July 28
UGANDA:
The Pope and the death penalty
His Holiness Pope Francis is scheduled to visit Uganda in November 2015. One
thing most Ugandans do not know about him is that he supports the abolition of
the death penalty.
On March 20, 2015, His Holiness wrote a letter to the International Commission
against the Death Penalty (ICDP) on the matter. As an individual who supports
the abolition of the death penalty, I wanted to highlight some of the arguments
His Holiness put forward in the letter.
In his letter to the ICDP, His Holiness argued that the death penalty
undermines the purpose of punishment. Punishment has 5 purposes namely:
retribution, deterrence, rehabilitation, reconciliation and restorative
justice.
The death penalty solely serves a purpose of retribution as vengeance for the
crime that was committed and undermines the wholesome purpose of punishment. As
His Holiness rightly states, "It does not render justice to the victims, but
rather foments revenge". If the death penalty is replaced with long-term
imprisonment, the offender is able to appreciate the wholesome purpose of
punishment by participating in the rehabilitative, reconciliation and
restorative aspect. With regard to the second purpose - deterrence - proponents
of the death penalty have often argued that the death penalty deters crime.
There has, however, been no empirical evidence to support this argument. In
2009, Micheal L. Radelet and Traci L. Lacock published the results of their
study that revealed that 88% of leading criminologists believed that the death
penalty does not have a greater deterrent effect than long-term imprisonment.
Our lawmakers should, therefore, consider replacing the death penalty with
long-term imprisonment. Imposition of the death penalty negates the other 3
purposes of punishment - rehabilitation, reconciliation and restorative
justice. Indeed, punishment in Uganda has traditionally focused on retribution
and deterrence.
More emphasis should be put on rehabilitation, reconciliation and restorative
justice. Rehabilitation is aimed at reforming the offender to prevent
recidivism. Interactions with the Uganda Prisons Service have revealed that the
rate of recidivism is very low especially for capital offenders.
Article 126 (2) (d) of the Constitution of the Republic of Uganda, 1995
promotes reconciliation between parties in both civil and criminal cases, which
would be curtailed by the death penalty. The aim of reconciliation and
restorative justice is to bring the offender and victim together to foster
healing.
His Holiness further argued in his letter to the ICDP that "the death penalty
loses all legitimacy due to the defective selectivity of the criminal justice
system and in the face of the possibility of judicial error." This is true
because policing and judicial systems around the world are not infallible. For
instance, on December 17, 2004, the High Court of Nakawa sentenced Patrick
Lwanga Zizinga to death for the murder of his alleged wife. Yet in fact, his
wife at the time, Annet Nakibuuka, was still alive and Zizinga had no
connection to the deceased, Annet Nakiwala. During Zizinga's mitigation hearing
in 2013, the court held that there was no evidence that he participated in the
murder and it remained questionable as to who committed the murder.
Zizinga was, therefore, released, but not after spending 11 years and 3 months
in prison with 8 1/2 on death row. If Uganda actively executed people like it
is done in China or Iraq, an innocent man would have been killed. As the His
Holiness rightly argued in his letter to the ICDP, "human justice is imperfect
and the failure to recognise its fallibility can transform it into a source of
injustice."
In conclusion, the validity of the death penalty in our penal laws needs to be
re-examined. This is not only because it has the potential to affect innocent
people, but it also undermines the purpose of punishment. Instead, efforts
should be geared to ensure that our prisons are rehabilitative and foster full
re-integration of offenders into society.
(source: Opinion; Catherine Komuhangi is a lawyer and human rights
activist----New Vision)
ZIMBABWE:
Death Sentence Under Spotlight
2 death-row prisoners have launched a legal assault on the validity of the
death penalty, arguing that it is not in conformity with the new constitutional
dispensation. In a lawsuit filed in the Constitutional Court recently, the 2 --
Farai Lawerence Ndlovu and Wisdom Gochera listed Justice, Legal and
Parliamentary Affairs Minister Emmerson Mnangagwa and Prosecutor-General Mr
Johannes Tomana as respondents.
They are seeking to scrap from the statutes Sections 47 of the Criminal Law
(Codification and Reform) Act (Chapter 9:23) and Sections 337 and 338 of the
Criminal Procedure and Evidence Act (Chapter 9:07).
The duo argue that the sections are not in conformity with the Constitution and
should be declared unconstitutional.
They also want an order for all prisoners on death row awaiting execution in
the country to have their sentences commuted to life in light of the provisions
of Section 48 of the new Constitution.
