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'~':S?SC(i
~) UNIVERSIDAD DE CASTillA· LA MANCHA11111 BI8L10TECA GENERAL CIUDAD REAL
TOWARDSTHEABOLITION OF THEDEATH PENALTY IN
AFRICAA HUMAN RIGHTS PERSPECTIVE
Lilian Chenwi
Unlversltelt van PretoriaUnlversity of Pretorio
Pretoria Unfverslty law Press---PULP---
2007
Towilrdsthe ilbotltion of the death penalty in Africa: A humanrights perspective
Published by:
Pretoria University law Press (PUlP)
The Pretoria University law Press (PUlP) is a publisher, based in Africa,launched and managed by the Centre for Human Rights and the Faculty oflaw, University of Pretoria, South Africa. PUlP endeavours to publish andmake available innovative, high-quality scholarly texts on law in Africa thathave been peer-reviewed. PUlP also publishes a series of collections of legaldocuments related to public law in Africa, as well as text books from Africancountries other than South Africa.
For more information on PUlP, see: www.chr.up.ac.za/pulp
Printed and bound by:
ABC PressCape Town
Cover design:Yolanda Booyzen, Centre for Human Rights
To arder, contact:PULPFaculty of LawUniversity of PretoriaSouth Africa0002Tel: +27 12 420 4948Fax: +27 12 362 [email protected]/pulp
ISBN: 978-0-9802658-0-4
©2007Copyright subsists in this work. It may be reproduced only with permission ofthe author.
Table of Contents
ACKNOWLEDGMENTS
PREFACE
ACRONYMS AND ABBREVIATIONS
TABLE OF CASES
TABLE OF SELECTED STATUTES
TABLE OF AFRICAN NATIONAL CONSTITUTIONS
TABLE OF INTERNATIONAL INSTRUMENTS
One Ilntroduction
v
vi
viii
x
xvii
xix
xxi
Two I History, current status and application of the death 15penalty in Africa
Three / The right to Iife and the death penalty in Africa 57
Four I The prohibition of cruel, inhuman or degrading 97treatment or punishment and the death penaltyin Africa
Five I Fair trial rights and their relation to the death 149penalty in Africa
Six I Conclusion 199
BIBLlOGRAPHY 219
OTHER INTERNATIONAL DOCUMENTS 228
SELECTED WEBSITES 234
SUBJECT INDEX 235
~ Dedicatian ~\ For my mother Mrs Mary Magdalene ChenwiL And in memory of my father Mr Henry Shu Chenwi
Acknowledgments
This book is based on my doctoral thesis, the completion of which Icould nothave achieved alone. Iexpress gratitude to Professor Frans Viljoen for actingas supervisor of my doctoral thesis and for setting me on this path, and toProfessor Michelo Hansungule, the co-supervisor of my doctoral thesis. Thanksalso go to the following persons and institutions: Tina Rossouw for herassistance in sourcing materials from the Oliver R Tambo Library at theFaculty of Law, University of Pretoria; Euphemia Chenwi, MariaGorettiTutuwan, Irene Chenwi, Quinta Chenwi, William Chenwi and Norman Taku fortheir moral support; the Centre for Human Rights for giving me theopportunity to do my doctoral studies; and the British Institute ofInternational and Comparative Law, and Ensemble Contre la Peine de Mortand Penal Reform International for assisting me to attend the FirstInternational Conference on the Death Penalty in Commonwealth Atrica andthe Second World Congress Against the Death Penalty, respectively. Thanksare also due to the Community Law Centre of the University of the WesternCape. A word of thanks also goes to the following people who assisted in thetechnical preparation of this publication: Lizette Besaans: Yolanda Booyzenand Denlse Fourie.
v
Preface
This book arrives al an appropriale lime. Allhough the world·wide movementtowards the abolilion of lhe dealh penally has gathered momentum,advances remain fragile. Sorne of the world's most populous and economicallypowerful slales, parlicularly the Uniled Slales and China, not only slill relainthe dealh penalty bul aclually execule those senlenced to death. Thetenuousness of advances is also illustrated in the remarks of lhe new UNSecretary-General Ban Ki-Moon, 500n after he assumed affice in January 2007.Upon being asked lo comment on the execution of Saddam Hussein, heunderllned that, in the absence of universal consensus on the issue, theposilion of each slale should be respected. Later, apparently under pressurefrom the UN High Commissioner for Human Rights, Louise Arbour, he wasforced to reilerale unequivocally lhe long-standing inslilutional UN principled stance against lhe dealh penalty. In South Africa, where lhe deathsentence was removed from the statule books after a judgment of lheConstitulional Court in 1995, populist calls for its reintroduclion arecontinuously heard. Remarkably, the 'liberal' opposition (the DemocraticAlliance) does not have a principled position, but allows for a 'free vote' onthis question.
The issue of the death penalty may be approached from many angles,including the moral, philosophical, ethical - and legal. More particularly, asin this book, the focus may fall on the legally binding human rights obligationsof states, derived from treaties that they have ratified. By adopling thisperspective, the author essentially deals wilh human righls law, and pulsforward arguments to reinforce an emerging trend to abolish capitalpunishment on the basis of intemational human rights law obligations ofstates.
Although there is no conclusive consensus that capital punishment, assuch, violates human rights obligations under international law, numerousaspects of its applicatlon raise consistent human rights concerns. There isconsensus that this form of punishment should only be imposed for the 'mostserious offences', and only after aU fair triaL guarantees have been observed.However, in mast states that retain this form of punishment, these twominimum requirements cften are not meto In Africa, in particular, structuraldeficiencies in the criminal justice system greatly increase the risk of unfairtrail proceedings. A recurring problem is inadequate legal representation.Those charged with capital offences usually do not have the means to appointcounsel, and depend on pro deo representation, which in Africa is ofteninadequate. In addition, accused persons facing lhe death penalty may not befamiliar with the language of the law, making them dependent on interpreterswho may not be present al all the required stages.
It is also cruel and inhumane lhat someone senlenced to death should lívein the shadow of the gallows for an extended period of time, exposing him orher to the 'death row' phenomenon. De {acta abolitionist states (that is,states that allow lhe imposition but nol the execution of death sentences)leave inmates on death row to live lifetimes of uncertainty. However, thiscriticism should nat be viewed as an invitatian ta de tacto abolitionist statesto execute inmates awaiting death. In any event, the numbers of inmates on'death row' are so great that it is unthinkable to execute aH of them in onego. Rather, states should abolish the death penalty and commute thesentences of those already sentenced lo death. Allowing the death sentenceas a remote possibility leaves the door open for its arbitrary use in cases thatwill serve short-sighted and expedient polítical objectives. This criticism issimilarly valíd in respect of the imposition of the death sentence where sornejudicial discrelion is usually allowed for.
vi
While capital punishment in itself arguably violates the right to life, themethod of execution (such as hanging and stoning) often adds a dimension ofcruelty, which dehumanises aH who are involved in the process.
An emerging international trend towards abolition has found support onAfríean soil, at both the national and regional levels. At the national level,the abolition of capital punishment has coincided with greater democratisation in Africa after 1990. Before that date, only one Afríean state (CapeVerde) had abolished the death penalty for all crimes; since 1990, a furthertwelve states have followed suit. Accomplishing regional adherence will notbe plain sailing. Some of the most powerful countries (such as Egypt andNigeria) and most states in Muslim North Afríea retain capital punishment inpractice. At the regional levet, the African Commission on Human andPeoples' Rights in 1999 followed the lead of the UN Sub-Commission on thePromotion and Protection of Human Rights by calling on all AU membersstates to 'consider establlshing a moratorium on executions' and to 'reflecton the possibility of abolishing the death penalty'. This book traces theemergence of a 'trend' towards a legally binding obligation on states.
In so far as the law allows for the possibility of capital punishment, the lawmust also be the means for jts abolition. In a number of post-1989Constitutions of African countries this has been done: Cape Verde 1992Constitution, art 27(2); Mozambique 1990 Constitution, art 70(2), Namibia1990 Constitution, art 6; Seychelles 1993 Constitution, art 15(2)). In theabsence of clear constitutional guidance, abolition requires legislative intervention. As the South African situation illustrates, a progressive interpretation of existing law by an activist judiciary may provide the pivot thatcould steer the legislature towards abolition. For this reason, the authorthoroughly canvasses important judicíal decísíons in countríes such as Nigeria,South Africa, Tanzania, Uganda and Hungary. Law is often not enough,though. As a recent publicatíon on the overturning of the death sentencesimposed on two Basarwa men in Botswana (E Maxwell & A Mongwe, In theshadow of the noose (2006)) illustrates, legal challenges supported by socialmobilization often stand a better chance of succeeding.
This book consists of selected chapters from Ms Chenwi's doctoral thesis,which she reworked and updated for this publication in the light of thecomments by external examiners and revíewers. The thesis was submitted tothe Centre for Human Rights, Faculty of Law, University of Pretoria, and thedegree LLD was awarded to the author in September 2005. I acted assupervisor, and Professor Michelo Hansungule as co·supervisor. The completetext of the thesis, which consists of seven chapters, is accessible at http://upetd.up.ac.za/thesis/available/etd-10062005-151306/. In the thesis, theauthor deals in greater length with penological and extra-legal arguments infavour of, and against, the death penalty.
This book makes a significant, 'African' contribution to the growingliterature that focuses on the death penalty, by updating and extending thelimited focus on Africa in the two standard texts dealing with the deathpenalty (W Schabas, The abolition of the death penalty in international law(in 1997, second edition in 2002) and RHood The death penalty: A world wideperspective (2002)). It is published in line with PULP's mission of promoting avoice to younger academics and a space for scholarship that is of particularrelevance to Africa.
Frans ViljoenCentre tor Human Rights, PretoriaMarch 2007
vii
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Acronyms and abbreviations
Annual Activity ReportAppeal CasesAfrican Commission on Human and Peoples' RightsAmerican Convention on Human RightsAmerican Declaration of the Rights and Duties of ManAfrican Human Rights Law ReportsAmnesty InternationalAlI England ReportsAfrican National CongressAfrican UnionButterworths Constitutional Law ReportsButterworths Human Rights CasesCourt of AppealUN Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or PunishmentConstitutional CourtClark and Finelly's House of Lords CasesEuropean Committee for the Prevention of Torture andInhuman or Degrading Treatment or PunishmentConvention on the Rights of the ChildDocumentDemocratic Republic of CongoEuropean Court of Human Rights ReportsEconomic and Social CouncilEconomic Community of West African StatesEssex Human Rights ReviewEconomic and Social Council Officfal RecordsEuropean TreatiesFederal Reporter Third SeriesFederal SupplementGeneral AssemblyGeneral Assembly Official RecordsGhana Law ReportsHigh CourtHuman Rights CommitteeInter-American Yearbook on Human RightsInternational Criminal CourtInternationa{ Commission of JuristsInternational Covenant on Civil and Polítical RightsInternational Criminal Tribunal for RwandaInternational Criminal Tribunal for the Former YugoslaviaInternational Legal MaterialsJudicial Committee of the Privy CouncilLaw Reports of the CommonwealthMovement for Democratic ChangeNon-Governmental OrganisationsNumberNigerian Weekly Law ReportOrganisation of American StatesOrganisation of African UnityParliamentary Assembly of the Council of EuropeParagraphPrivy CouncilRhodesian Law ReportsSouth African Law Reports
viii
SCSCORSCRSCSLSCZSJCTLRTRCUDHRUHRCUNUNCHRUNHRCUNTSUSAVOLWLWLRYBZLR
Supreme CourtSecurity Council RecordsSupreme Court ReportsSpecial Court for Sierra LeoneSupreme Court of ZambiaSupreme Judicial CourtTanzanian Law ReportsTruth and Reconciliation CommissionUniversal Declaration of Human RightsUgandan Human Rights CommissionUnited NationsUnited Nations Commission on Human RightsUnited Nations Human Rights CornmitteeUnited Nations Treaty SeriesUnited States of AmericaVolumeWestlaw TranscriptsWeekly Law ReportsYear BookZimbabwe Law Reports
ix
Table of cases
African Commission on Human and Peoples' Rights
Amnesty International (on behal{ af Orton and Vera Chirwo) vMalawi, Communications 68/92 and 78/92 (2000) AHRLR 144(ACHPR 1995)
Amnesty Internatfonal and Others v Sudan, Cornrnunications 48/90, 50/91, 52191, 89/93 (ZOOO) AHRLR Z97 (ACHPR 1999)
Constitutional Rights Project (in respect o{ Akamu and Others) vNigeria, Communication 60/91 (ZOOO) AHRLR 180 (ACHPR 1995)
Constitutional Rights Project (in respect DI Lekwot and Others) vNigeria, Communication 87193 (ZOOO) AHRLR 183 (ACHPR 1995)
Forum o{ Conscience v Sierra Leone, Communication 223/98(ZOOO) AHRLR Z93 (ACHPR ZOOO)
Huri-Laws v Nj~erja. Communication 225/98 (lOaD) AHRLR 273(ACHPR ZOOO)
International Peo and Others (on behalf af Saro-Wiwa) v Nigeria,Communications 137194, 139/94, 154/96 and 161/97 (ZOOO)AHRLR Z12 (ACHPR 1998)
Interights el al (on behalf af Bosch) v Botswana, CommunicationZ401Z001 (Z003) 55 AHRLR (ACHPR Z003)
Malawi African Association and Others v Mauritania,Communications 54/91, 61/91, 98/93, 164-196/97 and 210/98(ZOOO) AHRLR 149 (ACHPR 2000)
Organisation Mondiale Contre la Torture and Others v Rwanda,Communications Z7I89, 46/91,49/91 and 99/93 (ZOOO) AHRLR Z8Z(ACHPR 1996)
Pagnoulle (on beha/t of Mazou) v Cameraon, Communication 39190 (ZOOO) AHRLR 57 (ACHPR 1997)
African national courts
Attarney Generai v Abuki (Z001) 1 LRC 63 (SC, Uganda)
Catholic Commission tor Justice and Peace in limbabwe vAttarney-Generai and Others 1993 (1) ZLR 24Z (S) (SC, Zimbabwe)
Chiieya v S (unreported) 5C 64/90 (1990) (SC, Zimbabwe)
Conjwayo v Minister of Justice and Another 1991 (1) ZLR 105 (Se,Zimbabwe)
Oh/amini and Others v Carter NO and Another (1968) 1 RLR 136(Appeltate Division of the High Court of Rhodesia (nawZimbabwe))
Dogbe v The Republic (1976) Z GLR 8Z (Ghana)
x
105, 161, 196
69, 105, 162,163,164,177
161,177,183
161,177,181,183
68, 69, 184
105
69,71,16Z,164,172,177,
184
7, 69, 104, Z03
105
105
169
108
116, 1Z6, 129
108
115
125
174
Joseph Mutaba Tobo v The People (unreported) sez Judgment No2 of 1991 (SC, Zambia)
Joseph Mwandama v The People (unreported) sez Appeal No 127of 1995 (SC, Zambia)
Kalu v The State (1998) 13 NWLR 531 (SC, Nigeria)
Kaunda and Others v The President of the Republic of SouthAfrica and Others (2004) 10 BCLR 1009 (CC)
Lemmy Bwalya Shula v The People (unreported) sez Appeal No122 of 1995 (SC, Zambia)
Mbushuu and Anather v The Republfc (1995) 1 LRC 216 (CA,Tanzania)
Mohamed v President of the Republic of South Africa and Others2001 (7) BCLR 685 (CC, South Africa)
Mohammed Garuba and Others v Attorney General of Lagos Stateand Others (Suit No ID/559m/90 (He, Lagos State, Ikeja JudicialDivision)
