rival supporters, as did clashes between rival asafo (war people) companies.79 Both were discursively rendered in colonial reports as ‘riots’. Riots were a continual concern for colonial authorities, but the role of capital punishment in combating and punishing riots that ended in homicides changed between the nineteenth and twentieth centuries. To focus on asafo, these martial companies among the Fante peoples of south-central Gold Coast were highly territorial, each with their own town quarters, shrines and distinctive flags. Inter-company violence, or amanko, was endemic to asafo.80 Clashes at festivals, funerals or resulting from other local tensions would result in gunfights, stonethrowing, mutilations and destruction of property, with multiple deaths, and were often portrayed by colonial officials as a form of primitive savagery.81 In the late nineteenth century, officials often convicted and executed offenders for murder to combat such offences, as was infamously seen in January 1885 when ten men were hanged in conjunction with serious disturbances in Winneba.82 However, by the 1920s it had become almost impossible for officials to secure capital convictions, even where amanko resulted in tens or even a hundred deaths, due to difficulties securing objective juries, witness tampering and a lack of cooperation with investigations.83 In the 1930–40s such riots became less bloody but remained

78. See Prisons, Police and Judicial annual reports. 79. Ceremonial stools were the literal seats and figurative symbols of political office. Inez Sutton, ‘Law, Chieftaincy and Conflict in Colonial Ghana: The Ada Case’, African Affairs 83, no. 330 (1984): 41–62. 80. See Ella Jeffreys, ‘War People: A Cultural History of Violence among the Fante Asafo’ (PhD thesis, SOAS, 2022). 81. Arthur Ffoulkes, ‘The Company System in Cape Coast Castle’, Journal of the Royal African Society 7 (1908): 261–77. 82. Winneba, Register of Riots 1884–1924, 29, PRAAD ADM 11/1/1753. 83.  Gocking, ‘The Adjudication of Homicide’, 95–7.

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frequent, with many deaths occurring. Few, however, resulted in homicide charges, and fewer still in conviction and execution. Authorities shifted to trying those involved in asafo company fights on lesser charges of rioting or rioting with offensive weapons, and levying hefty fines against chiefs who had supported, failed to suppress or obstructed justice for amanko.84 Significantly, official police reports commonly dismissed such riots as not ‘having a political cause’, by which authorities meant they were not anti-colonial in focus: as they were no longer seen as a directly political threat to colonial order, there was less need for executions even where convictions were secured.85 In 1932–3, the Bushe Commission investigation into criminal justice in East Africa explored key tensions surrounding the application of the death penalty, revealing colonial perceptions of how hangings fit within wider structures of colonial penality. Although didactic deterrence was a key justification of capital punishment, throughout the 1920–30s many officials expressed concerns that the death penalty did not actually deter African offenders, either because it was not a customary penalty, because Africans feared death less, because local communities did not witness executions that occurred in prisons, or because a high level of commutations of death sentences into relatively short periods of imprisonment saw condemned men returning alive to their communities.86 As such, alternative punishments were mooted to replace the death penalty by the Bushe Commission. Imprisonment was one suggested alternative, particularly as offenders already received life or other sentences of imprisonment with hard labour in commutation of the death sentence.87 However, opinion varied as to the efficacy and humaneness of such prison sentences. Some officers maintained that due to the poor conditions in colonial jails, fifteen years wasting away in prison was in fact far less humane than a quick death.88 Conversely, others asserted that prison conditions were too lenient and that reprieved murderers were better fed and cared for than ordinary, law-abiding Africans.89 The Commission decided that whilst imprisonment was an appropriate penalty for Africans, the death sentence had to remain as a necessary deterrent against capital crimes. Another more contentious alternative mooted was collective punishment, with the suggestion made that a sufficiently large fine be imposed to ensure that the murderer’s family or clan would have to gather

84. R. v. Kobina Monko & 16 others, 7 May 1907, PRAAD SCT 5/5/8. 85. Gold Coast, Annual Report for the Police for the Year April 1936–17, 15; Annual Report for the Police for the Year ending December 1910, 4. 86. Execution of Murderers, 1925, KNA DC/LDW/2/21/18; Gold Coast, Report of the Prison Department 1943–4, 3. 87. Bushe Commission, 72–3. 88. See Hailey, An African Survey Revised, 559; Native Prisoners  – Effects of Long Sentence on, Tanzanian National Archives, Dar es Salaam, 7667. 89. Bushe Commission, 58–9; Power of the Governor to Impose Whipping for Imprisonment, TNA CO 536/150/4.

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payment. Although penalizing a community for the crime of an individual ran contrary to international law and the principles of English justice, colonial states nevertheless continued to believe in the efficacy of such punishments in securing the cooperation of recalcitrant populations.90 In Kenya, as elsewhere, collective fines were occasionally imposed in locations where murders were thought to indicate a breakdown of control, as in the Samburu district in 1933 relating to a series of suspected ‘spear-blooding’ murders, including that of the European settler Theodore Powys.91 The Bushe Commission however rejected such proposals, and its final recommendation was that ‘[t]here should be no alternative sentence for murder’.92 Just as the interwar years were marked by a tension between universalist substantive justice and particularist pragmatic colonial justice in the legal realm, in penal spaces there emerged in that period tensions between liberal penal reform efforts emanating from the metropole and local penal severity. From the later 1930s, the Colonial Office advocated for more universalist colonial criminal justice and penal systems to bring Britain’s African territories closer into line with metropolitan justice. This was particularly fuelled by the Special Advisory Committee on the Treatment of Offenders, established in 1937, which was headed up by noted penal reformers Margery Fry and Alexander Paterson and spent most of its time pushing a strongly reformist agenda and antagonizing the Colonial Office Legal Department who felt its demands were unrealistic.93 A new humanitarian and rehabilitative moral figuration of law and punishment was emerging, but its application in colonial spaces was shallow and partial. Colonial reports from the 1930s onwards are discursively framed through the lenses of reform and the rehabilitation of offenders. In practice however, reformative efforts usually focused on shifting the aim of imprisonment from punitive deterrence to disciplining and re-socialization through teaching offenders a trade to create economically productive citizen-subjects, or to producing forms of penal labour that were more acceptable to international and imperial oversight, rather than on improving the health or living conditions of prisoners.94 There was

90. See Collective Punishments, TNA CO 936/535; A. W. B. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001), 1062–3. 91. Mr T. L. Powys, KNA AG/52/25. 92. Bushe Commission, 76, 98, xli. 93. Advisory Committee on the Treatment of Offenders in Colonies, TNA CO 859 and CO 912 series, 1937–61. See Seal and Ball, ‘The Howard League and Liberal Colonial Penality’. Paterson conducted review of prisons in both East and West Africa for the Colonial Office, producing excoriating indictments of the poor conditions, exploitation of Africa prison labour and the lack of rehabilitation for offenders. See Harry Potter, Alexander Paterson: Prison Reform (Woodbridge: Boydell & Brewer, 2022), 336–40, 355–60. 94. Hynd, ‘Insufficiently Cruel’ or ‘Simply Inefficient’?, 23.

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also an emphasis on the sanitization and technologization of corporeal sanctions, including efforts to remove hanging from public gallows to behind prison bars and imposing standardized gallows and execution procedures, as explored in Chapter 7.95 Senior colonial officials increasingly came to believe, as Frederick Lugard did, that ‘public executions in Africa are wrong … Such punishments cannot uphold the sanctity of British Justice, and their educative effect, if any, is not in accordance with the best principles of progress and civilization’.96 This period also saw efforts to standardize and place under medical observation the use of corporal punishment, with ‘flogging’ and ‘whipping’ repackaged as ‘caning’.97 Such reforms served to render continued corporeal violence acceptable to metropolitan sentiment. Violence was sanitized, bureaucratized and discursively recast, not eradicated. Elsewhere, welfarist modernization of state punishment was often cosmetic at best, and the wider penal reform agenda was a failure in practice, reflecting the continued primacy of the economic and repressive functions of colonial punishment over rehabilitative agendas. This was no unilinear civilizing process from penal archaism to a colonial liberal penalty.98 There remained a persistent vein of coercive violence in imprisonment, defying Foucault’s model of a transition away from sovereign, physical punishment in modern penal regimes: penal violence in colonial Africa was not a remnant of archaic, sovereign punishments but was constitutive of colonial modernity and governmentality.99 In Kenya, Bourgeat argues that there was in fact a normalization and intensification of ‘penal excess’, of both police and penal violence, from the late 1930s to the 1940s, ‘reflect[ing] the entrenchment of a common punitive sense across official and non-official circles of white power’.100

Capital punishment, penal welfarism and late colonial violence The years during and after the Second World War saw a rise in both crime rates and anti-colonial protest across British colonial Africa, both of which contributed to a rise in punishments. As with the interwar years, colonial penality in the post1945 era was strongly marked by a tension between reformist sentiments and the continued belief in the necessity of violence in punishing and ‘civilizing’ Britain’s 95. See Chapter 7. 96. Lugard, The Dual Mandate in British Tropical Africa, 61. 97. Steven Pierce, ‘Punishment and the Political Body: Flogging and Colonialism in Northern Nigeria’, in Discipline and the Other Body: Correction, Corporeality, Colonialism, ed. Steven Pierce and Anupama Rao (Durham, NC: Duke University Press, 2006), 197–8; Anderson, ‘Punishment, Race and the “Raw Native”’. 98. Elias, The Civilizing Process; Seal and Ball, ‘The Howard League and Liberal Colonial Penality’. 99. Foucault, Surveiller et Punir. 100. Bourgeat, ‘Penality, Violence and Colonial Rule in Kenya’, 314.

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African subjects. Influenced by the emergence of the welfare state in Britain, a form of penal welfarism emerged in the empire, which sought to ameliorate conditions and humanize punishments, linking penal reform with colonial welfare and development. In practice however, such penal welfarism focused on discrete and easily managed offender populations, with the juvenile delinquent emerging as the emblematic figure of colonial penal reform.101 Capital punishment on the other hand remained marginal to such reformist discussions, even as abolitionism gained ground in Britain. Metropolitan and international reformist agendas foundered against the reality of parsimonious prisons department budgets, institutional inertia, colonial fears of rising criminality, and the threat of African nationalism. In this period economic rationales underpinning punishment became less significant as state infrastructures and economies expanded, but crime control became more prominent in colonial discourses, with penal regimes becoming increasingly marked by penal excess and securitization. In Kenya, the daily average prison population increased from 3,005 in 1938 to 11,630 in 1951.102 In the Gold Coast, before the war, the average daily prison population had been around 1,900 persons, but by 1951 it was 3,300. Overall committals rose from 9,548 in government prisons in 1938–9 to 20,087 in 1954–5, leading to massive overcrowding.103 Corporal punishment continued to be regarded as a legitimate disciplinary technology to ‘civilize’ the supposedly child-like African, actually increasing in Nyasaland’s courts in the 1950s, whilst in the Gold Coast both floggings with the cat o’ nine tails and whippings with birch canes remained a symbolic marker of colonial penal power well into the 1950s.104 Sentences of corporal punishment in Kenya nearly doubled from 1930–8 to 1943–51, from 3,225 to 5,952.105 Executions, however, remained relatively static in the same period, going down from 134 to 123.106 Notably, capital sentencing and executions did not increase at the same exponential rate as other forms of colonial punishment in the late colonial era, except in state of emergency contexts. Karimunda argues that capital punishment lay dormant in statue books in the Gold Coast until after 1948 when ‘the sudden rise in death penalty cases corresponded to the use of capital punishment

101. Paul Ocobock, An Uncertain Age: The Politics of Manhood in Kenya (Athens, OH: Ohio University Press, 2017), 137–65: Stacey Hynd, ‘Pickpockets, Pilot Boys and Prostitutes: The Construction of Juvenile Delinquency in the Gold Coast [Colonial Ghana], c. 1929–57’, Journal of West African History 4, no. 2 (2018): 47–74. 102. Branch, ‘Imprisonment and Colonialism in Kenya’, 248. 103. Hynd, ‘Insufficiently Cruel’ or ‘Simply Inefficient’?, 26. 104. Ibid., 23; Hynd, ‘Law, Violence and Penal Reform’, 444. 105. Committee on Corporal Punishment, 1952, KNA JZ/6/18. 106. In comparison, Gendry argues that in French West Africa, the use of the death penalty declined after 1946 as it became less securitized and more professionalized. ‘“Seule une répression sévère”’, 26.

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against political agitators to prevent them spreading the ideology of liberation and contaminating the populace’.107 The archival evidence does not support this assertion and the death penalty had been in frequent use before 1948. There was a small increase in death sentences and executions in the years preceding Ghana’s independence, but this was largely due to a wider rise in (and concern about) crime rates and African criminality during the Second World War and its aftermath.108 The sharpest spike in murder convictions occurred in April 1947–March 1948 with ninety-six convictions, some of which were linked to fights resulting from political protests or disruptions, but were not a direct result of the February 1948 riots. Seventy-two hangings were held between 1945 and 1950, compared with fifty-one between 1950 and 1955. Records indicate an increase in executions in the immediate pre-independence years of 1955–6 but this stems in part from a shift in data reporting, with the last annual report covering twenty-one months in the lead up to independence. Whilst the archival collection of capital case files in the Accra archives stops in 1947, neither legal, police, nor prisons records or Murder Book transcripts there, nor Colonial Office or Migrated Archives in London evidence a deliberate, targeted use of the death penalty against anti-colonial activists.109 As elsewhere in Britain’s African territories, political imprisonment and detention, fines, censorship and police violence were instead widely used to repress nationalist agitation in the Gold Coast, with a marked rise in the prison population due to this and wider growth in crime: Kwame Nkrumah may have borne witness to executions during his time as a political detainee, but he was not threatened with the death penalty himself.110 The evidence from across British Africa suggests that the death penalty was not deployed systematically against anti-colonial nationalism under normative legal processes. As officials in London noted, the preference was to imprison nationalist leaders and ‘it has not been British practice to hang or shoot them because of their politics’.111 This was less from any moral or political restraint

107. Karimunda, The Death Penalty in Africa, 106. 108. J. C. Hamilton, ‘Crime and Punishment in West Africa’, West African Affairs (Accra: Government Printer, 1953), 3–10. The post-Second World War era also saw a rise in executions to combat rising crime and social disorder, in Europe. See Spierenburg, A History of Murder. 109. See trial records contained in the Accra Judgement Book 1956, PRAAC SCT 2/6/24 and Murder Record Book Sekondi 1950–60. 110. See Gold Coast, Report of the Committee on Prisons (Accra: Government Printers, 1951); Nkrumah, Autobiography, 130–3. See Caroline Elkins, Britain’s Gulag: The Brutal End of Empire in Kenya (London: Jonathan Cape, 2005); John McCracken, ‘In the shadow of Mau Mau: Detainees and Detention Camps during Nyasaland’s State of Emergency’, Journal of Southern African Studies 37, no. 3 (2011): 535–50. 111. See S. D. Cornelius, 12 January 1965, Capital Punishment for Political Offences in Peace Time, 1963–5, TNA CO 1032/482.

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than from an awareness that a rise in humanitarian sentiments and emerging human rights frameworks, combined with increased metropolitan oversight and abolitionist campaigns against the death penalty, made capital punishment a riskier proposition, particularly in colonies like the Gold Coast where African lawyers were prominent nationalists and well-versed in opposing capital convictions in the courtroom and in the court of public opinion.112 Where anti-colonialism erupted into armed conflict however, capital punishment was then deployed as an element of colonial counter-insurgency tactics under state of emergency regulations that extended its application to include crimes other than murder or treason. This occurred, most infamously, in Kenya where over one thousand Gikuyu men convicted of involvement in the State of Emergency were hanged between 1952 and 1958, as Chapter 5 explores.113 Outside of these exceptional regimes, use of the death penalty in the late colonial era focused on managing rising criminality and tackling moral panics or socio-political threats to colonial order, rather than directly combating African nationalism and the rise of anti-colonial political agitation more broadly. In Nyasaland, the highest annual figure of murder conviction executions, outside of the 1914 Chilembwe rebellion, occurred in 1950, with twenty-four death sentences handed down, eighteen of which resulted in execution.114 District commissioner’s reports suggest that this increase was a result of social disruption and inter-personal conflict generated around the 1949 Nyasaland famine. Conviction and execution data from across British colonial Africa indicate that whilst the number of executions could sharply fluctuate year-on-year, often due to cases involving multiple convictions, the overall trends in hangings were relatively static between the 1920s and 1950s. One particular form of moral panic that late colonial states did deploy capital punishment to combat was the spate of so-called ‘ritual’, ‘medicine’ or ‘fetish’ murders that erupted across the continent in the late 1940s, fuelled by post-war socio-political tensions.115 Such crimes were perceived as particularly threatening to colonial order as officials feared they heralded the failure of colonial civilizing missions and modernity in the face of ‘primitive savagery’, with executions ordered for both ringleaders and accomplices when broader policing, political

112. See Chapter 6. 113. See Anderson, Histories of the Hanged. 114. See Nyasaland Protectorate, Annual Reports for Police, Prisons and Judiciary, 1949–50. 115. There were a number of fetish murders in the Gold Coast, but not on the scale to generate a comparable moral panic. Some cases did result in executions, but a strong legal culture and difficulties with witnesses made convictions hard to obtain. See Chapter 6 and Roger Gocking, ‘A Chieftaincy Dispute and Ritual Murder in Elmina, Ghana, 1945–6’, Journal of African History 41, no. 2 (2000): 197–219.

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interventions and punitive measures failed to stop the killings.116 In Nigeria, 206 persons were charged in relation to ‘man-leopard’ murders, with ninety-six being convicted across sixty-four cases. Of these, seventy-seven men were executed.117 In Tanganyika, eleven people, including women, were executed in relation to a series of lion man murders in Singida district in 1947.118 It was in Basutoland (modernday Lesotho) however that the linkage between capital punishment and colonial attempts to re-establish authority in the face of political threats posed by ritual murders was most starkly revealed. There, liretlo murders, or ‘medicine murders’ for body parts as colonial authorities deemed them, generated a moral crisis linked to power struggles between competing chiefs.119 Some 345 persons, including some of the most senior chiefs in the country, were sentenced to death for their involvement in these killings in 1940–60s, with 232 executed.120 It is striking that despite colonial administrators’ concerns that the death penalty did not work as a didactic deterrent in African societies, whenever major threats to colonial authority or civilization erupted, officials reached for the noose as a punitive and disciplinary weapon to shore up their rule.

Conclusion Punishment reflected the image of colonial rule and its contradictions: it was simultaneously shaped by – and oscillated between – civilization and violence, punishment and reform, exploitation and humanitarianism. For much of the colonial period, the impetus for penal reform in British Africa went hand in hand with calls for stronger penal discipline, indicating the continued belief in ‘civilizing violence’ among colonial authorities. The rhetoric of reform was adopted from

116. Thaïs Gendry makes a similar argument about French colonial use of the death penalty to counter moral panics around ‘ritual’ or ‘anthropophagic’ murders in 1920s French West Africa, when the ‘féticheur’ and the ‘cannibale’ became the primary focus of capital punishment. See ‘Le cannibale et la justice: De l’obsession coloniale à la mort pénale (Côte d’Ivoire et Guinée française, années 1920)’, Vingtième Siècle. Revue d’histoire 4, no. 4 (2018): 55–68. 117. D. S. Fountain, A Report on the Leopard Society Murders, WL MSS.Afr.s.1784 (18), 46; David Pratten, The Man-Leopard Murders: History and Society in Colonial Nigeria (Edinburgh: Edinburgh University Press, 2007). 118. Tanganyika Territory, Annual Report on the Administration of Prisons during the Year 1947 (Dar es Salaam: Government Printer, 1948), 14. 119. See Murray and Sanders, Medicine Murder in Colonial Lesotho: An Anatomy of a Moral Crisis (Edinburgh: Edinburgh University Press, 2006). These cases are extensively archived in TNA DO 119 and FCO 141/652–94 files on Basutoland. 120. Murray and Sanders, Medicine Murder, 273–4.

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metropolitan and global liberal penal policies but failed to disrupt the inefficiencies and violence inherent in colonial penality. Besides the ending of public hangings by the 1930s, the death penalty stood largely outside these reformist agendas: the restriction or abolition of judicial killing was never seriously mooted. The death penalty was the keystone of colonial penal repertoires, and its use created the political and moral conditions in which other forms of (extra-)legal violence and death proliferated. Capital punishment was much more widely pronounced and enacted in Britain’s African territories than in the metropole, reflecting the centrality of race to the functioning of imperial violence. Capital punishment remained an integral aspect of states’ judicial and penal violence throughout the colonial period, but its symbolic, political and peno-legal import changed over time, being most prominent politically in the early and late colonial periods as colonial authority was challenged and resisted, but most significant to the routine operation of colonial penality in the interwar years. During that period, the death penalty’s primary function was one of didactic deterrence, aimed at managing intra-African violence. The noose stood alongside the prison, the whip and the fine as the central pillars of colonial penality, but their use was not directly correlated. Settler states like Kenya, whose punitive regimes were marked by penal excess, including the highest levels of imprisonment and corporal punishment, were not those with the highest rates of execution under normative criminal justice. Whilst other forms of punishment increased exponentially in the post-Second World War era, rates of capital punishment remained stable. Between the 1910s and 1950s, with the notable exception of Kenya during the State of Emergency, rates of executions remained relatively static because the central crime it was used to address, murder, and the central colonial fears of African violence that drove its use, endured. The death penalty was recalibrated and retargeted, but fundamentally, colonial states always relied on the threat, and enactment, of death to impose their power on African subjects and societies. In the end, legal contestations over colonial justice and penal tensions around violence and reform shaped the operation of the death penalty in British Africa, but they did not ultimately determine the frequency of its enactment: that was left to colonial governors, through the practice and politics of mercy.

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Chapter 3 T O H A N G O R N O T T O H A N G ? C A P I TA L S E N T E N C I N G , C AT E G O R I E S O F C O L O N IA L C R I M I NA L I T Y A N D T H E   R OYA L P R E R O G AT I V E O F M E R C Y

Although I can find nothing to extenuate what is a brutal murder of a crippled woman to avoid paying some small compensation, both accused appear to be extremely low human types, and I think justice would be met if instead of the death penalty the accused served a long term of imprisonment.1 – Judge Thomas, Nyasaland, 11 July 1939 On 5 April 1939, on the outskirts of Chinuta Village, Kota Kota district in Nyasaland, a young woman named Esnat was beaten to death with a club. Esnat was regarded as a ‘cripple’ by her village, suffering from epilepsy and unable to walk without sticks due to serious burns to her legs. Four men, including three brothers, were charged with her murder and brought before Chief Justice Thomas at the High Court Assizes in Kota Kota in July, where they confessed to murdering Esnat in an attempt to avoid paying compensation to her uncle after one brother, Wilson, had sex with the young woman. In passing judgement on these men he found guilty, Judge was bound to hand down the mandatory death penalty for the murder. Nonetheless, when summing up the case, Thomas recommended that the two men should be treated with mercy. Upon reviewing the case, Governor Kittermaster agreed and commuted their sentence to one of life imprisonment.2 Although, as Chanock has written, ‘law was the cutting edge of colonialism’, sometimes a colonial state chose to blunt justice’s sword and spare the lives of the subjects it had sentenced to death.3 The royal prerogative of mercy allowed the governor of a colony to reprieve a capital conviction and moderate the rigour of the law to suit colonial societies and modes of governance, tempering colonial law 1. Judge Thomas, 11 July 1939, Robert Simonya & 3 Others, CC20/39, NAM J5/5/67b. 2. The case files use the language of ‘sleeping with’ and there was no discussion of whether Esnat had consented. Colonial understandings of Chewa custom noted that sexual relations with an unmarried woman incurred lipo (compensation) for cipongwe (insolence) to her family if he refused to marry her. 3. Chanock, Law, Custom and Social Order, 4.

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with a form of clemency. The reasons behind this gubernatorial mercy illuminate the attitudes of colonial states towards their deviant subjects and the crimes they committed, but also highlight the strategies of governance they employed to control those subjects. In analysing the death penalty, it is as important to explore the limits of its violence, its politico-legal boundaries and sentencing outcomes, as much as its terminal force. Mercy was an integral aspect of capital punishment and colonial governance. This chapter explores its functioning through a comparative analysis of archived capital case files from Kenya, Nyasaland and the Gold Coast to highlight the processes by which the prerogative of mercy was used to mitigate judicial severity and bring colonial and African notions of ‘justice’ into alignment. Reprieves acted as a means of regulating the level of capital punishment so that an acceptable number of the right sort of offenders went to the gallows – acceptable, that was, to both imperial and African audiences. Punishment was modified and penalties lifted for a host of reasons, but gubernatorial mercy made the death penalty fundamentally different from other forms of punishment in that it was an expressly politicized penalty. Ultimately, this made capital punishment an instrument of state politics as much, if not more than, a penal policy.4 Outside of curbing anti-colonial uprisings, the aim of capital punishment in British Africa was not primarily retributive but didactic, which allowed a significant level of mercy to operate. The royal prerogative of mercy was in keeping with the beneficent image of British justice officials wished to present, but the ineluctable point was that the only lives spared were those whom white powerholders chose to save. The system of mercy was important because it put the principal instrument of legal terror directly in the hands of political authority, particularly in Africa where governors, judges and district commissioners formed the nodal points of largely arterial colonial networks of power.5 Mercy was shaped not just by colonial attitudes towards African criminality, but by concerns about the limits of colonial authority and the discrepancies between colonial law and African notions of justice. The fact that under colonialism some crimes previously regarded as befitting death, such as adultery, theft and witchcraft, were no longer capital offences, whilst actions that had been accepted as legitimate mechanisms of social defence, such as the killing of suspected witches, now resulted in a capital sentence, created significant tensions that mercy helped to diffuse. However, the enactment of mercy did not countermand the inherent authoritarianism, racism or instabilities of the colonial criminal justice system, in Africa or elsewhere. The fact that mercy was exercised through political discretion meant that the modification of punishment was itself arbitrary, unaccountable and unequal, and did not guarantee remedial justice. Mercy could be used for all the wrong reasons  – to overlook racial killings or to shore up faltering social and political structures  – and relying on the royal 4. Evans, Rituals of Retribution, vii, 630; Peter King, ‘Decision-Makers and DecisionMaking in the English Criminal Law, 1750–1900’, Historical Journal 27, no. 1 (1984): 25–58. 5. Cooper, ‘Conflict and Connection’.

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prerogative of mercy gave states a perfect excuse to leave structural injustice unaddressed.6 Colonial archives reveal what contemporaries recognized: mercy was both arbitrary and predictable.7 Mercy in British Africa operated on three levels: as an arbitrary modulation of judicial severity; as the implementation of established principles imported from the metropole and adapted to African climates; and as an expression of the racial politics of colonial rule and ideological landscapes of power. This chapter focuses on the first two levels to establish patterns in the colonial prerogative of mercy, analysing rates of mercy and the categories of offence, and offenders, who were executed and those who were reprieved. It also highlights the main types of murder that were prosecuted in colonial courts and dominated mercy discussions: those involving women, beer and witches. Following this, Chapter 4 switches from a criminal to a cultural history perspective to explore the racialized narratives and emotional landscapes of power that shaped mercy, before Chapter 5 analyses the abrogation of mercy and extension of the death penalty in the face of violent threats to colonial order.

‘An evolving bureaucratic calculus’: The practice and procedures of mercy in colonial Africa8 There have been a number of competing interpretations of the functioning of mercy in English and colonial criminal justice systems. The eminent criminologists Leon Radinowicz and Roger Hood argued that mercy decisions in England were made on the basis of the law, with murders involving deliberation and planning resulting in execution.9 For Victorian England, Roger Chadwick maintains instead that it was the social and moral meanings of murder that were key to allocating mercy, whilst Carolyn Strange has argued that mercy in Canada was at base arbitrary.10 Within Africa, Robert Turrell has stressed the importance of political cultures in shaping South Africa’s shifting patterns of mercy.11 Most influentially, Douglas Hay argued in his classic appraisal of criminal law in eighteenth-century England that mercy

6. Jeffrie G. Murphy, ‘Mercy and Legal Justice’, in Forgiveness and Mercy, ed. Jeffrie G. Murphy and Jean Hampton (Cambridge: Cambridge University Press, 1988), 171. 7. Carolyn Strange, ‘Introduction’, in Qualities of Mercy: Justice, Punishment and Discretion, ed. Carolyn Strange (Vancouver: University British Columbia Press, 1996), 9. 8. Roger Chadwick, Bureaucratic Mercy: The Home Office and the Treatment of Capital Cases in Victorian Britain (London: Garland, 1992), 11. 9. Leon Radzinowicz and Roger Hood, A History of English Criminal Law and Its Administration: volume 5 – The Emergency of Penal Policy (London: Stevens, 1986), 677–81. 10. See Chadwick, Bureaucratic Mercy; Carolyn Strange, ‘Discretionary Justice: Political Culture and the Death Penalty in New South Wales and Ontario, 1890–1920’, in Qualities of Mercy, 130–65. 11. Turrell, White Mercy.

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was a discretionary instrument whose exercise confirmed the mental structures of paternalism and deference to uphold the social order, allowing criminal courts to function as ‘a selective instrument of class justice’.12 Whilst mercy in colonial Africa was influential in upholding social hierarchies and supporting the selfrepresentation of colonial paternalism, it also functioned as a selective instrument of a racialized colonial justice: the bureaucratic calculus of its decisions was shaped by shifting landscapes of power and stereotyped conceptions of African behaviour, as well as by the necessity of maintaining white prestige through the self-ascribed benevolence of British justice. Recent studies have focused on deconstructing the concept of mercy itself. Austin Sarat argues that the extension of commutation to a class of persons does not meet the formal definition of mercy, which must be an individualized function.13 In his study of executive clemency in the Republic of Ireland, Ian O’Donnell posits that there are three routes to clemency – justice, mercy and caprice. Justice is tailoring the punishment to an individual’s circumstances so that variations in culpability and harm were taken fully into account. Mercy is a supererogatory softening of deserved punishment out of compassion for the offender’s plight. Caprice is when clemency results from an unexpected turn of events.14 For O’Donnell, when clemency is awarded in cases where authorities hold it would be morally wrong for the offender to pay the ultimate price, this is justice. If it is awarded when authorities believe the person deserves to die but evokes pity and is therefore spared, this is mercy; mercy is in this sense about undoing justice. Both ‘justice’ and ‘mercy’ in O’Donnell’s terms are found in colonial archives, but these categories are complicated by the fact that morality and sentiment were often overlaid, and outweighed, by political pragmatism in decisions on commutation. This analysis retains the term ‘mercy’ for clarity in line with colonial processes and discourses but recognizes that commutation of sentence was often less about pity or compassion than politics. It was British metropolitan procedure to avoid establishing rules for the exercise of mercy, and to instead make it ‘a question of policy and judgment in each case’, and it was this case-by-case approach to mercy that was officially adopted in British colonies overseas.15 Unofficially, however, clear principles regarding the prerogative of mercy and the categories of crime in which it was awarded developed, and many of these were transplanted overseas to inform the evolving

12. Douglas Hay, ‘Property, Authority and the Criminal Law’, in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson and Calvin Winslow (London: Penguin Books, 1977), 48. 13. Austin Sarat, Mercy on Trial: What It Means to Stop an Execution (Princeton: Princeton University Press, 2005). 14. Ian O’Donnell, Justice, Mercy and Caprice: Clemency and the Death Penalty in Ireland (Oxford: Oxford University Press, 2017), 40–3. 15. Radzinowicz and Hood, The Emergence of Penal Policy, 676–8; Hansard, 4th ser, 1907, clxxii, 366.

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bureaucratic calculus of colonial mercy.16 Whilst the royal prerogative of mercy in Britain was determined by the Home Office and sanctioned by the monarch, in Africa this power was devolved to a colony’s governor. After conviction and unsuccessful appeal, a convicted person’s case would come before the governor for consideration, with the governor being advised by his Executive Council and the trial judge.17 Trial records, judges’ reports and medical records, often supplemented by a petition from the condemned person in prison, formed the evidentiary basis for discussion. By the 1940s, it also became standard for district commissioners from the condemned person’s locality to submit a confidential report on the background of the case, the personal history of the convict, and local opinion on the gravity of the offence and how it would be punished under customary law.18 Such records together represent a critical nexus of the colonial intelligence gathering apparatus, meaning that colonial states learned more about a convicted murderer than almost any other of their subjects. A superficial bureaucratic formalism in the information produced for the governor-in-council enabled officials to identify similarities to previous cases and provide precedents for mercy decisions.19 The governor could either confirm the death sentence and allow ‘the law to take its course’, grant a pardon, or award a reprieve and commute the sentence to a term of imprisonment instead.20 Decisions relating to mercy can be difficult to determine historically, as murder case files are often incomplete, and mercy discussions were frequently unminuted. Governors were not required to state the reasons behind their decisions.21 However, it was unusual for a governor to go against the recommendation of his judge, and, in such cases, they were required to report

16. Mortimer argues that in Britain recognized categories and conventions for pardons emerged in the 1820s as part of Robert Peel’s standardization of the pardoning process. Brenda Gean Mortimer, ‘Rethinking Penal Reform and the Royal Prerogative of Mercy during Robert Peel’s Stewardship of the Home Office, 1922–7, 1828–30’ (PhD, University of Leicester, 2017). 17. Most colonies established a sub-committee from the Executive Council to discuss mercy by the 1940s. This usually composed of the governor, his deputy, colonial secretary, attorney-general, treasurer, and between two and four other nominated members, including one African member in countries where these served. See Executive Council Committee to Advice on the Prerogative of Mercy, Northern Rhodesia 1957, TNA CO 1015/1476. 18. Execution of murderers, KNA DC/ISO/3/10/38; Confidential Reports on Persons Convicted of Murder and Sentenced to Death, NAM PCC/1/16/2. 19. Chadwick, Bureaucratic Mercy, 382. 20. Under the IPC in Kenya, life sentences could themselves be commuted to lesser sentences of imprisonment. 21. See Penal-Death Sentences, Memorandum by Sir Edward Troup, Home Office Procedures for the Prerogative of Mercy, TNA CO 859/37/11 and Chadwick, Bureaucratic Mercy, 378.

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to London and justify their reasoning.22 As such, recommendations contained in judges’ reports and case files are generally reflective of the final reasons for mercy. What the available archival records reveal is that a significant percentage of persons convicted of capital offences and sentenced to death by colonial courts in Africa were spared from the ‘extreme penalty of the law’. Although the actual level of commutation fluctuated on a yearly basis, records reveal that in many territories a large proportion of persons convicted of capital crimes had their sentences commuted. An overall survey of judicial, police and prisons statistics across British African territories suggests that in most colonies an average of 30–50 per cent of death sentences annually resulted in executions, suggesting a frequent application of mercy.23 A comparative analysis of murder case files from Kenya, Nyasaland and the Gold Coast allows for a more nuanced assessment. In Nyasaland, from the 897 capital trial records available in the Zomba archives between 1903 and 1947, 380 death sentences were handed down from which 181 persons were executed, but 199 saw their death sentences commuted: so 47 per cent of murder convictions resulted in execution, and 52 per cent were commuted.24 The remaining cases were either disposed of through nolle prosequi, acquittals, appeals, guilty but insane verdicts, or having the convict ‘detained at the Governor’s pleasure’ owing to their youth or suspected insanity. With the provision of defence counsel in capital trials after 1930, the percentage of capital convictions decreased as lawyers were able to secure a reduced manslaughter conviction for their clients. Beyond these archived cases, commutation rates are difficult to calculate from the wider colonial statistical record due to frequent changes in the categories of data recorded and discrepancies between (and sometimes within) police, judicial, prison and annual Blue Book data, due to either cases crossing years or recording errors. The available data however suggests that between 1917 and 1955 an average of 41 per cent of death sentences resulted in commutations. In Kenya, a survey of 1,296 death sentences extant in the Nairobi archives – excluding those prosecuted under state of emergency regulations during the uprising by the KLFA between 1952 and 1958, which are addressed in Chapter 5 – reveals that 550 persons were executed between 1908 and the beginning of 1956, and 635 were granted mercy by the governor-in-council. Overall, 49 per cent of murder convictions resulted in commutation, and 42 per cent in execution, with the remainder being acquitted on appeal after sentencing or otherwise

22. Charles Karioki s/o Macharia, 9 September 1938, Commutation of Death Sentences 1925–40, KNA AG/52/139; Governor’s Prerogative of Mercy, 1929, TNA CO 323/1056/5. On tensions between the judiciary and Executive Council, see Chief Justice Barth’s aggrieved missive to Governor Coryndon in a case where the executive sought to pardon against Barth’s judgement. R. v. Odera, KNA AP/1/1347. 23. Figures taken from Annual Judicial Reports of the territories, and Milner, ed., African Penal Systems. 24. Two of these were awarded pardons.

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Graph IV  Disposition of Capital Cases in Nyasaland, 1903–47. Source: NAM, Judicial Department and Secretariat Records, Murder & Manslaughter Cases, 1903–47.

Graph V  Disposition of Capital Cases in Kenya, 1908–55. Source: KNA, Ministry of Legal Affairs and Attorney-General’s Department Records, 1908–55.

disposed of. The data sample for Kenya differs from that for Nyasaland in that Judicial Department records are incomplete and the Kenyan archives contain few cases that did not result in convictions. Turning to the wider statistical record, the same difficulties of changing categories of data and discrepancies exist across departmental records. Of the 1,736 death sentences awarded in Kenya’s courts between 1908 and 1960 (excluding Emergency capital convictions between 1952 and 1960), 670, or 39 per cent, resulted in commutations as opposed to 645 recorded executions.

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In the Gold Coast, from the 268 workable case files in the CSO 15/3 series between 1930 and 1947, 176, or 65 per cent, resulted in execution. Twenty-six of the death sentences were commuted to life imprisonment, and a further 35 were reduced to lesser sentences of imprisonment with hard labour after commutation and appeal. Overall, forty-two cases, 16 per cent of the series, were commuted. The wider statistical data for the multiple regions of the Gold Coast do not routinely record commutation data, but where mercy awards were noted between 1947 and 1956, an average of 26 per cent of death sentences were commuted annually. In considering what the prerogative of mercy may have meant for the Africans who received it, it is important to consider what alternative sentences were imposed under governor’s orders. Pardons and reprieves were rare, and most commutations were to a sentence of imprisonment with hard labour.25 These sentences ranged from three months to life imprisonment. Life imprisonment was the most common alternative sentence and although the duration of this varied in practice, in Nyasaland and Kenya prisoners serving life sentences were considered for release after fifteen years.26 In Nyasaland, case records and murder registers from 1908 to 1947 show ninety-six life sentences being handed down, along with four for twenty years’ imprisonment, nineteen between eleven and fifteen years, forty-six between ten and fourteen years, and twenty-two to under ten years. Kenyan records for non-Emergency cases from 1908 to 1956 show 113  sentences commuted to life and 522 to lesser sentences of imprisonment. Case files themselves record seventy-nine life sentences, 102 sentences of ten years imprisonment, fifty-four of five years, fifty-one of seven years, and thirty-eight of fifteen years imprisonment with the remaining sentences being of variable duration. This suggests that commuted sentences was usually conceptualized in five-year increments, with adjustments for mitigating factors. In the Gold Coast, case files suggest that mercy was more restricted even in terms of commutation: there, twenty-seven of the convicted were commuted to life imprisonment, compared to thirty-two sentences of between two and twenty years. In comparison, in England and Wales between 1900 and 1948, 3,130 persons went on trial for murder and 1,210 death sentences were handed down. Of these, 52 per cent resulted in execution and 42 per cent received mercy, with the majority serving between seven and fifteen years in prison.27 This suggests that, outside of states of emergency and anti-colonial rebellions, rates of execution were slightly lower overall in Nyasaland and Kenya and rates of commutation, running on average between 30 and 40 per cent, were comparable with the metropole. In the Gold Coast however, it seems that there was a higher level of judicial severity and lesser resort to mercy. Considering the widespread evidence of, and historiographical agreement

25. Rigorous imprisonment was an alternative sentence available under the IPC in Kenya before 1929. 26. Judges’ Notebooks, 1912–18, NAM; Yandi Lubuti and 13 Others, KNA AG/52/40. 27. Gowers Commission, 31.

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on, the extreme and systemic levels of violence and injustice that characterized colonialism across Britain’s African territories, how do we account for this relatively frequent use of mercy?28 And what influenced the apparent discrepancy in its use between Kenya, Nyasaland and the Gold Coast? Overall, judges, district commissioners and governors believed that most murders committed by Africans were unpremeditated, ‘committed on the spur of the moment, in the heat of a quarrel or under the influence of drink’ and were therefore undeserving of the death penalty.29 This belief that the majority of murders in Africa were unpremeditated and therefore undeserving of the death penalty was prevalent across Britain’s colonial territories in Africa, driven by the racial ideologies that underpinned colonial rule. Politico-legal decision making on mercy was influenced by contemporary racist and sometimes eugenicist perceptions of African mentalities, which commonly held Africans to be child-like, immature and egocentric in their psyches, prone to violence and ‘frenzied anxiety’, and at risk of being mentally destabilized by contact with modernity and European culture.30 Judges and magistrates viewed Africans as lacking the self-control and capacity for forethought of Europeans and consequently regarded them as bearing less criminal responsibility for their actions.31 Such beliefs were prevalent in Kenya and Nyasaland and supported a greater recourse to mercy there. Of the cases in Nyasaland where motives for murder were ascribed by colonial judges, case records confirm that the vast majority were seen as the result of unpremeditated quarrels, fights or domestic violence. This was the essential contradiction of capital punishment: if most murders were unpremeditated, then how could the threat of punishment, lethal or otherwise, prevent them? Commutation of such cases occurred so frequently that in 1922 Nyasaland proposed abolishing the mandatory death penalty, only to be refused by London.32 The 1933 Bushe Commission enquiry into the administration of justice in East Africa raised the same proposal and debated substituting alternative sentences including compensation, communal fines and life imprisonment, before finally deciding that the mandatory death penalty should be maintained and mercy would remain central to managing its violence.33 In the Gold Coast,

28. Gendry finds that in French West Africa between 1903 and 1946, the death penalty was more frequently pronounced and more frequently enforced than in metropolitan France, with an execution rate of 64.5 per cent of sentences that was double that of the metropolis. See Gendry, ‘Le droit de tuer’, 39. 29. Acting DC Nyeri to Secretary of Native Punishment Commission, 13 October 1921, KNA PC/CP/6/4/3. 30. See McCulloch, Colonial Psychiatry, 50–63, 77–90; Chloe Campbell, Race and Empire: Eugenics in Colonial Kenya (Manchester: Manchester University Press, 2007). 31. See Northern Rhodesia: Death Sentences, TNA CO 795/88/7. 32. Local legislation to Obviate the Necessity of Passing Sentence of Death, NAM S1/42/22. 33. Bushe Commission, 71–81.

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Graph VI  Ascribed Motives in Capital Cases, Nyasaland, 1903–47. Source: NAM, Judicial Department and Secretariat Records, Murder & Manslaughter Cases, 1903–47.

however, there were no such suggestions. Greater penal severity there stemmed from a combination of factors. Firstly, concerns about establishing colonial order in Ashanti, and to a lesser extent the Northern Territories, suppressed the use of mercy. Secondly, in the Colony, trial by jury and the involvement of African lawyers and judges meant that there was less concern about disparity between colonial and African notions of justice and consequently less need for mercy to temper the gap. Thirdly, and relatedly, murders in the Gold Coast were more likely to be regarded by judges and juries alike as premeditated or fuelled by pecuniary motives – as being more ‘criminal’ in intention, as Chapter 4 explores. Overall, mercy can be theorized as operating on three different levels: on one level, it was an arbitrary modulation of judicial severity, being awarded on a caseby-case basis and contingent upon the particular decision of individual governors. Secondly, mercy functioned as an expression of the politics of colonial rule: at this level, decisions were based as much upon perceptions of the criminal as a colonial subject, as upon the crime they had committed. Primarily however, it functioned according to established principles as to which crimes were suitable for mercy and which deserved the exaction of the extreme penalty of the law. Categories of crimes can be discerned where mercy was routinely exercised or denied; some of these followed exported British precedents, others developed in response to concerns about particular types of murder in Africa.34 The frequency of such categories of

34. The Home Office Permanent Secretary Edward Troup’s memorandum on the prerogative of mercy became the official guidelines sent by the Colonial Office to Governors across Africa. Capital Punishment – Royal Prerogative of Mercy, TNA CO 859/444.

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murder, and local debates on how to counter them, explains the commonalities and divergences in mercy between Kenya, Nyasaland and the Gold Coast.

Arbitrary forgiveness? The contingency of mercy Despite claims to the infallibility of the law, legal systems are operated by human beings and are subject to personal and political influences. The historical record shows that not only is judicial error possible, but that the translation of a death sentence into an execution depends strongly on attitudes towards race, ethnicity, age, religion, social status, the political circumstances of the time, and the opinions and character of the sovereign power whose right is to grant clemency. Translated from principle to practice, capital punishment inevitably takes on a degree of arbitrariness, or caprice, that makes the fate of the individual capital offender a matter of circumstance as much as law.35 This pattern is exacerbated in colonial contexts where both courts and administrations held flawed, contested and racist understandings of their African subjects. As early as 1896, Consul General Sharpe of Nyasaland established the view that due to incomplete European understandings of African cultures ‘it is a very difficult matter to get to the bottom of a native quarrel and I am always inclined myself to be very lenient in regard to the punishment of natives’.36 If British officials commonly found it difficult to understand the motivations of African accused, it can be equally difficult to determine the reasoning behind mercy decisions. Muthembi s/o Mutue murdered his wife in Kenya, 1950, by shooting her with an arrow at point blank range after her parents took her away when he refused to pay the remainder of her agreed brideprice. Although neither the trial judge nor local district commissioner in Kitui recommended mercy, and the assessors and locals found no justification for Muthembi killing his wife, Governor Mitchell commuted Muthembi’s sentence to ten years imprisonment at a time when nearly all other men convicted of murdering their wives without discernible provocation were being executed.37 Similarly, Yaw Pieto was convicted in 1943 of the murder of Enoye Lagos, a female trader who was found shot and stabbed on the roadside between Jakai and Cape Coast in the Gold Coast, having been robbed of £20 in a tin on her waistband. Yaw had been seen in the locality with a gun, confessed to one of the witnesses that he had shot Enoye, and attempted in court to frame a local chief by claiming the chief had asked him ‘to bring two human heads for blood juju’. Although many features of Yaw’s 35. Evans, Rituals of Retribution, 907–8; O’Donnell, Justice, Mercy and Caprice, 41–3. The arbitrary nature of mercy and sentencing is one of the main arguments used against capital punishments by abolitionist campaigners today. See Hood and Hoyle, The Death Penalty: A Worldwide Perspective. 36. Acting Consul General Sharpe to Consular Judge Piggott, 5 January 1896, Criminal Cases 1897, NAM J4/2/1. 37. Muthembi s/o Mutue CC112/50, KNA MLA/1/414.

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case – robbery, a lethal weapon, lying to the court, a judge refusing to recommend mercy  – might have sent him to the gallows, Yaw’s sentence was commuted.38 Decisions depended not only on submitted evidence but upon the personal opinions, prejudices and inter-personal relations of the governor and his Executive Council, or sometimes even upon the timing of their meeting. However, whilst arbitrary decisions can account for some of the clemency granted by governors in Africa, it is inconsistent with the operation of colonial governance to believe that there were no rational or calculated motivations behind the granted reprieves. A much wider and more complex range of motivations inspired the operation of mercy as the self-contradictory nature of colonialism left administrations with competing objectives to fulfil in the ordering and punishment of their subjects.39 As colonial states and penal systems developed, their power became less arbitrary and more routinized, and a specifically colonial figuration of mercy emerged.

The principles of mercy I: Categories of crimes deserving of execution At another level then, mercy was determined according to established legal and moral principles; categories of murder befitting of commutation or executions had been established in Britain, which were then transplanted into Africa and adapted for use. Nyasaland conducted a survey in 1924 to confirm that mercy there was operating in line with established British principles.40 Chief Justice Jackson had outlined these principles in 1916, stating: Murders where a killing is deliberately and callously undertaken as an incident in the attainment of some further project such as rape, larceny, the sanctification of jealous hatred, preferment to the deceased in employment, or some other selfish objective, were befitting of execution, but not murders which were a result of an impulse of mind, naturally lacking the discipline and control possessed by civilised persons and inflamed by brooding over a supposed injustice. Fear of punishment will not prevent crimes of this nature. They will disappear only when the civilisation and advancement of native life and standards of morality teach him that such action is extravagant and unjustified.41

Colonial penal systems were based on didactic retribution and deterrence rather than reform, with the maintenance of law and order being the primary 38. Yaw Pieto, 1943, PRAAD CSO 15/3/226. 39. See Steven Pierce and Anupama Pierce, ‘Discipline and the Other Body: Humanitarianism, Violence, and the Colonial Exception’, in Discipline and the Other Body: Correction, Corporeality and Colonial Rule, ed. Steven Pierce and Anupama Rao (Durham, NC: Duke University Press, 2006), 1–35; Cooper, Colonialism in Question. 40. Outcomes of Death Sentences, 1922–3, NAM 4-4-8R/2952. 41. Judge Jackson to DO Wade, Dowa, 28 June 1920, Misi Kwanda, NAM J5/12/16.

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concern. The crimes most threatening to this order, at a village or national level, were thus those punished most heavily, and these categories aligned firmly with metropolitan norms. Anti-colonial rebellion was a primary target of judicial severity and executions were frequently used to combat unrest, as Chapter 5 shows, but broader concerns about the state of colonial control also influenced mercy, with the psychological and political legacies of the Anglo-Asante wars in part explaining low rates of commutation in Ashanti prior to 1930s. The award of mercy was strongly shaped by colonial perceptions of the state of law and order in a given locality: where African behaviours challenged colonial monopolies of violence and the supposedly modernizing influences of the civilizing mission, executions were more likely to occur, as in relation to spear-blooding murders among Samburu clans or ‘inter-tribal affrays’ in the Northern Frontier Districts of Kenya.42 Relatedly, officials regarded the murder of state servants as a particularly dangerous and reprehensible attack against colonial law and authority.43 During the early years of pacification, and then again as anti-colonial and social unrest mounted during the 1940s and early 1950s, it was frequently remarked in Kenya that firm measures must be taken against offenders who killed policemen, headmen or chiefs, whether this was a result of a political motive or personal grievance.44 In such cases, authorities perceived that ‘commutation would have the most adverse political results’.45 On the other hand, colonial agents and allies who were convicted of murder were predictably more likely to benefit from mercy.46 Murders of employers by employees were also harshly punished in an attempt to shore up socio-economic hierarchies of power. In Nyasaland, the 1924 and 1925 police annual reports recount a carrier having ‘brutally murdered’ his Indian employer whom he had been accompanying from Portuguese East Africa to Zomba, apparently in response to ill-treatment on the journey.47 In his memoirs, former judge Charles Belcher recalled discussing the case with the governor-in-council. Fearing protests from the Indian community, some Executive Council members argued: ‘“After all, Nyasaland natives are plentiful and not very vocal”. One [argued] “I do not think that it would hurt to hang a few of them.”’ Although Belcher recommend the sentence be commuted, ‘the native was hanged, and Indian resentment at 42. Law and Order: Crimes of Violence  – Samburu Murders 1933–6, KNA PC/ RVP/6A.17/44; OIC Reece to Colonial Secretary, 27 December 1943, Dika Hassan & 2 others, KNA MLA/1/172. 43. Kofi Donkor, 1933, PRAAD CSO 15/3/77; Kweki Essediu 1933, PRAAD CSO 15/3/81. 44. Ndaigusa ole Lelengwesa CC126/49, KNA MLA/1/330; Khamis bin Suleman CC293/52, KNA MLA/1/457. 45. Ndiranga s/o Muthora CC244/48, KNA MLA/1/317. See also Kanga s/o Mambo CC125/51, KNA MLA/1/405; M’Nkumbuku s/o M’Arui CC62/54, KNA MLA/1/1056. 46. Kimnetich arap Chuma CC233/53, KNA MLA/1/615; Mutungi s/o Katmo CC23/56, KNA MLA/1/1357. 47. Nyasaland, Annual Report of the Police for the Year 1924, 7; 1925, 12.

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any possible commutation was thus obviated’, demonstrating the importance of maintaining social and racial hierarchies in the disposition of capital cases.48 Murders committed in urban areas, particularly around Nairobi, were often viewed as a result of detribalized immorality and were consequently harshly punished, as with the case of a Nyasaland man who was wandering drunkenly around Kibera in 1944 looking for a prostitute when he stabbed an elderly Nubian man to death.49 The calculus of mercy in Britain’s African colonies was fundamentally shaped by the racist biases embedded in the colonial justice system. Evidence from Kenya and Nyasaland largely supports Turrell’s findings in South Africa that mercy was racist more in its lesser concern about intra-African homicide and in its race-ofvictim bias than its race-of-perpetrator view.50 As will be discussed in the following chapters, the ideology and practice of colonial rule shaped the gubernatorial exercise of mercy, meaning the law operated on an implicitly racialised basis. Murder convictions in inter-racial homicides between Europeans and Africans are very rare in the Ghanaian and Malawian archives, but killings of and by settlers in Kenya were more common, reflecting wider patterns of structural and interpersonal violence between settlers and Africans in Kenya.51 In Kenya inter-racial murders perpetrated by Africans were particularly – but not always – likely to result in execution, especially those involving the killing of a European official or woman.52 Europeans accused of killing Africans however routinely received judicial leniency; in one 1928 Nyasaland case the official record states: ‘It appeared from the evidence that the European, whilst cleaning a revolver, playfully pointed it at the native and pulled the trigger, not thinking the weapon was loaded, it went off and shot the native through the heart.’ The European was convicted of manslaughter and fined £40.53 Racial stereotyping appears to have been a notable factor in British attitudes towards Indian accused.54 Indian men were especially likely to be executed for their crimes due to the dangerous psychosocial space they occupied in the minds of British judges  – below ‘civilized’ European society but above the perceived ‘savagery’ of Africans.  Indians were

48. Belcher, ‘Reminiscences’, 223, WL MSS. Brit.Emp s.347. 49. Africa Siana s/o Gibson, KNA MLA/1/214. 50. Ibid., 237–9. 51. See for example Berman, Control and Crisis in Colonial Kenya; Weiner, Empire on Trial; Elliot Fratkin, ‘The Samburu Laibon’s Sorcery and the Death of Theodore Powys in Colonial Kenya’, Journal of Eastern African Studies 9, no. 1 (2015): 35–54; Brett Shadle, The Souls of White Folks: White Settlers in Kenya, 1900–1920s (Manchester: Manchester University Press, 2015). 52. See R. v. Ogala s/o Onuru (Murder of Gerald Bayer), TNA CO 533/438/1; Ngugi Mungai & 3 Others CC68/48, KNA MLA/1/301; John Namunyu Shibeka CC257/51, KNA MLA/1/428; Odongo s/o Osewe CC221/55, KNA MLA/1/1335. 53. Nyasaland Protectorate, Police Annual Report 1928, 7. 54. See Mohamed Shah s/o Lal Shah, KNA MLA/1/4. In South Africa, during 1930–40s, Indian men were the racial category most likely to be executed. Turrell, White Mercy, 263.

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regarded as more premeditated and criminal in their intentions than Africans, reflecting wider political tensions in Kenya. Of the fourteen cases in the Nairobi archives where the defendants were identified as Indian, only two were awarded mercy after conviction – one against the background of the State of Emergency, and the other a woman who was spared on the grounds of her sex after protests by her husband, the Indian community and the East African Women’s League.55 Outside of inter-racial murders by Africans and a direct attack on state authority, premeditation was perhaps the most damning factor in mercy decisions. Cases where malice aforethought and a planned murder were proven were punished severely, with the vast majority resulting in execution.56 Killings viewed as ‘deliberate’ or ‘determined’ also resulted in execution, as did cases where it was clear that the murderer had acted in a spirit of revenge.57 ‘Brutal’ murders, resulting from extreme or frenzied violence and multiple wounds, were rarely candidates for mercy.58 A combination of premeditation and frenzied violence was perceived as highly dangerous, and thus was most severely punished. Hut-burning and arson were also treated very severely by judges and governors, with their combination of premeditated intent and capacity for widespread damage.59 More broadly, however, the type of weapon used was a subsidiary factor in commutation. As a defendant was assumed to intend the probable consequences of their acts, assaults with a lethal weapon like an axe or spear were taken to indicate malice. Murders committed with guns were highly likely to result in executions, whereas it was generally accepted that ‘a stick is not normally deemed by Africans to be a lethal weapon’, and commutation was more likely.60 In the Gold Coast, gun murders were most common in the Colony, whilst bows and arrows were commonly involved in Northern Territory cases reflecting the availability of such weaponry.61 The local incidence of use of a particular type of weapon shaped mercy: as Judge Horne wrote in Kenya 1946, ‘although the stabbing may not have been premeditated … as the resort to knives is prevalent in quarrels among Africans I do not in this case feel that I can make any recommendation to mercy’.62 Overall, records indicate that the most commonly used weapons – knives, machetes and sticks – could all result almost equally in commutation or execution.

55. Stacey Hynd, ‘R. v. Mrs Utam Singh: Race, “Deviant Womanhood” and Colonial Justice in Kenya, 1949–52’, in Subverting Empire: Deviance and Disorder in the British Colonial World, ed. William Jackson and Emily Manktelow (London: Palgrave Macmillan, 2015), 226–44. 56. Yego arap Baramonga, Commutation of Death Sentences 1925–40, KNA AG/52/139; Ameida Nankanni, 1932, PRAAD CSO 4/5/112. 57. Kemai Katateya CC 113/41, KNA MLA/1/136; Obiero s/o Irara CC200/54, KNA MLA/1/1172. 58. Kibuseht arap Rono & 3 Others 1944, KNA MLA/1/193. 59. Joseph Chungutu CC118/49, KNA MLA/1/338. 60. Kaunga s/o Kuma CC244/53, KNA MLA/1/702. 61. See PRAAD SCT Murder Books, various. 62. Omodin s/o Simame CC71/46, KNA MLA/1/249.

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Killings committed for pecuniary motives were particularly likely to result in execution, such as those committed in the act of robbery or those by hired assassins.63 In the case of Zuze, convicted of murdering a Village Headman in Central Nyasaland by poisoning his water pot in 1943, Chief Justice Seton wrote: ‘The accused is on his own showing nothing more than a hired assassin and, in my view, deserves the penalty to which he has been condemned.’64 The severe treatment of pecuniary murders was reflective of both African and colonial attitudes towards such crimes; Elijah Nyirongo was executed in Nyasaland in 1951 for a murder committed to gain money to repay debts as ‘local opinion considers this the worst crime ever committed in the Northern Province under European rule’.65 In Kenya, increasingly firm measures were taken against murders committed in the furtherance of theft, robbery or housebreaking from the 1940s onwards, with such murders described as having been committed ‘most foully’ with ‘killing [deliberately] resorted to in order to effect the gangs’ wicked and fell purpose’.66 Premeditated killings linked to robbery, theft, debts or land disputes seem to have been more common in the Gold Coast. Police there repeatedly raised concerns about ‘the apparent disregard for human life’, ‘even in the more sophisticated parts of the Colony’, that they felt were caused by the deleterious effects of modernity and capitalism on African cultures and ‘the people concerned having large sums of money from the sales of produce which they do not know how to spend wisely’. ‘Highwaymen’ who attacked travellers on main routes between markets were a particular concern.67 Acting Judge Samuel Okai Quashi-Idun described one murder committed during a robbery in 1946 as one of the worst cases of murder ever presented before the court of justice in this country. The unfortunate deceased, who was well known to the defendants, was murdered by the defendants who believed that he had on his person a large sum of money which he had previously obtained for the purpose of paying advances against a supply of cocoa. After the deceased had been killed the murders found that the deceased had only £1/19/ 3d in his pocket.68 63. R. v. Kwesi Mensah, R v Kobina Abbam, Murder Book Cape Coast, 1946–9, PRAAD SCT 5/8/10. 64. CC53/43 Zuze, NAM J5/5/80a. 65. Report by DO Mzimba, 2 May 1951, CC9/51 Elijah Nyirongo, Confidential Reports on Persons Convicted of Murder and Sentenced to Death, NAM PCN 1/20/13. 66. See Saro Mae and Ndune Mwambaji Musa s/o Ndeda CC61/41, KNA MLA/1/114; Kiripo s/o Lokarkar SC59a/42, KNA MLA/1/147; Kangethe wa Mberiri & Kalungu ole Silange CC121/40, KNA MLA/1/63. 67. Gold Coast, Annual Report for the Police during the Year 1909, 15; Annual Report for 1914, 9; Annual Report for 1916, 4. 68. Acting Judge Quashi-Idun, 22 May 1946, Koforidua, Dordunu Misiso & Havor Djelu, PRAAD CSO 15/3/250. Both men were executed. See also Yaw Wuo, 1932, PRAAD CSO 15/3/13; Kobina Nkantaweah, 1941, PRAAD CSO 15/3/226.

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There appears to have been an increase in murders relating to thefts in the Gold Coast during the 1940s, perhaps indicative of tensions relating to wartime inflation, economic unease and social destabilization, and such offences usually resulted in execution.69 With significant tensions surrounding the ownership of land in the Gold Coast, due to colonial land legislation and the commercialization of land resulting from the developing of mining and cocoa industries in particular, murders resulting from quarrels over land were also harshly punished, linked to the factor of premeditation in many cases.70 Kwasi Adjei was executed in Accra in 1934 for the murder of a man named Sarkwa, who Kwasi claimed was refusing to move from land bought by his father sixty years previously. Kwasi ‘did the act thinking he was justified and went to the police and confessed’. Despite the fact that Kwasi was around eighty years old, was noted ‘not to be of a litigious disposition or a quarrelsome character’, and petitions were sent testifying to his good character by his ohene (chief or king), chief and elders, Kwasi was executed for his crime.71 The violation of social hierarchies and mores were also a significant factor in judicial severity. Murders relating to sexual offences were rare compared to those motivated by social or economic grievances but tended to be heavily punished.72 Capital sentences were commonly enforced in cases of intra-African murder with sexual assault, or where a man murdered a woman for refusing intercourse.73 This was in sharp contrast to the treatment of non-lethal sexual assaults on African women. Colonial courts were often reluctant to adjudicate on cases of rape or sexual assault, interpreting it as the breaking of a social taboo which could be compensated in line with customary law or seeing the woman in some way complicit with assault.74 The subsequent murder of the woman however refuted this complicity and heightened the seriousness of the crime, combining with a colonial paternalism, moral disgust, and the criminalization of Black male violence and sexuality to drive the enforcement

69. R. v. Togbe Jarneshie and four others, 1943, Murder Book, Accra, PRAAD SCT 2/8/19; Kofi Akligoh, PRAAD CSO 15/3/265. See Gocking, The History of Ghana, 75–89. 70. Kwesi Esson 1931, PRAAD CSO 15/3/56. See Nii Ama Ollennu, Principles of Customary Land Law in Ghana (London: Sweet & Maxwell, 1962). 71. Kwasi Adjei 1934, PRAAD CSO 15/3/87. 72. Carolyn Strange similarly find defendants convicted of sex murders were more likely than any other condemned criminals to be executed for their crimes in Canada, with Black defendants facing a presumption of guilt. See Strange, The Death Penalty and Sex Murder in Canadian History. 73. Lokorodi Eitheiyi Special District Court [SDC] CC2/43 Lodwar, KNA MLA/1/161; Ndeto s/o Kitonye CC260/53, KNA MLA/1/784. 74. See Elizabeth Thornberry, Colonizing Consent: Rape and Governance in South Africa’s Eastern Cape (Cambridge: Cambridge University Press, 2018).