Prominent lawyer Mr Tendai Biti is representing the duo in the case that draws
fresh attention to the ongoing argument over whether the penalty should be used
in Zimbabwe at a time when most developing countries have abandoned it.
Ndlovu has been on the death row for 3 years, while Gochera has cloaked 13
years at Chikurubi Maximum Security Prison awaiting execution.
Under the new law the penalty of murder can only be imposed where murder has
been committed in aggravating circumstances,among other things.
Neither the Code nor the Criminal Procedure and Evidence Act makes any
reference to aggravated circumstances.
Ndlovu, in his affidavit submitted to the apex court in the land, stated that
the new Constitution that came into force on May 22 2013, provided for the
right to life under Section 48.
"It, however, allowed derogation of the right to life through a law that may be
passed imposing the death penalty," he stated.
"Neither section 47 of the code nor section 337 and 338 of the criminal
procedure and evidence act... are in conformity with the constitution in
particular section 48 of the Constitution of Zimbabwe."
He further stated that although the 2 were convicted and sentenced in terms of
the old law under an old Constitution, they were entitled to the benefit of the
current supreme law.
"I contend that we cannot be executed now in light of the provisions of the new
law and more importantly in light of the fact that the law envisaged under
section 48 (2) of the Constitution has not been passed," he said.
He argued that the question of sentence and the carrying out of any sentence
was a matter of procedure governed by the existing law.
Gochera also filed his supporting affidavit. Ndlovu and Wellington Kadzira were
in 2012 convicted for the murder of Michael Sunderland and Geoffrey Andrew
Povey.
Kadzira has since died in prison.
The trial court heard that the 2 told the deceased pair that there was a gold
rush near Kwekwe River and got into the back of the deceased's vehicle.
They put cyanide poison into water bottles that were at the back of the
vehicle, resulting in the death of Sunderland and Povey after they drunk the
poisoned water.
Gochera was convicted of murder with actual intent by the High Court in 2002
for murdering South Africa's Spoornet International Railway executive secretary
in September 2001.
Both Ndlovu's and Gochera's automatic appeals were dismissed, leaving them with
1 last option, to plead for Presidential parole.
(source: The Herald)
PHILIPPINES:
Restore death penalty for drugs - Maranon
Negros Occidental Gov. Alfredo Maranon Jr. yesterday said the death penalty for
heinous crimes should be reimposed, especially for the illegal drugs trade.
If the death penalty is reimposed, it will greatly lessen the drug menace, he
said.
The proliferation of illegal drugs is our biggest problem now, and most
killings are drug-related, he said.
Maranon said even in the time of Jesus Christ, the death penalty was imposed.
It is the Church that is opposed to the death penalty, he said.
But the drug problem is all over and must be stopped, he said.
He lauded Senior Supt. Samuel Nacion, officer-in-charge of the Negros
Occidental Police Provincial Office, for the recent numerous drug seizures and
arrests in the province.
"He (Nacion) is doing good, I hope he will keep it up," the governor said.
On the investigation into the murder of Negros Occidental Board Member Renato
Malabor in Isabela town on June 28, the governor said witnesses have already
surfaced.
The witnesses took a long time to come forward because they were afraid, he
said.
But when asked if the witnesses were under protective custody, he said no
comment and refused to give further details.
(source: visayanddailystar.com)
INDIA:
Indian court puts off last-minute decision on death-row bomb convict
India's Supreme Court has put off by a day a decision on whether to stay the
execution of the only person sentenced to death for India's deadliest bomb
attack, meaning the convict will learn his fate just hours before he is due to
be hanged on Thursday.
Yakub Memon was convicted as the "driving spirit" behind blasts in Mumbai in
1993 that killed at least 257 people, but his case has divided opinion in
India, with several eminent figures saying the sentence is too harsh.
Police consider Memon's brother, "Tiger" Memon, and mafia don Dawood Ibrahim to
be the main masterminds behind the attack, carried out to avenge the
destruction of an ancient mosque by Hindu zealots in 1992. Both remain in
hiding.
The Supreme Court last week rejected one appeal, but Memon again approached the
court arguing an order to hang him was passed while he still had legal recourse
available.
A 2-judge Supreme Court bench on Tuesday gave a split verdict and referred
Memon's mercy plea to a larger bench of justices, which is due to hear the case
on Wednesday.
Supporters of Memon's plea said he cooperated with investigating agencies and
that he was the only person of several convicted to face the death penalty for
the bombings, which targeted landmarks in Mumbai, then known as Bombay.
His imminent hanging in the central city of Nagpur has ignited a debate in the
media, and his cause has been taken up by Bollywood superstar Salman Khan.
