Discussion: Commonwealth nations and the use of death penalty

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Being a text of address given to Commonwealth Law Students Association, Luton by George Bamidele Olufemi Ogunjimi Bsc, LLB, LLM, BL (PhD Candidate).

Commonwealth_of_Nations flagIt is a great honour for me to be here tonight to speak to you about a matter I am passionate about in all careers I have followed in my life. I once covered a military tribunal as a young journalist working with the defunct Sketch newspaper in the 80s where a young man was sentenced to death despite his protest of his innocence and I confess to you that the decision of the military tribunal really shook me to the bones so much that I made up my mind to become a lawyer in order to help redress situations like that.
The death penalty is one the most hotly debated topics in both legal and political circles and has preoccupied more than just lawyers for many centuries. In the second half of the twentieth century, this debate has been transformed with the injection of international human rights law.

A great many arguments against the imposition of the death penalty can be put forward including:

•The death penalty constitutes a violation of the right to life.
•Human rights are inalienable and cannot be denied to anyone, even those who commit atrocious crimes.
•It involves the denial of the convict’s dignity and humanity.
•Death penalty induces mental torture.
•Statistics and data from abolitionist countries continually prove that there is no link between the death penalty and crime rates. This includes countries in transition towards democracy.
•When a state commits a killing it in no way defends the rights of victims.
•’Revenge’ is not a fitting response to crime.
•Death sentences are disproportionately visited on the poor, women and disadvantaged.
•The consequences of the punishment are irredeemable.
•Elements of arbitrariness are involved, such as the possibility of error.
•The penalty is excessive insofar as it has not been demonstrated to serve any justifiable penological objective more effective than lesser punishment.

Yet there are still countries that retain the death penalty. According to recent figures from Amnesty International, twenty-eight of the fifty-four countries of the Commonwealth retain the death penalty.

Of the remaining twenty-four countries, fourteen have officially abolished capital punishment while nine have not carried out execution for over a decade and are considered to have a de facto abolition.

The right to life is protected by most international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), Article 6; the European Convention on Human Rights and Fundamental Freedoms, Article 2, the American Convention on Human Rights, Article 4 and the African Charter of Human and People’s Rights, Article 4. The death penalty is not outlawed in any of these international human rights instruments as such but there are certain restrictions imposed. For example the ICCPR states that it can be imposed ‘only for the serious crimes’ (Article 6).

Further, the UN Human Rights commission has made statements encouraging the progressive abolition of the death penalty and the UN Human Rights Committee has recognised in some of its communications that ”by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of ICCPR.”

Even if international law cannot be said to outlaw the death penalty at present, there are a number of safeguards widely recognised as being essential to its use which have been developed through legal challenges to the imposition of the death penalty at domestic and international level. We will look at some of the important themes emerging from the case law supporting abolition of the death penalty.

Courts in a number of countries have sought to uphold challenges to the imposition of the death penalty which have served to set minimum standards surrounding the imposition of the death penalty. Such decisions can be seen as important steps towards progressive abolition.

Ogunjimi with a  student.
Ogunjimi with a student.

There is a growing reliance by municipal courts on decisions handed down in other commonwealth jurisdictions in support of arguments for abolishing capital punishment.

In the makuwanyane decision for example, the South African Constitutional Court examined case law from other African jurisdictions, India and from regional bodies such as the European court of Human rights.

The most notable example of an area where there has been a significant amount of consideration of the decisions of foreign unrelated courts is the death row phenomenon mentioned below. This cross-fertilisation of ideas has strengthened international jurisprudence advocating the abolition of the death penalty.

The death row phenomenon is the suffering caused by a long period of detention prior to execution. This has been found to be contrary to the rights of persons facing the death penalty not to be subjected to cruel, inhuman and degrading punishment.

This right is protected by Article 7 of the ICCPR and Article 3 of the European Convention on Human Rights and Fundamental freedoms. It has been held that the emotional suffering involved in spending long periods of time contemplating one’s own death constitutes cruel or inhuman treatment.

In Pratt v Attorney General for Jamaica [1993] 3 WLR 995, [1993] 4 All ER 769, a pivotal case for the abolitionist movement, the Judicial Committee of the Privy Council held that a delay of fourteen years was cruel and inhuman treatment within the meaning of Article 17(1) of the Jamaican constitution. The Privy Council suggested that pre execution detention should not exceed five years as a rule of thumb. This rule has been followed in subsequent commonwealth Caribbean cases.

Also, the South African Constitutional Court in State v Makwayane held that the death penalty was cruel and inhuman treatment per se regardless of the means by which it is administered.

It is however worth noting that the South African Constitution affords citizens an unqualified right to life (meaning that no exception is permitted).

In three important cases it has been held that where a person is suspected of a crime in a country where that crime carries the death penalty, an abolitionist country cannot deport or extradite that person if they are likely to be executed. The precise rationale and outcome has varied between these cases.

The European Court of Human Rights held in Soering v United Kingdom (1989) 11 EHRR 439 that the United Kingdom could not extradite a murder suspect to the American State of Virginia because, if convicted, he was likely to be subjected to a lengthy delay between trial and execution.
The rationale here was that the death row phenomenon was cruel and inhuman treatment, much like in Pratts mentioned above. Secondly in Minister of Justice v Burns (Amnesty International & Ors Intervening) (2002) 3 CHRLD 324, the Canadian Supreme Court held that before murder suspects could be extradited to the US, assurances must be sought by the Canadian authorities that they would not be subject to the death penalty if convicted.

The rationale for this decision included inter alia the international trend towards the abolition of the death penalty and the death row phenomenon.

In a third case, that of Khalifan Khamis Mohammed v President of the Republic of South Africa Unrep. South African Constitutional Court 28 May 2001, the Court held that a Tanzanian citizen should not have been deported to the US where he faced charges in connection with the bombing of an American Embassy in Africa.

This decision was reached not only on the grounds that the suspect man had been deported to a country with which he had no connection but also, more importantly, because the death penalty is inconsistent with the South Africa Constitution and as such neither extradition nor deportation is allowed where the person is likely to face the death penalty.

High levels of violent crime often bring the death penalty into public favour.

For politicians, public opinion has always weighed strongly in the balance when deciding to preserve the human rights of accused persons and ensuring popular support. The trend has been emerging through the commonwealth and there is a growing reliance by political leaders on public opinion as a justification for the continued and extended use of the death penalty.

This is in spite of the fact that, as mentioned above there is no empirical evidence showing the death penalty to have any deterrent effect.

There are far more cases that have rejected challenges to the death penalty than cases upholding the challenge. Courts in a number of retentionist Commonwealth countries have refused to allow a reduction in the scope of the death penalty by ensuring a strict interpretation of the law and rejecting comparative human rights jurisprudence.

In my country, Nigeria the introduction of Shari’a Law by some states has been seen as a significant retentionist move. International attention was drawn to the cases of Amina Lawal and Safiyah Husseni who were sentenced to death by stoning by Islamic Courts.

Pressure to move towards abolition of the death penalty can be effectively asserted at domestic level through individual challenges to the imposition of the death penalty in national courts.

It can also be also asserted at international level. However, worldwide abolition of the death penalty is unlikely to be achieved in the near future as influential countries such as the United States continue to impose the capital punishment.

Thank you for listening and God bless.

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