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of the death penalty.75 In the case of Sibacha Lematan, who raped and murdered a pregnant woman in Kenya in 1939, it was reported by Judge Thacker that ‘the crime perpetrated by the accused was one of extreme cruelty against a young defenceless woman and I am unable to find in his conduct any redeeming feature. I can only make the very strong recommendation that … the sentence of death, should be carried out’.76 Inter-generational tensions were significant factors in many murder cases and decisions for mercy. The colonial period was one of rising tensions between different generations in African communities, as elders sought to reinforce their authority against educated youths and young men who joined colonial wage economies, often migrating to urban environments before returning with new forms of wealth and ideas of social organization.77 Younger generations struggled to gain access to resources and political authority controlled by elders, accusing them of failing to properly dispense patronage, and of manipulating bridewealth and marriage to shore up their authority.78 Colonial courts and governors in general took a much sterner view of cases where young sons were convicted of murdering their elder relatives. Patricide and matricide in particular were judged very harshly, reflecting deep-rooted social taboos against such actions within both African and British cultures, and such murderers were unlikely to be granted mercy unless it could be proven that the parent had acted against propriety or native custom in their treatment of the family.79 On the other hand, fathers who killed their disobedient or troublesome sons were commonly recipients of mercy, reflecting colonial patriarchal bargains of authority to shore up generational structures of power with elders in what Ocobock refers to in Kenya as the ‘elder state’.80 Also in Kenya, murders committed by brothers appear to have been much more common than in Nyasaland or in the Gold Coast, and the courts and governors took a harsh view of such killings, highlighting social taboos against fratricide in both British and African cultures.81

75. Kenya and Nyasaland both also made rape a capital crime in response to ‘Black Peril’ inter-racial rape scares, as discussed in Chapter 5. 76. Judge Thacker, 2 August 1940, Sibacha Lematan CC170/39, KNA MLA/1/36. 77. See Richard Waller, ‘Rebellious Youth in Colonial Africa’, Journal of African History 47, no. 1 (2006): 77–92. 78. See Brett Shadle, Girl Cases: Marriage and Colonialism in Gusiiland, Kenya, 1890– 1970 (Portsmouth: Heinemann, 2006). 79. Omayi s/o Nambafu CC165/41, KNA MLA/1/140; M’Muketha s/o M’Rimberia CC242/47, KNA MLA/1/285. For cases where the son was granted mercy for killing his father, see Koibarak arap Chesano CC92/48, KNA MLA/1/299; Kature s/o Kambi & 3 Others CC141/51, KNA MLA/1/406. 80. Bulushi s/o Kitswa CC144/46, KNA MLA/1/247; Buyogo s/o Ageri, KNA MLA/1/271. See Ocobock, An Uncertain Age, 6. 81. Benjamin Magenge Owuro s/o Magenge CC165/55, KNA MLA/1/1311.

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The principles of mercy II: Crimes befitting of mercy Just as there were established categories of offence and offender that were held to necessitate execution, there were also categories held as widely befitting of mercy. The most basic of these aligned with metropolitan norms and to use O’Connell’s terms were strictly more about ‘justice’ than ‘mercy’, as they delineated categories of offender whom it was held to be morally wrong to execute.82 Under criminal procedure ordinances, no one under the age of eighteen (or sometimes sixteen, as in the Gold Coast) at the time of the crime could be sentenced to death, but as problems frequently arose in determining the exact age of the accused due to a lack of birth records, generally anyone adjudged to be under twenty-one would be granted mercy.83 Additionally, where more than one person was charged, the youngest was held as the junior participant in responsibility as well as age. The emphasis placed on generational difference and discipline in discourses on African socialization by colonial administrators and assessors informed many judges’ decisions that youthful perpetrators were acting under the influence of older co-accused; this occurred despite contemporary complaints by many elders that rebellious youths were no longer recognizing their authority.84 Old age could equally be a factor in mercy, although less due to respect for the elderly than from knowledge that a heavy sentence of imprisonment would effectively ensure the prisoner died in jail anyway.85 African women as a category of offender were routinely granted mercy in a strong indicator of racialized patriarchal gender relations.86 Few women overall were charged or convicted of murder in British Africa, and the majority of these murders were killings of husbands, co-wives or children, often in response to domestic abuse.87 Even fewer women were executed. Nyasaland archival records from 1903 to 1947 indicate that twenty-seven women were brought to trial on murder charges with sixteen convicted. Of these one was executed, three had their sentence commuted to life imprisonment, with the remaining twelve receiving

82. O’Donnell, Justice, Mercy and Caprice, 41–3. 83. See Yona, Chatolambega, Nelson, NAM S1/598/31; Kiptalam arap Temuge CC49/54, KNA MLA/1/835; Kpardu Konkomba, 1938, PRAAD CSO 4/5/121. 84. See Chanock, Law, Custom and Social Order, 226; Waller, ‘Rebellious Youth’. 85. Kipalo s/o Ngozo CC77/43, KNA MLA/1/177; Namudodonyi d/o Masibo CC148/43, KNA MLA/1/202. 86. Stacey Hynd, ‘Deadlier than the Male? Women and the Death Penalty in Colonial Kenya and Nyasaland, c. 1920–57’, Stichproben: Vienna Journal of African Studies 12 (2007): 13–33; Death Sentences on Women, TNA CO 323/1283/4. 87. See Thaïs Gendry and Stacey Hynd, ‘African Women, Colonial Justice and White Man’s Mercy: Female Murderers and Capital Sentencing under British and French Colonial Rule in Africa, c. 1920–40s’ Crime, Histoire & Sociétés / Crime, History & Societies (forthcoming).

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shorter terms of imprisonment. In Kenya forty-one women were charged with murder, of which one was executed, and twenty-two saw their convictions commuted to sentences of imprisonment. In the Gold Coast, according to legal statistics, between 1925 and 1946 fourteen women came before the courts on murder charges, but of these only two were convicted of murder: one as the principal in the murder of a witness and one for the murder of her ward as she suspected the young girl of bewitching her son. Both had their sentences commuted explicitly on the grounds of their sex.88 Between case files and annual reports, records suggest that in Kenya two women were executed, in 1927 and 1959, and another two in Nyasaland, in 1927 and 1951, and no women were executed in the Gold Coast.89 This is broadly representative of trends elsewhere; Southern Rhodesia only executed six women between 1900 and 1952 and only Northern Nigeria seems to have executed women with any regularity.90 Colonial administrations appear to have been as, if not more, reluctant to inflict lethal violence upon women than their metropolitan counterparts, as eleven women were executed in England and Wales between 1900 and 1949, from 130 death sentences, with 89 per cent of women sentenced to death having their sentences commuted.91 This was a result of British cultural taboos surrounding the infliction of violence upon women combining with the symbolism of the beneficent treatment of indigenous women as a marker of the civilizing mission and officials perceptions of African women’s mental weakness to strongly inhibit the imposition of the death penalty on African women, creating a form of ‘white man’s mercy’.92 A relatively coherent discourse emerged in trials and the judges’ reports that informed this gendered mercy: African women were frequently regarded as lacking the emotional and mental development necessary to render them fully responsible for their actions before the law, and to consequently make them liable for the death penalty. As District Magistrate Murphy noted in one 1926 case, ‘I would recommend her to mercy, as I do not consider that the mind of the female native is sufficiently developed to justify the application of the extreme penalty of the law’.93

88. Abina Asanitwah, 1934, PRAAD CSO 15/3/20; Mary Fogah, 1943, PRAAD CSO 15/3/211. 89. No case records could be located for the 1950s executions. 90. See Tapiwa Zimudzi, ‘African Women, Violent Crime and the Criminal Law in Colonial Zimbabwe, 1900–1952’, Journal of Southern African Studies 30, no. 3 (2004): 502; Nigeria, Annual Report for the Prisons Department, Northern Province series. 91. See Gowers Commission, appendix 3, 301–4. One woman was executed in Scotland. See Annette Ballinger, Dead Women Walking: Executed Women in England and Wales, 1900–55 (London: Ashgate, 2000). 92. See Gendry and Hynd, ‘African Women, Colonial Justice and White Man’s Mercy’; Jock McCulloch, ‘Empire and Violence, 1900–1939’, in Gender and Empire, ed. Phillipa Levine (Oxford: Oxford University Press, 2007), 220–39. 93. Report by W. H. Murphy, R. v. Alikutu, 1926, NAM J5/12/23.

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Women who killed young children were additionally regarded as suffering from puerperal mania, or postnatal depression, and were consequently spared execution, whereas men who killed young children were almost always executed.94 Another reason for judicial leniency was that African women were also frequently viewed as victims of domestic violence and spousal abuse  – victim-perpetrators rather than criminals, who were driven to murder their husband to protect themselves or their children. As such, they received judicial and gubernatorial sympathy and mercy. Such murders appear from the archival record to have been of greater concern in Kenya and Nyasaland, reflecting increased gender tensions there from the 1930s.95 Kabon, wife of Kirop, a Kamasia woman who killed her husband in his sleep in 1946, openly stated in Kabarnet Magistrate’s Court: ‘I admit that I killed my husband, but I had a good reason for doing so. He had ill-treated me every year since we were married. He gave me no chance to leave him and take another husband … I decided that I would kill my husband and if the Government wanted to hang me they could do so.’96 Female accused were, however, not simply passive recipients of this ‘white man’s mercy’, terrified into silence by the atmosphere of colonial courts. Rather, many were legally aware actors capable of using courtroom demeanour and rationalizations for their violence as strategies to gain leniency, as the next chapter will show. African assessors frequently perceived these women’s actions as a dangerous inversion of social hierarchy and established patriarchies at a time of rapid and widespread change in socio-economic and gender relations, demonizing them as not ‘womanly’ and requesting they be ‘severely punished to uphold the position of the husband according to local custom’.97 However, British officials did not regard female violence as a significant threat to colonial order and were thus more inclined towards a benevolent paternalism in their dealings with such women, with sentences typically being commuted to one to five year’s imprisonment. Other women, however, found this gendered clemency to be much more limited, stretching only to sparing them the death penalty explicitly – sometimes solely and grudgingly, according to the language deployed in reports and marginalia  – on the grounds of their sex. These were women whose crimes violated gender norms, such as Mary Fogah, convicted in Sekondi on the Gold Coast in 1943 of murdering the nine-year-old girl she was fostering, or Abina Asantiwa convicted of the murder of a labourer in her cocoa farm as part of a

94. Death sentences were available for infanticide in some territories until 1939 but were not applied in practice. See Women Convicted of Offences Punishable by Death, PRAAD CSO 7/5/39; Kenya Colony, Official Gazette Supplement, December 1939, Criminal Procedure Code 175(1), 263. 95. See Tabitha Kanogo, African Womanhood in Colonial Kenya, 1900–50 (Athens, OH: Ohio University Press, 2005). 96. Kabon w/o Kirop CC66/46, KNA MLA/1/248. 97. Sangano w/o Kimosop, KNA MLA/1/347.

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criminal conspiracy to hide another suspected murder during a local political struggle.98 They were viewed not as submissive wives or victims of ‘primitive’ societies, but rather as ‘wicked women’ and criminals.99 These women received heavy prison sentences of between ten years to life. Execution generally occurred only where murders by women violated colonial social taboos with premeditated and repugnant violence, rejecting the values and benefits of colonial civilization, or where their convictions were linked to wider threats to social order, as in the execution of female chiefs in Basutoland for liretlo medicine murders in 1940–60s or ‘cannibalistic’ killings in French West Africa in the 1920s.100 The only two women to be executed in the case study archives were both hanged in 1927.101 In Nyasaland, a woman Aiba was convicted and executed alongside her husband for the cannibalistic murder of a young girl at a time when growing famine in the Shire Valley created official fears about murders committed for the purpose of consuming flesh.102 In Kenya, the Gikuyu woman Margerina wa Kori was convicted of murdering her neighbour, Eliza, at the Italian mission in Fort Hall. The women had apparently been quarrelling for months before Margerina attacked Eliza with a knife whilst they were returning from a prayer meeting. For this premeditated killing, committed by a Christian convert after prayer whilst the deceased was unarmed and carrying a young child, Margerina was sent to the gallows. Even here however, the case record was subsequently annotated to record that the case could easily have been commuted had Margerina been provided with defence counsel or an appeal.103 Other categories of mercy were linked to an epistemological unease with the apparent rationales behind the crime and an acknowledged incomplete understanding of the ‘African mind’.104 Doubt as to the circumstances of a crime was a significant factor in the granting of mercy, particularly where there were discrepancies between known and legally admissible evidence in a trial.105 Officials commonly believed that ‘this is one of those cases (not uncommon in this country) in which it is impossible to get at the truth’.106 Where doubts existed over 98. Mary Fogah alias Mary Yameve, PRAAD CSO 15/3/211; Yaw Agyekum and Abina Asantiwa, PRAAD CSO 15/3/319. 99. See Dorothy L. Hodgson and Sheryl A. McCurdy, eds., ‘Wicked Women’ and the Reconfiguration of Gender in Africa (Portsmouth, NH: Heinemann, 2001). 100. Gendry, ‘Le cannibale et la justice’, 60; Murray and Sanders, Medicine Murder in Colonial Lesotho, 273–4. 101. One woman was executed in Kenya in 1960 but the case records could not be located. See Kenya, Prisons Annual Report 1960, 20. 102. R. v. Njali alias Ntokoma and Aiba, NAM S1/384/26. 103. R. v. Margerina wa Kori (woman) 1927, KNA AG/52/316. 104. See McCulloch, Colonial Psychiatry, 142. 105. R. v. Palanjeta, Judge Jackson to Chief Secretary, 19 November 1923, NAM S1/3077/23. 106. Kobina Nkrantweah, 1941, PRAAD CSO 15/3/206.

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the motivations or circumstances of a crime, governors were frequently minded to commute and avoid the risk of potential political blowback should new evidence come to light. Commutations were also made for humanitarian reasons where doubts, appeals or backlogs in processing cases led to a long delay between initial committal and final outcomes.107 Cases where suspicions of mental abnormality emerged were also routinely granted mercy and detained at the governor’s pleasure in a lunatic asylum.108 As one judge in Kenya stated, ‘it is the practice not to carry into execution a capital sentence in cases in which the convicted person, although not insane in law, is mentally deranged’.109 This was a result of a discursive linkage drawn between mental instability and African violence in colonial ethnopsychiatry. As the alienists at Zomba Asylum argued, ‘murder is by far the commonest crime among the mentally disordered African natives … the nearer one descends to the state of primitive man, the more keen is the desire to kill’.110 The law applicable to criminal insanity in Africa was the same as in England – the 1843 M’Naghten rules, which declared a person ‘not criminally responsible for an act if at the time of committing it he is, through any disease affecting his mind, incapable of understanding what he is doing, or of knowing that he ought not to do the act’.111 Establishing the state of mind of the accused at the time of the crime however was a difficult prospect in Africa where psychiatric facilities were limited and understanding of the African mentalities was openly acknowledged to be imperfect, and so mercy was used to smooth this medico-legal deficiency.112

Colonial categories of commutation: Witchcraft, mercy and appeasing African opinion Colonial courts and officials often had difficulty in interpreting the rationality of murder in an African cultural context, a question that was further complicated by the prevalence of witchcraft beliefs as motives for lethal attacks. Murders involving 107. See Penal – Death Sentences, TNA CO 859/37/11; Harrison Waireri s/o Watenga v. R., KNA AG/52/388. 108. Denge wa Dadi CC144/27, KNA AG/16/256; Okiri s/o Abour CC279/51, KNA MLA/1/. There were however significant debates between doctors and judges as to what constituted criminal insanity among Africans; see Memorandum by Dr H. L. Gordon, Death Sentences: Commutations and Executions 1936, TNA CO 533/462/9. 109. Judge Mayer, 2 December 1952, James Robert Omolo s/o Stefano Olembo CC186/52, KNA MLA/1/448. 110. H. M. Shelley and W. H. Watson, ‘An Investigation Concerning Mental Disorder in the Nyasaland Natives’, Journal of Mental Science 82 (1936): 711. 111. M’Naghten’s Case (1843) 10 C. & F. 200. See R. B. Seidman, ‘The Defence of Insanity in the Law of Ghana’, University of Ghana Law Journal 1, no. 1 (1964): 42–51. 112. See Megan Vaughan, Curing Their Ills: Colonial Power and African Medicine (Cambridge: Cambridge University Press, 1991) and ‘Idioms of Madness’; McCulloch, Colonial Psychiatry; Roberts, I’ll Do Better, 72.

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the killing of a suspected witch were another category of offence that were routinely granted mercy, but one that emerged in an African context rather than being imported or adapted from the metropole. As Chief Justice Knight in Nyasaland stated in 1947, ‘although the circumstances of the killing were most brutal, I do not think that the African mind where influenced by matters of witchcraft is normal, and I would recommend that this is not a case where the death penalty should be inflicted’.113 Colonial law may have summarily dismissed a witch’s pretensions to supernatural powers, but it was still forced to take into account the numerous occasions on which magic furnished a powerful motive for criminal action.114 According to the courts, it was normal for an African to believe in witchcraft, but punishable to act upon this belief. ‘Witchcraft’, ‘witches’ and ‘witchdoctors’ became catch-all terms in colonial capital trial records that obscure and elide various local supernatural practices and cosmologies of occult power. It was much easier for the courts to prosecute murder than to prove a case of witchcraft against an individual under Witchcraft Ordinances, so in practice colonial courts often appeared to be protecting witches rather than African communities.115 The practice of granting mercy to persons convicted of killing suspected witches in British courts was however in marked distinction to the practice in French West Africa. There authorities maintained a high level of penal severity in cases they classified as ‘ritual’ or related to African custom and occult beliefs, particularly in the 1920s. This was the largest category of motive ascribed in murder cases, constituting some 27 per cent of cases, and over 80 per cent of such cases resulted in execution: whilst the French category was much broader and included cases like fetish murders and poison ordeals that British authorities also punished with execution, even in witchcraft-related cases courts did not commonly pardon convict murderers.116 Many murder cases involved the killing of suspected witches to protect the accused, their family or their community; such cases were problematic for the colonial courts as the killing of suspected witches was not only ‘repugnant to justice or morality’, but also challenged the monopoly of force on which colonial rule rested. Enforcing execution in such cases would have seriously offended African communities who interpreted witch-killing as a legitimate and necessary

113. Judgement by Acting Chief Justice Knight, Mbetasamba Lukwa, January Lute and Chipalanjira Mwenimudze CC61/47, NAM J5/5/104. 114. Read, ‘Crime and Punishment in East Africa: The Twilight of Customary Law’, 180–2; R. B. Seidman, ‘Witch Murder and Mens Rea: A Problem of Society under Radical Social Change’, The Modern Law Review 28, no. 1 (1965): 57. 115. Richard Waller, ‘Witchcraft and Colonial Law in Kenya’, Past & Present 180, no. 1 (2003): 244; Alan R. Booth, ‘European Courts Protect Women and Witches: Colonial Law Courts as Redistributors of Power in Swaziland, 1920–1950’, Journal of Southern African Studies 18, no. 2 (1992): 253–75. 116. Gendry, ‘“Seule une répression sévère”’, 20–5.

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act of self- or community-preservation.117 The problem for the courts was not only how to determine between the genuinely ‘mad’, the ‘bad’ and those who truly believed themselves bewitched, but how to treat the latter with respect for both native custom and colonial order.118 Attempts to legally classify and distinguish ‘witchcraft’ and ‘insanity’ largely collapsed, demonstrating that colonial categories are not all powerful.119 Under the adapted common law that applied across Africa, witchcraft was not a ‘reasonable belief ’ and therefore ‘bewitchment [was] no defence’ in the eyes of the law.120 The killing of a suspected witch by an African could thus not be held as self-defence.121 There was a generalized sentiment that allowing a belief in witchcraft to stand in law as a mitigating circumstance would prove a severe threat to colonial law and order: officials feared it would ‘encourage the belief that an aggrieved party may take the law into his own hands, and no belief could well be more mischievous or fraught with greater danger to public peace and tranquillity’.122 As such, mercy became the pragmatic political expedient that smoothed the disjuncture between protecting colonial law and order, and appeasing African opinion. In Kenya the majority of cases where the convicted person had acted believing themselves or a family member to be bewitched, or under threat of witchcraft, resulted in mercy.123 Throughout the colonial period, Kenyan officials feared that executing those who killed witches would ignite anti-colonial sentiment.124 As witch-killings were assumed to be driven by ‘superstition’ rather than criminal intent, it became an established principle that such cases would result in mercy. The most infamous case of this occurred in 1932, when sixty Wakamba men were sentenced to death by Judge Barth for the killing of an elderly suspected witch, and all the sentences were commuted by Governor Byrne after public outcry in 117. See Hynd, ‘Murder and Mercy’, 90. Officials were so concerned that district commissioners were specifically requested to investigate whether ‘native custom and/or witchcraft’ were involved in a case in their confidential reports to the governor. 118. In Nyasaland the 1911 Witchcraft Ordinance established that deaths directly resulting from witchcraft practices such as mbauvi poison ordeals were tried under its regulations, not murder statutes and consequently not liable for capital sentence. 119. Vaughan, Curing Their Ills, 108. 120. Judgement by Chief Justice Jenkins, 8 December 1945, Kachinga of Chikwenka CC49/45, NAM J5/5/91b. 121. See Attorney-General of Nyasaland v. Jackson, Federal Supreme Court Criminal Appeal 55/1956 reported in Malawi Law Reports 1923–60 vol 1, ed. Alan Milner (New York: Oceana, 1968), 488–502. 122. E.A.C.A Judgement, 26 March 1932, Kumwaka wa Mulumbi & 69 Others CC/175/31, KNA AG/52/349. 123. See Witchcraft Murder Case 1912, KNA PC/Coast/1/17/52; Chepkwoin arap Maiga CC86/39, KNA MLA/1/17. 124. See Katherine Luongo, Witchcraft and Colonial Rule in Kenya, 1900–1955 (Cambridge: Cambridge University Press, 2011).

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Kenya and Britain.125 In the late colonial era, officials in London and the colonies questioned whether mercy should continue to appease local opinion, or whether the death penalty should be enforced as part of efforts to eradicate witch-killings and belief in witchcraft itself.126 In Nyasaland however, it seems to have been widely held that witchcraft belief was a recognized justification for mercy in cases where the victims had been suspected witches, and it was repeatedly asserted that ‘education’ not ‘execution’ would be the only effective method of eradicating witchcraft.127 Some courts displayed considerable sympathy towards Africans who perpetrated acts of violence against suspected witches, portraying them as victims of ‘native superstition’ rather than criminals, which influenced judicial mercy narratives.128 Loid and Liaison Kwilambo were two brothers convicted in 1945 of murdering two of their uncles in front of witnesses in broad daylight in Cholo, Nyasaland as they suspected the uncles had bewitched and killed their nephew Kusweje. District Magistrate MacDonald stated it was ‘undoubtedly a deliberate and unpremeditated crime, executed with an unusual degree of barbarity. Yet not actuated by love of gain, or lust, or selfish revenge, or by any other sordid motive, but by the superstitious fears and out of pity for relations believed to have been bewitched and killed’.129 Whilst pity may have played a factor in some judges’ recommendations, political expediency was primarily what made witch-killings an established and stable category of mercy. There appear to have been fewer murders of suspected witches in the Gold Coast, perhaps due to the waves of anti-witchcraft movements, oracles and shrines which mediated social tensions surrounding occult practices, although a significant number of murders were directly or indirectly linked to the use of fetishes.130 The pattern of awarding mercy to the killers of suspected witches however held firm.131 In one illustrative case from the Northern Territories, Nabilla Dagomba was convicted on 5 July 1943 at Tamale for the murder of an old woman, Abiba Dagomba. Nabila’s children had all died from illness within 125. R. v. Kumwaka wa Mulumbi & 69 Others, KNA AG/52/349. 126. Abolition of Death Penalties in Respect of Murder Arising out of Witchcraft in Native Communities, TNA DO 35/923/3; Infliction of the Death Penalty in Murder Cases Arising from a Belief in Witchcraft, TNA CO 591/126/10. 127. District Magistrate R. Murray to Attorney-General Hogg, 1916, Grant, NAM J5/12/12. See Hynd, ‘The “Extreme Penalty”’, 550–1. 128. See Lameck CC22/46, 29 August 1946, NAM J5/5/94. 129. Statement by DO MacDonald, Cholo, Loid Kwilambo & Liason Kwilambo CC42a/45, NAM J5/5/91a. 130. Natasha Gray, ‘Witchcraft, Oracles and Colonial Law: Evolving Anti-Witchcraft Practises in Ghana, 1927–32’, International Journal of African Historical Studies 34, no. 2 (2001): 339–62; John Parker, ‘Witchcraft, Anti-Witchcraft and Trans-Regional Ritual Innovation in Early Colonial Ghana: Sakrabunid and Aberewa, 1889–1910’, The Journal of African History 45, no. 3 (2004): 393–42. 131. Kpardu Konkomba, 1938, PRAAD CSO 4/5/121.

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the space of a year. After the youngest child died, he went to a local ‘witch-doctor’ who confirmed his suspicions that the old woman was to blame. Nabilla therefore went to her house, calling out that she had killed his child before shooting her with an arrow and striking her with an axe. According to the judge, Justice Mohammed Fuad, a Cypriot Muslim, ‘the killing which we call murder was in his mind an execution. If these executions are allowed the population of the Northern Territories would be decimated’. Chief Commissioner Gibb in Tamale disagreed with Fuad however, believing that ‘witchcraft is as old as the hills and the equilibrium of social life among primitives has been maintained by the infliction of this and lesser penalties … The pitiful truth is that we have provided no legislation to deal with it and in consequence sufferers can turn for their relief neither to the Administrative Officers nor to their Chiefs’: a common complaint among reformminded colonial officials.132 Although Gibb felt that Nabilla should have followed local custom and driven the suspected witch from the village, or at least consulted village authorities before resorting to violence, he warned that executing Nabilla ‘would convince many that we had no sense of justice’. Following such advice, Nabilla’s sentence was commuted to life imprisonment.133 By the late colonial era, accused Africans standing trial for murder were clearly aware that colonial states acted more leniently towards the killing of suspected witches than other types of murder, and consequently some began to claim at trial that the murders they had committed were actuated by fear of witchcraft, despite never having mentioned this in preliminary investigations. Where judges determined these claims to be false, lying was taken as a sign of guilt and execution routinely followed.134

Contentious crimes and shifting patterns of mercy: Alcohol and domestic murders In the operation of mercy, officials continually sought to strike a balance between the merits of an individual case and the needs of justice and security. Some categories of mercy were consequently more culturally contingent and fluid, with the outcome depending upon the interpretation of the specifics of the case set against shifting conceptions of problematic African social behaviour. Officials had long noted that ‘women and beer’ were the main causes of violent crime in colonial Africa, and uxoricides and murders linked to intoxication generated a lot of debate 132. Justice Fuad, 5 July 1943; Chief Commissioner Gibb, Tamale, 15 September 1943, Nabilla Dagomba, 1943, PRAAD CSO 15/3/290. See J. Orde Brown, ‘Witchcraft and British Colonial Law’, Africa 8, no. 4 (1935): 481–7; Charles Clifton Roberts, ‘Witchcraft and Colonial Legislation’, Africa 8, no. 4 (1935): 488–94. 133. Chief Commissioner Gibb, Tamale, 15 September 1943, Nabilla Dagomba, 1943, PRAAD CSO 15/3/290. 134. Kebeka s/o Okumiri CC216/44, KNA MLA/1/222; Pkemoi so Karengan & 3 Others CC149/55, KNA MLA/1/1326.

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around whether or not they deserved mercy, both between African and colonial opinion, and between district commissioners, judges and governors-in-council.135 Colonial officials’ attitudes towards murder committed by Africans were neither monolithic nor static; individual’s beliefs and their interpretations of different cases varied, creating fractured contours of mercy. Alcohol was a major contributing factor to many murders in Africa – although more so in Nyasaland and Kenya than the Gold Coast – and was recognized as a problem by both the Colonial Office and local administrations.136 Overall, 81 of 456 murders with ascribed motives in the Zomba archives were linked directly to beer drinks or drunkenness. Most officials ‘expressed the opinion that natives when moved to passion under the influence of alcohol are less capable the Europeans of judging the results of their actions of moderating their violence’.137 Legal officials felt it was dangerous to make any general ruling regarding intoxication as a mitigating circumstance, so cases were dealt with on an individual basis.138 Although concerns about the impact of alcohol consumption on African health, morality and labour had existed since the beginning of colonial rule, after 1945 the administration became particularly concerned about the link between intoxication and violence crime. Beer and kachasu [local spirit] drinks were central to communal life across Nyasaland and much of colonial Africa, and frequently became the site of quarrels, many of which turned violent and could result in murder.139 With public disorder increasing generally as a result of postwar social destabilization, by 1946 twenty of eighty-seven murder cases resulted from communal ‘beer drinks’, rising to forty-three of seventy-nine reported murders in 1947.140 In sentencing such cases, judges and officials were torn between the desire to inflict punishment to deter alcohol consumption, and the knowledge that such measures would undoubtedly fail. Mercy was usually accorded only where the accused was judged sufficiently intoxicated to

135. Minute by Treasurer, 24 April 1930, Zimanga Sakala, NAM S1/688/30. 136. See Emmanuel Akyeampong, Drink, Power and Cultural Change: A Social History of Alcohol in Ghana, c.1800 to Recent Times (Oxford: James Currey, 1996); Justin Willis, Potent Brews: A Social History of Alcohol in East Africa, 1850–1999 (Oxford: James Currey, 2002). 137. Governor Thomas to Secretary of State Passfield, 4 October 1930, Million, NAM S1/1130/30. 138. In 1946, s.1 4(4) of the revised Nyasaland Criminal Procedure Code codified the situation somewhat by ordering that intoxication should be considered alongside provocation in determining sentence. 139. H. D. Ng’wane, ‘Economics of Kacasu Distilling and Brewing of African Beers in a Blantyre-Limbe Village’, in Present Interrelations in Central African Rural and Urban Life, ed. R. J. Apthorpe (Lusaka: Rhodes-Livingstone Institute, 1958), 133–48. 140. Nyasaland, Police Report 1946, 15; Police Report 1947, 13; Report by District Magistrate, June 1935, Kandeu, NAM J5/12/34.

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compromise their ability to resist provocation, but there were significant debates over what constituted sufficient intoxication.141 Similarly in Kenya, Chief Justice Sheridan wrote in 1939 that ‘while drunkenness is no legal excuse one must give some attention to it in native cases’.142 By the 1940s, judges were still regularly making no recommendation to mercy in cases involving intoxication and district commissioners in their reports were making a stand against violence committed at beer parties, but the governor-in-council regularly commuted their death sentences to heavy imprisonment.143 Local attitudes towards intoxication were taken more into account in Kenyan mercy decisions than in Nyasaland. Tulu s/o Katui had his death sentence for killing a man with an axe at a beer drink in Kitui reduced to eight years’ imprisonment after the local district commissioner argued: Evidence shows that Tulu was very drunk and considering this one should remember that ‘very drunk’ to a Mkamba means drunk to a far greater extent than to what we would term ‘very drunk’. Popular opinion is that Tulu should most certainly not be executed as his ‘killing’ is regarded as something done in a burst of passionate, blinding rage brought on by the vast quantity of liquor he consumed, aggravated by a hard blow … Assessors and interpreters were unable to understand the severity of the sentence and only shrug their shoulders and say ‘shauri ya wazungu’ [white man’s court].144

Murder trials offer a lens to assess forms of interpersonal and gendered violence  in a society, as well as state responses to such violence. In colonial Africa, violence against women – particularly within the domestic sphere – was normalized and largely accepted by African patriarchal authorities and some sectors of the colonial administration.145 Domestic quarrels were one of the most common categories of murder across British Africa, with uxoricides dominating this category. Records suggest that in Kenya, 145 of 510 non-Emergency-related murder convictions, or 28 per cent, detailed in the archive between 1939 and 1955 resulted from domestic violence. In Nyasaland records between 1920 and 1947, 147 cases, or some 38 per cent, of murders appear to have been domestic murders. Spousal and domestic murders were also common in the Gold Coast: as one judge noted, ‘It appears to be one of the ordinary cases of wife murder which are so frequent in this Colony’.146 Only 13 per cent of cases brought before the Supreme Court from 1925 to 1947 were categorized in annual returns as ‘murder of wife 141. See Wilson v. Regem, RNCA Criminal Appeal 267/1952, 1 ALR. Mal. (1923–60), 268. 142. Ondogo s/o Oichoe CC102/39, KNA MLA/1/12. 143. Amri bin Abdalla CC154/42, KNA DC/ISO/3/10/3; Kiptalam arap Temuge CC49/54, KNA MLA/1/835. 144. DC Kitui to Governor, 8 January 1948, Tulu s/o Katuli CC 177/47, KNA MLA/1/282. 145. Zimudzi, ‘African Women, Violent Crime’, 505. 146. Kwabina Puntuwah, 1938, PRAAD CSO 15/3/405.

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or concubine’, but the fact that this was the first category listed indicates a strong administrative concern with such cases. Tellingly, some 60 per cent of the archived CSO 15/3 files are domestic murders, with spousal murders again predominant in this category.147 This focus on domestic and spousal murders is in marked contrast to French West Africa, where government regulations mandated that the second degree courts that heard murder cases focused on politically sensitive crimes such as anti-colonial rebellions rather than ordinary domestic murders.148 Feminist scholars have asserted that domestic murders are commonly viewed by states as less threatening to the public and are consequently less liable to be awarded a death sentence and result in execution.149 However, an analysis of the Gold Coast, Nyasaland and Kenyan cases contradicts this assumption: whilst the incidence of domestic murders may have been lower in colonial courts than in England, its punishment was more severe. In Kenya between 1940 and 1956 48 per cent of capital convictions for domestic murders resulted in execution, compared to an overall figure of 30 per cent. In Nyasaland, 43 per cent of domestic murderers were executed, against 40 per cent of overall convictions. More significantly, 70 per cent of ‘murders of wives or concubines’, or spousal murders – the main category of domestic murders – in Nyasaland were executed, and 60 per cent in Kenya.150 In the Gold Coast, 80 per cent of the CSO 15/3 series of spousal murders resulted in execution. Due to the incomplete nature of the capital trial archives, these figures are contestable, but they do strongly suggest that domestic murder, and uxoricides in particular, was a recognized category of capital crime which colonial political and legal structures decided to punish severely. In mid-twentieth-century England there is evidence of decreasing public and judicial acceptance of wife-beating and domestic abuse, attitudes which carried over into the colonial sphere and combined with local concerns about the treatment of African women and their protection being a marker of civilized governance.151 Such treatment of domestic murders suggests that not only was the colonial legal system geared to the maintenance of colonial law and order, but that mercy was employed in an attempt to manage violence within African communities and to impose colonial norms of acceptable gender relations.152 147. The frequency of domestic violence in capital convictions still appears to have been lower in Africa than in Britain at the time however, where 65 per cent of murder convictions were a result of domestic violence, suggesting that violence was less privatized in Africa, and interpersonal violence more common. See Martin Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004). 148. See Gendry and Hynd, ‘African Women, Colonial Justice and White Man’s Mercy’. 149. Elizabeth Rapaport, ‘The Death Penalty and Gender Discrimination’, Law & Society Review 25, no. 2 (1991): 381. 150. The category of ‘wife or concubine’ reflected the liminality of customary marriage processes in colonial law and bureaucracy. 151. Chadwick, Bureaucratic Mercy, 393. 152. Hynd, ‘Fatal Families’.

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Concerns about spousal murder were neither static nor uncontested however, shifting in tandem with wider concerns about gender relations, marriage and adultery in African communities, developments in customary law, and the bargains of collaboration between colonial officials and Native Authorities.153 Uxoricides were apparently most common in Nyasaland, reflecting the severity of gender tensions in during this period, which resulted from factors including labour migration, urbanization and the impact of Christian cultures.154 Marital tensions which escalated into murder ranged from a wife refusing to cook for her husband, spending money and calling him names, to more serious disagreements over issues such as bridewealth, adultery, desertion and disputed sexual access.155 In the early colonial period in Nyasaland, the colonial government took a strong stand against spousal murders in an attempt to enforce British civilization and conceptions of morality. In 1910, a man named Ngahotoka was executed for beating his wife, Nabeta, to death with a stick after she refused to sleep with him for two months. Although Judge Griffin wrote of the case: ‘This according to European ideas would not form an adequate motive for murder, but such a refusal on a wife’s part is considered a serious matter by a Native as it is supposed to indicate that the wife has committed adultery’, Governor Sharpe sent Ngahotoka to the gallows, alongside many other men who killed their wives.156 This attitude was not constant, however. Trial records reveal sharp divergences between colonial and local attitudes to uxoricides. In another 1910 case where the accused, Majawa, claimed he had cut his wife’s throat due to her constant nagging, hiding his belongings and allegedly throwing their child onto the fire during a quarrel, Native Assessor Syasya recorded: Before the white men came here the women were afraid to behave ill to their husbands, they would have been punished at first and her witnesses to marriage would be made to pay, and they would most certainly have been killed had they committed adultery … Majawa has killed his wife and if he is killed it is as the law is now, but we chiefs do not think that he deserves to be put to death. Many women are giving trouble because they no longer fear their husbands. If Majawa  is killed it will have a bad effect on all our women who are often troublesome now.157

153. See 1931 League of Nations Questionnaire  – Freedom of Native Women, NAM S1/2065/10. 154. See McCracken, A History of Malawi, 162–303. 155. Confession of John Seremani, R. v. John Seremani, 1922, NAM S1/26/27; R.  v.  Chiseka Mateyo Mvula CC17/38, NAM S1/147/38; R. v. Frank Mwale 1936, NAM J5/12/36; R. v. Mjepa CC34/47, NAM J5/5/101a. 156. R. v. Ngahotoka, Judge Griffin, NAM J5/12/7. 157. R. v. Majawa 1910, NAM J5/12/7.

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In the end, Majawa was given a life sentence, to be reconsidered after five years.158 By the 1920s, the firm stance against domestic violence had lessened, most probably in the light of rising gender tensions and increasing support on the part of the colonial government for African patriarchs. Another factor which may have influenced such decisions was a growing belief that capital punishment was not an effective deterrent in crimes of passion.159 Chief Justice Belcher, remarking on a case where a man in Blantyre deliberately murdered his wife after taking her to their Native Court for adultery on four previous occasions, stated: ‘In such cases the exaction of the death penalty is useless as a deterrent to others, as when a native is in such a state he does not care whether he dies or not.’160 After 1926, when defence counsel were routinely provided in murder trials, an increasing number of spousal murder indictments resulted in manslaughter convictions as lawyers were able to successfully argue for the lesser charge on grounds of provocation or doubt as to intent. In the Gold Coast, records for the interwar period reveal a significant legal concern about spousal murder, but tensions emerged between official desires to use the death penalty as a didactic tool to dissuade men from murdering their wives and concerns that greater freedoms for women were fuelling social disruption. The figure of the ‘bad woman’, the provocative and unfaithful wife, was blamed by many African, and some European, authorities for provoking male violence.161 Issah Fulani was convicted in October 1939 for the murder of his wife Bimuka Gonja in the Northern Territories, after confessing at trial he killed her for adultery. The presiding judge, Ivan Turbett, noted: I feel that the accused was badly treated by his wife and I should like to support the recommendation of the Assessors that this man’s sentence be commuted … from the point of view of the inhabitant of the Northern Territories a wife is a valuable asset owing to the amount of labour performed by her on her husband’s farm. A husband is therefore unwilling to get rid of his wife … I realise at the same time that the problem of the ‘unfaithful wife’ appears to occur in a large percentage of the homicide cases in this country, and presumably it must be inculcated in the minds of the people that the mere fact of unfaithfulness in a wife is not sufficient to excuse an offender from the ultimate consequences of his crime. In consequence I cannot give the assessors that measure of support which in other circumstances I might feel compelled to do.162 158. R. v. Beston alias Moforo CC10/38, NAM J5/5/64. 159. Acting Judge Belcher to Chief Secretary, Bwezani, NAM S1/239/21. 160. Chief Justice Belcher to Chief Secretary, Mbalati, NAM S1/1915/24. 161. In general, across British Africa, where an adulterous wife was caught in flagrante delicto (in the act of adultery) the provocation was often considered sufficient to reduce the charge to manslaughter. W. E. Demuth, 12 August 1914, DO Blantyre – Judge and AttorneyGeneral Correspondence 1917–22, NAM NBB 1/3/2. 162. Issah Fulani, 1940, PRAAD CSO 4/5/125.

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Despite Turbett’s reservations, Issah’s sentence was commuted ultimately to life imprisonment. The fact that ‘the woman was shown in evidence to be of bad character’ contributed to her husband’s commutation.163 Mercy was usually denied in uxoricide cases where the wife had not committed adultery, as in the case of Kweku Adumadzie who was executed in 1930 for the murder of his young wife in Cape Coast, whom he had been betrothed to since she was a child but whom he killed for refusing to sleep with him.164 The refusal of a wife to allow her husband sexual access was frequently cited as precipitating lethal assault, indicating strong social tensions surrounding women’s attempts to control their own bodies and men’s often violent reactions to the perceived insult to their masculinity.165 Attitudes hardened again in the late 1930s and 1940s against a backdrop of emerging colonial welfarism and developmentalism that refocused attention on the treatment of women. Case files from after 1939 in Kenya show that law officers and the governor-in-council took a strong line against men convicted of murdering their wives without grave provocation.166 For Ukutafi Shifushi, who was convicted of murdering his wife after a tembo (palm wine) party in Nyanza in 1940, Judge Thacker wrote: ‘The cause of the assault seems to have been some trivial dispute over his wife’s cooking or the food in the house. I have no recommendation to make.’167 During the 1940s, enforcement of capital sentence was extended to men who killed their current or former mistresses, or a woman they had attempted to abduct or elope with.168 Mercy, then, was only awarded in cases where it was determined that the woman had seriously provoked the man, particularly through committing adultery.169 Strikingly, across Kenya, Nyasaland and the Gold Coast, whilst men who killed their wives were frequently sent to the gallows, women who killed their husbands routinely had their sentences commuted.

Conclusion The death penalty was central to the operation of colonial law and penality across Kenya, Nyasaland and the Gold Coast. Nonetheless, colonial states recognized that sometimes force had to be tempered with mercy in order to achieve a sense of justice that was acceptable to colonial, imperial and African opinion alike, and to thereby retain some form of legitimacy. Overall, the royal prerogative of mercy in Kenya, 163. Issah Fulani, 1939, PRAAD CSO 4/5/124. 164. Kweuk Adumazie 1930, PRAAD CSO 15/3/51. 165. Chifadu Frafra, 1934, PRAAD CSO 4/5/119; R. v. Jato Basari, PRAAD CSO 15/3/3. 166. Kimanua s/o Kitori CC82/41, KNA MLA/1/108; Wambete s/o Namasani CC121/51, KNA MLA/1/418. 167. Judge Thacker, 20 November 1940, Ukutayi Shifushi CC60/40, KNA MLA/1/66. 168. Robert Owiti Obiero CC34/49, KNA MLA/1/323; Njoroge s/o Karanja, KNA MLA/1/1097; Kipruto arap Tanui, KNA MLA/1/1315. 169. See Ngutu s/o Mungyoki, KNA MLA/1/344; Mbwana Ali, KNA MLA/1/1219.

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Nyasaland and the Gold Coast was shaped by complex and evolving punitive and socio-political landscapes. It operated on three levels: as an arbitrary modulation of judicial severity; as the implementation of established principles imported from the metropole and adapted to African climates; and as an expression of the racial and gendered politics of colonial rule and local landscapes of power. The gubernatorial use of mercy, shaped by politico-legal knowledge and sentiment, shows that whether or not a convicted murderer was sent to the gallows depended on assessments of the crime, but also upon racialized judgements of the criminal themselves, and the perceived state of law and order in a locality. It shows judges’ dislike of ‘criminal types’ and liars, assessors and juries’ displeasure at robbery and persistent antisocial behaviours and governor’s anxiety at attacks on state agents. Categories of mercy were adopted and adapted from the metropole: youths, women and those suspected of mental instability were routinely spared. Other colonial categories of commutation developed in situ, as witch-killers were granted mercy whilst wifekillers faced the gallows. The politico-legal landscapes in Nyasaland and Kenya meant that mercy was deployed more frequently there than in the Gold Coast. In the former, officials believed that most murders committed by their African subjects were unpremeditated and therefore undeserving of, and unresponsive to, the death penalty. In the latter, however, concerns about law and order and the impact of modernity in fuelling pecuniary criminality fed into a greater desire for judicial severity. In the coastal Colony of the Gold Coast in particular the input of juries and African judges and their desires to punish dangerous and deliberate homicide lessened officials’ belief in the need for mercy to appease African opinion. On the whole however, these African colonies were not full ‘thanatocracies’, to use Peter Linebaugh’s description of governments that ruled through the frequent exercise of the death penalty in eighteenth-century London: they were structurally, punitively and routinely violent, but their desire and ability to deploy judicial execution were constrained and mediated by wider structures of colonial politics and penality.170 Political pragmatism frequently outweighed both the strict application of law and the free expression of compassion, or revulsion, in determining commutations. Judges, governors and executive councils were aware of the limitations of colonial power and unwilling to sanction executions where this would starkly oppose local African opinion and risk stirring up anti-colonial sentiment, as in witch-killing cases. The flexibility in sentencing facilitated by the royal prerogative of mercy partially helped to fill the chasm between customary attitudes to the punishment of murder and colonial homicide law.171 At other times, mercy was withheld in an effort to impose British civilizational or welfarist impulses, with the female body becoming a site of colonial contests over acceptable forms of domestic relations as governments took firm stands against uxoricide. Such cases highlight how metropolitan cultural norms were translated 170. Linebaugh, The London Hanged: Crime and Civil Society in Eighteen-Century England, 50. 171. Turrell, White Mercy, 21.

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into colonial practice through the prism of criminal justice, with the application of mercy being weighed against colonial reliance on African patriarchal structures of authority and wider gender tensions. As mercy was primarily awarded along established categories, modulated by the historically contingent social and political background to a case, the overall view of mercy was less a case of gradual change over time in its operation, than of a fluid, reactive policy responding to perceived social tensions in a given locality. The differences in mercy between Nyasaland, the Gold Coast and Kenya are often less striking than the modulation of its use according to categories of crimes and criminals within these territories. The operation of mercy was determined in each colony by local landscapes of colonial governance, but those landscapes were not just political and legal: the racialized ideological and emotional landscapes of colonialism also dictated the response to Africans convicted of murder, as the following chapter explores.

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Chapter 4 C U LT U R A L D E F E N C E N A R R AT I V E S , A F R IC A N V O IC E S   A N D T H E E M O T IO NA L L A N D S C A P E S O F   C O L O N IA L M E R C Y

The primitive nature of the native mind and the ease with which it is inflamed by drink and also by sexual passion should call where those considerations arise for different treatment from that which a European in like circumstances should receive.1 – Acting Judge Belcher, R. v. Chigwenemba, 1924, Nyasaland ‘… whether the time has come to teach these primitive people their responsibility is a matter for the Executive Council’.2 – Justice Fuad, R. v. Tojo Konkomba, 1941, Gold Coast Northern Territories The operation of mercy in colonial Africa cannot be fully explained through arbitrary decisions or established principles of commutation alone. At another level, mercy was also shaped by the politics of colonial rule and punishment, and by the ideological and emotional landscapes of colonial governance. Racialized understandings of ‘native custom’ and ‘African behaviour’ therefore became central to discussions of clemency between judges and Governors-in-Executive Council. David Garland influentially argued that as well as having an instrumental purpose, punishment has ‘a cultural style and an historical tradition’.3 This chapter explores the socio-political and cultural style of mercy in a colonial context, charting how intersecting legal, political and social opinions, and emotional registers, shaped the ‘contours of clemency’.4 This chapter shows how racialized cultural defence narratives representing Africans as impulsive, violent ‘primitives’ who could not be held to the behavioural standards of European civilization narratives were able to secure mercy for individuals at the price of reinforcing racial and ethnic

1. Acting Chief Justice Belcher, January 1924, Chigwenemba CC42/24, NAM J5/12/21. 2. Justice Fuad, April 1941, Tojo Konkomba, PRAAD CSO 15/3/282. 3. Garland, Punishment and Modern Society, 19. 4. O’Donnell, Justice, Mercy and Caprice, 17.

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stereotypes, whilst more ‘civilized’ Africans faced death for the same crimes. It looks at how accused Africans mobilized and contested such narratives, both during courtroom testimony and in their post-sentencing petitions for mercy. To do so, this chapter draws from a variety of different forms of textual evidence contained within the murder case files archived in Accra, Nairobi and Zomba: from police reports to case notes, handwritten trial transcripts to judge’s reports, jury statements to allocutus pleas by the accused as their sentence was proclaimed in court, and from both district commissioners’ investigations into local opinions and petitions from the condemned and their families. All of this evidence fed into the decision-making processes of the royal prerogative of mercy, combining with colonial officials’ own experience, received stereotypes of African behaviour, and individual prejudices to shape gubernatorial mercy decisions. These records are investigated here not so much to appraise legal fact or political rationale but rather to explore the sentiments and prejudices (both seemingly benevolent and openly hostile) that underpinned the affective contours of mercy. The legal history of emotions is a burgeoning field but is largely concentrated in pre-nineteenth-century European history. The history of emotions remains underresearched in Africa and in the British Empire more broadly, although emotions have long been implicitly central to analyses of the psychological experience of colonialism and memories of its violence.5 As such, this chapter offers a tentative and necessarily partial analysis. Emotions play important roles in legal reasoning, doctrine and the behaviour of legal actors, but particularly in mercy processes where readings of motive and affect are an intrinsic if unquantifiable element of the decision.6 Legal documents often omit or elide emotions, so such texts need to be read along and against the archival grain, and contextualized by other evidence, including memoirs, newspapers and political reports.7 Despite being regarded as a targeted, legalistic assertion of the rule of law, the death penalty was an inherently emotional, irrational punishment, whose enactment hinged on colonial anxieties, self-proclaimed benevolence and pity.8 Mercy is where ‘compassion trumps justice’ for an individual offender, but in colonial Africa, it was also where ethno-racial 5. Kathleen Vongsathorn, ‘Africa’, in Routledge History of Emotions in the Modern World, ed. Katie Barclay and Peter N. Stearns (London: Routledge, 2022), 123–9. See also Alecia Simmonds and Eric H. Reiter, ‘The Legal History of Emotions’, in Routledge History of Emotions in the Modern World, ed. Katie Barclay and Peter N. Stearns (London: Routledge, 2022), 433; Jane Lydon, Imperial Emotions: The Politics of Empathy across the British Empire (Cambridge: Cambridge University Press, 2019). 6. Merridee L. Bailey and Kimberely-Joy Knight, ‘Writing Histories of Law and Emotion’, Journal of Legal History 38, no. 2 (2017): 125. See Murphy and Jean Hampton, Forgiveness and Mercy. 7. See Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense (Princeton: Princeton University Press, 2009), 181–235. 8. See Émile Durkheim, ‘Two Laws of Penal Evolution’, Année sociologique 4 (1901): 65–95.

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stereotypes about Africans and their behaviours clashed with emotional and moral judgements about a convicted murderer.9 Emotions evolve over time and between different cultures and hold unstable meanings. This can make them difficult to analyse historically, particularly through translated court texts. Nonetheless, mercy records suggest that notions of compassion, revulsion, frustration and anxiety all mark colonial assessments of murderers and their proposed punishment. The British Empire in Africa was a highly ‘emotional regime’; the pity and compassion that could fuel mercy often masked more ambivalent colonial emotions, and their expression remained enmeshed within oppressive structures of power.10 The possibility of mercy reproduced the relations of power that were at the core of European colonization. Cultural outsiders – judges, colonial governors and their executive councils – ultimately determined what knowledge of a condemned African and their crime was pertinent to mercy discussions, and whether that knowledge was sufficient to spare them from the gallows. Agency is a contested concept in African history, particularly when working from colonial archives.11 However, this chapter argues that Africans held some circumscribed or tactical agency in this process.12 Mercy decisions drew from across various layers of knowledge, and Africans fed into the process at multiple stages, in terms of their attitudes both to the condemned and to the death penalty itself: their voices appear in the archives as offenders, as assessors and juries, as native authorities, as the condemned persons’ community and as petitioners. From courtroom demeanour to post-conviction discussions with district commissioners and finally to the death row petitions that begged a governor for mercy, this chapter looks at how fear, anger and love, among other emotions, fuelled both the crime of murder and its punishment.

African mentalities on trial: Cultural defence narratives and stereotypes of African behaviour One of the most influential scholars on capital punishment has been Michel Foucault.13 Beyond his impactful analysis of public executions in Discipline and Punish, Foucault accorded capital punishment a brief, yet strategically significant, role in the genealogy of bio-power. Foucault argued that capital punishment was 9. O’Donnell, Justice, Mercy and Caprice. 10. Joanna Lewis, Empire of Sentiment: The Death of Livingstone and the Myth of Victorian Imperialism (Cambridge: Cambridge University Press, 2018), 3; Lydon, Imperial Emotions, 7. 11. Lynn Thomas, ‘Historicising Agency’, Gender & History 28, no. 2 (2016): 324–39. 12. On tactical agency see Michel de Certeau, The Practice of Everyday Life (Berkeley: University of California Press, 1984), 35–40. 13. See Michael Meranze, ‘Michel Foucault, the Death Penalty and the Crisis of Historical Understanding’, Historical Reflections/Réflexions Historiques 29, no. 3 (2003): 191–209.

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an active tool of power that marked the changing contours of political life.14 In modern states, he argues: ‘Capital punishment could not be maintained except by invoking less the enormity of the crime itself than the monstrosity of the criminal, his incorrigibility, and the safeguard of society.15 One has the right to kill those who represented a biological danger to others.’ Racism primarily mediated this scientific and moral demarcation of ‘monstrosity’, with Foucault taking race as a means of division rather than a biological substratum.16 Following this argument, the establishment and dehumanization of the African murderer as a monstrous biological and criminal ‘Other’ would facilitate the use of the death penalty. There are certainly numerous examples of such racialized and dehumanizing discourses in trial narratives and mercy decisions that hinged on established racist stereotypes of African behaviour. In 1921 District Magistrate Bainbridge-Ritchie of Mlanje, Nyasaland, requested the execution of one man, Nsuera, as ‘the fact that the man is an ignorant Mang’anja cannot be considered as tending to mitigate the crime of which he has been found guilty; although he is an ignorant, degenerate native he is perfectly aware of the seriousness of his act, which was one of sheer brutality and merits the extreme penalty of Law’. Acting Judge Belcher and the governor agreed, and Nsuera was executed.17 In calls for execution in the Gold Coast, judges repeatedly described what they saw as offenders’ dangerousness, savagery and disregard for human life and feeling: ‘as wickedly schemed as it was brutally carried into effect’, ‘the prisoner was as wicked as he was callous’; ‘the attack was a brutal as it was callous and I consider that the prisoner deserves the extreme penalty of the law’.18 The idiom of ‘brutality’ was the most frequently invoked in calling for execution, linking the violence of the crimes with a bestial atrocity redolent in contemporary tropes of African animalistic savagery.19 In Kenya, spear-blooding murders by groups such as the Samburu or Maasai, sometimes involving the murder and mutilation of children or unarmed men for reasons of prestige, revenge, robbery or the policing of land boundaries, were viewed as particularly  abhorrent and dangerous.20 Processes of deviance amplification in

14. Foucault, The History of Sexuality Volume 1: The Will to Knowledge, trans. Robert Huxley, 4 vols. (London: Allen Lane, 1990), 136–8. 15. Foucault, Society Must be Defended: Lectures at the Collège de France, 1975–76, ed. Mauro Bertani and Alessandro Fortana, trans. David Macey (London: Allen Lane, 2003), 254–7. 16. Ibid. 17. Report by DO Bainbridge-Ritchie, 1920, Nsuera, NAM J5/12/16. 18. Kojo Kuma, 1933, PRAAD CSO 15/3/15; Kwaku Badu, 1940, PRAAD CSO 15/3/189. 19. See Frank Mwale 1936, Moses Mwaso CC6/36, NAM J5/12/36; Mbetasamba Lukwa, January Lute & Chipalanjira Mwenimudzi CC64/47, NAM J5/5/104. 20. Law and Order: Crimes of Violence  – Samburu Murders 1933–6, KNA PC/ RVP/6A.17/44; Mr T. L. Powys, KNA AG/52/25. Many thanks to Richard Waller for this information on Samburu cultures of violence.

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colonial discourses meant that the conviction and execution of such criminals contributed towards the criminalization of ethnic groups en masse, and the strengthening of polemical links between African custom and unlawful violence.21 In such cases, the death penalty served as an instrument of the civilizing mission and a tool of colonial modernity to help end such behaviours. Gendry identifies a similar trend in French West Africa, where vendetta murders commonly resulted in execution to educate the populace in the ‘barbarism’ and ‘primitivism’ of precolonial forms of conflict resolution. For French officials, death sentences were meant to simultaneously combat criminals, their beliefs and the fears of the African population: every execution was a success against those three enemies of the colonial order.22 However, the applicability of Foucault’s Eurocentric analysis in a global or colonial penal context is questionable.23 Colonial penal and judicial discourse reflected a more conflicted view of the African murderer than a Foucauldian narrative alone would suggest. At a further level of analysis, mercy was shaped by the politico-cultural, psychological and ideological landscapes of colonialism. These landscapes were riven by the tensions and contradictions inherent in the colonial project, combining benevolent paternalism with racial anxiety, colonial liberal penality with autocratic violence and compassion with inhumanity. To the minds of some colonial officials, murderers were in fact the most ‘manly and honest’ of African criminals, particularly when compared to recidivists and ‘sneak thieves’: others questioned ‘why if an unsophisticated African has a mentality... vastly inferior to that of an English schoolboy, he should pay the ultimate price’.24 The crimes of many convicted murderers were viewed as stemming from their ‘African’ nature rather than from inherent criminality, and consequently they were not perceived as criminal ‘types’: ‘The accused is a perfectly ordinary young native with a good character and anything but a criminal in the usual sense.’25 With violence regarded as normative in hegemonic masculinities in many African cultures, male murderers were often seen as acting according to ‘tribal custom’ or natural ‘warrior-instinct’.26 Colonial authorities in Kenya responded

21. McGuire, ‘“Judicial Violence”’, 206. 22. Gendry, ‘“Seule une répression sévère”’, 18–20. 23. See Bernault, ‘The Shadow of Rule’; Mary Gibson, ‘Global Perspectives on the Birth of the Prison’, American Historical Review 116, no. 4 (2011): 1040–63. 24. Paterson, Report on a Visit to the Prisons, 26. See also Kenneth Bradley, Once a District Officer (New York: St Martin’s Press, 1966), 76–7; J. A. Carman, Memorandum, Criminal Cases- Procedure in Death Sentences, KNA MLA/1/1368. 25. Odiero s/o Ogwati CC140/39, KNA MLA/1/13. See also Gilchrist Alexander, Tanganyika Memories: A Judge in the Red Kanzu (London: Blackie & Son, 1936). 26. See Lisa A. Lindsay and Stephan F. Miescher, Men and Masculinities in Modern Africa (Portsmouth, NH: Heinemann, 2003).

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ambivalently to these cases, particularly among the Maasai, Samburu and Kamba. On the one hand, such cases were viewed as a threat to law and order. But from the 1920s onwards this perspective was mediated by growing concerns about the demoralizing effects of detribalization, with officials demonstrating a grudging respect for or acceptance of what they viewed as authentic forms of hegemonic African masculinities among martial races.27 Crucially, the very tropes of ‘primitive mentality’ and ‘savagery’ that dehumanized an accused African could also be appropriated and repackaged in defence narratives, creating a reverse discourse of the ‘primitive savage’ to deny full criminal responsibility or mens rea for his actions and thereby lay claim to mercy – albeit at the price of reinforcing such racial stereotypes.28 These cultural defence narratives, crafted by defence counsel, the accused or even judges, needed to conform to established patterns of social behaviour or at least colonial perceptions of African behaviour.29 As Lizzie Seal and Angela Neale found in their analysis of race in twentieth-century English and Welsh capital cases, legal narratives were more likely to inspire mercy if they reinforced hegemonic social relations, and strategically mobilized racial, gendered and class-based stereotypes to ‘do their justificatory work’.30 Colonial judges’ reports are replete with assertions that Africans lacked the self-control and emotional discipline of the metropolitan ‘reasonable man’, the putative ‘man on the Clapham omnibus’, and that they therefore could not be held to the same standards of behaviour and emotional control.31 As judges in the Gold Coast noted, ‘it is one of those cases, only too common in this country, where a man labouring under a grievance, real or imaginary, suddenly runs amok’ or ‘[h]is crime appears to have been due to a failure of self-control, not to any base motive or calculated cruelty; and the people of this country and not remarkable for their self-restraint or powers of self-control’.32 There was an inherent contradiction in colonial penality between continued support for the death penalty as an effective deterrent, and the frequent assertions that the vast majority of murders committed by Africans were unpremeditated crimes of

27. See Myles Osborne, Ethnicity and Empire in Kenya: Loyalty and Martial Race among the Kamba, c.1800 to the Present (Cambridge: Cambridge University Press, 2014). 28. Foucault, History of Sexuality, 1, 101. Mens rea is Latin for ‘guilty mind’, or criminal intent. 29. See Tina Loo, ‘Savage Mercy: Native Culture and the Modification of Capital Punishment in Nineteenth Century British Columbia’, in Qualities of Mercy, 104–29 on related narratives in Canadian courts. 30. Seal and Neale, ‘Racializing Mercy’, 888. 31. Chief Justice Belcher, 1926, Chatonda CC5/25, NAM J5/12/23. See Capital Punishment in the Colonies 1956, TNA DO 35/7368; Vaughan, Curing their Ills, 115. 32. Abulasi Moshie – Murder case of, PRAAD CSO 15/3/34; Ahunu Babah 1935, PRAAD CSO 15/5/98.

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passion on which the threat of death would have no effect.33 As one acting district commissioner at Nyeri, Kenya, wrote in 1921: I sometimes wonder whether in this country capital punishment is not inflicted on natives more often than is strictly necessary to attain the ends of justice. A  deliberate, brutal, calculated murder is a very rare occurrence among any native tribes of which I have had experience, such murders as are committed being almost invariably the result of some impulse, or if deliberate are prompted by racial antagonism or by the workings of witchcraft … death is generally only semi-intentional, a man throws a spear or cuts at his opponent with a knife without considering the consequences and when he finds that he has killed a man he is usually smitten with remorse and quite often gives himself up … I  doubt if any deterrent will be effective in stopping these crimes of impulse: they will only be stopped by the gradual education of the native in powers of self-control.34

Africans were assumed to have less self-control and discipline than Europeans, falling prey to their emotions when provoked, and such assumptions were expressly used to justify mercy. Anger was read as being a naturalistic African response to provocation with a primarily somatic expression of violent physical responses to threats to masculine honour, particularly when offered by a female lover or wife or another male of similar social status. An elderly man, Bokosi, on trial in Nyasaland in 1932 had his sentence reduced after officials argued that ‘no doubt being of the older generation, [the accused] still has a modicum of the old unrestrained spirit of the savage’.35 Accused persons were routinely described as ‘a low type of native, raw and quite uncivilized’, but such typologies were often linked directly to arguments for mercy.36 Ethnic stereotypes also abound in calls for mercy. In the Northern Territories of the Gold Coast, the Moshie were viewed as particularly prone to outbursts of violence, whilst the Lobi were regarded as ‘a very backward and unsophisticated people, who have as yet little notion of the general law for the land and still follow as by instinct their own tribal law’.37 In the CSO 15/3 files for Ashanti, almost half of the accused in Ashanti were from the Northern Territories or from other colonies, particularly the Upper Volta and Nigeria, and both the case files and newspaper

33. Chief Justice Jackson to DC Bainbridge-Ritchie, 28 June 1920, Misi Kwanda, NAM J5/12/16. 34. Acting DC Nyeri to Secretary of Native Punishment Commission, 13 October 1921, KNA PC/CP/6/4/3. Many thanks to David Anderson for sharing this document. 35. Judgement by DO Fairfax-Franklin, 24 March 1932, Bokosi, NAM J5/12/30. 36. Chief Justice Reed, 13 April 1931, Sanderam CC14/31, NAM J5/5/44. 37. R. v. Djanga Moshi, PRAAD CSO 15/3/2; Judge Doorly, Kumasi, 31 December 1941, Tene Lobi, PRAAD CSO 15/3/288.