Nemi and Others v The State (1994) 1 LRC 376 (SC, Nigeria)
Prah and Others v The Republic (1976) 2 GLR 278 (Ghana)
Re Mlamba (1993) 2 LRC 28 (SC, Zimbabwe)
Republic v Arthur (1982-83) GRL 249 (Ghana)
Republfc v Mbushuu and Anather (1994) 2 LRC 335 (HC, Tanzania)
s v Makwanyane (1995) 3 SA 391 (CC); (1995) 6 BCLR 665 (CC,South Africa)
s v Ntesang (1995) 4 BCLR 426; (1995) 2 LRC 338 (CA, Botswana)
S v Ntulf (1996) 1 BCLR 141 (CC, Sauth Africa)
Sandersan v A-G [1997]12 BCLR 1675 (CC, Sauth Africa)
Smyth v Uhsewakunze (1998) 4 LRC 120 (SC, Zimbabwe)
Turan v R (1967) E.A 789 (CA, Kenya)
Human Rights Committee
Bailey v Jamaica, Communication 334/1988, UN Doc. A/48/40, 31March 1993
Barret and Sutcfiffe y Jamaica, Communlcations 270/1988 and271/198B, UN Doe. A/47/40, 30 March 1992
Birindwa and Tshisekedi v DRe, Communication 241/1987, UNDoc. CCPR/C/371D/241/1987, 29 November 1989
Table o{ cases xi
43
44
74,79
5
44
31,32,76,110
5,90
42
28
173
167
173
76, 82, 108,109,117,139,143,182,189,191,192,208
1, 2, 21, 68, 75,84,85,95, 110,
128,130,189,191,193,208
74,77
183
167
167
41
121
114,115,119,126
169
xii Tabte of cases
Brown vJamaica, Cornrnunication 775/1997, UN Ooc. CCPR/C/6510/775/1997,11 May 1999
Burrel vJamaica, Cornrnunication 546/1993, UN Doc. CCPR/C/5710/54611993, 1 August 1996
Chambalo v Zambia, Cornrnunication 856/1999, UN Ooc. CCPR/CI78/0/856/1999, 30 July 2003
Coilins v Jamaica, Cornrnunication 240/1987, UN Doc. A/47/40, 1Novernber 1991
Edwards v Jamaica, Cornmunication 529/1993, UN Doc. CCPR/CI60/0/529/1993, 19 January 1993
Francis v Jamaica, Cornmunication 606/1994, UN Doc. CCPRICI54/01606/1994, 25 July 1995
Gridin v Russian Federation, Comrnunication 770/1997, UN Doc.CCPR/C/69/770,119,18July2000
Henry and Douglas v Jamaica, Cornmunication 571/1994, UN Doc.CCPR/C/57/0/571/1994, 25 July 1996
Hylton v Jamaica, Comrnunicatlon 407/1990, UN Doc. A/49/40, 8July 1994
Johnson v Jamaica, Communication 588/1994, UN Doc. CCPR/CI56/0/588/1994,22 March 1996
Johnson v Jamaica, Comrnunication 59211994, UN Doc. CCPR/CI64/0/592/1994, 25 November 1998
Johnson v Jamaica, Communication 653/1995, UN Doc. CCPR/CI64/0/653/1995, 3 Oecember 1998
Judge v Canada, Comrnunication 829/1998, UN Doc. CCPR/C/7810/82911998, 20 October 2003
Kelly v Jamaica, Comrnunication 253/1987, UN Doc. Al46/40, 8April1991
Kindler vCanada, Comrnunication 470/1991, UN Doc. CCPR/C/4810/470/1991, 30 July 1993
Koné v SenegaL, Communication 386/1989, UN Doc. CCPR/C/5210/386/1989,27 January 1994
LaVende v Trinidad and Tobago, Cornmunication 554/1993, UNOoc. CCPR/C/61/0/554/1993, 17 November 1997
Leslie v Jamaica, Communication 564/1993, UN Doc. CCPR/C/6310/56411993, 7 August 1998
Lubuto v Zambia, Communication 390/1990, UN Doc. CCPR/C/5510/390/1990/Rev.l, 31 October 1995
Mansaraj and Others v Sierra Leone, Communications 839/1998,840/1998 and 841/1998, UN Ooc. CCPR/c/72/0/839/1998, 30July 2001
Mbenge v Zarre, Cornmunlcatíon 16/1977, UN Doc. CCPR/C!18/0116/1997, 25 March 1983
121
121
157,170
121
121
120
157
121
121,157
120
121, 123
157
65
157
58, 64, 65, 92
157,170
121
121
49, 50, 63, 64,156, 157,171,
189157,184
156,175,179
Table of cases xiii
McCordie Morrison vJamaica, Communication 663/1995, UN Doc. 157CCPR/C/64/0/633/1995, 25 November 1998
McLeod v Jamaica, Communication 734/1997, UN Oac. CCPRICI 1576l10/734/1997, 3 June 1998
Muteba v DRC, Communication 124/1982, UN Doc. CCPR/CIl21D1 16912411982, 24 July 1982
Ng v Canada, Communication 469/1991, UN Doc. CCPR/C/49/01469/1991,7 January 1994
Pinto v Trinidad and Tobago, Communication 512/1992, UN Doc.CCPR/Cl571D151l11992, 29 July 1996
Pratt and Margan v Jamaica, Comrnunications 210/1986 and 22511987, UN Doc. A/44/40, 6 April1989
Reid v Jamaica, Cornmunication 250/1987, UN Doc. CCPR/C/391D!l50/1978, 21 August 1990
Rolando vPhilippines, Carnmunication 1110/2002, UN Doc. CCPRICl8110/1110/2002, 8 Oecember 2004
5immonds v Jamaica, Communication 338/1988, UN Doc. CCPRICl46/01338/1988, 19 November 1992
5imms v Jamaica, Communication 541/1993, inadmissíbilitydecision 01 3 April1995, UN Doc. CCPR/C/53/D/541 11993, 4 Aprll1995
Stephens vJamaica, Communication 373/1989, UN Doc. CCPR/CI55/0/373/1989,18 October 1995
Thompson v Saint Vincent and the Grenadines, Communicatíon806/1998, UN Doc. CCPRICl70/D/806/1998, October 2000
Whyte vJamaica, Communication 732/1997, UN doc. CCPR/C/6310/732/1997,27 July 1998
Williams v Jamaica, Cornrnunicatíon 609/1995, UN Doc. CCPR/Ct61/0/609/1995, 4 November 1997
Yasseen and Thomas v Guyana, Communication 676/1996, UNDoc. CCPR/Cl611D/676/1996, 31 March 1998
Judicial Committee of the Privy Council
Abbatt v Attorney General al Trinidad and Tobago (1979) 1 WLR1342
De Freitas v Benny (1976) AC 239; (1975) 3 WLR 388
Fisher v Minister of Public 5afety and Immigration (1998) 3 WLR201
Forrester Bowe (Junior) and Trono Davis v The Queen¡ PrivyCauncil Appeal No 44 of 2005, judgment delivered on 8 March 1006[2006] UKPC 10
Fax v The Queen Appeal No 66 01 2000 (2002) 2 AC 284
142, 143
157
118
152,157
51, 63
157
119
120
51
121
121
157
132
132
135
51
51
xiv Table of cases
Guerra v Baptiste, Privy Council Appeat No 11 of 1995, judgmentdelivered on 6 November 1995
Henfie{d v AttornE'Y GE'nE'ral of the CommonweaLth Bahamas(1996) 3 WLR 1079
Pratt and Morgan v Attarney General af Jamaica et al, PrivyCouncll Appeal No 10 of 1993, judgment delivered on 2 November1993
Reyes v The Queen (ZOOZ) Appeal No 64 01 2001, (2002) 2 AC 235
Reckley v The Minister of Public Safety and Immigration andOthers (1996) Z WLR Z81
Ri/ey and Others v Attorney General of Jamaica and Another(1982) ZAll ER469
Roodal v The State af Trinidad and Tobago Privy Council AppealNo 18 01 2003; [2003] UKPC 78
The Queen v Hughes Appeal No 91 01 2001 (Z002) 2 AC Z59
European Court of Human Rights
Allenet de Ribemont v France (1995) 20 EHRR 557
Collozzo and Rubinat v Italy (1985) 7 EHRR 516
Delcort v Belgium (1970) 1 EHRR 355
MeCann and Others v United Kingdom (1995) Series A, No 324,Application No 18984/91
Oca/an v Turkey, Application No 46221/99, Judgment of 12 March2003 (2003) 7 Amicus Journal 24
Soering v United Kingdom (1989) Series A, Vol 161 ; (1989) 11 EHRR439
Yagci ond Sorgin v Turkey (1995) 20 EHRR 505
European Commission on Human Rights
Greek case, Opinion of 5 November 1969, YB XXII 186
Ireland v United Kingdom (1978) Z EHRR 25
Inter-American Court of Human Rights
Hilaire et al v Trinidad and Tobogo, 21 June 2002, Series C, No 94
Inter-American Commission on Human Rights
Aitken v Jamaica, Case 12.275, Report No 58/02, 21 October2002238
Andrews v United States, Case 11.139, Report No 57/96, 6December 1996, OEA/Ser.LIV/11.98 doc. 6 rey. 13 April1998
135
135
114,118,119,131,133,134,
135, ZZ3
51
135
127, 133, 136
51
51
150
150
150
26
27, 124
Z3, 119, lZZ,126
150
97
97
5Z
5Z, n, 117,186
71,162
Table al cases xv
Baptiste v Grenada, 13 AprH 2000, Report No 38/00 52
Beazley v UnHf?d 5lates, Case 12.412, Report No 101/03, 29December 2003
Case 9647 v United 5tatt's, Resolution No 3/87, 22 September1987
Case 10.037 v Argentina (1989) IAYHR 52
Domingues v United States, Case 12.285, Report No 6Z102, AnnualReport of the {nter-American Commission on Human Rights (2001)
Downer and Tracey v Jamaica, 13 Apríl 2000, Report No 41/00
Edwards v The Bahamas, 4 Apríl 2001, Report No 48/01
Graham v United States, Case 11.193, Report No 97/03, 29December 2003
Sewell v Jamaica, Case 12.347, Report No 76/02, 27 December2002
Thomas v United States, Case 12.240, Report No 100/03, 29December 2003
Other national courts
Ahmed v State of Maharashtra AIR 1985 se 231 (se, India)
Bacan Singh v State af Punjab (1983) 2 SeR 583 (se, India)
CampbeH v Wood (1994) 18 F.3d 662 (Se, USA)
Canada (Minister af Justice) v Burns and Anather (2001) SCC 7;(2001) 5 LRe 19 (se, eanada)
Coker v Georgia (1977) 433 US 584 (se, USA)
Decisian 23/1990, 24 October 1990 (ce, Hungary)
District Attorney for the Suffolk District v Watson (1980) 411 NE2d 1274 (Mass.) (SJe, Massachusetts)
Francis CotaUe Muflin v The Admínístrator, Uníon Territory afDelhi AIR 1983 se 746 (se, India)
Furman v Georgia, (1972) 408 US 238 (Se, USA)
Gregg v Georgia (1976) 428 US 153 (se, USA)
Kindler v Canada (Minister of Justice) (1993) 4 LRe 85 (SC,Canada)
Lockett v Ohio (1978) 438 US 586 (SC, USA)
Louisiana v Wilsan (1996) WL 718217, 13 December 1996 (se,Louisiana)
Madhu Mehta v Union of india (1989) 3 SeR 775 (se, India)
Prasecutar v KUnge (1946) 13 Ann. Dig. 262 (SC, Norway)
41,72
121
lb7
41,72
52
52
41,72,158
52,72
41,72
137
80
145
91,92
48, 189
28, 91,93
129, 138
136
98, 188
9a
92
50
48
137
22
xvi Table of cases
R v Hame Secretary, Ex parte Bugdaycay [1987] Ae 514, [1987J 1AlI ER 940 (HL) at 5314 (AC) (Hause of Lords, England)
Reference re Ng Extradition (Canada) (1993) 4 LRe 133 (Se,eanada)
Raberts v Lau;siana (1977) 431 US 633 (se, USA)
Raper v Simmans, Judgment of 1 March 2005 (se, USA)
Sher S;ngh and Others v The State af Punjab (1983) 2 seR 583 (SC,India)
South Dakata v North Carolina (1904) 192 U5 268 (Se, USA)
Sumner v Shuman (1987) 483 U5 66 (se, USA)
The People v Anderson (1972) 6 Cal 3d 628 (Se, California)
Treven;ben v State of Gujarat (1989) 1 SeJ 383 (Se, India)
Vatheeswaaran v State of Tamil Nadu AIR 1983 se 361 (se, India)
Woodson v North Carolina (1976) 428 US 280 (Se, USA)
---_..__.~- ----------------
57
92
50
41
136
78
50
129, 137
136
136
50
Table of selected statutes
Cameraon
2004 Decree No 2004/344 of 29 December
1990 law No 90/61 of 19 Oecember
1972 Penal Code Amendment Ordinance No nl16
1967 Penal Code, Law No 67-LF-1 of 12 June
Egypt
1998 Children's Act (No 12)
Ethiopia
1957 PenalCode
Ghana
1960 Criminal Code (Act 29)
1960 Criminal Procedure Code (Act 30)
Kenya
1985 Penal Code of Kenya
Lesotho
2002 Criminal Procedure and Evidence Act (No 10)
2003 Sexual Offences Act No 3
Mali
Penal Code Act No 01-079 of 20 August 2001 of Mali
Nigeria
1990 Criminal Code Act (Cap 77) laws of the Federation ofNigeria
1990 Criminal Procedure Act (Cap 80) Laws of the Federation ofNigeria
1990 Penal Code Act (Cap 345) Laws of the Federaban ofNigeria
xvii
6,204
45
45
40
42
40,42,45, 110
16
41,42, 173
45
173
16
45
16,45
42
16
xviii rabie of seleeted statutes
Sierra Leone
1965 Criminal Procedure Act
South Africa
1977 Criminal Procedure Act 51
41,174
85
Sudan
1991
1991
Criminal Procedure Act
Penal Code of Sudan
40,43
42,44,45,187
Swaziland
1938 Criminal Procedure and Evidence Act No 67
Tanzania
1985 Criminal Procedures Act
1990 Penal Code of Tanzania, as amended by Act No 3
Uganda
1971 Trial on Indictments Decree
Zambia
1990 Penal Code of Zambia, as amended by Act No3
16
185
49
41
45
L
Table of African national constitutions
1975 Constitutional Law of the Republic of Angola (as amended on 26 August 1992)
1992 Constitutional Law of the Republic of Cape Verde (as amended in 1999)
1969 Constitutional Proclamation of Libya (as amended on 2 March 1977)
1976 Constitution of Algeria (as amended on 28 November 1996)
1966 Constitution of ~otswana (as amended in 1999)
1991 Constitution of Burkina Faso (as amended on 11 April 2000)
1992 Constitution of 6jibouti
1963 Constitution of Kenya (as amended in 1999)
1993 Constitution of Lesotho (as amended in 2001)
1992 Constitution of Mali
1968 Constitution of Mauritius (as amended in 2001)
1991 Constitution of Sierra Leone (as amended in 1996)
1971 Constitution of the Arab Republic of Egypt (as amended on 22 May 1980)
1994 Constitution of the Central African Republic
1994 Constitution of the Federal Democratic Republic of Ethiopia
1999 Constitution of the Federal Republic of Nigeria
1999 Constitution of the Fifth Republic of Niger
1992 Constitution of the Fourth Republlc of Togo
1991 ConsUtution of the Gabonese Republic (as amended on 22 AprH 1997)
1962 Constitution of the Kingdom of Morocco (as amended on 3 September 1996)
1990 Constitution of ~he People's Republic of Mozambique
1996 Constitution of the Second Republic of The Gambia (as amended in 2001)
1990 Constitution of the RepubUc of Benin
1972 Constitution of the Republic of Cameroon (as amended on 18 January 1996)
1996 Constitution of the Republic of Chad
2000 Constitution of the Republic of Cate d'lvoire
1992 Constitution of the Republic of Ghana (as amended on 16 December 1996)
1984 Constitution of the Republic of Guinea·Bissau (as amended on 4 December1996)
1984 Constitution of the Republic of Liberia
xix
xx Table al AfrJcan national constitutions
1992 Constitution of the Republic of Madagascar (as amended in 1998)
1994 Constitution of the Republic of MalaW1 (as amended in 2001)
1990 Constitution of the Republic of Namibia
2003 Constitution of the Republic of Rwanda
2001 Constitution of the Republic of Senegal
1993 Constitution of the Republic of Seychelles (as amended in 1996)
1996 Constitution of the Republic of South Africa (Act 108)
1998 Constitution of the Republic of Sudan
2001 Constitution of the Republic of the Congo
1995 Constitution of the Republic of Uganda
1991 Constitution of the Republic of Zambia (Act No 1), (as amended in 1996)
1957 Constitution of the Tunisian Republic (as amended in 1991)
1977 Constitution of the United Republic of Tanzania (as amended on 30 June1995)
1979 Constitution of Zimbabwe (as amended in 2000)
1991 Fundamental Law of Equatorial Guinea
1990 Fundamental Law of the Second Republic of Guinea
1993 Interim Constitution of the Republic of South Africa (Act 200)
1975 Political Constitution of Sao Tomé and Príncipe (as amended on 10September 1990)
1997 The Constitution of Eritrea
1991 The Constitution of Mauritania
2001 Transitional Constitution of the Republic of Burundi
I
Table of international instruments
African human rights system
1981 African Charter on Human and Peoples' Rights
1990 African Charter on the Rights and Welfare of the Child
2000 Constitutive Act of the African Union
Z003 Protocol to the African Charter on Human and Peoples'Rights on the Rights of Women in Africa
United Nations human rights system
1951 Charter of the Nuremberg Tribunal
1945 Charter of the United Nations
1984 Conventioo against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment
1989 Convention on the Rights of the Child
1949 Geneva Conventioo relative to the Treatment of Prisonersof War of 12 August 1949 (Third Geneva Conventioo)
1949 Geneva Convention relative to the Protection of CivilianPersoos in Time of War of 12 August 1949 (Fourth GenevaConvention)
1966 lnternational Covenant on Civil and Political Rights
1966 Optional Protocol to the International Covenant on Civiland Political Rights
1977 Protocol Additional to the Geneva Conventions of 12August 1949, and relating to the Protection of Victims ofInternational ~rmed Conflicts (Protocoll)
1977 Protocol Additional to the Geneva Convention of 12August 1949, and relating to the Protection of Victims ofNon-International Armed Conflicts (Protocolll)
1989 Second Optional Protocol ta the International Cavenant onCivil and Political Rights, Aiming at the Abolition of theDeath Penalty
1994 5tatute of the International Criminal Tribunal tor Rwanda
1993 Statute of the Jnternational Criminal Tribunal ter theFarmer Yugoslavia
2002 Statute ot the Special Court tor Sierra Leone
xxi
8, 16, 24, 65,103,158,159,210, 222, 223,
224
16
210
16, 210, 224
35
66, 103
99, 102
22
22
23
3, 57, 60, 62,72,97, 101,
113,151,158,220,224
3
23,39
23,39
3
35
35
35
xxii Table 01 international instruments
1948 Universal De-daration of Human Rights
1963 Vienna Convention on Consular Reli!lt\ons
1969 Vienni!l Convention on the Law of Treaties
1993 Vienna Declaration and Programme of Action
European human rights system
16, ZZ, 60, 66,100, 1m, 151
72, 158
66
60
2000 Charter of Fundamental Rights of the European Union 27