Memon's plea has been turned down by the president. Several prominent people,
including lawmakers and retired judges, on Sunday asked the president to
reconsider.
Calls for reprieve grew after an Indian news website last week released a 2007
article written by intelligence official B. Raman, who coordinated Memon's
arrest in 1994, and said he believed he should not be hanged. Raman has since
died.
"In their eagerness to obtain the death penalty, the fact that there were
mitigating circumstances do not appear to have been highlighted (by the
prosecution)," Raman said in the article.
(source: Reuters)
**************
SC refers Yakub Memon's death penalty to a larger bench
The Supreme Court on Tuesday referred the death penalty of 1993 Mumbai serial
blasts convict Yakub Memon to a larger bench due to the difference of opinion
of 2 judges.
Chief Justice H.L. Dattu will constitute a larger bench. The matter will be
heard tomorrow.
The apex court had sought a clarification from Attorney General on rules for
curative petition as Memon says death warrant was issued before the Supreme
Court's decision on his petition.
The apex court had said that it cannot go on merits of Memon's case, and added
that nothing further is required as everything has been decided.
Memon had sought a stay of his death sentence after the apex court had on July
21 rejected his mercy petition.
Memon moved the apex court contending that the death warrant for his execution
was issued before he could exhaust the legal remedies available to him. He also
sought that his death sentence be stayed by the apex court.
(source: ANI News)
****************
Yakub Menon case: Facts show how badly legal system failed
It would be a national tragedy of epic proportions and a significant
miscarriage of justice if Yakub Memon hangs for his role in the 1993 Mumbai
blasts. Only 1 final decision by the Maharashtra Governor, on Memon's mercy
petition, and a 3rd appeal in the Supreme Court now stand between him and the
hangman.
Facts now emerging (or re-emerging) in the public domain show how badly the
legal system has failed in Memon's case. A letter written by B Raman, a former
intelligence involved in Memon's return and now published posthumously by
Rediff.com, and a 2007 report by journalist Maseeh Rahman about how the Memons
led by Yakub returned to India after the bombings, make it amply clear that
most of the Memon family may have participated only passively in enabling the
bombings.
There is good reason to believe that after the initial anger over the Mumbai
communal riots of 1992 evaporated, most of them did not want to stay prisoners
of Pakistan's ISI, which helped mastermind the blasts. The Memons who deserve
to be hanged are Tiger and Ayub (still in Pakistan as ISI protectees). They
were at the core of the conspiracy to bomb several public places in 1993, which
left 257 people dead. It is their hands that dripped with blood; Yakub was
possibly the gullible brother who got splashed in red when the thundering
caravan of public anger passed by him.
This is not to say he was blameless, but he certainly was not the man who
deserved the maximum punishment for the sufferings of those who died in the
1993 blasts.
Both Raman and Maseeh Rahman are clear (I) that the Memons who returned in 3
batches to India in 1994 came back largely voluntarily (barring Yakub, who may
have been caught through luck or a negotiated surrender). The families' return
was aided by the Indian CBI. Prima facie this establishes the fact that even if
anger and fear may have prompted the Memons to aid (or passively support) the
bombings which later led them all to flee to Pakistan, they had hoped that
Indian law would treat them with fairness.
Raman and Rahman's writings suggest that Yakub provided crucial evidence to
link his brothers' evil deeds with Pakistan, but, surprisingly, neither he nor
his family got the benefit of becoming approvers in the case which could have
led to lighter sentences for their roles in the blasts. This is yet another
classic case where a weak state has chosen to show strength against the weak by
indirectly winking at injustice. Strong states do not let public emotions and
political posturing get in the way of delivering real justice.
In the Indian case, the political need to satiate public anger against the
Memons made the "weak" Narasimha Rao government ignore the real reasons why the
Memons came back and decided to treat Yakub and some other Memons as key
villains deserving no leniency. (Even if they came back only to save their
property, the fact is they came back to face Indian law.) This is known is
psychology as displaced aggression. If you can't hit back at the person who
wronged you, you hit out at those who are easily available. Hear what Raman had
to say about Yakub: "The cooperation of Yakub with the investigating agencies
after he was picked up informally in Kathmandu and his role in persuading some
other members of the family to come out of Pakistan and surrender constitute,
in my view, a strong mitigating circumstance to be taken into consideration
while considering whether the death penalty should be implemented."
Maseeh Rahman wrote that Tiger Memon's father actually "thrashed" him when he
heard his son has used the services of Pakistan to plant the bombs in Mumbai.