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accounts show considerable prejudice against these immigrants, describing them as primitives or ‘habitual criminals’.38 In Nyasaland, the majority of the Executive Council apparently recommended mercy for the former King’s African Rifleman and police corporal Kapopo following his 1927 conviction for shooting dead his wife’s brother after being denied compensation when divorcing his wife for desertion. Governor Bowring wrote to the colonial secretary in London that their decision was based on ‘native psychology and custom … that the Awemba [Bemba] tribe to which Kapopo belonged are notoriously apt to become unbalanced under strong emotional influences – so much so that they are no longer recruited for the Nyasaland Police’.39 Regarding the case of a Ngoni man who deliberately killed his wife suspecting she was committing adultery with her former husband, Justice Johnson wrote to Governor Kittermaster in Nyasaland: ‘Whether the sentence shall be carried out will doubtless be considered by Your Excellency in Council in relation to the development of the particular tribe’.40 Successful cultural defence arguments for African accused routinely depended upon portraying them as ‘primitives’, ‘low types’ and ‘savages’ who could not be judged by the norms of ‘civilized’ white men. It was by reinforcing discriminatory hegemonic social relations and ideas of race that such legal narratives were able to inspire mercy.41 Whilst such collective identification of Africans as ‘types’, or according to ‘tribal’ characteristics, was a form of de-individualization that frequently contributed to dehumanization and racialized subordination, it was also arrogated to serve in trial narratives as an idiom of mitigation. Murders resulting from inter-communal feuds, or ‘inter-tribal affrays’, were a serious concern for judicial and administrative authorities throughout the colonial period which highlight tensions around mercy. This was particularly the case in frontier districts, such as the Northern Territories in the Gold Coast, northern Nyasaland, Northern Frontier District in Kenya, where colonial order remained tenuous, and authorities believed local cultures to be more ‘primitive’ and less influenced by the civilizing forces of colonial modernity. In Nyasaland, District Officer Nichols of Fort Johnston supported local execution for Sikumbuli and Bonomali in 1925 since ‘the crime was a brutal one and was committed in a section of the District which is inclined to be unruly. On that account I consider it necessary to make an example of the chief offender’.42 In the Gold Coast, similar

38. Gocking, ‘Adjudication of Homicide’, 102. See ‘Habitual Criminals’, Gold Coast Independent, 16 October 1943. 39. Governor to Secretary of State for the Colonies, 1 September 1927, R. v. Kapopo (Kasungu), NAM S1/1164/27. 40. Saidi, Judge Johnson to Governor Kittermaster, 7 July 1936, Saidi, NAM S1/274/36. 41. See also Loo, ‘Savage Mercy’. 42. C. S. Nichols to Chief Secretary, 5 November 1925, Sikimbuli & Bonomali, NAM J5/12/23.

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concerns were frequently voiced in cases from the Northern Territories, where officials held the state of colonial law and order to be tenuous. There, executions were frequently mooted as a deterrent against vendettas. In 1938, the chief commissioner noted in one case that whilst Konkomba native custom supported revenge killings by men whose family members had been murdered by an outsider at a funeral custom, the question for decision is, therefore, whether or not we are to allow ourselves to be influenced by native law which is repugnant to our sense of justice. The accused are clearly aware of the reason for the existence of the police. They knew that their act would not be condoned by the District Commissioner, and that whatever be their law it is a serious offence against our law to commit murder. They will probably have heard that others previously convicted of the same offence in similar circumstances have returned to their homes after a lapse of time. I feel that the time has come when we must disregard Konkomba native law in such cases … I therefore advise, not without some reluctance, that the law should take its course.43

In Kenya, cases of inter-tribal affrays provoked considerable discussion when it came to their disposition. As the Officer-in-Charge of Northern Frontier District in Kenya, Gerald Reece, wrote in 1942, there were two types of murder he had to deal with regularly: those committed against Somalis in response for cattle raids, and those committed against Muslims by pagans as a form of spear-blooding for prestige ‘for suppression of which experience has shown the death penalty to be necessary’.44 In colonial eyes, the issue was how to determine between the mercy which could be granted to ‘primitive’ men acting according to tribal custom who were little under the civilizing sway of British administration, and the penal severity needed to eradicate such repugnant, disorderly customs as spear-blooding, and inter-communal raids. Until 1945 there was a tendency to grant mercy in these cases, as tribes such as the Boran, Turkana and Rendille who were usually involved in such events were regarded as still so primitive that their actions were a result of their environment rather than determined criminality.45 However, against a general background of rising crime and unrest, there was a hardening of penal attitudes against inter-communal feuds after this time.46

43. Tiburum Konkomba 1938, PRAAD CSO 15/3/386. 44. OIC Reece to Colonial Secretary, 27 December 1943, Dika Hassan & 2 others, KNA MLA/1/172. 45. 14 Rendille 1928–30, KNA AG52/257; Gufo Boru, KNA MLA/1/146; Abong s/o Loudawi and four others, KNA MLA/1/1206. 46. Kiptur arap Chepenkengut CC240/50, KNA MLA/1/390.

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Reece wrote of one case where a young man was convicted in 1947 for the revenge murder of two Rendille boys: Though the death sentence is often necessary as a deterrent in these cases of brutal murder the circumstances in this particular case are exceptional, more especially in view of the fact that the incident took place in a very remote and wild part of the province where the people are exceptionally primitive.47

Cultural defence narratives were not always successful, particularly in cases where the defendant’s own socio-cultural status challenged dominant colonial tropes of African primitivism and noble savagery. Colonial justice operated on a continuum of dehumanization; the more dangerous and anti-social a crime was viewed as being  – whether due to its nature, or the nature of the person committing it – the less of a rights-deserving human subject the offender became, and the heavier the punishment. Drawing on evidence from Nyasaland, Megan Vaughan has argued that in ethnopsychiatric thought ‘the “native” who went mad in “native” fashion was relatively harmless’ and that it was those Africans whose versions of insanity appropriated European cultural idioms who posed the greatest problem.48 Similarly, murders closer to European categorizations of criminal activity and more removed from pre-existing tropes of ‘African-ness’ were viewed as more dangerous and therefore more harshly punished. As the previous chapter explored, premediated murders and those committed for pecuniary motives were held to be motivated by ‘criminal’ intent rather than natural ‘African’ behaviour and therefore frequently saw the death penalty enforced. Educated, Christian or Europeanized Africans were also less likely to be adjudged befitting of mercy than their supposedly primitive counterparts, as they were expected to be able to control their emotions and conform to notions of civilized behaviour. Although mercy processes did not explicitly deploy metropolitan concepts of class, the social status of convicts could and did impact the disposition of their sentence. When Justo Odimo, president of an Alego Native Tribunal in the Kisumu area of Kenya, fatally stabbed his cousin Ahono, son of a previous chief, in a quarrel over brideprice in 1940, Judge Thacker pressed for the death penalty as ‘it seems to me however that the higher the accused’s standing in society, the higher is the standard of behaviour expected from him. In my opinion it is not a ground for making any recommendation for mercy’. Although doubts were expressed as to whether there was any lethal intention behind the single stab wound, Governor Henry Moore apparently agreed with Thacker and intended to take a firm line in the case. It is likely that only the petitions from Alego elders and Archdeacon Owen, and positive reports from administrative officers as to his good character,

47. OIC Reece to Governor Mitchell, 7 August 1947, Ebeiyon s/o Lobok SDC CC5/47, KNA MLA/1/273. 48. Vaughan, ‘Idioms of Madness’, 219.

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saved Justo from the gallows and saw him sentenced to life imprisonment.49 In Nyasaland, there had been considerable suspicion of educated Africans ever since the Chilembwe Uprising in 1915, which was led by the American-educated Baptist preacher and educator John Chilembwe. With the generalized underdevelopment of the colony, the number of educated Nyasas remained low even in the 1940s. When one, Julius, a catechist teacher at the South African General Mission in Port Herald, was convicted of murdering his wife in 1946, the judge wrote: ‘As a Christian teacher, Julius presumably takes a greater responsibility for his actions than do his less enlightened brothers for theirs. Consequently, he can have less recourse to the clemency of His Excellency the Governor.’50 In imperial eyes, the higher a colonized person climbed up the ladder of civilisation, the more potentially dangerous they became, and the more subject to violence when they failed to adhere to colonial expectations. The influence of racial hierarchies on mercy decisions became particularly apparent in cases involving Indian accused in East Africa. With Kenya’s Indian community pushing for greater political representation from the 1920s onwards, the official attitude appears to have been that if Indians wanted to claim political rights as equal citizens of the British Empire, they must conform to higher standards of ‘civilized’ behaviour and would be held responsible for the criminality of their actions. Judicial and administrative officials seemed to feel that Indians displayed clear criminal impulses, with arson, embezzlement and violent offences highlighted.51 Unlike Africans, many Indians accused of murder and serious violent offences were notably regarded as liars who acted premeditatedly and calculatedly. Such racial antipathies became strikingly clear in the case of Harjit Kaur, a young Sikh woman in Kijabe, Nairobi, who was accused of murdering her father-inlaw Mankaran Singh in 1949. Harjit’s case is the most extensively archived (nonEmergency) murder trial in the Nairobi archives and highlights the intersection between racial and gendered narratives of justice and criminality.52 After initially telling the police that Mankaran had been shot by African robbers, Harjit claimed in court that she had unknowingly shot Mankaran during a struggle after he made sexual advances towards her. Despite protestations that Mankaran Singh had a history of sexually harassing young women, British officials became convinced that Harjit was a liar, a malingerer and an adulteress who had determinedly shot dead the patriarch of her family. Harjit, in apparently conforming to stereotypes of the untrustworthy Asian whilst challenging patriarchal power structures, doubly drew the ire of colonial authorities. Whilst African women accused of murder tended to be treated sympathetically, the authorities stubbornly held to their view 49. Judge Thacker, 1 September 1940, Justo Odima s/o Odhiambo CC120/40, KNA MLA/1/62. 50. Julius CC44/1946, 31 October 1946, NAM PCC/1/16/2. 51. See Murder of Hon Isher Dass 1942–3, KNA AG/52/386. 52. Hynd, ‘R. v. Mrs Utam Singh: Race, Deviant Womanhood and Colonial Justice in Kenya, 1949–52’, 226–44. Names changed at family’s request.

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of Harjit’s ‘cold-blooded murder’, even after protests from senior members of the Indian community in Kenya and the East African Women’s League. Delegations argued to no avail that new evidence proved Mankaran Singh’s family had tried to frame Harjit to protect family honour, and that he had previously sexually harassed other female relatives. It took extensive medical evidence for Harjit to be grudgingly spared execution on the grounds of ‘compassion’ and her sex, but authorities still maintained her health problems were either fake or self-inflicted.53 Even where cultural defence narratives were absent or less successful, the extreme dehumanizing tendencies of capital trials could be mitigated by the racialized paternalism of colonial officials. The judges and district magistrates of British Africa who tried capital cases did not see themselves as ‘hanging judges’: Chief Justice Frederick Southworth in 1950s Nyasaland for one was reputed to ‘detest the idea of having to sentence anyone to death and would go to considerable lengths to avoid doing so’.54 There was a certain mimesis between the savagery attributed to certain African murderers by the colonial courts, and the savagery of the death penalty inflicted by the courts in the name of civilization. Capital trial narratives implicitly played out the tension inherent in the colonial situation between many British officials’ fears of African violence and their unease about their own use of terminal legal violence against Africans, regarding them as being under their protection and ‘civilizing’ influence. Officials’ feelings were shaped by a form of ‘sentimental humanitarianism’.55 Without more research into judges’ backgrounds and personal attitudes however it is difficult to determine accurately how far this reluctance to apply the extreme penalty of the law was a result of an opposition to capital punishment itself, rather than paternalism towards the African accused and political concerns about the application of the penalty in an African context.56 By the 1930s, the form and rhetoric of juridical-bureaucratic routine and language, alongside the presence of African assessors or juries at trials, also inhibited resort to extreme dehumanizing tropes in explaining and prosecuting murders. When judges did not recommend mercy, they almost exclusively

53. Director of Public Prosecutions Somerhaugh to Attorney-General, 19 October 1950, SC99/49, KNA AG/52/423. 54. Roberts, I’ll Do Better Next Time, 72. 55. Lewis, Empire of Sentiment, 9. 56. See Sir Alan Burns, Notes Relating to Apedwa Case, Gold Coast, March 1947, RHL, MSS.Afr.s.1822. There is a flourishing historiography on the power of the judiciary in late colonial states, but more research is needed to illuminate the personal backgrounds and sensibilities of colonial judges. See Ibhawoh, Imperial Justice; Victoria Barnes and Emily Whewell, ‘Judicial Biography in the British Empire’, Indiana Journal of Global Legal Studies 28, no. 1 (2021): 1–27. The social history of colonial administrators is better researched; see Christopher Prior, Exporting Empire: Africa, Colonial Officials and the Construction of the Imperial State, c. 1900–39 (Manchester: Manchester University Press, 2013).

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referred to the convicted man as ‘the accused’ but where they made a strong recommendation for clemency, there was a tendency to employ the convicted man’s name in their report, as a means of humanizing and individualizing the convict to encourage the governor’s mercy. Where such information was available, recourse was also made the convicted man’s past history ‒ criminal and social ‒ in order to determine the final sentencing outcome. In the case of Ndaigusa ole Lelengwesa in Kenya, the judge noted: ‘The accused in this case was a man who appears to have adopted a career of violent crime and having been convicted twice for stock theft and having escaped from custody whilst in hospital … [I] make no recommendation to mercy.’57 On the other hand, Kenya’s Attorney-General John Whyatt wrote of Kipkoske arap Cheriro, convicted of killing his father in 1950, that ‘but for the fact he had a previously clear record he might not have escaped the death penalty’.58

Africa(ns) on trial: Courtroom behaviour and agency Africans accused of murder were not simply passive actors in this colonial theatre of death. Some accused – either through their own agency or under instruction from defence counsel  – showed awareness of cultural defence narratives, mobilizing these racialised colonial tropes to gain support during their trial. The most common cultural defence narratives adopted in the accused’s court testimony include exculpatory and mitigating justifications for their actions: that they feared being bewitched, that their passions were inflamed by drink, that they were unable to control themselves when provoked. Aware that doubts about their mental stability could be grounds for being found guilty but insane or at least spared the gallows, some accused Nyasas in the 1910s framed their testimonies around claims that a ‘darkness came in their eyes’, a rhetoric that with increasing medicalization in the interwar years shifted to claims of being ‘temporarily insane’, although how much of this shift was a product of translation is unclear.59 As Ncemiah Ntara put it in his 1940 trial in Nyasaland, ‘it may be that I had a temporary fit of insanity from which I suffered last years, which might have been caused by a little beer I drunk prior to the killing of my wife’.60 In the Gold Coast, some men accused of murdering their wives attempted to blacken the character of their spouses in testimony. These men were aware that judges and juries often reacted more favourably to men who were apparently wronged by their wives. A Fante man, 57. Ndaigusa ole Lelengwesa CC126/49, KNA MLA/1/330. 58. Kipkose arap Cheriro CC267/50, KNA MLA/1/392. 59. R. v. Ngahotoka, Judge’s Notebooks 1912–13, NAM J5/5/90b. Claims to viewing a ‘darkness’ were interpreted as an epileptic aura by colonial medical personnel and were successful in either gaining mercy or a guilty but insane verdict. See R. v. Dorgwe, NAM J5/5/35. 60. R. v. Ncemiah Ntara CC17/1940, NAM J5/5/71b.

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Kweku Danful, was brought before Justice Jackson at Cape Coast in May 1946 for the murder of his wife, Adyoah Adante. Despite never mentioning such behaviour in his statement to the police or to his defence counsel Mr Crabbe, Kweku told the court that he had found her having sexual connection with different men on multiple occasions: ‘She did some wrong and I killed her.’ Judge Jackson’s notes of the trial leave a clear impression that he felt Kweku was lying, and the jury quickly found the accused guilty of murder. By August, Kweku had been executed for his crime.61 Being caught lying to the court was a sure path to the gallows, as it was taken as indicative of a criminal mindset and attempting to evade justice. On the other hand, a voluntary confession counted in favour of the convicted man when mercy was assessed: I admit that it was I who killed my wife; I admit that I did it with the cutlass in Court; I admit that she refused to live with me but that there was no quarrel at the time that I killed her. I admit that neither in the Police Magistrate’s Court nor to the police have I ever made any mention of the fit which attacked me … I know myself I am guilty.62

Courtrooms are ‘emotional arenas’ where competing versions of social order and power, and different forms and registers of emotion came into conflict, with judges interpreting (or misinterpreting) African testimonies and emotional performativity. Emotions were a contested currency in trials, and courtroom demeanour could be a significant factor in determining the outcome of a capital case and subsequent recommendations to mercy.63 Although the written text of the archival record prevents full assessment of the dialogue, body language and inter-personal relations that underpinned the performance of cultural defence narratives in court, trial transcripts and particularly judge’s reports and handwritten comments can give useful insights into the reception of these legal tactics and behaviours. The emotions encoded in these texts are described emotions rather than ‘real’, but the somatic and demeanour evidence encapsulated in legal archives does highlight how important colonial readings of African emotion and affect were to the operation of capital punishment.64 In Nyasaland, judges placed much significance on courtroom behaviour in their deliberations, and noted their difficulties in assessing this at a remove when reviewing the murder cases tried by district magistrates in subordinate courts. As Charles Belcher noted, I know from experience how unwise it is in a question of the quantum of punishment to set the Magistrate’s written record against the recommendation 61. R. v. Kweku Danful, 1946, Murder Book, Cape Coast, PRAAD SCT 5/8/10. 62. R. v. Kwado Anno, 1931, PRAAD CSO 15/3/6. See also M’Imugwo wa Katakaa CC110/39, KNA MLA/1/6. 63. Mark Seymour, Emotional Arenas: Life, Love and Death in 1870s Italy (Oxford: Oxford University Press, 2020). 64. See Bailey and Knight, ‘Writing Histories of Law and Emotion’, 127.

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he makes. He sees the witnesses and their demeanour which the revising Judge does not; he cannot … make a note of every gesture or incident which … have considerable cumulative effect; he has knowledge of the local circumstances of temperament of those concerned and the probabilities which arise there from.65

Judges presiding in courtrooms placed considerable emphasis on their interpretation of an offender’s character in their recommendations on mercy, which was largely inferred from their performance in court. This meant that similar crimes were not always treated equally; comments such as ‘the accused … impressed me as being a particularly bad type of native’ were frequently expressed where recommendations to enforce the death sentence were made.66 In 1922, John Seremani, a Mang’anja capitao (overseer) on a European estate in Tuchila near Mlanje in Nyasaland, was convicted by Judge Jackson for the murder of a young woman Asnett, a former slave whom he had bought or ransomed to act as his wife. Seremani’s petition for mercy claimed he remonstrated with Asnett when she refused to cook for him: I got angry and asked her if she wanted a younger man and she said “yes, and I shall go and see the young men if I want too” … I did not mean to kill my wife when I hit her with this piece of wood but I was half drunk and angry with what she had said to me and the way she had laughed at me when she said it I beat her too hard.67

In his report to the governor-in-council, Judge Jackson rejected Seremani’s pleas for mercy. Jackson highlighted the servile status of the former slave girl Asnett, and their age difference. He stressed that Seremani was regarded as the headman of the village, and was ‘evidently far superior in intelligence, education and force of character to the other natives concerned’ who had helped him cover up the crime. ‘The evidence reveals no genuine provocation and from the story of the witnesses the act appears to have been one of callousness and brutality on the part of the prisoner who relied on the woman’s recognized status as a slave’ to control her and cover up his crime. However, despite Jackson’s protestations that he could see no grounds for mercy, Governor Smith commuted Seremani’s sentence to life imprisonment, ostensibly on the grounds that he showed remorse.68 In the Gold Coast, Charles Edward Woolhouse Bannerman, the colony’s first African Puisne Judge, noted in one 1934 case: The behaviour of the second prisoner in the witness box convinced me that he is a despicable character and capable of any mean act. Not only did he show signs of truculence and defiance in the witness box but his queer facial 65. Judge Belcher to Chief Secretary, 12 January 1926, R. v. Jameson, NAM S1/401/26. 66. M’Ithinge s/o M’Aruinge CC215/54, KNA MLA/1/869. 67. R. v. John Seremani, Confession and Petition for his Life, NAM S1/2627/22. 68. Ibid.

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expressions and the contemptuous air assumed by him led me to the belief that he is a thorough ruffian.69

In the 1939 case of a Nigerian porter in Ashanti who killed another man in a quarrel, Woolhouse Bannerman drew on regional stereotypes of Nigerian criminality, writing: The Prisoner’s arrogance in the witness box; the cleverness with which he evaded questions which told against him; the crocodile tears which he shed every now and again – all these impressed on me that he was a ruffian of the worst possible type. I have no recommendation to make on behalf of the prisoner. I feel that he behaved with singular callousness and brutality and he must suffer the extreme penalty of the law.70

It was not only the accused’s demeanour that judges monitored; witnesses and lawyers’ attitudes also shaped their responses to the person in the dock. Whilst hearing a domestic murder case Acting Circuit Judge Pearson noted that the deceased woman’s son, who was the main witness, seemed to be ‘intelligent and truthful’ and cried in the witness box, ‘tears which might well move a jury and impressed on the Court the witness’ sincerity’.71 Judge Barton, commenting on the murder of Ama Dapah by her husband Kodjo Otchere, noted that Kodjo’s own defence counsel did not appear to believe Kodjo’s account of his innocence and noted: ‘I consider this case is one in which the extreme penalty of the law should be carried out’.72 Judges in the Gold Coast – including African and non-European judges  – were more likely to call openly for the death penalty to be enforced, reflecting the greater incidence of crimes being found premeditated or determined there, whilst in Kenya and Nyasaland judges mostly held to the neutral formulation that they ‘had no recommendation to make’. Allocutus statements by the accused upon the passing of sentence are rarely recorded in case files but do appear in the ‘Murder Book’ trial transcripts from the Gold Coast and give striking insights into their emotions as the sentence was passed. These final words in court could influence a judge’s subsequent recommendation on mercy. Kweku Danful’s defiant final statement after being convicted for killing his wife Adyoah Adante on the Cape Coast in 1946 was ‘the mother of the deceased owes me money’.73 Unsurprisingly, he was executed. Others showed shock, distress, remorse or fatalism. Kwabina Berko, an okyeame (‘linguist,’ meaning a spokesperson or ambassador for an Akan chieftaincy) in  Christiansborg who was convicted of murdering his wife in public after 69. Yaw Akyegum and Abina Asantiwa, 1934, PRAAD CSO 15/3/19. 70. Damanu Lagos 1939, PRAAD CSO 15/3/47. 71. Acting Circuit Judge Person, 29 May 1934, PRAAD CSO 15/3/21. 72. Judge Barton, Victoriaburg, 8 May 1937, Kodjo Otchere, PRAAD CSO 15/3/118. 73. R. v. Kweku Danful, Murder Book-Cape Coast 1946, 284, PRAAD SCT 5/8/10.

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accusing  her of adultery, stood before the court and proclaimed that he ‘did it with intention and I wish the Government to kill me one time’. He too went to the gallows.74 Some transcribed statements are open to multiple interpretations. In Kenya, the Kisii woman Kerubo w/o Ayienda could have been expressing fatalism, despair or defiance when stating ‘I ask you to forgive me or to hang me, as you feel’ after being convicted of murder for barring her husband’s co-wife and children into a hut and burning them alive after being beaten by her husband.75 Others more sharply reveal the emotions displayed, through text or context, as in the case of Mutune w/o M’Kajau in 1940, who was convicted of murdering her husband for bewitching her but was thought to be senile and deluded. Chief Justice Sheridan wrote: ‘One has to but to see the accused to realise what a poor and pathetic specimen of humanity she is … Allocutus: “Can’t you pity me … If you want to kill me you can do so, I die for bearing the children. I am sorry (weeping copiously).”’ The governor-in-council commuted Mutune’s sentence to five years imprisonment.76 The most procedurally significant site of African influence on capital trials was that of the native assessors, although their views only intermittently influenced the sentence handed down in court. African assessors were normally chiefs, village headmen or elders who advised the presiding judge on native custom and offered their views on the case but whose opinions were not binding.77 Judges varied in their attitudes towards assessors, with some finding them to be ‘of no value’, lacking in intelligence or making recommendations based on political intent or ethnic bias rather than appraising a case in reference to the law.78 Others gave their opinions significant weight in their recommendations for mercy, particularly in cases where detailed understanding of local custom or social tensions was needed to elucidate the significance of a motive, as in cases of cattle theft or inter-personal quarrels in Kenya.79 The most frequent site of divergence between assessors’ and judges’ recommendations was spousal murder cases, with the (male) assessors commonly recommending mercy for men tried with murdering their views, but recommending that severe sanctions be implemented for women who killed their husbands, although this was more common in Nyasaland and the Gold Coast than Kenya. Judges recorded such views in their reports but normally accepted them 74. R. v. Kwabina Berko, 26 September 1926 Murder Book – Accra 1926, PRAAD SCT 2/8/7. 75. Report by Judge Thacker, 26 April 1952, Kerubo w/o Ayienda, KNA MLA/1/431. 76. Judgement by Chief Justice Sheridan, Mutune w/o M’Kajau KNA MLA/1/26. 77. Assessors were supposed to be from the accused person’s ethnic or racial community. Europeans could serve as assessors in cases of African accused, but government officials were excluded from the role so European assessors were normally missionaries or settlers. 78. See R. v. Chibwana, NAM J5/12/7; Judge Belcher to Acting Governor Harragin, 30 December 1939, Chepkwoin arap Maiga, KNA MLA/1/17; Kachobe Wanderi CC16/42, KNA MLA/1/145. 79. See Commutation of Death Sentences 1925–40, KNA AG/52/139.

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only insofar as to recommend a life sentence instead of execution or dismissed them as ‘this looks like a man-made law administered by men’.80 One marked difference between murder trials in Kenya and Nyasaland and those in the Gold Coast was the presence of juries in the Colony. These seven-man juries could include one or two Europeans, even into the 1940s, but always had an African majority.81 These were not juries of peers for many African accused, however: African jury members were educated town elites whilst accused murderers were often labourers or migrants, whom juries regarded as backward, violent and criminally inclined. This contributed to a lower rate of mercy recommendations.82 In some cases however, judges’ reports highlighted points of tension between juries’ moral judgements on cases and colonial law. In the case of Komah Moshie, a mine hammer boy at the Abosso goldfield in Tarkwa who hailed from the French colony of the Upper Volta and was accused of murdering his wife Gombellah after a series of domestic disputes, the jury recommended mercy despite Gombellah being found ‘with her head nearly severed by a cutlass outside the accused’s room’. When pressed by the judge why they made this recommendation, the foreman responded that they believed the ‘murder was not due to jealousy but to exasperation and shame’. Komah was nevertheless executed, in line with established norms on uxoricide.83 Puisne Judge Aitkens oversaw the trial of Amewudje Awahe in Accra for the murder of Atippi Agbevey, a boy shot dead in a quarrel over farmland when Amewudje caught him cutting down his corn. Aitkens advised the jury that ‘they must not allow their sympathy with the prisoner to affect their verdict – it was quite clear to me that there was some considerable danger of such an event’. After thirty minutes, an unusually long deliberation, the jury returned a guilty verdict ‘with the strongest possible recommendation for mercy’. Aitken displayed sympathy with their position, noting: It is cases like this which throw a flood light on our law on murder and show it up as the barbarous and cruel anachronism it happens to be. It is not surprising that a simple (and probably humane) savage like the prisoner found himself unable to understand why he had been convicted …, and the jury’s obvious reluctance to convict is, in the circumstances, natural and hardly reprehensible.

Governor Thomas clearly took these concerns seriously, and Amewudje’s death sentence was commuted to an unusually short sentence of twelve months’ imprisonment.84 80. R. v. Chengwani NAM S1/1125/31; R. v. Majawa Dowa, 1910, NAM J5/12/7. 81. It was not unusual for Europeans and Africans on a jury to differ in their verdicts. In one 1932 case where an unidentified man was decapitated over an alleged debt, the Europeans recommended mercy whilst the African jurors did not. Issaka Kanjarga, PRAAD CSO 15/3/394. 82. Gocking, ‘The Adjudication of Homicide’, 101. 83. Judge McCauley, Sekondi, 28 May 1942, PRAAD CSO 15/3/208. 84. Puisne Judge Aitkens, 31 October 1933, PRAAD CSO 15/3/82.

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A plea for mercy: The impact of petitions and African opinion upon mercy decisions Where African opinions seem to have had more influence on the outcome of capital convictions however was outside of the courtroom, in post-sentencing mercy processes. A key site for this were the reports produced for the Executive Council by district commissioners on the case background and opinion of local African communities on murderers and their crimes. These reports became standard from the 1930s and, alongside judges’ reports, seem to have been the most influential pieces of evidence in mercy deliberations, particularly in Kenya and Nyasaland. Although district commissioners may have been influenced in their reports by utilising native authorities as their key informants, who could attempt to use mercy processes to enforce their own political authority against troublemakers, there is a variety of opinion presented that indicates these reports do hold historical merit in revealing African opinions on murderers and the death penalty more generally. Most reports couch local opinion in relation to both customary law and the social equilibrium of the community, reflecting the restorative principles underpinning of local notions of justice and punishment.85 When Kachinga of Chikwenza was convicted of murdering his mother in 1945, the local district commissioner noted: ‘Local opinion sees there is nothing unjust or harsh in hanging the prisoner … they hold to the central fact that he undoubtedly killed his own mother and that in spite of his previous good character he is no longer to be trusted as a member of the community.’86 Some communities held firm to customary law, such as the villagers who asserted that Alikeni s/o Fumwani should be spared for killing a maize thief during the Nyasaland famine of 1949, as theft was traditionally punished by death among the Chewa. Others are noted as ‘considering murder should be punishable by death’ even where custom would not require this, particularly educated Africans, who as Christian converts would have been influenced by biblical notions of sin and punishment.87 These reports assert that in many cases African communities were just as strongly in favour of executions as colonial officials and judges, if not even more so: ‘that his co-villagers are only too anxious to get rid of him as a nuisance seems plain’.88 As the district commissioner of Lilongwe reported of his investigations into local opinion on the spousal murder committed by Namoni s/o Kliyazala in 85. See Chanock, Law, Custom and Social Order. 86. R. v. Kachinga of Chikwenza, Confidential Reports on the Prerogative of Mercy, NAM 1-2-7R/2541. 87. R. v. Alikeni s/o Funwani CC28/50, 98; R. v. Zakaria CC65/47, 55, DC Lilongwe to Chief Secretary Zomba, Confidential Reports on the Prerogative of Mercy, NAM PCC/1/16/2. On the social tensions generated by the 1949 famine, see Meghan Vaughan, The Story of an African Famine: Gender and Famine in Twentieth-Century Malawi (Cambridge: Cambridge University Press, 1987). 88. Lolingingidir arap Serbeno CC127/39, KNA MLA/1/15.

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1958, ‘I have been considerably impressed by the strong and unyielding feeling of the Native Authority, Village Headman, and the relatives of the accused and the deceased that the death sentence should be carried out’.89 During a baraza (assembly) held to discuss a murder in Central Nyanza, Kenya in 1954, Nyanza elders reported to their district commissioners that ‘we would like the Governor to be strong and firm in dealing with the offender … We realise that British justice requires proper evidence but if it was left to us to judge the case and inflict punishment we would hang the murderers and banish the Kaluande clan from our country’, a statement greeted with a roar of approval.90 In such cases, the Kenyan government was inclined to let the law take its course and execute the convicted person, if only to prevent lynch-law and reprisals by the community: I have discussed this case with Suk chiefs and ADC councillors and it is generally agreed that if these four men are not hanged the Suk will have no further respect for the law relating to murder … I think also that if these men are allowed to return to their location it will be difficult to prevent tribesmen from killing them.91

District commissioners’ reports also shed light on the after-effects and social impacts of murder. Notably, many indicate that members of the condemned persons’ own family supported their execution, highlighting inter-familial tensions but also likely familial desire to assert or regain their status in the community and not be tainted by association. The 1947 report for one Zakaria, a respected village member and Nyau dance and initiation ceremony leader near Lilongwe in Nyasaland, who killed a rival in a fit of jealousy following his failure to be appointed village headman, noted that nine of his adult relatives, including two brothers and one son, agreed that ‘the law should take its course’.92 In the case of Chikwawa Banda, convicted in 1950 of murdering his cousin Jester in a quarrel in Nyasaland, local opinion regarded him as ‘not a peaceable character, a hard drinker’ and that although the punishment under Chewa law would have been banishment, ‘all Africans present who have advanced beyond tribal customary thinking consider the crime justifies hanging’. Moreover, Chikwawa’s wife ‘has been told to leave with the six children after the harvest’, as she was a stranger to the village.93 Murders caused social and cosmological wounds in African communities, which retributive colonial legal processes could not appropriately heal. Customary law’s restorative principles would have applied compensation or banishment to re-establish social equilibrium between the deceased and 89. R. v. Namoni s/o Kliyazala, DC Lilongwe to Chief Secretary Zomba, 1958, Confidential Reports on the Prerogative of Mercy, NAM PCC1/16/2. 90. Joseph Odhengo s/o Ogongo CC26/54, KNA MLA/1/821. 91. Pkemoi s/o Karengan & 3 Others CC149/55, KNA MLA/1/1326. 92. R. v. Zacharia CC65/47, 55, NAM PCC1/16/2. 93. Ibid., R. v. Chikwawa Banda, 27 January 1950, 79.

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condemned persons’ family.94 Although some families of the deceased made civil claims in Native Courts in an approximation of this restorative justice, and conflict resolution strategies and healing or cleansing ceremonies would still have been undertaken in some cases, significant social scars remained. Colonial authorities were aware of this; as former senior commissioner and expert on African labour Granville St John Orde Browne wrote, in capital cases ‘a valuable member of society has been destroyed; instead of doing what may be possible to repair the injury, the white man insists that a second valuable life must be sacrificed, thereby inflicting still further loss’.95 The petitions for mercy from a condemned person to the governor were another pathway for Africans to influence mercy decisions. These petitions repackaged and recalibrated the accounts told in court, which were constrained by legal formats, into texts that were part judicial supplication, part personal history and part story conveying an individual’s version of events aimed at eliciting mercy from the governor. Such petitions provided a rare opportunity for Africans to directly address the centre of colonial power and engage with the self-proclaimed majesty of British law. As Natalie Zemon Davis famously argued, the ‘fictional quality’ of legal petitions is a crucial element of their documentary value rather than a hindrance to the search for empirical truth.96 Whilst Turrell asserts that in South Africa petitions were important in the granting of reprieves, in British Africa petitions overall had a lower magnitude of influence than judges’ or district commissioners’ reports.97 Part of the reason for this may have been that, due to high levels of illiteracy, most death row petitions in the 1930–40s were substantially scripted by the Prison Superintendent, Chief Warder or African prison warders. These penal intermediaries, particularly African prison staff, combined cultural defence narratives, biblical imagery, and local idioms of power and cosmological notions of guilt with the rhetoric of colonial subjectivity in crafting appeals to the governor.98 The precise nature of the narrative transaction in a death row petition between the condemned and their scribes is unclear. These texts can be read as a usurpation of the voices of the condemned by colonial penal bureaucracy, but also as a site of cultural interchange between official, popular and personal narratives of crime, guilt and morality. Mercy petitions mobilized a combination of legal, political and affective registers to make their pleas. Whilst trial records focused on the empirical evidence, the temporal and geographic specificity of events, mercy petitions are instead deeply emotional narratives. These are not

94. See Rangley, ‘Notes on Cewa Tribal Law’, 5–10; Duff, African Small Chop, 334, 340. 95. ‘The African Prisoner’ manuscript, G. B. Orde Brown papers, WL MSS.Afr.s.117 Box 2/3 ff 84–95. 96. Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth Century France (Stanford: Stanford University Press, 1987), 3. 97. Turrell, White Mercy, 37. 98. Ibid.

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simply ‘fictions in the archive’ that reveal power dynamics and genealogies of authority: these are desperate appeals from men quite literally begging for their lives, appeals mediated by the prison officials who were employed to lead, sometimes drag, them to their deaths.99 Although these stories are fictions, and translated fictions, cast in supplication, adopting perspectives from legal histories of emotions can help to reveal significant details about the feelings that drove interpersonal violence in colonial Africa. Fear, anger and love are the three emotions that are, perhaps unsurprisingly, the most legible in petitions. Fear was undoubtedly fuelled by the death row environment and atmosphere in which these petitions were crafted. Anger, rage or frustration were recast as temporary insanity or a reasonable response to serious provocation, particularly in cases of uxoricide, where a husband’s masculinity had been publicly challenged by their wife, with the wives often seeming to have been empowered by socio-economic and political changes, highlighting fraught gender tensions in the late colonial period.100 When petitions speak of ‘love’, it is love repudiated, curdled or twisted into hate, but this term matters to the petitioners: it does not appear in police evidence, and very rarely in trial narratives, but shows up on a number of occasions in mercy petitions, which are about what offenders felt rather than just what they did. It appears either directly or more indirectly through their descriptions of a previously warm and satisfying domestic or sexual relationship that had soured. The question remains, what exactly did love mean to these men, and what did they, or their warder-scribes, mean by it? Some scholars have argued that passionate love is a universal phenomenon; others that shifting kinship practices, gender ideologies and political economies shape intimate attachments.101 It is likely that colonial officials and African murderers understood different things by this term in a sexual, spousal or romantic register, but the difficulties encountered in domestic and sexual relationships, and the emotional distress associated with their breaking, are sufficiently universal to have been comprehensible to mercy panels.102 Few petitions exist in the Malawian archives, but many remain as part of the prison records for condemned criminals in Kenya and in murder case files from the Gold Coast. Nearly all are from cases involving convicted male murderer, and gender dynamics are significant within the petitions. In Kenya, clear patterns emerge in the typescript petitions and there are fewer openly emotional narratives. Before the early 1940s, petitions to the governor for mercy were usually couched in terms of mitigating circumstances, arguing that the murder was not serious enough 99. See Zemon Davis, Fiction in the Archives. 100. See Hodgson and McCurdy, ‘Wicked Women’; Hynd, ‘Fatal Families’. 101. Jennifer Cole and Lynn M. Thomas, ‘Introduction: Thinking through Love in Africa’, in Love in Africa, ed. Jennifer Cole and Lynn M. Thomas (Chicago: University of Chicago Press, 2009), 3. 102. Megan Vaughan, ‘The History of Romantic Love in Sub-Saharan Africa: Between Interest and Emotion’, Proceedings of the British Academy 167 (2007): 14–20.

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to warrant the extreme penalty of the law. After this time, increased emphasis was placed on the social position of the convicted person, particularly their familial responsibilities, with a switch from a legal to a more personal register: ‘I have a wife and two children’ or ‘I am a mother of five children’, leveraging affective familial bonds.103 Petitions supported by members of the condemned person’s community or the colonial hierarchy, such as chiefs, missionaries or teachers, were more influential than those solely from the condemned. When Suleman Ali, chief of Kibigori, was convicted in Kisumu, in 1947, of the murder of his two brothers, the petition from his father Ali Sulemani and other community members was instrumental in saving him from the gallows. Ali wrote that his son had served the British in the First World War, and was a good chief, upon whom his entire family was dependent for their maintenance, ‘and by his sentence all these members of the family will have no one to look to for their living and they will all starve’. He pointed out that Suleman was ‘the only leader of the Sudanese people in Nyanza Province … He only last year collected funds to start a school for Sudanese children and thus it is only he who is the father and everything to the Sudanese people’. Such support from the family and local community apparently helped sway Governor Mitchell into commuting Suleman’s sentence to twelve years imprisonment.104 These petitions translated the condemned man’s representation of events surrounding the crime into an acceptable narrative for a governor’s attention. As befitted colonial stereotypes of African intelligence and criminality, they were usually told in basic exculpatory language, but the narratives were also laced with cultural defence narratives, recycled or appropriated from trial arenas. In Kapenguria, Kenya, in 1950, Kimoi s/o Kormoen was convicted of murdering a man whom he suspected of killing his sister through witchcraft. Although the district commissioner of West Suk wrote that Kimoi was ‘above average intelligence’ and mission educated, and he was one of the few Africans convicted of murder in Kenya seemingly to write his own petition, Kimoi pleaded for mercy on the grounds that ‘I am an uneducated person and my act was committed more through my ignorance than for any other reason. I repent of my offence which, I reiterate was done because of my ignorance and the superstitious surroundings in which I had been brought up’.105 Here Kimoi was ‘playing the primitive’, seeking to conform to colonial stereotypes in order to benefit from mercy. Many condemned men cited a loss of self-control through drink, uncontrollable impulse, sudden provocation or memory loss as mitigating circumstances in petitions: ‘I was very drunk. I cannot remember anything about the quarrel and I cannot remember killing the deceased. I am usually a temperate man and the amount of drink I must

103. Mbai s/o Murai CC122/48, KNA MLA/1/298; Wacheke d/o Githinji CC99/40, KNA MLA/1/55. 104. Petition from Ali Sulemani to governor, 25 April 1947, Suleman Ali CC192/46, KNA MLA/1/263. 105. Kimoi s/o Kormoen CC123/49, KNA MLA/1/345.

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have had made me temporarily insane’.106 Other petitions engaged with wider structural critiques of colonial justice. During the Kenyan State of Emergency, as the legal system buckled under the weight of multitudinous Emergency cases, a standardized petition emerged which stated, ‘I consider that with such confusion in the evidence the passing of the death sentence was harsh in the extreme.’107 That such petitions were normally drafted by prison officials suggests an internal critique of penality and standards of criminal justice from the Prisons Department at this time. In the Gold Coast, although isolated petitions appear in the archive from the 1920s, petitions in capital cases appear to have become routine in the 1940s after a standardized form was introduced in 1939.108 Petitions could come from the convict themselves or family members, with most written by scribes, lawyers or prison warders due to a high rate of illiteracy among the population.109 A thriving industry of scribes and letter writers in West Africa appears to have made petitions from family members more common in the Gold Coast than in Kenya or Nyasaland.110 Whilst petitions which came through solicitors tended to be more straightforwardly legalistic in tone and often drew directly from appeal documents, those from family members tended to combine legal defences with the rhetoric of a ‘humble servant’ and ‘good colonial subject’.111 Such petitions commonly reiterated the defence case, challenging the processes of colonial law, the evidence given and the conviction by the court, but never the edifice of ‘British justice’ itself: ‘That the British flag hang up on the post signifies good government, British justice and peace, and according to the British justice, the law has no respect of any person.’112 As in Kenya, appeals to mercy based on the condemned man’s social standing and family commitments were prominent, whilst petitions from elders and chiefs provided character references: ‘We find him to be of a very quiet disposition and very good nature.’113 Ekuah Mansuah petitioned on behalf of her husband, J. A. K. Kwahim, a member of the British Kommenda Silver Star Orchestra convicted of killing a rival band member. In a gratis petition scribed by J. A. F. Wentoh, she ‘prayeth for a reduction in sentence as may seems fit, complying

106. M’Rimbabu wa Rimbabu, 1939–40, KNA MLA/1/7. 107. Shunga s/o Njuhiga & Kumonyo s/o Njau CC263/53, KNA MLA/1/626. 108. Kweku Gyedu, 1939, PRAAD CSO 15/3/133. 109. Confession by Accused Persons, 1934, PRAAD CSO 4/1/235. 110. Nana Osei-Opare, ‘“If You Trouble a Hungry Snake, You Will Force It to Bite You”: Rethinking Postcolonial African Archival Pessimism, Worker Discontent and Petition Writing in Ghana, 1957–66’, Journal of African History 62, no. 1 (2021): 59–78. 111. Petition from Defence Counsel Adoo, Akpabla Lokpo, PRAAD CSO 15/3/112. 112. Petition of Ekuah Mansuah, 25 August 1943, Convict Prisoner J A K Kwahim – petition for reduction of sentence, PRAAD CSO 15/9/289. 113. Petition, 20 December 1937, Yao Kwenoo, PRAAD CSO 15/3/404; Petition to Governor, 17 May 1934, Kwasi Adjei, PRAAD CSO 15/3/87.

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justice with kind mercy’, highlighting her desperation as she and her husband had two children and ‘since his imprisonment I have become a temporary widower, his first daughter … has stopped schooling owing to [a lack of] financial help, he is also the surviving son in a circle family who [he] caters for their need’.114 Few petitions written directly by condemned men appear in the Ghanaian archives, but those that exist highlight the convict’s background and social status. T. C. Adu, a Tribunal Registrar at Brenase in Akim Bosome State, was convicted in 1946, along with two fetish priests from French Togoland, of the murder of a young boy for ritual purposes. Adu used his legal knowledge and bureaucratic expertise to frame a petition denying his guilt and showing how the successful appeal to the West African Court of Appeal by his co-accused raised doubts about his conviction.115 Aside from Adu, most death row petitions in the Gold Coast were typed up on the prisoner’s behalf by prison officials at Ussher Fort in Accra. Judging from similarities in the imagery and tone of petitions it appears that many were substantially scripted by African prison warders, who incorporated legal defence narratives, biblical imagery and the rhetoric of colonial subjectivity in crafting appeals to a governor. Due to the overrepresentation of spousal murders in the Accra CSO 15/3 archive series, many petitions come from this category of offender, allowing for a useful comparison. Petitions often sharply recast events from police statements and trial testimonies to craft a supplicatory narrative. Tracing the development of a narrative of murder in trial of Kofi Kuma, convicted at Tamale in 1937 for the murder of his wife Mbuane, in the initial police statement taken upon his arrest, Kofi asserted he had taken Mbuane to their Native Tribunal for adultery, but she refused to name the man involved. The local fetish identified a neighbour as the guilty party: Kofi claimed 20/compensation from the man but he refused to pay. Local gossip then reached Kofi suggesting that Mbuane was planning to leave him and marry a man called Mensah. In the dock during his trial, Kofi admitted that he had followed his wife to confront her. Failing to find her, I returned to my house and took my cutlass and went and sat down in my wife’s room waiting for her, not long after my wife came in the room. I asked her where she has been to all the time and her child was crying; my wife told me, I must not trouble her, she will let men sleep with her on the street, and if I get knife I may cut her throat. I was greatly annoyed. I got up at once and cut her, one on the neck and one cut on her back. I ran away from the room with the cutlass to my house and hid it, then I proceeded to Krachi to report to the District Commissioner.116 114. Petition of Ekuah Mansuah, PRAAD CSO 15/9/289. 115. Petition to Governor, 25 March 1946, T. C. Adu, PRAAD CSO 15/3/245. 116. Kofi Kumi alias Kofi Konkonte, 1937–9, PRAAD CSO 4/5/107. Kofi was spared from  the gallows after being declared insane, although this defence was never raised during trial.

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After conviction, Kofi petitioned for mercy. His statement, written up by the Staff Warder J. Kwabi, recast his story in language and form thought more suitable for Governor Hodson’s eyes: I felt in love with her [Mbuane] and married her. She had given birth to four successive children since our marriage took shape and for about ten years there had not been any causes of friction until recently when she committed adultery and after dual enquiry at the Tribunal of our native chief she boiled with anger and in a provocative manner told me candidly that, she will misconduct herself with men in an open air street like a prostitute henceforth, and she will never give way for any adultery fee to be taken from anybody on earth. This provoked me and with a sense of insanity I used a cutlass on her when I found her dead. At last, I came back to my senses and felt a sense of sorrow so I am begging His Excellency the Governor to nullify the conviction passed on me.117

Omitting the elements of premeditation in favour of pleading ‘a sense of insanity’, Kofi cast himself ‒ or was cast ‒ as a victim of his wife’s perfidy. He also projected that anger fuelled his actions, trusting a common sense of masculine pride would bring the governor’s understanding, and laid claim to sorrow and repentance to leverage for mercy. A narrative progression from domestic happiness disrupted by the ‘bad woman’, provocation resulting in murder, followed by exculpation and a profession of sorrow was common to petitions from convicted uxoricides in the Gold Coast. Many petitions also replicated trial cultural defence narratives or engaged with known categories of mercy. Adiga Grunshie, from the Northern Territories, was found guilty at the Tamale assizes in September 1940 of murdering his wife with an axe and a razor having suspected her of being unfaithful. Adiga’s unsuccessful petition, which was written by Chief Warder C. B. Moses, showed clear awareness of the key determinants for mercy when pleading that if your poor petitioner was not a high-way-man who inflicted the regrettable blows on the woman in an attempt to rob her of her property; if he was not a burglar who when about to be apprehended committed this crime; if he was not under the influence of alcohol when he gave the fatal blows; if your petitioner was not an insane person when he inflicted the punishment that ended fatally and if he since after the incident has not been found to be insane, then Your Excellency, why should he so lose control over himself; why did he not attack any other person than his own wife. Your Excellency how can your petitioner, illiterate and purely primitive northern man fully lay bare the contents of his heart’. [He is] sorry for what he has done and begs for mercy!! Mercy!!!.118

In the early 1940s, Chief Warder C. B. Moses, who later became the first African director of prisons in 1952, penned a series of petitions that strikingly combined 117. Ibid. 118. Petition to Governor, Adiga Grunshie, 1940, PRAAD CSO 15/3/278.

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biblical rhetoric and melodramatic appeals for mercy. Kweku Gyudu, convicted in June 1939 for the murder of his wife after a drunken quarrel, petitioned to Governor Hodson that ‘through extreme provocation in that apparently temporary fit of madness’, he stabbed his wife with a cutlass ‘inflicting the wounds on the poor victim hardly knowing what [he] was doing’. Your Excellency, your humble and age-ridden petitioner like the prodigal son, has nowhere else to go with his burden of guilt, except to your Excellency. Oh, your Excellency, of what use is the death of a sinful man that your petitioner is, your poor broken hearted petitioner is sincerely sorry for what he has done. Your humble petitioner shrinks with fear and trembles in every limb not so much for the death that hangs over him by the tenderest thread of the spider, which by the slightest touch of any passer-by, may drop and your petitioner would soon know no more: but his going into his grave with his grey hairs and his hands daubed with the blood of her, whom once he embraced in love. Your humble petitioner humbly approaches your court not by the door of justice but by the ever open door of mercy, where the flaming sword of justice is forever stayed, and prostrates before Your Excellency with tears in the eyes begging for mercy, mercy which measures not the weight of guilt; mercy for which your humble petitioner shall ever pray.119

Whilst the voices of petitioners themselves are difficult to locate, local idioms of power were sometimes incorporated, with claims to ‘Your Excellency’s Mercy Seat’ referencing the ceremonial stools that were the seat of power for Gold Coast chiefs, and local moral philosophies of guilt and sin articulated through claims of a desire ‘for the atonement of his past sins plus those of his great-grandfathers’.120 It is noticeable that petitions in Colony or Ashanti cases rarely resorted to ‘playing the primitive’ in their appeals for mercy. This may have been because the petitions were drafted by African prison warders rather than by European staff, or because against a political background of Africanization and development in the 1940s such claims to the ‘primitive nature’ of a convict could be seen as repudiating the colonial governments’ project of modernization. Petitions could sometimes openly reflect colonial political contexts, with appeals to the ‘Governor of Democracy, an unfathomable wealth of wisdom’ lodged to Governor Alan Burns after the signing of the Burns Constitution in 1946 that granted a majority in the Legislative Council to elected African members.121 The rhetoric of mercy in the Gold Coast petitions appears in general to have been more straightforwardly legal and bureaucratic, and less explicitly political and racialized than in Kenya with racial claims to mercy replaced by the invocation of Christian commonality and appeals to colonial justice. 119. Petition to Governor, 17 June 1939, Kweku Gyudu, PRAAD CSO 15/3/133. 120. Petition to Governor, 24 March 1942, Kojo Ama, PRAAD CSO 15/3/207. 121. Petition to Governor, 29 December 1941, Sampson Bitter, PRAAD CSO 15/3/419.

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Conclusion As the last two chapters have shown, the operation of the prerogative of mercy was an expression of the political power and legal authority in colonial Africa. In Kenya, Nyasaland and the Gold Coast, as in other British territories, mercy was shaped by the particular character of colonial justice and the ideological and affective landscape of colonial governance, operating through both paternalistic and dehumanizing discourses. Mercy was at once arbitrary, guided by established British and colonial principles, and contingent upon the political, legal and cultural understandings of the circumstances of a particular crime. In deciding whether to spare a condemned convict’s life, the governor-in-council often judged the criminal more than his crime. Colonial ideas of African ‘primitive mentalities’, lack of self-control and customary justifications for murders were crucial in the operation of mercy. There was a racialized modulation of capital sentences and commutations; cultural defences were integral to mercy, recognizing cultural difference among Africans at the price of reinforcing racial stereotypes and underpinning colonial control. Mercy decisions were based on a combination of cultural knowledge, individual opinion, legal evidence and administrative investigation. Whilst the prerogative lay in colonial hands, African voices did help influence the outcome at various stages: from courtroom behaviour of the accused and witnesses, and the opinions of juries or assessors that fed into judges’ recommendations, to the native authorities and family members that shaped district commissioners’ mercy reports, and finally the warders who helped the condemned men craft their petitions for mercy. These petitions confirm that both crime and the law were intimately shaped by feelings and sentiments – love, fear and anger especially – with supplicatory narratives that were framed in terms of both colonial subjectivity and appeals to common humanity. Both compassion and anxiety could inspire mercy  – compassion for an individual’s circumstance when their crime was felt to be understandable if not justifiable, and anxiety over the loss of legitimacy if someone was executed against local opinion. Capital punishment and the operation of mercy were intimately linked not just to politicolegal structures but to the cultures and psychologies of colonial administrations. Nowhere was this more obvious than when fears about violent threats to colonial control and social order led to the rejection of mercy and the enactment and extension of the death penalty, as the next chapter demonstrates.

Chapter 5 A N E XC E P T IO NA L P E NA LT Y F O R E XC E P T IO NA L C R I M E S : I N SU R G E N C Y, C O L O N IA L V IO L E N C E A N D T H E E X T E N SIO N O F T H E D E AT H P E NA LT Y

Popular opinion in the District is disgusted by this brutal act, which has been carried out in a manner completely divorced from any known native law and custom. The background to this case is the terrorist activities of the ruthless Mau Mau society, and nothing … can in anyway be considered to be an extenuating circumstance in this cold-blooded, disgusting, murder.1 – District Commissioner London, R. v. Muiga s/o Kirike and Njau s/o Mwihia, November 1952 Within the British Empire, capital punishment was more than simply a legal sanction or a deterrent punishment: it was a political tool and lethal arm of the coercive networks that underpinned colonial governance.2 Executions as political rituals were ‘both performative and constitutive of colonial power’.3 During colonization, executions emerged as a central icon of imperialism, symbolizing the raw power of the encroaching colonial order and the arrival of new forms of law and social control to the colonized world.4 When this established order became vulnerable to rebellion, capital punishment (re-)assumed its status as a pre-eminent tactic of colonial violence, drawing on metropolitan traditions of mobilizing the death penalty to maintain social order.5 Bookended by the 1915 Chilembwe Rebellion in Nyasaland and the 1952–60 State of Emergency in Kenya, this chapter investigates the legal, political and security rationales that shaped uses of the extreme penalty of the law to combat exceptional threats to colonial rule. It looks at the extension and application of the death penalty under martial 1. DC London, Thompsons Falls, 6 November 1952, Muiga s/o Kirike and Njau s/o Mwihia KNA MLA/1/445. 2. Hynd, ‘Murder and Mercy’; Sherman, ‘Tensions of Colonial Punishment’. 3. Kim Wagner, ‘“Calculated to Strike Terror”: The Amritsar Massacre and the Spectacle of Colonial Violence’, Past & Present 233 (2016): 185–225. 4. David Killingray, ‘Punishment to Fit the Crime?’. 5. See Gatrell, The Hanging Tree.

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rule and states of emergency to combat anti-colonial rebellion, but also during normative legal orders and peacetime moral panics, highlighting the relationship between normative and exceptional forms of judicial violence in colonial states. The differing political and cultural landscapes of Kenya, Nyasaland and the Gold Coast meant that there were different forms and levels of challenges facing colonial authorities, and the Gold Coast serves in this chapter as a contrast to highlight where and why capital punishment was not securitized and deployed to face such threats. As previous chapters have shown, capital punishment was always a disputed penalty, inhabiting a contested space between discourses and practices of the rule of law and colonial ‘civilization’ on one hand, and the perceived necessity of violence in maintaining authority over colonized subjects on the other. Elizabeth Kolsky asserts that the history of colonial violence ‘cannot be understood by traversing from one cataclysmic event to the next’, whilst Wagner argues instead that moments of ‘acute vulnerability during rebellions (real and imagined) reveal the inner workings of colonial rule’ as the British enacted extreme forms of violence to preserve law and order, and their own lives.6 This chapter focuses on the ‘connected histories of judicial killing’ that highlight how the death penalty was mutually constituted between metropole and colony, between emergency and normative colonial orders.7 There were two contexts in which Britain allowed its African territories to extend their legal application of the extreme penalty: during ‘Black Peril’ inter-racial rape scares and under martial law or states of emergencies – both involved threats to white bodies and colonial control. The explicit securitization of capital punishment and its extension to rape and emergency offences was always highly contested, both between London and the colonial governments, and between the administrative, legal, settler and African populations within colonial Africa. The question is: why was the state’s lethal violence, foundational to the law but occluded behind its jurisprudential façade, brought to the fore to combat these particular crimes at these specific historical junctures? This chapter makes three main arguments. Firstly, rather than just a legal sentence, capital punishment was an expressly political penalty whose use was shaped by shifting socio-political climates, legal frameworks and the forms and contexts of both colonial and anti-colonial violence. Secondly, capital sentencing and executions had multiple functions within colonial strategies of violence and counter-insurgency – deterrence, punishment, revenge, reassurance – because the death penalty had multiple audiences: rebels, colonized societies, settlers, security forces, imperial authority and metropolitan opinion. Thirdly, whilst capital punishment was purportedly a targeted, legalistic assertion of the rule of law and colonial violence, it was in fact an emotional, irrational punishment that often 6. Kolsky, Colonial Justice, 2; Wagner, ‘“Calculated to Strike Terror”’. 7. Clare Anderson, ‘Execution and Its Aftermath in the Nineteenth-Century British Empire’, in A Global History of Execution and the Criminal Corpse, ed. Richard Ward (London: Palgrave Macmillan, 2015), 191.

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signified the weakness of colonial states rather than their strength, particularly in the face of anti-colonial unrest and threats to settler bodies.

The Chilembwe uprising and colonial counter-insurgency in the early twentieth century Whilst capital punishment was highly visible in the assertion of colonial rule, it became even more significant to the maintenance of that rule in the face of anticolonial rebellion and insurgency in the nineteenth and early twentieth centuries. Institutionalized violence operated differently in the colonies from the metropole, with colonial rule characterized by high levels of normative, incumbent violence.8 When British ‘civilization’ and rule were threatened, extreme violence was the response, particularly under martial law or, later on, states of emergency. The tactics adopted by colonial police and security forces were ‘bluntly coercive, always racially coded, and sometime terroristic’, but they also normally operated within the generalized racial inequalities and contingencies of colonial legal systems.9 As John Comaroff has argued, colonial states routinely engaged in ‘lawfare’, mobilizing legal restrictions as an instrument of state violence. During rebellions, ‘British officers sought to wield the law as a weapon that could restrain their enemy’s freedom of action’.10 Penality was central to colonial emergency regimes, creating a ‘dual penal regime’ that ran alongside, and operated symbiotically with, the ordinary penal system.11 In the face of significant threats to colonial control, imperial authorities were prepared to grant emergency powers to colonial administrators and create new punitive regimes, where the ordinary requirements of the rule of law were abandoned, where legal processes for conviction could be expedited and where executions could occur in forms and levels that would not be tolerated by metropolitan authority under normative conditions. Such exceptional executions were not just examples of colonial brutality however: they were rather themselves constitutive of the rule of law and a product of its ambivalent functioning in colonial spaces. Giorgio Agamben, drawing on the work of Karl Schmitt, posits that the law has a paradoxical capacity to authorize its own suspension; that the 8. Bruce Berman, ‘Bureaucracy and Incumbent Violence: Colonial Administration and the Origins of the Mau Mau Emergency in Kenya’, British Journal of Political Science 6, no. 2 (1976): 143–75. 9. Martin Thomas, ‘Violence, Insurgency and the End of Empire’, in The Oxford Handbook of the Ends of Empire, ed. Martin Thomas and Andrew S. Thompson (Oxford: Oxford University Press, 2018), 505–6. 10. Comaroff, ‘Colonialism, Culture and the Law’; Brian Drohan, Brutality in an Age of Human Rights: Activism and Counterinsurgency at the End of the British Empire (New York: Cornell University Press, 2017), 45. 11. Smadar Ben-Natan, ‘The Dual Penal Empire: Emergency Powers and Military Courts in Palestine/Israel and Beyond’, Punishment & Society 23, no. 5 (2021): 741–63.

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very essence of sovereignty is expressed in the legal power of the sovereign to place himself outside the law and authorize such exceptional force.12 As Achille Mbembe writes, ‘the colony is thus the site par excellence where controls and guarantees of judicial order can be suspended – the zone where the violence of the state of exception is deemed to operate in the service of “civilization”, and its restoration’.13 However, as Kolsky argues, such ‘legal regimes of exception … existed in tandem with the colonial rule of law’ operating not as exceptions in a Schmittian sense but as extensions of the ordinary legal inequalities imposed on subject people by imperial rule.14 During war and rebellion, the use of capital punishment under martial law, and later states of emergency, formed the apex of colonial states’ assertion of the sovereign right to kill. The colonized subjects who were (sometimes summarily) judged and executed served as exculpatory justification for those who were killed outside the law by the state and its agents. The form and extent of the death penalty’s use in imperial counter-insurgency operations shifted over time. From the infamous ‘death by cannon’ executions of the 1857 Indian Mutiny to the 354 men and women hanged following the 1865 Morant Bay uprising in Jamaica, nineteenth-century colonial governments frequently resorted to public hangings and mass executions to shore up the fragile authority of their rule in the face of anti-colonial rebellions.15 Executions were also used to serve both political and judicial ends in extending hegemony and combatting rebellion in nineteenth-century Natal.16 During these upheavals in the mid-nineteenth century, capital punishment’s form and function were intrinsically localized, shaped by local understandings of race, caste, religion and the relationship between colonized bodies and souls.17 By the twentieth century, colonial peno-legal formations had become more standardized and bureaucratized as the metropole sought to extol the values of British justice, and some colonial authorities became more hesitant to deploy executions due to the politico-legal dynamics of colonization. Capital punishment played little role in the establishment and maintenance of colonial authority in the face of anti-colonial resistance in the Gold Coast. Establishing a monopoly over the sovereign right to death had been an important foundation for colonial authority in the mid-nineteenth century, but 12. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998), 16–26. 13. Achille Mbembe, Necropolitics (Durham, NC: Duke University Press, 2019), 77. 14. Elizabeth Kolsky, ‘The Colonial Rule of Law and the Legal Regime of Exception: Frontier “Fanaticism” and State Violence in British India’, American Historical Review 120, no. 4 (2015): 1223. 15. Wagner, ‘“Calculated to Strike Terror”’; Jamaica, Report of the Royal Commission 1866 (London: HMSO, 1866), 1143. 16. April Jackson, ‘Judicial Violence: The Role of Capital Punishment in Colonial Natal, c. 1843–1910’, European Conference on Africa Studies paper, 1 June 2023, unpublished conference paper. 17. Anderson, ‘Execution and Its Aftermath’, 171.

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in the late nineteenth and twentieth centuries British authorities in the Gold Coast did not resort to widespread or high-profile executions to secure and expand their control. Even during the colonization of Asante, hangings did not play a leading role in establishing British rule, in part because one of the discursive justifications given for establishing a protectorate was to put an end to the human sacrifice reputedly practised by the Asante.18 Instead, as Lobban shows, a key colonial tactic was to combine military expeditions with the use of ad hominem legislation to authorize political detentions and exiles of key Asante leaders, including of Yaa Asantewaa, the Queen-Mother of Ejisu who lead the Asante rebellion during the War of the Golden Stool in 1900, and the Asantehene, Kwaku Dua III, more commonly known as Prempeh I. This use of ad hominem detention reflected the pragmatism and jurisdictional ambiguities that characterized the extension of colonial rule in the Gold Coast.19 However, in cases of armed insurgency, particularly where insurgents lacked political or legal representation to parley with colonial states, capital punishment retained its position as a significant weapon against anti-colonial rebellion. During the First Chimurenga in Southern Rhodesia in 1896–7, rebel chiefs like Makoni were shot after summary courts martial, whilst a series of high-profile trials and executions were used to mark the victory of colonial forces. Some sixty-seven death sentences were handed down, fifty-six of which – over 80 per cent – were confirmed, including the high-profile hanging of the spirit mediums Nehanda Charwe Nyaskasikana and Sekeru Kaguvi, which served as a psychological marker of the rebellion’s end for white officials.20 Under martial law, executions were commonly used by military authorities to punish captured insurgents, for crimes including murder, high treason and spying, as with the forty-eight prisoners executed during the 1899–1902 Anglo-South African War.21 Here, British uses of the death penalty conform to a broader colonial model of peno-military violence. German authorities hanged Bushiri bin Salim at the end of his rebellion in German East Africa (Tanganyika) in 1889, and made widespread resort to public hangings to counter the Majimaji rebellion in Tanganyika in 1904–8.22 Gendry argues that between 1890 and 1915 in French West Africa executions were commonly used as a 18. See Boyle, Through Fanteeland to Coomassie, 342–4; Robert S. S. Baden-Powell, The Downfall of Prempeh: A Diary of Life with the Native Levy in Ashanti, 1895–96 (London: Methuen, 1896), 5–6. 19. Lobban, Imperial Incarceration, 238–58, 419. 20. Bechuanaland Protectorate and Rhodesia Further Correspondence, May–December 1897, TNA CO 879/52/552; Arthur Keppel-Jones, Rhodes and Rhodesia: The White Conquest of Zimbabwe, 1884–1902 (Montreal: McGill-Queens University Press, 1983), 521; Terence O. Ranger, Revolt in Southern Rhodesia, 1986–67 (London: Heinemann, 1967), 306–10. 21. Great Britain, Papers Relating to the Administration of Martial Law in South Africa (London: HMSO, 1902), Cmnd. 981, 121–9. 22. Glassman, Feasts and Riot, 7–9, 235–8; Rushohora, ‘Graves, Houses of Pain and Execution’, 279.