1987 European Convention for the Prevention of Torture and 101Inhuman or Degrading Treatment or Punishment
1950 European Convention on Human Rights 23,26,27,91,97,149,211,
225,2261983 Protocol No 6 to the Convention for the Protection of 23,26,27,211
Human Rights and Fundamental Freedoms Concerning theAbolition of the Death Penalty
2002 Protocol No 13 to the Convention for the Protection of 23, 26, 27, 211Human Rights and Fundamental Freedoms, Concerningthe Abolition of the Death Penalty in AH Circumstances
Inter~American human rights system
1969 American Convention on Human Rights
1948 American Declaration on the Rights and Duties of Man
1990 Protocol to the American Convention on Human Rights toAbolish the Death Penalty
Islamic human rights system
1994 Arab Charter on Human Rights
1981 Universallslamic Declaration of Human Rights
24,35,39,61,68,72,114,
15861
24
24,25
24
One Ilntroduction
By committing ourselves to a society founded on the recognition ofhuman rights we are required to value [the right to life and dignity]aboye all others. And this must be demonstrated by the 5tate ineverything that it does, including the way it punishes criminals. 1
Based on this statement, a eonsideration of the death penalty inAfriea has to take aeeount of human rights. Aeeordingly, Devenish hasstated that the applieation of the death penalty eannot be separatedfrom the issue of human rights. Z Central to this study, therefore, isthe generally aeeepted view that the death penalty is a major threatto fundamental human rights. 3 It is one of the most divisive andimpassioned human rights issues throughout the world.4This view hasbeen supported by the United Nations (UN) Commission on HumanRights (UNCHR) - now the Human Rights Couneil - whieh hasexpressed its eonvietion that the 'abolition of the death penaltycontributes to the enhaneement of human dignity and to theprogressive development of human rights'. 5 Therefore, the deathpenalty is treated in this book as a human rights issue. In support ofthis, Commissioner Chirwa, at the 36th ordinary session (2004) of theAfriean Commission on Human and Peoples' Rights (AfricanCommission), openly stated that the death penalty was a human rightsissue.6
2
4
6
Justice Chaskalson in S v Makwanyane (1995) 3 5A 391 (CC) para 144, hereinafterreferred to as Makwanyane (1995). See chapters three and four fer a discussion ofthe case.G Devenish The application af the death penalty in South Atrico: Its historicaland jurisprudential evo(ution and background and its relationship withconstitutional and political reform (1990) 17.5uch as the right to life and the right oot to be subjected to cruel, inhuman ordegrading treatment or punishment and fair trial rights.T Fine 'Moratorium 2000: An international dialogue toward aban on capitalpunishment' (1999) 30 Columbia Human Rights Law Review 421.This conviction was expressed in the UNCHR Resolutian 1997/12 of 3 April1997and has been reiterated by the UNCHR in Resolutian 1998/8 af 3 April 1998.Recently, in Resolution Z005/59 of ZO April Z005 (UN Doc. E/eNA/Z005/L.10/Add.17), the UNCHR also candemned the death penalty as a violation of humanríghts declaring that abolitian is essential far the protection of the right to life.The United Nations Special Rapporteur on extrajudicial, summary or arbitraryexecutions, in suppart of the aboye conyiction, has emphasised that 'theabolition of capital punishment is most desirable in order fuUy to respect theright to life' (see Report by the Special Rapporteur on extrajudicial, summary orarbitrary executions, UN Doc. E/CNA/1997/60, 24 December 1996, para 79). Inthe Special Rapporteur's Z005 report to the UNCHR (UN Doc. E/CNA/Z00517), hereiterated that the use of the death penalty is potentiatly inconsistent with therespect for the right to life.The aboye statement made during the session is on file with the author.
9
78
2 Chapter One
Defining the death penalty as a human rights issue has beenresisted by some countries that retain and use the death penalty.These countries reject the argument that judicial execution violatesbasic human rights and regard their criminal justice system as amatter of national sovereignty reflecting their cultural and religiousvalues.7 At the 57th session of the UNCHR, a representative of Libyastated that 'the death penaltl concerns the justice system and is nota question of human rights'. Similarly, Singapore and Trinidad andToba~ have asserted that the death penalty is not a human rightslssue.
Nonetheless, as seen in chapters three, four and five of this book,the death penalty has been held to be a violation of human rights the right to life, the right not to be subjected to cruel, inhuman ordegrading treatment or punishment, and the right to a fair trial.Implementation of the death penalty is irreversible, and in the caseof an erroneous judgment, can lead to the execution of the innocent.At the international level, a broader understanding of human rift¡htshas led to the abolition of the death penalty in some countries. InAfrica, human rights considerations were the basis for the abolition ofthe death penalty in South Africa, in the landmark judgment passedby the South African Constitutional Court - S v Makwanyane - inwhich it declared the death penalty unconstitutiona1. 11
There is therefore good evidence to support the view that thedeath penalty is a human rights issue, and that its abolition is linkedto the development of, and respect for, human rights. 12 In otherwords, its abolition is a central theme in the development ofinternational human rights law. In view of the aboye, the use of thedeath penalty in Africa and elsewhere is increasingly becoming anobstacle to the realisation of justice and the development of humanrights.
1 Nature and magnitude of the problem in Africa
Generally, as Hood points out, it seems that there is nothing new tosay about the death penalty, as the arguments remain essentially the
R Hood The death penalty: A worldwide perspective (2002) 18.R Hood 'Introduction - The importance of abol1shing the death penalty' inCouncil of Europe, Death penalty: Beyond abolition (2004) 17.See e Dieter, 'The death penalty and human rights; US death penalty andinternational law' http://www.deathpenaltyinfo.org/oxfordpaper.pdf (accessed16 May 2004).
10 For example, the death penalty was abolished in Switzerland and Spain on human11 rights grounds. See Dieter (n 9 aboye).12 See generaUy, Makwanyane (1995).
Hood (n 7 above) 22.
l!
I1
i!
I
Introduction 3
same. 13 However, the nature of the debate has moved on. Proceduralguarantees to reduce the risk of arbitrariness in legal procedure havebeen included in the debate. More convincing evidence is beingintroduced in new studies regarding the shortcomings of the deathpenalty. This will help the move towards abolition. Greater emphasison the human rights perspective with regard to the death penalty willadd substantially to the moral force furthering the abolitionistmovement. Therefore, discourses on issues regarding the deathpenalty in Africa are becoming more relevant as the death penalty isseen to be a majar threat to human rights.
In this book, the following questions are tackled: In what waysdoes the current operation of the death penalty in African statesconflict with human rights? What is obstructing challenges to thedeath penalty in Africa? 15 it appropriate for African states to join theinternational trend towards the abolition of the death penalty?
The focus of the book is on Africa because the death penalty inAfrica, as ríghtly stated by Van ~l Smit, is an issue that one should beparticularly concerned about. 1 First, Africa is seen as one of thedeath penalty regions in the world, as most African states still retainthe death penalty in their statutes. 15 Only 13 African states haveabolished the death penalty in law and practice. 16 Out of the 60countries that have ratified the Second Optional Protocol to theInternational Covenant on Civil and Polítical Rights (ICCPR), whichaims at the abolition of the death penalty, only seven are Africancountries.17 Thís raises questions about the commitment of someAfrican states to human rights standards and in some cases, their de{acto abolitionist status.
Second, most African states still retain the death penalty despitegrowing international human rights standards in general,18 and
13 Hood (n 7 aboye) 7.14 D van Zyl Smit 'The death penalty in Africa' (2004) 4 African Human Rights law
Journal115 Other death penalty regions in the world include the United States of America
(USA) and China.16 See chapter two for the countries that have abol1shed the death penalty.17 The Second Optional Protocol was adopted by the UN General Assembly on 15
December 1989, entered into force on 11 Ju(y 1991 (GA Res. 44/128, UN Doc Al44/49(1989». The African countries that have ratified this Protocol areMozambique (21 July 1993), Namibia (28 November 1994), Seychelles \15Oecember 1994), Cape Verde (19 May 2000). South Africa (28 August 2002),Ojibouti (5 February 2003) and Liberia (16 September 2005). lt should be notedthat Sao Tomé and Príncipe (6 September 2000), and Guinea-Bissau (12 September2000) are signatories to the Protocol. The ICCPR was adopted by the UN GeneralAssemb\y in 1966, entered into force in 1976 (GA Res. 2200A, UN Dac A/6316(1966».
18 GeneraUy, the above standards are relevant as mast African states are parties tomajar internationa\ human rights instruments, sorne of which aim at limiting theimposition of the death penalty. For the status of ratification of internatianal andregional (African) human rights instruments by African statesJ see e Heyns (ed)Human rlghts In Afrlca (2004) 48 &106.
4 Chapter One
standards on the abolition or limitation of the death penalty inparticular. These latter international human rights standards havehad only a limited impact on most African states partly because of thegeneral perception of international law in African states as a threatto sovereignty. Governments guard their sovereignty closely19 andretentionist governments view such standards as a threat to theirsovereignty, thus are hesitant to implement them. The impact ofinternational human rights standards at the domestic level has beenlimited by a low level of implementation of human rights norms (forexample in Egypt and Zambia), in addition to the widespreadignorance of the aboye standards among lawyers and civil societies(for example in Egypt).20
Third, the discrepancies between international law and domesticlaw with regard to the death penalty are very apparent and disturbingin sorne African countries. For example, in Rwanda and Sierra Leonethose charged with the most heinous crimes by national courts can besentenced to death, while in similar cases the charged persons cannotbe sentenced to death under international criminal tribunals. Thepenalties to be imposed by the lnternational Criminal Tribunal forRwanda (ICTR) and the SBecial Court for Sierra Leone (SCSL) arelimited to imprisonment. 1 However, the national courts of bothcountries can impose the death penalty, as it is retained in theirrespective penal statutes.zz Furthermore, the death penalty debatein other regions, for example the United States of America (USA), hasbeen fuelted by the use of new technologies, particularly DNA testing,to show that innocent persons are undeniably sentenced to death. Butthese technologies are new to Africa.
Fourth, obstacles to the abolition of the death penalty, such asclaims of sovereignty and the formulation of constitutional provisionson the right to life and the prohibition of cruel, inhuman or degradingtreatment or punishment, are particularly severe in Africa. As seenaboye and in subsequent chapters, broader political (non· legal)factors, such as claims of sovereignty against international law andnarrow ideas about morals and culture, affect the death penaltysituation in Africa. On sovereignty, for example, it would beinappropriate to respect the sovereignty of countries where there is apossibility of the death penalty being imposed in the absence of a fairtrial. However, since sovereignty affects the death penalty in Africaand an epistemic corpus of extradition policies which guaranteeshuman rights is still to be formulated in Africa, the ability of sorne
19 e Heyns ft: F Viljoen The impact of the United Nations human rirghts treatfes onthe domes tic level (Z002) 31.
20 For factors limiting the impact of UN human rights treaties on the domestic leve{,see Heyns &. VHjoen (n 19 aboye) 31-32.
21 Artide 23 of JCTR Statute and artide 19 of SCSL Statute, respectively.22 See Heyns (n 18 aboye) 60-90 and S Tejan-Sie 'The death penalty: A growing
human rights issue' in Concord Times (Freetown) 11 October 2004.
Introduction 5
African governments to provide effective diplomatic protection totheir citizens in foreign countries where they face the death penaltyor the possibility of it being imposed is questionable. The case ofKaunda and Others v The President of the Republic of South Africaand Others23 illustrates how sorne governments give priority to'sovereignty' over the protection of human rights where the issue 01the death penalty is raised. The South African government seems tohave departed from the approach adopted by an increasing number 01states (as seen in the subsequent chapters) that it is inappropriate lora state to respect the sovereignty of countries over providingellective diplomatic protection to its citizens in foreign countrieswhere they lace the death penalty or the possibility 01 it beingimposed. The South African government argued in the Kaunda casethat it is restricted by its loreign policy Irom providing consularservices to those who land in trouble outside the country's border.One of the constitutional issues in this case raises the questionwhether the Constitution of South Africa binds the state to take stepsto protect the applicants (South African citizens, who were being heldin Zimbabwe on charges 01 conspiring to topple the president ofEquatorial Guinea) in relation to, ínter alia, the possibility of theirextradition to Equatorial Guinea to lace charges which could result,il they were to be convicted, in their being sentenced to death, 24 TheSouth African Constitutional Court, in dismissing the claim that thegovernment be directed, as a matter 01 extreme urgency, to seek anassurance that the death penalty would not be imposed, stated thatas long as the proceedings and prescribed punishments are consistentwith internationallaw, South Africans who commit offences in loreigncountries are liable to be dealt with in accordance with the laws 01those countries, and not the requirements of the Constitution 01 SouthAfrica, and are subject to the penalties prescribed by such laws. 25 TheConstitutional Court apparently gave priority to respecting thesovereignty of Equatorial Guinea over protecting the human rights 01the applicants. The Court also seems to have departed from itsposition in Mohamed v President of the Republic of Sauth Africa andOthers, discussed in chapter three
Fifth, the ways of addressing the death penalty and resistance toit are specific to Africa and have to be contextualised. Sorne countrieshave shown resistance to abolition or still have the lirm intention 01retaining the death penalty. For example, resistance to the abolitionof the death penalty was clear from the statements made by therepresentatives 01 Egypt, Sudan and Nigeria, in response toCommissioner Chirwa's statement mentioned aboye, during the 36th
23 Kaunda and Others v The President of the Republic of South Africa and Others24 200410 BCLR 1009 (CC),
As above, para 19.25 As aboye, paras 100 & 102.
