10 October marks World Day Against the Death Penalty. Sabrina Mahtani highlights the plight of African women on death row and the intersecting forms of discrimination they face.
Limited attention is paid to women on death row in Africa, particularly as they make up a tiny percentage of the overall prison population. An estimated 500 women are on death row worldwide. Incarcerated women represent approximately 15% of the death row in Malawi (four women), 5.1% in Sierra Leone (two women), 4% in Uganda (11 women), 2.2% in Nigeria (32 women), 3.1% in Ghana (five women), 1.8% in Mauritania (one woman) and 1% in Zambia (two women). As they are small in number, women on death row are a neglected and overlooked population and little attention has been paid to the experiences which led to their incarceration or the challenges they face whilst incarcerated.
Most women have been sentenced to death for murder, often in relation to the killing of family members in a context of gender-based violence. When Noura Hussein, a 19-year-old Sudanese woman, was sentenced to death in May 2018 for killing the man she was forced to marry as he tried to rape her the second time, rare international outcry followed and an Appeals Court overturned her death sentence. It was substituted with a five-year prison sentence, which is still seen as disproportionate punishment by some human rights organisations. Across the continent however, other women have been overlooked. Cases of women in Uganda, Malawi, Nigeria, Ghana and Sierra Leone being sentenced to death for killing their abusers receive limited media attention.
In many death penalty jurisdictions, gender-based violence is not considered at sentencing. Few lawyers present such evidence and even where they do, the courts often discount it, as in a case I worked on in Sierra Leone of Aminata* who was sentenced to death in 2010 for killing her abusive boyfriend.
In countries where the death penalty is a mandatory sentence for murder, such as in Sierra Leone or Ghana, a woman’s prior history as a survivor of physical or sexual abuse is simply irrelevant since the death penalty is automatically imposed for death-eligible offences without consideration of the woman’s background or the circumstances of the crime.
Most women in prison have a history of abuse, mental health problems or have experienced socio-economic deprivation. The majority of women on death row are from poor or marginalised communities, and are illiterate, meaning they have limited knowledge about their legal rights, cannot read legal documents and are not fully engaged in their own defense. Further, they have limited resources to secure adequate legal representation. All of the women on death row in Ghana that I interviewed between 2016 to 2017 (five in total) said they did not have the financial means to hire lawyers to file appeals.
Several years ago, I worked on an appeal for the longest serving woman on death row in Sierra Leone with AdvocAid and the Death Penalty Project. MK* was arrested for killing her step-daughter in 2003, and sentenced to death in 2005. She did not receive legal advice or assistance from the time of her arrest until before her trial in 2005. MK is illiterate and thumb-printed a confession which was later used during her trial. In 2011, the Court of Appeal held that various procedural irregularities during MK’s trial rendered it invalid. Her conviction was overturned and she was released after six years on death row.
In a similar case, MSK*, a woman who was sentenced to death in 2007, had her conviction overturned two years later after an appeal brought by AdvocAid. She had received no legal representation until just a few days before her trial. Though these cases illustrate the importance of the right to appeal, funding for legal aid organisations to take on such cases across the continent is lacking.
Prison conditions are challenging for most women across Africa and little attention has been paid to their gender-specific needs whilst in detention in a prison system that was created by and for men. Women on death row can face further challenges. Many suffer mental trauma, exacerbated by being on death row. Some face stigma from other prisoners. In a few countries, women on death row are shackled. Meriam Ibrahim, sentenced to death in Sudan for apostasy in 2014, was shackled to heavy chains in prison while eight months pregnant and caring for a young child.
In some countries, women on death row are barred from educational or vocational activities offered to other prisoners. An elderly woman who had been on death row in Ghana for nine years told me: “I don’t do anything. I sweep and I wait.” Social stigma, long distances and restrictive visitation rules can result in death row prisoners rarely having visitors, causing further isolation.
Progressive steps
Sub-Saharan Africa is seen as a beacon of hope for death penalty abolition, with Guinea recently becoming the 20th country in the region to abolish the death penalty for all crimes. Kenya, too, has abolished the mandatory death penalty for murder and, in June, Burkina Faso’s parliament adopted a new penal code that effectively abolishes the death penalty. While progress is being made, more needs to be done to focus on this neglected populace – women on death row – and the impact of intersecting forms of discrimination that is often ignored in the courtroom.
A key step is to ensure that legal representation is provided so that women who are on death row can appeal, in line with international fair trial obligations. Further, more training and reform is needed to support gender-sensitive application of criminal laws, policies and procedures.
Malawi is an example of how lawyers can play a vital role in highlighting the gendered experiences of women facing the death sentence. In May 2007, the High Court of Malawi found the mandatory death penalty unconstitutional, granting judges the discretion to apply the death penalty in the case of murder only after consideration of “the manner in which the murder was committed, the means used to commit the offence, the personal circumstance of the victim, the personal circumstances of the accused and what might have motivated the commission of the crime.” All four women who had been sentenced to death received individualised sentencing hearings in which, for the first time, lawyers presented to the court evidence of their indigence, history of abuse, mental illness, rehabilitation and other mitigating factors. None of the women were resentenced to death or to life in prison.
*Names have been changed to protect the identity of the individuals
For more information on women on death row see the groundbreaking report, Judged for More than Her Crime: A Global Overview of Women Facing the Death Penalty by the Cornell Center on the Death Penalty Worldwide, which was instrumental to the writing of this piece.
(Main image: Getty Images)
The opinions expressed in this article are those of the author(s) and do not necessarily reflect the views of SAIIA or CIGI.