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form of collective colonial catharsis to mark the end of periods of violent resistance to colonial settlement or domination, and to (re-)establish the inviolability of both white bodies and colonial hegemony. In French West Africa there were strong links between penal and military punitive regimes, both in terms of the method of execution, with death by firing squad, and in the use of colonial courts to punish rebels as ‘criminals’ rather than just political enemies.23 The Chilembwe Uprising in Nyasaland in January–February 1915, led by the well-educated Baptist preacher John Chilembwe and landowning African entrepreneurs, provides a key example of the use of the death penalty as part of early counter-insurgency efforts in Africa.24 Chilembwe’s rebellion shocked British officials and settlers when on 23 January his men launched attacks on settler plantations, primarily the Magomero estate of Alexander Livingstone Bruce eight miles from Chilembwe’s Mbomwe mission, killing two European men whilst sparing the women and children. One victim, William Jervis Livingstone, was decapitated and his head displayed on a pole during Sunday service. The uprising was fuelled by grievances against European planters, discriminatory colonial economic, land and labour policies – particularly the oppressive and exploitative imposition of thangata unpaid labour on African tenants  – exacerbated by a combination of millenarian Christianity and anti-war sentiments. Against the backdrop of the First World War, when Chilembwe sent a letter to German colonial authorities asking for support, the rebellion was additionally considered as an act of treason in wartime by the British. The uprising failed, as Chilembwe’s call to his followers to ‘strike a blow and die’ indicated he believed it would, because it lacked wide support from the local population and because the state responded quickly and brutally to the threat.25 Within two weeks, the rebels had been hunted down by the King’s African Rifles and the Nyasaland Volunteer Reserve, which was largely composed of European settler planters who responded with anger to the attack on their community. In total, three European men were killed and two seriously injured by the rebels, whilst in retaliation thirty-six convicted rebels were executed by hanging or firing squad, with hundreds of others sentenced to flogging or terms of imprisonment.26 In an official gazette, Chief Secretary Duff conveyed London’s ‘hearty congratulations upon the successful manner in which the recent rising instigated by John Chilembwe has been dealt with’, amidst the

23. Gendry, ‘“Seule une répression sévère”’, 12–13. 24. Hynd, ‘Law, Violence and Penal Reform’. 25. See George Simeon Mwase, Strike a Blow and Die: The Classic Story of the Chilembwe Rising, ed. Robert I. Rotberg (London: Heinemann Educational, 1975); D. D. Phiri, Let Us Die for Africa: An African Perspective on the Life and Death of John Chilembwe of Nyasaland/ Malawi (Blantyre: Central Africana, 1999); John McCracken, ed., Voices from the Chilembwe Rising: Witness Testimonies made to the Nyasaland Rising Commission of Inquiry, 1915 (Oxford: Oxford University Press, 2015). 26. Phiri, Let Us Die for Africa, 71–4.

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wider arena of war.27 A fire in the Zomba Secretariat building in 1919 destroyed some of the records relating to the uprising and early colonial governance. The impression given from the remaining archival record, however, is of a colonial state scrambling to regain control, and deploying exceptional levels and forms of violence under martial law to achieve this. With military forces deployed to combat and eradicate the rebels, ‘retribution was left to local volunteers, and was not slow in being exacted. Churches were blown up, and there were a lot of guilty natives hanged, and probably some innocent ones shot in pursuit’.28 There was a large-scale burning of villagers’ huts, firearms were confiscated and headmen instructed on the need for implicit obedience to British orders. Collective fines of four shillings per adult male head were imposed on Chiradzulu, Zomba, Mulanje and Ntcheu, partly in punishment, partly to indemnify those whose property had been destroyed by the rebels.29 Anyone suspected of involvement – men, women, children or European missionaries – was taken to Zomba Central Prison. Phiri recounts witness memories of women being released having seen ‘their husbands led to the scaffold and dying bravely, singing hymns as they climbed’.30 Chilembwe himself was found praying and shot dead near the border with Mozambique, his body brought back to Mulanje and buried in an unmarked grave to avoid becoming a martyr’s shrine.31 According to Governor George Smith, ‘large numbers of rebels in arms were captured and some four hundred dealt with by the Courts. The lesson had necessarily to be a severe one. Apart from several taken “in flagrante delicto” and shot on the spot, capital sentences were passed on forty-six of the ringleaders, of whom thirty-six were publicly hanged’.32 Some purported ringleaders were hanged along the main Mlanje-Mikalongwe road near the Magomero Estate where Europeans had been killed; others were publicly hanged in Blantyre or shot after summary trials during military operations.33 The 1914–15 murder registers record that fifteen men were convicted of high treason and thirty-four of murder and high treason, of whom twenty-nine were executed. Those whose convictions for murder and high treason were commuted by the governor mostly received sentences of between five and ten years’ imprisonment with hard labour plus between twelve and twenty-four lashes to intensify the punishment, which was the only time this additional penalty was applied in relation to capital sentences in Nyasaland. Four men had their sentences commuted to life imprisonment, but for varying reasons. Wallis Kampingo had his death sentence commuted to life 27. Nyasaland Protectorate, The Nyasaland Government Gazette, No. 31 of 1915, 27. 28. Belcher, ‘Reminiscences’, 243. 29. Duff to Resident, Blantyre, 12 February 1915; Duff to Resident Southern Province, 8 June 1915, NAM NSB 1/2/1. 30. Phiri, Let Us Die for Africa, 89. 31. Ibid., 87. 32. George Smith, ‘The Empire at War’, NAM S1/946/19, 8. 33. Ibid.; Phiri, Let Us Die for Africa, 86–7.

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for helping to secure the conviction of others, whilst the award of mercy to Jim Timson, whose sentence was commuted to ten year’s imprisonment, was noted to be on the grounds of his youth and because of the humanity he showed to women and children during the Bruce estate attack.34 The combination of military repression, extra-judicial violence and exemplary judicial penalties – including the high-profile public executions – quickly restored government control.35 Here the death penalty formed the apex of colonial counterinsurgency violence, as well as providing it with a juridical gloss, as evidenced by the use of summary trials followed quickly by death by firing squad. With the uprising quickly quashed, the primary function of these executions was not just deterrence but also revenge for attacks against both settler bodies and colonial control, serving to assuage settler fears and anger.36 The revenge was in part tempered by mercy to give the impression of rational didacticism and proportionality, but this was a façade belied by the broader explosion of colonial violence. The very exceptionality of penal excess here, rather than abrogating the rule of law which the British considered integral to their colonial legitimacy, in fact served to reestablish its boundaries.37 The Chilembwe hangings stand as exceptions within the broader history of capital punishment in Nyasaland: only seven years later Governor Smith and his chief justice were demanding that London allow them to scrap the mandatory death penalty for murder as mercy rates were so high and officials held serious concerns about whether the death penalty was a suitable punishment for Africans. Although this request did not explicitly reference the Chilembwe executions, and may have been linked to post-war personnel changes, it highlights clear shifts in both policy and sentiment around the death penalty’s role in state authority outside of war or emergency contexts.38

Threats to white bodies and colonial control: The limits of capital punishment and threats to the colonial body politic During the pax colonia of the interwar years, the primary focus of the death penalty shifted to managing intra-African violence, as Chapters 3 and 4 have shown. However, capital punishment’s role within colonial strategies of violence faced multiple audiences and could be as much about managing the fears of the colonizer as it was about punishing the crimes of the colonized. In settler colonies, 34. Wallis Kampingo CC51H/1914–15, Jim Timson CC66H/1914–15, Nyasaland Protectorate, Murder Registers for the Year 1914–15, NAM. 35. Stacey Hynd, ‘Decorum or Deterrence: The Politics of Execution in Malawi, 1915–66’, Cultural and Social History 5, no. 4 (2008): 437–48. 36. See George Smith, ‘The Empire at War’, NAM S1/946/19. 37. Agamben, Homo Sacer, 19; see also Hay, ‘Property, Authority and the Criminal Law’. 38. Local Legislation to Obviate the Necessity of Passing Sentence of Death, NAM S1/42/22.

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inter-racial attacks led white settlers to demand the refocusing of the death penalty to protecting their communities. The murder of Europeans by Africans was a topic of particular settler anxiety; Africans accused of killing a European were frequently, but not always, convicted of murder and executed, whilst Europeans accused of killing Africans almost always received judicial leniency, particularly with jury trials under the Indian Penal Code in Kenya.39 The only extension of capital powers to additional, and non-lethal, offences outside of war or states of emergency came in response to a threat to settlers that was often more perceived than actual: that of the rape and sexual assault of white females by African males. Although further comparative research is required to substantiate such an argument, it is worth considering that capital punishment held a particular modality of defending and revenging violations of settler bodies within the broader eliminatory logics of settler colonialism.40 Following imperial precedents, rape became a discretionary capital crime in response to the moral panics surrounding ‘Black Peril’ outrages and settler fears about the sexual assault of European women by African men in Natal from 1902, Rhodesia in 1903, Nyasaland in 1911, the High Commission Territories and lastly in Kenya by 1926.41 Moral panics serve to reassert the dominance of an established value system at a time of perceived anxiety and crisis, with deviant ‘Others’ – be they African ‘rapists’ or ‘Mau Mau terrorists’ – providing a necessary external threat.42 As moral panics, ‘Black Peril’ scares were linked to concerns about sexual morality, ‘white purity’ and the ‘polluting influence of black sexuality’, but also more broadly to the socio-economic and political tensions within settler societies in a state of flux. Moral panics often became the arena through which debates on labour control, legal systems and the foundation of the colonial order were expressed.43 In Southern Rhodesia, at least twenty men were hanged for ‘Black Peril’ crimes between 1903 and 1933, with over two hundred others imprisoned and flogged, mainly before 1912, with the last man hanged for rape in 1935 for the assault of a European teacher.44 Contrastingly, it appears from the existing records that no one was ever executed for rape in Nyasaland or the High Commission Territories, where the measure served as symbolic legislation, being imposed following the South African and Rhodesian example. 39. Wiener, An Empire on Trial, 220. 40. On colonial punishment and settler colonialism, see Annie Pfingst and Wangui Kimari, ‘Carcerality and the Legacies of Settler Colonial Punishment in Nairobi’, Punishment & Society 23, no. 5 (2021): 679–722. 41. See Norman Etherington, ‘Natal’s Black Rape Scare of the 1870’s’, Journal of Southern African Studies 15, no. 1 (1988): 36–53; McCulloch, ‘Black Peril’; Turrell, White Mercy, 52–60, 82–7, 111–15; Colony and Protectorate of Kenya, The Official Gazette, 28 June 1926, 688; Penal Code (Laws of Nyasaland) 1929, s. 170, Criminal Procedure Code 1929, s.316–20; Capital Punishment for Rape, TNA CO 859/636. 42. Kenneth Thompson, Moral Panics (London: Routledge, 1998). 43. Anderson, ‘Sexual Threat and Settler Society’, 48. 44. McCulloch, ‘Black Peril’, 27, 188–90.

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Black Peril scares in Kenya focused more on the sexual assault of the innocent and the helpless – children and the elderly – than on adult white women.45 The death penalty was introduced for rape in 1926 in the aftermath of the ‘Kijabe Outrage’, which centred on the rape of an elderly settler farmer, Julia Ulyate, by Gathi wa Ribiro.46 This incident fed into wider concerns among Kenyan settlers about African criminality and the problems of justice. The East African Standard linked the Kijabe Outrage with ‘an outbreak of native indiscipline’. According to many Europeans in Kenya, Africans were incapable of understanding civilized British justice, and needed instead a form of summary, pragmatic justice: ‘The law is hedged around with convictions of civilization not always suitable to primitive peoples and there are circumstances in which justice must be freed from the trappings with which it is invested in civilized communities and in a country like Kenya made manifest in all its stark and crude force and righteousness as a duty to humanity.’ Settler opinion asserted that severe penalties were needed to protect white women. Flogging and imprisonment were regarded as insufficiently deterrent, so calls were mooted to extend the provision of the death penalty to rape convictions.47 The death penalty was introduced for rape in Kenya in order to placate both settler and administrative factions and prevent lynchings, whilst protecting the interests of Governor Grigg and his government in Nairobi. The problem was that whilst settlers called explicitly for the protection of white women against the ‘Black Peril’, colonial justice was predicated on ‘equality before the law for all races’. To manage this tension between colonial and Kenyan conceptions of justice, Grigg contradictiously asserted that ‘whatever be the race of the criminal, and whatever the race of the victim, the penalty will be the same’, whilst informing settlers and Africans that the measure was explicitly intended to curb African-onEuropean sexual assaults.48 Capital punishment’s status as a racialized, political penalty for rape was reconfirmed by the manner in which field officers affected its implementation, by not applying the legislation in cases of intra-African rape.49 Rape remained a capital crime in Kenya until 1955, but was very rarely prosecuted as a capital offence, even in cases involving inter-racial rape due to the contentious nature of this extended penalty.50 Overall, it appears that only three men  – Nyaduongo son of (s/o) Owori, Mwangi s/o Mikora and Kirongothi s/o Nguro – were executed for rape in Kenya, the former in 1928, and the latter men for the rape of the elderly Mrs Gertrude Slade in Fort Hall, 1949.51 45. Anderson, ‘Sexual Threat and Settler Society’. This included Kenyan Indian girls. 46. Rape Supreme Court [SC] CC 60/26 R. v. Giathi s/o Robero, KNA AG/52/393. 47. Ibid., East African Standard, ‘The Kijabe Outrage’, 21 May 1926; Death Penalty for Rape (Criminal Amendment Order 15/26), KNA PC/NZA/3/17/18/2. 48. Death Penalty for Rape, KNA PC/NZA/3/17/18/2. 49. Native Offences against European Women Criminal Law Ordinance, TNA CO 533/612. 50. Read, ‘Kenya, Tanzania and Uganda’, 124. 51. Kenya Colony, Blue Book 1928, Annual Return of Capital Sentences; Mwangi s/o Mukorora & Kirongothi s/o Nguro CC46/50, KNA MLA/1/367.

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Whilst both Nyasaland and Kenya saw the extension of the death penalty to tackle the ‘exceptional’ crime of inter-racial rape, there was no such extension in the Gold Coast. The Gold Coast was not a settler colony and whilst there was a European administrative and business community, these were not largescale landowners as in Kenya or Nyasaland. This, plus a long history of interracial marriage and the emergence of a mixed-race community among coastal communities from the eighteenth century, meant that, whilst racial discrimination did increase in the early twentieth century, inter-racial dynamics were not as fraught as elsewhere and so there were fewer colonial concerns about attacks on white bodies.52 In the late colonial era, fears shifted from a focus on the violation of white bodies to the disruption of the colonial body politic itself as African nationalism and anti-colonial agitation spread. The legal scholar Aimé Muyokobe Karimunda has argued in his work on the death penalty in Africa that colonial courts in the Gold Coast demonstrated little inclination towards death sentences and that capital punishment lay dormant in the statutes until the 1950s. He argues that ‘from 1948, criminal law and its punishments (mainly the death penalty) played a huge role in the fight to quell social and political unrest in Ghana’ in the run up to independence in 1957. Karimunda states that a rise in capital cases was a result of ‘the use of capital punishment against political agitators to prevent them spreading the ideology of liberation and contaminating the populace’.53 As previous chapters have shown, capital punishment was routinely enacted in the Gold Coast prior to the 1950s. The number of murder convictions did rise slightly in the post-1948 era, but this was in line with a general increase in crime and convictions against a backdrop of an increasing population. Between 1948 and the end of 1956, annual reports record 103 executions being carried out from 199 death sentences, or 52 per cent, with the annual rate of execution fluctuating from 20 to 81 percentage.54 This was actually a lower level of execution than the interwar years. The available CSO 15/3 murder files stop before 1950s, and whilst it is impossible to be definitive about the reasoning behind these individual executions, the available archives do not demonstrate that these hangings were part of a policy to use the death penalty to combat political agitation and anticolonial ideology in the Gold Coast. Two states of emergency were declared in the Gold Coast in 1948 and 1950 in response to unrest but these were more about the penal and ‘political management’ of nationalism rather than its violent defeat: both were shortlived and neither involved an extension of the death penalty or emergency

52. See Carina E. Ray, Crossing the Color Line: Race, Sex and the Contested Politics of Colonialism in Ghana (Athens, OH: Ohio University Press, 2015). 53. Karimunda, The Death Penalty in Africa, 106–8. 54. There is a sharp increase in the 1955–6 figures, but this is because the data covers nineteen rather than twelve months.

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executions.55 Neither episode of violence involved targeted anti-colonial murders or widespread armed rebellion, and the responses to both focused on combating sedition and rioting, which had long been a serious concern for colonial law and order in the Gold Coast.56 Reflecting earlier ad hominem detentions during the process of colonization, there was instead a strategic use of political detention against known and suspected anti-colonial activists and politicians, including Kwame Nkrumah, and prisons became massively overcrowded and increasingly emerged as sites of nationalist agitation.57 Even where riots  – stemming from local socio-political tensions as well as anti-colonial protests  – resulted in multiple homicides, it had proven very difficult to secure witnesses and prosecute people for murder, and so officials shifted to using anti-rioting ordinances that banned gun possession, and imposed large fines, financial bonds or sentences of imprisonment to curtail such unrest.58 Outside of the state of emergency itself, in 1950 Police Commissioner Collens noted that the maximum penalty for rioting was life imprisonment, with offenders being sentenced to life even in cases where riots had resulted in multiple homicides.59 In the face of mounting social and nationalist unrest, it seems that authorities in the Gold Coast were aware of the limitations of capital punishment as a penal weapon in the colonial arsenal and were hesitant to reach for it.60

Extending capital sentencing in colonial states of emergency: The Kenyan emergency and beyond Late colonial penality was marked by persistent tensions between desires for punishment, deterrence and reform; between claims to the civilizing value of the rule of law and a continued belief in the necessity of violence in controlling colonized populations. By the 1950s, changing sensibilities, marked by the rise of humanitarianism and anti-colonial sentiment, had an undeniable impact on the 55. See Frank Furedi, ‘Creating a Breathing Space: The Political Management of Colonial Emergencies’, Journal of Imperial and Commonwealth History 21, no. 3 (1993): 89–106; Colonial Office, Report of the Commission of Enquiry into Disturbances in the Gold Coast 1948 (London: HMSO, 1948) [Hereafter Watson Commission]; Gold Coast, The Emergency (General) Regulations, 1948. 56. See for example Register of Riots 1884–1924, 29, PRAAD ADM 11/1/1753; Gold Coast, Annual Reports of the Police, especially for 1914, 1915, 1936–7. 57. Gold Coast, Report of the Committee on Prisons; Nkrumah, The Autobiography, 126–36. 58. See Jeffreys, ‘War People’, 235–42. 59. Gold Coast, Annual Police Report 1950, 19. 60. This may also have been a response to the political scandal surrounding the capital conviction and threatened executions of eight men of royal blood in the Kyebi murder case in 1944–7, discussed in Chapter 6.

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use of capital punishment. However, metropolitan moves towards abolitionism coincided with a rise in anti-colonial violence that drove colonial governments to resist metropolitan pressure to restrict their use of the extreme penalty of the law.61 So when violent, large-scale, anti-colonial uprisings emerged during the decolonization era, the use of capital punishment became a climacteric but contested aspect of British counter-insurgency tactics, and nowhere was this more apparent in Kenya. Kenya’s history is indelibly marked by the state of emergency that was imposed to combat the Mau Mau uprising between 1952 and 1960. The Kenyan Emergency was fought against what the British referred to as the ‘Mau Mau’ rebellion, primarily among the Gikuyu, one of Kenya’s major ethnic groups. Although the colonial label ‘Mau Mau’ has been widely adopted in Kenya and in academic literatures, the insurgents most commonly referred to themselves as the Kenya Land and Freedom Army (KLFA). This was not a single, centrally organized armed group, but rather a wide-ranging movement encompassing both rural guerrilla fighters and urban gangs; the conflict was both an anti-colonial liberation struggle to reclaim land from white settlers and break colonial control, and a civil struggle within Gikuyu communities themselves.62 In the face of such opposition, with attacks on both white settlers and loyalist communities, the British resorted to brutal violence and mass punishment, with over eighty thousand Kenyans being detained, upwards of 1 million forced into strategic resettlement sites, and some 11,000 killed in the fighting.63 The widespread use of the death penalty stands in infamy as the apex of this most extreme explosion of British colonial violence and emergency penality in the twentieth century. This was where colonialism truly became a ‘thanatocracy’ that maintained its rule through the frequent resort to execution.64 In total, records suggest that 1,574 Gikuyu were sentenced to death for emergency offences between October 1952 and March 1958, and of these around 1,090 went to their deaths on the gallows.65 These executions were both extreme and exceptional within the genealogy of the death penalty in Kenya; some 622 men were hanged in 1954 alone, compared to 517 non-emergency executions between 1908 and 1953 when capital punishment’s use was constrained by the operation of mercy and colonial legal pragmatism. The Emergency hangings therefore need to be understood as a product of wider colonial penality and histories of colonial 61. See Abolition of Death Penalty, TNA, CO 1032/467; Abolition in UK and Future Policy in Colonial Territories, TNA CO 859/635. 62. See John Lonsdale and E. S. Odhiambo, eds., Mau Mau and Nationhood: Arms, Authority and Narration (Oxford: James Currey, 2003). 63. See Anderson, Histories of the Hanged; Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (New York: Henry Holt, 2005); Daniel Branch, Defeating Mau Mau, Creating Kenya: Counterinsurgency, Civil War, and Decolonization (Cambridge: Cambridge University Press, 2009). 64. Linebaugh, The London Hanged, 50. 65. Anderson, Histories of the Hanged, 7, 62, 70–2, 154.

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violence. David Anderson’s Histories of the Hanged provides the best account of these capital trials and the executed men, but this chapter expands from his work to contextualize the role and functioning of the death penalty as a tool of colonial counter-insurgency violence. Whilst earlier rebellions had been fought through martial law, after 1939 political expediency led Britain to shift to using emergency regulations to conduct its counter-insurgency campaigns, allowing colonies to maintain that these campaigns were police actions rather than wars.66 When enacted in a colony, emergency regulations created a heightened form of ‘lawfare’ that supplanted criminal law, allowing individual freedoms to be heavily curtailed and enforcing severe penalties on any proven or suspected collusion with rebel forces.67 The normative forms of substantive ‘rule of law’ or administrative justice that shaped colonial criminal justice gave way to a ‘rule by law’ to re-establish political control.68 As Martin Thomas argues, this ‘rule by law’ created a permissive security environment in which colonial ‘dirty war’ violence flourished.69 The extension of capital sentencing to encompass a wide scope of insurgent activities became a central feature of British emergency regulations. In peacetime, colonies only used capital punishment for the crime of murder, and very occasionally rape, as discussed above. However, in the 1940–50s, across Palestine, Malaya, Kenya and Cyprus, emergency regulations broadened its application to encompass various firearms and bombing offences, carrying and possessing ammunition or incendiary devices, and consorting with terrorists or furthering terrorism.70 Additional local variations in regulations reflected the specific socio-military dynamics of insurgencies: in Kenya, taking or giving a Mau Mau oath also became a capital offence. The Kenyan State of Emergency was by far the most deadly use of capital punishment in the late colonial era in terms of total deaths. Using Emergency capital sentence and assize returns, Anderson cites 1,090 executions between 1952 and 1958. Returns seemingly only started in 1954. Kenyan prison annual reports from 1953–58 list 1,070 executions for Emergency offences, with the 1952 report listing twenty executions not disaggregating Emergency hangings. As the Emergency started in October, many of the 1952 executions were for nonEmergency convictions. Case files show the first Emergency-related hangings

66. David French, The British Way in Counter-Insurgency, 1945–67 (Oxford: Oxford University Press, 2011), 103. 67. Comaroff, ‘Colonialism, Culture and the Law’, 306. 68. Lobban, Imperial Incarceration, 33. 69. Thomas, ‘Violence, Insurgency and the End of Empire’, 505–6. 70. For a comparative overview, see Stacey Hynd, ‘“More an Inspiration than a Deterrent”? Capital Punishment and British Colonial Counterinsurgency, c. 1916–73’, in Oxford Handbook of Late Colonial Insurgencies and Counter-Insurgencies, ed. Martin Thomas and Gareth Curless (Oxford: Oxford University Press, 2023), 215–33.

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occurring on 10 December 1952, with four men executed, suggesting there were at least 1074 Emergency hangings.71 Looking comparatively, in Malaya, around 226 people were executed for emergency offences between 1948 and 1960, from over 1,000 captured guerrillas.72 Conversely, during the Palestinian civil war in 1946–8 only seven men were hanged and in Cyprus between 1955 and 1959 thirty-eight men were condemned and nine executed during the Emergency.73 In the French empire, during the Algerian War of Independence between 198 and 222 people were guillotined from around 1,500 death sentences.74 What accounts for these differences in the rate and extent of the death penalty? Why was Kenya so extreme and exceptional in its use of hangings to combat anti-colonial insurgency? Whilst demographics and conflict duration obviously played a role, capital punishment was ultimately a political penalty shaped by varying socio-political climates, military contexts and legal frameworks, and its usage was determined by tensions between, and within, colonial administrations and security forces, and legal personnel.75 The use of judicial execution was but one facet of the ‘incumbent violence’ of the Kenyan settler colonial state that routinely employed high levels of both penal and structural violence, through the extensive use of corporal punishment, prisons, pass systems and land dispossessions.76 Prior to the Emergency, Kenya’s use of capital punishment had not been exceptional in comparison to other British African colonies, with neighbouring Tanganyika routinely executing more people. To use an Eliasian framework, the death penalty in interwar Kenya was a didactic tool for managing inter-personal violence and maintaining order as part of the ‘civilizing process’ that colonial rule saw itself to be. The state of emergency however fuelled a ‘decivilizing spurt’ of violence when law and order, and settler bodies, were deemed to be under threat, harkening back to earlier frontier forms of justice when the death penalty was a key tool in 71. Punishment in Kenya during Emergency, TNA CO 822/1256; Emergency Assize Returns, KNA DC KSM/1/15/122; Anderson, Histories of the Hanged, 291; Muiga s/o Kirike and Njau s/o Mwihia KNA MLA/1/445; Wainaina s/o Kibigi and Gitau s/o Runana KNA MLA/1/446. A key file to confirm figures was not locatable in the Nairobi archives. 72. Anthony Short, The Communist Insurrection in Malaya, 1948–60 (London: Frederick Muller, 1975), 140. 73. Cyprus: Capital Punishment  – Persons under Sentence of Death, TNA FCO 141/3159; Nicholas Bethell, The Palestine Triangle: The Struggle between the British, the Jews and the Arabs, 1935–48 (London: André Deutsch, 1978), 290. 74. François Malye and Philippe Oudart, ‘Les Guillotinés de Mitterand’, Le Point, 1511, 31 August 2001; Sylvie Thénault, Une drôle de justice: les magistrats dans la guerre d’Algérie (Paris: La Découverte, 2004). 75. Mark Finnane makes a similar argument about how combined colonial and wartime contexts drove Australian use of the death penalty in Papua New Guinea in c.1920–45. See ‘“Upholding the Cause of Civilization”: The Australian Death Penalty in War and Colonialism’, International Journal for Crime, Justice and Social Democracy 11, no. 3 (2022): 23–32. 76. Berman, ‘Bureaucracy and Incumbent Violence’.

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combating political threats.77 The violence and numerous executions deployed against the KLFA were therefore both exceptional and normative within colonial strategies of violence: when their hegemony and order were threatened, colonial states responded with the use of extreme force, which was an extension of the routinized violence that shaped its normal governance strategies. This extension however was not a mere linear increase or intensification; it was also a reworking of the aim and targeting of the death penalty. Kenya’s settlers were vociferous in their demands for the execution of convicted ‘terrorists’. One settler, a former British police officer, recalled how ‘[s]ome gang leaders who were captured by the settlers were hanged openly on Nyeri golf course. Gallows were erected in some of the Kikuyu villages, and captured KLFA fighters were hanged in their own villages to “teach the others a lesson”!’78 In the aftermath of the murder of the Ruck family in January 1953, settler crowds mobbed Government House in Nairobi protesting about Governor Baring’s handling of the situation. Settlers demanded: ‘We want to see men convicted of foul murders hanged publicly, near the spot where they committed the crime, within a short time.’79 Officials reported that the leader of the European members of the Legislative Council, Michael Blundell, thought ‘it would be better to hang an innocent African occasionally than to tolerate protracted legal proceedings’.80 David Anderson writes that ‘if Mau Mau had murdered whites, then the settlers wanted to see the culprits hang. The mob gathered on Baring’s lawn made this clear, belligerently threatening to lynch Mau Mau suspects themselves if the government had no stomach for the job’.81 Contemporary news reports highlighted how [f]ar from being concerned about a possible disregard of human rights, Europeans here are apt to argue that British notions of justice are inapplicable … “It is stark nonsense … to treat these rebels as legitimate belligerents, and to apply to them all the subtleties and intricacies of British law”. Since other writers urge public hangings and the shooting within twenty-four hours of all convicted of capital offences … the atmosphere is not exactly one in which any idea of clemency is likely to burgeon, to say nothing of strict adherence to legal forms.82

Despite this, Governor Baring maintained in his communications with London that ‘the main pressure for executions comes from Kikuyu and not from Europeans’.83 Settler pressure shaped the decision-making of both Governor Baring and General Erskine, with Baring persuading London to accept significant legal change 77. See Elias, The Civilizing Process, 273–314. 78. Bob Litchfield, ‘Life in Kenya with the Mau Mau’, Police Journal 63, no. 2 (1990): 132. 79. ‘Settlers demand “A Templer”’, The Observer, 5 April 1953, 1. 80. Lloyd to Rogers, 31 March 1953, The Setting up of Special Courts to deal with Trials during the Kenya Emergency, TNA C0822/734. 81. Anderson, Histories of the Hanged, 96. 82. Cyril Dunn, ‘Justice in Kenya’, The Observer, 12 December 1954, 1. 83. Baring to Lyttelton, telegram, 10 June 1953, The Lari Trials, TNA CO 822/702.

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to avoid threatened mob rule, lynching and the collapse of the legal system.84 Ian Brown argues that when the colonial state in Burma (Myanmar) deployed capital punishment to punish rebels during the 1930–2 Saya San Rebellion, hanging some 126 rebels, legal records indicate that there was a ‘considerable substantive rule of law at work’ and ‘within that emergency regime, the commitment of the colonial state to legal process was broadly maintained, and indeed, by the institution of an extended appeal process, strengthened’.85 This was not the case in Kenya, where the rule of law made way for the rule by law, and where substantive law was sacrificed to facilitate the maintenance of order.86 Widespread legal reforms were introduced under Emergency Regulations acts which widened the scope of capital charges to include ‘terrorist offences’ such as the possession of firearms, oathing or consorting with terrorists. Whilst legal officers, including Attorney-General Whyatt, initially resisted the extension of capital powers, fearing an abrogation of the rule of law, in April 1953 special emergency assize courts were instituted that held capital powers with relaxed laws of evidence and procedure. These were staffed by district magistrates after many senior judges stepped down or took promotion elsewhere in protest.87 The British were determined that the accused were not to be treated as political prisoners but as criminals. The rendering of KLFA, or Mau Mau, fighters as deviant, criminal ‘others’ in colonial and metropolitan discourse served to divert attention away from the crisis of colonialism and Gikuyu society which had generated the movement. Courtrooms were key battlefields in late colonial counterinsurgency, but the battle skewed more heavily in favour of the state in Kenya than elsewhere. Whilst in Cyprus, Greek-Cypriot lawyers and judges fought to preserve a substantive rule of law, in Kenya the special courts and a lack of legal representation contributed to high conviction rates, with only one African lawyer in the country and many Emergency capital cases taken on poverty briefs by Indian lawyers.88 Another factor shaping counter-insurgency capital punishment was the prerogative of mercy. As previous chapters have shown, colonial states routinely used mercy to temper the death penalty as a selective instrument of racialized justice.89 Incomplete evidence on Palestine and Malaya hampers comparative analysis of mercy rates, but in Ireland following the Easter Rising in 1916, only 16 per cent of the ninety death sentences handed down resulted in execution.90 During the Palestinian civil war in 1946–8 25 per cent were hanged – seven from 84. Ibid., 113, 151–2. 85. Brown, ‘Rebels, the Death Penalty and Legal Process in Late Colonial Burma’, 832. 86. Lobban, Imperial Incarceration, 17. 87. Setting up of Special Courts, TNA CO 822/734; Proposals to Deal with Disturbances Arising from the Activities of Mau Mau Secret Society Kenya, TNA CO 822/437–41. 88. Drohan, Brutality in an Age of Human Rights, 16–46; Anderson, Histories of the Hanged, 106. 89. Hynd, ‘Murder and Mercy’, 86. 90. Charles Townsend, Political Violence in Ireland: Government and Resistance since 1848 (Oxford: Clarendon, 1983), 308.

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Table II  Capital sentences and executions in Emergency-Era Kenya, 1952–58. Year

Executions

1952 1953 1954 1955 1956 1957 1958 Total

20 164 622 239 99 20 19 1183

Emergency offences

Non-Emergency offences

150 605 221 72 14 8 1070

14 17 9 27 6 11 84

Commutations 12 27 118 125 27 19 14 342

Cases otherwise disposed of

68 29 18 32 2 149

Source: Colony and Protectorate of Kenya, Treatment of Offenders Annual Reports, 1952–58. Categories of nonEmergency offences were introduced from 1953.

some twenty-eight death sentences – and similarly in Cyprus nine of thirty-eight death sentences were confirmed, or 24 per cent of sentences  – all bar one for murder or attempted murder. Kenya displayed by far the lowest rates of mercy, with 69 per cent of death sentences ending on the gallows. Between October 1952 and March 1958, figures suggest that from some 3,000 people tried in total, 1,574 men were sentenced to death, with around 1,074–90 executions and 240 sentences commuted.91 One key difference was that Kenyan authorities proved more willing to enforce capital sentences for crimes other than murder. Of the c. 1,090 Gikuyu that records suggest were hanged during the Emergency, 346 were convicted for murder. 744 others were hanged for crimes that were only capital offences under Emergency regulations, with 472 executed for being in possession of arms or ammunition, sixty-two for administration of oaths and 210 for consorting with terrorists.92 Mercy decisions were shaped by pre-existing socio-political and cultural dynamics as well as perceptions of insurgents’ crimes.93 Racial and ethnic prejudice strongly influenced commutation figures: the lowest rates of execution occurred in white/European Irish and Greek-Cypriot communities, and highest for Black Africans convicted during the Kenyan Emergency.94 Notably, the highest number of capital convictions and executions in late colonial counter-insurgencies occurred in two settler colonies, Kenya and Algeria. This was likely linked to the intensity and duration of these conflicts and the racial dynamics that underpinned them rather than clear evidence that settler colonialism operated a unique, and especially extreme, form of capital punishment in states of emergency, although further comparative research is required to substantiate this point. 91. See Capital Punishment in Kenya during Emergency, TNA CO 822/1256; Kenya, Treatment of Offenders Reports, 1952–8. 92. Anderson, Histories of the Hanged, 291. 93. Norms against executing youths and women held during the Emergency. 94. Adjusted for population, rates of execution during the 1936–9 Arab Revolt in Palestine were similar to those in Kenya, with 108–12 Arabs being hanged. See Matthew Hughes, Britain’s Pacification of Palestine: The British Army, the Colonial State and the Arab Revolt, 1936–39 (Cambridge: Cambridge University Press, 2019), 97–9.

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In Kenya, the Emergency also unsurprisingly had a knock-on effect on nonEmergency capital punishment, with fears about the spread of violence and disorder prompting an increase in local and official support for executions. During the Emergency, 247 people were sentenced to death for murder in Kenyan criminal courts, of whom 106 had their sentences commuted. In comparison, only twenty-seven of 346 persons convicted of murder for Emergency offences were reprieved.95 Prison records suggest that eighty-four people were executed for non-Emergency offences between 1953 and 1958.96 At the start of the Emergency, there was a distinct increase in penal severity. From 49 per cent of cases being commuted in 1950, only 17 per cent were granted reprieves in 1952. During the latter stages of the Emergency however, opinion shifted to regarding ordinary murders as less reprehensible and dangerous, and therefore more befitting of mercy.97 As the district commissioner of Kericho wrote of one patricide case, ‘the offence was committed in anger as opposed to the cold-blooded murders of Mau Mau and for this reason only perhaps His Excellency might consider the possibility of Life Imprisonment’.98 After 1954, when confidence grew that the revolt would be defeated, and increasing numbers of people convicted under the State of Emergency regulations were having their death sentences commuted, it became difficult to insist upon execution in cases of ordinary murder: ‘At a time when so many are given amnesty, I do not think it right that Malalo should hang’, wrote the district commissioner of Voi of one Teita man convicted of murdering his uncle.99 Capital sentencing and executions had multiple functions within colonial counter-insurgency, from tactical to symbolic, because the death penalty had multiple audiences  – from insurgents to colonized communities, settlers and security forces, imperial authority and public/international opinion. However, those functions were contested, and the received meaning of executions sometimes differed from their intended meanings. At one level, the judicial legitimacy and routinization of state executions acted as a legal cover for the less restrained punishments employed to combat the KLFA, from torture and mass detention to extra-judicial killings. Executions here formed part of a discourse of social defence, designed to reinforce the boundaries of civilized society against those who sought to overturn them. Due process and the rule of law may have been dead on their feet, but the performative façade of British justice in the Emergency courts that handed down capital sentences remained an important symbolic legitimator of the Kenyan government’s response to the Emergency. On another

95. Disposal of Capital Cases since October 1952, Capital Punishment during Emergency, TNA CO 822/1256; Anderson, Histories of the Hanged, 291. 96. See Kenya, Treatment of Offenders Annual Reports, 1953–58. 97. Musonik arap Turgut & 3 Others CC153/52, KNA MLA/1/451. 98. DC Kericho to Colonial Secretary, 3 March 1953, Kibor arap Sang, CC228/52, KNA MLA/1/459. 99. Malalo s/o Kidochimo CC24/54, KNA MLA/1/1199.

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level, the death penalty was about judicially punishing individual insurgents for their crimes. Colonial capital punishment was as performative as it was punitive. Executed insurgents became synecdoches for colonial retribution, being sentenced and killed not simply for their crimes, but for their capacity to represent symbolically collective insurgent bodies and causes; images of accused ‘Mau Mau terrorists’ undergoing trial wearing numbers rather than being identified by name highlight this all too well. Whilst prominent guerrilla leader Dedan Kimathi has become iconic as a victim of the imperial gallows, the majority of the executed men were ordinary rank-and-file members of the KLFA rather than its leading political figures. This was another shift from earlier twentieth-century counterinsurgency, where rebel leaders had been key targets of judicial execution, from Rhodesia and Nyasaland to Burma. British officials remained adamant that ‘whilst it has been a frequent fate of nationalist leaders to be detained under Emergency Regulations … it has not been British practice to hang them or shoot them because of their politics’.100 One reason for this was that it was easier to threaten with death or hang rebel leaders who were not well-connected political leaders or even lawyers themselves, as were the ‘Big Six’ United Gold Coast Convention leaders, including J. B. Danquah, who were detained and internally exiled during the short-lived state of emergency declared in the Gold Coast after the 1948 Accra riots.101 Even in the Kenyan Emergency, officials arrested and convicted the Kenyan nationalists they suspected of masterminding the uprising, including the president of the Kenya African Union and future president of Kenya itself, Jomo Kenyatta, in a show trial for leading a proscribed society that was plotting the murder of settlers. Rather than facing the gallows, the ‘Kapenguria Six’ were sentenced to seven years imprisonment with hard labour and sent into effective internal exile in a prison in northern Kenya.102 Late colonial emergency executions often served as a form of vengeance rather than strict justice, particularly in cases where the accused was held to have targeted British personnel or prominent loyalists, and where death sentences were enforced for non-murder capital convictions. The ‘revenge and retribution’ that the Bushe Commission in 1934 had ordered ‘must go … if [Kenyans] are to advance in enlightenment and prosperity’ had re-emerged as the primary rationale for judicial killings.103 On a more pragmatic, tactical note, emergency regulations securitized capital punishment, co-opting the death penalty to serve military as well as political ends. A significant function of the death penalty in Kenya was to serve as an intelligence-gathering tool; harsh sentences were intended to convince insurgents to trade information for their lives, as occurred with Waruhiu Itote,

100. S. Cornelius to CO, 12 January 1965, Capital Punishment for Political Offences in Peace Time 1963–5, TNA CO 1032/482. 101. Watson Commission, 15–20. 102. See John Lonsdale, ‘Kenyatta’s Trials’. 103. Bushe Commission, 57, s. 162.

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known as General China, after his capture in 1954.104 The threat of the death penalty was also used as leverage to persuade insurgents to flip allegiance and join psychops counter gangs, and fake executions were apparently staged in detention camps to intimidate detainees.105 Death sentences were primarily deployed during the most intense period of the Emergency between April 1953 and December 1956. Of 3,000 suspected KLFA rebels or supporters tried on capital charges in Emergency assize courts during the Emergency, 2,609 were tried during that period.106 As Anderson outlines, Kenya’s hangman was at his busiest between April 1953 and June 1955, at the height of the military battle for dominance, with Nairobi Central Prison holding over 170 men on (a severely overcrowded) death row.107 After 1957, with the military battle won, hangings became more restricted and only murderers were executed. Strikingly, it was not just the British who used hangings for ‘revenge and retribution’: KLFA forest fighters themselves appropriated this colonial form of punishment for those who committed offences against discipline and internal regulations, threatening the movement. Alphonse Nganga, the self-styled ‘Chief Justice of Mau Mau’, was reported after his arrest to have admitted to ‘ordering the hanging of about a hundred Mau Mau for offences against the sect’.108 The most commonly cited justification for the death penalty during the Emergency was as a deterrent, to prevent further escalation of violence. This repeated emphasis on capital punishment’s deterrent function proved almost paradoxical, particularly as insurgent violence continued in the face of widespread executions in Kenya. Previous chapters have shown that during the interwar period officials in Kenya and other African colonies had stressed that capital punishment was in fact not an effective deterrent in a colonial context, because local populations held differing beliefs on death, hangings lacked cultural resonance within their societies, or because, due to commutation and prison hangings, communities did not believe that executions were actually carried out.109 And yet, as soon as colonial rule and settler bodies came under threat, there was a rapid, knee-jerk, insistence on the power of executions as a deterrent in colony after colony. Taking a Foucauldian perspective, the extension of the death penalty to emergency offences served a specific ‘juridico-political function’, acting as ‘a ceremonial by which a momentarily injured sovereignty is reconstituted’.110 Creating, and criminalizing, 104. Emergency Regulations, TNA CO 926/561; Drohan, Brutality in an Age of Human Rights, 34–5; Brian Simpson, Human Rights and the End of Empire, 876; Myles Osborne, ed., The Life and Times of General China: Mau Mau and the End of Empire in Kenya (Princeton, NJ: Markus Wiener Publishers, 2015). 105. Berman, Control and Crisis in Colonial Kenya, 374. 106. Anderson, Histories of the Hanged, 6. 107. Ibid., 291. 108. ‘Casualties in Kenya: Mau Mau Dead Total 7,811’, The Manchester Guardian, 29 January 1955, 1. Hanging was not a customary Gikuyu form of execution. 109. Hynd, ‘Murder and Mercy’, 95. 110. Foucault, Surveiller et punir, 48–9.

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insurgency as a capital offence was about order and the assertion of colonial control; it was a reassertion of the ritual legitimacy of a colonial state and its ‘sovereign right to kill and let live’.111 However, the death penalty was in some respects a sign of the weakness of colonial states and emergency regimes rather than their strength. As Wagner notes, exemplary violence revealed ‘a colonial order that was never sufficiently strong to do without exemplary punishment or demonstrative violence’, and executions in their excess highlight the loss of control inherent in colonial states of emergency.112 Overall, capital punishment was intended to function as a ‘civilized’ form of violence, a carefully targeted assertion of the rule of law, shoring up the juridical façade of colonial counter-insurgency and disguising the ‘savage’, unregulated violence of colonial dirty war. In practice however, the death penalty was also an intrinsically emotional, irrational punishment: violence is rarely either solely rational or irrational, and strategic forms of violence often rely on emotion to generate their impact.113 Colonial legal officials and British MPs both raised concerns that ‘white judges are emotionally involved in trials’, and that the ‘shocking blunders’ being made in cases like the Lari trials were not the ‘result of incompetence or inexperience’ but of ‘the influence of the atmosphere in Kenya today’ upon the ‘weaker brethren’ of the bench.114 The Kenyan Emergency executions were an emotive, irrational response of a political order under threat – a punishment geared at reassuring the settlers, the colonial state and Britain itself that order was not lost. Institutionalized violence in all its forms was viewed differently in the colonies from the metropole. In Kenya, there was more acceptance of direct, open violence, particularly during the Emergency when whites feared personal attack and a loss of control. British ‘civilization’ and rule was threatened, and violence was the response. Methods of execution are as revealing of the nature of colonial counter-insurgency and its internal power dynamics as the targeting of death sentences. Whilst executions themselves are discussed further in Chapter 7, it is worth noting here that the Emergency was marked by tensions between calls for public executions as displays of British power and justice, and the need to avoid creating martyrs from KLFA fighters or arousing international opprobrium through mass executions. Settlers called for the re-introduction of public executions, preferably immediately following trial and without right to appeal, so that Africans could witness British justice in action  – rather ironically considering settler denunciations of what they decried as the ‘impulsive savagery’ of ‘Mau Mau terrorists’.115 Prime Minister Winston Churchill however was determined to avoid this, telling Governor Lyttelton that mass executions were neither ‘necessary nor desirable’ and that ‘care should be 111. Michel Foucault, ‘Faire vivre et laisser mourir: la naissance du racisme’, Les Temps modernes (February 1991): 57. 112. Wagner, ‘“Calculated to Strike Terror”’, 216–18, 244. 113. See Durkheim, ‘Two Laws of Penal Evolution’. 114. Paget to Lyttelton, 8 June 1954; Sidney Abrahams, 22 February 1954, The Lari Trials, TNA CO 822/783. 115. See Robert Ruark, Something of Value (London: Corgi, [1955]1970), 42.

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taken to avoid the simultaneous execution of any large numbers of persons who might be sentenced to death by these courts’.116 Although mobile gallows were initially used to conduct some executions among communities  in Kenya, both colonial and metropolitan authorities proved staunchly resistant to the widespread use of public or mass executions.117 Executions therefore were normally conducted behind prison walls, according to established penal procedures. The concealment of executions within prisons raises questions about the scope of colonial power and the efficacy of the death penalty’s deterrent functioning. Far from imposing spectacles of colonial power, counter-insurgency executions became selectively publicized, semi-clandestine rituals. Whilst the gallows for the 1953 Lari massacre trials could be ominously viewed from the courthouse, and detainees at Thomson’s Fall were similarly in the shadows of a partially covered gallows, propaganda was otherwise restricted to publication of death notices and official witnesses to hangings. After early executions in Thomson’s Falls, Nyeri and Githunguri, hangings were centralized in Nairobi: the risks were seen as too great after condemned men overpowered warders when fighting against being hanged in Nyeri.118 Anderson notes that the Mau Mau hanged were, with a few exceptions like Dedan Kimathi, largely anonymous, buried in unmarked graves to avoid memorialization.119 Colonial states were not permitted to employ public executions, but such spectacular and didactic punishments would arguably have been less impactful within states of emergency where extensive and intensive use of other forms of exemplary, visible violence, such as detention camps, public beatings, torture and summary killings, was being routinely enacted. By 1957, captured KLFA fighters were being killed in the forest rather than arrested, which also lowered conviction rates.120 The use and enactment of the death penalty were determined in part in conjunction with wider repertoires of colonial violence, as well as socio-political climates. Kenya’s Emergency executions were a product of a particular historical juncture, between late colonial violence, decolonization, and the rise of human rights activism and abolitionism in Britain and globally. The majority of capital convictions and executions had already occurred in Kenya before 1956–7 when abolitionism gained significant ground in Britain and the 1957 Homicide Act limited the use of the death penalty by creating categories of non-capital murder.121 The Colonial Office accepted the arguments of colonial governments that British colonies should not abolish the death penalty or even adopt the Homicide Act

116. Minutes, TNA CO 822/702; Anderson, Histories of the Hanged, 154. 117. GOC East Africa to VAG, 31 October 1952, TNA WO 32/2062; Lari Massacre Trials, TNA CO 822/702; Anderson, Histories of the Hanged, 154. 118. See Wangombe s/o Mbage and Mutugi s/o Borote, KNA MLA/1/452. 119. New Regulations, TNA CO 822/734; Anderson, Histories of the Hanged, 155, 174, 342. 120. Anderson, Histories of the Hanged, 290. 121. Seal, Capital Punishment in Twentieth-Century Britain; Abolition and Future Policy in Colonial Territories, 1956–7, TNA CO 859/635.

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as rising violent crimes and anti-colonialism created a ‘necessity for stern action to protect against a loss of life among loyal civilians in times of unrest’, and restricting the extreme penalty of the law would be interpreted as an ‘invitation to murder’.122 The continued belief in the necessity of judicial killing in an African context limited official opposition to the hangings. More broadly, a lack of both domestic legal activism and international support for the KLFA allowed capital punishment in Kenya to run relatively unchecked, with public concern and rightsbased protests focusing on torture and detention instead, particularly after the Hola Camp massacre.123 Contrastingly, one major reason why rates of execution were lower in Algeria, with between 198 and 222 of over 1,500 death sentences being enforced between 1956 and 1962, was the National Liberation Front (FLN)’s success in leveraging international support and human rights activism to restrict the public, legal arm of French colonial violence.124 After 1957, the combination of increased metropolitan restrictions on the death penalty and growing public and political concern about counter-insurgent violence following scandals over the treatment of detainees in Kenya made colonial governments more wary in their use of extreme violence to tackle anticolonial unrest and therefore less likely to deploy capital punishment to this end. This became apparent in the 1959–60 Nyasaland State of Emergency, which was declared in the face of mounting unrest and rioting following the establishment of the Central African Federation that combined the government of Nyasaland with Northern and Southern Rhodesia.125 In terms of scale, focus and duration, the Nyasaland Emergency was a less intensely violent conflict than the Kenyan one, being primarily marked by the political imprisonment or detention of some 3,300 people and the establishment of a police state to re-impose colonial control.126 However, it is still striking that there was not a single capital sentence passed or judicial execution imposed as part of the Emergency, even in the face of colonial allegations of murder plots by Hastings Banda and the Nyasaland African Congress. The judicial and prisons reports show no jump in murder convictions or executions in the years around the Emergency. That a commission of inquiry into the Emergency declared that Nyasaland had in effect become a ‘police state’

122. R. Terrell to Colonial Office, 19 August 1966, Capital Punishment for Political Offences in Peace Time 1966, TNA CO 1032/512; Capital Punishment 1957–9, TNA CO 859/985–90. 123. Yolana Pringle, ‘Humanitarianism, Race and Denial: The International Committee of the Red Cross and Kenya’s Rebellion, 1952–60’, History Workshop Journal 84, no. 1 (2017): 89–107. 124. Fabian Klose, Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria, trans. Dona Geyer (Philadelphia: University of Pennsylvania Press, 2013), 105. 125. Kings M. Phiri, Malawi in Crisis: The 1959/60 Nyasaland State of Emergency and Its Legacy (Zomba: Kachere, 2012); McCracken, A History of Malawi, 354–65. 126. McCracken, ‘In the Shadow of Mau Mau’, 536.

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and recorded forty-seven instances of extra-judicial executions suggests that the deterrent and retributive functions of counter-insurgent violence were being otherwise fulfilled.127

Conclusion The death penalty played a significant role as a form of lawfare and punishment in strategies of colonial violence and counter-insurgency, functioning as both a didactic and repressive tool in the maintenance of law and order. Under martial law and states of emergency it became, more than ever, a political penalty. Executions formed part of a discourse of social defence, designed to buttress civilization against those beyond its confines. Due process and the rule of law may have been dead on their feet, but the performative façade of British justice remained an important symbolic legitimator of British colonial authorities’ responses to insurgency. Colonial states extended the death penalty in times of threat to combat not just treason but other insurgent offences that threatened colonial security, including oathing and possessing ammunition. Capital punishment was also exceptionally extended to cover feared, as well as actual, threats to settler bodies, as when rape was made a capital offence following ‘Black Peril’ inter-racial rape scares. Death sentences and executions were aimed at multiple, competing audiences and thus held manifold functions: from gathering intelligence to deterrence or revenge, from instilling fear in colonized populations to assuaging fears among settler populations, their use was both affective and rational. As the contrast between Kenya and Nyasaland, and the Gold Coast, shows, capital punishment was however only deployed as counter-insurgent form of lawfare in contexts where murders of colonizers and their state agents were occurring, where a loss of control fuelled colonial anxieties, and where anti-colonial forces lacked the political and legal means to wield the law as a defensive weapon against such exceptional state violence. Its use shifted over time as the contrast between the 1915 and 1959 emergencies in Nyasaland reveals. The Kenyan Emergency hangings proved to be both the most extreme and the last widespread use of the death penalty in a colonial counter-insurgency context. Colonial law was a double-edged sword, being both an oppressive instrument of state power and an avenue to challenge and limit that oppression, particularly once new human rights instruments were established and abolitionism gained ground in the metropole in the 1950s. British concern with reputation and moral criticism made rights-based activism and shaming increasingly effective in constraining the use of the death penalty. The threat of scandal from its use could outweigh the penal or political utility of executions, as the next chapter explores. 127. Great Britain, Report of the Nyasaland Commission of Inquiry (London: Government Printer, 1959), Cmnd 814. Later counter-insurgency campaigns in Aden and Northern Ireland also displayed this reticence to deploy capital punishment. See Hynd, ‘More an Inspiration than a Deterrent’.

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Chapter 6 S HO C K I N G C R I M E S A N D S C A N DA L O U S P U N I SH M E N T S : I M P E R IA L P O L I T IC S , H UM A N I TA R IA N S E N T I M E N T A N D T H E D E AT H P E NA LT Y

Perhaps Poole was a scapegoat for all the other crimes committed both by the individual and the State against the African in the past. He was obviously conditioned to the local idea that only a dead African is a good one … in my opinion it [capital punishment] is a horrible primitive messy outrageous business which we as civilised people should not tolerate in our midst any longer.1 – Extract from a letter sent to Secretary of State for the Colonies Iain MacLeod, protesting the hanging of Peter Poole, the first white man executed in Kenya for the murder of an African, 22 August 1960 Capital punishment in Africa became increasingly controversial in the latecolonial period. This was partly a result of the gradual move towards the abolition of the penalty in Britain, but also due to the mounting tide of anti-colonial and humanitarian or human rights sentiment among both African and British opinion. Scandals erupted as popular sentiment and political and legal policies clashed over the enactment of the death penalty: this clash could be manipulated by humanitarians, anti-colonial activists or even concerned colonial supporters to their own ends.2 Scandals are taken here as events which offended moral feeling and discredited colonial rule, and which were deliberately constructed as such in the discourses surrounding colonialism with the objective of opposing or reforming this system of rule.3 The lethal violence inherent in the death penalty 1. R. Maule to Colonial Secretary MacLeod, 22 August 1960, Miscellaneous Representations Concerning the Sentence of Death Passed on Peter H. R. Poole in Kenya, 1960–2, TNA CO 822/3013. 2. The term humanitarian here is used in its broad sense of an informal ideology of promoting human welfare rather than in reference to persons or groups involved in emergency aid. 3. See Nicholas Dirks, The Scandal of Empire: India and the Creation of Britain (London: Belknap, 2006).

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meant that the potential for scandals to arise from its use always existed, whether in relation to faulty hangings or from contention regarding the application of the sentence in an individual case. This was particularly the case where the murder itself was shocking or scandalous and captured public attention, such as in ritual murders, inter-racial killings and ‘terrorist offences’. The outrage engendered by the crime could then become transmuted into the scandal of punishment. Scandals were part of colonial iconology, but their symbolism and content were essentially polysemous, open to varying interpretations and impacts. This chapter explores the political symbolism of capital punishment in imperial discourse, from the frontier justice of early colonization to the fraught racial tensions  of decolonization, showing how capital punishment could be simultaneously mobilized by competing viewpoints as a discursive icon of both the ‘civilization’ and ‘barbarity’ of colonial rule, highlighting the intersecting moral and political economies of colonial justice. Broadly speaking, in the early twentieth century, scandals centred on ideas of justice: was the death penalty a just punishment for a particular crime, and was it enacted in a fair manner? But by the 1940s death penalty scandals became overtly politicized, as in the Gold Coast and Basutoland ritual murders, with race relations and colonial rule becoming more significant in determining the outcome of a case than the supposedly barbaric nature of a crime. This trend developed further in the decolonization era, when metropolitan and international pressure discursively recast capital punishment as a symbolic marker of the racism, lesser civilization and unsuitability to rule of both colonial governments, such as Kenya, and their independence-era successors like Malawi and Southern Rhodesia. Executions in these scandals became less a matter of law and order, or of retribution for an individual crime, than issues of race and imperial politics. Scandals served as a form of public theatre, in which the content of ‘violence’ and ‘justice’ was debated. British ideas of justice and civilization were the moral underpinnings of colonial rule, serving as a discursive and cultural counterbalance to the fundamental injustice of colonialism; but what these scandals revealed was that in reality this counterbalance did not function properly.

Civilization, scandal and colonial power: The representation of capital punishment in official and public discourse Humanitarian discourses have always co-existed uneasily with imperial power, and perhaps nowhere has this been more the case than in relation to the rationalized, legal violence of colonial states.4 With legal regimes ultimately remaining dependent upon the threat and application of state-sanctioned violence, ideas of 4. See Simpson, Human Rights and the End of Empire; Bonny Ibhawoh, Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in Africa History (New York: State University of New York Press, 2007).

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rights and the protection conferred by imperial citizenship were entangled with the development of techniques and practices of discipline and punishment.5 This dependence posed a political problem as racialized standards of punishment saw officials, who claimed to act in the name of civilization and the public good, involved in the infliction of direct, physical violence upon colonial subjects who were not considered fully civilized. Whilst colonial states laboured to disavow such violence – as non-existent, as treatment, as education, as a necessary punishment – it consistently seeped into metropolitan discourse as scandal.6 In writing a history of colonial violence it is not just the enactment of violence itself which must be analysed, but its reception among various public and official spheres and the complex public manifestations of guilt, sympathy and outrage provoked by its discovery. The twentieth century saw the development of two related but disparate movements that drove debate on capital punishment: humanitarianism and human rights, and anti-colonialism. Both movements shaped political discourse and changing metropolitan sensibilities towards the treatment of colonized populations. Humanitarian and anti-colonial groups operated through parliamentary pressure groups, influences on political parties, trade unions and other social organizations, as well as mass media campaigns to influence public opinion.7 Active involvement in anti-colonial campaigning tended to be an elite and highly politically conscious movement rather than one of mass involvement. However, when emotive and contentious issues such as capital punishment became matters of public and parliamentary discussion, a wider spectrum of interest was aroused. Executions were mobilized by humanitarians as a synecdoche of colonial violence and brutality. Whilst the quickening pace of international events and African nationalism determined the reappraisal of Britain’s relationship with Africa during the late colonial era, debates on the death penalty suggest that humanitarian and anti-colonialist campaigns both played a role in the reappraisal of civil liberties and the behaviour of legal and security services in the colonies.8

Race, regulations and responses to the death penalty in the interwar years Executions could provoke a scandal at two levels. Procedural problems were one issue: botched executions carried out in public or mass hangings caused severe offence to public and official sensibilities, as will be discussed in the following chapter. 5. Pierce and Rao, ‘Discipline and the Other Body’, 3–4; Sherman, ‘Tensions of Colonial Punishment’. 6. Pierce and Rao, ‘Discipline and the Other Body’, 7. 7. See Barbara Bush, Imperialism, Race and Resistance: Africa and Britain, 1919–45 (London: Routledge, 1999); Ibhawoh, Imperialism and Human Rights. 8. On violence, law, and decolonization, see Martin Thomas, ‘Violence, Insurgency and the End of Empire’, 505–6.

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More threatening to the image of colonialism as a civilizing undertaking was the visceral effect of hanging as a spectacle, particularly as international opinion turned against colonialism. In the interwar years, the logic of colonial corporeal technologies was increasingly challenged by humanitarian concerns over the spectacle of violated colonial bodies. Officials, however, remained firm in the belief that the civilizing mission could only be accomplished through violence, as this was the language that the so-called uncivilized could understand. Capital punishment was held to be doubly apposite and didactic: appropriate to the state of African society and demonstrating a new kind of law and governance. Scandals were therefore perceived by colonial officers to be fuelled by a public that consistently misinterpreted corporeal punishment as an un-rationalized spectacle and therefore missed the logistical necessity of ‘civilizing violence’.9 Such tensions over the necessity of state violence were clearly highlighted by a series of public executions held in Oron and Calabar, Southern Nigeria, in 1919 as part of a colonial crackdown against the apparent resurgence of lethal esiere (esere or Calabar bean) poison ordeals against suspected witches, following the intense social disruption and high mortality caused by the post-war influenza epidemic.10 Although the executions did not initially appear on anti-colonial radar, news leaked back to Britain through missionary channels and was finally brought to the attention of the Anti-Slavery and Aborigines Protection Society (ASAPS) in 1923.11 Despite confusion surrounding the actual details of the executions, Fabian MP and humanitarian campaigner Sydney Webb questioned Colonial Under-Secretary David Ormsby-Gore in Parliament on 27 March about ‘a mare’s nest of an interesting nature’, that ‘at Oron, in British Calabar, on one occasion twenty-four men and two women were publicly hanged in the market place on a single morning, one after another, the proceedings lasting five hours’.12 However, the problem for campaigners against colonial violence was that, due to limited communications between metropole and periphery, precise details of executions were often missing, weakening humanitarian arguments and opening the field for colonial governments to manipulate and deflect representations of their violence. Under pressure to refute Webb’s accusations, officials in Nigeria reported to London that ‘seven persons were hanged at Oron on 22 April and eleven on 23 April’ in 1919 but asserted that all had been properly convicted. Lagos’ tactic was to use detailed relation of fact and legal protocol to construct a narrative justifying the executions as legitimate and necessary to maintain the rule of law: ‘Several executions, necessary executions, did take place and they took place in public.’13

9. Pierce, ‘Punishment and the Political Body’, 196. 10. Sandra M. Tomkins, ‘Colonial Administration in British Africa during the Influenza Epidemic of 1918–19’, Canadian Journal of African Studies 28, no. 1 (1994): 60–83. 11. Nigeria: Calabar Executions [Oron] 1923, British & Foreign Anti-Slavery and Aborigines Protection Society, WL MSS.Brit.Emp.s.22 G241. 12. Hansard, 5th Series, 1923, clxii, 262. 13. Extract from ‘Executions at Oron’, West Africa, 21 April 1923, WL MSS.Brit.Emp.s.22 G241.

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Multiple accounts from Europeans officials constructed a procedural façade around the violence of mass hangings: [T]he Police arrangements and the hangings themselves were carried out by Mr Kenneth M. Leslie, Commissioner of Police. He would receive a Regulation allowance of £3 for each person hanged … The Officials in charge were Mr Leslie and Dr O’Keefe … I myself designed the temporary gallows for Mr Leslie and supervised the making of the drop. The main structure was put up by the AngloFrench Timber Company of Oron.14

Officials had been aware of the potential for scandal if news of these executions spread, however, as Assistant District Officer Jeffreys had angrily confiscated photographic negatives after ‘a Native photographer took several large snapshots of the hangings, showing the prisoners being led up, on the drop, and actually suspended’.15 Europeans in Calabar were quick to support the colonial regime and downplay the barbarity signified in metropolitan minds by mass public executions, instead stressing their role in the defence of African populations against ‘native savagery’. Rev. T. Chapman wrote to a fellow minister and ASAPS supporter in Britain that the executions were a necessary measure against ‘an attempt to bring back in an old custom, and establish a reign of terror amongst the uneducated’.16 The West Africa journal noted that ‘the local effect appears to have been beneficial, and the writer heard several Africans in Calabar express approval at the strong course taken by the Government’.17 Legitimacy here was conferred by routinized procedure and African concordance with colonial authority. Death penalty scandals were potent not because they transgressed legal and cultural norms, but because they tore back the veil and revealed the ugly truth about the brutality of executions and the nature of colonial violence. Perhaps because improved procedures would not address this deeper aesthetic or ethical problem, officials invested considerable time in attempting to demonstrate that, brutal though executions could be, they were both necessary and more humane than the alternative of continued depredations on African populations through ‘superstitious’ murders.18 Administrative approaches to penal scandals thus juxtaposed apologias for capital punishment as a practice with close attention to legal and procedural detail – affirming that executions were ‘justice’ and were carried out ‘in a humane and decorous manner’.19

14. Ibid., extract of letter, anon and undated. 15. Ibid. 16. Ibid., Rev T. Chapman to Rev J. Valentine, 9 April 1923. 17. Ibid., ‘Executions at Oron’. 18. See Pierce, ‘Punishment and the Political Body’, 190–1. 19. Ibid.; Administrative Memo, 31 March 1900, Zambian National Archives KST 2/1/1, cited in Chanock, Law, Custom and Social Order, 71.

