Concord Times (Freetown)
Sulaiman Banja Tejan-Sie
11 October 2004
opinion
Freetown — 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, five 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 eighteen 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 two wrongs do not make a right, but rather multiplies the issues and solution to a complex problem.
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