Oct. 11
GLOBAL:
The Death Penalty: a Growing Human Rights Issue
As we progress well into the communications age of globalization, the
DEATH PENALTY is considered by most civilized nations as a cruel and
inhuman treatment. It has been abolished as a matter of fact or law by 106
nations, 30 of these countries abolished it in the early 90's. Despite
this encouraging evolution the death penalty continues to be commonly
applied in 90 other nations including Sierra Leone.
China, the Democratic Republic of Congo, the United States and Iran are
the most prolific executioners' in the world. To exacerbate an already
horrendous situation the United States is also one of six countries,
including Iran, Nigeria, Pakistan, Saudi Arabia and Yemen that executes
people under the age of 18 years at the time of the commission of the
crime.
Although International Instruments have controlled and in some cases even
banned the death penalty, its application is yet to crystallize into
customary international law. Much debate continues in the United States as
to whether it constitutes an appropriate punishment at least for the most
heinous crimes. In recent years this debate has been fueled by the use of
new technologies, notably DNA, which have shown that a large proportion of
people sentenced to death were indeed innocent.
The death penalty is the ultimate cruel, inhuman and degrading treatment.
It gravely violates the right to life. It is irrevocable and can be
inflicted on the innocent while it has never been shown to deter crime
more effectively than other punishments.
Each year since 1997 the United Nations Commission on Human Rights have
passed resolutions calling on countries that have not abolished the death
penalty to adopt a moratorium on executions. The latest resolution adopted
in April 2004 was co - sponsored by 76 UN member states.
In Nigeria the last person to be executed was hanged on 3rd January 2001.
President Olusegun Obasanjo has repeatedly declared his opposition to the
death penalty. In November 2003 he inaugurated the National Study Group on
the Death Penalty with mandate to conduct a national debate on the issue
and make recommendations to the Federal Government by June 2004.
In the southern part of the continent, 5 countries of the Southern African
Development Community (SADC):- Angola, Mauritius, Mozambique. Namibia and
South Africa have abolished capital punishment. Other SADC countries have
made positive progress. According to Amnesty International "There is a
clear trend worldwide and across Africa towards abolition of the death
penalty." And so, with this trend towards globalization, the question then
becomes, what about those individuals who have been charged with the most
egregious crimes in international jurisprudence: crimes against humanity,
genocide and war crimes? How does international law apply to them with
regards to capital punishment? The answer is similar to the aforementioned
trend in domestic law, several countries, including over 20 African
nations, have "so far ratified the Rome Statute of the International
Criminal Court (ICC)", which states that the maximum punishment the ICC
can award, is life imprisonment.
The discrepancies between domestic law and international law then become
very apparent and disturbing. For instance, those who allegedly committed
some of the most heinous crimes during Sierra Leone's civil war, at least
the one's who were charged by the Special Court for Sierra Leone (SCSL),
face a maximum sentence of life imprisonment.
The last execution in Sierra Leone was in 1999. But, in Sierra Leone where
the death penalty is still in the statutes for the crimes of:(1) Treason
(2) Murder and (3) Aggravated Robbery, individuals who have committed less
egregious offences face the possibility of a death sentence.
Apart from the moral implications of applying capital punishment, there
are several pragmatic considerations that really must be addressed by
individual nations.
Firstly, most of the nations that still have capital punishment statutes
also employ the practice of executing individuals who were under the age
of 18 at the time the crime was committed. This is in direct contravention
of the International Covenant on Civil and Political Rights (ICCPR), by
the United Nations.
Pursuant to this treaty "...a death sentence shall not be imposed for
crimes committed by persons below 18 years of age and shall not be carried
out on pregnant women." Secondly, some of these nations also continue to
execute those who suffer from mental illness and mental retardation. Basic
acquaintance with the elements of a crime makes it quiet patent that
without the requisite mens rea (mental state) an individual cannot be
convicted of the crime. So, it would seem that fundamental criminal
justice would forbid the execution of these individuals.