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An important aspect of capital punishment’s ever-present possibility for scandal was the practical difficulty of knowing  – in colonial capitals or London  – what was going on in outlying districts in colonies. Annual returns, judicial reports and gubernatorial overview of cases were useful monitoring exercises, but scandals emerged from isolated and shocking miscarriages of justice, rendered doubly scandalous because of the possibility that they were not in fact isolated.20 Whilst some scholars have suggested that one of the main strategies for disavowing responsibility for colonial violence was through the rhetoric of scapegoating, making individual officers responsible for a crime, this did not occur with the death penalty.21 Being constructed as the apogee of the state’s monopoly of legitimate violence, it needed to carry the full weight of state authority to retain legitimacy. Like many other colonial issues, in the interwar years capital punishment in Africa increasingly became articulated through the language of race, and the case of Dr Benjamin Knowles brought this racialization of colonial justice to the fore in 1928.22 Knowles was a British medical officer stationed in Bekwai, near Kumasi in the Gold Coast, who was sentenced to death for the murder of his wife Harriet, the former Dublin music hall star Madge Clifton, after apparently shooting her during a drunken quarrel at their home on 23 October 1928.23 Knowles was tried and convicted under legal procedures for Ashanti, which – as discussed in Chapter 1 – meant that his case was not heard before a jury, as usually occurred with Europeans in Africa and as would have been the case in the Gold Coast Colony proper; it also meant that he was denied legal representation and automatic right to appeal. Knowles’ conviction sparked an outcry in both Britain and the Gold Coast, fuelled by its combination of sordid domestic drama and violation of two key principles of English law: how could a British man be sentenced to death without a jury, and how could – or should – he be treated any differently from an African convicted under these laws? The case gained notoriety when the Secretary of State for the Colonies, Leopold Amery, ordered the Governor of the Gold Coast, Alexander Ransford Slater, to have Knowles’ appeal made to the Judicial Committee of the Privy Council, making this the first criminal case from West Africa to be heard before the Law Lords.24 This raised the spectre that, if allowed, the appeal could force colonial administrations to reform the system of criminal justice in Ashanti, and – by extension – the rest of British colonial Africa to allow jury trials in all capital cases. 20. See Pierce, ‘Punishment and the Political Body’, 193. 21. See Purnima Bose and Laura Lyons, ‘Dyer Consequences: The Tropes of Amritsar, Ireland and the Lessons of the Minimum Force Debate’, Boundary 26, no. 2 (1999): 199–229. 22. See Gocking, ‘The Adjudication of Homicide in Colonial Ghana’, 85–104. 23. For a full discussion of this case, see Stacey Hynd, ‘Benjamin Knowles v. R.: Murder, Race and Respectability in Colonial Ghana, 1927–30’, in Legal Histories of the British Empire, ed. John McClaren and Shaunnagh Dorsett (London: Palgrave Macmillan, 2014), 77–91. 24. The Case of Benjamin Knowles 1929–30, TNA CO 96/686/16. The appeals guidelines were then ‘hidden under rigid lock and key’ to prevent appeals from Africans.

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Concerned opinion in both the Gold Coast and Britain linked his case with the need for widespread reform of the colonial legal system, with prominent lawyer and future nationalist leader J. B. Danquah arguing that an ‘atrophied remainder of the cave man’s justice’ left Ashanti’s population subject to greater state force than those in the Colony.25 Contentious capital cases often became lightning rods for wider concerns about colonial justice in Africa, and Knowles’ case was sensationalized because of this apparent lack of due process for a white British man and following tabloid scandal concerning Knowles’ reputed drink and drug addiction and his wife’s alleged bigamous marriage.26 Imperial intervention here meant that the colonial justice system was forced to deal with the case of one white man revealing the racialized and primitive nature of colonial justice without being able to explicitly acknowledge the factor of race in its deliberations, as British justice was supposedly equal for all imperial subjects. The imperial public were well aware of this legal and rhetorical sophistry. According to the journal West Africa, ‘public opinion in Great Britain would not tolerate the hanging of a British prisoner except after trial by jury and after a fully experienced judge. (I propose to show that it tolerates all right in the case of African prisoners however)’.27 Knowles was granted leave to appeal on the grounds that he had been denied a trial by jury, but when the Privy Council finally allowed his appeal and acquitted Knowles in November 1929, their judgement explicitly denied that the imperial centre had the authority to determine whether colonies must allow jury trials for all imperial subjects, and instead acquitted him because his trial judge had failed to consider the possibility of manslaughter in his judgement.28 Even the British press noted: ‘One cannot help feeling that their Lordships grasped this way out of a difficulty brought about by the ill-conduct of a case in Ashanti.’29 Whilst Knowles’ appeal did force the Gold Coast government to institute limited legal reform, the fact remained clear that Knowles had escaped the gallows more due to the colour of his skin than the impartial protection of British ‘justice’. Another media storm erupted shortly afterwards in 1932, this time involving witchcraft and mass convictions in Kenya.30 On 5 February, sixty Wakamba men were sentenced to death by Chief Justice Barth for their part in beating to death an elderly woman whom they suspected of being a witch. The woman was thought to have cast a spell upon the wife of the principal accused, Kumwaka wa Mulumbi, who together with fifty-nine other villagers rounded up the woman and, after she 25. ‘Dr Knowles and Ashanti Justice’, Gold Coast Independent, 8 December 1928. 26. That Knowles was Scottish and his wife Irish influenced depictions of their behaviour in the initial investigation and trial, before he was reframed as ‘British’ in the appeal process. 27. West Africa, 1 December 1928, Case of Dr B. Knowles, TNA CO 96/682/16. 28. See transcript of B. Knowles v. the King, TNA CO 96/686/6; Appeal to the Privy Council Enclosures, TNA CO 96/686/4. 29. Lieck, The Trial of Benjamin Knowles, 212. 30. See Katherine Angela Luongo, ‘Motive Rather than Means: Legal Genealogies of Witch-Killing Cases in Kenya’, Cahiers d’Études Africaines 189–90 (2008): 43–6.

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failed to remove the spell, ‘beat her with thin sticks, according to tribal custom. The woman died from her injuries’.31 By the next day, newspapers in Britain were carrying the headlines ‘60 Sentenced to Death: Murder of a Kenya “Witch”’, and outraged letters began to pour into Whitehall from Members of Parliament (MPs) and their constituents.32 W. B. Stephenson, MP for Glasgow University, wrote that the sentence was ‘an outrage, and shows great ignorance of the response it will evoke amongst the native population of Kenya … that the white men’s Government is unjust’. He, like many others, pointed out that ‘the murderers were, from their own point of view, administering justice’.33 Similar protests were received from the ASAPS, the League of Coloured Peoples, the Women’s International League, the Church Missionary Society and the Society of Friends. In public opinion, such culturally insensitive and disproportionate judgements brought the whole practice of British justice in Africa into question: ‘Our law is wrong … [it] stereotypes an attitude that appears preposterous to the natives.’ It was education, not executions, which were needed to reform the African population.34 The sole opinion voiced openly in support of the convictions was the founder of indirect rule himself, Frederick Lugard, who stated in a letter to The Times that ‘some deterrent is necessary to prevent such horribly cruel murders’.35 Amidst such public condemnation of the sentence, Governor Byrne decided exceptionally to commute all the sentences even before the case had gone to appeal, with Kumwaka receiving three years’ imprisonment and the others receiving sentences of three to six months.36

Peripheral penalities v metropolitan morality: ‘Ritual murder’ in the Gold Coast, c.1943–7 The mid-twentieth century saw significant shifts in both humanitarian and colonial discourses, with the Second World War leading to the discrediting of eugenics and the establishment of new ideas of human rights and self-determination. This forced imperial powers to re-justify their empires and led to the emergence of a new welfarist, developmental colonial state in British Africa.37 In the metropole, 31. R. v. Kumwaka wa Mulumbi & 69 Others, SC CC 175/1931, KNA AG/52/349; 14 LRK, 1932; The East African Standard, ‘Sixty Natives to be Hanged’, 6 February 1932. 32. The London Times, ‘Murder of a Witch in East Africa’, 6 February 1932, Murder of a Witch; Death Sentence passed on 60 Wakamba Natives, TNA CO 533/420/8. 33. W. B. Stevenson to The Glasgow Herald, 7 February 1932, TNA CO 533/420/8. 34. ‘A Shadow over Africa’, The London Times, 13 April 1932. 35. ‘Witchcraft in Africa’, The London Times, 20 April 1932. 36. Ibid., Governor Byrne to Secretary of State for Colonies Cunliffe-Lister, 13 February 1932. It is likely that the sentences would have been commuted without any public pressure as ‘witch-killers’ were routinely granted mercy in Kenya, see Chapter 4. 37. Joanna Lewis, Empire State-Building: War & Welfare in Kenya, 1925–52 (Athens, OH: Ohio University Press, 2000).

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changing public sensibilities and a greater purported abhorrence of state violence in the aftermath of the Second World War made capital punishment an increasingly worrisome penalty, and granted it greater instrumental impact as a potential scandal. As explored in the previous chapters, the 1940s were also a time of socio-economic and political tension in British Africa, which generated a series of moral panics around what colonial states termed ‘ritual murder’ in Baustoland, Nigeria, Sierra Leone and Tanganyika.38 These murders were all characterized by ‘scandalous deaths, widespread public unease, rumours about powerful individuals involvement’ but nowhere did a greater international scandal occur than in the furore surrounding the conviction and slated execution of eight men of royal blood for the murder of Akyea Mensah in Kyebi, Gold Coast in 1944.39 On 20 August 1943 Nana Sir Ofori Atta, the Omanhene (king) of Akyem Abuakwa and first African member of the Legislative Council, died after thirtyone years as its ruler. The customary funeral preparations were complex and protracted, and their final stages in February 1944 revolved around the ceremonial blackening of the omanhene’s ceremonial stool, the spiritual and temporal symbol of his office.40 The ‘blackening’ was traditionally done by smearing the stool with epun – a mixture of soot, mud and the blood of a dog and a brown sheep. However, alternate narratives of this tradition maintained that human blood was also an essential part of the sacred mixture. Set against this belief, the sudden disappearance of Akyea Mensah, the odikro (town chief) of Apedwa, from Ofori Atta’s capital Kyebi at the time of the ceremony aroused considerable fear and suspicion. On 9 July, eight men were arrested for his murder: shockingly, all of them were ‘sons of the stool’, close relatives of Ofori Atta and the royal family. The trial in November 1944 was marked by scandalizing narratives of ritual murder and competing versions of ‘custom’, as the prosecution and defence argued over whether human sacrifice was an aspect of blackening and whether the accused men could have murdered Akyea Mensah for that aim.41 In the end the African jury found all eight men guilty, and the judge, Mr Justice Mohammed Fuad, sentenced them to death, with Governor Alan Burns commuting the sentence of two defendants due to their youth. It was then that the real imperial scandal of this case erupted, as the defence team for the convicted men led by J. B. Danquah – future nationalist leader and 38. See Murray and Sanders, Medicine Murder; Pratten, The Man-Leopard Murders; D. S. Fountain, ‘A Report on the Leopard Society Murders’, WL MSS.Afr.s.1784 (18). 39. Murray and Sanders, Medicine Murder, 308. For a detailed and persuasive account of this case, see Richard Rathbone, Murder and Politics in Colonial Ghana (New Haven: Yale University Press, 1993). The analysis here is based on the relevant TNA CO 96/783/1–5 and CO 96/802/5–6 files. 40. Kwame Frimpong, ‘The Final Obsequies of the Late Nana Sir Ofori Atta K.B.E. Abuakwahene’, Africa 15 (1945): 80–6. 41. The Kyebi murder was more accurately a mortuary slaying, rather than a ritual or medicine murder. See Ivor Wilks, Forests of Gold: Essays on the Akan Kingdom of Asante (Athens, OH: Ohio University Press, 1993), 217.

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Ofori Atta’s half-brother, who had led local protests against British criminal justice after the Knowles case – launched a remarkable series of legal appeals to secure their clients’ reprieves. Between February 1945 and March 1947, a series of repeat appeals were made on both factual and procedural grounds to the Supreme Court in Accra, the West African Court of Appeal and the JCPC in London, which resulted in Governor Burns being forced to issue multiple stays of execution for the condemned men who  were awaiting their fate in James Fort Prison, Accra. By June 1946, the Secretary of State for the Colonies, George Hall, was receiving protests from the public and a range of MPs, from conservatives like Quintin Hogg to anti-colonial Labour MPs like Sidney Silverman and Leslie Hale, but Hall maintained that the authority to commute sentence lay with Governor Burns in Accra, not London. A petition for clemency sent to Hall from MPs protested that ‘to execute them now after these delays and in view of the repeated abortive executions would shock the conscience of civilized society’.42 Repudiating parliamentary and humanitarian appropriation of discourses of humanity in the debate however, Governor Burns telegraphed Hall that ‘apart from these other considerations, it is in my view unnecessarily cruel to the condemned men for their lawyers to raise their hopes and for these hopes to be encouraged by repeated delays’.43 As Rathbone argues, for Conservative MPs the case was a convenient calumnious issue over which to harangue the Labour government, whilst for Labour MPs and humanitarian campaigners it became a symbolic exemplar of two unprogressive anachronisms – capital punishment and colonial rule.44 Tensions surrounding the Kyebi case were heightened by debates within Britain and the Colonial Office surrounding the mooted abolition of the death penalty in the lead up to the 1948 Criminal Justice Bill.45 During debates on the Criminal Justice Bill in 1947, which unsuccessfully proposed the abolition of the death penalty, Colonial Office staff in London noted that ‘there has in recent years been an increase in violence in a number of Colonial territories’.46 Officials adjudged that consequently ‘there is no evidence of any general, or even widespread, demand in the colonial territories for the abolition’ and that any attempt to force change ‘would be bitterly contested’ and could exacerbate political tensions.47 Strikingly, although the same people – such as Sidney Silverman, Leslie Hale and 42. Petition to A. Creech-Jones, 24 January 1947, TNA CO 96/783/4. 43. Governor Burns to Secretary of State for the Colonies Hall, 3 December 1945, Trial for Alleged Murder of Odikro of Apedwa, TNA CO 96/783/1. 44. Richard Rathbone, ‘A Murder in the Colonial Gold Coast: Law and Politics in the 1940s’, Journal of African History 30, no. 3 (1989): 454. 45. Bailey, ‘In the Shadow of the Gallows’. 46. Memo by K. Blaxter, 21 April 1948, Capital Punishment: UK Criminal Justice Bill, TNA CO 859/164/4. 47. Draft Memorandum, ‘Capital Punishment in Colonial Territories’, June 1948, Capital Punishment, TNA CO 859/164/3.

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Wedgewood Benn – were involved in both the Kyebi case and the metropolitan abolition campaign, capital punishment in Africa was never discussed in terms of the morality and ethics of the punishment per se as it was in Britain, but always in terms of the effect which it had on race relations or perceptions of British colonial ‘civilization’.48 The execution of these African men was debated in terms of what their life or death would mean for colonial rule, not whether the execution of a fellow human being was acceptable. When Arthur Creech-Jones, who was known to oppose the death penalty, succeeded Hall as Secretary of State in October 1946, the tone of debate surrounding the Kyebi convictions became more virulent and moralistic.49 In early 1947, with Prime Minister Clement Attlee pushing Creech-Jones to resolve the matter, Colonial Office law officers advised the Secretary of State that due to the Letters Patent and Royal Instructions which granted his governorship, Burns could not be overridden without effectively being sacked by the King. Then, on 24 January, a petition signed by eighty-five MPs landed on Creech-Jones’ desk demanding mercy for the condemned men. He was forced to reply that he had no constitutional powers to intervene in the case unless there had been a miscarriage of justice, and after numerous failed appeals to the West African Court of Appeal and the JCPC there were no grounds left for such an action. For their part, Governor Burns and many senior Colonial Office men were frustrated by Creech-Jones’ lack of support and warned London that the executions had become an issue of public order in the Gold Coast. Burns telegraphed that ‘I consider it my duty to warn you that feeling in this Colony is running high and that, if these men are reprieved, serious consequences must follow’.50 Gold Coast public opinion in general and the African Executive Council members voiced their support for execution. In March 1947, the Ashanti Pioneer editorial ‘Pity Parliament and the British Public’ stated: ‘Knowing as we do the trend of opinion in this country over the Akyea Mensah case, we hope people in this country will not be forced to wage a major counter offensive against the organized might of the British Houses of Parliament and an equally emotional British public.’51 The pressure on both Burns and Creech-Jones increased during a ‘noisy and vituperative’ debate in the House of Commons on 3 March 1947, when CreechJones’ ‘stumbling and inept’ performance led to him virtually admitting his disagreement with his governor, and saw Winston Churchill and Sydney Silverman become unlikely allies in twisting the knife into the Colonial Secretary on the issue.52 As Geoffrey Bing, MP and future attorney-general in independent Ghana, 48. See Sydney Silverman, ‘These Men Should Not Die’, The Tribune, 26 July 1946. 49. Arthur Creech-Jones to Alan Burns, 5 March 1947, WL MSS.Afr.s.1822. 50. Alan Burns to Arthur Creech-Jones, 5 February 1947, Trials for the Murder of Odikro of Apedwa, TNA CO 96/802/5. 51. Ibid., ‘Pity Parliament and the British Public’, Ashanti Pioneer, 14 March 1947. 52. Hansard, 5th Series, cdxxxv, 1005–18; Rathbone, ‘Murder in the Colonial Gold Coast’.

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noted in his account of the case, this was ‘one of those storms which from time to time sweep without warning through Parliament’. Arthur Creech-Jones appeared to admit that the men had been taken six times to the place of execution, and then Churchill ‘intervened with a flash of that old passion and humanity … In the end the Colonial Secretary, shouted down from both sides of the House, agreed to telegraph Burns, asking him once again to postpone the executions’.53 This was despite the fact Creech-Jones had stressed the ‘popular demonstration of public indignation at the delay in carrying out the sentence’ in the Gold Coast, and told MPs of the strong feeling in the Gold Coast’s Executive and Legislative Councils that ‘the administration of British justice in the colony has already been discredited’ by the repeated appeals and that the executions must go ahead.54 As Rathbone argues, ‘there is no doubt that such a large furore over what was presented as a humanitarian issue’ was profoundly embarrassing to the Labour government.55 The day after the House of Commons debate, Burns tendered his resignation as governor of the Gold Coast, information which leaked quickly to the press. With this impending crisis to cope with, set against the background of constitutional reform in the Gold Coast, Creech-Jones was forced to abandon his personal distaste of capital punishment and addressed the House of Commons on 5 March to present a clear exposition of the case and its history, after which a chastened House apparently accepted Burns’ decision and the necessity of execution. Following this parliamentary fire-dampening exercise by the Colonial Secretary, Burns was able to end the respite order in the case of three of the men – Dankwa, Kwame Kagya and Kwasi Pipim, who were considered the principal actors – and they were hanged on 24 March 1947. The remaining two men had their sentences commuted to life imprisonment on 28 March on ‘humanitarian grounds’ after Burns decided ‘that upon their last trip to the gallows they knew that after two years they would actually be executed’ and this was too cruel a fate for the men to endure, thereby reappropriating humanitarian motivations for the colonial government.56 Whilst British campaigners disputed the case in terms of race relations, the racial motif was in fact more abstruse in this case, due to the complex racial structures of the Gold Coast and its legal systems. This was no simple case of ‘White injustice in Black Africa’ when the investigating officers, jury and lawyers were African, and the trial judge a Cypriot of Turkish Muslim heritage. Even the appeal judges, James Henley Coussey and Lesley M’Carthy, were Afro-Caribbean. Although the nature of the charge carried with it an implicit imputation of barbarism at a significant moment in Ghanaian nationalist history, the racial motif never came to dominate local discourses, which instead concentrated on justice and colonial legality. The

53. Geoffrey Bing, Reap the Whirlwind: An Account of Kwame Nkrumah’s Ghana from 1950 to 1966 (London: MacGibbon & Kee, 1968), 49. 54. Ibid. 55. Rathbone, ‘Murder in the Colonial Gold Coast’, 455. 56. The remaining appellant had died from natural causes in prison during the appeals process.

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furore surrounding the Kyebi murder did however have considerable political significance in Akyem Abuakwa and the Gold Coast. With J. B. Danquah’s team of defence lawyers constructing this case as a cause célèbre, Rathbone astutely argues that ‘there is no doubt that a hidden agenda of anti-colonialism emerged in the protracted course of the case’ at the Gold Coast began its transition towards independence.57 Many commentators have drawn a direct link between the case and the establishment, in April 1947, of the United Gold Coast Convention by Danquah and others, which most analysts regard as the first full-blown nationalist party in Ghanaian history.58 The case clearly poisoned relations between Burns and some of the political elite in the Gold Coast, as evidenced by the loss of support in 1946 for the Burns Constitution. However, much of the Ghanaian press, run by the coastal intelligentsia, tended to remain neutral in their discussions of the case, and some newspapers lashed out at what they portrayed as the anomaly of ritual murder in a progressive, civilized Gold Coast. The use of the Akyem royal family’s wealth to fund the costly defence team was also contentious locally, with press articles proclaiming that justice was being bought or intimidated. Burns himself maintained: ‘As regards my dislike for the death penalty, I should say that I am myself no enthusiast for capital punishment but so long as it is the penalty prescribed by law for the crime of murder, that law must be carried out, and it should, I am convinced, be applied equally to rich and poor alike.’59 Burns was determined to avoid giving the impression that ‘there is one law for the rich and another for the poor’.60 Burns’ personal statements about capital punishment reveal the layered, sometimes contradictory, discourses of colonial officials concerning political scandals. Whilst he wrote that ‘no one has a greater dislike than I have for capital punishment’, Burns also maintained, however, that ‘in this case I conscientiously believe that execution is fully justified and indeed essential if worse things are not to follow’.61 For Burns, professional irritation turned into personal anger as the defence team used every legal trick in the book to delay the executions and his humanity was impugned by suggestions that he was a ‘latter-day Governor Eyre’, his name being read into pre-existing tropes of colonial brutality and gubernatorial ruthlessness.62 As Burns asserted, the scandal of the Kyebi case called the judicial system’s dignity, and therefore that of the colonial state itself, into question, which was becoming increasingly dangerous against a background of burgeoning anti-colonialism.63 57. Rathbone, ‘Murder in the Colonial Gold Coast’, 459. There were strong social links between legal practice and political activism in the Gold Coast at this time. See Edsman, Lawyers in Gold Coast Politics. 58. David Austin, Politics in Ghana, 1946–60 (London: Oxford University Press, 1964), 9; Bing, Reap the Whirlwind, 49. 59. Alan Burns, Colonial Civil Servant (London: Allen & Unwin, 1949), 233. 60. Burns to Hall, 8 December 1945, TNA CO 96/783/1. 61. Burns to Hall, 1 August 1946, TNA CO 96/783/4; Burns, Colonial Civil Servant, 235. 62. Bose and Lyons, ‘Dyer Consequences’. 63. See Rathbone, ‘Murder in the Colonial Gold Coast’, 459–60.

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‘Butchered to make a Kikuyu holiday’: Peter Poole and the politics of punishment in Kenya, 1959–60 During the late colonial era, capital punishment became increasingly politically contentious as abolitionism gained ground in Britain. In 1957, when the Homicide Act limited the use of the death penalty in Britain by creating categories of non-capital murder, the Colonial Office allowed Britain’s colonies to decide independently on whether to implement the legislation, although it was made clear that London would prefer its colonies to fall into line with the metropole. All Britain’s African territories refused to adopt the Homicide Act, fearing that it was too complicated and unsuited to African conditions where rising violent crime created the ‘necessity for stern action to protect against a loss of life among loyal civilians in times of unrest’ and that abolition of the extreme penalty of the law would be interpreted as a sign of weakness and an ‘invitation to murder’.64 Global and metropolitan trends towards abolition rendered the use of capital punishment to combat anti-colonialism increasingly scandalous, highlighting the close links between criminal justice and questions of imperial politics and decolonization policy. The execution of the Indian-born, Communist, Malayan trade union leader S. A. Ganapathy in 1949 in Malaya affected India’s decision on whether to stay in the Commonwealth.65 In Cyprus death sentences were commuted to avoid inflaming tensions between Turkish and Greek ministers.66 The most extreme use of the death penalty, and counter-insurgency violence more broadly, against an anti-colonial uprising occurred during the 1952–60 Kenya State of Emergency when around 1,090 Gikuyu men were hanged, as discussed in the previous chapter. Significantly, these executions did not spark a major scandal within the metropole as colonial authorities were able to discursively justify the hangings against the spectre of ‘Mau Mau savagery’, and scandals instead focused on torture and inhumane conditions in detention camps.67 Even after the Emergency largely ended in 1958, race relations and politics both within Kenya and between the colony and the metropole remained tense as the transition towards decolonization began. So, when on 10 November 1959 Peter H. Poole became the first white man

64. R. Terrell to Colonial Office, 19 August 1966, Capital Punishment for Political Offences in Peace Time 1966, TNA CO 1032/512; Capital Punishment 1957–9, TNA CO 859/985–90. 65. Case of Mr S. A. Ganapathy, TNA CO 537/4769. 66. Prerogative of Mercy, Note by J. D. Higham, 19 October 1960, TNA CO 1032/357. See Simpson, Human Rights and the End of Empire, 919–23. 67. See Katherine Bruce-Lockhart, ‘The “Truth” about Kenya: Connection and Contestation in the 1956 Kamiti Controversy’, Journal of World History 26, no. 4 (2015): 815–38; Richard Toye, ‘Arguing about Hola Camp; The Rhetorical Consequences of a Colonial Massacre’, in Rhetorics of Empire: Languages of Conflict after 1900, ed. Martin Thomas and Richard Toye (Manchester: Manchester University Press), 187–207.

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in Kenya to be convicted and sentenced to death for the murder of an African, racial tensions once again reared their ugly heads. Poole’s case provoked outrage amongst the public in Britain and Kenya like no other, with a virulent rhetoric marked by idioms of barbarity, savagery and civilization applied to African and European alike by various poles of opinion. Peter Poole was a twenty-eight-year-old English-born engineer, living with his wife and young family in Nairobi, when on 12 October 1959 he spotted his houseboy Kamawe s/o Musunge throwing stones at his dogs. Handed his pistol by his wife, Poole then shot Kamawe, who died of his wounds. Poole was tried in November for murder before a white jury in Nairobi and sentenced to death by Chief Justice Ronald Sinclair, before eventually being executed on 2 August 1960.68 Even before his death, Poole became a martyr in the eyes of many Kenyan settlers, and his parents circulated petitions for mercy addressed to the Governor Patrick Renison, collecting some 25,000 signatures, including many from Africans and Asians. In London, MPs such as Fenner Brockway and Margaret Thatcher appealed to the Colonial Secretary Iain MacLeod to reprieve Poole on the grounds that his execution would damage already tense race relations in Kenya. Most metropolitan protests and petitions for mercy appear to have come from the more conservative, middle-class sectors of the populace, with older men, young wives and mothers being particularly vehement in their accusations of ‘political expediency’ and ‘reverse-racism’ towards the government in its treatment of Poole.69 As in any legal case, the representations of Poole by his supporters and detractors occupied various discursive poles. Petitioners wrote that the Kenyan and British governments ‘[do] not seem to understand the meaning of justice’.70 Complaints were made that ‘this Englishman, Poole, is being deliberately sacrificed to appease the hostile and vengeful Native element in Kenya … In short, he is being butchered to make a Kikuyu holiday’.71 The discourses surrounding the Poole conviction were saturated in atavistic images of ‘Mau Mau terrorism’ and its aftermath. Poole had served in the Kenyan Defence Forces during the Emergency, which gave him a sanctified aura of duty and defence in the eyes of many petitioners, who linked his actions to war trauma.72 Women stressed that ‘Poole’s only fault was to defend his wife and babies’, an argument which found its gendered corollary in assertions from male correspondents that ‘an Englishman’s home was his castle’ and he

68. P. H. R. Poole v. R., Criminal Appeal (CA) 217/59, E.A.L.R. [1960] 62–80. 69. See Miscellaneous Representations Concerning the Sentence of Death Passed on Peter H. R. Poole in Kenya, 1960–2, TNA CO 822/3009–13. 70. E. Hibbert to Prime Minister MacMillan, 21 March 1960, TNA CO 822/3009. 71. Ibid., Mrs M. Morison-Webster, Johannesburg to R. Butler MP, 22 March 1960. 72. Conflicting representations were made of Poole’s service in Mau Mau, with his supporters lauding his good service record, but former commanding officers noting he had been ‘notoriously trigger-happy’ and neighbours stated that he had tried to shoot Africans on previous occasions in Nairobi. See TNA CO 822/3009–10.

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should be allowed to defend it.73 Poole’s family were quick to stress the political background to the case, with his father claiming, ‘It was clear all along that Peter was a sacrifice to African nationalism.’74 Many petitioners questioned how Poole could be hanged when Jomo Kenyatta – believed (incorrectly) to be the leader of Mau Mau  – had only been imprisoned, describing this as ‘an advanced case of national masochism’.75 In pro-imperial eyes, Poole’s case became a symbol of Britain’s disastrous decolonization policy. Whilst some petitioners emphasized that they were anticapital punishment on principle, others staunchly asserted that they believed in hanging, but just not in this case. Brigadier R. Johnson argued to Secretary of State for the Colonies Iain MacLeod that ‘if the accused had been African, the presence of even a modicum of doubt would have been considered sufficient, and rightly so, to warrant the exercise of Her Majesty’s clemency’.76 Other letters stated that if Poole were Black, condemned for shooting a white man, political leaders in Britain would be clamouring to save him. Poole’s treatment was compared unfavourably to that of Kenyatta and a Bermudan man named Lighthouse, who had been brought to England to serve a life sentence in 1960 after having his death sentence for the rape and murder of three white women commuted. The lack of British action over atrocities in the Congo Crisis was also contrasted to the Poole case, as was the Sharpeville massacre in South Africa and the release of convicted EOKA ‘murderers’ in the Cyprus Emergency on the same day Poole was hanged.77 Poole’s case became in effect a lightning-rod for wider concerns about events in Africa, Britain’s influence and control of her empire, and about the perceived decline of British power and justice. As one petitioner remonstrated, ‘surely Britain is still great enough for her to ignore political expediency when the principles of justice and humanity are at stake’.78 Many people who wrote to protest about Poole’s treatment were careful to iterate that ‘I have no prejudice in colour’  – usually just before they launched into a highly racialized account of the dangerousness and savagery of Africans, sometimes deploying explicitly racist language.79 Mr A. Neill represented many of the petitioners when he wrote: When one considers that the majority of brutal and calculating murderers in this country are reprieved, it is difficult to understand why Poole, who only killed an insolent negro a fit of temper, is not. He is presumably being sacrificed 73. Mrs S. Morgan to Home Secretary, 21 March 1960, TNA CO 822/3009. 74. Ibid., Petition from N. Poole to Colonial Secretary MacLeod. 75. K. Higgot to Colonial Secretary MacLeod, 18 August 1960, TNA CO 822/3012. 76. Brigadier R. Johnson to Colonial Secretary MacLeod, 15 August 1960, TNA CO 822/3011. 77. See TNA CO 822/3011–3. 78. H. Harris to Colonial Secretary MacLeod, 16 August 1960, TNA CO 822/3013. 79. Mrs I. Hartnell to P. Wells MP, 13 December 1959, TNA CO 822/3009.

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to purely political ends – a great mistake as African negroes are insolent enough without encouraging them to be more so.80

But whilst conservative opinion was emphasizing the racial aspects of the case, Poole’s family and humanitarian campaigners in Britain were careful to emphasize rather the multi-racial condemnation of his treatment, with prominent Indians and Africans signing their petition for clemency.81 Poole’s case was one of the few dealt with by the Colonial Office where the acceptability of the death penalty as a punishment was questioned within public discourse, doubtless because of the race of the condemned man. One petitioner, Mr R. Maule, wrote to MacLeod to that ‘I would like to protest against the barbaric judicial hanging of Mr Poole in Kenya. It is completely revolting to civilized and Christian people to be submitted to the spectacle of denigration of human beings, such as the family of Poole, in order to quench the bloodthirsty desires of the judiciary’.82 Capital punishment was depicted as ‘savage and barbaric’ and ‘a barbarous depraved procedure reminiscent of the Nazi regime’.83 Poole’s wife Gwyneth flew back to Nairobi to plead for her husband’s reprieve and led a deputation of women petitioning Governor Renison for a stay of execution in all cases to bring Kenyan law on capital punishment into line with Britain, where the 1957 Homicide Act had created categories of non-capital murder.84 Poole’s family and defence team gathered psychiatric evidence to suggest that he suffered from ‘anxiety neuroses’ and could not be considered fully responsible for his actions. In England, they argued, he could have been convicted of diminished responsibility under the Homicide Act and would not have faced the death penalty, so it was not fair to sentence an English citizen to death simply because Kenyan law did not allow for diminished responsibility.85 They pushed for Poole to have a special psychiatric assessment but the Kenyan government argued that would be unfair and racially discriminatory, as Africans did not get such treatment. Of his decision to execute Poole, Governor Renison stated that he refused ‘to let politics or race enter the case’, and the facts of the case warranted execution. The (mixedrace) executive council had decided six to one in favour of execution. According to Renison, ‘a reprieve now would deeply shock public opinion, particularly, but not only, African opinion, as being due to political pressure … Humanitarian

80. A. Neill to Colonial Secretary MacLeod, 17 August 1960, TNA CO 822/3011. 81. A. Fenner Brockway to Prime Minister MacMillan, 16 August 1960, TNA CO 822/3010. 82. R. Maule to Colonial Secretary MacLeod, 22 August 1960, TNA CO 822/3013. 83. Mrs L. Pullen to Home Secretary, 15 August 1960, TNA CO 822/3010; Mrs O. Harris to MacLeod, 16 August 1960, TNA CO 822/3013. 84. Undated memorandum, TNA CO 822/3011. 85. Governor Renison to Secretary of State, 15 August 1960, TNA CO 822/3010.

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reasons would not be understood by the African public, whose faith in the entire system of justice would be undermined’.86 After legal appeals and numerous petitions, neither Colonial Secretary MacLeod nor Renison could find any legal grounds for intervening with the course of law, and Poole was duly executed.87 Stories flashed around the international press of chanting African crowds outside Nairobi Prison proclaiming ‘justice has been done; MacLeod is with us!’ when the notice announcing Poole’s death was posted, and a European police officer retorting ‘now you have had your pound of flesh’.88 As the London Spectator commented, it is a savage irony that future generations in Kenya will be able to point to 1960 as the year when the equality of the races was finally demonstrated, not by the granting of rights to Africa to farm on the White Highlands, or to become members of white clubs, but by the proposition that all men, regardless of colour, are equal on the end of a rope.89

‘See Silombela swing’: British justice and the execution of rebels in Rhodesia and Malawi Executions, and the scandals which could surround them, were as bound up in the politics of colonial and African society, in social defence and race relations, as they were in changing sensibilities towards the public infliction of pain upon the body of the criminal. This remained the case in the early independence period in Africa, particularly as decolonization was less a sharp rupture than a gradual process of separation, involving a renegotiation of power relations between the metropole and its former colony. Legal systems remained closely tied to their colonial precursors, in character, infrastructure, laws and often personnel as British judges and legal staff stayed on to serve new African governments where there was a shortage of qualified African legal personnel at independence.90 Capital punishment also remained a key weapon in the arsenal of state control, as became apparent when newly formed African governments were confronted with challenges to their authority. One protracted legal scandal erupted around the Law & Order (Maintenance) Act in Southern Rhodesia between 1963 and 1968 as part of the Zimbabwean War of Liberation. Against a background of burgeoning guerrilla campaigns against 86. Ibid. 87. Peter H. R. Poole v. Regina, KNA AC/4884. 88. ‘White Man Hangs’, Time Magazine 29 August 1960. 89. ‘Reasons of State: Kenya’, The Spectator, 19 August 1960, 267–8. 90. John Hatchard and Simon Coldham, ‘Commonwealth Africa’, in Capital Punishment: Global Issues and Prospects, ed. Peter Hodgkinson and Andrew Rutherford (Winchester: Waterside Press, 1996), 155–76.

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white minority rule in 1963, s.33(a) of the amended act introduced a mandatory death penalty for ‘terrorist offences’ including attempts at petrol bombing and possession of firearms and bombs.91 A capital sentence could thus be handed down for crimes amounting only to malicious injury to property under common law. This mandatory death penalty became a metonymy for Rhodesia’s racist brutality and resistance to British ‘justice’. By July 1965, twenty-four men had been condemned to death under this section, convictions which drew international opprobrium that was only heightened by Rhodesia’s Unilateral Declaration of Independence in November 1965.92 Britain found itself drawn into a protracted legal and political debate that raged from Salisbury to London to the United Nations over whether the right to appeal to the JCPC or the royal prerogative of mercy still applied in these cases, giving the Queen or her gubernatorial representative the right to determine final sentence.93 Humanitarian pressure groups such as the Movement for Colonial Freedom, Fabian African Bureau, Amnesty International and the International Commission of Jurists all stressed that Britain was ‘morally bound’ to intervene.94 Finally, the Rhodesian appellate court and government rejected Queen Elizabeth’s commutation of two death sentences in 1966, and as the liberation war expanded, the Smith regime disregarded international condemnation and began hanging Africans convicted under the Act. Rhodesia’s courts sentenced approximately 420 people to death between 1965 and 1967 and executed more than two hundred.95 The Rhodesian situation formed the political and legal backdrop to another scandal about the execution of convicted ‘terrorists’, this time in Nyasaland, which was granted independence as Malawi in 1964. There it was the conviction of Medson Evans Silombela in November 1965 for the murder of Ali John Mbawa, Malawi Congress Party chairman of Nyambi, Kasupe district that sparked an international controversy after Prime Minister Hastings Banda declared his intention to have Silombela executed in public.96 Silombela was a fifty-year-old former garage mechanic, held by Banda’s government to have been a key lieutenant to Henry Chipembere, the former education minister who led a revolt against Banda’s increasingly dictatorial government.97 Wide popular support and dogged

91. Novak, The Death Penalty in Africa, 32–4. 92. On law and politics in Zimbabwe during UDI see George Hamandishe Karekwaivanane, The Struggle over State Power in Zimbabwe: Law and Politics since 1950 (Cambridge: Cambridge University Press, 2017), 111–38. 93. See Prerogative of Mercy, TNA CO 1032/357; Prerogative of Mercy 1963–5, TNA CO 1032/464; Southern Rhodesia: Law and Order Maintenance Act, TNA DO 154/79. 94. Death Sentences for Petrol Bombing in Southern Rhodesia [Mapolisa], The Times, 23 January 1964, TNA DO 183/45. 95. Novak, The Death Penalty in Africa, 34. 96. For a full discussion of this case, see Hynd, ‘Decorum or Deterrence’. 97. Colin Baker, Revolt of the Ministers: The Malawi Cabinet Crisis, 1964–65 (London: I.B. Tauris, 2001).

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resistance by Chipembere’s followers in Malindi district led to an escalation of the conflict before government forces gained the upper hand and Chipembere was forced to flee to safety in America. The so-called ‘minster’s revolt’ became a seminal event in Malawi’s history. Banda’s suppression of remaining political opposition led to thousands of people being forced into exile or herded into brutal detention camps. Hopes for a democratic transition of power were dashed, and Britain began to question its support for Banda.98 After Silombela’s capture in November, Prime Minister Banda asserted repeatedly whilst the case was still sub judice that he wanted everyone to see Silombela hang. He then implemented legislative change to allow this to occur. Both British and international humanitarian observers were outraged. The case was raised at the United Nations, whilst multiple editorials in the British press questioned Banda’s actions: How could Dr Banda, the contemporary realist, the sophisticated admirer of the traditional values of the British Commonwealth and the monarchy, lend himself to a deliberate reversion to primitive barbarity? Why should he give such ammunition to the enemies of African nationalism? In condemning a man before he was tried, he was making a mockery of the trial, and demolishing one of the foundation stones of the legal system he admires  – that a man is presumed innocent until proven guilty. But to require that he should then be put to death in public is something more. Is Dr Banda pandering for expediency, but with personal distaste, to the more primitive appetites of his people? Or does he genuinely believe … that justice must not only be done, but be seen to be done, by people who will trust only the evidence of their own eyes?99

Britain was in fact in an ambivalent position, morally and politically, in relation to the use of capital punishment in post-independence Africa. As a colonial power, she had infamously utilized capital punishment against political threats, including the Chilembwe Uprising of 1915 in Nyasaland, as explored in Chapter 5. But times had changed, and less than a week after Banda’s ‘see Silombela swing’ comments, the British Parliament passed the Murder (Abolition of the Death Penalty) Act, which suspended capital punishment for murder in the United Kingdom, following a prolonged domestic campaign against the death penalty.100 As a result, both the international community and British public expected the government to intervene in Silombela’s case. The British government was in the difficult position of being held responsible for a situation over which it had no real 98. Henry B. M. Chipembere, Hero of the Nation: Chipembere of Malawi  – An Autobiography, ed. Robert I. Rotberg (Blantyre: Christian Literature Association of Malawi, 2001). 99. O. Forster to J. Rednall, 2 November 1965; The Scotsman, 1 December 1965, TNA DO 183/702. 100. See Seal, Capital Punishment in Twentieth-Century Britain.

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legal or constitutional power. Despite Britain retaining a residual prerogative of mercy in former colonies, it was highly unusual for either the Secretary of State for the Colonies or the Queen to become involved in individual decisions of execution or commutation and such interventions often failed, as the Law and Order (Maintenance) cases from Rhodesia had proven.101 Only the governor could exercise mercy, but as Malawi now was an independent country, Governor-General Glyn Jones could only follow the prime minister’s advice, and Banda was not about to grant Silombela a reprieve.102 Jones found himself powerless to deny Banda’s wishes, although he informed the Colonial Office that he personally found the idea of public executions repugnant.103 The idea of using British aid as a bargaining tool to force Banda to relent was rejected as it was felt too serious to break with Banda, a necessary ally against Rhodesia who was deemed an otherwise moderate, antiCommunist African leader, ‘merely because after a fair trial a multi-murderer is to be hung in public rather than in prison’.104 But what really restricted Britain’s moral leverage was the fact that Banda and his supporters adopted the very arguments and discourses of deterrence that the colonial government had previously used to justify its own public and semi-public executions, although they deployed a more forceful rhetoric stemming from a desire for retribution rather than order. Banda received wide backing for his position during the Malawian parliamentary debate on 10 November 1965 regarding the Penal Code (Amendment) Bill to allow public execution. Minister A. W. Mawambungu, himself wounded in a rebel raid, declared: ‘If I had any power myself, these people would not even be tried. They would just be hanged dead in a public place like the Central stadium. I wish they were not to be hanged too quickly. It is easy to burn the toes somehow’, a sentiment supported by Mr Mlembe who asserted ‘the hanging should be displayed in a public place so that the people should enjoy these people dying’.105 Other speakers gave Biblical and customary precedents for public killings. Even the European Opposition Leader, Michael Blackwood, gave his tentative support to the Bill arguing that if Welsh raiders attacked English villages, ‘I am far from certain that there would not be cries of “string ‘em up”. I am not by any means certain that what has been suggested is not right in the circumstances which exist in Malawi’.106

101. Confidential Memo, Public Executions, TNA DO 183/702. 102. Ibid., Governor-General Jones, Zomba to CRO, 17 November 1965. A handwritten note dated 11 June 1969 in Jones’ private papers asserts: ‘Privately, this procedure [public execution] was entirely in accordance with my private wishes.’ See Sir Glyn Jones Papers, Nyasaland 1960–66, WL MSS.Afr.s.1794 (20). 103. R. Bryne to A. Bottomley, 15 January 1966, TNA DO 208/21. 104. Governor Jones to Private Secretary, Buckingham Palace; British High Commission [BHC] Zomba to Commonwealth Relations Office [CRO], 1 November 1965, TNA DO 183/702. 105. Hansard Malawi, 3rd Session, 1965, 252. 106. Ibid., 256–60.

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Most disturbingly for Britain, Home Affairs Minister Richard Chinzanja argued: ‘It is a repetition of the history of what the British did in this country.’107 And he was right. Banda himself asserted that the British had no right to criticize his decisions, as they had employed public executions recently during the Kenyan Emergency and in Sierra Leone, accusations that the Colonial Office firmly denied before frantically sending officials off to check if they were actually true.108 The fact they did not know is a perfect illustration of London’s ad hoc approach to colonial justice. In fact, Glyn Jones himself stated that ‘public executions have been carried out in certain parts of British Africa since I joined the Colonial Service in 1931’.109 Banda justified re-introducing public execution because: it was essential that as many people as wanted should actually see a dangerous criminal such as Silombela die. There must be no lingering belief that a man executed in secrecy continued to be at large … The deterrent effect on … was a very important consideration in a country such as Malawi which had not had the hundreds of years of civilization of a country like Britain.110

He railed against British hypocrisy, stating that ‘you can’t judge others by your own standards, because your own standards were built up under different circumstances from those under which we live now’.111 This was the very argument of African exceptionality that colonial officials had themselves previously used to justify public or semi-public executions, as will be discussed in the next chapter. Investigations by the British High Commission in Zomba appeared to confirm general support for Silombela’s execution. Although the opinion of ordinary Africans is hard to gauge and press censorship skews media accounts, the argument in The Malawi News that ‘[u]nder our own laws before the British came, if a man killed your relative, you had the right to take a knob-kerry, shield and spear and kill that man without a fuss’ was felt to be reflective of popular opinion.112 Strong calls were made by both government officials and sections of the public to hold the execution at either Silombela’s village or the central stadium in Blantyre to enhance deterrence and to ‘dispel current beliefs that he had either not been captured or was immune to death at human hands’. The British high commissioner argued that educated Malawians ‘whilst they would not themselves make a point of watching the execution … do not doubt its virtue as cathartic for the feelings of the people’.113 The small white settler

107. Ibid., 257. 108. CRO to J. Nicholas, BHC Zomba, 17 November 1965, TNA DO 183/702. 109. Ibid., Jones to CRO, 17 November 1965. 110. Note by Jones of a meeting with Banda, 5 November 1965, WL MSS.Afr.s.1794 (20). 111. Hansard Malawi, 3rd Session, 1965, 250. 112. ‘Freedom of Expression Our Birthright – Rebels Must Be Hung’, The Malawi News, 12 November 1965, TNA DO 183/702. 113. Ibid., R. Bloom, BHC Zomba to M. McMullen CRO, 15 December 1965.

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population reportedly felt that Banda had found an African answer to an African problem. Many, particularly those who remembered British executions, held that Africans needed to see justice done, otherwise they would only believe the convicted man had ‘turned into a hyena’ or been ‘sent to work in the mines in South Africa’.114 Both the international community and African leaders put pressure on Banda to stop the execution. The case was raised in the United Nations.115 Kwame Nkrumah, president of Ghana and Banda’s long-standing friend, wrote asking him to repeal Silombela’s sentence ‘purely on humanitarian grounds’.116 This plea was reiterated by the Ghanaian high commissioner to Malawi during an audience with Banda. Banda refused to back down, arguing: ‘Mr Chipembere … had, through his agents managed to propagate the idea that he and his army commanders had medicine that made them invisible … I want to give them a practical demonstration that Chipembere and his henchmen are not superhuman beings.’ The high commissioner reported to Nkrumah that he found Banda’s insistence on public execution ‘disquieting’. ‘This will be a horrible execution’, he wrote.117 Sensibilities may change and become more ‘civilized’, but these alterations are neither total nor unilinear.118 Certain forms of violence can remain deemed legitimate or become relegitimized under certain circumstances, particularly for social defence in times of unrest. The support from Malawian ministers and the general public for public execution is not an indication that they were more blood-thirsty or primitive than other societies, but rather that they perceived their social order to be under threat and were able to draw on pre-existing discourses and collective memories of punishment in an attempt to re-establish internal security. Although the prosecution and media depicted Silombela as a monster, he was made an example of not so much as a murderer, but as a rebel, as a threat to social order.119 Despite the suspension in 1965 of capital punishment for murder in Britain, and campaigns against Southern Rhodesia’s use of mandatory death sentences for ‘terrorist’ offences, what British officials in both London and Zomba opposed was not the execution itself, but simply its public nature.120 Governor-General Jones, reporting on a petition for mercy sent to the Queen, emphasized: ‘Silombela is deserving of no sympathy; in a confession produced at trial he admitted to eight murders. Nevertheless he has been accorded all the advantages which the British 114. Ibid. 115. Lusaka to CRO, 22 December 1965, TNA DO 208/21. 116. Kwame Nkrumah to Hastings Banda, 10 January 1966, York University Papers on the Malawi Cabinet Crisis 1964–5, cited in Baker, Revolt of the Ministers, 263–4. 117. Ibid., Memorandum Owusu to Nkrumah, 19 January 1966. 118. See Elias, The Civilising Process. 119. Governor-General on ‘Petition to the Queen’s Most Gracious Majesty concerning one Medson Silombela charged with Murder’, 18 November 1965, NAM 11-15-1F 185.92. 120. See Great Britain, Murder (Abolition of the Death Penalty) Act 1965 and TNA DO 207/282; DO 207/299; DO 183/485; CO 1032/464.

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system of justice confers … he will not be subject to any inhuman or degrading punishment for the offence of which he has been found guilty.’121 This reference to the UN Declaration on Human Rights is one of the rare occasions where human rights discourses were explicitly referenced in imperial debates on the death penalty in Africa. In response to petitions to the Queen by Silombela’s defence counsel, British officials stressed repeatedly that the matter was exclusively of concern to the Malawian government. The high commissioner wrote that ‘it is not for the British Government to disapprove the public execution as such’, but he had warned Banda not to underestimate public opinion on the matter in Britain, and ‘any example of African barbarism at this stage would add grist to the Rhodesian mill’ and damage race relations.122 Part of the difficulty faced by officials was that although they were negotiating on the grounds of a particular legal case, Silombela’s conviction could not be treated in isolation from wider events and sentiments.123 One telegram from the British High Commission in Zomba stated: ‘[I]n many places Silombela would have been tortured and disappeared; is it then a “barbarity” to try and execute him? … Banda will no doubt claim that we are being unduly sensitive, and perhaps prejudiced by current feeling against all capital punishment in Britain.’124 Private negotiations between the British High Commission and Banda’s government in Zomba became Britain’s main method of exerting pressure on Malawi.125 British officials repeatedly stressed that a public execution would damage Malawi’s international reputation and that erecting proper gallows outside of Zomba prison would take two days’ work, allowing time for uncontrollable crowds and media attention to gather. Perhaps it was the suggestion by two of his ministers, Richard Chidzanja and Gomile Kutumanji, that no such preparation was required since ‘it was only necessary to string Silombela up from a tree’, that made Banda question the wisdom and impact of his decision.126 The execution negotiations reveal much about official attitudes towards state violence and about the importance of ideas of justice to state legitimacy. Britain’s first priority in these negotiations was to ensure a ‘humane execution’, by which they meant a properly constructed scaffold and the employment of the Rhodesian professional executioner, Mr Catchpole. Banda insisted however that if Catchpole ‘set it up’, African prison officials could complete the job. It was to be a Malawian, not a European, hand that exacted justice. In the end, Catchpole conducted the execution but was screened from the audience, who only saw his African assistant. Secondly, law and order had to be maintained. The crowd were to be controlled, 121. Governor-General Gibbs, Comment on Petition to the Queen, 25 January 1966, NAM 11-15-1F 185.92. 122. High Commissioner Cole to CRO, 21 January 1966, TNA DO 208/21. 123. Confidential Memo – Public Executions, TNA DO 183/702. 124. Ibid., BHC Zomba to CRO, 1 November 1965. 125. Roberts on meeting with Prime Minister Banda, 6 November 1965, TNA DO 183/702. 126. Cole to CRO, 24 January 1966, TNA DO 208/21.

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by police force if necessary, and any attempt to desecrate the body was to be prevented. The third priority, but the first conceded by Malawi in negotiations, was the non-involvement of any British officer. Britain could not be seen as facilitating or condoning the execution, even if privately her officers had come to accept it as expedient.127 Under British and international pressure, Banda finally conceded that the execution be held inside Zomba prison, with four to five hundred witnesses.128 These included the victim’s relatives and many from Silombela’s village, who were not informed beforehand they would witness the execution, in order to limit press awareness and prevent large crowds gathering. Witnesses were merely told to gather at Zomba airfield, ostensibly to hear a speech by Banda. They were then collected in army trucks and driven away to the prison, which must have been unnerving for many.129 Although maximum deterrence was sought through public exposure, the event was to be tightly controlled. Journalists were refused admission to the site, no photos were allowed and the police were given authority to smash any cameras. In addition, the gallows were screened off by corrugated iron, with the condemned man dropping out of sight as the trap opened.130 When Silombela went to his death at 7.00 am on 1 February 1966, what was used was a system of semi-public execution, similar to that employed by the colonial government years before. The didactic symbolism of public execution was prioritized, reassuring the people their government was doing its duty in punishing criminals and protecting order, but concepts of ‘civilized’ and ‘humane’ governance could not be ignored; deterrence would have to co-exist, if uneasily, with decorum.131 The death of one man, as a murderer and a rebel, became a symbol around which the Banda government attempted to re-establish social order and its authority, whilst Britain attempted to defend its reputation as the seat of justice for former colonies – with their relationship reconstituted in the Commonwealth – against its increasingly contentious political position in Southern Africa. The negotiations over Silombela’s execution were played out against the background of decolonization, the Rhodesian crisis and, to a lesser extent, the abolition of capital punishment in Britain; the hanging of an African was still seen by Britain as a race relations issue rather than relating to the general morality of the death penalty. The story of capital punishment in colonial and independence-era Malawi highlights the continuities in strategies of order and political control. The death penalty remained the supreme locus of the state’s power over its recalcitrant subjects, but that power was never total, being refracted through the lens of race and restricted by the state’s own need for legitimacy. 127. BHC Zomba to CRO, undated, TNA DO 183/702. 128. See TNA DO 208/21 and DO 183/702. 129. Defence adviser to BHC Zomba, 2 February 1966; Cole to CRO, 3 February 1966, TNA DO 208/21. 130. BHC Zomba to CRO, 27 December 1965, TNA DO 183/702. 131. See Hynd, ‘Decorum or Deterrence’, 445.

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Conclusion Scandals are created for a political purpose: they have meanings and a significance which resonate beyond the original event, and which require an audience. These scandals were born of the disjuncture between colonial claims to civilization and the violence perceived as necessary for advancing that cause and securing colonial control, violence that was increasingly read as a form of the barbarity it purported to countermand. Pressure groups have historically seized on capital punishment and used it as a weapon to advance a wider social and cultural agenda, with the death penalty being shaped in practice and discourse to accommodate new meanings.132 Debates about capital punishment are at least as much about state power as they are about justice and advancing civilization, and this is a point where it can be argued that anti-colonialists and humanitarians missed an opportunity to pressure the British government by failing to stress this in their arguments, preferring to approach the subject obliquely through their concentration on the impact capital punishment had on race relations. Significantly though, and without any apparent recognition of the contradiction within the discourses, the issue of the death penalty in Africa was nearly always debated in isolation from that of the abolition of capital punishment as a penal tool per se. This highlights the fundamental racism of colonial subjectivities, whereby even in humanitarian discourses Africans were placed outside of general conceptions of humanity when it came to the application of lethal judicial violence. When scandals of crime and punishment in Africa erupted, capital punishment undeniably became a politicized penalty and a powerful synecdoche of the vagaries of colonial rule. Convictions and executions were shaped in the intersecting moral and political economies of empire and colonized society, in race relations and social defence, more than they were by pure notions of law. In scandalous cases which aroused public interest, the condemned African was at the mercy of politicians as much as the judge or the hangman, and in the next chapter we shall discuss what happened to them when they were finally sent to the gallows.

132. McGowen, ‘History, Culture and the Death Penalty’, 232.

Chapter 7 ‘ I N A H UM A N E A N D D E C O R O U S M A N N E R’ : R I T UA L S   O F E X E C U T IO N F R OM P U B L IC H A N G I N G S   T O   D E AT H   R OW

Public executions have been instituted by the Government in Uganda in an attempt to check the terrible wave in crime, particularly murder. The first execution took place at Hoima, a large native centre in the Northern Province. Before a crowd of 4,000 Africans, two natives were hanged from an open-air scaffold for murder.1 – Reuters, Nairobi, 2 June 1932 Public executions had been outlawed in Great Britain since 1868, in a statute that legally extended to all British territories, domestic or foreign. By the twentieth century, metropolitan opinion regarded such public displays of state violence as barbaric, inhumane and uncivilized. London repeatedly instructed colonial governments to avoid their use and conduct executions behind prison walls according to metropolitan practices. And yet, public executions continued to be used sporadically in Britain’s African territories into the 1930s and occasionally beyond. In 1932 the Hoima executions in Uganda caused considerable embarrassment to the Colonial Office when they were highlighted in The Daily Mail and parliamentary questions, leaving officials frantically contacting authorities in Entebbe to check the veracity of the claims. Uganda was not alone in employing public executions; similar cases were reported in Kenya, Tanganyika, Nigeria, Sudan and the Gold Coast in the 1920–50s. Despite significant metropolitan and internal colonial pressure to end public executions and confine hangings to relative anonymity behind prison walls, there were ongoing tensions around the witnessing and performance of executions, with a system of semi-public hangings emerging in some territories. So, why was there this disparity between British and colonial manifestations of the death penalty, between the rhetoric of the civilizing

1. Reuters report cited in Roberts, Tangled Justice, 133.

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mission  and the use of public hangings? Why, and how, did this rapid, but incomplete, ‘de-spectacularization’ of executions, to use Derrida’s term, occur?2 The use of public executions, and the transition to hangings behind prison walls, reveals the tensions between, and within, colonial and metropolitan discourses on violence, and its role in colonial governance. The colonial era in Africa saw an evolution in the practice and rituals of capital punishment; executions transformed from a public symbol of British power to a sanitized judicial murder. However, penal or legal reform could never eradicate violence from a punishment like execution: it could merely recast it. As colonial states developed, the violence inflicted by their legal and penal systems was increasingly reformed according to the dictates of ‘civilization’ and ‘humanity’. Penal violence was intended to act as a civilizing force, moulding Africans into obedient colonial subjects. Throughout the colonial period in British Africa, the primary aim and function of the death penalty was one of deterrence: rather than retribution against an individual, an execution was a didactic measure seeking to deter others from challenging colonial order or engaging in ‘uncivilized’ lethal actions that ran counter to colonial (and local) mores. This judicial theatre of death, however, had multiple audiences to impress – metropolitan, official, settler and African – many of whom held divergent attitudes towards its enactment, creating a crisis of ritual semiosis around hangings. The first part of this chapter looks at the changing practice and rituals of executions to unravel their symbolism and the meanings they were meant to convey, as well as the meanings that may have actually been inferred from them by their various audiences. Three key processes shaped the reform of executions: despectacularization, centralization and sanitization. Despectacularization is here taken to refer to the removal of execution from the public sphere and its transference to an enclosed space behind closed doors within prison precincts.3 Centralization refers to the process of moving executions from outlying regions and upcountry prisons to central prisons in a colony’s capital. Hangings were sanitized in the sense that their enactment was to be clean and efficient, using modern gallows technologies following metropolitan practice. The second part of the chapter analyses the prison spaces and social networks that shaped the process of executions from a condemned criminal’s arrival on death row to their death on the gallows, highlighting the emotional regimes that shaped colonial hangings.4 Here, it shows the contested dehumanization that was central to colonial execution 2. Jacques Derrida, The Death Penalty: Volume One, trans. Peggy Kamuf (Chicago: University of Chicago Press, 2014), 43. 3. This process is sometimes referred to as penal privatization, but the term despectacularization is used here to highlight that the change was to reduce the potential threats posed by the spectacular nature of public hangings, and not to remove hangings from state control into the private sector. See Garland, Punishment and Modern Society on penal privatization. 4. See Anne Carol, Au pied de l’échafaud: une histoire sensible de l’exécution (Paris: Belin, 2017).

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rituals. Overall, the chapter shows that the transition from public hangings to sanitized executions in central prisons was neither unilinear nor irreversible, and the rhetoric of colonial reform was underlined by a reality of continued violence which reflected and reinforced the contradictory nature of colonial rule, torn between discourses of civilization and the perceived necessity of violence.

Public executions: The visible performance of colonial violence During the partition and pacification of Africa, capital punishment was translated into an African context as an integral aspect of frontier justice, with the aim of displaying the power of the advancing colonial state, and of establishing or maintaining the ‘law and order’ that was central to its functioning.5 Power in the colonies was a form of social practice, and the public administration of justice was an important aspect of this, creating a colonial public sphere out of the repetitive displays of power by colonial government.6 The use of the death penalty was both shaped by this performance of power, and shaped it in turn. Hangings were part of the colonial iconography: ‘events’ but also ‘inventions’ which sought to ‘inculcate certain values and norms of behaviour’ for both the colonized and colonizer through the controlled display and reassertion of the power of a colonial state.7 Whilst priding themselves on maintaining ‘civilized’ norms of behaviour in Africa, colonial officials accepted and inflicted violence regularly: be it floggings, collective punishments or land seizures. Colonial strategies of punishment revolved around corporeal violence and spectacle as well as disciplinary techniques.8 Some colonizers believed that violence was a civilizing force and the only language ‘savage’ Africans could understand.9 Executions represented the apogee of this continuum of routine, practised colonial violence which was essential to establishing control. The exigencies of colonial rule sometimes produced chilling homologies between the purported barbarism of Africa practices and the acts of terror used to rule them.10 In the earliest years of colonization, executions in South Africa’s frontier societies drew on practices from 5. David Killingray, ‘The Maintenance of Law and Order in British Colonial Africa’, African Affairs 85, no. 340 (1986): 411–37. 6. Jan-Georg Deutsch, ‘Celebrating Power: The Administration of the Law and the Public Sphere in Colonial Tanzania, 1890–1914’, Journal of African Cultural Studies 15, no. 1 (2002): 95–100. 7. Eric Hobsbawm and Terence O. Ranger, The Invention of Tradition (Cambridge: Cambridge University Press, 1983), 1. 8. Bernault, ‘The Shadow of Rule’. 9. See Richard Meinertzhagen, Kenya Diary, 1902–06 (Edinburgh: Oliver & Boyd, 1957). For a critique of such discourses, see Ngũgĩ wa Thiong’o, Detained: A Writer’s Prison Diary (London: Heinemann, 1981), 34–9. 10. Pierce and Rao, Discipline and the Other Body, 2.