JO
26
"
6 ChaptE'r One
ordinary session (2004) of the African Commission. For instance, therepresentative of Egypt stated that the abolition of the death penaltyis against Shari'a law and that there is no international consensus onit.
Also, in an attempt to achieve justice and reconciliation, thegovernment of Rwanda has signalled its intention to retain the deathpenalty, when it opposed the UNCHR's Resolution in April 1999 infavour of a moratorium on the death penalty. l6 It is not surprising thatRwanda opposed the UN Resolution as it came at a time when thecountry was trying to bring the perpetrators of the 1994 genocide tojustice, and one of the punishments for such perpetrators was thedeath penaltyY The abstention of Cameroon, the OemocraticRepublic of Congo (ORC), Senegal and Zambia from voting for theabolition of the death penalty during the 58th session of the UNCHRcould be seen as signalling an intention to retain the death penalty intheir laws. lB It could be said that the reason for the ORC not votingfor abolition was because it was going through a period of politicalinstability due to war and a state of emergency. Similarly, Senegal(now an abolitionist state) could not vote for abolition at the timeowing to political instability caused by rebels fighting in the country.These countries could not guarantee that they would abide by the lawand saw the death penalty as necessary when those who rebel are tobe brought to justice. However, the same cannot be said forCameroon29 and Zambia. JO
'United Nations panel votes for ban on the death pena\ty' New York r;mE's 29April 1999. Twenty-three people were executed in Rwanda between 1996 and2000 (Hood (n 7 aboye) 92) and 660 people were sentenced to death between1997 and 2001 (Le Ve,diet No 34 January 2002 8).
27 By 2005, about 10 000 prisoners haye so far been sentenced to death forparticipating in the 1994 genocide (E Nakkazi 'Kagame urged to end deathpenalty' The fa'it African (Nairobi} 3 January 2005).See J Kamau 'Kenya shuns UN vote 01'1 the death penalty'http://www.africaonline.com/site/articles/1 ,3,47286.jsp (accessed 10 JulylOOJ).
29 Neyerthe(ess, Cameroon's resistance seems to be lessening, given that in 2004 anew decree was passed which provides for the commutation of the deathsentences of persons originaUy sentenced to death before the date of signature ofthe decree, with the exception of repeat affenders and persons sentenced for,inter alia, assault causing the death of a minor, and theft with violence entailingthe death of a persono See Article 1 af Decree No 20041344 of 29 December 2004on the commutation and remission of sentences. The decree was reproduced inCameraon Tribune No 8258/4457 of 31 December 200413.It should be noted that, though Zambia abstained, the president, LevyMwanawasa, is reported effectively to have outlawed capital punishment byrefusing to sign executions and has commuted the sentences of over 50 prisonersto tife imprtsonment. See Legalbrief News Diary 23 May 2003 http://www.legalbrief.co.za (accessed 10 July 2003).
I
J
Introduction 7
Sixth, with the current 'war on terrorism' in general and thealarming increase in terrorist activities in Africa, discourses on thedeath penalty in Africa are becoming even more relevant.]l The 'waron terrorism' in some African states has led to an increase in thenumber of offences punishable by death. For example, following thesuicide attacks in Casablanca on 16 May 2003, the Parliament ofMorocco approved an anti-terror law that broadened the definition ofterrorism and increased the number of offences punishable bydeath. 32
Lastly, it is disturbing that the African Commission's position onthe death penalty remains unclear. The Commission has notpronounced itself on the death penalty as such. This could mainly beattributed to the fact that it has not been presented with a directchallenge to the death penalty.
However, some commlSS10ners have openly stated theiropposition to the death penalty or that they favour abolition. Forexample, the late Commissioner Beye, at the Commission's 12thsession (1992), openly and explicitly identified himself as anabolitionist by stating that he was personally opposed to the deathpenalty.]] Also, at the time he was commissioner, formerCommissioner Umozurike indicated, though not explicitly, his interestin the abolition of the death penalty34 As seen aboye, CommissionerChirwa has made it clear that she favours abolition of the deathpenalty in Africa. Recently, during the Commission's 36th ordinarysession (2004), the death penalty, appearing for the first time on theCommission's agenda, was one of the issues discussed. CommissionerChirwa initiated debate about its abolition in Africa, and urged theCommission to take a clear position on the subject. Accordingly, thedeath penalty has been included on the Commission's agenda forsubsequent sessions.
Furthermore, the African Commission, in its recent decision inInterights et al (on behallol Bosch) v Botswana,]5 acknowledged thedevelopment of internationallaw and the trend towards the abolition
-
31
J233J4
35
With regard to terrorism and the death penalty in Africa, see J Yorke 'Extradition,terrorism and the death penalty in Africa: charting through the labyrinth'. Paperpresented at the First lnternational Conference on the Application of the DeathPenalty in Commonwealth Africa, in Entebbe, Uganda, 10 - 11 May 2004. Thepapers and country reports presented at this conference are ayailable at http://www.biicl.org/deathpenalty.Hands Off Cain The death penalty worldwide: 2004 report (2004) 109.Examinatlon af State Reports, Vol 3 (1995) 32 & 79.F Viljoen 'Introduction to the African Commission and the regional human rightssystem' in Heyns (n 18 aboye) 400.Interights et al (on behaf{ 01 Bosch) v Botswana, Communication 240/2001, 17thAnnual Activity Report: 2003 - 2004 (African Commission); (2003) AHRLR 55(ACHPR 2003), hereinafter referred to as Bosch (African Commissien). This case isdiscussed in chapters feur, fiye & six.
10 Chapter One
accessible to a researcher's direct observation, he or she relies oninformation from people who have experienced certain phenomena toreconstruct them for others. In this instance, the information fromthose who experienced certain phenomena was gathered throughgeneral discussions with them.
3 Scope of the book
There are inherent dangers in generalising about Africa, as Africa isnot a homogeneous continent. Therefore, this book does not claim toprovide an exhaustive analysis of the death penalty in Africa, as it ispossible that some of the issues discussed may not represent generalAfrican views, and furthermore not every part of Africa is coveredcompletely, especially not 'francophone' Africa. However, despitethe differences among African states, there are some general trends.Therefore, this book highlights the most important issues with regardto the death penalty in Africa as opposed to providing acomprehensive analysis of the death penalty situation in thecontinent.
Accordingly, the book is not a country-by-country analysis of thedeath penalty, nor an analysis of the approach of a select few Africanstates. Experiences and examples are drawn from a number of statesas they become relevant to substantiate an argument or issue beingdiscussed, with the intention of providing a general overview of thecurrent status and operation of the death penalty in Africa and itshuman rights implications. In other words, the examples or statesreferred to depend on the issue in question. For example, indiscussing the death row phenomenon, experience is drawn fromAfrican states that have dealt with the death row phenomenon;likewise, in discussing the issue of a mandatory death penalty,examples are drawn from African states that still retain mandatorydeath sentences. Furthermore, since the book adopts a human rightsapproach, drawing on experiences and examples from certain Africanstates is more appropriate as not all African states have addressed theissue of the death penalty in relation to human rights. Therefore, inthis regard reference is made to African states that have addressedthis issue.
Also, because this book adopts a comparative approach, the deathpenalty as a whole, and in relation to the right to life, the prohibitionof cruel, inhuman or degrading treatment or punishment, and fairtrial rights in other regional human rights systems is also considered.46
Since one of the objectives of the book is to contribute to the
46 In additlon, specific African human rights instruments are juxtaposed with theirinternational equivatents (that is, with their equivalents under the UN and otherregional human rights systems).
Introduction 11
discourse on the importance of abolishing the death penalty in Africa,it is necessary to take notice of other human rights systems (the UN,European and Inter-American systems) and international trends inidentifying ways of furthering abolition in Africa.
Moreover, it is important to consider the position in other humanrights systems, especially their decisions on the subject, as foreigndecisions have important persuasive value. The views of the UNHuman Rights Committee, regional bodies, and other (non-African)national courts have received support from some African courts, suchas the South African Constitutional Court, the Supreme Court ofNigeria, the Supreme Court of Zimbabwe, the Court of Appeal ofBotswana and the High Court of Tanzania (as seen in subsequentchapters). Overall, it is important to consider international law, asAfrican states are parties to numerous international treaties. Article60 of the African Charter also requires that inspiration be drawn fromother international law on human and peoples' rights in interpretingthe African Charter. Thus, a discussion of how other human rightssystems and national courts have dealt with the death penalty isuseful, as they act as persuasive authority for African states.47
4 limitations of the book
To begin with, since this book is directed towards the current trendson the death penalty in Africa as a whole, there is the danger ofovergeneralisation. Africa is not a homogeneous continent and, as aresult, general trends are not always representative of countryspecific issues. Consequently, the book does not provide anexhaustive analysis of the death penalty in Africa, but highlights themost important issues, which are then extrapolated to Africa as awhole. In any event, conclusions can still be drawn on the basis ofgeneral trends and not only on a totality of complete data.
Second, the scarcity of, and inaccessibility to, some data andmaterials, especially those on the number of death sentences passedor executions carried out, have been limiting factors. It has not beenpossible to present a completely accurate picture of the deathpenalty in Africa because of the lack of systematic statistical data onthe subject, and because states do not take seriously their obligationto report their practices to the UN as requested, either by failing to
47 The need to consider other human rights systems and national courts (theirdecisions and opinions) is a1so justified by the fact that, while the death penaltyhas been the subject of much discussion and literature in these systems, this hasnot been the case in Africa. Thus, their experiences that further the course ofabolition would be very useful for Africa.
12 Chapter One
report regularly or by glVlng false information. 48 Furthermore,information on the death penalty in sorne African states is sometimesnot published, which is exacerbated by the fact that accurate criminalstatistics do not exist in sorne of these states. Access to decisions byAfrican national courts on the death penalty has been difficult toachieve as very few law report series are published in African states.In sorne states where law report series are published, they are usuallynot kept up to date. Thus, one had to resort to personal contacts ingathering information on the subject. Also, the limited number ofpublications on the subject meant that one had to rely on limitedsecondary sources.
Third, the categorisation of African states into abolitionist, detacto abolitionist and retentionist states might be problematic, as thishas been based on data known to the author. Since at times statisticson the death penalty are not published, sorne states might be referredto as, for example, retentionist, but a reader from that country mightfeel it should not be categorised as such, as he or she may have moreexact or intimate knowledge or information of a particular case.
5 Plan of the book
This book comprises six chapters, with chapters three, four and fivefocusing mainly on the human rights perspective of the death penaltyin Africa.
Chapter one is the introductory chapter, which sets out the natureand magnitude of the problem regarding the death penalty in Africa.Chapter two provides an overview of the history, current status andapplication of the death penalty' in African states. Chapter threeexamines the right to life and its relation to the death penalty inAfrica and considers the protection afforded by various human rightsinstruments at the international and national levels. The chaptershows that the death penalty is a violation of the right to life. Chapterfour analyses the death penalty in Africa in the light of the prohibitionof cruel, inhuman and degrading treatment or punishment, both atthe international and nationallevels. The death row phenomenon andmethods of execution are then considered, which establishes that thedeath penalty in Africa is cruel, inhuman and degrading. Chapter fiveexamines fair trial rights and their relation to the death penalty inAfrica. The chapter further discusses the consequences of not
48 Under the UN system, article 40 of the ICCPR requires state parties to submitreports on the measures they have adopted to give effect to the rights recognisedin the Covenant and on the progress made in the enjoyment of those rights. Also,under the African system, article 62 of the African Charter requires each stateparty to submit a report every two years on the legislative and other measurest<1ken with a view to giving effect to the rights and freedoms recognised andguaranteed by the Chartee
-
lntroduetion 13
adhering to lair trial standards, such as increased risk 01 execution ofthe innocent, and disproportionate and arbitrary use 01 the deathpenalty, which clearly suggest that African states should considerabolishing the death penalty. Chapter six, based on the discussions inthe previous chapters, establishes the appropriateness of Africanstates joining the international trend towards the abolition of thedeath penalty. It provides recommendations geared towards theabolition 01 the death penalty in Africa and the implementation ofthese in practice.
Two I History. current status andapplication of the death penaltyin Africa
1 Introduction
In ancient societies, the acceptance of the death penalty dependedon three principal factors: First, the insignificant value attached tohuman life; second, individual and tribal vengeance, which was seenas just and necessary; and third, the sovereign was both the onlysource of justice and the guardian of peace or public security, withthe right to inflict death in the name of the organised society whichthe sovereign incarnated. 1
In more recent societies, different reasons have emerged whichmake recourse to the death penalty appear necessary. Generally, thedeath penalty has been seen as one of the dramatic symbols of thepresence of sovereignty in states where sovereignty is fragile, and themaintenance of the death penalty in such states is a demonstrationthat sovereignty could reside in the people.2 Also, the death penaltyhas been seen as necessary to safeguard state security. Barishaki, theUgandan commissioner for civil litigation, has argued that the deathpenalty is necessary to safeguard state security by barring errantsoldiers from deserting and killing civilians. 3 The death penalty isretained in Tanzania because the government believes that it has 'apart to play in the society' as a deterrence tool.4 Togo has justifiedthe retention of the death penalty on the basis of the social andpolitical reality of the country at the time the Togolese Penal Codewas drawn up. 5 In Swaziland, King Mswati 111 has justified theretention of the death penalty on the grounds that, if repealed itwould increase the threat of serious crimes such as ritual murder.6 Inresponse to the 1994 motion to abolish the death penalty, some
z
4
6
A Ance! 'The problem of the death penalty' in T SeUin (ed) Capital punishment(1967) 4·5,A Sarat 'Capital punishment as a legal, palltlcat, and cultural fact: Anintroduction' in A Sarat (ed) The killing state: Capital punishment in law, politicsand culture (1999) 5.H Abdaltah 'Army executions necessary' http://aUafrica.com (accessed 23January 2004).3rd periodic report of Tanzania submitted under article 40 of the I((PR, UN Doc.CCPRICIB3IAdd,2. 7 October 1997, para 52.3rd penadic report of Toga submitted under article 40 of the ICCPR, UN Doc.CCPR/C/TGOI2001/3, 5 July 2001, para 107,D Mavunduse fA new mHlennium free from death penalty in southern Africa?'http://www.sardc.net/editorial/sanf/1999/09/30-09-1999-nf2.htm (accessed 30June 2004).
15
9
7
8
16 Chapter Two
members of parliament in Kenya argued that abolishing capitalpunishment would be tantamount to 'lieensing murder'.7 Thus, theysaw the death penalty as necessary to prevent murder. In addition,Schutte, a former South African member of parliament, has seen thedeath penalty as imperative to uphold law and order, and to ensurerespect and confidence in the criminal justiee system.8
Furthermore, the African Charter makes no mention of the deathpenalty or the need to abolish it.9 Nonetheless, it invites recourse tointernational law on human and peoples' rights, including theUniversal Declaration of Human Rights (UDHR)10 and otherinstruments adopted by the UN. l1 Although falling short of totalabolition, other African human rights instruments at least makereference to the death penalty. The African Charter on the Rights andWelfare of the Child (African Children's Charter)12 and the Protocolto the African Charter on Human and Peoples' Ri~hts on the Rights ofWomen in Afriea (African Women's Protocol)1 place restrietionsregarding the imposition of the death penalty on certain categories ofpersons - persons below 18 years of age and expectant mothers ormothers of infants and young children. Notwithstanding the AfricanCharter's silence on the death penalty, it is provided for in the lawsof Afriean states that still retain it, for example, Ghana, Lesotho,Nigeria and Swaziland. 14
Nevertheless, the existence of the death penalty is questioned, asit is seen as a violation of human rights as argued in chapters three,four and five below. Moreover, some Africans have stated theiropposition to it. For example, Konaré, former president of Mali andChairperson of the Afriean Union (AU) Commission, has on severaloccasions stated his opposition to the death penalty.15 The EthiopianHuman Rights Council has argued that the death penalty is barbarieand described as flawed arguments that claim that it reduces crime in
D Mugonyi a M Njeru 'President Kibaki pardons 28 death row convicts'http://www.santegidio.org/pdm/news2003/26_02_03_b.htm (accessed 18 March2003).P Maduna 'The death penalty and human rights (1996) 12 South African Journalon Human Rights 194.Article 4 prohibits the 'arbitrary' deprivation of life, which sorne could interpretas perrnitting the death penalty.