The law has let the Memons who returned down. Weak-kneed politicians and the
legal system have used a voluntary surrender to pretend they had caught dreaded
terrorists to show they mean business.
There are 3 tragedies inherent in the Yakub story. First, there is the
inability of the political and legal system to deliver real justice and
focusing instead on what is easy to do. Yakub was an easy target and he is
being shown no mercy just to prove that the state means business when it comes
to dealing with terrorism. Actually, it proves the opposite. It testifies to
the impotence of the state which cannot bring the real culprits, Dawood Ibrahim
and Tiger Memon, to justice and is instead happy to send someone else to the
gallows. The only message being sent is that the next time one should not trust
the Indian legal system to help those who surrender voluntarily and seek to
nail the real criminals.
Second, if Memon is hanged despite the facts that are now re-emerging, it will
prove yet again that political support is the key to getting convicts an easier
sentence. We know that political support in Punjab and Tamil Nadu helped both
Balwant Singh Rajaona (convicted for the assassination of Punjab CM Beant
Singh) and the 3 convicts facing death sentences for the Rajiv Gandhi
assassination. If Yakub Memon is hanged for lesser offences that what Rajaona
and Rajiv's assassins have been convicted for, it would make this assessment
obvious.
Third, the final tragedy would be to establish religion as the central issue in
tackling terrorism. Politicians are happy to mouth the truism that terror has
no religion, but that is not how they behave. It would be a real tragedy if the
only politician batting for Yakub Memon is a Muslim politician like Asaduddin
Owaisi of MIM. All the so-called "secular" parties are staying mum for reasons
of political cowardice.
The BJP and Narendra Modi's government, which have no reason to guard their
Right flanks against charges of appeasement of Muslims, should use this as an
opportunity to show they are not blind to issues of justice involving the
minority community. Without in any way reducing the culpability of various
members of the Memon family for aiding or abetting the Mumbai blasts, the
hanging of Yakub Memon, if it finally comes to that, would be a triple disaster
for the country.
Giving the victims of the blasts a sense of closure does not mean denying a
fair deal to the Memons who came back to face Indian law. Hanging Yakub would
also mean Tiger Memon was right in advising him not to return.
Maseeh Rahman's report quotes Tiger Memon of warning Yakub: "Tum Gandhiwadi ban
ke ja rahe ho, lekin wahan atankwadi qarar kiye jaoge" (You are going as a
Gandhian, but over there you will be labelled a terrorist). If Yakub hangs, it
would prove Tiger Memon right. Pakistan's ISI will have the last laugh. It
could not prevent Yakub's surrender. Now India is doing its job of killing off
someone who didn't kowtow to the ISI.
Is that what secular India wants?
(source: R Jagannathan; The writer is editor-in-chief, digital and publishing,
Network18 Group----moneycontrol.com)
****************
APJ Abdul Kalam: The man who opposed death penalty
Former president APJ Abul Kalam Azad did not favour the death penalty like his
predecessor. But unlike his predecessor, he himself heard to the government and
the people.
A defence scientist and a Bharat Ratna before he was elevated as President,
India's bachelor president had spoken out against death penalty on at least on
3 occasions while in office and sent back nearly 50 cases of capital sentences
back for reconsideration.
The only mercy plea that he rejected was from Dhannajay Chatterji, a lift
operator convicted of rape and killing a young girl in Kolkata, in 2004. Kalam
indicated later that he had done so reluctantly.
During his tenure at Rashtrapati Bhavan, Kalam became the only President to
send back petitions from 50 death row prisoners to the government in 2005,
listing out reasons why the UPA government should consider clemency in each
case.
When the home ministry decided to reject his advice in all the cases, he
decided against rejecting any more mercy petitions. Many of them were later
granted mercy when the Centre reconsidered the petitions in UPA II.
A decade later, Kalam volunteered to respond to a law commission consultation
paper on the death penalty. Speaking from his experience at Rashtrapati Bhavan,
Kalam recalled the outcome of the study by the President's office to examine
the mercy petitions. "This study revealed to my surprise that almost all the
cases which were pending had a social and economic bias," the former President
said.
It is a question that Kalam had raised publicly in office too.
The book "Capital Punishment: A Hazard to a Sustainable Criminal Justice
System?" points how Kalam digressed from the prepared text at a lecture
delivered at Hyderabad's National Policy Academy in October 2005. He
rhetorically asked why there were only poor people on death row.
A few days later, he again stressed on the need for a comprehensive policy on
the death penalty after all aspects relating to it and mercy petitions were
discussed in Parliament.
(source: Hindustan Times)
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