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early-modern Europe, with cases of shooting, strangling and hanging for freemen, whilst slaves could be broken on the wheel or cross, decapitated, quartered or even burnt to death.11 In line with the sanitization of punishment in Europe however, these extreme punishments were dying out by the late eighteenth century and ended with the onset of British rule.12 During the Scramble for Africa, colonial pacification campaigns and the First World War, executions were often carried out by military or police firing squads.13 However, this method was regarded as crude and suitable only for militarized actions.14 Across British colonial Africa, officials came to view hanging, the metropolitan penalty, as the most effective, humane and least violent – and therefore most acceptable – method of death; rather ironically for a practice that had originally been intended in Britain to inspire terror through the agonizing display of death. German and Belgian colonies also used public hangings to reinforce their hegemony.15 In the French empire the guillotine was the general method of execution in Algeria and Indochina, but in French West Africa its application took on a highly racialized application, only being deployed to execute murderers convicted of killing Europeans. For Africans convicted of murdering other Africans, death by military firing squad remained the standard method of execution.16 The use of the body, dead or alive, has historically been a key site of political, moral and economic power struggles between Africans and their rulers, whether colonial or indigenous.17 African and colonial attitudes towards death and the body starkly diverged. In many African cultures, the human body is not conceptualized as a single biological entity but as a ‘multiple and fragmented entity that retained

11. Albie Sachs, Justice in South Africa (London: Chatto, 1973), 26. 12. See Pieter Spierenburg, A Spectacle of Suffering: Executions and the Evolution of Repression from a Pre-Industrial Metropolis to the European Experience (Cambridge: Cambridge University Press, 1984). 13. Life Sentenced Prisoner Tossa Agudja in Lome Prison, PRAAD CSO 15/9/31. 14. James S. Read, ‘Kenya, Tanzania and Uganda’, in African Penal Systems, ed. Alan Milner (London: Routledge and Kegan Paul, 1969), 89–164, 124; Criminal Cases 1892–3, NAM J4/2/4. 15. Deutsch, ‘Celebrating Power’, 95–100; Glassman, Feasts and Riot, 253–8; Vellut, ‘8. La peine de mort au Congo colonial’, 237–83; Karimunda, The Death Penalty in Africa, 123– 5; Bernault, ‘Body, Power and Sacrifice in Equatorial Africa’, 218–19; Rushohora, ‘Graves, Houses of Pain and Execution’, 279. 16. This was in part an inheritance from military practice, part a pragmatic recognition of the cost and technical difficulties of guillotining, and partly due to concern that dismemberment of a body violated indigenous and Islamic custom. See Gendry, ‘“Seule une répression sévère”’, 11; Gendry, ‘Le droit de tuer’, 95; Dior Konaté, ‘“The Firing Squad and the Guillotine”: Crime, Capital Punishment and Execution in Colonial Senegal, 1890–1960’, unpublished paper. 17. See Tony Ballantine and Antoinette Burton, eds., Bodies in Contact: Rethinking Colonial Encounters in World History (Durham, NC: Duke University Press, 2005).

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power beyond death and dismemberment.’18 The body is a sacred site, a material entity but also a complex spiritual entity that exists separately from the corporeal body and which could directly influence human affairs.19 Colonial hangings therefore created tensions between local conceptions of the body as a fetish (a material entity with sacred power) and European notions of the body as a sign (which does not hold but merely signals power).20 Such tensions were enhanced by the fact that hanging was not a traditional method of execution in Africa, and was more commonly associated with suicide.21 As Joseph Casely-Hayford wrote of the Gold Coast, ‘the Ashanti loathes the hangman’s noose … a disgraceful exit which his soul abhors’, and noting that decapitation was the ‘honourable’ method of execution in the Asante empire.22 There is no direct evidence that British authorities were aware of this dishonour and intended it to intensify capital punishment. Exceptionally, however, the Emir’s courts in Northern Nigeria retained capital sentencing powers and were allowed to practise both drowning and decapitation by the sword in lieu of hanging. Court officials attested that these methods were less ‘cruel’ and more civilized forms of death suitable for local cultures, with decapitation only outlawed in 1936.23 Colonial states used public executions to increase the didactic effects of punishment by teaching Africans lesson in the only language their colonizers thought they understood: violence and death. Relatively few detailed archival traces exist through which to reconstruct public hangings in Africa, however. These consist primarily of accounts written by British officials and district commissioners in their memoirs, and occasional photographs taken of the executions. Early colonial executions were often improvised affairs, with the gallows being created from a nearby tree or using basic short drop gallows frame, although some territories also had mobile and long-drop gallows.24 Executions would sometimes occur shortly after public trials and convictions, before the assembled ranks of local communities.25 In German Tanganyika, public executions after mashauri (court proceedings) became so strongly engrained on the public memory that they were still recalled over eighty years later.26 African police or soldiers were 18. Bernault, ‘Body, Power and Sacrifice’, 217–19. 19. Parker, In My Time of Dying, 42–57. 20. Bernault, ‘Body, Power and Sacrifice’, 211. 21. Megan Vaughan, ‘Suicide in Late Colonial Africa: Evidence from Inquests in Nyasaland’, American Historical Review 115, no. 2 (2010): 365–404. 22. Casely-Hayford, Gold Coast Native Institutions, 69. 23. Raymond Leslie Buell, The Native Problem in Africa, 2 vols. (New York: Macmillan, 1928), ii, 365; Lugard, Political Memoranda, Memorandum VIII, para. 3(c); Killingray ‘Punishment to Fit the Crime?’, 198. Calls for beheading persisted after its official end though; see Death Sentences, Nigeria 1938, TNA CO 583/225/11. 24. Henry Lewis Ward Price, Dark Subjects (London: Jarrolds, 1939), 90–1. 25. Ibid.; David Rooney, Sir Charles Arden-Clarke (London: Coolings, 1982), 33–4; Wilfred S. Blunt, Atrocities of Justice under British Rule in Egypt (London, 1906), 32–57. 26. Deutsch, ‘Celebrating Power’, 95–100.

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co-opted to participate in such ceremonies, which colonial authorities hoped would confer a degree of legitimacy on the event, binding rulers and ruled in blood.27 Any military patrols nearby would also attend, to reinforce the message of colonial power and to ensure order. To enhance the deterrent function of capital punishment, colonial authorities also frequently chose to stage public hangings in sites which combined high visibility with proximity to the scene of the crime.28 The hangings were normally conducted by either the district officer or a police official, who were untrained as executioners and consequently sometimes bungled the hanging.29 This dialectic between the power implied by the execution ritual and its ad hoc manifestation is a good analogy for a colonial state itself. This was frontier justice, shaped to display and enhance the power of the advancing the colonial state. Few accounts make any mention of what happened to the bodies of executed Africans, suggesting that post-mortem displays were not commonly part of the rituals of judicial hanging in British colonial Africa.30 Gatrell argues that the purpose of public executions in England was ‘to teach moral lessons, to affirm the law’s sovereign power, and to bear witness to the law’s open process’.31 In colonial Africa, public executions did not represent the law as much as the racialized power of the state, as embodied in the district officer. The conception of the law as a sovereign autonomous force did not widely exist in Africa, and executions were instead intended to secure order and manifest the white man’s power. Colonial officials always had to be present at the execution: as representatives of the state, to symbolize its power, granting legal and social legitimacy to the act, and ostensibly to ensure that the hanging did not offend state procedures or sensibilities  – that it was carried out in a ‘humane and decorous manner’.32 At district level, executions served as a heuristic device for colonial officers themselves, and settler communities – a self-referencing performance of authority to reassure Europeans of the superiority of colonial power over African disorder. The exercise of state killing had to cohere with the maintenance of both white prestige and ‘civilized’ governance. The most detailed accounts of public hanging are of the Denshawai executions in Egypt, 1906, when four men were publicly hanged for the purported homicide of a British officer.33 According to Wilfred Blunt, a British commentator in Cairo, 27. For a similar argument about corporal punishment, see Bernault, ‘The Shadow of Rule’, 77. 28. Rooney, Sir Charles Arden-Clarke, 33–4. 29. Ward Price, Dark Subjects, 90. 30. See Boyle, Through Fanteeland to Coomassie, 343 for one example during a military campaign. 31. Gatrell, The Hanging Tree, 601. 32. Administrative Memo, 31 March 1900, Zambian National Archives KST 2/1/1 cited in Chanock, Law, Custom and Social Order, 71. 33. Blunt, Atrocities of Justice. See Kimberly Luke, ‘Order or Justice: The Denshawai Incident and British Imperialism’, History Compass 5, no. 2 (2007): 278–81.

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the hangings which followed the day after these convictions were not ‘justice’, but ‘an act of public vengeance’: The gallows were erected in the centre of the village, and at noon the first convict was brought to the scaffold … In the midst stands a gigantic scaffold, twenty to thirty feet in height. A staircase of a dozen steps leads up to the platform of two square metres; two arms are raised and cross one another towards the sky to fix the gallows where is fastened a brand new rope, strong enough to tie up an elephant … The roof of the huts are crowded with moaning women; they utter cries of terror at the sight of this apparatus for the executions … already hands and feet are being bound, a leather belt is firmly fastened round the loins, the slip knot passed round the throat, the black hood drawn over the head; at a sign from the executioner the assistants stand aside, the hangman works a lever, the trap suddenly opens, the body falls straight into space, the cord is checked with a jerk, a dull crack of dislocated bones … Torrents of imprecations mount to the skies, the police can hardly restrain the crowd which surges out of the village. Order is gradually restored … Civilisation has triumphed!34

Public executions became central to the gradual establishment of colonial hegemony, but how did they contribute to this process? The public execution in Africa certainly had what Foucault described as a ‘juridico-political function’. It was ‘a ceremonial by which a momentarily injured sovereignty [was] reconstituted … an exercise of terror’.35 These hangings were not just about terror, but about order, the assertion of colonial control and the rule of law: not just about violent spectacle and excess, but about ritual legitimacy. By claiming the sole right to kill, colonial states sought the monopoly of violence which would secure their rule. Executions at once represented both the struggle between the old and new orders, and the victory of the colonizers.36 But to govern the colonized populations in line with shifting metropolitan and imperial norms and sensibilities, the ritual of execution had to change.

Re-staging death: The transition from public hangings to private executions Hangings were part of the colonial iconography, but the messages and meanings they contained altered over the years. Methods of execution reflected the evolution of sensibilities and structures of government in colonial territories: from military firing squads, to public hangings on hastily erected gallows or nearby trees, 34. Blunt, Atrocities of Justice, 52–5. 35. Foucault, Surveiller et punir, 48–9. 36. See Randall McGowen, ‘History, Culture and the Death Penalty: The British Debate, 1840–70’, Réflexions Historiques 29, no. 2 (2003): 229–49.

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through to executions within prison precincts on Home Office approved longdrop gallows.37 From the early twentieth century there was a despectacularization of execution rituals: the processes of execution were removed from the public gaze, centralized into a colony’s main prison, and sanitized by the use of calibrated British technologies of hanging.38 Why did colonial officials, in London and African colonies, enforce an end to public executions? Global and Eurocentric scholarship on the death penalty is split over whether cultural or political forces have been more significant in shaping the changing practice and rituals of execution. Many scholars credit such change to the repugnance that civilized people are supposed to feel at the sight of suffering.39 In this Eliasian view, the abolition of public execution was part of a general ‘civilising process’ and represented a step in the direction of a civilized and humanitarian administration of the law, affected by changing social and cultural sensibilities.40 In contrast, a Foucauldian perspective argues that public punishments were abolished not because they were inhumane, but because they were ineffective. In Europe, exemplary and demonstrative punishments were replaced in the nineteenth century by a new penal economy of power, which sought more efficient, less arbitrary punishment that acted on the mind rather than the body.41 More recent historiography on the abolition of public executions has concentrated on the political background and attitudes of governing classes. McGowen has argued that the deepest objection to hanging was in England not to the suffering inflicted upon the condemned, but rather to the effects on those inflicting and watching the punishment. Spectacles of execution were held by reformers to increase violence and illegality, rather than decrease them.42 Gatrell argues that early Victorian elites abolished public executions not because they were afraid of the violent emotions of the crowds, but because they wished to conceal and deny these same emotions in themselves.43 Abolition of public execution was thus a means of securing and strengthening capital punishment in England by making its operation less disquieting to the conscience of the political and administrative elite, a move that speaks more of anxiety than security or complacency. From a colonial African perspective however, the evidence strongly indicates that reform was primarily driven by political more than cultural forces. As Garland argues, the process of privatizing and reforming executions was less a result of more refined sensibilities and more part of ‘the ongoing effort of government officials to exert

37. Read, ‘Kenya, Uganda and Tanzania’, 124. 38. See Derrida, The Death Penalty, 43. 39. Randall McGowen, ‘Civilising Punishment: The End of Public Execution in England’, Journal of British Studies 33, no. 3 (1994): 257–82. 40. Elias, The Civilising Process. 41. Foucault, Surveiller et punir. 42. McGowen, ‘Civilising Punishment’, 258–9. 43. Gatrell, The Hanging Tree.

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ever tighter control over a fraught undertaking and to manage the meanings that it put into circulation’.44 The evidence also suggests that where cultural forces did influence broader shifts in colonial attitudes towards the physical display of lethal violence, racialized notions of civilization held greater weight than those of a shared humanity with African subjects. The main pressure to eradicate public hangings in British Africa came not from within colonial governments or African communities, but from the Colonial Office itself. The despectacularization of execution in the first half of the twentieth century with its removal behind prison walls created the greatest change in capital punishment’s meanings and rituals. Public executions had been outlawed in Britain since 1868, and as such London was against their use in colonial contexts. In 1905, a circular was sent out to all colonial governors detailing the British Home Office’s execution procedures that were to be adopted: executions were to occur behind closed doors, in prison and using long-drop gallows, carefully calibrated to ensure near instantaneous death through dislocation of the vertebrae.45 This circular was subsequently reissued on a number of occasions, whenever the metropole became particularly concerned about public or botched hangings.46 The time scale of the transition between public and private execution altered by territory, varying according to the length of colonization, local perceptions of crime and security, and the development of the state and its penal systems. For one thing, private hangings behind prison walls required the establishment of colonial prison systems. Prison executions with a restricted audience broadly appeared in Southern Africa by the late nineteenth century, then Eastern and Western Africa by the 1930s, although public executions occurred occasionally in Emir’s courts in Nigeria and in Sudan until the 1950s.47 Public executions apparently continued upcountry in the Gold Coast until the early 1930s, ending in response to new colonial orders after Hoima.48 In general however, metropolitan pressure for reform meant that, by the 1920–30s, the majority of hangings in British Africa were being carried out in private, within prison precincts. Furthermore, the despectacularization of executions created a change in the meaning and dramaturgical criteria of capital punishment: the theatre of death was now directed towards the colonial administration and European settlers as well as African populations, comprising a discourse of civilising violence. Notably, execution practices were differentiated along racial lines. Even in settler colonies,

44. Garland, ‘Why the Death Penalty Is Disappearing’, 81. 45. Judge Hamilton to Colonial Secretary, 29 May 1909, Capital Sentences, KNA AP/1/526. 46. See Circular 288/53, Capital Punishment – Procedures and Equipment 1952–3, TNA CO 859/445. 47. Turrell, White Mercy, 249–51; Milner, Nigerian Penal System, 336–7; Vasdev, Law of Homicide in Sudan, 53. 48. Public Executions, 1934, PRAAD CSO 4/1/238–9.

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Europeans were rarely hanged, and never in public.49 Execution procedures were about shame and degradation, which did not mesh well with the maintenance of white prestige. The rituals of hanging shifted from having hundreds witness the condemned murderer’s death when public executions were held openly outside a village and district officers enforced attendance, to having only a few officials view the last minutes of the condemned person’s life at the prison gallows by the later colonial period. The theatre of death might have had a restricted audience, but this did not lessen its drama or simplify its meanings. Colonial states were occupying autocratic regimes rather than liberal democracies: punishment rested on differing conceptions of crime and the law between customary and English common law, and conceptions of violence and civilized behaviour also widely diverged between the colonized and colonizer. However, the African situation was not entirely sui generis. Colonial officials identified themselves as representing British norms of civilization and faced similar general concerns about law and order as their domestic counterparts. More importantly, colonial governments operating under the increasingly watchful eye of the Colonial Office in London came under growing pressure to reform its penal practices in accordance with metropolitan policies. Whilst Foucault derided any reference to sensibility and humanity as simply a mask for a ‘new penal mapping of the social body’, changing metropolitan and international attitudes towards violence and civilization were influential in shaping the development of the metropolitan execution policies and practices that were subsequently exported to the empire for political reasons.50 They also shaped the willingness of colonial officials to accept – or adapt – these policies. There are clear metropolitan and imperial political pressures that drove the transition from public to private executions behind prison walls, but the dialectics surrounding that transition reflected a confluence of both cultural and politicoeconomic motives in determining a colonial state’s method of implementing severe punishments.51 Campaigns to reform capital punishment in the West historically drew heavily on discourses of civilization and humanity. These concepts, whilst interlinked, hold different implications for penal reform. As Garland argues, whilst civilized sensibilities are concerned to reduce the aesthetic affront involved in putting a person to death, humanitarian sensibilities rather fundamentally object to human suffering: one is primarily about manners and

49. The exception to this was South Africa, where eugenicist thinking during the interwar period meant that poor white Europeans were in fact more likely to be executed for similar crimes than Black Africans or persons categorized as ‘Coloured’. See Turrell, White Mercy, 95–115. 50. Foucault, Surveiller et punir, 78. 51. John Mcguire, ‘Judicial Violence and the “Civilizing Process”; Race and the Transition from Public to Private Executions in Colonial Australia’, Australian Historical Studies 29, no. 111 (1998): 187–209.

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appearances, the other about underlying moral substance.52 In a colonial African context, civilized sensibilities were strongly associated with the civilising mission that was held to justify the whole imperial project, and were consequently far more influential than humanitarian sentiments. Private executions were hatched in the culture of civility, not humanity: it was not kinder to the condemned to be hanged quietly in prison with only a few officials in attendance, but it was certainly seen as more ‘civilized’.53 Wilfred Blunt, writing of the Denshawai executions in Egypt, attributed metropolitan rejections of colonial public hangings to such sentiments when he stated: ‘Private executions are preferred far more because they spare our own highly civilised feelings more than out of any compassion for the condemned. To be strangled privately in a prison yard by a hangman and prison warders is a far more horrible ending than to be hanged, even before an angry crowd, in the open air.’54 The Colonial Office certainly opposed public executions whenever they were made aware of them, as with the Oron, Hoima and Kenyan hangings discussed below, whilst influential humanitarian organizations such as the Howard League for Penal Reform, the Fabian Bureau and the ASAPS also protested against public executions in Africa as markers of colonial brutality.55 Charles Clifton Roberts, former judge and attorney-general of Nyasaland and executive committee member of the Howard League for Penal Reform, voiced much of progressive, humanitarian British opinion in stating: ‘We still have public hangings in Africa, which can hardly have a civilizing influence and merely pander to morbid vanity … The real question is the humanizing influence which the disappearance of capital punishment would have on the African races.’56 There was a parallel tendency among colonial officers, both legal and administrative, that whilst they privately supported public executions as an effective deterrent against serious crime, their official discourses came to reflect the general opinion that such hangings were uncivilized and incompatible with modern British rule and justice. The references to ‘humane’ policy or ‘humanity’ in colonial records were linked more towards concern about negative inferences that could be drawn by anticolonial commentators if executions were not held in line with such concepts, rather than a genuine concern for the treatment of condemned Africans as human beings. Whilst some individual officers expressed human sympathy for the condemned after witnessing their final moments, there was little direct objection to the human suffering of Africans facing judicial execution per se. Such sentiments were more influential in shaping metropolitan opinions, as explored in Chapter 6’s

52. Garland, ‘Why the Death Penalty Is Disappearing’, 85. 53. Gatrell, The Hanging Tree, 23. 54. Blunt, Atrocities of Justice, 32. 55. Calabar Executions [Oron]1923, WL MSS Brit.Emp.s.22 G 241; Public Executions – Uganda 1932, TNA CO 536/172/14. 56. Roberts, Tangled Justice, 87–8.

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scandalous executions. Few critiques of execution rituals or policy drew explicitly on humanitarian or human rights discourses, even in the late colonial era and during the extremes of the Kenyan Emergency executions. ‘Humanity’ was instead intricately linked in colonial administrative discourses with ‘efficiency’ in enabling the continued acceptability of executions.57 It was not that executions themselves had become unacceptable, but that the condemned could not be made visually to suffer unnecessarily through official inefficiency. The state had the right to take life to defend society against the murder, but not to cause the additional penalty of pain. The adherence to British standards, procedures and equipment of execution shows the continued belief in Britain as the height of civilization, and in the centrality of technology and routinization to that superiority. Whilst metropolitan political pressure was crucial in forcing the pace of reform, it was not the only vector of change. This is shown in the centralization of hangings, a parallel process to despectacularization. Among colonial administrations, concern about the rudimentary nature of execution procedures and the potential for errors and scandals led to a centralization of executions. Hangings held in up-country district prisons were sometimes botched, either by local officers who lacked the necessary expertise, or through difficulties in transporting the necessary equipment and technology, such as portable gallows or ropes to the site. In 1934 the chief commissioner of the Northern Territories in Ghana requested the transfer of executions to Accra, as his assistant district commissioner, usually a young officer with short service, had to fulfil the role of a prison superintendent in performing the execution, doing ‘everything with his own hands, even to the point of fixing the noose and pulling the lever’.58 In the Gold Coast, executions ceased at Tamale in 1935, and Sekondi by 1938, becoming centralized to James Fort, Accra.59 In Nyasaland, executions were centralized in 1924 after a badly botched hanging of two men, Jim and Makoshonga, in Lilongwe led to one man being hanged twice and the other being shot in the head after the rope broke, an event that scandalized officials so much that Chief Justice Jackson threatened to charge with murder any officer who violated the terms of an execution warrant in such manner in future.60 Indeed the frequency of ‘inefficient’ and botched executions serves as a metonymy for the deficiencies of colonial states more generally: the sovereign power of life and death was supposedly the apogee of colonial power but even executions could not be effectively controlled, raising serious concerns about the wider functioning of colonial governance.

57. Protectorate and Colony of Nigeria, Report on the Administration of Prisons, 1950–1 (Lagos: Government Printer, 1951), 23. 58. Chief Commissioner, 17 December 1934, Tamale, Criminals condemned to death in Northern Territories, PRAAD CSO 15/3/158. 59. Gold Coast Colony, Annual Report of the Prisons Department, 1944–5, 3. 60. Murder Trial – R. v. Jim and Makoshonga, NAM S1/2664/23.

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Tensions in the transition: Why public executions refused to die The principle of execution behind prison walls was firmly established in colonial Africa by the 1910–20s. However, in practice, the transition from public to private execution was neither uncontested nor unilinear. Colonial officials were quick to argue that the difference in material and political situations between Britain and Africa rendered such instructions unworkable. Calls for, and the use of, public hangings persisted into the 1930s and beyond. The removal of executions from public arenas in the first half of the twentieth century notably created a new problem for colonial states in transmitting their deterrent message. Officers repeatedly reported that Africans did not believe the condemned men were actually being executed: instead local communities believed that magic protected the criminals that they were imprisoned for life, or were even ‘turned into hyenas’.61 Such beliefs were further exacerbated by men returning to their villages from prison at the end of commuted sentences, or where a conviction was overturned on appeal on a legal technicality.62 To combat this, some colonial governments defied London to stage public hangings.63 One former governor of Uganda remarked that public executions were ‘quite within the Governor’s discretion and that he had himself ordered them in a number of cases’. The justification given for the execution of the two natives at Hoima that began this chapter was that they had been convicted of a ‘particularly cold-blooded and atrocious murder’, and that public executions were strongly supported ‘by native sentiment’.64 The Colonial Office however was ‘very unwilling to agree to the continuance of a policy which is manifestly opposed to the ordinary dictates of humanity’, and advised the Ugandan administration to find an alternative method of instructing the local population as to the consequences of murder.65 The sporadic uses of public execution in the interwar years in Africa seem to have occurred when there was a perceived breakdown of law and order. This was often linked to a threat to settler security, to persistent inter-ethnic violence or to murders conducted according to African beliefs deemed ‘repugnant’ under colonial rule, such as ritual murder.66 As highlighted in the previous chapter, in 1919 mass public hangings were held in Calabar, Nigeria to combat a rash of esere

61. Execution of Murderers, 1925, KNA DC/LDW/2/21/18; Gold Coast, Report of the Prison Department 1943–4, 3; Medson Evans Silombela v. Regina 1966, NAM 11-15-1F 185.92. 62. Execution of Murderers, KNA DC/LDW/2/21/18. 63. Public Executions – Uganda 1932, TNA CO 536/172/14. 64. Ibid., Sinclair Gowers, reported by C. Cliffe, 8 June 1932. 65. Ibid., Secretary of State for the Colonies to Acting Governor Scott, 20 June 1932. 66. See Ritual Murder  – House Sacrifice by Sasa Chief, West Nile 1950, TNA CO 536/222/6; Ritual Murders and Witchcraft: Basutoland, TNA DO 119/1377.

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poison bean killings.67 In Sierra Leone, following a wave of murders by the Human Leopard Society, ‘offenders who were found to have been directly implicated … were publicly hanged in their respective villages’.68 Such exceptional public executions were not just examples of colonial brutality: they were themselves constitutive of the rule of law. Agamben, drawing on the work of Schmitt, posits that the law has a paradoxical capacity to authorize its own suspension; that the very essence of sovereignty is expressed in the legal power of the sovereign to place himself outside the law and authorize such exceptional force.69 This argument holds resonance in colonial situations, where the establishment of colonial rule was based in the legal capacity to suppress alternative claims to authority through the resort to force and forms of violence otherwise condemned in law.70 The colonial administration of Kenya, a settler colony with a fragile hegemony, notably chose to interpret London’s rejection of public execution as ‘save under exceptional circumstances’, as with the 1917 conviction of three Lumbwa men accused of murdering their employer, the elderly farmer E. B. Drought, at Londiani on 31 August. The settler community made voluble calls for trial and execution at the scene of the crime. The acting governor instead ordered that members of the condemned men’s community witness the executions. Although London was wary about such semi-public executions, it decided to allow colonial governments to use this expedient as ‘there is always the possibility of lynch law, which would be deplorable not so much because of the necessity for hanging lynchers as because of the provocation to race hostility which it would give to the natives. If we can keep the general peace by letting a small number of natives see the results of brutal crime it is worthwhile’.71 Colonial governments did not only have to translate metropolitan discourses of violence in local contexts; they also had to mediate local discourses, both African and settler. Calls for public executions were again made by settlers in Kenya in 1934 after the murder of a Maltese farmer, Alex Semini, and the suspected rape of his wife, which resulted in the arrest of seven Lumbwa men. In an attempt to calm local settler outrage Governor Byrne held a meeting in Niavasha about ‘how best to punish the Natives’, at which calls for public execution in the Lumbwa reserve, or for the headman to witness the execution in prison were most prominent.72 As Gatrell asserts, culturally dominant groups most deplore 67. Nigeria: Calabar Executions [Oron] 1923, British & Foreign Anti-Slavery and Aborigines Protection Society, WL MSS.Brit.Emp.s.22 G241. 68. W. B. Griffith, The Far Horizon: Portrait of a Colonial Judge (Ilfracombe: Arthur Stockwell, 1951), 216. 69. Agamben, Homo Sacer, 16–26. 70. Julie Evans, ‘Colonialism and the Rule of Law: The Case of South Australia’, in Crime and Empire 1840–1940: Criminal Justice in Local and Global Context, ed. Barry S. Godfrey and Graeme Dunstall (Cullompton: Willan Publishing, 2005), 57–75, 69. 71. W. Bottomley, 21 March 1918, TNA CO 533/193. 72. Extract from The Times, 4 July 1943, Executions in Public in the Colonies, TNA CO 323/1283/2.

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brutality and violence when the state’s authority or their own is strong enough to obviate the need for its outward display.73 Not only were colonial governments in Africa not secure enough in their hegemonies to press for reform according to their cultural sensibilities, their sensibilities differed from metropolitan attitudes in respect of the infliction of violence on African populations, something which many colonial officials and settlers viewed as a necessity for the proper functioning of colonial rule. Inter-ethnic conflicts were the types of murder for which colonial administrators most frequently requested public hangings, particularly in frontier districts, as in Sudan and Somaliland.74 The issue was raised in Kenya in 1923, when the Colonial Office was made aware of the public execution by firing squad of two convicted Samburu men, Gerrick and Liagi, in June 1922 for an inter-tribal murder. Acting Governor Northey authorized this because a visible deterrent was required and gallows could not be transported to the Samburu district. According to the diary of Martin Mahony, the officer who conducted the firing squad: At 5.30 a.m. marched prisoners, guards and firing party out to range. Found all the Samburu chiefs and some Turkana already assembled there. Briefly read them the Governor’s confirmation of the death sentences. Blindfolded the prisoners and carried on. The whole affair did not last more than 15 minutes. Damn glad to get it over.75

It seems significant that exceptional public executions in the interwar years were apparently always authorized by acting governors, rather than governors themselves, which highlights either their lesser ability to resist political pressure or lesser concern about facing the political consequences. It was not only settlers or colonial officers who supported calls for public hangings however: local African communities, or at least their headmen and elders, could also be vociferous supporters of the measure.76 The boundary between Kenya and Abyssinia witnessed a long running feud between Ajuran and Boran communities, during which forty-eight people were murdered between 1924 and 1931, often at wells where the different groups gathered and competed for scarce water supplies. Provincial Commissioner Glenday reported that ‘the Fitaurari, the various headmen and elders of the warring tribes, all urged’ public executions at

73. Gatrell, The Hanging Tree, 11–14. 74. Brigadier G. Fisher to Colonel Jameson, East African Command, Nairobi, 20 September 1943, Legal – Privy Council Appeals 1943, TNA CO 323/1862/13; Vasdev, Law of Homicide, 374. 75. Martin Mahony, Barsaloi Diaries, 21 June 1922, WL MSS.Afr.s.487; Kenya 1923 Despatches, TNA CO 533/295. 76. Cited in Thora Williamson, Gold Coast Diaries: Chronicles of Political Officers in West Africa, ed. Antony Kirk-Greene (London: The Radcliffe Press, 2000), 79–80.

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wells where murders occurred.77 Despite backing from the British legate to Addis Ababa, the Colonial Office refused to countenance this step.78 As embodied performances, executions are formidable rituals of human sacrifice through which the state dramatizes its absolute power and monopoly of violence. Rituals are neither static nor discrete though: they draw their meaning, structure, style and affective resonance from the traditions they re-enact and the conflicts they address.79 The difficulty for colonial states was that executions had to represent multiple traditions drawn from African, colonial and metropolitan discourses, and were rarely able to mediate successfully the contradictions between these. Serious concerns about the transmission of the signification of executions to local African populations persisted until the end of the colonial period. In Kenya, the Executive Council minuted in 1933 that many Africans did not believe executions were carried out, and that the condemned men were rather ‘being sent to England or otherwise disposed of ’, with such beliefs being most prevalent in outlying districts and in cases where magical or ritual powers were attributed to the condemned. The district commissioner of Northern Turkana noted that when Laibon Lowalel was hanged, the Turkana refused to credit the fact and firmly believed he would return.80 As such, officials recommended that witnesses from the condemned man’s community should be summoned to observe executions where possible.81 As previous chapters have explored, the early 1930s was a significant period in colonial legal and penal reform, as the increasing spread of welfarist sentiment and new ideas of rehabilitation led to efforts to improve the treatment of offenders, with attempts to modernize prison systems and reduce, or at least occlude, the violence inherent in their operations. In respect of executions however the concern was rather that existing reforms had gone too far. Colonies accepted that they could not countermand metropolitan orders against public hangings but concerns that private executions hidden behind prison walls were failing to transmit the deterrent message of capital punishment to African populations fuelled calls for reinstating public witnesses. The 1933 Bushe Commission on penal policy in East Africa extensively debated this issue. Its final recommendations refused to support proposals for public execution in a murderer’s home district but recommended instead the ‘Kenyan system’ of bringing two witnesses from the condemned man’s community to view him before and after execution, and that a notification of execution should be published throughout the district. This recommendation was subsequently endorsed in a 1940 report by Alexander Paterson, the British 77. Provincial Commissioner Glenday, 12 October 1931, Disarmament of Frontier Tribes and Abyssinian Raids, Kenya, TNA CO 533/421/4. 78. P. Cunliffe-Lister to H. Moore, 9 June 1932, TNA CO 533/421/4. 79. Dwight Conquergood, ‘Lethal Theatre: Performance, Punishment and the Death Penalty’, Theater Journal 54, no. 3 (2002): 441–2. 80. Execution of Murderers, 1925, KNA DC/LDW/2/21/18. 81. Illiteracy and Crime, KNA PC/COAST/1/17/110.

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Commissioner of Prisons and celebrated penal reformer, following his official visit to East African prisons for the Colonial Office.82 The imputation was that justice must be seen to be done, even if state violence itself was to be hidden. This recommendation for a semi-public or witnessed system of execution shows that whilst changing sensibilities regarding acceptable violence and the treatment of Africans were encouraging more ostensibly humane punishments, the perceived need for effective deterrence and firm discipline necessitated retaining the symbolic violence of the execution, even if it was in a moderated form. It was the desire to maintain the didactic function of the execution, in which different messages were communicated to African and European audiences, which led colonial states to resist the uniform introduction of concealed, prison executions.83 Refined sensibilities had to co-exist, if uneasily, with rationales for continued physical punishment.84 This system of semi-public execution came to mark much of capital punishment in Africa in the later colonial period: the theatre of death might have a restricted audience, but its message was still to be driven home. Whilst in Britain it became forbidden even to fly a black flag to show an execution had occurred, in Africa local communities were deliberately made aware of hangings through witnesses, proclamations and sometimes the reclaiming of bodies for burial. Attitudes towards the use of African witnesses for semi-public executions varied across and within colonies, however. In the Gold Coast, Acting AttorneyGeneral Brown and Chief Justice Philip Petridies questioned the efficacy of using witnesses, noting that ‘[e]xcept in exceptional circumstances I see no advantage’. Director of Prisons Cavanaugh however felt witnesses were ‘most desirable’, particularly in cases from Ashanti and the Northern Territories, and recommended that two members of the Native Tribunal from the condemned man’s district should attend and notifications should be posted at local courthouses.85 Whilst the practice gained acceptance from London and in colonies such as Kenya, Uganda and Nigeria, Nyasaland refused to sanction the procedure – despite its previous widespread use of African witnesses before 1924 and recurrent calls from district magistrates for them to be reinstated – stating that it was ‘contrary to all principles of decency and decorum’ and ‘would have a grave effect on the tribe and villages’.86 Despite this system of semi-public executions, calls persisted from even senior officials for public hangings, or even prison hangings within a condemned persons’ district so that more witnesses could attend, particularly where concerns about social unrest and anti-colonial agitation arose. In 1944, Prison Superintendent Dolan argued in the Gold Coast that ‘[t]he erection of gallows, and the carrying 82. Bushe Commission, 67; Paterson, Report on a Visit to the Prisons, 28. 83. Mcguire, ‘“Judicial Execution”’, 209. 84. Carolyn Strange, ‘The Undercurrents of Penal Culture: Punishment and the Body in Mid-Twentieth Century Canada’, Law & History Review 19, no. 2 (2001): 366–84. 85. Prisoners awaiting sentence or already convicted of capital charge, PRAAD CSO 15/3/166. 86. Judge Thomas, 12 February 1940, NAM 4-4-8R 2952.

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into effect of the sentences in the large up-country prisons would be concrete evidence of the Government’s determination to exact the extreme penalty for murder … a deterrent almost as valuable as the certainty of detection’.87 The issue of public executions was again raised in Nigeria in 1946, in connection with the ‘Leopard Man’ murder trials in Southern Annang, where over seventy people were executed for murders held to have been committed by the secret ‘Leopard Society’.88 District Officer Allen wrote to the Resident Magistrate: The only hope of eliminating this scourge forever is by the public hanging of the convicted murderers at, or near the scene of their crimes. I realise that such procedure is directly contrary to normal humanitarian principle and the ideas of British justice, and I am personally most strongly opposed to pandering in any way to the morbid delight in the macabre which is typified in many French executions … but there are times when primitive passions can only be tamed by demonstrations which would revolt the educated and the enlightened.89

Colonial officials who wrote in support of public executions were often quick to deny their personal moral or ethical support for the principle of capital punishment. According to them, executions were a distasteful but necessary practice in an African context, an example of the civilizing violence of colonial states which would transform recalcitrant African subjects into colonial citizens. The processes of sanitizing and despectacularizing executions were never fully irreversible in the colonies. Civilizing and de-civilizing tendencies coexist, and at times of real or perceived threats to the social order, a recrudescence of violence can occur, as happened during the Kenyan Emergency, when over one thousand Gikuyu men were judicially executed.90 A tension emerged during the Emergency between calls for public executions as displays of British power and justice and the need to avoid creating martyrs or arousing international opprobrium through mass executions. Settlers (once again) called for the re-introduction of public executions for convicted KLFA fighters, preferably immediately following trial and without right to appeal, so that Africans could witness British justice in action.91 Prime Minister Churchill however was determined to avoid this, telling Governor Lyttelton that mass executions were neither ‘necessary nor desirable’ and that ‘care should be taken to avoid the simultaneous execution of any large numbers of persons who might be sentenced to death by these courts’.92 Even during the 87. Gold Coast, Prisons Report 1943–4, 3. 88. See David Pratten, The Man-Leopard Murders: History and Society in Colonial Nigeria (Edinburgh: Edinburgh University Press, 2007). 89. J. Allen to Resident, Calabar, 16 January 1946, Nigerian National Archives 7/1/1421. Many thanks to David Pratten for this information. 90. Anderson, Histories of the Hanged, 6–7. See Chapter 5 for more detail. 91. Ibid., 6. 92. Minutes, TNA CO 822/702; Anderson, Histories of the Hanged, 154.

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Emergency however, the British government refused to allow the official restarting of public executions. Although mobile gallows were initially used to conduct some executions among convicted insurgents’ communities in Kenya, both colonial and metropolitan authorities proved staunchly resistant to the widespread use of public or mass executions, knowing this would bring international accusations of ‘uncivilized’ governance.93

Situating the condemned: Death row prison spaces and accommodation With the removal of executions behind prison walls, a new problem arose for colonial authorities: that of the situation of condemned prisoners on death row, and their treatment, particularly in overcrowded and under-resourced colonial prisons.94 The dehumanization which the death penalty required in order to function was an interactive process between the prisons and the condemned person, and death row was the twilight space where this ‘Otherness’ was finally negotiated. The social organization of prisons dictates how much violence occurs throughout the system. Structural sources of violence in modern Western prisons include their primary functions of containment and order, the lack of downwards accountability, bureaucratization and standardization, and the lack of community between staff and inmates. However, despite the fact that colonial prisons were modelled on their British forerunners, modifications resultant from their translation onto colonial soil resulted in different social networks operating within prison walls in Africa.95 With communal cells, fewer boundaries and markers of containment, and less differentiation between inmates and warders, African prisons relied upon both a greater degree of accommodation with convicts and more direct, physical violence.96 Colonial prisons were physically punitive rather than panoptic – sites of punishment rather than confinement.97 However, welfarist moves towards prison reform from the late 1920s to 1930s sought to bring the punishment of African criminals into line with modern penal governance and

93. GOC East Africa to VAG, 31 October 1952, TNA WO 32/2062; Lari Massacre Trials, TNA CO 822/702, Lari Massacre Trials; Anderson, Histories of the Hanged, 154. 94. See Bernault, ‘De l’Afrique ouverte’, 15–64 and ‘Shadow of Rule’, 55–94; Branch, ‘Imprisonment and Colonialism’; Hynd, ‘“Insufficiently Cruel” or “Simply Inefficient”’; Katherine Bruce-Lockhart, Carceral Afterlives: Prisons, Detention and Punishment in Postcolonial Uganda (Athens, OH: Ohio University Press, 2022), 55–94. 95. Bernault, ‘De l’Afrique ouverte’, 15–64. 96. On prisons see Marie Morelle, Frédéric Le Marcis and Julia Hornberger, eds., Confinement, Punishment and Prisons in Africa (Abingdon: Routledge, 2021); BruceLockhart, Carceral Afterlives. 97. Branch, ‘Imprisonment and Colonialism’, 241–2.

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British standards where possible.98 As a result, there was increasing disquiet about the treatment and accommodation of condemned prisoners. Colonial prisons were basic, unsanitary and insecure, and heavily overcrowded. One justification often given for retaining capital punishment was that prison conditions were so bad that a sentence of life imprisonment was more inhumane than one of death.99 Many prisons lacked a death row, or specific accommodations for condemned prisoners. Conditions were often chaotic due to overcrowding and minimum administration, and this could lead to serious oversights in the treatment of condemned prisoners. Chief Justice Hamilton, visiting Mombasa prison in January 1909, interviewed Mwlchame bin Makame and Sarahan bin Suliman, two askaris (soldiers) sentenced to death for killing two Somali men during a riot in Nairobi in June 1900. Hamilton was surprised to find the men begging him for mercy, despite the fact that the badges on their prison dress proclaimed them to be life prisoners. It transpired that they were still being held under a death warrant eight years after being sentenced because their reprieve notices had gone missing.100 Due to such concerns, London requested the standardization of accommodation and treatment of condemned prisoners. Within government prisons across Africa there were increasing efforts made to segregate both condemned prisoners and the processes of execution from the rest of the prison.101 As with colonial prisons in general, condemned wings were racially segregated. In territories where European condemned prisoners were received, their accommodation was of a higher standard, situated in European wards rather than with other condemned prisoners. Female and Asian condemned were also held on segregated wards.102 The Colonial Office also requested that condemned prisoners were accommodated in single cells wherever viable. Territories including Kenya, Nigeria and Tanganyika however resisted this policy, arguing that solitary accommodation was difficult for ‘tribal’ Africans to bear, with the Kenyan commissioner of prisons ordering in 1939 that condemned men be kept in twos or threes for companionship, as this was ‘the best and most humane’ option (he failed to mention that it was also a necessity due to overcrowding and budget restrictions).103 Conditions on death row varied across the different territories and with time. The post-1945 welfarist turn in colonial policy created some improvements for condemned prisoners. There was an increased emphasis on having conditions on African death rows mirror those in England as closely as possible. Colonies who could afford to do so modernized their gallows following Home Office regulations

98. See Hynd, ‘“Insufficiently Cruel” or “Simply Inefficient”?’, 26–31. 99. J. C. Hamilton, ‘Crime and Punishment’, West African Affairs 19 (1963): 11. 100. Hamilton to Governor, 20 January 1909, Legal Sentences, KNA AP/1/666. 101. Nyasaland Protectorate, Prisons Report 1947, 13. 102. See Prisoner’s Record: Nairobi 1368/D, KNA AG/16/290. 103. John Wyatt to P. Rodgers, 1 March 1952, Capital Punishment: Treatment of Offenders, TNA CO 859/442. See also Tanganyika Territory, Annual Report on the Administration of Prisons during the Year 1947 (Dar es Salaam: Government Printer, 1948), 14.

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or constructed new segregated prison cells for condemned prisoners. Conditions in Sierra Leone were among the most improved, with a new cell block being built, including its own exercise yard and sanitary facilities.104 Measures to modernize and ‘civilize’ capital punishment, however, did not completely transform its practice. Colonial parsimony combined with systemic inertia and ambivalence about the perceived necessity of violence in colonial punishment to ensure that direct, physical violence remained a central facet of life on death row. In Nigeria, condemned prisoners were ‘often kept in leg-irons’ where cells were insecure, whilst in the Gold Coast the accommodation for condemned persons was still reported as ‘extremely unsatisfactory’ in 1943.105 This dissonance between the rhetoric of reform and the reality of continued physical and systemic violence was both a product and a condition of the contradictions inherent in colonial rule.106

Days on death row: Networks of colonial power and the condemned The death of an individual is an extended process in modern executions; the condemned person is stripped of autonomy, movement and social interaction, before being stripped of life itself. Western theories on capital punishment often use critical frameworks of medicalization and sanitization to analyse such processes.107 In order to discuss hangings in Africa however, where these trends were incomplete, a better analysis can be made by considering a shifting process of dehumanization: from the generalized de-individualization that marked colonial carceral techniques to the imposition of the exceptional status of death row prisoner and the granting of limited privileges to provide human comforts for a condemned person’s last days, and finally to the stripping of humanity from their life and body. Once received in prison, condemned prisoners were to be placed under the twenty-four-hour supervision of warders specially detailed for the duty and visited daily by a medical officer so that their physical and mental health could be monitored.108 Efforts were made to make what could be the remaining time 104. Colony of Sierra Leone, Annual Report on the Treatment of Offenders during the Year 1949 (Freetown: Government Printer, 1950), 13. The Gambia however refused such improvements, arguing that as only two people had been executed over ten years it was not worth the investment. Governor Southorn to Ormsby-Gore, 6 January 1937, Death Sentences – Execution of – Apparatus, TNA CO 323/1346/17. 105. Nigeria, Prisons Report 1950–1, 24; Director of Prisons to the Colonial Secretary, 24 August 1943, Condemned Prisoners  – Amelioration of Conditions of, PRAAD CSO 15/3/224. 106. See Hynd, ‘“Insufficiently Cruel” or “Simply Inefficient”?’. 107. See Foucault, Surveiller et Punir and Security, Territory and Population: Lectures at the Collège de France, 1977–78, ed. M. Senellart, trans. G. Burchell (Basingstoke: Palgrave Macmillan, 2007). 108. Prisons Ordinance No. 9 of 1876, s.69; Execution of Condemned Prisoners, PRAAD CSO 15/9/88; Death Warrants – Form of, PRAAD CSO 15/9/96.

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of a man’s life respectable. In many territories, prison regulations stated that ‘all reasonable indulgement’ was to be granted in the matter of interviews with relatives, friends and legal advisers – ‘those who can read are given books and a generous quantity of tobacco is issued daily’.109 Condemned prisoners in Accra were given a special diet and issued half a pint of palm wine and ten cigarettes daily, a rare privilege when possession of alcohol and cigarettes were otherwise offences against prison regulations.110 The position of condemned prisoners in relation to ordinary convicts is something we know little about. The available evidence suggests that African communities generally accepted the principle of capital punishment for murders they regarded as serious crimes.111 In prisons where murderers were held in common with other prisoners however, it is likely that they simply fitted into social networks on an individual basis. Tensions are evident in some cases, as in Port Harcourt Prison, Nigeria, when in 1949 eight condemned men escaped through a wire fence whilst bathing. Seven of the men were recaptured after other prisoners assisted warders in the chase to bring them back.112 Recapturing these men rather than aiding them suggests that the condemned were considered dangerously ‘Other’ and external to the prisoners’ own community and morality, or at the least that their fellow prisoners valued their own privileges over the condemned men’s lives. For prisoners, the presence of the condemned may have served as a constant reminder of the physical violence that colonial states could, and did, employ against them: a sign of death in an already hostile environment. Condemned men in Kenya were literally marked for death: their prison uniforms sported a large ‘X’ across their backs in 1916.113 Colonial efforts towards the segregation of condemned prisoners were geared towards their management and elision of their profile within prisons, but the failure of segregation in many places was a consequence of the incomplete bureaucratization and surveillance techniques of colonial prisons. The individuality and ‘Otherness’ of murderers could therefore be mitigated by the generalized dehumanization and unitizing of prison bureaucracy; in Sierra Leone for one, there were ‘notable problems with identification of condemned men … Authorities have to rely on remembering a man to identify him, unless he has any scars etc. No fingerprints are taken nor do any of the condemned cells to which the men are assigned bear a number or the name of the occupant’.114 These were the ‘condemned’, rather than ‘men’ or individuals. Where they were not fully segregated or considered dangerous, condemned men would spend their days performing prison labour like other convicts, although

109. Tanganyika Territory, Prisons Report 1941, 4. 110. Director of Prisons to the Colonial Secretary, 24 August 1943, Condemned Prisoners – Amelioration of Conditions of, PRAAD CSO 15/3/224. 111. See Bushe Commission, 73–9. 112. Nigeria, Prisons Report 1949–50, 21. 113. ‘A Prison Warder’s Diary’, East African Standard, 23 June 1916. 114. Capital Sentences, Irregularities in Carrying Out, Sierra Leone, TNA CO 267/674/2.

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it is unlikely they joined work gangs outside of prison spaces. Gardening seems to have been a common occupation, despite the use of potentially dangerous tools. E. H. Macintosh, an administrative officer serving in Bahr el Ghazal province of Sudan, noted how at Wau Central Prison, ‘most of the long service prisoners were murderers, who in Africa are easily the most dependable of prisoners. I learnt my Zande mostly from murderers, who were working in gardens nearby and came to me for a session in the afternoon. I found them very pleasant instructors’.115 In 1933 the Law Times cited one anonymous case thought to have occurred in Rhodesia in which, pending confirmation of sentence, a condemned man was placed in charge of the prison garden, an easy job much sought after by other prisoners. Unfortunately his papers were mislaid and by the time, eighteen months later, that confirmation arrived that the prisoner was to be executed, the man had become a well-liked personality within the prison, notorious only for being ‘the most inefficient gardener the prison had ever had … everyone except the prison officials had forgotten why the gardener was in prison at all’. After his hanging, officials were surprised by the refusal of other inmates to take his job, until ‘close enquiry showed all the other prisoners were firmly under the impression that the late gardener had been summarily sent to join his fathers on account of his very inferior gardening abilities’.116 Outside of prison labour, social interactions on death row were supposed to be few and to be strictly controlled. According to prison regulations, inmates were to be kept in isolation, under constant supervision from prison guards and under frequent observation from the prison doctor. Daily exercise was prescribed, but this was to be taken in isolation from the other convicts. Although condemned prisoners were allowed visits from their families and lawyers, few families from rural areas could afford to visit central prisons in the colonial capital cities, and few lawyers cared enough to visit their clients in jail. For many condemned men the only other official social interaction was for spiritual consolation, normally with a visiting Christian clergyman. Some men seized on this opportunity gratefully, regardless of their previous religious affiliations. Dedan Kimathi, the notorious self-proclaimed Supreme Commander of KLFA forest fighters, spent almost three months on Nairobi’s death row before his execution. During this time, he was visited almost daily by Father Whelan, who had spiritual responsibility for many death row prisoners there.117 On the eve of execution alone in the condemned cell, Kimathi wrote a letter expressing thanks to the priests and worry about his family, asking them to educate his son. He signed himself ‘with good hope and best wishes, I remain dear father, your loving and departing convert’. As Anderson

115. E. H. Macintosh, unpublished memoir, chapter 6, 18–19, SAD 895/3/70–1. 116. ‘Justice?’, The Law Times, 11 November 1933, Death Sentences, TNA CO 323/1346/16. 117. Privy Council petition, Dedan Kimathi v. R., KNA MAC/KEN/36/11; Anderson, Histories of the Hanged, 290.

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writes, the Anglican schoolboy who had prayed to Ngai and listened to seers’ advice in the forest met his death as a Catholic on 18 February 1957.118 Others vehemently rejected such Christian consolation. Father James Mellet tried to convert fourteen men sentenced to be hanged in public for ‘head-hunting’ murders in Ogoja, Nigeria in the 1920s. Mellet bemoaned that after days of physical and emotional exhaustion, he was only able to baptize eight of the men on their way to the gallows.119

Executions: The performance of death The major transition from living on death row to preparing for death occurred with the arrival of the black-edged warrant of execution whenever a governor confirmed a death sentence. Executions within prisons were supposed to follow British procedures as closely as possible.120 In most territories, the prisoners awaiting execution were transferred to the condemned cell, which was to be situated in close proximity to the gallows, twenty-four hours prior to execution thus avoiding the spectacle of parading the condemned across the prison to his death.121 Colonial archives make no mention of any practices of allowing the condemned to select their last meal that figure prominently in death row rituals elsewhere.122 Executions were usually held early in the morning in prisons, between 6 and 9 am.123 The process of execution was heavily sanitized and restricted to a select audience, consisting of the hangman and his assistants, the prison superintendent and medical officer, and sometimes a priest and district officer.124 Recalling his experience as assistant district commissioner in Darfur, James Blaikie wrote a detailed account of having to attend an execution of a man convicted for murdering his wife: In an open quadrangle close by the Prison wall there was a wooden cubicle about ten feet high and nine feet square. A door was let in one side and up the other ran a flight of steps; on the top were the gallows with the rope hanging over a trap 118. Anderson, Histories of the Hanged, 290. 119. James Mellet, If Any Man Dare (Dublin: Fallons, 1963), 57. 120. Nigeria, Prisons Report 1958–9, 29; Circular 288/53, Capital Punishment  – Procedures and Equipment 1952–3, TNA CO 859/445. 121. Gold Coast, Prisons Report 1944–5, 3. 122. Daniel LaChance, ‘Last Words, Last Meals, and Last Stands: Agency and Individuality in the Modern Execution Process’, Law & Social Inquiry 32, no. 3 (2007): 701–24. 123. Reports of Execution, KNA DC/MRU/2/17/2. In Kenya, due to high numbers of executions occurring during the Emergency, hangings were also held after dark in Nairobi prison, spaced at twenty-minute intervals. 124. R. v. Charles William Ross, KNA AG/133/32; East African Standard, ‘Execution of Ross’, 12 January 1933.

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door … the prisoner was led out with a long chain fastened to his ankles and tied up in the middle to his waistband … carefully calculated in order that the added weight should provide the correct force needed to break the neck … The Imam was with him chanting verses from the Koran and the party slowly clanked to the foot of the stairs and began to mount. As they reached the top, the prisoner slipped and let out a terrible cry. They picked him up in the deadly silence and stood him over the trap door. A black velvet bag was lowered over his head and then the noose was put in place with the knot tightened under the right ear … The Prison Officer was looking at his watch. It was exactly 6 a.m., and as the drums began to boom out the hour, he turned and saluted me. I acknowledged and then raised my arm to the warder at the gallows. As it fell, he pulled the lever that opened the trap door and the prisoner disappeared inside with a dull thud. The taut rope swinging slowly to and fro had an almost hypnotic effect and it was an effort to drag my gaze away and accompany the prison officer to his office. He had prepared for us hot sweet mint tea, but seeing the sickness in my face, he unlocked a cupboard, took out a bottle of whisky and topped up the glasses.125

Alexander Paterson, the Home Office Commissioner of Prisons visiting Africa in 1939, recorded that ‘in some cases the European officers are called upon to perform all these distasteful but inevitable tasks. This is not right. It robs them of the prestige they should maintain, if now and then they must take part in a handto-hand struggle’. Paterson recommended instead that a part-time executioner be found from among the European community, ‘if he is steady of nerve and discreet in demeanour’. Otherwise, Paterson suggested, a body of African warders should be trained and transferred between prisons to carry out the executions.126 Not only had it become unbefitting for a British officer to inflict violence, as it damaged both white prestige and claims to moral authority, but in co-opting one African to inflict violence upon another, a degree of local legitimacy was sought for the state’s action. According to regulations and official accounts, after the condemned person’s arms and legs had been bound, and a hood slipped over his head, the noose would be placed around his neck and tightened and the governor’s warrant for execution would be read out. The gallows lever would be pulled, the trapdoors opened and the gallows’ victim dropped to his death. After being left to hang for thirty minutes, the body would be removed from the rope and the medical doctor in attendance would examine the body and certify death, and the colonial ritual of state killing was complete. Colonial records are curiously silent about what happened to bodies after prison executions, but post-mortem display was not a common penal practice. Families could reclaim their relative’s body for burial rites, although most were unable to afford transportation and so executed inmates were routinely buried 125. J. A. A. Blaikie, Memoirs, Account of an Execution in El Fasher Prison, February 1936, SAD 815/17/30. 126. Paterson, Report on a Visit to the Prisons, 26.

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in prison cemeteries.127 Records from Basutoland in 1948 reveal that unclaimed bodies were buried in prison blankets in Maseru prison, with fellow prisoners digging the graves. Unease with the lack of dignity afforded by this practice in the wake of growing attention to multiple executions for liretlo (ritual murder) killings led officials to request the government provide extra funds of £3 per execution to purchase coffins made by the students at Lerotholi Technical School.128 The search to find an acceptable method of capital punishment shows both the continued social investment in penal violence and the boundaries of colonial official and public sensibilities. States sought to discover new methods to perform the terminal violence of execution while simultaneously concealing its brutal and painful aspects. Western theories of capital punishment argue that the distancing of the state and executioners from the condemned is characteristic of modern punishment – hidden, sanitized and carefully denying its own violence.129 However, in a colonial context, there was a growing gap between the techniques and rationales of the death penalty. As the rhetoric and practice of state killing was reformed in the late colonial era, it became clear that it was trying to satisfy an increasingly conflicting set of dramaturgical criteria: execution procedures were supposed to be efficient and humane, but they also had to remain sufficiently frightening to inspire respect for colonial authority and law that was coming increasingly under challenge.130 Despite the evidence of changing sensibilities, and the official emphasis on modernization and mimicry of Home Office procedures, the actual practice of executions reveals the persistence of racial violence and ad hoc approaches to criminal justice, as this account of an execution in Rhodesia in 1930 demonstrates. Arriving at the prison at dawn, the narrator David Johnathan found: To the right was the door of the condemned cell and within the cell the jailer and the ‘hangman’ stood trussing up the victim. (The ‘hangman’ by the way, was man about town who had been asked to do the job for a fee). It took three minutes to bind the man, and at two minutes to six he shuffled into the room and was led to the trap doors by Askaris. Around his eyes was

127. It should be noted that the denial of customary burial rites could intensify the punishment of death, but colonial records reveal no concerns or specific intentions about this. Capital Sentences – Irregularities in Carrying out in Sierra Leone, TNA CO 267/674/2; Prison Rules 1919–29, NAM S1/1328/19; Reports of Execution, KNA DC/MRU/2/17/2. See Stacey Hynd, ‘Dismembering and Remembering the Body: Execution and Post-Execution Display in Africa, c.1870–2000’, in A Global History of Execution and the Criminal Corpse, ed. Richard Ward (London: Palgrave Macmillan, 2015), 226. 128. Execution Apparatus and Procedure, TNA FCO 141/712. 129. Garland, Punishment and Modern Society, 236. 130. Strange, ‘Penal Undercurrents’, 362.

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a piece of medical bandage. His arms were secured behind him by means of handcuffs, while his knees and ankles were strapped by a couple of Askari’s belts. And at this stage, while the wretched principle was on the trap doors, the following discussion took place between the jailer and the ‘hangman’. Jailer: ‘Which way do we stand him?’ Hangman: ‘This way I think …’ – placing the man in position – ‘No, the other way’. So they turned their victim around like a fowl on a spit. Jailer: ‘Where do we put the knot?’ Hangman: ‘Back of the neck, just under the ear’. Jailer: ‘Sure? I always thought under the chin, just below the ear’. As the Magistrate uttered a protest, because of the delay, the noose was placed over the man’s head and drawn tight until it wrinkled the skin of his neck. The Magistrate waved a signal and the lever was pulled. The trap doors opened with a clatter and the native disappeared into the darkness, the sudden tightening of the rope causing a sickening thud … the body dangled. Next day, I met the Doctor and asked a few questions. ‘Nasty job yesterday, Doctor?’. ‘It was’, he replied. ‘By the way, what was that queer rattle I heard some time after the man had dropped?’. ‘To tell you the truth’, the Doctor replied, ‘The fall didn’t break his neck. The poor wretch was strangled to death; what you heard was his struggle for breath’. ‘How long did it take him to die?’. ‘Exactly fourteen minutes’.131

As death certificates and inquest reports up to the 1930s normally recorded the cause of death simply as ‘judicial execution’, it is difficult to determine how many such occurrences there were.132 The Colonial Office instituted a commission of inquiry in Sierra Leone in 1940 after serious irregularities became apparent. One man died from a fractured skull after collapsing before the trap was opened, and another who died of asphyxiation was found to have been executed without a warrant.133 Particularly in the late colonial era, the potential for scandal from botched executions could, and did, result in official concern, and undermine support for capital punishment.

131. ‘Strangled for 14 Minutes by Law!: The Horrors of Hanging in Rhodesia’, The Sjambok, 26 September 1930, Executions in the Colonies, TNA CO 323/1111/6. 132. It was only after requests for specific causes of death to be recorded that death certificates began listing ‘dislocation of vertebrae’ or ‘shock’, a framing that later shifted to the more medicalized ‘died of fracture of cervical vertebrae and compression of the spinal cord’. See Circular from Colonial Secretary L. S. Amery, 30 April 1929, Death Sentence Correspondence, KNA AP/1/405; Death Returns, TNA CO 533/462/9. 133. Capital Sentences, TNA CO 267/674/2.

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Actors on a deathly stage: The condemned and their executioners Resistance and subversion of the intended meaning of execution  – deterrence, authority and efficiency – could occur in many forms. The hanging of three men, including the local chief, in Enugu, Nigeria in 1918 is a case in point. According to District Commissioner Henry Ward Price: The two young men had to be forcibly dragged from the prison; they continued to struggle and protest even after their elbows were tied behind them and their ankles bound. When the canvas bag was over their heads, they wriggled so much that it was very lucky that they both dropped cleanly and died at once … The old chief acted quite differently, remaining calm and dignified, and I was very sorry he had not been treated more mercifully. I tried to give him some encouragement in his last moments … I pulled the loose nail out of the hasp to release the door on which he was standing, with the rope around his neck. He dropped with a jerk, and another member of the ‘old order’ of things had paid the penalty for being too backward to realise that it was giving place to something new.134

Executions have several meanings, both intended and inferred, for different audiences, which can be either affirmed or subverted by the actors involved. The manner in which the condemned went to his death greatly affected the received interpretation of its meaning.135 Here both the frantic struggles of the youths and the calm dignity of the old chief challenged the meaning of the execution and the legitimacy of power it was intended to convey: the first through drawing attention to the terror it caused, and second by juxtaposing a calm dignity against the raw violence of the gallows. If even a district commissioner’s belief in the justice and necessity of execution was undermined, the feelings of the local community are likely to have been all the more negative. The responses of the central actors in these events – the condemned men and their executioners  – highlight the polysemous nature of these judicial killings and their enactment. Unlike Albert Pierrepoint, the famous British executioner, colonial hangmen have left few archival traces or memoirs.136 During the early colonial era, executions were normally carried out, without any training, by district officers or police officials, who reveal varied attitudes to this task in their  personal writings. A few were apparently unmoved, like John Daniell in Darfur who wrote in his diary that it ‘shouldn’t disturb my beauty sleep’, ‘I didn’t bat an eyelid this time nor even last’.137 Charles Arden Clarke, later governor 134. Ward Price, Dark Subjects, 90–1. 135. Philip Smith, ‘Executing Executions: Aesthetics, Identity and Problematic Narratives of Capital Punishment’, Theory & Society 25, no. 2 (1996): 254–6. 136. Albert Pierrepoint, Executioner Pierrepoint  – The Amazing Autobiography of the World’s Most Famous Executioner (London: George G. Harrap, 1974). 137. J. P. S. Daniell, diary entries, 15 and 20 December 1938, SAD 777.13.55.

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of the Gold Coast, had to oversee a number of executions during his early career in the 1920s as a district commissioner in Nigeria. He wrote after one such event in Nungu: ‘This was a terrible business … Conducted as it was with awesome solemnity and cold blooded efficiency it had had a terrifying effect on the Mamas, cheap though they normally held human life to be.’138 Nuancing the Eliasian theory that civilized societies feel a repugnance for direct violence, many officers confessed their discomfort was less with the taking of life, than with the cold, sanitized rituals of execution: ‘It’s a beastly job; I’ll be glad when it’s over. It is all so cold-blooded; that is the rotten part of it … However, it’s necessary, right and part of one’s duty so there’s an end to that.’139 It was through asserting the primacy of their roles as agents of the state, enforcing judicially and politically sanctioned sentences, that the prison superintendents, warders and doctors who participated in executions justified their actions. Subsuming their personal opinions beneath the doctrine of official duty created the moral disengagement necessary to allow them to reconcile their involvement in the taking of another man’s life with their belief in their own, and colonial rule’s, humanity and civilization.140 Some state agents were clearly unable to subsume their personal morality beneath the doctrine of duty and expressed a clear sympathy with the men they were ordered to execute. Although prison wardens and officers were remunerated for their participation in executions, sometimes even financial gain could not secure their compliance, as when nine police officers were dismissed in 1937 from Berbera Prison in Somaliland after refusing to assist a hanging, pleading, ‘It was against the Mahomedan religion for a man to take part in an execution.’141 Many commentators were also concerned about the brutalizing and traumatizing effect that executions could have upon colonial officials themselves, as in Okundi, Nigeria in the early 1920s where the local police inspector committed suicide three weeks after having to supervise the public execution of fourteen men.142 Such concerns coupled with a desire for efficiency led to the introduction of public executioners, who travelled across colonies and were paid by the job. The public executioner for East Africa from 1912 was Mr Sellwood of Nairobi, who was paid 75 rupees per hanging, plus second-class rations and travelling allowances.143 Records suggest that most of these men were European; only the Nigerian Emirates and Nyasaland seem to have employed an African executioner, a man called Mwamadi

138. Rooney, Sir Charles Arden-Clarke, 34. 139. Ibid. 140. Michael J. Osufsky, Albert Bandura and Philip G. Simbardo, ‘The Role of Moral Disengagement in the Execution Process’, Law & Human Behaviour 29, no. 4 (2005): 371–93. 141. Dismissal of Nine Prison Police for Willful Disobedience, TNA CO 535/126/18. 142. Mellet, If Any Man Dare, 59. 143. Public Executions 1912, KNA PC/COAST/1/10/7.