There is the further innate problem of racial and class discrimination,
which leads to the subjective application of the death penalty. A case in
point is the United States, where racial tensions are towering, 98%
(ninety-eight percent) of all persons sentenced to death could not afford
an attorney. Moreover, although whites in the U.S. constitute 50% (fifty
percent) of all victims of homicide, 82 % (eighty-two percent) of all
convicts on death row are sentenced for murdering whites. In essence
African- American offenders who kill whites are therefore 4 (four) to 7
(seven) times more prone to receive the death penalty than whites for the
same offence.
Also, there is the additional salient issue of how long inmates must
remain on death row before they are executed. Many lawsuits and briefs
have been filed concerning this particular issue. The main argument has
been that to be forced to anticipate the date of one's execution, (bearing
in mind some inmates like Clarence Lacky in the United States waited as
long as 17 years), is in and of itself cruel and unusual punishment. In
the Privy Council decision in Bradshaw v Attorney General and Others
Roberts v Attorney General and Others of 24th May 1995 the Court endorsed
the presumption of inhuman or degrading punishment when there is a delay
in carrying out the death penalty for a period of five years or more. The
Privy Council allowing the appeal and quashing the death sentences which
were substituted with sentences of life imprisonment held that "Since a
delay of more than five years had elapsed between sentence and intended
execution there would be strong grounds for holding on established
principles that such constituted "inhuman or degrading punishment or other
treatment". It is also trite at this juncture to recall what was said in
Pratt {1993} 2 LRC 349 at 346, {1994} 2 AC 1 at 33: "It is part of the
human condition that a condemned man will take every opportunity to save
his life through use of the appellate procedure. If the appellate
procedure enables the prisoner to prolong the appellate hearings over a
period of years, the fault is to be attributed to the appellate system
that permits such delay and not to the prisoner who takes advantage of
it." In Sierra Leone like other nations that continue to preserve the
death penalty in their statutes, there are several issues that must be
addressed concerning both the morality and the application of capital
punishment sentences, including: 1) the irrevocable nature of the death
penalty, 2) racial and class disparities, and 3) the violation of
humanitarian interest in everyone's right to life. The international trend
is a move towards abolition, but there is still a lot more work to be done
if we are to get rid of this barbaric dispensation of justice that
continues to haunt mankind as it seeks a peaceful and more secured world
order.
With the just concluded report of the Truth and Reconciliation Commission
(TRC) in Sierra Leone, recommending inter alia the abolition of the death
sentence as a way forward from the violence of the past and the start of a
new beginning; the issue should now take centre stage in a national debate
that can present a road map for the future of the death penalty and other
human rights issues in Sierra Leone.
Former President Nelson Mandela rejecting calls for the reintroduction of
the death penalty in South Africa had this to say "That type of vengeance
does not help us, to kill people merely because they have killed others."
For us in Sierra Leone like in an increasing number of countries the death
penalty should be a critical human rights issue. Abolition of the death
penalty does not only contribute to the enhancement of human dignity which
we lost in the last decade of an internecine war; but also the progressive
development of human rights and the rule of law which we desperately
require.
I therefore most humbly call on the political leadership to heed the call
by the President of Malawi who recently announced a moratorium on all
executions in his country and the commutation of all existing death
sentences. In his words "life is sacred. I believe a person can reform I
invite all heads of state in Africa, our common home, to abolish the death
sentence." Finally, the advancement of any significant measure of human
rights, such as the abolition of torture, slavery, the death sentence and
the criminalization of libel, is serrated. At certain moments (like the
present movement towards the abolition of the death penalty) the world
lurches ahead, even as some countries resist change. The above model of
recent developments and the global trend towards abolition demonstrates
that the world is in an era of profound change. Therefore, as we commence
the long walk into the new millennium, we cannot continue to find
ourselves drifting into isolation on the issue of capital punishment. We
must act now. This new campaign presents a challenge and a unique
opportunity to build on the spirit of human rights collaboration that now
exist in this country by seeking the statutory alternatives we possess to
state killings that has continued unabated since independence. May the
Almighty make mankind see reason and appreciate the fact that 2 wrongs do
not make a right, but rather multiplies the issues and solution to a
complex problem.
(source: Opinion, Sulaiman Banja Tejan-Sie, Concord Times, Freetown,
Sierra Leone)