10 Adopted on 10 December 1948 (GA Res, 217A (111), UN Doc, A/810 at 71).11 Article 60 of the African Charter.12 Adopted in July 1990 and entered ioto force on 19 November 1999 (OAU Doc.
CAB/LEG/24.9/49 (1990). See articles 5(3) & 30(e),1] Adopted by the 2nd ordinary session of the Assembly of the African Union (AU) in
Maputo, 11 July 2003, article 4(2)(j).14 Section 32(a)(vii) of the Sexual Offences Act 3 of 2003 of Lesotho; sections 37(2),
38319(1) & 402(2)(a)(b) of the Criminal Code Act Cap 77 Laws of the Federationof Nigeria 1990 and sections 221, 227 a 515(2) of the Penal Code Act Cap 345Laws of the Federation of Nigeria 1990; section 296(1) of the Criminal Procedureand Evidence Act 67/1938 of Swaziland; and sections 46, 49 ti 180 of the CriminalCode Act 29 of 1960 of Ghana.
15 Amnesty International Amnesty Jnternational Report (2001) 166.
21
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History, current status and application of the death penalty in Africa 17
society.'6 Further. Kamakil, the Kenyan commissioner of prisons, hasstated his opposition to the death penalty in the following words: 'Weare longing for the day Parliament will remove the death penalty fromthe Constitution. Sometimes many people are hanged for wrongsreasons. ,17
This chapter provides an overview of the history, current statusand application of the death penalty in Africa. lt begins by providinga brief global history of the death penalty and its historicalbackground in Africa from a traditional and Western perspective.Then, an analysis of the current status of the death penalty ininternational law, followed by its current status in Africa isundertaken. The scope of the death penalty is discussed next,followed by the question of a mandatory death penalty and the deathsentences and executions between 2000 and 2005.
2 Historical background
The death penalty has been with mankind since antiquity.'8 Globally,it dates back as far as the fifth century BC in the Roman Law of theTwelve Tablets, the Draconian Code of Athens of the seventh centuryBC, and the Hittite Code of the fourteenth century Bc. '9 It was alsopart of the Code of King Hammaurabi of Babylon (eighteenth centuryBC).20
The earliest methods of execution were crucifixion, drowning,beating to death, burning to death and impalement, and later, in thetenth century AD, hanging became the usual method of execution inBritain. 21 In the sixteenth century, methods of execution wereboiling, burning at the stake, hanging, beheading and drawing andquartering. 22 During the eighteenth century, methods of executionincluded burning at the stake, the wheel, the guillotine, hanging andthe garrotte, headman's axe, and later, electrocution, gas chamber,firing squad, hanging and lethal injection. 23
16 'CaH to abolish death penalty in Ethiopia' Moil and Guardfan 3 October 2003.17 Mugonyi & Njeru (n 7 aboye).18 W $chabas The abolition of the death penalty in internationallaw (2002) 363.19 As abOYE.20 The death penalty was codifíed tor 25 crimes. See 'Capital punishment'
http://www.heraldez.com/CP.htm (accessed 4 Juty 2004).See 'Capital cases: History of the death penalty'http://www.georgetown.edu/users/aaa38/capital.htm (accessed 4 July 2004).
22 As aboye. Executions were carried out for such capital offences as marrying aJew, not confessíng to a crime, and treason.
23 Life imprisonment was also starting to be used as a feasíble alternative to thedeath penalty. See 'Capital punishment' (n 20 aboye) .
18 Chapter Two
The 'death penalty' has, arguab1Y, been used since pre-colonialtimes in sorne African societies_2 The penalty for sorcery orwitchcraft, wilful murder, treason and certain types of políticaloffences was death by shooting, s,gearing, hanging, drowning orimpalement of the convicted persono 5The aboye offences were seenin pre-colonial African societies as threatening the security of thecommunity and beyond redress by the payment of compensation tothe victim. 26 The penalty of death was used in, for example, precolonial Uganda,27 Nigeria28 and Sierra Leone. 29 However, death wasimposed when the 'criminal' was caught in the act, and in sorne casesthe infliction of death was a consequence of practices such as 'trialsby ordeal' used to ascertain guilt (discussed below).30 Further, therewas much relíance on compensation, implying that the 'deathpenalty' existed as an exception not as a law. African courts weremuch more ready to promote reconciliation and order compensation_For example, though the Baganda killed a murderer in sorne instances,generally the penalty was the payment of blood moner- 31 The usualmethod of punishment among the Busoga was fines. 2 The Luo ofWestern Kenya and traditional Sudanese societies also resorted to
24
2526
27
28
29
30
3132
It shoutd be noted that as a result of the limited reliable information ontradítíonal African socíeties, much of our understanding of notians of crime andpunishment in such sacieties \s based on research carried out by anthropologists.T Elias The nature of African customary law (195f:,J 260.J Hatchard &. S Coldham 'Commonwealth Africa' in P Hadgkinson ft A Rutherford(eds) Capital punishment: Global issues and prospects (1996) 156.In pre-colonial Uganda, for example, the Langa imposed a mandatory 'deathsentence' on those caught ín the act of witchcraft, incest and sexual aberrations.These offences fell under criminal offences, whlch were consídered offencesagainst the society generally and not compoundable. Homicide (accidental ordeliberate, ímmediate or protracted) was classifíed under civil offences, whichare offences against índividuals and not the socíety and therefore compoundableby a compensatory payment (J Driberg The Lango: A nilotic tribe al U9anda(1923) 209). The Baganda imposed death for murder and adultery (Elias (n 25aboye) 135"136). The Bagisu imposed the death penalty on someone whomurdered and caused the fatal síckness of anather; the Basoga impased it an aconfirmed thief, and the Bakylga far murder. Compensation was also an optianw\th regard to the aboye offences. Among the Basoga, the thief was put ta deathby being speared, whHe with the Bakyiga a murderer was either strangled arburied alive ín the ~rave and beneath the body of his victím (see J Roscoe TheBagesu and other tnbes af the U9anda protectarate (1924) 39"40, 42,102 & 118).Among the Yoruba of Southern Nigeria, death was the penalty for adultery withchief's wives (P Talbot The peaples alsouthern Nigeria (1926) 629). Death wasalso imposed for murder In Western Nigeria. Also, under Sotho tradítional law,notorious stock thleyes were sometímes put to death (P Duncan Satho (aws andcustoms (1960) 112).Death was also a form of punishment (for witchcraft and cannibalism) in pre"colonial Síerra Leone (see the repart of the national coordinator of Sierra Leone,Abdul Tejan-Cale, presented at the F(rst International Conference on theApplication of the Death Penalty in Cornmonwealth Africa in Entebbe, Ugandafrom 10 - 11 May 2004.For example, among the Yoruba-speaking peoples of West Africa, trial by ordealwas used to ascertain guilt. See A Ellís The Yoruba-speaking peoples of the slavecoost of West Africa (1966) 190.EI;as (n 25 aboye) 136.Roscoe (n 27 above) 102.
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History, current status and applicatian al the death penalty in Alrfca 19
compensation, as the murderer of aman was required to marry thewife of his victim. 33 This is because killing the murderer would meanloss of two breadwinners thereby making two families fatherless. Inthe Igbo society, in the case of wilful murder, the murderer could gointo exile and, upon return after a stipulated period and after havingperformed the appropriate sacrifices and made prescribedrestitutions, was integrated into the community. 34 Byamukama writesthat in some African ethnic groups of Western Uganda, Rwanda andnorth-western Tanzania where a murderer could be killed,compensation could be arranged before angry relatives avenged thedeath of the deceased. 35 Further, Soga has pointed out, with regardto the Ama-Xosa (South Africa), that the 'death penalty' was neverimposed for the following reason: 'Why sacrifice a second life for onealready lost?,36 This illustrates that everyone's life is valuable, andeven murderers have to be treated in the light of the value of theirlives. The fact that kings, for example the Sotho King Moshoeshoe,37were opposed to the 'death penalty' brings its validity into question.The death penalty was, therefore, not institutionalised as it is atpresento
If one considers the current operation of the death penalty inAfrica, then referring to the taking of life in pre-colonial Africansocieties as the 'death penalty' is problematic. In other words,conceptually it is difficult to accept the taking of life in traditionalAfrican societies as the 'death penalty'. Death was imposed as aresponse to a crime, when the perpetrator was caught in the actoThere is no concrete evidence to show that the death penalty wasinstitutionalised in African societies or that a murderer, for example,was confined in a place (or prison) awaiting execution. Hence, thedeath penalty in Africa as practised today is not in the Africantradition38 (that is, the present death penalty system is not as it waspractised in traditional African societies), but is as it was introducedby the colonial powers since 'African governments continue to echothe colonial rulers' claims that execution is an appropriate andeffective form of punishment'. 39
The colonial period saw the introduction of a range ofpunishments that were largely unknown to pre-colonial Africansocieties and the adoption of sentencing policies based on principies
JJ T Agostan; May the state kili? (2002) 76.]4 E Aja '(rime and punishment: An indigenaus African experience' in L May et al]5 Legal Philasaphy: Multiple perspectives (2000) 231.
Agostan; (n 33 aboye) 74.]6 Oted in Makwanyane (1995) para 377.]7 Makwanyane (1995) para 378.38 This view has been portrayed by President Olusegun Obasanjo of Nlgeria during
the meeting of the Organisation of African UnUy (OAU) in 1999. See Agastoni (n 33aboye) 76.
J9 Agostan; (n 33 aboye) 77.
4041
4546
20 Chapter Twa
of retribution and deterrence. 40 In some African states, theinstitutionalised system of the death penalty was introduced by thecolonial powers. For example, in South Africa, the death penalty wasbrought by the colonial powers that settled and governed at theCape.41 Crimes that could attract the death penalty included murder,rape, treason, arson, theft, robbery, fraud, sodomy, bestialityandincest. 42 In Dutch settlements (for example, in South Africa), thedeath sentence was used. Judges specified in detail 'gruesome modesof execution designed to produce maximum pain and greatestindignity over the longest periods' and executions were carried out inpublic because the death penalty was seen as a deterrent to crime. 43
With the introduction of British rule in some parts of Africa,customary law was recognised by the colonial authorities if it was notrepugnant to natural justice, equity and good conscience, and notinconsistent with the written law. 44 Throughout most of Britishcolonial Africa codes of criminal law and procedure of very similarorigin were introduced. 45 The penal codes were based on nineteenthcentury English criminal law, and the principles of criminalliability,definition of offences and penalties made no concession to the Africancontext.46 There was a marked reluctance throughout most of Britishcolonial Africa to take into consideration customary notions ofcompensation and restitution.47 Nevertheless, compensation was stillresorted to.48 In Commonwealth African states, the death penalty wasmandatory for murder, treason, certain forms of piracy, and 'blackperil' (the rape of a European woman by an African man), withhanging being the usual method of execution.49 The most commonmethod of execution in the first years of colonial rule was shooting,and executions were carried out in public till the 1930s. 50
In post-colonial Africa, there were no significant changes in penalpolicies, as the policies of independent African governments showed
Hatchard & Coldham (n 26 aboye) 157.See G Devenish The applicatlan af the death penalty in Sauth Afríca: /tshistorical and jurisprudential evalutían and background and its relationship withconstitutianal and political reform (1990) 4; and J Sarkin 'Problems andchaUenges facing South Africa's Constitutional Court: An evaluation of itsdecisions on capital punishment and corporal punishment' (1996) 113 SouthAfrJcan Law Jaurnal 73.
42 Deyenish (n 41 aboye) 4-5.43 Makwanyane (1995), para 384.44 S Coldham 'Criminal justice policies in Commonwealth Africa: Trends and
prospects' (2000) 44 Journal af African Law 219.Hatchard 8: Coldham (n 26 aboye) 156.J Read 'Criminal law in the Africa of today and tomorrow' (1963) 7 Journal ofAfrlcan Law 7.
47 Coldham (n 44 aboye) 220..j8 See generalty Elias (n 25 aboye).49 Hatchard 8: Coldham (n 26 aboye) 157.50 Although the most common method of execution was shooting, death by
beheading continued in Nigeria untH 1936. By the 1930s most executions tookplace in central goyernment prisons (Hatchard 8: Coldham (n 26 aboye) 157).
Histary, curnmt status and appficatian af the death penalty in Africa 21
a remarkable continuity with those of their colonial predecessors andstill emphasised retribution and general deterrence rather thanrehabilitation of the offender. 51 In most countries, for example inNigeria, customary criminal law was abolished and steps were takento incorforate the customary court's structure into the penalsystem. 5 The death penalty remained a punishment and somecountries even extended its scope. 53
3 Status of the death penalty
3.1 Status in international law
Historically, international law was viewed as a law of sovereignstates. 54 However, as Schabas points out, this view evolved in thetwentieth century. He states that international law is no longerrestricted to the rights and obligations of states between themselves,but now encompasses rights and obligations that states undertake torespect vis-a-vis individuals. 55 It has as one of its aims the protectionof the human rights of the individual against his or her owngovernment. Therefore, human rights can be seen as one of theprincipal themes of internationallaw as they have been incorporatedinto it.
Some international instruments merely place restrictions on theuse of the death penalty, while others make no mentian of it. As aresult some people have conceded that the death penalty has notbeen abolished by internationallaw. For example, Malabo of Zambia,who was once president Chiluba's legal adviser, insists that the deathpenalty in Zambia has a constitutional basis and is in line with theICCPR, which reserves the death penalty for the most seriouscrimes. 56 Also, Justice Chaskalson acknowledges the fact that capitalpunishment is not prohibited by public international law in S vMakwanyane. He points out that '[c]apital punishment is notprohibited by public internationallaw, and that is a factor that has to
51 Coldham (n 44 aboye) 223.52 Hatchard & Coldham (n 26 aboye) 157.53 For example, a wide range of economic and political offences was made capital in
Nigeria and Ghana during periods of military rule.54 International law has been defined as a body of rules and principles that are
binding upon states in their relations with one another (J Dugard, Internationallaw: A South African perspectíve (2000) 1). It also includes non-binding rules andprincipies, such as those enshrined in resolutions of, for example, the UN GeneralAssembly.
55 W Schabas 'International tegal aspects' in P Hodgkinson &. A Rutherford (eds)Capital punishment: Global issues and prospects (1996) 17.
56 AFRICANEWS 'Zambia: Prisoners challenge capital punishment' http://lists.peacelink. it/afrinews/msg00190.html> (accessed 12 February 2004).
22 Chapter Two
be taken into account in deciding whether it is cruel, inhuman ordegrading punishment'. 57
Arguably, capital punishment is not prohibited by internationallaw. 58 Article 3 of the Universal Declaration of Human Rights (UDHR),for instance, provides that 'everyone has the right to life, libertyandsecurity of person', but makes no reference to the death penalty.Since most African states still retain the death penalty, they couldread this provision as allowing for its imposition. Article 6(1) of theICCPR is silent on the death penalty. It provides that 'every humanbeing has the inherent right to life. This right shall be protected bylaw. No one shall be arbitrarily deprived of his life.' The ICCPRtherefore allows for the imposition of the death penalty as long as itis not arbitrary, as article 6 of the ICCPR ~oes further to placerestrictions on the use of the death penalty. According to article6(1), the death sentence is acceptable as long as it is not imposed onsomeone below 18 years of age and a pregnant woman is notexecuted. The Second Optional Protocol to the ICCPR does notprovide for absolute abolition of the death penalty, as article 2(1) ofthe Protocol allows states to apply the death penalty in time of warto a conviction for a most serious crime of a military naturecommitted during wartime, if a reservation was made to this effect atthe time of ratification or accession. Also, the UN Convention on theRights of the Child (CRC) does not abolish the death penal~. It merelyprohibits its imposition on persons below 18 years of age. o
Furthermore, treaties of international humanitarian law do notprohibit the death penalty, but merely provide rules regarding itsimposition in time of war. The Third Geneva Convention protectsprisoners of war by limiting the scope of imposing the death penaltyon them, and provides that where a death sentence has been passed,the execution shall not be carried out before the expiration of aperiod of at least six months. 61 Therefore, an execution is valid ifcarried out after the expiration of a period of six months. The FourthGeneva Convention protects civilian persons in time of war. It doesnot prohibit the imposition of the death penalty. It prohibits only the
57 Makwanyane (1995) para 36.58 It should be noted that the Supreme Court of Norway had conceded that the
application of the death penalty in Norway is valid as it is not prohibited byinternationallaw, and thus could be legitimately imposed despite the fact that itwas inapplicable under the country's criminal law (Prosecutor v Klinge (1946) 13
59 Ann Dig 262 (Supreme Court, Norway), cited in Schabas (n 18 aboye) 235 &. 260).See chapter three for further discussion.