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in the 1910–20s in the latter.144 Growing professionalization in the colonial justice system meant that public executioners were employed in most colonies from the 1930s. However, even these hangmen lacked training, and this combined with ad hoc gallows structures meant that problems repeatedly arose. Whilst executions were to be carried out ‘as efficiently and humanely as possible’, occasions where the witnesses watched the condemned being dragged fighting to their death, or where the officer officiating was visibly reluctant to carry out the execution, could only have subverted the message of legitimate power they were intended to convey.145 One Kenyan prison officer reported in the East African Standard in 1916 of how: very few cases occur where the native prisoners walk to the gallows without giving trouble. In nearly every instance they make a fuss, decline their food, refuse to eat, and start to cry. Just before the operations they are so nervous that they shriek at the top of their voices, and struggle for dear life when the Superintendent reads out the order. Eventually a black cover is placed over the prisoner’s head, covering his eyes and mouth. The rope is then placed round the neck, and the execution is carried out.146

Acts of identity assertion and degradation avoidance by the condemned prisoner at the scaffold, and the reception of these within society, created a crisis of ritual semiosis for the state, pressuring it towards reforms to shore up the flawed moral semaphore of capital punishment, including transition from public executions to hangings behind prison walls.147 How often these subversions occurred is impossible to calculate, but they were certainly perceived as dangerous by authorities, who needed the condemned criminal’s participation in the ritual ‘to fulfil the ideological pay-off of an increasingly worrisome penalty’.148 The attitudes of the condemned themselves when facing death are only infrequently alluded to in the colonial written record. It was assumed by many colonial officers that Africans had a greater acceptance of death than Europeans: ‘It may be of course that a native doesn’t care how he is hanged. He is merely a native. His native philosophy makes him look at the event in a disinterested sort of way.’149 Whilst there were many convicted men who told their judges ‘you can 144. R. v. Philemon, NAM S1/1832/19. In Senegal, executioners were often co-opted from within African and prison populations. Many thanks to Dior Konaté for this information. 145. Ward Price, Dark Subjects, 90–1; Rooney, Sir Charles Arden-Clarke, 33 and James Barber, Imperial Frontier: A Study of Relations between the British and Pastoral Tribes of North East Uganda (Nairobi: Publishing House, 1968), 207. 146. East African Standard, ‘A Prison Warder’s Diary’, 16. 147. Carol, Au Pied du Scaffold, 43. See George Orwell, ‘A Hanging’, The Adelphi (August 1931) for a literary critique of colonial officials’ responses to a hanging in 1920s Burma. 148. Smith, ‘Executing Executions’, 236. 149. ‘Strangled for 14 Minutes by Law!’, TNA CO 323/1111/6.

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do whatever you like with me’, and refused their right to petition for mercy, dying what the colonial state’s script deemed a good death with dignity and silence – or perhaps finding comfort in their resistance to its power by dying bravely – there were equally others who pleaded their innocence, begged for mercy, and refused to play their part, breaking down in tears or screams at the gallows.150 The African death row was less panoptical than its modern Western counterpart.151 Whereas in the latter, pastoral power and localization operated to dehumanize the condemned, rendering him a subservient tool of state power, in colonial Africa the condemned retained a greater degree of agency to accept or resist their punishment. It is likely that some were innocent, but guilty or not, with their deaths they fulfilled their central roles in this colonial theatre of death. Their deaths were signs of colonial authority and order, but signs which were open to multiple interpretations  – of justice, restitution, deterrence, and of injustice, violence and power. Within the variegated networks of power in colonial penal systems, it is likely that all these interpretations were drawn and found resonance.

Conclusion The execution of a condemned convict in British colonial Africa was a process rather than an event.152 These changing rituals of capital punishment paralleled the process of colonization itself, being driven by a desire for efficiency and the constant search for effective mechanisms to maintain authority in a ‘humane and decorous manner’ that highlighted a self-proclaimed civilized colonial governance. They also mirrored the wider tensions of colonial rule: the reform of capital punishment was neither complete nor unilinear – visible, direct violence retained its place in the penal realm. The search to find an acceptable method of execution showed both the continued social investment in penal violence and the boundaries of colonial public sensibilities as states sought to discover new methods of performing the terminal violence of execution whilst simultaneously concealing its brutality. The major difference between colonial and Western processes of change in executions, though, was that the pace of change in Africa was not just due to internal dynamics but was largely externally imposed, following shifting metropolitan sensibilities and political climates. During the transition from public to private executions, a tension can be discerned at the margins of colonial penality that altered the implementation of capital punishment, a tension between the process of civilization and the perceived necessity of exerting violence in to civilize colonial subjects. The development of a system of semi-public executions demonstrates the influence which wider social conflicts had upon the infliction of punishment in colonial society. The method of execution was as bound up in 150. Kiprotich arap Chumek, CC230/50, KNA MLA/1/387. 151. See Bernault, ‘De l’Afrique ouverte’; Foucault, Discipline et Punir, 96. 152. Mcguire, ‘“Judicial Violence”’, 209.

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the politics of colonial society, in frontier violence and the civilizing mission, and the dialectics between metropolitan influences and colonial conditions, as it was with transforming sensibilities towards the public infliction of pain upon the body of the criminal.153 The rituals of execution in colonial Africa were determined by the competing discourses on violence among colonial officials and the various African spheres, who saw physical violence as alternately inhumane, effective or as a didactic, civilizing force that was essential to the project of colonial governance. Changing penal discourse, with its concern for ‘efficiency’ and ‘humanity’, reflected political sensibilities more than a genuine concern for the pain and indignity suffered by the condemned: reforms were made to salve the consciences of state and society rather than to ease the passing of the condemned.154 The dissonance between the rhetoric of reform and the reality of continued physical and systemic violence in criminal justice in colonial Africa is marked in these execution processes.155 In the transition between public and private executions in colonial Africa, executions were modified according to the dictates of civilization in order to legitimate the continued application of physical violence: colonial states chose to continue killing selected subjects as symbols of their power in order to instruct other African subjects in the lessons of colonial law and of order.

153. Ibid. 154. Turrell, White Mercy, 251. 155. See Hynd, ‘“Insufficiently Cruel” or “Simply Inefficient”?’.

C O N C LU SIO N : T H E I M P E R IA L G A L L OWS A N D C O L O N IA L R U L E I N B R I T I SH A F R IC A

The imperial gallows were more than simply a legal sanction or a retributive punishment: they were a political weapon, a site of symbolic and instrumental violence forming the lethal arm of colonial states’ strategies of governance. The death penalty functioned to establish illegality and punish crime, but it also demarcated the boundaries of exclusion within a colonial state: those who lived under its laws and hierarchies, and those who faced death for transgressing against them, and for challenging a state’s attempt to establish a monopoly of violence and the right to impose death. An execution was a complex interplay of discourses of deterrence, retribution, control and social defence, which underlined a state’s power to punish and reinforced its claim to a monopoly of violence in the colonies. What this study of capital punishment has revealed is the interdependence of different aspects of colonial states’ functioning – of law, politics, violence, civilization and punishment  – and the internal contradictions which traversed their ideological and instrumental realms. Although there were marked variations in the form and functioning of the death penalty across British colonial Africa in the twentieth century, five key findings can be taken from this study. Firstly, a specifically colonial form of capital punishment emerged in British Africa, one marked by colonial understandings of both violence and civilization. The colonial death penalty was politicized, securitized, racialized and localized, characterized by contingency and pragmaticism more than strict adherence to British and imperial legal processes. Whilst there were local particularities in each colony, some general characteristics of British African death penalty practice can be discerned. At the outset of the colonial period, in the time of colonization and frontier justice, the use of public executions carved the death penalty into African collective memories as a key icon of colonial rule, symbolizing the raw power of the encroaching colonial order and the arrival of new forms of law and social control. Capital punishment was justified as a didactic deterrent  – not merely against crime and murder, but against disorder and opposition to British rule. The death penalty was not imported unmodified from the metropole to the empire but was recast in the political and legal crucibles of colonial governance as states developed. A critical function of law is to restrain the state from its urge to vengeance, codifying and proportioning punishment, aiming to secure the

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state’s legitimacy in the veiled image of ‘humane and efficient’ punishment.1 In British Africa, the notion of justice, so central to metropolitan rationales of the death penalty’s use, became contested as British understandings were challenged by local African interpretations of what formed a ‘just’ response to various sorts of murder. Ultimately the idea of justice was sacrificed to the functioning law and the maintenance of the colonial order in the operation of the colonial death penalty. A colonial legal pragmatism and substantive justice shaped the operation of criminal justice in British Africa. This was seen in the incorporation of bench trials with assessors rather than juries, and the introduction of wider definitions of provocation in murder trials. In the 1920–30s, colonial authorities from Nigeria to Uganda defied metropolitan orders and resorted to public hangings to shore up the fragile authority of their rule, whilst settler states in Kenya and Southern Rhodesia instituted the death penalty for rape to combat moral panics over the (in)violability of settler bodies. With defence counsel and appeals only becoming standard in the 1930–40s in many areas, gubernatorial processes of mercy played a greater role in shaping the penalty’s use than in the metropole, which generated local particularities in its use. Whilst some officials held judicial executions to be an essential tool of colonial authority and its ‘civilizing’ imperatives, others posited  that capital punishment was unsuitable as it lacked penal resonance in African cultures and because many Africans did not deserve to face the ‘ultimate penalty’ as their crimes stemmed from their natural ‘African’ rather than ‘criminal’ behaviours. In Nyasaland, such sentiments generated a judicial leniency that resulted in an abortive attempt to break from metropolitan precedent and end mandatory death sentences for murder, highlighting the legal limits of this colonial particularism. Another colonial facet of the death penalty’s operation in twentieth-century British Africa was its close and overt association with state security and repertoires of emergency violence. Throughout the colonial era, the use of the death penalty created the political and moral conditions in which other forms of (extra-)legal violence and death proliferated. This culture of entrenched state violence became abundantly clear in times of rebellion and threats to colonial order as the death penalty became increasingly securitized: military and penal violence became entangled in ‘dual penal regimes’ under state of emergency conditions.2 Capital punishment played a significant role as a form of lawfare and punishment in strategies of counter-insurgency in much of twentieth-century British Africa, functioning as both a didactic and repressive tool in the maintenance of ‘law and order’. Under martial law and states of emergency, it became more than ever a political penalty and a paradigm of embodied colonial control. It was during the Kenyan Emergency, however, that the death penalty reached the apex, and nadir, of its pernicious impact upon colonial Africa with over a thousand Gikuyu men being hanged. In such conditions, the role of executions was inverted: from being 1. Lobban, Imperial Detention, 15–17; Benton, Law and Colonial Cultures. 2. Ben-Natan, ‘The Dual Penal Empire’.

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a calculated symbol of general deterrence, it became a retributive punishment, and a legalistic façade to the generalized ferocity of the Kenyan state’s response to the insurgency. As the contrast between Kenya and Nyasaland, and the Gold Coast shows, however, against a backdrop of growing humanitarian and abolitionist sentiment, capital punishment was only deployed as a late colonial counterinsurgent form of lawfare in extreme situations of sustained loss of control. Elsewhere the wider continuum of police, penal and extrajudicial violence fulfilled the spectacular and retributive functions of late colonial counter-insurgency. Whilst executions were central to colonial attempts to defeat the Chilembwe rebellion in Nyasaland in 1914–15, they were notably absent in the 1959 Nyasaland Emergency. Further research is required to properly elaborate to what extent these colonial forms of capital punishment identified here were unique to twentieth-century British Africa and the case studies of Kenya, Nyasaland and the Gold Coast, or whether they were representative of wider models of capital sentencing across the British Empire in the twentieth century, or even across other European empires, including questioning whether settler colonialism operated distinctive modalities of capital punishment.3 However, comparing evidence across British and French sub-Saharan Africa in particular, colonial capital punishment across Africa would appear to be characterized by a high-level of penal severity, the close entanglement of political and security agendas with legal practice, and a highly racialized enactment of capital sentencing. Where British colonial capital punishment primarily diverged from French practice was in its broader targeting to manage violence within African communities, whereas French courts remained tightly focused on ‘anti-colonial’ and ‘anti-modern’ capital crimes, such as rebellion and ritual murder.4 Support for the death penalty in Africa today is often justified in terms of its roots in precolonial African custom and culture, but postcolonial practices and contemporary attitudes have also been strongly influenced by the political, judicial and security legacies of these colonial modalities of capital punishment.5 The legacies of the imperial gallows are particularly strong in British Africa, reflecting the frequency and potency of its role in colonial penality and the governance of African population. Former British territories retained much of their colonial criminal justice systems after independence, including the threat

3. Some of these issues will be explored in forthcoming work by Thaïs Gendry and April Jackson. 4. Gendry, ‘“Seule une répression sévère”’, 7. 5. On postcolonial developments see Novak, The Death Penalty in Africa, 41–89; Karimunda, The Death Penalty in Africa, 131–78. See also James Campbell’s work on Jamaica: ‘Murder Appeals, Delayed Executions, and the Origins of Jamaican Death Penalty Jurisprudence’, Law and History Review 33, no. 2 (2015): 435–66.

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of capital punishment as an essential instrument of security, ‘the abandonment of which would be interpreted as a sign of weakness in the apparatus of state control’.6 Authoritarian governments in Ghana, Kenya and Malawi all made use of frequent political executions in the 1960–80s, whilst Nigeria’s military juntas and apartheid  South Africa became globally infamous for their deployment of the death penalty against political opponents, and homicide and socio-economic crimes threatening the social order, such as armed robbery in Nigeria.7 Even today, whilst most former French territories are now abolitionist, Britain’s former colonies have proven reluctant to formally abandon the death penalty. Only Mauritius, South Africa, Sierra Leone and Zambia among Britain’s former territories have officially abolished capital punishment – Sierra Leone and South Africa in response to postcolonial civil war and the apartheid regime, whilst Mauritius’ hybrid Franco-British criminal code, combining French laws of homicide with juries, had generated a pattern of resistance to murder convictions.8 Malawi’s Supreme Court declared the death penalty unconstitutional in 2020, only to overturn the decision and reinstate the punishment in 2021.9 Many others, including Ghana and Kenya, have de facto moratoriums on executions but death sentences continue to be pronounced, with at least 600 individuals on death row in Kenya in 2022.10 Overall, the forms and functions of the imperial gallows have had a significant legacy for postcolonial penality in Africa. The second key finding is that the death penalty was systematically deployed throughout the colonial period, as a keystone in frameworks of colonial criminal justice and penal violence, rather than just being an exceptional penalty used in times of social disorder. Colonies routinely convicted and executed their African subjects on capital charges, predominantly for the crime of murder, with records suggesting that around 4,800 Africans were executed in Britain’s common-law based sub-Saharan African colonies between 1930 and 1955 alone. The rate of 6. Hood and Hoyle, The Death Penalty: Worldwide Perspectives, 98. 7. Ibid., 87–97. 8. Ibid.; Exercise of Prerogative – Mauritius, TNA FCO 141/12153. Zambia banned the death penalty in December 2022 as part of a penal code amendment bill. See Amnesty International, ‘Zambia: Amnesty International welcomes the abolishment of the death penalty’, 24 December 2022, https://www.amnesty.org/en/latest/news/2022/12/zambiaamnesty-international-welcomes-the-abolishment-of-the-death-penalty/ (last accessed 26 January 2023). 9. World Coalition against the Death Penalty, ‘Malawi Supreme Court Reverses Abolition Decision’, 18 August 2022, https://worldcoalition.org/2022/08/18/malawi-abolishes-thedeath-penalty/ (last accessed 26 January 2023). 10. Carolyn Hoyle with Diana Batchelor, ‘The Death Penalty in Kenya: A Punishment That Has Died Out in Practice. Part One: A Public Ready to Accept Abolition’, The Death Penalty Project (14 June 2022). See World Coalition against the Death Penalty, ‘Ending the Death Penalty in Africa’, https://worldcoalition.org/campagne/ending-the-death-penaltyin-africa/ (last accessed 11 November 2022).

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death sentences pronounced and executed however varied between colonies and fluctuated over time. Although the criminal justice system in the settler state of Kenya was marked by very high levels of penal severity and violence, particularly in its use of imprisonment and corporal punishment, its use of capital punishment was not exceptional before the 1952 State of Emergency. Prior to the mid-1930s, the Ashanti colony of the Gold Coast displayed greater severity in enforcing death sentences, due to the administrative, legal and psychological legacies of its extended military pacification. In the Gold Coast more broadly, concerns about law and order and the impact of modernity in fuelling deliberate, premeditated and pecuniary criminality fed into a greater desire for judicial severity, from juries as well as judges. Judges in Nyasaland did not view themselves as ‘hanging judges’ and they and their governors were willing to spare many condemned persons, but concerns about social disruption during periods of dearth, the Great Depression and the 1949 famine still resulted in an increase in hangings. The targeting of the death penalty also shifted over time, from an early focus on combatting rebellion and threats to white bodies, to an interwar focus on managing criminality within African communities, with domestic, familial and spousal murders forming the single largest category of capital offence before British colonial courts. In the later 1930–50s, burgeoning concerns with murders committed from criminal intent rather than Africa custom ran alongside fears of rising anti-colonialism to convince colonial officials that any moves to abolish or limit the death penalty in line with metropolitan developments would pose a grave risk to colonial governance. The frequency of capital punishment’s deployment was related to its expressly political nature: the death penalty was a political tool as well as a judicial sanction. That hangings were directly linked to political control can be seen in the fact that, unlike other forms of punishment, rates of execution did not markedly increase in the late colonial period in line with the general post-war rise of crime and intensifying colonial penality. Instead, spikes in execution rates followed exceptional incidences of disorder, like the Chilembwe Uprising in Nyasaland, moral panics around ‘ritual murders’ in the post-Second World War era or the Kenyan State of Emergency. Ultimately however, the overall trajectory for capital punishment’s use in many colonies was relatively flat between 1920 and the 1950s. Murder remained a persistent crime but forces driving increased judicial severity and penal violence were counterbalanced in capital sentencing by humanitarian sentiment and the anxiety that too widespread a use of hangings could prompt a loss of legitimacy and backlash from African communities. Fundamentally, the death penalty remained in systematic use because the political fears about Black African violence and the fragility of white authority that drove its deployment in the early days of colonization persisted throughout a colony’s lifetime. Thirdly, British colonial capital punishment was highly racialized in its enactment, and the racial ideologies of imperial rule underpinned both the exceptional and the routine use of the death penalty in British Africa. Capital punishment was over thirteen times more frequently pronounced and enacted in Britain’s common-law-based sub-Saharan African territories than in the metropole between 1930 and 1955, reflecting the centrality of race to the functioning

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of colonial violence. Although the death penalty was purported to function as an aspect of ‘civilizing’ colonial governance, combating ‘primitive’ African behaviours and judging African accused with the impartiality of British justice, each trial and each execution served to highlight the racial hierarchies of power that underpinned both imperial rule and colonial law.11 As the operation of the prerogative of mercy highlights, capital punishment in British Africa was formed not just through its metropolitan inheritances, but by local colonial contexts. Its use in Kenya, Nyasaland and the Gold Coast was shaped by the particular characteristics of colonial justice and the ideological and affective landscape of colonial governance in these colonies, operating through both paternalistic and dehumanizing discourses. Racialized stereotypes of ‘primitive’ African mentalities and supposed propensities towards impulsive violence suffused the operation of criminal justice, but in many murder trials such collectivizing and dehumanizing tropes formed cultural defence narratives which proved crucial to securing mercy for accused individuals, albeit at the price of reinforcing these broader racial, and racist, stereotypes. Accused Africans both mobilized and contested such narratives during courtroom testimony as well as in their post-sentencing petitions for mercy. The role of race in shaping mercy and execution was complex and frequently intersected with other facets of an accused or condemned person’s identity to shape sentencing outcomes. Just as white anxieties could influence sentencing in Kenya’s settler state, so elite African juries’ fears of immigrant violence in the Gold Coast saw harsh sentencing for offenders from Nigeria or Togo, whilst racial and gendered norms of mercy intersected to routinely spare African women from the gallows across British Africa. Justice in Africa was in no way colour-blind or impartial, but colonial governments recognized that sometimes its sword had to be sheathed – or rather its noose unstrung – for a state to retain its fragile authority. Fourthly, penal reform facilitated the continued use of capital punishment in Britain’s African territories rather than abolishing or decreasing it, highlighting the tensions between the rhetoric of reform and civilization, and the realities of systemic violence which underpinned colonial penality. Reformist impulses were imported from metropolitan and global liberal penal policies, but it was only the form of executions that changed, with the widespread practice of public hangings transformed into a system of routinized and sanitized executions behind closed doors in central government prisons by the 1930s. The death penalty was modified according to the dictates of civilization to facilitate the continued application of colonial violence, rather than to eradicate it. No reform could eradicate the manifest violence of execution, however, and hangings remained brutal, inhumane, and often malfunctional. Strikingly, aside from pressure to end public hangings, the death penalty stood largely outside reformist agendas: the restriction or abolition of judicial killing in British Africa was never seriously mooted in colonial or penal reformist discourse, such was its centrality to colonial strategies of penality and legal violence.

11. See also Gendry, ‘“Seule une répression sévère”’, 27.

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Fifthly, for all of the power and terror conveyed by an execution, capital punishment was always a double-edged sword for colonial states, often revealing its weakness as much as, if not more than, its power. Colonial subjects were ruled through violence, but the use of violence also continually threatened scandal and the death penalty ultimately became a powerful synecdoche for the vagaries and internal contradictions of colonial rule.12 Scandals were part of the colonial iconology; they acted as a form of colonial public theatre in which the content of ‘violence’ and ‘justice’ was debated, highlighting the intersecting moral and political economies of colonial justice. Despite being extolled as a carefully calibrated, legalistic assertion of the rule of law, the death penalty was an intrinsically irrational punishment, whose enactment was shaped by the emotional landscapes of colonies, by their fears and anxieties. Scandals that erupted over the use of the death penalty demonstrate that colonial anxieties and changing sensibilities, influenced by the rise of humanitarianism and anti-colonialism, had a significant impact on the use of the penalty in Africa. Ideas of British ‘justice’ and ‘civilization’ were the moral underpinnings of colonial rule, serving as a discursive and cultural counterbalance to the fundamental injustice of colonialism; but what scandals over the Kyebi murder in Gold Coast or the fact that more than one thousand Gikuyu men went to their deaths during the Kenyan State of Emergency reveal is that this counterbalance was an illusion. This, as much as any inherent unease about capital punishment, was why death penalty scandals provoked outrage and became symbols of the need for colonial reform. Debates over late colonial usage of the death penalty during the era of metropolitan abolitionism also demonstrate the fundamental racism of colonial subjectivities, whereby even in humanitarian discourses Africans were placed outside of general conceptions of humanity when it came to the application of lethal judicial violence; scandals were framed in terms of race relations rather than human rights or the ethics of executing a fellow human being. The final word on the violence of colonial capital punishment in British Africa should lie with those men and women who faced the death penalty for their crimes. On 6 November 1953, against the backdrop of the Kenyan Emergency, Muturi s/o Munuyuru stood before Chief Justice Hearne in Nairobi, awaiting sentence for the murder of another Gikuyu man during a quarrel. As he was convicted and sentenced to death, Muturi addressed the court, pleading with Hearne that ‘the pen you are using could kill someone; therefore you should not use it’.13 For all the discourses of ‘justice’, ‘law’ and ‘civilization’, and for all the rationalizations of state violence as deterrence or retribution, whether guilty or innocent, the victims of the imperial gallows were, in the end, sacrifices to the colonial order and the maintenance of its rule.

12. Pierce and Rao, ‘Discipline and the Other Body’, 5–7. 13. Muturi s/o Munuyuru CC237/53, KNA MLA/1/593. In this case, Muturi’s plea for mercy was successful and his death sentence was commuted to fourteen years’ imprisonment.

B I B L IO G R A P H Y Manuscript & Archival Sources Kenyan National Archives, Nairobi: Ministry of Legal Affairs Records Attorney-General Department Records Provincial and District Commissioner’s Records Prison Department Records National Archives of Malawi, Zomba: Judicial Records – Murder and Manslaughter Cases High Court Records Secretariat Records – Capital Sentences Public Records and Archives Department, Accra: Colonial Secretary’s Office Records Series 15 Administrative Records Series 5 Supreme Court Records, Murder Books Tanzanian National Archives, Dar es Salaam: Judicial Records Prison Department Records The National Archives, Kew, London: Colonial Office Records – Original Correspondence CO 267 Sierra Leone, Original Correspondence CO 323 General, Original Correspondence CO 533 Kenya, Original Correspondence CO 535 Somaliland, Original Correspondence CO 536 Uganda, Original Correspondence CO 583 Nigeria, Original Correspondence CO 822 East Africa, Original Correspondence CO 859 Social Services Department and Successors Original Correspondence Dominions Office and Commonwealth Relations Office – Original Correspondence DO 35 Southern Rhodesia, Original Correspondence DO 119 High Commission of South Africa, High Commission of Bechuanaland, Basutoland and Swaziland Weston Library, University of Oxford: Africana and British Empire Manuscripts Annual Statistical Reports for British African Territories (Blue Books), c. 1900–1965 Annual Reports for the Police Departments of British African Territories, c. 1900–65 Annual Reports on the Administration of Prisons/Treatment of Offenders in British African Territories, c. 1900–65 Annual Reports on the Judicial Department in British African Territories, c. 1900–65 Durham University, Sudan Archive: Private Papers of Colonial Administrators

Bibliography

233

Digital and Printed Publication Archive Collections British Online Archives Colonial Africa in Official Statistics, 1821–1953 Ghana (Gold Coast), 1846–1939 Kenya (East Africa Protectorate), 1901–46 Malawi (Nyasaland), 1904–38 Ghana and Togo under Colonial Rule in Government Reports, 1843–1957 Courts, 1895–1939 Judiciary, 1928–33 Police, 1895–1950 Prisons, 1895–1932 Prisons and Probation, 1932–47 Prisons and Offender Management, 1947–56 Kenya under Colonial Rule in Government Reports, 1907–64 Kenya Court Records, 1918–63 Prisons, 1926–52 Prisons, 1953–63 Malawi under Colonial Rule in Government Reports, 1907–67 Judicial 1917–64 Police 1921–39 Police 1941–64 Prisons 1921–53

Printed Primary Source Collection East Africa Court of Appeal Law Review East Africa Protectorate, Ordinances and Proclamations Law Review of Kenya Malawi Law Reports 1923–60 Nyasaland Protectorate, Ordinances and Proclamations West African Court of Appeal, Selected Judgements Colonial Office Blue Books of Annual Statistics, various years Annual Departmental Reports from the Gambia, Gold Coast, High Commission Territories, Kenya, Nigeria, Nyasaland, Northern Rhodesia, Sierra Leone, South Africa, Southern Rhodesia, Tanganyika, Uganda, Zanzibar. Various years Prisons Annual Reports Police Annual Reports Judicial Annual Reports Hansard – United Kingdom Hansard – Kenya Hansard – Malawi Time Magazine (New York) The Spectator (London) The Times (London) The Daily Telegraph (London) The Observer (London) The Tribune (London) The Manchester Guardian (Manchester)

Bibliography

234 The Scotsman (Glasgow) The East African Standard (Nairobi) Malawi Times (Zomba) The Malawi News (Blantyre) Gold Coast Leader (Accra) West African (Accra)

Published Primary Sources Alexander, Gilchrist. Tanganyika Memories: A Judge in the Red Kanzu. London: Blackie & Son, 1936. Baden-Powell, Robert S. S. The Downfall of Prempeh: A Diary of Life with the Native Levy in Ashanti, 1895–96. London: Methuen, 1896. Bing, Geoffrey. Reap the Whirlwind: An Account of Kwame Nkrumah’s Ghana from 1950 to 1966. London: MacGibbon & Kee, 1968. Blunt, Wilfred S. Atrocities of Justice under British Rule in Egypt. London: T. F. Unwin, 1906. Boyle, Frederick. Through Fanteeland to Coomassie: A Diary of the Ashantee Expedition. London: Chapman and Hall, 1874. Buell, Raymond Leslie. The Native Problem in Africa, 2 vols. New York: Macmillan, 1928. Burns, Alan. Colonial Civil Servant. London: Allen & Unwin, 1949. Bradley, Kenneth. Once a District Officer. New York: St Martin’s Press, 1966. Casely Hayford, Joseph Ephraim. Gold Coast Native Institutions: With Thoughts upon a Healthy Imperial Policy for the Gold Coast and Ashanti. London: Sweet and Maxwell, 1903. Churchill, Winston. My African Story. London: Leo Cooper, 1908. Colonial Office. Report of the Commission of Enquiry into Disturbances in the Gold Coast 1948. London: HMSO, 1948. Chipembere, Henry B. M. Hero of the Nation: Chipembere of Malawi – An Autobiography, edited by Robert I. Rotberg. Blantyre: Christian Literature Association of Malawi, 2001. Crooks, J. J. Records Relating to the Gold Coast Settlements from 1750–1874. London: Cass, [1923]1973. Dundas, Charles. African Crossroads. London: Macmillan, 1955. Duff, Hector Livingston. Nyasaland under Foreign Office Rule. London: G. Bell, [1906]1937. Duff, Hector Livingston. African Small Chop. London: Hodder and Stoughton, 1932. Evans-Pritchard, Edward Evans. Nuer Religion. Oxford: Clarendon Press, 1956. Ffoulkes, Arthur. ‘The Company System in Cape Coast Castle’. Journal of the Royal African Society 7 (1908): 261–77. Fortes, Meyer. ‘The Political System of the Tallensi of the Northern Territories of the Gold Coast’. In African Political Systems, edited by Meyer Fortes and E. E. Evans-Pritchard, 238–71. Oxford: Clarendon Press, 1940. Frimpong, Kwame. ‘The Final Obsequies of the Late Nana Sir Ofori Atta K.B.E. Abuakwahene’. Africa 15 (1945): 80–6. Gold Coast. The Gold Coast Handbook. Accra: Government Press, 1923. Gold Coast. Report of the Committee on Prisons. Accra: Government Printers, 1951. Great Britain. Report of Her Majesty’s Commissioner of Inquiry on the State of the British Settlements of the Gold Coast, at Sierra Leone and the Gambia, 1841, Parliamentary Papers Session 1842, vol. 12.

Bibliography

235

Great Britain. Papers Relating to the Administration of Martial Law in South Africa. London: HMSO, 1902, Cmnd. 981. Great Britain. Report of the Commission of Inquiry into the Administration of Justice in Kenya, Uganda and Tanganyika Territory in Criminal Matters, May 1933, and Matters Arising Out of the Report. London: HMSO, 1934, Cmnd. 4623. Great Britain. Royal Commission on Capital Punishment 1949–53: Report Presented to Parliament by Command of Her Majesty, September 1953. London: HMSO, 1953, Cmnd. 8932. Great Britain. Report of the Nyasaland Commission of Inquiry. London: Government Printer, 1959, Cmnd 814. Griffith, William Brandford. A Note on the History of the British Courts in the Gold Coast Colony, with a Brief Account of the Changes in the Constitutions of the Colony, by Sir William Brandford Griffith, CBE. Accra: Government Printer, 1936. Griffith, William Brandford. The Far Horizon: Portrait of a Colonial Judge. Ilfracombe: Arthur Stockwell, 1951. Hailey, Malcolm. An African Survey Revised 1956: A Survey of Problems in Africa South of the Sahara, 2nd edn. London: Oxford University Press, 1956. Hamilton, James. ‘Crime and Punishment’. West African Affairs 19 (1953): 4–18. Jamaica. Report of the Royal Commission 1866. London: HMSO, 1866. Kenyatta, Jomo. Facing Mount Kenya: The Tribal Life of the Kikuyu. London: Secker and Warburg, [c.1938]1953. King-Barlow, Sydney Nettleton. Some Gold Coast Judgements, 1915, 1916, 1917 and the Masai Case in the Court of Appeal for Eastern Africa, 1913. Privately Printed, 1917. Leakey, J. S. B. ‘Some Notes on the Masai of Kenya Colony’. Journal of the Royal Anthropological Institute of Great Britain and Ireland 60 (1930): 185–209. Lieck, Albert, ed. The Trial of Benjamin Knowles. Edinburgh: William Hodge & Co, 1933. Litchfield, Bob. ‘Life in Kenya with the Mau Mau’. Police Journal 63, no. 2 (1990): 131–4. Lugard, Frederick D. The Dual Mandate in British Tropical Africa. Edinburgh: W. Blackwood & Sons, 1923. Lugard, Frederick D. Political Memoranda: Revision of Instructions to Political Officers on Subjects Chiefly Political and Administrative, 1913–18, 3rd edn. London: Cass, [1919]1970. Lumley, E. K. The Forgotten Mandate: A British District Officer in Tanganyika. London: Hurst, 1976. Meinertzhagen, Richard. Kenya Diary, 1902–06. Edinburgh: Oliver & Boyd, 1957. Mellet, James. If Any Man Dare. Dublin: Fallons, 1963. Mensah Sarbah, John. Fanti Customary Law. London: William Clowes & Sons, 1897. National Congress of British West Africa. Resolutions of the Conference of British West Africans. Accra: Government Printer, 1920. Ng’wane, H. D. ‘Economics of Kacasu Distilling and Brewing of African Beers in a Blantyre-Limbe Village’. In Present Interrelations in Central African Rural and Urban Life, edited by R. J. Apthorpe, 133–48. Lusaka: Rhodes-Livingstone Institute, 1958. Nkrumah, Kwame. The Autobiography of Kwame Nkrumah. London: Thomas Nelson & Sons, 1957. Orde Brown, J. ‘Witchcraft and British Colonial Law’. Africa 8, no. 4 (1935): 481–7. Orwell, George. ‘A Hanging’. The Adelphi (August 1931). Paterson, Alexander. Report on a Visit to the Prisons of Kenya, Uganda, Tanganyika, Zanzibar, Aden and Somaliland during 1939. Morija: Morija Print Works, 1944.

236

Bibliography

Pierrepoint, Albert. Executioner: Pierrepoint – The Amazing Autobiography of the World’s Most Famous Executioner. London: George G. Harrap, 1974. Rangley, W. H. J. ‘Notes on Cewa Tribal Law’. The Nyasaland Journal 3 (1948): 5–10. Rattray, R. S. Ashanti Law and Constitution. Oxford: Clarendon Press, 1929. Redwar, H. W. H. Comments on Some Ordinances of the Gold Coast Colony, With Notes on a Few Decided Cases. London: Sweet & Maxwell, 1909. Roberts, Charles Clifton. ‘Witchcraft and Colonial Legislation’. Africa 8, no. 4 (1935): 488–94. Roberts, Charles Clifton. Tangled Justice: Some Reasons for a Policy of Change in Africa. London: Macmillan, 1937. Roberts, Denys. I’ll Do Better Next Time. Chichester: Barry Rose, 1995. Roberts-Wray, Kenneth. Commonwealth and Colonial Law. London: Stevens, 1966. Rowlands, J. S. S. ‘Notes on Native Law and Custom in Kenya: I’. Journal of African Law 6, no. 3 (1962): 192–209. Ruark, Robert. Something of Value. London: Corgi, [1955]1970. Sarbah, John Mensah. Fanti Customary Laws, 3rd edn. London: Frank Cass & Co., 1968. Shelley, H. M. and W. H. Watson. ‘An Investigation Concerning Mental Disorder in the Nyasaland Natives’. Journal of Mental Science 82 (1936): 701–30. Snell, G. S. Nandi Customary Law. London: Palgrave Macmillan, 1954. Union of South Africa. Report on the Natives of South-West Africa and Their Treatment by Germany; Prepared in the Administrator’s Office, Windhuk, South-West Africa, January 1918. London: HMSO, 1918. Ward Price, Henry Lewis. Dark Subjects. London: Jarrolds, 1939.

Published Secondary Sources Afreh, D. K. ‘Ghana’. In Judicial and Legal Systems in Africa, edited by A. N. Allot, 2nd edn., 25–40. London: Butterworths, 1970. Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen. Stanford: Stanford University Press, 1998. Agozino, Biko. ‘Imperialism, Crime and Criminology: Towards the Decolonisation of Criminology’. Crime, Law and Social Change 41, no. 4 (2004): 343–58. Akyeampong, Emmanuel. Drink, Power and Cultural Change: A Social History of Alcohol in Ghana, c.1800 to Recent Times. Oxford: James Currey, 1996. Anderson, Clare. ‘The Execution of Rughobursing: The Political Economy of Convict Transportation and Penal Labour in Early Colonial Mauritius’. Studies in History 19, no. 2 (2003): 185–97. Anderson, Clare. ‘Execution and Its Aftermath in the Nineteenth-Century British Empire’. In A Global History of Execution and the Criminal Corpse, edited by Richard Ward, 171–98. London: Palgrave Macmillan, 2015. Anderson, Clare. Convicts: A Global History. Cambridge: Cambridge University Press, 2022. Anderson, David M. Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire. London: Weidenfeld & Nicholson, 2005. Anderson, David. M. ‘Sexual Threat and Settler Society: “Black Perils” in Kenya, c. 1907–30’. Journal of Imperial and Commonwealth History 38, no. 1 (2010): 47–74. Anderson, David M. ‘Punishment, Race and the “Raw Native”: Settler Society and Kenya’s Flogging Scandals, 1895–1930’. Journal of Southern African Studies 37, no. 3 (2011): 479–97.

Bibliography

237

Anderson, Steven. A History of Capital Punishment in the Australian Colonies, 1788–1900. London: Palgrave Macmillan, 2020. Austin, David. Politics in Ghana, 1946–60. London: Oxford University Press, 1964. Bailey, Merridee L. and Kimberely-Joy Knight. ‘Writing Histories of Law and Emotion’. Journal of Legal History 38, no. 2 (2017): 117–29. Baker, Colin. Revolt of the Ministers: The Malawi Cabinet Crisis, 1964–65. London: I.B. Tauris, 2001. Ballantine, Tony and Antoinette Burton, eds. Bodies in Contact: Rethinking Colonial Encounters in World History. Durham, NC: Duke University Press, 2005. Ballinger, Annette. Dead Woman Walking: Executed Women in England and Wales, 1900–1955. Aldershot: Dartmouth, 2000. Barnes, Victoria and Emily Whewell. ‘Judicial Biography in the British Empire’. Indiana Journal of Global Legal Studies 28, no. 1 (2021): 1–27. Ben-Natan, Smadar. ‘The Dual Penal Empire: Emergency Powers and Military Courts in Palestine/Israel and Beyond’. Punishment & Society 23, no. 5 (2021): 741–63. Benton, Lauren A. Law and Colonial Cultures: Legal Regimes in World History. Cambridge: Cambridge University Press, 2002. Berman, Bruce. ‘Bureaucracy and Incumbent Violence: Colonial Administration and the Origins of the Mau Mau Emergency in Kenya’. British Journal of Political Science 6, no. 2 (1976): 143–75. Berman, Bruce. Control and Crisis in Colonial Kenya: The Dialectic of Domination. London: James Currey, 1990. Berman, Bruce and John Lonsdale. Unhappy Valley: Conflict in Kenya and Africa, 2 vols. London: James Currey, 1992. Bernault, Florence, ed. Enfermement, prison et châtiments en Afrique: du 19e siècle à nos jours. Paris: Karthala, 1999. Bernault, Florence. ‘Body, Power and Sacrifice in Equatorial Africa’. Journal of African History 47, no. 2 (2006): 207–39. Bernault, Florence. ‘The Shadow of Rule: Colonial Power and Modern Punishment in Africa’. In Cultures of Confinement: A History of the Prison in Africa, Asia and Latin America, edited by Frank Dikötter and Ian Brown, 55–94. New York: Hurst and Company, 2007. Bethell, Nicholas. The Palestine Triangle: The Struggle between the British, the Jews and the Arabs, 1935–48. London: André Deutsch, 1978. Black, Lynsey. ‘“On the other hand the accused is a woman … ” Gender and the Death Penalty in Post-Independence Ireland’. Law & History Review 36, no. 1 (2018): 139–72. Bohannan, Paul, ed. African Homicide and Suicide. Princeton: Princeton University Press, 1960. Booth, Alan R. ‘European Courts Protect Women and Witches: Colonial Law Courts as Redistributors of Power in Swaziland, 1920–1950’. Journal of Southern African Studies 18, no. 2 (1992): 253–75. Bose, Purnima and Laura Lyons. ‘Dyer Consequences: The Tropes of Amritsar, Ireland and the Lessons of “Minimum Force”’. Boundary 26, no. 2 (1999): 199–229. Braatz, Erin, Katherine Bruce-Lockhart and Stacey Hynd. ‘Introduction: African Penal Histories in Global Perspective’. Punishment & Society 24, no. 5 (2022): 759–70. Brady, James B. and N. Garver, eds. Justice, Law and Violence. Philadelphia: Temple University Press, 1993. Branch, Daniel. ‘Imprisonment and Colonialism in Kenya, c.1930–52: Escaping the Colonial Archipelago’. International Journal of African Historical Studies 38, no. 2 (2005): 239–66.

238

Bibliography

Branch, Daniel. Defeating Mau Mau, Creating Kenya: Counterinsurgency, Civil War, and Decolonization. Cambridge: Cambridge University Press, 2009. Brown, Ian. ‘Rebels, the Death Penalty and Legal Process in Late Colonial Burma’. The Historical Journal 62, no. 3 (2019): 813–32. Brown, Mark. ‘The Politics of Penal Excess and the Echo of Colonial Penality’. Punishment and Society 4, no. 4 (2002): 403–23. Brown, Mark. Penal Power and Colonial Rule. Abingdon: Routledge, 2014. Bruce-Lockhart, Katherine. ‘The “Truth” about Kenya: Connection and Contestation in the 1956 Kamiti Controversy’. Journal of World History 26, no. 4 (2015): 815–38. Bruce-Lockhart, Katherine. Carceral Afterlives: Prisons, Detention and Punishment in Postcolonial Uganda. Athens, OH: Ohio University Press, 2022. Burton, Andrew. African Underclass: Urbanisation, Crime and Order in Dar es Salaam. Oxford: James Currey, 2005. Bush, Barbara. Imperialism, Race and Resistance: Africa and Britain, 1919–45. London: Routledge, 1999. Campbell, Chloe. Race and Empire: Eugenics in Kenya. Manchester: Manchester University Press, 2012. Campbell, James. ‘Murder Appeals, Delayed Executions, and the Origins of Jamaican Death Penalty Jurisprudence’. Law and History Review 33, no. 2 (2015): 435–66. Carol, Anne. Au pied de l’échafaud: une histoire sensible de l’exécution. Paris: Belin, 2017. Chadwick, Roger. Bureaucratic Mercy: The Home Office and the Treatment of Capital Cases in Victorian Britain. London: Garland, 1992. Chanock, Martin. Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia. Cambridge: Cambridge University Press, 1985. Chimango, L. J. ‘Traditional Criminal Law in Malawi’. The Society of Malawi Journal 28, no. 1 (1975): 25–39. Coldham, Simon. ‘Crime and Punishment in British Colonial Africa’. Recueils de la Société Jean Bodin 58 (1991): 57–66. Cole, Jennifer and Lynn M. Thomas. ‘Introduction: Thinking through Love in Africa’. In Love in Africa, edited by Jennifer Cole and Lynn M. Thomas, 1–30. Chicago: University of Chicago Press, 2009. Colebourne, Catherine. ‘Crime, the Legal Archive and Postcolonial Histories’. In Crime and Empire, 1840–1940: Criminal Justice in Local and Global Context, edited by Barry Godfrey and Graeme Dunstall, 92–105. Cullompton: Willan, 2005. Comaroff, Jean and John Comaroff. ‘Law and Disorder in the Postcolony: An Introduction’. In Law and Disorder in the Postcolony, edited by Jean Comaroff and John Comaroff, 1–56. Chicago: Chicago University Press, 2006. Comaroff, John. ‘Governmentality, Materiality, Legality, Modernity: On the Colonial State’. In African Modernities: Entangled Meanings in Current Debate, edited by Jan-Georg Deutsch, Peter Probst and Heike Schmidt, 107–34. Oxford: James Currey, 2002. Comaroff, John L. ‘Colonialism, Culture and the Law: A Foreword’. Law and Social Inquiry 26, no. 2 (2001): 304–16. Conquergood, Dwight. ‘Lethal Theatre: Performance, Punishment and the Death Penalty’. Theater Journal 54, no. 3 (2002): 441–2. Cooper, Frederick. Decolonization and African Society: The Labour Question in French and British Africa. Cambridge: Cambridge University Press, 1996. Cooper, Frederick. ‘Conflict and Connection: Rethinking Colonial African History’. American Historical Review 99, no. 5 (1999): 1516–45.

Bibliography

239

Cooper, Frederick. Colonialism in Question: Theory, Knowledge and History. Berkeley: University of California Press, 2005. Davis, Natalie Zemon. Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France. Stanford: Stanford University Press, 1987. de Certeau, Michel. The Practice of Everyday Life. Berkeley: University of California Press, 1984. Derrida, Jacques. The Death Penalty: Volume One, trans. Peggy Kamuf. Chicago: University of Chicago Press, 2014. Deutsch, Jan-Georg. ‘Celebrating Power: The Administration of the Law and the Public Sphere in Colonial Tanzania, 1890–1914’. Journal of African Cultural Studies 15, no. 1 (2002): 93–103. Dirks, Nicholas. The Scandal of Empire: India and the Creation of Britain. London: Belknap, 2006. Drohan, Brian. Brutality in an Age of Human Rights: Activism and Counterinsurgency at the End of the British Empire. New York: Cornell University Press, 2017. Dumbutshena, Enoch. ‘The Death Penalty in Zimbabwe’. Revue Internationale de Droit Pénal 58, no. 3–4 (1987): 521–32. Durkheim, Émile. ‘Two Laws of Penal Evolution’. Année sociologique 4 (1901): 65–95. Edsman, Björn. Lawyers in Gold Coast Politics, c.1900–45: From Mensah Sarbah to J. B. Danquah. Uppsala: Acta Universitatis Uppasaliensis, 1979. Ekow Daniels, W. C. The Common Law in West Africa. London: Butterworths, 1964. Elias, Norbert. The Civilizing Process: The History of Manners and State Formation and Transformation, trans. Edmund Jephcott. Oxford: Blackwell, 1994. Elias, Taslim Olawale. The Nature of African Customary Law. Manchester: Manchester University Press, 1956. Elias, Taslim Olawale. Ghana and Sierra Leone: The Development of Their Laws and Constitutions. London: Stevens & Sons Ltd, 1962. Elkins, Caroline. Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya. New York: Henry Holt, 2005. Elkins, Caroline. ‘Looking Beyond Mau Mau: Archiving Violence in the Era of Decolonization’. American Historical Review 120, no. 3 (2015): 852–68. Etherington, Norman. ‘Natal’s Black Rape Scare of the 1870s’. Journal of Southern African Studies 15, no. 1 (1988): 36–53. Evans, Julie. ‘Colonialism and the Rule of Law: The Case of South Australia’. In Crime and Empire 1840–1940: Criminal Justice in Local and Global Context, edited by Barry S. Godfrey and Graeme Dunstall, 57–75. Cullompton, Devon: Willan Publishing, 2005. Evans, Richard. Rituals of Retribution: Capital Punishment in Germany, 1600–1987. Oxford: Oxford University Press, 1996. Finnane, Mark. ‘“Upholding the Cause of Civilization”: The Australian Death Penalty in War and Colonialism’. International Journal for Crime, Justice and Social Democracy 11, no. 3 (2022): 23–32. Fleming, C. J. W. ‘Crime and Punishment in Northern Malawi’. The Society of Malawi Journal 30, no. 1 (1977): 6–14. Foucault, Michel. Surveiller et punir: naissance de la prison. Paris: Gallimard, 1975. Foucault, Michel. The History of Sexuality Volume 1: The Will to Knowledge, trans. Robert Huxley, 4 vols. London: Allen Lane, 1990. Foucault, Michel. ‘Faire vivre et laisser mourir: la naissance du racisme’. Les Temps modernes (February 1991): 37–61.

240

Bibliography

Foucault, Michel. Society Must Be Defended: Lectures at the Collège de France, 1975–76, ed. Mauro Bertani and Alessandro Fortana, trans. David Macey. London: Allen Lane, 2003. Foucault, Michel. Security, Territory and Population: Lectures at the Collège de France, 1977–78, ed. Michel Senellart, trans. Graham Burchell. Basingstoke: Palgrave Macmillan, 2007. Fratkin, Elliot. ‘The Samburu Laibon’s Sorcery and the Death of Theodore Powys in Colonial Kenya’. Journal of Eastern African Studies 9, no. 1 (2015): 35–54. French, David. The British Way in Counter-Insurgency, 1945–67. Oxford: Oxford University Press, 2011. Furedi, Frank. ‘Creating a Breathing Space: The Political Management of Colonial Emergencies’. Journal of Imperial and Commonwealth History 21, no. 3 (1993): 89–106. Garland, David. Punishment and Modern Society: A Study in Social Theory. Oxford: Oxford University Press, 1990. Garland, David. ‘Why the Death Penalty Is Disappearing’. In Capital Punishment: A Hazard to a Sustainable Criminal Justice System?, edited by Lill Scherdid, 77–91. Ashgate: Taylor & Francis, 2014. Gatrell, V. A. C. The Hanging Tree: Execution and the English People, 1770–1868. Oxford: Oxford University Press, 1994. Gaylord, Mark S. and John F. Galliher. ‘Death Penalty Politics and Symbolic Law in Hong Kong’. International Journal of the Sociology of Law 22, no. 1 (1994): 19–37. Gendry, Thaïs. ‘Le cannibale et la justice: De l’obsession coloniale à la mort pénale (Côte d’Ivoire et Guinée française, années 1920)’. Vingtième Siècle. Revue d’histoire 4, no. 4 (2018): 55–68. Gendry, Thaïs. ‘“Seule une répression sévère est de nature à contenir leurs instincts sanguinaires”: Peine de mort et politique coloniale en Afrique Occidentale française, 1890–1945’. French Colonial History (forthcoming). Gendry, Thaïs and Stacey Hynd. ‘African Women, Colonial Justice and White Man’s Mercy: Female Murderers and Capital Sentencing under British and French Colonial Rule in Africa, c.1920–40s’. Crime, Histoire & Sociétés / Crime, History & Societies (forthcoming). Gibson, Mary. ‘Global Perspectives on the Birth of the Prison’. American Historical Review 116, no. 4 (2011): 1040–63. Ginzburg, Carlo. ‘Checking the Evidence: The Judge and the Historian’. Critical Enquiry 18, no. 1 (1991): 79–92. Glassman, Jonathon. Feasts and Riot: Revelry, Rebellion and Popular Consciousness on the Swahili Coast, 1856–1888. London: James Currey, 1995. Gocking, Roger. ‘British Justice and the Native Tribunals of the Southern Gold Coast Colony’. Journal of African History 34, no. 1 (1993): 93–113. Gocking, Roger. ‘Colonial Rule and the “Legal Factor” in Ghana and Lesotho’. Africa 67, no. 1 (1997): 61–85. Gocking, Roger. ‘A Chieftaincy Dispute and Ritual Murder in Elmina, Ghana, 1945–6’. Journal of African History 41, no. 2 (2000): 197–219. Gocking, Roger. The History of Ghana. Westport: Greenwood, 2005. Gocking, Roger. ‘The Adjudication of Homicide in Colonial Ghana: The Impact of the Knowles Murder Case’. Journal of African History 52, no. 1 (2011): 85–104. Gordon, Michelle. Extreme Violence and the British Way: Colonial Warfare in Perak, Sierra Leone and Sudan. London: Bloomsbury, 2020. Gouveia da Viega, Fernando O. ‘Portuguese Africa’. In African Penal Systems, edited by Alan Milner, 210–27. London: Routledge and Kegan Paul, 1969.

Bibliography

241

Gray, Natasha. ‘Witchcraft, Oracles and Colonial Law: Evolving Anti-Witchcraft Practices in Ghana, 1927–32’. International Journal of African Historical Studies 34, no. 2 (2001): 339–62. Hatchard, John and Simon Coldham. ‘Commonwealth Africa’. In Capital Punishment: Global Issues and Prospects, edited by Peter Hodgkinson and Andrew Rutherford, 155–76. Winchester: Waterside Press, 1996. Hay, Douglas. ‘Property, Authority and the Criminal Law’. In Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, edited by Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson and Calvin Winslow, 17–63. London: Penguin Books, 1977. Hay, Douglas, Peter Linebaugh, John G. Rule, E. P. Thompson and Calvin Winslow. Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England. London: Penguin Books, 1977. Heussler, Robert. British Tanganyika: An Essay and Documents on District Administration. Durham, NC: Duke University Press, 1971. Hobsbawm, Eric and Terence O. Ranger. The Invention of Tradition. Cambridge: Cambridge University Press, 1983. Hodgson, Dorothy and Sheryl McCurdy, eds. ‘Wicked Women’ and the Reconfiguration of Gender in Africa. Oxford: James Currey, 2001. Hood, Roger and Carolyn Hoyle. The Death Penalty: A Worldwide Perspective, 5th edn. Oxford: Oxford University Press, 2015. Hoyle, Carolyn with Diana Batchelor. ‘The Death Penalty in Kenya: A Punishment That Has Died Out in Practice. Part One: A Public Ready to Accept Abolition’. The Death Penalty Project (14 June 2022). Hughes, Matthew. Britain’s Pacification of Palestine: The British Army, the Colonial State and the Arab Revolt, 1936–39. Cambridge: Cambridge University Press, 2019. Hynd, Stacey. ‘Deadlier than the Male? Women and the Death Penalty in Colonial Kenya and Nyasaland, c. 1920–57’. Stichproben: Vienna Journal of African Studies 12 (2007): 13–33. Hynd, Stacey. ‘Decorum or Deterrence? The Politics of Execution in Malawi, 1915–66’. Cultural and Social History 5, no. 4 (2008): 437–48. Hynd, Stacey. ‘Killing the Condemned: The Practice and Process of Capital Punishment in British Africa, 1900–50s’. Journal of African History 49, no. 3 (2008): 403–18. Hynd, Stacey. ‘The “Extreme Penalty of the Law”: Mercy and the Death Penalty as Aspects of State Power in Colonial Nyasaland, c.1903–47’. Journal of Eastern African Studies 4, no. 3 (2010): 542–59. Hynd, Stacey. ‘Fatal Families: Narratives of Spousal Killing and Domestic Violence in Murder Trials in Kenya and Nyasaland, c.1920–57’. In Domestic Violence in Africa: Historical and Contemporary Perspectives, edited by Richard L. Roberts, Elizabeth Thornberry and Emily S. Burrill, 159–78. Athens: Ohio University Press, 2010. Hynd, Stacey. ‘Law, Violence and Penal Reform: State Responses to Crime and Disorder in Nyasaland, c.1915–64’. Journal of Southern African Studies 37, no. 1 (2011): 431–47. Hynd, Stacey. ‘Murder and Mercy: Capital Punishment in Colonial Kenya ca. 1909–1956’. International Journal of African Historical Studies 45, no. 1 (2012): 81–101. Hynd, Stacey. ‘Benjamin Knowles v R.: Murder, Race and Respectability in Colonial Ghana, 1927–30’. In Legal Histories of the British Empire, edited by John McClaren and Shaunnagh Dorsett, 77–91. London: Palgrave Macmillan, 2014. Hynd, Stacey. ‘Dismembering and Remembering the Body: Execution and Post-Execution Display in Africa, c.1870–2000’. In A Global History of Execution and the Criminal Corpse, edited by Richard Ward, 220–48. London: Palgrave Macmillan, 2015.

242

Bibliography

Hynd Stacey. ‘Insufficiently Cruel’ or ‘Simply Inefficient’? Discipline, Punishment and Reform in the Gold Coast Prison System, Ghana c. 1850–1957’. In Transnational Penal Cultures: New Perspectives on Discipline, Punishment and Desistance, edited by Vivien Miller and James Campbell, 19–35. Abingdon: Routledge, 2015. Hynd, Stacey. ‘R. v. Mrs Utam Singh: Race, “Deviant Womanhood” and Colonial Justice in Kenya, 1949–52’. In Subverting Empire: Deviance and Disorder in the British Colonial World, edited by William Jackson and Emily Manktelow, 226–44. London: Palgrave Macmillan, 2015. Hynd, Stacey. ‘Pickpockets, Pilot Boys and Prostitutes: The Construction of Juvenile Delinquency in the Gold Coast [Colonial Ghana], c. 1929–57’. Journal of West African History 4, no. 2 (2018): 47–74. Hynd, Stacey. ‘“More an Inspiration than a Deterrent”? Capital Punishment and British Colonial Counter-Insurgency, c. 1916–73’. In Oxford Handbook of Late Colonial Insurgencies and Counter-Insurgencies, edited by Martin Thomas and Gareth Curless, 215-233. Oxford: Oxford University Press, 2023. Ibhawoh, Bonny. Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History. New York: State University of New York Press, 2007. Ibhawoh, Bonny. Imperial Justice: Africans in Empire’s Court. Oxford: Oxford University Press, 2013. Jeater, Diane. ‘“Their Idea of Justice Is So Peculiar”: Southern Rhodesia 1890–1923’. In The Moral World of the Law, edited by Paul Coss, 178–95. Cambridge: Cambridge University Press, 2000. Jentzen, Jeffrey. ‘Death and Empire: Medicolegal Investigations and Practice across the British Empire’. In Global Forensic Cultures: Making Fact and Justice in the Modern Era, edited by Ian Burney and Christopher Hamlin, 149–79. Baltimore: Johns Hopkins University Press. Kalusa, Walima T. and Megan Vaughan. Death, Belief and Politics in Central Africa. Lusaka: Lembani Trust, 2013. Karekwaivanane, George Hamandishe. The Struggle over State Power in Zimbabwe: Law and Politics since 1950. Cambridge: Cambridge University Press, 2017. Karimunda, Aimé Muyoboke. The Death Penalty: The Path towards Abolition. Farnham: Ashgate, 2014. Kanogo, Tabitha. African Womanhood in Colonial Kenya, 1900–50. Athens: Ohio University Press, 2005. Keppel-Jones, Arthur. Rhodes and Rhodesia: The White Conquest of Zimbabwe, 1884–1902. Montreal: McGill-Queens University Press, 1983. Killingray, David. ‘The Maintenance of Law and Order in British Colonial Africa’. African Affairs 85, no. 340 (1986): 411–37. Killingray, David. ‘Punishment to Fit the Crime? Penal Policy and Practice in British Colonial Africa’. In Enfermement, Prison et Châtiments, Enfermement, Prison et Châtiments en Afrique: du 19e siècle à Nos Jours, edited by Florence Bernault, 181–204. Paris: Karthala, 1999. King, Peter. ‘Decision-Makers and Decision-Making in the English Criminal Law, 1750–1900’. Historical Journal 27, no. 1 (1984): 25–58. Kirkby, Diane E. and Catharine Colebourne, eds. Law, History and Colonialism: The Reach of Empire. Manchester: Manchester University Press, 2001. Klose, Fabian. Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria, trans. Dona Geyer. University of Pennsylvania Press: Philadelphia, 2013.

Bibliography

243

Knox-Mawer, R. ‘The Jury System in British Colonial Africa’. Journal of African Law 2, no. 3 (1958):160–3. Kolsky, Elizabeth. Colonial Justice in British India. Cambridge: Cambridge University Press, 2010. Kolsky, Elizabeth. ‘The Colonial Rule of Law and the Legal Regime of Exception: Frontier “Fanaticism” and State Violence in British India’. American Historical Review 120, no. 4 (2015): 1218–46. LaChance, Daniel. ‘Last Words, Last Meals, and Last Stands: Agency and Individuality in the Modern Execution Process’. Law & Social Inquiry 32, no. 3 (2007): 701–24. Lawrance, Benjamin N., Emily Lynn Osborn and Richard L. Roberts, eds. Intermediaries, Interpreters and Clerks: African Employees and the Making of Colonial Africa. Madison: University of Wisconsin Press, 2006. Leslie, R. D. ‘Lesotho, Botswana, Swaziland’. In African Penal Systems, edited by Alan Milner, 165–89. London: Routledge and Kegan Paul, 1969. Lewis, Joanna. Empire State-Building: War & Welfare in Kenya, 1925–52. Athens, OH: Ohio University Press, 2000. Lewis, Joanna. Empire of Sentiment: The Death of Livingstone and the Myth of Victorian Imperialism. Cambridge: Cambridge University Press, 2018. Lindsay, Lisa A. and Stephan F. Miescher. Men and Masculinities in Modern Africa. Portsmouth, NH: Heinemann, 2003. Linebaugh, Peter. The London Hanged: Crime and Civil Society in Eighteen-Century England, 2nd edn. London: Verso, 2006. Lobban, Michael. Imperial Incarceration: Detention without Trial in the Making of British Colonial Africa. Cambridge: Cambridge University Press, 2021. Lonsdale, John. ‘Kenyatta’s Trials: Breaking and Making an African Nationalist’. In The Moral World of the Law, edited by Paul Coss, 196–239. Cambridge: Cambridge University Press, 2000. Lonsdale, John and E. S. Odhiambo, eds., Mau Mau and Nationhood: Arms, Authority and Narration. Oxford: James Currey, 2003. Loo, Tina. ‘Savage Mercy: Native Culture and the Modification of Capital Punishment in Nineteenth Century British Columbia’. In Qualities of Mercy: Justice, Punishment and Discretion, edited by Carolyn Strange, 109–24. Vancouver: University British Columbia Press, 1996. Luke, Kimberley. ‘Order or Justice: The Denshawai Incident and British Imperialism’. History Compass 5, no. 2 (2007): 278–87. Luongo, Katherine. Witchcraft and Colonial Rule in Kenya, 1900–50. Cambridge: Cambridge University Press, 2011. Luongo, Katherine Angela. ‘Motive Rather than Means: Legal Geneaologies of WitchKilling Cases in Kenya’. Cahiers d’Études Africaines 48, Cahier 189/90 (2008): 35–57. Lydon, Jane. Imperial Emotions: The Politics of Empathy across the British Empire. Cambridge: Cambridge University Press, 2019. MacGaffey, Wyatt. ‘Aesthetics and the Politics of Violence in Central Africa’. Journal of African Cultural Studies 13, no. 1 (2000): 63–75. Malye, Francois and Philippe Oudart. ‘Les Guillotinés de Mitterand’, Le Point, 1511, 31 August 2001. Mamdani, Mahmood. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton: Princeton University Press, 1996. Mann, Kirsten and Richard Roberts, eds. Law in Colonial Africa. London: James Currey, 1991.

244

Bibliography

Mbembe, Achille. Necropolitics. Durham, NC: Duke University Press, 2019. McCracken, John. ‘In the Shadow of Mau Mau: Detainees and Detention Camps during Nyasaland’s State of Emergency’. Journal of Southern African Studies 37, no. 3 (2011): 535–50. McCracken, John. A History of Malawi, 1859–1966. Woodbridge, Suffolk: James Currey, 2012. McCracken, John, ed. Voices from the Chilembwe Rising: Witness Testimonies made to the Nyasaland Rising Commission of Inquiry, 1915. Oxford: Oxford University Press, 2015. McCulloch, Jock. Colonial Psychiatry and ‘the African Mind’. Cambridge: Cambridge University Press, 1995. McCullock, Jock. Black Peril, White Virtue: Sexual Crime in Southern Rhodesia, 1902–1935. Bloomington: Indiana University Press, 2000. McCullock, Jock. ‘Empire and Violence, 1900–39’. In Gender and Empire, edited by Phillipa Levine, 220–39. Oxford: Oxford University Press, 2004. McGowen, Randall. ‘Civilising Punishment: The End of Public Execution in England’. Journal of British Studies 33, no. 3 (1994): 257–82. McGowen, Randall. ‘History, Culture and the Death Penalty: The British Debate, 1840–70’. Réflexions Historiques 29, no. 2 (2003): 229–49. Mcguire, John. ‘Judicial Violence and the “civilizing process”; Race and the Transition from Public to Private Executions in Colonial Australia’. Australian Historical Studies, 29, no. 111 (1998): 187–209. Meranze, Michael. ‘Michel Foucault, the Death Penalty and the Crisis of Historical Understanding’. Historical Reflections/Réflexions Historiques 29, no. 3 (2003): 191–209. Milner, Alan, ed. The African Law Reports – Malawi 1923–60, vol 1. New York: Oceana Publishing, 1968. Milner, Alan, ed. African Penal Systems. London: Routledge and Kegan Paul, 1969. Milner, Alan. The Nigerian Penal System. London: Sweet and Maxwell, 1972. Morelle, Marie, Frédéric Le Marcis and Julia Hornberger, eds. Confinement, Punishment and Prisons in Africa. Abingdon: Routledge, 2021. Morris, Henry F. ‘A History of the Adoption of Codes of Criminal Law and Procedure in British Colonial Africa, 1876–1935’. Journal of African Law 18, no. 1 (1974): 6–23. Morris, Henry F. and James S. Read. Indirect Rule and the Search for Justice: Essays in East African Legal History. Oxford: Clarendon Press, 1972. Murphy, Jeffrie G. ‘Mercy and Legal Justice’. In Forgiveness and Mercy, edited by. Jeffrie G. Murphy and Jean Hampton, 162–86. Cambridge: Cambridge University Press, 1988. Murray, Colin and Peter Sanders. Medicine Murder in Colonial Lesotho: An Anatomy of a Moral Crisis. Edinburgh: Edinburgh University Press, 2006. Muir, Edward and Guido Ruggiero. ‘Introduction’. In History from Crime, edited by Edward Muir and Guido Ruggiero, i–xix. Baltimore: John Hopkins University Press, 1994. Mwase, George Simeon. Strike a Blow and Die: The Classic Story of the Chilembwe Rising, edited by Robert I. Rotberg. London: Heinemann Educational, 1975. Ngũgĩ wa Thiong’o, Detained: A Writer’s Prison Diary. London: Heinemann, 1981. Novak, Andrew. The Death Penalty in Africa. New York: Palgrave Macmillan, 2014. O’Donnell, Ian. Justice, Mercy and Caprice: Clemency and the Death Penalty in Ireland. Oxford: Oxford University Press, 2017. Oberwittler, Dietrich. ‘Lethal Violence: A Global View on Homicide’. Oxford Research Encyclopaedia of Criminology and Criminal Justice, 11. https://doi.org/10.1093/ acrefore/9780190264079.013.402 (last accessed 25 January 2023).

