It is often contended that the death penalty is as old as humanity. The reason is simple. Any human society needs protection against incorrigible, dangerous and undesirable criminals. A 2011 research of the African Commission on Human and People's Rights on the Question of the Death Penalty in Africa states that African societies were no exception: “the death penalty existed in all precolonial African societies.” The argument that the death penalty is part of the African tradition has constituted a barrier to the abolitionist movement in some parts of the continent. Abolishing the death penalty is there assimilated to abolishing customary law and, mostly, African identity. Colonial laws that were imported from apparently more “civilized” nations strengthened this view by legalizing the death penalty and formalizing its methods of execution all over Africa, except in Portuguese colonies. On the eve of independence, postcolonial governments chose to maintain the status quo.

The contention that the death penalty is enrooted in the African culture has become debatable. In the Makwanyane case, the South African Constitutional Court ruled in 1995 that the death penalty is the antithesis of the African value of Ubuntu. However Justice Albie Sachs stressed, in his concurring judgment, that there was an absence of authoritative materials on traditional African jurisprudence. Available sources were from historians and anthropologists. The learned Justice thus concluded, “if these sources are reliable, it would appear that the relatively well-developed judicial processes of indigenous societies did not in general encompass capital punishment for murder.” The inference that the death penalty was not part of African tradition is not only seductive, it also carries the message that African ancestors, though deemed to be savage, primitive, barbaric by their colonial masters, had a greater sense of human rights than do contemporary African leaders. It would mean also that African societies started valuing the right to life and dignity long before Western societies that are still battling for complete abolition of the death penalty.