6D Article 37(a). The CRC was adopted by the UN GeneraL Assembly on 20 November1989, entered into force on 2 September 1990, GA Res. 44/25, UN Doc. A/M/49(1989).
61 Articles 100 and 101, Geneva Convention relative to the Treatment of Prisoners ofWar of 12 August 1949 (3rd Geneva Convention), 75 UNTS 135.
63
65
66
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History, current status and applieation 01 the death penalty in Africa 23
deprivation of the right of petition for pardon or reprieve for thosecondemned to death. 62 The Geneva Conventions have two Protocolslimiting the scope of application of the death penalty but notabolishing or prohibiting its use. Protocols I and 11 prohibit theapplication of the death penalty on pregnant women or mothers andon juveniles.61 The death penalty is thus a valid punishment as longas certain conditions are meto
With regard to human rights instruments in the various regionalhuman rights systems, most of them do not abolish the death penaltyabsolutely. In the European human rights ~stem, with regard tostates that are yet to ratify Protocol No 13,6 the death penalty canbe imposed as an exception to the right to life under article 2(1) ofthe European Convention on Human Rights (European Convention).65A look at article 2 reveals that it does not envisage the abolition ofthe death penalty. Moreover, it makes little provision for safeguardsor limitations on the use of the death penalty. Subsequently, ProtocolNo 6 to the European Convention was adopted,66 which does notcompletely abolish the death penalty. In Soering v United Kingdom,the European Court of Human Rights pointed out that article 2 of thisProtocol does not preclude the death penalty as it allows memberstates to use the death penalty in time of war. 67
In the Inter-American human rights system, the AmericanConvention does not preclude the death penalty but merely placeslimitations on its use. Article 4(3) of the American Conventionprevents states that have abolished the death penalty fromreintroducing it. Therefore, the American Convention is anabolitionist instrument only to the extent that states that abolishedthe death penalty before ratifying the American Convention arebound as a maUer of internationallaw not to use the death penalty.However, those that have not or did not abolish the death penalty
62 Artides 68 and 75, Geneva Convention relative to the Protection of (ivilianPersons in Time of War of 12 August 1949 (4th Geneva Convention), 75 UNTS 287.See Protocol Additianal ta the Geneva Convention of 12 August 1949, and relatingto the Protection of Victims of lnternational Armed Confticts (Protocoll), artides76(3) and 77(5); and Protocol Additional to the Geneva Conventions of 12 August1949, and relating to the Protection of Victims of Non"lnternational ArmedConfticts (Protocolll), article 6(4).Protocol No 13 to the Convention tor the Protection of Human Rights andFundamental freedoms, concerning the abolitian of the death penalty in allcircumstances, adopted by the Committee of Ministers in February 2002, enteredinto force on 1 July 2003. Thirty-seven countries have ratified Protocol No 13, and7 countries have signed but are yet to ratity the Protocol.Adopted in 1950, entered into force on 3 September 1953 (ET5 5, 213 UNTS 222).The Convention 1S the only instrument to attempt an exhaustlve list of exceptionsto the right to lite.Protocol No 6 to the Convention for the Protection of Human Rights andFundamental Freedoms Concerning the Abolltion of the Death Penalty, adoptedon 28 AprH 1983, entered loto force on 1 March 1985 (ET5 114).
67 Soerfng v United Kingdam ECHR (1989) Ser A Vol 161 para 103, hereinafterreferred to as Soering (1989).
70
24 ChaptE'r Two
before ratifying the Convention are free to use it as long as theyadhere to the safeguards on its use. The American Convention furtherprovides safeguards and limitations on the death penalty, excludingits use for political crimes and related common crimes, and forjuveniles and the elderly,68 but in other cases, the death penalty is alegitimate sentence. The American Convention was supplemented bya Protocol dealing with the abolition of the death penalty.69 However,the Protocol does not prohibit the death penalty as article 2 makesprovision for a reservation to be made by state parties regarding theapplication of the death penalty in wartime in accordance withinternationallaw for extremely serious crimes of a military nature.
In the African human rights system, as discussed in subsequentchapters, the African Charter in article 4 prohibits the 'arbitrary'deprivation of life. This article can be read to imply that it permitsthe death penalty, as the African Charter as a whole makes nomention of the death penalty or the need to abolish it. 70 In addition,as noted earlier, the African Children's Charter and the AfricanWomen's Protocol do not preclude the death penalty except forcertain categories of persons.
Regarding the Islamic system, capital punishment is considered anintegral part of the law. The Islamic human rights system has noconvention, but the Islamic Council has adopted a Universal IslamicDeclaration of Rights, which guarantees the right to life and providesfor the death penalty under the authority of the law in its article1(a).71 In addition, the Leafue of Arab States has adopted the ArabCharter on Human Rights, 7 which proclaims the right to life in itsarticle 5. It goes further to provide for the imposition of the deathpenalty for the most serious crimes, prohibits its imposition forpolitical offences, on persons under the age of 18, a pregnant womanprior to her delivery or on a nursing mother within two years from the
68 Article 4(4) and 4(5) of the American Convention respectively.69 Protoeol to the American Convention on Human Rights to Abolish the Death
Penalty, adopted on 8 June 1990, entered into force en 28 August 1991 (OASTreaty Series No 73 (1990), reprinted in Basic Documents Pertaining to HumanRights in the lnter-American System, OEA/Ser L V/l1.82 doc.6 rey 1 at 80 (1992)).The extension of the application of the death penalty in sorne states andproposats from Uruguay and other states on the ahol1tion of the death penaltyprompted the Inter-American Commission on Human Rights to raise the idea of anadditional protocol to the American Convention on Human Rights. The InterAmerican Commission justified the need fer a protocol on the basis that, whenthe American Convention was adopted, prevailing conditions would not havepermitted abolition, but that there had been progress since then (see 5chabas (n18 aboye) 350-351).Generally, the African Charter has been criticised as falling shart af trulyeffective human rights proteetion (see e Flinterman a C Hendersan 'The AfricanCharter on human and peoples' rights' in R Hanski a M Suksi (eds) An introduction
71 to the international protection o/ human rfghts (1999) 395.Adopted on 19 September 1981 (21 Dhu! Qoidah 1401).
n Adopted on 15 September 1994, reprinted in (1997) 18 Human Rlghts Law Journal151.
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History, current status and appfication of the death penalty in Africa 25
date on which she gave birth. 73 Thus, the death penalty is a legitimatepunishment in the Islamic human rights system.
Notwithstanding the aforesaid, it should be borne in mind thatcaution has to be taken in dealing with capital punishment ininternational law because capital punishment is also related todomestic jurisdiction. Each country has its own laws on the deathpenalty. However, these laws have to be in accordance withinternational human rights law. International law is comprised ofglobal and regional (human rights) treaties. And the silence of someof these treaties, for example the African Charter, on the deathpenalty is not a bar to calling for the abolition of the death penalty.International law contains minimum obligations; states may gobeyond these obligations by elevating international law standards intheir domestic systems. Thus, the international law argument is notconclusive. The line of reasoning that the death penalty is allowedunder internationallaw is subject to compliance with the restrictionsplaced on its imposition and procedural safeguards with regard to itsimposition. In the light of the progressive acceptance of human rights,a systematic reading of the existing human rights instrumentsinevitably leads to the conclusion that the death penalty is a violationof human rights.?4 In the African continent, 'human rights' have beenthe basis for the abolition of the death penalty in South Africa in thelandmark judgment passed by the South African Constitutional Courtin which it declared the death penalty unconstitutional. 75
Although article 3 of the UDHR makes no mention of the deathpenalty, as is discussed in chapter three, if one looks at the travauxpréparatoires and subsequent interpretations of this article by the UNGeneral Assembly and Economic and Social Council (ECOSOC)resolutions, it is clear that the death penalty has been considered tobe incompatible with the right to life. 76 Moreover, the UDHR cannotbe used to justify the application of the death penalty, especiallyconsidering the fact that the right to life provision is not qualified. 7
Under the ICCPR, the Third and Fourth Geneva Conventions, theEuropean Convention, the American Convention and the African
73 Artides 10,11 and 12 respectively, of the Arab Charter on Human Rights.74 B Slama 'The death penalty as an exception to the right to life: To what extent is
capital punishment a violation of human rights?' in e Heyns (ed) Internationalyearbook of regional human rights master's programmes (2001) 427.
75 Makwanyane (1995), see chapters three and four for further discussion of thecase.
76 Roosevelt, chairperson of the drafting Committee of the UOHR, referred tomovement in progress in some states to abolish tlle death penalty andrecommended that it might be better not to make explicit mention of the matter(UN Doc E/CN 4/AC 1/SR2, 10). For more on thís, see Schabas (n 18 aboye) 30. Forsubsequent ínterpretations, see GA Res. 2393 (XXIII), GA Res. 2857 (XXVI), GA Res.44/128. and ECOSOC Res. 1930 (LVIII).
77 See chapter three for a discussion of the effect of qualified and unqualified rightto life provisions in relatíon to the death penalty.
26 Chapter Two
Charter, the imposition of the death penalty will be a validpunishment only if the safeguards and restrictions on its implementation are respected. Moreover, the very restrictive nature of anypossible reservation to the Second Optional Protocol to the ICCPRsupports a trend towards abolition. The Protocol states in itsPreamble that the 'abolition of the death penalty contributes to theenhancement of human dignity and progressive development ofhuman rights'. The Protocol thus envisages the abolition of the deathpenalty. Over the ~ears, states have increasingly ratified the SecondOptional Protocol. 8
Furthermore, with the adoption of Protocol No 13, it is my viewthat the European Convention cannot be used at present, even bystates that have not ratified the Protocol, to justify the argumentaboye that the death penalty is provided for in international law. lfone takes into consideration, for example, the developments in theEuropean system after 1994 as seen below, artiele 2 of the EuropeanConvention could be interpreted to imply that it preeludes the deathpenalty.79 The Parliamentary Assembly of the CouncH of Europe inRecommendation 1246 (1994):
[considers] that the death penalty has no legitimate place in the penalsystems oí modern civilised societies, and that its application may wellbe compared with torture and be seen as inhuman and degradingpunishment within the meaning of Article 3 of the European Conventionon Human Rights. 80
The Parliamentary Assembly further acknowledged the importance ofcountries that had not yet abolished the death penalty joining thetrend towards abolition. In Resolution 1044 (1994), it calis 'upon allthe parliaments in the world which have not yet abolished the deathpenalty, to do so promptly following the example of the majority ofthe Council of Europe member states'. 81 In the same resolution, theAssembly made it obligatory for all new member states to sign andratify Protocol No 6 and to introduce a moratorium on executions.82
Abolition of the death penalty became a precondition for membershipof the Council of Europe. In Resolution 1097 (1996),83 the Parliamentary Assembly, referring to Resolution 1044 (1994), reminded
78 See 'Ratifieation of international treatíes' http://web.amnesty.org/pages/dealhpenalty-treaties-eng (accessed 31 Oeeember 2006).
79 GeneraUy, the object and purpose of the European Convention as an instrumentfor the protection of individual human beings require that its provisions beinterpreted and appl ied so as to make its safeguards practical and effeetive(MeCann and Others v United Kingdom ECHR (1995) Ser A No 324, Application No18984/91 para 146).
80 Parliamentary Assemb\y of the Council of Europe Reeommendation 1246 (1994) onthe abolition of capital punishment, para 3, adopted on 4 October 1994.
81 Parliamentary Assembly of the (ouneil of Europe Resolution 1044 (1994) on theabolition of capital punishment, para 7, adopted on 4 October 1994.
8Z Resolution 1044 (as above) para 5.8] Parliamentary Assembly of the CouneH of Europe Resolution 1097 (1996) on the
abolition af the death penalty in Eurape, para 6, adopted on 28 June 1996.
ib:
History, curre/1t status and application o[ the death penalty in Africa 27
applicant states to the Council of Europe that the willingness to signand ratify Protocol No 6 to the European Convention and to introducea moratorium upon accession had become a prerequisite formembership on the part 01 the Assembly.
The Parliamentary Assembly of the Council of Europe has alsoindicated its interest in deleting the second sentence of article 2(1)of the European Convention, which allows for the death penalty, so asto match theory with reality. 84 A major breakthrough has been theadoption of Protocol No 13 to the European Convention, whichabolishes the death penalty in all circumstances - that is, in bothpeacetime and wartime. 85 Protocol No 13 provides in its Preamblethat the 'abolition of the death penalty is essential for the protection01 [the right to life] and lor the full recognition of the inherent dignityof all human beings'. In my opinion, this Protocol changes theinterpretation of article 2 of the European Convention and rebutsarticle 2 of Protocol No 6 stated above. Article 1 of Protocol No 13abolishes the death penalty, article 2 goes on to prohibit anyderogation, and article 3 prohibits any reservations in respect of itsprovisions. Article 5 of the Protocol provides that '[a]rticles 1 to 4 ofthis Protocol shall be regarded as additional articles to theConvention, and all the provisions of the Convention shall applyaccordingly'. This, therelore, implies that an interpretation of article2(1) of the European Convention in the light of this Protocol inevitablyleads to the conclusion that the death penalty is precluded. Inaddition to the above, article 2(2) of the Charter of Fundamental
84 The reality that strengthened the interest of lhe Parliamentary Assembly is thatmore modern national constitutjonal docurnents and international treaties nolonger include such provisions. See Parliamentary Assembly Opinion No 233 (2002)on the draft Protocol to the European Convention on Human Rights cancerning theabolitian of the death penalty in aH circumstances, para 5. Similarly, with regardlo amending article 2, the European Court of Human Rights has noted that theabolition status of the death penalty throughout Europe should be seen as anagreement by cqfltracting states to amend article 2(1) of the EuropeanConvention (see Ocatan v Turkey, Apptication No 4&221/99 (2003) ECHR 125,judgment of 1? March 2003, para 175; (2003) 7 Amicus Journal 24, hereinafterreferred to as Ocatan (2003).
85 The adoption of Protocot No 13 fotlowed a recommendation of the PartiamentaryAssembly of the Council of Europe that the Committee of Ministers draw up anadditional protocot abolishing the death penalty in both peace- and wartime. Thereasons advanced in support of the need for an additional protocol were: First,the death penatty is an inhuman and degrading punishment. Second, itsimposition has proved ineffective as a deterrent and, owing to the faUibility ofhuman justice, atso tragic through the execution of the innocent. Third, there isno reason why capital punishment should be inflicted in wartime when it is natinflicted in peacetime. The Partiamentary Assembly stated that there is lack oflegal safeguards and a hjgh risk of executing the innocent when apptying wartimedeath sentences (see Partiamentary Assembly of the Council of EuropeRecommendation 1246 (1994) on the abolition of the death penalty). The pointsput forward by the Parliamentary Assembly also include the flaws in theapplication of the death penalty in Afeica, as revealed in this study, thusnecessltating the need for a protocol on the abolition of the death penatty inAfrica. lhe adoption of a protocol on the abolition of the death penalty in Africais one of the recommendatjons made in this book.