Bibliography

245

Ocobock, Paul. An Uncertain Age: The Politics of Manhood in Kenya. Athens, OH: Ohio University Press, 2017. Ollennu, Nii Ama. Principles of Customary Land Law in Ghana. London: Sweet & Maxwell, 1962. Osborne, Myles. Ethnicity and Empire in Kenya: Loyalty and Martial Race among the Kamba, c.1800 to the Present. Cambridge: Cambridge University Press, 2014. Osborne, Myles, ed. The Life and Times of General China: Mau Mau and the End of Empire in Kenya. Princeton, NJ: Markus Wiener Publishers, 2015. Osei-Opare, Nana. ‘“If You Trouble a Hungry Snake, You Will Force It yo Bite You”: Rethinking Postcolonial African Archival Pessimism, Worker Discontent and Petition Writing in Ghana, 1957–66’. Journal of African History 62, no. 1 (2021): 59–78. Osufsky, Michael J., Albert Bandura and Philip G. Simbardo. ‘The Role of Moral Disengagement in the Execution Process’. Law & Human Behaviour 29, no. 4 (2005): 371–93. Parker, John. ‘Witchcraft, Anti-Witchcraft and Trans-Regional Innovation in the Early Colonial Ghana: Sakrabundi and Aberewa, 1889–1910’. Journal of African History 45, no. 3 (2004): 393–420. Parker, John. In My Time of Dying: A History of Death and the Dead in West Africa. Princeton: Princeton University Press, 2021. Paton, Diane. No Bond but the Law: Punishment, Race and Gender in Jamaican State Formation, 1780–1870. Durham, NC: Duke University Press, 2005. Picard, Nicolas. Le châtiment suprême. L’application de la peine de mort en France (1906–1981). Paris: Institut Universitaire Varenne, collection des Thèses, 2018. Peters, Rudolph. Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century. Cambridge: Cambridge University Press, 2006. Pfingst, Annie and Wangui Kimari. ‘Carcerality and the Legacies of Settler Colonial Punishment in Nairobi’. Punishment & Society 23, no. 5 (2021): 679–722. Phiri, D. D., Let Us Die for Africa: An African Perspective on the Life and Death of John Chilembwe of Nyasaland/Malawi. Blantyre: Central Africana, 1999. Phiri, D. D. History of the Tumbuka. Blantyre: Dzuka Publishing, 2000. Phiri, Kings M. Malawi in Crisis: The 1959/60 Nyasaland State of Emergency and its Legacy. Zomba: Kachere, 2012. Pierce, Steven. ‘Punishment and the Political Body: Flogging and Colonialism in Northern Nigeria’. In Discipline and the Other Body: Correction, Corporeality, Colonialism, edited by Steven Pierce and Anupama Rao, 186–214. Durham, NC: Duke University Press, 2006. Pierce, Steven and Anupama Rao. ‘Discipline and the Other Body: Humanitarianism, Violence, and the Colonial Exception’. In Discipline and the Other Body: Correction, Corporeality and Colonial Rule, edited by Steven Pierce and Anupama Rao, 1–35. Durham, NC: Duke University Press, 2006. Potter, Harry. Alexander Paterson: Prison Reformer. Woodbridge: Boydell & Brewer, 2022. Pratten, David. The Leopard Man Murders: History and Society in Colonial Nigeria. Edinburgh: Edinburgh University Press, 2007. Pringle, Yolana. ‘Humanitarianism, Race and Denial: The International Committee of the Red Cross and Kenya’s Rebellion, 1952–60’. History Workshop Journal 84, no. 1 (2017): 89–107. Prior, Christopher. Exporting Empire: Africa, Colonial Officials and the Construction of the Imperial State, c. 1900–39. Manchester: Manchester University Press, 2013. Radzinowicz, Leon and Roger G. Hood. A History of English Criminal Law and its Administration from 1750. Oxford: Clarendon Press, 1968.

246

Bibliography

Ranger, Terence O. Revolt in Southern Rhodesia, 1986–67. London: Heinemann, 1967. Rapaport, Elizabeth. ‘The Death Penalty and Gender Discrimination’. Law & Society Review 25, no. 2 (1991): 367–83. Rathbone, Richard. ‘A Murder in the Colonial Gold Coast: Law and Politics in the 1940s’. Journal of African History 30, no. 3 (1989): 445–61. Rathbone, Richard. Murder and Politics in Colonial Ghana. New Haven: Yale University Press, 1993. Ray, Carina E. Crossing the Color Line: Race, Sex and the Contested Politics of Colonialism in Ghana. Athens, OH: Ohio University Press, 2015. Roberts, Richard. ‘Text and Testimony in the Tribunal de Première Instance during the Early Twentieth-Century’. Journal of African History 31, no. 3 (1990): 447–60. Roberts, Richard. ‘Law, Crime and Punishment in Colonial Africa’. In Oxford Handbook of Modern African History, edited by John Parker and Richard Reid, 171–88. Oxford: Oxford University Press, 2013. Rooney, David. Sir Charles Arden-Clarke. London: Coolings, 1982. Read, James S. ‘Crime and Punishment in East Africa: The Twilight of Customary Law’. Howard Law Journal 10, no. 2 (1964): 164–86. Read, James S. ‘Kenya, Tanzania and Uganda’. In African Penal Systems, edited by Alan Milner, 89–164. London: Routledge and Kegan Paul, 1969. Rushohora, Nancy A. ‘Graves, Houses of Pain and Execution: Memories of German Prisons after the Majimaji War in Tanzania (1904-1908)’. Journal of Imperial and Commonwealth History 47, no. 2 (2019): 275–99. Sachs, Albie. Justice in South Africa. London: Chatto, 1973. Sarat, Austin. ‘Presentist Preoccupations: Reflections on State Killing in the Contemporary United States’. Réflexions historiques 29, no. 2 (2003): 361–77. Sarat, Austin. Mercy on Trial: What It Means to Stop an Execution. Princeton: Princeton University Press, 2005. Seal, Lizzie. Capital Punishment in Twentieth-Century Britain: Audience, Justice and Memory. London: Routledge, 2014. Seal, Lizzie and Angela Neale. ‘Racializing Mercy: Capital Punishment and Race in Twentieth Century England and Wales’. Law & History Review 38, no. 4 (2020): 883–910. Seal, Lizzie and Roger Ball. ‘The Howard League and Liberal Colonial Penality in Twentieth-Century Britain: The Death Penalty in Palestine and the Kenya Emergency’. The Howard Journal of Crime and Justice. https://doi.org/10.1111/hojo.12513 (last accessed 27 January 2023). Seidman, Robert B. ‘The Defence of Insanity in the Law of Ghana’. University of Ghana Law Journal 1, no. 1 (1964): 42–51. Seidman, Robert B. ‘Witch Murder and Mens Rea: A Problem of Society under Radical Social Change’. The Modern Law Review 28, no. 1 (1965): 46–61. Seidman, Robert B. ‘The Ghana Prison System: An Historical Perspective’. In African Penal Systems, edited by Alan Milner, 431–69. London: Routledge and Kegan Paul, 1969. Seidman, Robert B. and J. D. Abaka Eyison. ‘Ghana’. In African Penal Systems, edited by Alan Milner, 59–88. London: Routledge and Kegan Paul, 1969. Seymour, Mark. Emotional Arenas: Life, Love and Death in 1870s Italy. Oxford: Oxford University Press, 2020. Shadle, Brett. ‘Girl Cases’: Marriage and Colonialism in Gusiiland, Kenya, 1890–1970. Portsmouth: Heinemann, 2006. Shadle, Brett. ‘Settlers, Africans and Inter-Personal Violence, c.1900–1920s’. International Journal of African Historical Studies 45, no. 1 (2012): 57–80.

Bibliography

247

Shadle, Brett. The Souls of White Folk: White Settlers in Kenya, 1900–1920. Manchester: Manchester University Press, 2015. Sherman, Taylor. ‘Tensions of Colonial Punishment: Perspectives on Recent Developments in the Study of Coercive Networks’. History Compass 7, no. 3 (2009): 659–77. Sherman, Taylor. State Violence and Punishment in India. Abingdon: Routledge, 2010. Short, Anthony. The Communist Insurrection in Malaya, 1948–60. London: Frederick Muller, 1975. Simmonds, Alecia and Eric H. Reiter. ‘The Legal History of Emotions’. In Routledge History of Emotions in the Modern World, edited by Katie Barclay and Peter N. Stearns, 423–40. Abingdon: Routledge, 2022. Simpson, A. W. B. Human Rights and the End of Empire: Britain and the Genesis of the European Convention on Human Rights. Oxford: Oxford University Press, 2001. Smith, Philip. ‘Executing Executions: Aesthetics, Identity and Problematic Narratives of Capital Punishment’. Theory & Society 25, no. 2 (1996): 235–61. Spierenburg, Pieter. A Spectacle of Suffering: Executions and the Evolution of Repression from a Pre-Industrial Metropolis to the European Experience. Cambridge: Cambridge University Press, 1984. Spierenburg, Pieter. A History of Murder: Personal Violence in Europe from the Middle Ages to the Present. London: Polity, 2008. Stoler, Ann Laura. ‘Colonial Archives and the Arts of Governance: On the Content and the Form’. In Refiguring the Archive, edited by Carolyn Hamilton et al., 83–100. Cape Town: Kluwer Academic Publishers, 2002. Stoler, Ann Laura. ‘“In Cold Blood”: Hierarchies of Credibility and the Politics of Colonial Narratives’. Representations 37, no. 1 (1992): 151–89. Stoler, Ann Laura. Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense. Princeton: Princeton University Press, 2009. Strange, Carolyn. ‘Discretionary Justice: Political Culture and the Death Penalty in New South Wales and Ontario, 1890–1920’. In Qualities of Mercy: Justice, Punishment and Discretion, edited by Carolyn Strange, 130–65. Vancouver: University British Columbia Press, 1996. Strange, Carolyn. ‘Introduction’. In Qualities of Mercy: Justice, Punishment and Discretion, edited by Carolyn Strange, 3–20. Vancouver: University British Columbia Press, 1996. Strange, Carolyn. ‘The Undercurrents of Penal Culture: Punishment and the Body in Mid-Twentieth Century Canada’. Law & History Review 19, no. 2 (2001): 366–84. Strange, Carolyn. The Death Penalty and Sex Murder in Canadian History. Toronto: University of Toronto Press, 2020. Sutton, Inez. ‘Law, Chieftaincy and Conflict in Colonial Ghana: The Ada Case’. African Affairs 83, no. 330 (1984): 41–62. Swanepoel, Paul. ‘Codifying Criminal Law in East Africa during the Interwar Period’. Stichproben: Vienna Journal of African Studies 37 (2019): 93–113. Swinfen, David B. Imperial Appeal: The Debate on Appeal to the Privy Council, 1833–1986. Manchester: Manchester University Press, 1987. Thénault, Sylvie. Une drôle de justice: les magistrats dans la guerre d’Algérie. Paris: La Découverte, 2004. Thomas, Lynn. ‘Historicising Agency’. Gender & History 28, no. 2 (2016): 324–39. Thomas, Martin. Violence and Colonial Order; Police, Workers and Protest in the European Colonial Empires, 1918–1940. Cambridge: Cambridge University Press, 2012.

248

Bibliography

Thomas, Martin. ‘Violence, Insurgency and the End of Empire’. In The Oxford Handbook of the Ends of Empire, edited by Martin Thomas and Andrew S. Thompson, 497–21. Oxford: Oxford University Press, 2018. Thompson, Kenneth. Moral Panics. London: Routledge, 1998. Thornberry, Elizabeth. Colonizing Consent: Rape and Governance in South Africa’s Eastern Cape. Cambridge: Cambridge University Press, 2018. Tomkins, Sandra M. ‘Colonial Administration in British Africa during the Influenza Epidemic of 1918–19’. Canadian Journal of African Studies 28, no. 1 (1994): 60–83. Townsend, Charles. Political Violence in Ireland: Government and Resistance since 1848. Oxford: Clarendon, 1983. Toye, Richard. ‘Arguing about Hola Camp; The Rhetorical Consequences of a Colonial Massacre’. In Rhetorics of Empire: Languages of Conflict after 1900, edited by Martin Thomas and Richard Toye, 187–207. Manchester: Manchester University Press, 2017. Turrell, Robert V., White Mercy: The Death Penalty in South Africa 1900–48. Westport: Praeger, 2004. Vann, Michael. ‘Of Pirates, Postcards and Public Beheadings: The Pedagogic Execution in French Colonial Indochina’. Historical Reflections/Réflexions Historiques 36, no. 2 (2010): 39–58. Vasdev, Krishna. Law of Homicide in Sudan. London: Butterworths, 1978. Vaughan, Megan. ‘Idioms of Madness: Zomba Lunatic Asylum, Nyasaland, in the Colonial Period’. Journal of Southern African Studies 9, no. 2 (1983): 218–38. Vaughan, Megan. The Story of an African Famine: Gender and Famine in TwentiethCentury Malawi. Cambridge: Cambridge University Press, 1987. Vaughan, Megan. Curing Their Ills: Colonial Power and African Medicine. Cambridge: Cambridge University Press, 1991. Vaughan, Megan. ‘Africa and the Birth of the Modern World’. Transactions of the Royal Historical Society 16 (2006): 143–62. Vaughan, Meghan. ‘The History of Romantic Love in Sub-Saharan Africa: Between Interest and Emotion’. Proceedings of the British Academy 167 (2007): 1–23. Vaughan, Megan. ‘Suicide in Late Colonial Africa: Evidence from Inquests in Nyasaland’. American Historical Review 115, no. 2 (2010): 365–404. Jean-Luc Vellut, ‘8. La peine de mort au Congo colonial. À propos de l’exécution de Bwana François, 1922’. In Congo. Ambitions et désenchantements 1880-1960, edited by JeanLuc Vellut, 2478–83 (Paris: Karthala, 2017). Vongsathorn, Kathleen. ‘Africa’. In Routledge History of Emotions in the Modern World, edited by Katie Barclay and Peter N. Stearns, 123–38. Abingdon: Routledge, 2022. Wagner, Kim. ‘“Calculated to Strike Terror”: The Amritsar Massacre and the Spectacle of Colonial Violence’. Past & Present 233 (2016): 185–225. Waller, Richard. ‘Witchcraft and Colonial Law in Kenya’, Past & Present 180 (2003): 241–75. Waller, Richard. ‘Rebellious Youth in Colonial Africa’. Journal of African History 47, no. 1 (2006): 77–92. Waller, Richard. ‘Crime and the Law in Colonial Africa’, Oxford Bibliographies (2017). https://www.oxfordbibliographies.com/view/document/obo-9780199846733/obo9780199846733-0158.xml (last accessed 10 Dec 2022). Walter, Dierk. Colonial Violence: European Empires and the Use of Force. New York: Oxford University Press, 2017. Weldesellasie, Kebreab Isaac. ‘The Development of Criminal Law and Criminal Justice in Africa from Pre-Colonial Rule to the Present Day’. In The International Criminal

Bibliography

249

Court and Africa, edited by Charles Chernor Jalloh and Ilias Bantekas, 247–71. Oxford: Oxford University Press, 2017. Welsh, David. ‘Capital Punishment in South Africa’. In African Penal Systems, edited by Alan Milner, 397–427. London: Routledge and Kegan Paul, 1969. Wiener, Martin J. Men of Blood: Violence, Manliness and Criminal Justice in Victorian England. Cambridge: Cambridge University Press, 2004. Wiener, Martin J. An Empire on Trial: Race, Murder and Justice under British Rule, 1870–1935. Cambridge: Cambridge University Press, 2009. Williams, Clifford. ‘Asante: Human Sacrifice or Capital Punishment? An Assessment of the. Period 1807–84’. International Journal of African Historical Studies 21, no. 3 (1988): 433–41. Wilks, Ivor. Forests of Gold: Essays on the Akan Kingdom of Asante. Athens, OH: Ohio University Press, 1993. Wilks, Ivor. ‘Human Sacrifice or Capital Punishment? A Rejoinder’. International Journal of African Historical Studies 21, no. 3 (1988): 443–52. Williamson, Thora. Gold Coast Diaries: Chronicles of Political Officers in West Africa, edited by Anthony Kirk-Greene. London: The Radcliffe Press, 2000. Willis, Justin. Potent Brews: A Social History of Alcohol in East Africa, 1850–1999. Oxford: British Institute in Eastern Africa, James Currey, 2002. Wilson, G. M. ‘Homicide and Suicide among the Joluo of Kenya’. In African Homicide and Suicide, edited by Paul Bohannan, 176–93. Princeton: Princeton University Press, 1960. Wood, John Carter. Violence and Crime in Nineteenth-Century England: The Shadow of Our Refinement. London: Routledge, 2004. Zaalberg, Thijs Brocades and Bart Luttikhuis, eds. Empire’s Violent End: Comparing Dutch, British and French Wars of Decolonization, 1945–62. New York: Cornell University Press, 2022. Zimudzi, Tapiwa. ‘African Women, Violent Crime and the Criminal Law in Colonial Zimbabwe’. Journal of Southern African Studies 30, no. 3 (2004): 499–517.

Unpublished Theses and Papers Bourgeat, Emilie. ‘Penality, Violence and Colonial Rule in Kenya, c. 1930–52’. D.Phil., University of Oxford, 2014. Braatz, Erin. ‘Prisons and Colonial Rule in the Gold Coast, 1844–1957’. PhD, New York University, 2015. Brunet-La Ruche, Bénédicte ‘“Crime et châtiment” aux colonies: poursuivre, juger et sanctionner au Dahomey de 1894 à 1945’. PhD, Université Toulouse 2 Le Mirail, 2013. Gendry, Thaïs. ‘Le droit de tuer: la peine de mort au service de l’ordre colonial en Afrique occidentale française, 1900–50’. PhD, Université de Genève, 2020. Goldman, Neal M. ‘Fallible Justice: The Dilemma of the British in the Gold Coast, 1874–1944’. PhD, CUNY, 2016. Jackson, April. ‘Judicial Violence: The Role of Capital Punishment in Colonial Natal, c. 1843–1910’. European Conference on Africa Studies paper, 1 June 2023. Jackson, April. ‘Execution and Empire: A History of Judicial Killing under British Colonial Rule’. PhD, University of Leicester, forthcoming. Jeffreys, Ella. ‘War People: A Cultural History of Violence Among the Fante Asafo’. PhD, SOAS, 2022.

250

Bibliography

Konaté, Dior. ‘“The Firing Squad and the Guillotine”: Crime, Capital Punishment and Execution in Colonial Senegal, 1890–1960’, unpublished paper. Mortimer, Brenda Gean. ‘Rethinking Penal Reform and the Royal Prerogative of Mercy During Robert Peel’s Stewardship of the Home Office, 1922–7, 1828–30’. PhD, University of Leicester, 2017.

Websites Amnesty International. ‘Zambia: Amnesty International Welcomes the Abolishment of the Death Penalty’, https://www.amnesty.org/en/latest/news/2022/12/zambiaamnesty-international-welcomes-the-abolishment-of-the-death-penalty/ (last accessed 26 January 2023). Capital Punishment UK. http://www.capitalpunishmentuk.org/contents.html (last accessed 31 October 2022). World Coalition against the Death Penalty. ‘Ending the Death Penalty in Africa’, https:// worldcoalition.org/campagne/ending-the-death-penalty-in-africa/ (last accessed 11 November 2022).

INDEX abolition, of capital punishment 71, 75, 153, 167, 177, 180, 191–2, 200 abortion 86 Administration of Ashanti Ordinance 32 adultery 12, 78, 86, 107–9, 120, 123, 129, 137–8 alcohol 103, 104, 138, 214 beer drinks 40, 46, 79, 86, 103, 104–5, 125 drunkenness and sentencing 44, 86, 104–5 Algeria 158, 164, 196 allocutus pleas 114, 128–9 Anglo-South African War 145 anti-colonialism 3, 14, 20, 50, 60, 66, 68, 70, 72, 73, 78, 84, 89, 101, 106, 110, 142–5, 153, 155, 164, 165, 167, 169, 179–80, 209, 227, 229, 231. See also nationalism Anti-Slavery and Aborigines Protection Society (ASAPS) 42, 170–1, 174, 203, 206 appeals 6 n.19, 17–18, 29, 32–3, 37–8, 44, 62–3, 63 n.64, 81–2, 84, 98–9, 133–4, 136–7, 139–40, 157, 162, 172–4, 176–8, 184–5, 205, 207 n.74, 210, 226, 227 n.5 Arden-Clarke, Charles 197 n.25, 198 n.28, 220–1 arson 28, 45, 91, 123 hut-burning 91 asafo 67–8 Asante 13–14, 30, 32, 89, 145, 175 n.41, 197 Anglo-Asante wars 89 customary law on murder 12 n.49, 13, 14, 18, 26, 32, 35 n.67, 37, 44, 81, 93, 100 n.114, 107, 131, 132 Asantehene 14, 145 Ashanti 13, 14 n.61, 16, 30, 32, 32 n.48, 35, 35 n.67, 44, 62, 62 n.53, 63–4, 63 n.58, 67, 86, 89, 119, 128, 139, 172–3, 197, 209, 229

assassination 44, 66, 92 assessors 32, 35, 36–7, 53, 87, 95, 97, 105, 107, 108, 110, 115, 124, 129, 129 n.77, 140, 226 attorney-general 33, 36, 37, 37 n.81, 40, 41, 44, 45 n.121, 49, 81 n.17, 83, 101 n.121, 102 n.127, 108 n.161, 124 n.53, 125, 157, 177, 203, 209 Banda, Hastings 132, 132 n.93, 164, 185–91 banishment 14, 65, 132. See also exile barbarism 117, 178, 190, 195 Baring, Evelyn 156–7 Barth, Jacob William 34 n.61, 43, 101, 173 Basutoland (Lesotho) 28, 33, 58 n.40, 74, 74 n.119, 98, 168, 205 n.66, 218 Bechuanaland (Botswana) 33, 58 n.40, 145 n.20 Belcher, Charles Frederic 17, 17 n. 72, 40–1, 40 n.97, 89–90, 108, 116–17, 126 Bing, Geoffrey 177–8, 179 n.58 Blackall, H. W. B. 36, 36 n.74 Black Peril, inter-racial rape scares 42, 42 n.107, 94 n.75, 142, 149–50, 149 n.41, 165. See also rape Blackwood, Michael 187 blood money. See diya Bloody Code 59 Blue Books 18, 55 n.32, 57, 58 n.41, 61 n.51, 62, 64, 82, 150 n.51 Blundell, Michael 156 Blunt, Wilfred 197 n.25, 198, 198 n.33, 199 n.34, 203 Bond of 1844 25, 25 n.10 Burma (Myanmar) 11, 157, 157 n.85, 160, 202 n.147 Burns, Alun 1, 124 n.56, 139, 175–9, 177 n.49 Bushe Commission 12 n.51, 30 n.36, 42–4, 49, 68–9, 85, 160, 208, 209 n.82, 214 n.111 Bushe, Henry Grattan 42, 63

252

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Canada 8, 79, 93 n.72, 209 cannibalism 52, 74 n.116, 86, 98 capital punishment 1, 2–13, 14–17, 19–20, 24, 27–28, 30, 38 n.85, 40, 42, 43 n.116, 46, 49–52, 54, 56–61, 64, 65, 67, 70–75, 78, 82, 86, 96, 116, 119, 124, 126, 128, 135, 140–2, 144–5, 151, 153–5, 157, 159, 160–4, 170–2, 175, 176, 178–80, 183–4, 190, 192, 198, 201, 208, 209, 210, 212, 214, 218–20, 222–23, 225–7, 229, 230, 231 capital offences 3, 28, 38, 45, 47, 57, 68, 78, 82, 87, 149–50, 154, 158, 162, 165, 229 capital sentencing 3, 5–7, 20, 25, 42, 50–1, 57, 62–4, 71, 77–8, 93, 95 n.87, 99, 104, 110, 140, 142, 147, 152–65, 185, 197, 227, 229 convictions 3, 18, 20, 28–30, 35, 38, 40, 44–5, 55–6, 57 n.38, 59, 61, 63, 66– 8, 72–3, 81–3, 90–1, 96, 98, 105–6, 108, 115, 117, 120, 131, 136–8, 143, 147–8, 150–1, 160, 163–4, 172–5, 177, 181, 185, 190, 192, 197, 199, 205–6, 228 counter-insurgency operations 73, 142–8, 153–5, 157–65, 180, 226–7 deterrent punishment 4, 5 n.12, 16–17, 24, 42, 66, 68–9, 75, 88, 108, 118, 121, 141, 142, 148, 154 n.70, 161, 165, 187–8, 191, 194, 209, 220 discretionary sentence 8, 27, 43, 79 n.10, 80, 149 efficiency, concerns about 204, 220–1, 223–4 Islamic law 13, 26, 13 n.58, 54 n.23, 58 n.40, 196 n.16 mandatory sentence 20, 24, 28, 41, 43, 77, 85, 148, 185, 189, 226 in precolonial Africa 12–15, 54, 227 for rape 93, 142, 149–51, 154, 165, 182, 206, 226, 231 scandal 20–1, 42, 152 n.60, 164–5, 167–75, 167 n.3, 168–9, 171–3, 175, 179–80, 184–5, 192, 204, 219, 231 women 17, 28, 28 n.28, 54, 74, 79, 93, 95–8, 100 n.115, 103, 105–10, 119, 123–4, 129, 144, 146–50, 158 n.93,

170, 181–3, 230–1 Casely Hayford, Joseph Ephraim 31, 35, 197, 197 n.22 Chewa 14, 77 n.2, 131–2 Chief Justice 17, 33, 37, 40–1, 43, 77, 88, 92, 100–1, 105, 108, 113, 118, 124, 129, 148, 161, 173, 181, 204, 209, 212, 231 Chiefs 14, 16, 25, 29, 45, 52–3, 67–8, 74, 87, 89, 93, 98, 103, 107, 122, 129, 132, 135–6, 138, 145, 207, 220 Chilembwe Uprising 21, 73, 123, 141, 143, 146–8, 186, 227, 229 Chimurenga, First 145 Chipembere, Henry B. M. 185–6, 186 n.98, 189 Christianity 19, 98, 107, 122–3, 131, 139, 146, 183, 215–16 Churchill, Winston 3, 39, 39 n.91, 162, 177–8, 210 civilizing mission 11, 39, 49–50, 73, 89, 96, 117, 170, 194, 224 civilizing process 7–8, 70, 70 n.98, 155, 156 n.77, 202 n.51 Clarke, Charles Arden 197 n.25, 198 n.28, 220–1, 221 n.138, 222 n.145 clemency. See mercy, royal prerogative of Clifton-Roberts, Charles 37, 37 n.81, 42 n.108, 49, 103 n.132, 203 coercive networks 10, 10 n.39, 50, 51 n.7, 141 collective punishment 43, 52, 65, 68, 69 n.90, 195. See also punishment Colonial Office (CO) 16, 19, 21, 24–5, 41–2, 63, 69, 69 n.93, 72, 86 n.34, 104, 154 n.67, 163–4, 170, 176–7, 180, 183, 187–8, 193, 198, 201–3, 205, 207–9, 212, 219, 222 colonialism. See also settler colonialism civilization, discourses of 2, 5 n.13, 7, 9–11, 21, 25–6, 34, 39, 70, 74, 98, 109, 110, 113, 124, 142–4, 150, 155 n.75, 162, 165, 168–9, 181, 188, 192, 194–5, 201, 202, 204, 221, 223–5, 230–1 colonization of Africa 12, 16, 25–6, 30, 50 n.6, 52, 54, 64–5, 141, 144–5, 152, 168, 195, 201, 225, 229 order 2, 5, 24–9, 49, 68, 73, 79, 86, 97,

Index 101, 117, 120, 141–2, 149, 162, 194, 201, 225–6, 231 power 1, 25, 33, 51–2, 60, 65, 110, 133, 141, 163, 186, 198, 204, 213–16 state 1–4, 10–12, 15, 19–21, 24, 26, 30, 32, 46, 50, 57, 59, 69, 73, 75, 77–8, 81, 88, 89, 103, 109, 124 n.56, 142–5, 147, 152, 155–7, 162–3, 165, 168–9, 174, 179, 194–5, 197–9, 202, 204–5, 208–10, 214, 223–5, 231 violence 2–3, 7–8, 11, 19, 52, 61, 75, 141–2, 148, 153, 163–5, 169–72, 195–9, 230 commutation 41, 61–62, 68, 80, 82–5, 88–91, 99–103, 109, 110, 113, 129 n.79, 140, 158, 161, 185, 187. See also mercy, royal prerogative of compensation 13–15, 19, 40, 43–45, 54, 64, 68, 77, 80, 82–5, 88–91, 99–103, 120, 132, 137, 185 condemned persons 2–3, 34, 81, 115, 132–3, 135, 202, 209, 211, 213, 217, 229–30. See also death row Congo, Belgian 51, 51 n.8, 182, 196, 196 n.15 corporal punishment 7, 10, 49, 60, 61 n.49, 64–5, 70–1, 75, 155, 198 n.27, 229 caning 70 flogging 60, 65, 70–1, 70 n.97, 146, 150, 195 whipping 68 n.89, 70–1 courts 18–20, 24–5, 29, 31–2, 34–7, 41, 43, 45–6, 52, 56, 66, 71, 73, 87, 92, 97, 100, 102, 114, 125–31, 157, 230 assize 26, 32 n.49, 35 n.67, 62, 63 n.64, 77, 157, 161 courtroom behaviour, impact on sentencing 34, 125–30, 140 District 26, 37, 38, 93 n.73 High or Supreme 18, 26–7, 30–3, 35 n.67, 37–8, 41, 44–5, 52, 62–3, 64, 77, 101 n.121, 105, 150 n.46, 176, 228, 228 n.9 Native 26, 31, 44–5, 108, 133 Coussey, James Henley 178 Creech-Jones, Arthur 176 n.42, 177–8 crime rates 42, 50, 66, 70, 72 rise in 42–3, 50, 71–3, 94, 121, 151, 229

253

criminalization 15, 21, 50, 52, 93, 117, 161 criminal justice 3–6, 9, 15, 17, 18 n.77, 23–6, 30, 37, 42, 44, 46–7, 51–5, 61, 63, 68–9, 75, 78–9, 106, 111, 136, 154, 172, 176, 180, 206 n.70, 218, 224, 226–30. See also justice Criminal Justice Bill, United Kingdom, 1948 176, 176 n.46 criminal law 7 n.24, 14 n.64, 24 n.7, 25–9, 32, 39, 78 n.4, 79, 80 n.12, 96 n.90, 148 n.37, 150 n.49, 151, 154 customary law 12 n.49, 13–14, 15 n.66, 18, 26, 32, 32 n.49, 35 n.67, 37, 44, 81, 93, 100 n.114, 107, 131–2 native custom 19, 37, 94, 101, 101 n.117, 113, 121, 129 Cyprus 154–5, 157–8, 180, 182 Danquah, J. B. 31, 63, 160, 173, 175–6, 179 death penalty. See capital punishment death row 1, 17–18, 20–1, 115, 133–4, 137, 161, 193, 194, 211–13, 215–16, 223, 228 decivilizing process 8 decolonization 11 n.47, 50 n.6, 64, 153, 153 n.63, 163, 168, 169 n.8, 180, 182, 184, 191 defence counsel 35, 63, 82, 98, 108, 118, 125–6, 128, 136 n.111, 190, 226 dehumanization 7, 21, 116, 118, 120, 122, 124, 140, 194, 211, 213–14, 223, 230 Denshawai hangings 198–9, 198 n.33, 203 detention 11, 28 n.28, 72, 72 n.110, 145, 152, 159, 161, 163–4, 180, 186, 211 n.94, 226 n.1 ad hominem 145, 152 District Commissioners 17, 29, 31–2, 40, 45, 73, 78, 81, 85, 87, 101 n.117, 104–5, 114–15, 119, 121, 131–3, 135, 137, 140–1, 159, 197, 204, 208, 216, 220–1 diya 40, 43, 45, 54, 54 n.23 Dolan, R. H. 1, 209–10 domestic murders 66, 97, 103, 105–6, 106 n.147, 108, 128. See also spousal murder; uxoricides Dominions Office (DO) 16, 18, 37 n.78, 40 n.98

254 doubt, impact on sentencing 17, 20, 30, 53, 98–9, 108, 119–20, 122, 125, 137, 178–9, 182–3, 188, 190 drunkenness. See alcohol due process 20, 24–5, 39, 42, 46, 159, 165, 173 Duff, Hector Livingstone 12, 12 n.52, 14 n.65, 133 n.94, 146 East African Court of Appeal 33, 38 East African Standard 17, 17 n.73, 150, 150 n.47, 174 n.31, 214 n.113, 216 n.124, 222, 222 n.146 elderly, old age in sentencing 37, 90, 95, 101, 119, 150, 173, 206 Elias, Norbert 7–8, 8 n.28, 13 n.57, 155, 200, 221 emotions in fuelling use of capital punishment 114–15 history of 19, 114, 134 in petitions for mercy 19, 114, 133, 140, 181, 230 significance of in judges’ decisions 95 Erskine, George 156 ethnicity, in sentencing 5, 19, 87, 118, 119 evidence 2, 5 n.12, 12, 15–18, 19 n.78, 20, 29–30, 33–4, 36–40, 42, 44–6, 52, 54, 57, 72, 84, 88, 90, 98–9, 105–6, 109, 114, 122, 124, 126–7, 131–4, 136, 140, 148, 157, 176, 179, 183, 186, 197, 200–1, 210, 214, 218, 227. See also murder, evidence in case files executioner 2–3, 7–10, 13, 17, 190, 198–9, 217–18, 220–2. See also hangman executions. See also hangings botched 20, 169, 201, 204, 219 burial 209, 217, 218 n.127 centralization 163, 194, 200, 204 death certificates 219, 219 n.132 despectacularization 194, 194 n.3, 200–2, 204 firing squad 146, 148, 196, 199, 207 methods of 12–13, 21, 146, 162, 196–7, 199, 223–4 post-mortem display 198, 217

Index rates 44, 63–4, 85 n.28, 229 religious consolation and 215–16 sanitization 70, 196, 213 Executive Council 17, 40, 43, 45, 80, 81, 81 n.17, 82, 88–9, 110, 113, 115, 120, 131, 177, 178, 183, 208 governor-in-council 81–2, 89, 104–5, 109, 127, 129, 140 exile 14, 145, 160, 186 extra-judicial killing 45, 51 n.7, 52, 148, 159, 165 Fante 25, 67, 67 n.80, 125–6 female convictions 54, 74, 79, 87, 96–8, 107–10, 119, 123–4, 149, 181–3. See also murder; women Fiji 6, 9, 27 fines 27, 52, 54, 64–6, 68–9, 72, 75, 85, 90, 147, 152 First World War 135, 146, 196 Foreign and Commonwealth Office (FCO) 74 n.119, 155 n.73, 218 n.128, 228 n.8 Foucault, Michel 7, 7 n.25, 10, 52 n.11, 65, 70, 70 n.99, 118 n.28, 115–17, 161, 162 n.111, 199–200, 202 France 51, 59, 85 n.28 fratricide 94 French West Africa, 8, 51, 59, 66, 71 n.106, 74 n.116, 85 n.28, 98, 100, 106, 117, 145–6, 196 Fuad, Mohammed 103, 175 gallows. See hangings Gambia, the 27, 31, 38, 57, 213 n.104 Ganapathy, S. A. 180, 180 n.65 Garland, David 3–4, 7, 79 n.8, 113–14, 194, 200–2, 203 n.52, 218 n.129 gender 5, 9, 16, 19, 95–8, 105–8, 110–11, 115, 118, 123, 131 n.87, 134, 181, 230 German East Africa 51, 145, 197 German South West Africa (Namibia) 51 Gikuyu 3, 15, 53, 55, 73, 98, 153, 157, 158, 161, 180–4, 210, 226, 231 Gold Coast 1–2, 4, 6, 13–14, 14 n.63, 16–17, 20–1, 25–7, 30–38, 44 n.118, 53, 55–58, 60, 61–4, 66–68, 71–3,

Index 78, 82, 84–7, 92–7, 102, 104–6, 109, 110–11, 113, 114, 116, 118–21, 124–5, 127–9, 130, 134, 136–40, 144–5, 151–3, 160, 165, 168, 172–5, 174–9, 193, 197, 201, 204, 205 n.61, 209–10, 213, 216, 221, 227–31 Ashanti (see Asante and Ashanti) legal system 20, 26–7, 31–3, 37, 39–40, 42, 54, 57, 62–3, 87, 106, 136, 143, 149, 157, 173, 178, 184, 186 colony of 1, 11, 15–16, 18, 20, 28, 30–2, 35–6, 44, 55 n.28, 57, 62–4, 67, 77, 81, 86, 91–2, 97 n.94, 105, 110–11, 123, 127, 130, 139, 142, 144, 149 n.41, 150 n.51, 154–5, 158, 161, 172–3, 177–8, 180, 184, 194, 200, 204 n.59, 206, 213, 225, 229 Ghana, post-colonial executions, 1, 3 n.4, 16 n.70, 26 n.17, 31 n.40, 63, 66 n.77, 71 n.101, 72, 90, 93, 93 n.70, 99 n.111, 102 n.130, 104 n.136–7, 151, 172 n.22, 175 n.39, 177–8, 178 n.53, 179, 189, 204, 228 jury trials/juries 16, 20, 27, 31–2, 36, 42, 63, 67, 86, 110, 115, 124–5, 130, 140, 149, 172–4, 226, 228–30 legal statistics 96 murder in 14, 17, 25–7, 85–7, 91–2, 97, 125–30, 174–9 Northern Territories 14, 14 n.63, 16, 30, 32, 44, 62–4, 63 n.62, 64, 86, 102–3, 108, 113, 119–21, 138, 204, 204 n.58, 209 Governor 1, 5, 17, 20, 28, 35 n.70, 38, 38 n.86, 40–1, 43–6, 53, 62, 68 n.89, 75, 77–8, 81–2, 84–5, 87–9, 91, 94, 99, 101, 104 n.137. 105, 105 n.144, 107, 109–10, 113, 115–16, 120, 122, 122 n.47, 123, 125, 127, 129, 129 n.78, 130, 132–9 Gowers Commission 6 n.19, 58 n.41, 60, 61 n.51, 84 n.27, 96 n.91 Great Britain 6 n.19, 12 n.51, 15 n.66, 31, 38, 41, 43, 60, 79, 96, 106, 145 n.21, 165 n.127, 173, 183, 193, 198, 200, 208, 212 Great Depression 66–7, 97, 229 guillotine 155, 155 n.74, 196, 196 n.16

255

Hamilton, Robert 212 hangings 2–4, 6, 13, 16, 17 n.74, 19, 20, 21, 28, 47, 52–3, 57–9, 61, 67–8, 70, 72–3, 75, 83, 116, 124, 131, 132, 141 n.5, 144–6, 148, 151–3, 155, 156–7, 161, 163–5, 167–71, 173, 175, 180, 182–7, 187, 191, 193–6, 199–204. See also executions centralization of 163, 194, 200, 204 Chilembwe Uprising 21, 73, 123, 141, 146–8, 186, 227, 229 in counter-insurgency 73, 142–8, 153–5, 157–65, 180, 226–7 equipment 201 n.46, 204, 216 n.120 judge’s attitudes on 32–7, 40–3, 124, 188, 192, 229 mass 169–71 public 21, 52–3, 75, 144–5, 147, 156, 170, 193–205, 207–10, 226, 230 semi-public 187–8, 191, 193, 206, 209, 223 in states of emergency 3, 6, 8, 15, 21, 33, 38, 57, 59, 61, 73, 75, 84, 91, 136, 142–4, 149, 151–5, 158–60, 162–5, 226, 229, 231 (see also Kenyan Emergency; state of emergency) hangman 161, 192, 197, 199, 203, 216, 218–19. See also executioner Harragin, Walter 32–3 Hearne, Horace 231 High Commission Territories 27, 33, 58 n.40, 149, 187 n.104, 188–90, 190 n.122. See also Basutoland; Bechuanaland; Swaziland Histories of the Hanged (Anderson) 3 n.5, 8, 8 n.32, 16 n.68, 73 n.113, 153–4, 156 n.81, 157 n.88, 158 n.92, 159 n.95, 161 n.106, 163 n.116, 210 n.90, 211 n.93, 215 n.117, 216 n.118 homicide 4 n.11, 13–15, 16 n.71, 26–7, 43, 53, 55–6, 55 n.32, 62 n.53, 63 n.57, 66–8, 90, 105, 108, 110, 120 n.38, 130 n.82, 152, 163, 172 n.22, 180, 183, 198, 201 n.47, 207 n.74, 228. See also murder, customary conceptions of

256

Index

Homicide Act, 1957, United Kingdom 163–4, 180, 183 Howard League for Penal Reform 37, 69 n.93, 70 n.98, 203 humanitarianism 7, 21, 42, 69, 73–4, 88 n.39, 99, 124, 152, 164 n.123, 167, 167 n.2, 168–70, 174, 176, 178, 183, 185–6, 189, 192, 200, 202–4, 210, 227, 229, 231 humanity, colonial discourses of 21, 117, 129, 140, 148, 150, 176, 178–9, 182, 192, 194, 201–5, 213, 221, 224, 231 human rights 12, 69, 73, 143, 156, 157 n.88, 161 n.104, 163–5, 167, 169, 174, 190, 204, 231 imprisonment alternative to death sentence 4, 6, 10, 14, 17, 20, 28, 28 n.28, 38, 41, 43, 45 n.123, 53, 55–6, 59, 61–2, 64, 68, 72–3, 81, 81 n.21, 82, 84–5, 87, 88 n.40, 91 n.56, 95 n.86, 96, 99, 105–6, 117, 117 n.24, 122, 127, 129–30, 132, 136, 145, 147, 151, 155, 157–62, 164–5, 174 n.32, 180, 182, 185 n.94, 189, 197, 207, 213 n.104, 215 n.116, 216, 219 n.132, 226, 228 commuted death sentence 53–4, 62, 77, 82, 84, 87–9, 95–8, 103, 109, 147–8 Indian Mutiny 144 Indian Penal Code (IPC) 15, 27, 81 n.20, 84 n.25, 149 Indians, as perpetrators 53, 89–91, 123–4, 183 infanticide 28 n.28, 97 n.94 insanity, defence of 82, 86, 99, 99 n.108, 101, 122, 125, 134, 138 guilty but insane verdict 28, 82, 125, 125 n.59 Itote, Waruhiu 160–1 Jamaica 9 n.35, 144, 144 n.15, 227 n.5 Jones, Glyn 187–9, 187 n.102, 188 judges 5, 12, 16, 18, 23–5, 31–7, 41–3, 54, 62–3, 78, 81–2, 84 n.26, 85–6, 90–1, 92, 94–6, 99, 102–5, 110, 115–6, 118–20, 124–33

attitudes on hangings 32–7, 40–3, 124, 188, 192, 229 district commissioners as 78, 85, 87 Judicial Committee of the Privy Council (JCPC) 38, 176 juries 20, 27, 36, 42, 63, 67, 86, 110, 115, 124, 125, 130, 140, 226, 228–30 jury trials 16, 31–2, 36, 63 n.64, 149, 172–3 justice 24–5, 35, 39, 77–80, 95, 150, 168, 171, 173, 178, 182, 185, 190–2, 199, 226, 231 British 1, 23, 25–6, 39, 46, 54, 63, 65, 70, 78, 80, 132, 136, 144, 150, 159, 162, 165, 173–4, 178, 184, 210, 230 colonial 16, 32, 37, 39 n.88, 42, 54–64, 69, 75, 80, 90, 91 n.55, 95 n.87, 96 n.92, 406 n.148, 122, 123 n.52, 136, 139–40, 142 n.6, 150, 168, 172–3, 188, 222, 230–1 frontier 8, 168, 195, 198, 225 substantive 24–5, 28, 32, 39, 42–4, 47, 69, 154, 157, 226 juveniles, sentencing of 28, 28 n.28, 62, 71, 71 n.101 Kenya 3 n.5, 4, 4 n.9, 10 n.38, 12 n.51, 13 n.59, 14–15, 26–8, 30 n.36, 31 n.45, 32, 33, 54–8, 60–1, 67, 69, 71, 82, 83–7, 89–92, 94, 96, 104, 109, 117, 119–22, 134–6, 139–43, 150, 153, 155, 158, 160–4, 168, 174, 180–4, 196, 200, 206–9, 211–12, 214, 226–30 capital punishment 4 n.9, 6 n.18, 15, 60, 65–7, 71, 73, 75, 78, 119, 142, 150, 153–5, 160–2, 164–5, 227 colonial administration of 16–17, 21, 23, 25, 46, 61–2, 82, 90–1, 96, 114, 123, 140, 143, 150, 156, 161, 163, 170 n.10, 181, 183–4, 201, 204, 206, 212, 215, 221, 231 death sentences 43, 55–6, 59, 61–2, 68, 72–3, 81–4, 87, 96, 97 n.94, 105–6, 117, 122, 127, 132, 136, 145, 147, 151, 155, 157–62, 164–5, 180, 182, 185 hangman 161, 192, 197, 199, 203, 216, 218–19

Index homicide rate 55, 55 n.32 Indian community 89, 90–1, 123–4, 149, 183 mercy 53, 62, 75, 77–111, 113–40 murder 62, 94, 101, 104–6, 109, 134–6, 174 prison population 71–2 rape in 3, 149–51, 226 system 208 Kenya Land and Freedom Army (KLFA) 82, 153, 156–7, 159–64, 210, 215. See also Mau Mau Kenyan Emergency 3, 6, 21, 136, 152–65, 188, 204, 210, 226, 229, 231, 236. See also Mau Mau, rebellion Kenyatta, Jomo 14–15, 14 n.66, 31 n.45, 32 n.53, 39 n.92, 160, 182 Kikuyu. See Gikuyu Kimathi, Dedan 160, 163, 215, 215 n.117 Kittermaster, H. B. 44–5, 46 n.124, 77, 120, 120 n.40 Knowles, Benjamin 32 n.50, 172–3, 63 n.60, 173 n.27, 176 Kyebi case 152 n.60, 175–7, 175 n.41, 176–7, 179, 231 Akyea Mensah 175, 177 Ofori Atta 175–6, 175 n.40 lawfare 11, 23, 143, 154, 165, 226–7 law. See also criminal law; customary law colonial 24, 28 n.16, 40, 77–8, 89, 100–1, 100 n.115, 101, 102 n.130, 103 n.132, 106, 106 n.150, 109, 121, 130, 136, 152, 165, 224, 230 common 3, 15–16, 20, 24–8, 32 n.51, 39, 101, 185, 202, 228–9 Islamic 13, 13 n.57, 26, 13 n.58, 54 n.23, 196 n.16 law and order, colonial conceptions of 2, 21, 24, 39, 49, 64, 68, 73, 79, 86, 88, 97, 101, 117, 120, 141–2, 149, 162, 194, 201, 225–6, 231 martial 142–5, 147, 154, 164–5, 226 Romano-Dutch 27, 58 n.40 rule of law 26, 39, 39 n.88, 114, 142–4, 144 n.14, 148, 152, 154, 157, 159, 162, 165, 170, 199, 206, 206 n.70, 231 rule by law 39, 154, 157

257

Law & Order (Maintenance) Act, Southern Rhodesia 184–5 lawyers 31, 31 n.45, 35, 35 n.67, 63, 73, 82, 86, 108, 128, 136, 157, 160, 173, 176, 178–9, 215. See also defence counsel liberal penality 10, 70, 117 liberalism 10, 11, 39–40, 69–70, 72, 75, 117, 151, 202 life sentence 27 n.21, 81 n.20, 84, 108, 130, 182, 196 n.13 Lugard, Frederick D. 49 n.4, 70, 70 n.96, 174, 197 n.23 Lyttelton, Oliver 156 n.83, 162–3, 210 Maasai 116, 118 MacLeod, Iain 167, 167 n.1, 181–4, 182 n.76, 183 n.80 Mahony, Martin 207, 207 n.75 Maji Maji rebellion 145 Malawi, post-colonial executions. See Silombela, Medson Evans Malaya 154, 155 n.72, 157, 180 manslaughter 26, 33, 35, 37, 43, 53, 54 n.24, 56, 57 n.38, 62, 62 n.54, 82, 90, 108, 108 n.161, 173 martial law 142–5, 145 n.21, 147, 154, 165, 226 matricide 94 Mau Mau 3, 11 n.47, 15, 70 n.110, 141, 143 n.8, 149, 153–4, 153 n.62, 156–7, 156 n.78, 157, 157 n.87, 159–63, 159 n.96, 161 n.104, 164 n.126, 180–2, 181 n.72. See also Kenya Land and Freedom Army (KLFA); Kenyan Emergency rebellion 3, 15, 153 Mauritius 8, 33, 228, 228 n.8 Mawambungu, A. W. 187 M’Carthy, Lesley 178 mercy, royal prerogative of 5–6, 17, 20, 38, 62, 77–81, 84–7, 86 n.34, 109–10, 113–15. See also commutation of sentence African opinion 18, 99–103, 109–10, 131–9 alcohol 44, 46, 104–5, 138, 214 arbitrary 7, 20, 78–9, 86–8, 87 n.35, 110, 113, 140, 200

258

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contingency of 87–8 crimes befitting of 95–9 domestic murders 97, 105–6, 106 n.147, 108, 128 ethnic stereotypes 119–20 gendered 96–7, 230 Gold Coast 78, 82, 84–7, 91–7, 102, 104–6, 108–11, 116, 118–21, 125–30, 134, 136–40 influence of emotions in 113–15, 118–20, 122, 126–8, 133–4 Kenya 53, 62, 75, 77–111, 113–40 Nyasaland 41, 77–8, 82–90, 92, 94, 94 n.75, 95–8, 100, 102, 104–11, 113, 116, 119–20, 122–32, 136, 140 petitions 18, 81, 93, 114–15, 122, 127, 131–40, 189 principles of 88–99 racial hierarchies in 19, 49, 59, 65, 90, 123, 230 (see also race) witchcraft beliefs 13, 15, 41, 53, 78, 99–103, 119, 135, 173, 174 n.35 (see also witchcraft) Mitchell, Philip 40, 87, 122 n.47, 135 Moore, Henry 43, 122, 208 n.78 Moses, C. B. 113 n.19, 138–9 Murder (Abolition of the Death Penalty) Act, 1965, United Kingdom 186, 189 n.120 murder customary conceptions of 3–4, 12–21, 23–7, 27 n.21, 28–38, 41–6, 54–69, 73–5, 82–111 convictions 35, 38, 44, 57 n.38, 72–3, 82, 90, 105, 106 n.147, 151, 164, 228 domestic 97, 103–9, 106 n.147, 108, 128 (see also female convictions; women) evidence in case files 17–18, 20, 36, 53, 62, 72, 77 n.2, 78, 81–2, 84, 96, 109, 114, 119, 128, 134, 151 (see also evidence) female perpetrators 54, 74, 79, 87, 96–8, 107–10, 119, 123–4, 149, 181–3 fetish 21, 33, 73, 73 n.115, 100, 102, 137, 197 Gold Coast 14, 17, 25–7, 85–7, 91–2, 97, 125–30, 174–9

idioms of brutality 13, 53, 55, 77, 89, 91, 122 inter-racial 60, 66, 90–1, 94 n.75, 142, 149–51, 165, 168 inter-tribal 31, 89, 120–1, 207 intra-racial 30, 53, 60, 75, 90, 93, 148, 150 Kenya 62, 94, 101, 104–6, 109, 134–6, 174 land disputes 92 Nyasaland 37, 73, 84–90, 92, 95–102, 104–7, 109–11, 131–2 pecuniary motives 86, 92, 110, 122 premeditated 66, 86, 91–2, 98, 123, 128, 229 ritual or medicine 66, 73–4, 98, 168, 174–9, 175 n.41, 205, 218, 227, 229 sexual assault, murder with 93, 149, 123–4, 149–50 spear-blooding 55, 69, 89, 116–17, 121 spousal 52, 66, 97, 105–8, 129, 131, 134, 137, 229 weapons 18, 52, 59, 68, 74, 88, 90–1, 143, 145, 152, 165, 184, 192, 226 Natal 6, 9, 28, 97, 133 n.96, 144, 144 n.16, 149, 149 n.41 nationalism 50, 71–3, 151, 164, 169, 182, 186 National Liberation Front (FLN). See Algeria native assessors 35–7, 107, 129 Nganga, Alphonse 161 Ngoni 14, 52 n.16, 120 Nigeria 6, 13, 21, 26, 38, 42, 55 n.32, 56–7, 70 n.97, 96, 74, 119, 128, 170, 170 n.11, 175, 193, 197, 201, 201 n.47, 205–6, 209–10, 212, 213 n.105, 214, 214 n.112, 216, 216 n.120, 220, 221, 226, 228, 230 Nkrumah, Kwame 2–3, 72, 152, 189 Northern Frontier District, Kenya 26, 89, 120–1 Northern Rhodesia (Zambia) 6, 57–8, 61, 81 n.17, 85 n.31 Nyasaland 4, 6, 12, 14, 16–18, 27, 33–5, 37–8, 40–1, 43, 52, 55–8, 60–2, 66–7, 71, 73, 77, 82–107, 147–9, 151, 160, 164–5, 185, 203, 209, 221, 226–7, 229–30

Index Chilembwe Uprising 21, 73, 123, 141, 143, 146–8, 186, 227, 229 homicide cases 55–6, 62 n.53, 66–8, 90, 105–6, 108, 110, 152, 198, 228 Indians in 89 mercy 41, 77–8, 82–90, 92, 94, 94 n.75, 95–8, 100, 102, 104–11, 113, 116, 119–20, 122–32, 136, 140 murder 37, 73, 84–90, 92, 95–102, 104–7, 109–11, 131–2 Omanhene 175 Ormsby-Gore, William 45, 45 n.123, 170, 213 n.104 Palestine 10 n.41, 143 n.11, 154, 155 n.73, 157, 158 n.94 paternalism 7, 40, 80, 93, 97, 117, 124 Paterson, Alexander 4, 4 n.10, 53 n.18, 66 n.75, 69, 208–9, 217 patricide 94, 159 penal codes 4, 15, 23, 27, 28 n.25, 64, 149, 149 n.41, 187, 228 n.8. See also Indian Penal Code (IPC) penality 4, 6, 9–10, 10 n.38, 16–17, 19–21, 47, 50, 51 n.7, 64–6, 68, 69 n.93, 70, 75, 109–10, 117–18, 136, 143, 152–3, 223, 227–30 colonial 4, 6, 10, 10 n.41, 20, 47, 50, 64–6, 68, 69 n.93, 70, 70 n.98, 75, 118, 152–3, 223, 227–30 liberal 10, 117 penal reform 3, 10, 10 n.41, 37, 47, 52 n.13, 66 n.77, 69–71, 74, 81 n.16, 146 n.24, 202–3, 208–9, 230 penal systems 2, 3, 8, 10, 13 n.59, 14 n.62, 20, 24, 26 n.15, 28, 49–50, 51, 59, 61, 65, 69, 71, 75, 88–9, 117, 133, 143, 194, 196 n.14, 201, 217, 223 penal violence 3, 10, 50, 70, 75, 194, 218, 223, 226, 228–9. See also colonialism, violence penal welfarism 70–1 petition, for mercy 17–19, 81, 93, 114–15, 122, 127, 127 n.67, 133–40, 176–7, 176 n.42, 181–4, 188–90, 189 n.119, 223, 230. See also mercy, royal prerogative of Petridies, Philip 33, 209

259

Pierrepoint, Albert 220, 220 n.136 poison 15, 52, 92, 100, 101 n.118, 170, 179, 206 Esere bean ordeal 170 police 6 n.16, 29–30, 33, 42, 46, 55–7, 60 n.48, 66, 68, 70, 72, 82, 89, 92–3, 114, 120–1, 123, 126, 134, 137, 143, 152, 191, 196, 221 police state 164–5 Poole, Peter H. R. 167, 180–4, 181 n.72 Portugal 5, 51 Portuguese East Africa (Mozambique) 89, 147 pregnancy, impact on sentencing 28, 94 Price, Henry Ward 220 Prison. See also death row; imprisonment Accra 1–2, 137, 176, 204, 214 condemned prisoners 1 n.1, 211–15, 222 conditions 68–70 death row 211–13 labour 69 n.93, 214–16 Nairobi 17, 161, 184, 215, 216 n.123 population 71–2, 222 n.144 Port Harcourt 214 Zomba 190–1 provocation 37, 43, 47, 87, 104 n.138, 105, 108, 108 n.161, 109, 119, 127, 134–5, 138–9, 206, 226 public executions 2, 7, 51, 60 n.47, 70, 115, 148, 162–3, 170–1, 187–91, 193–203, 205–11, 221–3, 225. See also public hangings public hangings 21, 52, 75, 144–5, 156, 193–205, 194 n.3, 207–10, 226, 230 puerperal mania 97 punishment. See also capital punishment; corporal punishment collective 43, 52, 65, 68, 69 n.90, 195 colonial 4–6, 10 n.39, 12–15, 20, 51 n.7, 65, 70–1, 141 n.2, 149, 149 n.40, 169 n.5, 213 Punishment of Murder (Natives) Ordinance, 1922, Nyasaland 4, 12, 41, 43 n.111, 110 punitive expeditions 52 Quashi-Idun, Samuel Okai 92, 92 n.68

260 race cultural defence narratives 21, 113, 115–6, 118, 120, 122, 124–6, 133, 135, 138, 230 hierarchies 18 n.76, 19, 49, 53, 59, 65, 80, 89, 90, 93, 123, 225, 230 impact on sentencing 87, 90 primitivism 7, 49, 117, 122 racialization 172 racism 78, 116, 168, 181, 182, 192, 231 relations 53, 168, 177–8, 180–1, 184, 190–2, 231 rape 3, 28, 37, 47, 88, 93–4, 142, 149–51, 154, 165, 182, 206, 226 (see also sexual assault murder with) recidivism 60, 66, 117 Rendille 121–2, 121 n.45 Renison, Patrick 181, 183–4, 183 n.85 retribution 5 n.14, 13, 78 n.4, 88–9, 87 n.35, 88, 147, 160–1, 168, 187, 194, 225, 231 revenge murder 38, 52, 91, 102, 116, 121–2 reason for execution 146, 148, 160–1, 165 ritual murder. See murder, ritual or medicine robbery, murder with 12, 86, 88, 92, 110, 116, 228 Roberts, Charles Clifton 37, 42 n.108, 49, 103 n.132, 203 Roberts, Denys 9 n.36, 35, 35 n.70 Russell, Alison 40 Sachs, Albie 12, 196 n.11 Samburu 69, 89, 90 n.51, 116, 116 n.20, 118, 207 Sarbah, John Mensah 31, 35 n.67 Second World War 1, 33, 70, 72, 75, 174–5, 229 Secretary of State for the Colonies 1, 41, 45, 62 n.53, 120, 167, 172, 176–8, 176 n.43, 181–2, 184, 187, 205 n.65 security 2, 11, 17, 20, 103, 141–3, 154–5, 159, 165, 169, 189, 200–1, 205, 213 n.107, 226–8 sentencing 3, 5, 7–8, 25, 35, 42, 51, 57–8, 62–3, 66, 71, 78, 82, 104,

Index 110, 114, 125, 131, 142, 152–65, 227, 230. See also appeals; capital punishment; mercy; provocation courtroom behaviour 34, 125–30, 140 cultural defence narratives 21, 113–26, 131, 133, 135, 137–9, 140, 230 depression 66–7, 97, 229 doubt 17, 20, 30, 53, 98–9, 102, 104, 108, 119–20, 122, 125, 131, 134, 137, 178–9, 182–3, 188, 190 elderly 37, 90, 95, 101, 119, 150, 173, 206 ethnicity 5, 19, 87, 118 n.27, 119 juveniles 28, 28 n.28, 62, 62 n.101, 71 pregnancy 28, 94 race 5, 87, 90 witchcraft 15, 41, 53, 78, 99–103, 135, 173, 174 n.35, 205 n.66 sentimental humanitarianism 124 settler colonialism 149, 149 n.40, 158, 227 Sheridan, Joseph 105, 129 Sierra Leone 6, 11 n.47, 26 n.17, 31, 38, 57, 175, 188, 206, 213–14, 218 n.127, 219, 228 Silombela, Medson Evans 185–91 Silverman, Sydney 176–7, 177 n.48 Sinclair, Ronald 40, 181 Smith, George 41, 127, 147–8, 147 n.32, 148 n.36 Somaliland, British 38, 58 n.40, 207, 221 South Africa 8, 12, 27–8, 51, 61, 79, 90, 90 n.54, 123, 133, 145, 149, 182, 189, 195–6, 202 n.49, 228 Southern Rhodesia (Zimbabwe) 6, 27, 35 n.66, 42, 42 n.107, 56–8, 60–1, 61 n.52, 96, 145, 149, 164, 168, 184, 185 n.93, 189, 226 Southworth, Frederick 124 spousal murder 52, 66, 106–8, 129, 131, 137, 229. See also domestic murders; uxoricides state of emergency Gold Coast 73, 160 Kenya 3, 6, 8, 21, 33, 38, 57–61, 71, 72 n.110, 73, 75, 82–3, 91, 136, 153–5, 180, 229, 231 Nyasaland 21, 72 n.110, 141, 164, 164 n.125

Index Stephenson, W. B. 174 Straits Settlement 6, 9, 27 Sudan 11 n.47, 13, 27, 27 n.22, 135, 193, 201, 207, 215 Swaziland 28, 33, 58 n.40, 100 n.115 Tanganyika (Tanzania) 4 n.10, 6, 12 n.51, 26, 27 n.19, 40, 40 n.93, 42, 51, 56–8, 61, 61 n.49, 74, 117 n.25, 145, 155, 175, 193, 197, 212 terrorism 16, 141, 143, 149, 154, 156–8, 160, 162, 168, 181, 185, 189 thanatocracy 59, 153 theft. See robbery, murder with treason 3, 14, 28, 58 n.41, 73, 86, 145–7, 165 Treatment of Offences, Special Advisory Committee on 69, 69 n.93 Turkana 121, 207–8 Uganda 4 n.10, 6, 12 n.51, 14 n.62, 26–7, 33, 38, 42, 57, 58, 60 n.47, 61, 150 n.50, 193, 205, 209, 226 uxoricides 103, 105–7, 109–10, 130, 134, 138 violence 2–11, 19–21. See also colonialism, violence

261 domestic 66, 66 n.74, 85, 97, 105, 106 n.147, 108

West African Court of Appeal (WACA) 30 n.36, 32–3, 38, 62–3, 63 n.64, 137, 176–7 Whyatt, John 125, 157 witchcraft impact on sentencing 78, 99–103 mercy 99–103 witch-killings 100–2, 110, 173 n.30 women. See also mercy, royal prerogative of; murder domestic murders 97, 103, 105–6, 106 n.147, 108, 128 pregnancy 28, 94 puerperal mania 97 uxoricide 103, 105–7, 109–10, 130, 134, 138 Woolhouse Bannerman, Charles Edward 63, 127–8 youth 82, 94–5, 95 n.84, 110, 148, 148 n.92, 175, 220 Zanzibar 4 n.10, 13, 38, 42, 56

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