Academic journal article The International Journal of African Historical Studies

Murder and Mercy: Capital Punishment in Colonial Kenya, Ca. 1909-1956*

Academic journal article The International Journal of African Historical Studies

Murder and Mercy: Capital Punishment in Colonial Kenya, Ca. 1909-1956*

Article excerpt

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.1

- District Commissioner, Nyeri, 13 October 1921.

While military force, structural violence and alliances were crucial to the spread and maintenance of colonial hegemony across British Africa, so too were ideas of the "rule of law" and British "justice."2 As a 1934 enquiry into the administration of justice in East Africa noted: "It is the duty of Government to civilise and to maintain peace and good order, and this can only be done by the introduction of British concepts of wrong-doing. Revenge and retribution as methods of punishing criminals must go, and crime must be regarded first and foremost as an offence against the community if the peoples of these territories are to advance in enlightenment and prosperity."3 British colonial regimes placed a great emphasis on the importance of courts as the cornerstone of British "justice" and "law and order," with civilization being equated with the rule of law.4 Many historians however have questioned official commitment to the principles of the "rule of law," arguing that it was but a façade behind which to conceal the everyday practices of colonial exploitation.5 Crime historian Martin Wiener however argues that historians should not underestimate the complexities and sometimes paradoxes of events on the ground in individual colonies. These complexities become particularly apparent in the arena of colonial law and punishment, as historians seek to uncover the workings of courts in their search for "truth" and "justice."6 In Kenya, as in other colonial territories, there were persistent tensions within the colonial edifice between the desire for "good governance" and "civilised" rule, and a belief that violence was necessary to achieve control and development.7 Across British Africa many colonial officials displayed a strong cultural commitment to British "justice" and the "rule of law," which, while not making physical punishment impossible, made it ethically problematic.8 Others had few such qualms.9 Courtroom trials of murder suspects and the use of the death penalty forced colonial states, and their legal and administrative functionaries, to openly discuss such tensions, not in abstract legal or political theory, but over the body of the condemned man.10

Capital punishment formed the lethal apogee of the judicial and penal violence inflicted upon African subjects by the colonial government in Kenya, but to date there have been few efforts to investigate this violence, or to situate it- and the deaths it inflictedwithin the wider nexus of colonial power, with the notable exception of David Anderson's analysis of the Mau Mau rebellion, Histories of the Hanged. n Any discussion of state killing in Kenya would be incomplete without reference to the 1,090 executions that occurred in 1952-57 during the Mau Mau rebellion; an unprecedented level of judicial violence in Britain's twentieth-century empire. One aim of this article is to further contextualize Anderson's recent analysis of the Mau Mau hangings by tracing the path of the death penalty through Kenya's colonial period to try and understand how, and why, the state choose to so ruthlessly deploy "the extreme penalty of the law" during the State of Emergency. The death penalty is here analyzed as a lens through which to view colonial strategies of law, order, and social control, drawing on the rich archival record of 1,108 murder trials, with transcripts from 1939-1957 in particular, alongside legal papers from the Ministry of Legal Affairs and Attorney-General series in the Kenyan National Archives, Nairobi. Unlike other penal measures, capital punishment is an expressly political penalty: the final decision on whether a condemned man would hang lay not with a judge but with the governor of the colony, who could choose to "let the law take its course" or to exercise his mercy and commute the sentence. …

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