28 Chapter Two
Rights of the European Union prohibits the imposition of the deathpenalty and executions.86
With regard to the CRC, African Children's Charter and AfricanWomen's Protocol, their scope is limited to the protection of specificvulnerable groups. The death penalty has been prohibited for thosegroups in the aboye instruments, thus they preclude the death penaltyas far as their scope reaches. Furthermore, the fact that article 4 ofthe African Charter makes no mention of the death penalty could beinterpreted, in the light of article 60 of the Charter, to imply that itprecludes the death penalty.8l Also, adopting Schabas' view on theUDHR mentioned aboye, it could be said that the African Charter isabolitionist in outlook, as it makes no mention of the death penaltyunlike other human rights instruments in the African system or otherregional systems. Even if an interpretation is to the effect that thedeath penalty is allowed, its application is, however, limited.Nonetheless, similar provisions in other jurisdictions prohibiting thearbitrary deprivation of life have been interpreted to preclude thedeath penalty.88 In other words, the death penalty has been seen tobe an arbitrary deprivation of life. Also, the conclusions of JusticeChaskalson and other judges of the South African Constitutional Courtthat the death penalty is 'arbitrary' is powerful support for aninterpretation of article 4 of the African Charter to the effect that itprohibits capital punishment. 89
It is therefore questionable whether the death penalty is providedfor in internationallaw, as the death penalty is a violation of humanrights. 90 The retention or use of the death penalty in Africa is a matterof concern, as it contravenes international human rights lawstandards and defies the international community's efforts to abolishit. International developments, and even developments in Africa,show a trend towards the abolition of the death penalty.91 Thesedevelopments raise serious questions for those countries in Africa thatstill retain and use the death penalty. Furthermore, as stated earlierin this chapter, some Africans - Konaré, former president of Mali,92the Ethiopian Human Rights Council93 and Kamakil, the Kenyan
86 Proclaimed by the European Parliament, the (ouneil and Commission, at Nice on 7December 2000 (2000/( 364/01 ¡.
87 See chapter three for further discussion on a possible interpretation of article 4of the African Charter teading to the conclusion that it precludes the deathpenalty.
BB See the decision of the Hungarian Constitutjonal Court, Deeision 2311990 of 24Oetober 1990, discussed in chapter three.
89 See Makwanyane (1995). It should be noted that members of the Supreme Courtof Nigeria have shown sorne interest in the arguments by which article 4 is held toprohibit capital punishment (see Nemi and Others v The State (1994) 1 LRC 376,hereinafter referred to as Nemi (1994).
90 Other writers abo hold this yiew. See, for example, Slama (n 74 aboye) 427.91 See chapter six.92 Amnesty tnternationa( (n 15 aboye) 166.93 'CaH to abolish death penalty in Ethiopia' Matl and Guardtan 3 Dctober Z003.
inñ
Hfstory, current status and application oi the death penalty in Africa 29
commissioner of prisons94 for instance - have stated their oppositionto it.
o Abotitlonist
IIJ De facto abo(itionist
11 Retentionist
Figure 2.1: Abolitionist, de tacto abolitionist and retentionist Africanstates
3.2 Status in Africa
Thirteen countries have abolished the death penalty for all crimes, 19have abolished it in practice95 and 21 still retain and use the death
94 Mugonyi a Njeru (n 7 aboye).9S African states that are considered abolitionists in practíce are: Algeria (1993),
Benín (1993), Burkina Faso (1988), Central Atriean RepubUc (1981), Congo (1982),Eritrea (1989), Gabon (1981), Ghana (1993), The Gambía (1981), Kenya (1987),Madagascar (1958), Malawi (1992), Mali (1980), Mauritania (1989), Moroeen(1993), Niger (1976), 5waziland (1989), Toga (1979) and Tunisia (1991). The datecited is the date of last execution.
97
30 Chapter Two
penalty.96 The status of the death penalty is further illustrated inFigure 2.1 aboye. The countries that have abolished the death penaltyfor all crimes are Cape Verde (1981 l, Mozambique (1990l, Namibia(1990), Sao Tomé and Príncipe (1990), Angola (1992), Guinea Bissau(1993l, Seychelles (1993, abolished the death penalty for ordinarycrimes in 1979), Mauritius (1995), Djibouti (1995, only one person hadreceived a death sentence after independence in 1977 and thesentence was commuted), South Africa (1997, abolished the deathpenalty for ordinary crimes in 1995), COte d'lvoire (2000), Senegal(2004) and Liberia (2005).97
Among the first African states to abolish the death penalty are fiveformer Portuguese colonies - Angola, Cape Verde, Mozambique,Guinea Bissau and Sao Tomé and Principe. Their abolition of the deathpenalty is largely attributable to colonial influence. Portugalabolished the death penalty for political offences in 1852, for ordinarycrimes in 1867 and for all crimes in 1976.98 Accordingly, the deathpenalty was never introduced into the legislation of Portugal'scolonies. For example, in Cape Verde and Guinea Bissau, the deathpenalty did not exist during the colonial periodo When Cape Verdegained independence, it did not include the death penalty in itscriminal legislation. 99 Guinea Bissau introduced the death penalty atindependence in 1974, but stronft¡ opposition to it in the 19805culminated in its abolition in 1993. oTherefore, the abolition of thedeath penalty in former Portuguese colonies can be attributed to thefact that the death penalty was not engraved in the criminal system,as it was not used during the colonial period in these states, and toconstitutional reviews leading to its abolition in the case of Angolaand Guinea Bissau. 101
Retentionist African states are: Batswana, Burundi, (ameraan, Chad, Comoros,Democratic Republic of Congo, Egypt, Equatorjal Guinea, Ethiopia, Guinea,Lesotho, Libya, Nigeria, Rwanda, Sierra Leone, SornaBa, Sudan, Tanzania,Uganda, Zambía and Zimbabw€.At the jnternational leyel, a majority of countries in the world haye nowabandoned the use of the death penalty. Ejghty-eight countries have abolishedthe death penalty for all crimes, 11 haye abolished it for all but exceptionalcrimes such as wartime crimes, and 30 haye abolished it in practice (de [actoaboUtionists). This makes a total of 129 countries jn the wortd that haveabolished the death pl?nalty in law or practice. Sixty-eight other countries retainand use the death penalty (retentionists). The figures referred to aboye werebased on informatlon from Hands Off Cajn The death penalty worldwide: 2004report (2004); Amnesty lnternational Amnesty fnternat;onal Report (2005) andAmnesty International death penalty website http://www.amnesty.org/deathpenalty.
98 See R Hood The death penalty: A wor{dwide perspective (2002) 250.99 Amnesty lnternational 'West Africa: Time to abolish the death penalty' Al Index:100 AFR 05/003/2003, 10 October Z003.
As aboye.101 Amnesty International 'Africa: A new future without the death penalty' Al Index:
AFR 01/003/1997,1 April1997.
J
I
l
History, current status and application at the death penalty in Atrica 31
In other instances, broader political factors impacted on thecurrent abolitionist states and these led them to abolition. Theadoption of a new constitution that abolished the death Benalty waspreceded by a change in government in Cote d'lvoire 02 and thereturn to multiparty politics in Seychelles. 103 Abolition in Djibouti wasachieved through factors including public opinion, political will andempirical evidence. 104 The arbitrary use of the death penalty duringthe colonial Beriod resulted in the constitution providing for abolitionin Namibia. 1 5 In addition to other factors, including the respect forhuman rights, constitutional reviews led to the abolition of the deathpenalty in Angola, Guinea Bissau and South Africa. 106
3.2.1 The question o{ de {acto abolitionist states
The countries of the world have been divided into three maincategories - abolitionists, abolitionists in practice and retentionists.It is my view that the projection of some states as abolitionists inpractice and others as retentionists is problematic. Those consideredabolitionists in practice still retain the death penalty in their statutes,which raises doubts regarding their commitment to the de {actoabolitionist status. Thus, not all countries that fulfil the ten-yearcriterion are classified as abolitionists in practice. Although AmnestyInternational uses the aboye taxonomy, it has advised that caution betaken in classifying a state that retains the death penalty in its law asabolitionist in practice. 107 With regard to African states, considerablecaution needs to be taken because some African states that hadpreviously been de {acto abolitionists for more than ten years are nowretentionists. Current retentionist African states that had previouslybeen de {acto abolitionists include the following: Libya was de {actoabolitionist for 23 years, but resumed executions in 1977; Cameroonhad been de {acto abolitionist for 11 years (1988 - 1997); Comoros hadbeen de {acto abolitionist for 22 years (1975 - 1997); Guinea had beende {acta abolitionist for 17 years (1984 - 2001); and lastly, Burundi hadbeen de {acta abolitionist for 12 years (1981 - 1993).
The question then is: Why did the governments in these statesresume executions? The Tanzanian Court of Appeal has alsoquestioned why Tanzania resumed executions. It stated in Mbushuuand Another v The Republic: '[I]t is common knowledge that after[the execution] in the early 1970s, there were no more hangings until1985. Why were executions resumed?' It went further to say that 'no
102 As aboye.103 Hatchard a Coldham (n 26 aboye) 161.104 Hood (n 98 aboye) 39.105 As aboye.106 Amnesty International (n 101 aboye)107 Amnesty lnternational The death penalty: Amnesty fnternational Report (1979) Al
Index: ACT 05/03179.
32 Chapter Two
research on this has been conducted in Tanzania' .108 Also, somecurrent abolitionists in practice had at some point put in place amoratorium on executions, or had not carried out executions for morethan ten years, but had resumed after this period. 109
For some of the above states, reasons for the resumption ofexecutions are clear. In Burundi, for example, the resumption ofexecution came as a result of the October 1993 massacres of Tutsicivilians that followed the assassination of the president. l1O InComoros, the resumption of execution was justified on the basis thatthe death penalty is a deterrent. In ordering the resumption of thedeath penalty, in 1996, the year before the resumption of execution,Taki (then president of Comoros) stated the following: 'Someone whois tempted to kili a fellow human being will think twice beforecarrying out his foul enterprise.'lll In Libya, the resumption ofexecution can be attributed to political reasons as the first executionsafter Z3 years were for politica\ offences. l12 Similarly, the resumptionof execution in Chad in 2003, after a period of 12 years (1991 - 2003),has been attributed to security opportunism (the Chadian authoritiesused the rising insecurity in the country to justify the resumption ofthe death penalty) and the settling of scores, which led to themanipulation of 1ustice to hide the reality of crime and the identityof the autnors. l1
However, it is not clear why otner states resumed executions aftera long while. This is on account of a lack of information on the matterbecause states do not take seriously their obligations to report theirpractices on the death penalty to the UN as required under article 40of the ICCPR. l14 Moreover, owing to the veil of secrecy under whichdeath penalty matters are handled, any such reasons are usuallyregarded as state secrets and are not made publico Nevertheless, it issuggested that generally the resumption of executions can beattributed to the arguments advanced for its retention in most African
108 See Mbushuu and Another v The Republic (1995) 1 LRC 216 232, hereinafterreferred to as Mbushuu (1995).
109 These de facto abolitionist countries indude: Benin, which had 12 years withoutan execution, but resumed the practice in 1986. The last execution in Benin wascarried out in 1993, and there have been no executions up to the presento TheGambia also had not conducted any executions for 16 years, but resumed in 1981.Since its last execution in 1981, no executions have been carried out up to thepresento Moreover, The Gambia abolished the death penalty in April1993, but itwas reinstated by the military regime in August 1995.
110 Amnesty International 'Death penalty / fear of imminent execution / unfair trial'111 Allndex: AFR 16/07/00,13 April2000.
Amnesty International (n 101 aboye)112 Amnesty International When the state kifls ... The death penalty v. human rights
(1989) 168-169.113 International Federation of Human Rights 'Death penalty: Ending a moratorium,
between security opportunism and settling of scores' September 2004. Reportavailable at http://www.fidh.org/article.php3?id_article'''1976 (accessed 7 March2005).
114 Hood (n 98 aboye) 3.
.
History, current status and application 01 the death penalty In Alrica 33
states, such as the demands of public opinion and that it serves as adeterrent to crime. It has been easy for these countries to resumeexecutions as the death penalty was still in their penal statutes. Theresumption of executions could also be attributed to the symbolicnature of the death penalty or to political reasons. As noted aboye,the death penalty has been seen as one of the dramatic symbols of thepresence of sovereignty, and its maintenance is an illustration thatsovereignty resides in the people.
If one considers the aforesaid, two questions come to mind withregard to African states that are currently considered abolitionists inpractice. Firstly, will these states not resume executions since thedeath penalty is provided for in their constitutions or penal statutes?Secondly, where the death penalty is pronounced in accordance withthe law, is there a practice in respect of these states that demandscommutation to prevent executions? With regard to the first question,it would appear that the fact that the death penalty is in theirstatutes signals their intention of resuming executions at any time. 115
This conclusion is based on the statistics mentioned aboye of Africanstates that had not carried out executions for more than ten years,but resumed them latero As long as the death penalty remains in thestatutes of de {acto abolitionist states, there is a possibility of theirresuming executions at any time. These states cannot guarantee thatthey will not resume executions. In this regard, Hood states asfollows:
Given the large number of countries that have abolished the deathpenalty de jure, it is less necessary or politicaUy advantageous thanhitherto to treat any ten-year abolitionist de tacto states as if they werea subcategory of the abolitionist group. Rather, unti! they have givenclear indicatíons of their intention to remove capital punishment [romtheir legislation and to subscribe to internationa{ conventions that banits reintroduction, it would, in my view, be more accurate and safer toclassify countries that have not executed anyone for at least ten years,but stiU retain capital punishment on their statute books, as asubcategory of retentionist, rather than abolitionist, states. 116
It is my view, and based on the aboye, that giving a clear indicationonly of an intention to remove capital punishment does not suffice as
115 This has been an issue of concern in Malawi. In the 1st Draft of the National Planof Action for the Promotion and Protection of Human Rights in Malawi, it wasstated that because the death penalty had not been executed over the past yearsit did not guarantee that it could not be executed in the future. It was furtherstated that retention of the death penalty in the statutes was worrisome to theright to life.
116 Emphasis added. Hood (n 98 aboye) 13 .
34 Chapter Two
a guarantee that states that are abolitionist in practice will notresume executions. In addition, these states have to ratifyinternational instruments aiming at the abolition of the deathpenalty.117 The fact that only total abolitionist states in Africa haveratified the Second Optional Protocol to the ICCPR shows that thesede {acto abolitionist states have an intention of resuming executionsat any time. 118 Therefore, for these states to be seen as trueabolitionists in practice, they have to ratify the aboye Protocol andother human rights instruments geared towards the abolition, orrestricting the application, of the death penalty. They should have inmind the goal of total abolition of the death penalty.
Concerning the second question, it cannot be said that there is a'practice'119 that demands commutation to prevent executions inrespect of all de {acto abolitionist African states. This is because thecommutation of death sentences is not constant and no trend ofcommutation of death sentences in these states has been established.Moreover, there are still many people under the sentence of death (ondeath row) in most de {acto abolitionist states, implyinz% that thecommutation of death sentences has not been ongoing. 1 The factthat there is no 'practice' to commute death sentences in all statesthat are abolitionists in practice shows that these states could resumeexecutions at anytime.
4 Seope of the death penalty
This section deals with the restrictions on the imposition of the deathpenalty and range of crimes for which the death penalty may beimposed in Africa. Examples are drawn from selected African states,as it is impossible to provide exact and current information for all.The death penalty is either mandatory or discretionary, depending onthe crime. Also, the range of crimes for which the death penalty is ormight be imposed varies from country to country. In some, it isextremely wide, while in others it has contracted or expanded.
117 Ratification in itset( is not sufficient, as sorne states have withdrawn frominternational human rights treaties because they could not fulfil their obligationsunder such instruments (see chapter five). Thus, a clear indication has to befollowed by ratification of international instruments aiming at the abolition ofthe death penalty, domestication of the standard in these instruments and totalabolition, which will have more force if it 1s enshrined in the constitution.
118 See chapter one for a list of the African states that have ratified or signed thisProtocot.
119 'Practice' here refers to an exercise that is constant (unremitting). Underinternational law, a practice has to constitute constant and uniform usage andcan be found in, for example, the decisions of nat10nal courts, naUonatlegistation, diplomatic correspondence, policy statement by government officers,and opinions of nationallaw advisers (see Dugard (n 54 aboye) 28).
1zo For example, in Kenya by the end of 2003 there were 3200 peopte on death row(see Amnesty International Amnesty Intemational Repart (2004) 57).
Histary, current status and application af the death penalty in Africa 35
4.1 Restrictions on the imposition of the death penalty
Anumber of restrictions have been placed on the imposition of thedeath penalty. The limitation placed on imposing the death penaltyby the African Charter is that it has to be imposed in accordance withthe law, that is, substantive and procedural safeguards for itsimposition have to be respected. 121 Similarly, under article 6 of theICCPR, imposition of the death penalty is subject to respect forprocedural safeguards for its imposition. Another restriction on theimposition of the death penalty is with regard to UN-sponsoredtribunals. The death penalty is excluded in such tribunals for graveinternational crimes. For instance, the Statute of the InternationalCriminal Tribunal for the Former Yugoslavia 1993 (ICTY) states thatthe maximum sentence shall be life imprisonment. 1ZZ Similarly, theStatutes of the International Criminal Tribunal for Rwanda 1994 (ICTR)and the International Criminal Court 1998 (ICC) also exelude the deathpenalty.123 The Statute of the Special Court for Sierra Leone 2002(SCSL) is the most recent development regardin~ the exclusion of thedeath penalty for grave international crimes. 1 The aboye statutesprove that fundamental human rights are inalienable. They may notbe taken away even if a person commits the most atrocious of crimes,as human rights ~rotect everyone - they apply to the worst and thebest of persons.1 5
The restrictions discussed in the subsequent paragraphs ineludereduction in scope, non-extension of scope, non-retroactive use ofthe death penalty, and non-imposition on certain categories ofpersons. It is important to note that the reintroduction of the deathpenalty by states that have already abolished it is a matter ofconcern. The only instrument that places such a restriction is theAmerican Convention on Human Rights (ACHR).126 Article 4(3)prohibits the re-establishment of the death penalty in states thathave abolished it. Such a provision fosters the abolition goal and ismuch needed in Africa to prevent states that have abolished the deathpenalty, without enshrining it in their national constitutions, fromreintroducing it. The Gambia abolished the death penalty completely
121 See chapter five for a discusslon of the procedura\ safeguards.122 Artide 24 of the ICTY Statute.123 Artide 23 of ICTR Statute, and artíc\e 77 of the ICC Statute. The ICC Statute
entered into force on 1 July 2002 (2187 UNTS 3).124 ArUele 19 of SCSL Statute.125 Prior to these statutes, the Charter of the Nuremberg Tribunal prov)ded for the
death penalty in its article 27 as the supreme punishment for war criminals. UNGeneral Assembly Resolution 95(1), adopted at its 1st session, endorsed theprinciples in the Charter. lt shou{d be noted that during the drafting of thisCharter, Uruguay objected to the inelusion of the death penalty, butunfortunately was accused of having Nazi sympathies. See Schabas (n 18 aboye) 1.
126 Adopted in 1969, entered into force in 1978 (reprinted in Bas;c documentspertaining to human rights in the Inter-American system, OEA/Ser.L'/V/L4 Rev.931 January 2003 27).
36 Chapter Two
in 1993, but reintroduced it in August 1995. 127 If a similar provisionhad existed in the African Charter, it would not have been possible forThe Gambia to reintroduce the death penalty, unless it denounced theAfrican Charter.
4.1.1 Reduct;on in scope
The wide scope of the death penalty in some countries is a matter ofconcern to the international community. For example, the HumanRights Committee, established under the ICCPR, has expressedconcern about the wide scope of the death penalty in some Africancountries, includin~ Algeria, Cameroon, Egypt, Libya, Morocco,Sudan, and Zambia. 28
In a number of resolutions, the UN General Assembly and UNCHRhave emphasised the reduction in scope of capital punishment, as thisis seen as a step towards its abolition. In Resolution 32161, the UNGeneral Assembly stated that the main objective to be pursued in thefield of capital punishment is that of progressively restricting thenumber of offences for which the death penalty is im~osed with aview to the desirability of abolishing this punishment. Z9 Similarly,the UNCHR, in Resolution 1998/8, called upon states that stiU retainand use the death penalty to restrict the number of offences for whichit is imposed. In order to reduce the scope of the death penalt~
effectively, it has to be imposed only for the most serious crimesYArticle 6(2) of the ICCPR provides that the death sentence be imposedonly for the 'most serious crimes'. Therefore, African states that haveratified the ICCPR131 and still retain the death penalty can impose itonly for the most serious crimes.132 The UN Human Rights Committeehas interpreted article 6(2) of the ICCPR to mean, 'the death penalty
127 Hood (n 98 aboye) 42.128 See Hood (n 98 aboye) 77 and the concluding observations of the Human Ríghts
Committee on the 3rd and 4th periodic reports of Egypt submitted under articte40 01 the ICCPR, UN Ooc. CCPR/CO/76/EGY 28 November 2002 para 12. TheCommittee noted with concern the very large number of offences punishable bydeath under Egyptian law.
129 Resolution 32161 on 'capital punishment', adopted on 8 Oecember 1977.130 UNCHR Resolution 1998/8 on the 'question of the death penalty', adopted on 3
April1998.131 The ICCPR has been ratifíed by 50 African states and signed by two. See 'Status of
ratifications of the principal international human rights treaties' http;1 /www.unhchr.ch/pdf/report.pdf (accessed 31 March 2005).
132 The UNHRC has encouraged some African sta te parties to the ICCPR to limit theapplication of the death penalty to the most serious crimes. For example, theCommittee, while expressing concern about the vagueness of crimes tor whichthe death penalty is imposed in Togo, recommended that the state party shoutdHmit the cases in which the death penalty is imposed to ensure that it is appliedonLY for the most serious cr(mes. See concluding observations of the HumanRights Committee on the 3rd periodic report of Togo submitted under article 40 ofthe ICCPR, UN Doc. CCPR/C0176/TGO 28 November 2002.
...
History, current status and application of the death penalty in Africa 37
should be a quite exceptional measure' .133 Subsequently, the UNECOSOC explained that the scope of the 'most serious crimes' 'shouldnot go beyond intentional crimes with lethal or other extremely graveconsequences' .134 .
Further, the African Commission in its 1999 Resolution called uponstate parties that still maintain the death penalty to 'limit theimposition of the death penalty only to the most serious crimes' .135Unfortunately, this phrase has been left open-ended, without anyindications of what the most serious offences are.136 Nonetheless, thedeath penalty for offences like apostasy, committing a homosexualact for the third time, and illicit sex (Sudan); those relating toexternal and internal security and terrorism (Egypt); endangering orcorrupting society (Libya); aggravated robbery in which the use offirearms did not cause the death or injury of a person (Zambia); 137and economic and drug-related crimes, is incompatible with theICCPR and the African Commission's resolution.
4.1.2 Non-extension of scope
The extension of the scope of the death penalty raises questionsregarding the compatibility of the extended scope with artide 6 ofthe ICCPR. The UN Special Rapporteur on extrajudicial, summary orarbitrary executions has stated that the scope of the death penaltyshould never be extended. 138 The UNCHR has also pointed out thatextending the scope of the death penalty runs counter to theinternational community's expressed desire for the abolition of thedeath penalty. 139 Also, increasing the number of offencespunishable by death, as was the case in Egypt in 2003140 and
133 UN Human Rights Committee, General Comment No 6 on artide 6 of the ICCPR 30April1982 para 7, (UN Doc. HRI\GEN\1\Rev.1 at 6 (1994)), hereinafter referred toas CCPR General Comment No 6.
134 Safeguard No 1, UN Safeguards Guaranteeing Protection of the Rights of ThoseFacing the Death Penalty, UN ECOSOC Resolution 1984/50 of 25 May 1984,endorsed by the UN General Assembly in Resolution 39/118, adopted without avote on 14 December 1984, hereinafter referred lo as ECOSOC safeguards.
135 13th Annual Activity Report (1999 - 2000) Annex IV.136 F Viljoen 'Introduction to the African Commission and the regional human rights
system' in C Heyns (ed) Human rights in Africa (2004) 400.137 Hood (n 98 above) 76 - 77.138 'Extrajudicial, surnmary or arbitrary executions' Report by the Special
Rapporteur, UN Doc. E/CNA/1997/60, 24 December 1996, para 78.139 Statement by the High Commissioner for Human Rights, 4 February 1998, UN Press
Release. Referred to in Amnesty lnternational 'International standards on thedeath penalty' Al Index: ACT 50/10/98 1 December 1998 endnote 16.
140 Following the suicide attacks in Casablanca on 16 May 2003, the Parliament ofMorocco approved an anti-terror law that broadened the definition of terrorismand increased the number of offences punishable by death (see Hands Off Cain (n97 aboye) 109) .
38 Chapter Two
proposing the death penalty for rape in Swaziland,141 is incompatible with the ICCPR.
4_1.3 Non-retrooctive use
The principle of nulla paena sine lege is a basic principle af criminallaw forbidding retroactive laws. This principle is to the effect that acriminal charge has to be based on a criminal offence as found inapplicable written law at the time of the offence. As per artide 6(2)of the ICCPR, the death penalty can anly be imposed for crimes thatwere capital offences in law at the time af the commission of thecrime. This has been reiterated by ECOSOC safeguard No 2, whichgoes further to state that if after the cammission of the crime thereis provision by the law for the impasition of a lighter sentence, theoffender has to benefit from that sentence. However, Burundi, Chadand Guinea have indicated that an offender under sentence will notbe eligible to receive a lesser penalty than death as stated in ECOSOCsafeguard No 2. 142 In addition, artide 7(2) of the African Charter alsoprohibits non-retroactive use of the death penalty. It states:
No one may be condemned for an act or omission which did notconstitute a legally punishable offence at the time it was committed. Nopenalty may be inflicted for an offence for which no provision was madeat the time it was committed ...
Sorne African states have incorporated similar provisions in theirconstitutions to prohibit the retroactive imposition of the deathpenalty_ For example, the Constitutions of Ethiopia, 1994 (artide 22);Zambia, 1996 (artide 18(4)); and Ghana, 1996 (section 19(5)) prohibitretroactive imposition of the death penalty_ Despite the provision inthe African Charter, several countries in Africa have introduced thedeath penalty retroactively. This was the case in Sudan, where in 1983the death penalty was applied retroactively to adultery betweenmarried persons and in 1991 to apostasy, and in Nigeria, where in 1984the death penalty was extended to apply retroactively to 19 offencesinduding drug-related offences. 143 However, there have been casesin which the trial court imposed the death sentence retroactively, andthe sentence was set aside on appeal. For example, a Shari'a court inGadabawa, Nigeria, sentenced Hussaini to death by stoning on 9October 2001 for a crime that would never have attracted the death
141 As a result of the growing alarm oyer the HIV infection rate in Swaziland, a SexualOffences and Domestic Violence BiU (2005) has been released, which reads: 'Anyperson who is conyicted of rape under this bHl is Hable to the death penalty if theyictim is below the age of 14 years, or to the death penalty if HIV and AIDS areaggravating factors, or to the death penalty where such person has parentalpower ayer the child proposing the death penalty.' (see 'SwazHand imposes the
142 death penalty far sexual offenders' City Press (South Africa) 4 December 2005).Hood (n 98 aboye) 78.
143 Hood (n 98 aboye) 77. Twa men were executed for drug offences committed priorto the extension.
Histary, current status and application af the death penalty in Africa 39
penalty but lor the retroactive application 01 the Shari'a penallegislation. 144 On 25 March 2002, the Shari'a Court of Appeal 01Sokoto state in Nigeria ordered her acquittal on the grounds that thealleged crime had taken place before the entering into force of theShari'a penallegislation in Sokoto state. 145
4.1.4 Exclusian far certain categaries af affenders
Article 6(5) 01 the ICCPR excludes the death penalty for crimescommitted by persons below 18 years of age and lurther provides thatthe death penalty shall not be carried out on pregnant women. 146
Article 6(5) does not prohibit the imposition of the death penalty onpregnant women as it uses the words 'shall not be carried out onpregnant women' .147 However, it is clear that it prohibits theexecution 01 such women. This means that if the death sentence isimposed on a pregnant woman, it can be carried out only alter thepregnancy or be commuted. Similar to the ICCPR, the AfricanWomen's Protocol ~rohibits the carrying out of death sentences onpregnant women .14
With regard to juvenile offenders, article 37(a) of the CRCprohibits the imposition 01 capital punishment or life imprisonmentwithout the possibility of release for offences committed by personsbelow 18 years of age. 149 The CRC has been ratified by all Africanstates, except Somalia, which has signed but not yet ratified theinstrumento Likewise, article 5(3) of the African Children's Charterprohibits the imposition of the death penalty for crimes committed bychildren below the age 01 18, and article 30(e) 01 the same Charterprohibits its imposition on expectant mothers or mothers of inlantsand young children. The difference between the ICCPR and theAfrican Children's Charter is that the latter prohibits the imposition01 the death penalty on pregnant women, while the lormer merelyprohibits its being carried out on pregnant women. This implies that
144 Amnesty International 'Nigeria: The death penalty and wamen under the Nigerianpenal systems' Allndex: AFR 44/007/2004 10 February 2004.
145 As aboye.146 ECOSOC saieguard No 3 also provides that persons betow 18 years oi age shaH not
be sentenced to death, nor shall the death penalty be carried out on pregnantwomen, or new mothers, ar on persons who have become insane.
147 Emphasis added.148 Article 4(2)(j) oi the African Wamen's Protocat.149 See also, artide 77(5) af the Protocol Additianal to the Geneva Convention of 12
August 1949, and relating to the Protection ai Victims ai International ArmedConflicts of 1977 (Protocoll), 1125 UNTS 3; article 6(4) af the Protocol Additionalto the Geneva Conventions af 12 August 1949, and relating to the Protection aiVictims af Non-international Armed Conflicts of 1977 (Protocolll), 1125 UNTS 609;and artide 4(5) of the American Convention on Human Rights (ACHR) 1969,entered into force an 18 July 1978 (OAS Treaty Series No ]6,1144 U.N.T.S. 123,reprinted in Basic Oocuments Pertaining to Human Rights in the Inter-AmericanSystem, OEA/Ser.L.VIII.82 doc.6 rev.1 25 (1992)).
40 Chapter Two
under the former, the death penalty can be imposed on a pregnantwoman, but cannot be carried out while she is pregnant.
At the nationallevel, with regard to pregnant women, the penalprovisions of some African states have adopted the approach in theICCPR in which the death sentence, if imposed, cannot be carried outon a pregnant woman. Some states require that the death sentence,if imposed, should be commuted, while others require that it shouldbe carried out after the pregnancy. For example, article 118 of theEthiopian Penal Code 1957 prohibits the imposition of the deathpenalty and its execution on sick prisoners or pregnant women ornursing mothers. This section goes further than the ICCPR byproviding that the death sentence may be commuted to rigorous lifeimprisonment. On the other hand, section 33(2) of the Constitutionof the Republic of Sudan 1998 prohibits the execution of pregnant orsuckling women. It goes further by allowing such an execution totake place two years after lactation. 150 Unlike the Ethiopian PenalCode, there is no provision for commutation of the sentence. Similarto the provision in the Constitution of Sudan, article 436 of the Codeof Criminal Procedure of Libya provides that the death penaltycannot be carried out on a pregnant woman until two months afterher delivery.151 In Libya, the time period after delivery is muchshorter than that in Sudan. Section 22(3) of the Cameroon PenalCode provides that a pregnant woman cannot be executed until afterdelivery.15Z It differs from the situation in Sudan and Libya in that itdoes not specify the time within which the execution can take placeafter delivery. Likewise, in Egypt, the execution of the death penaltyimposed on a pregnant woman shall be suspended until she hasdelivered her child. 153
Other African states have adopted the approach in the AfricanChildren's Charter with regard to the non-imposition of the deathpenalty on pregnant women. For example, section 211 of the KenyanPenal Code 1985 provides that the death 'sentence shall not be passedon a woman who is pregnant. It further states that only a sentence of
150 See atso section 193(2) of the Criminal Procedure Act of 1991.151 3rd periodic report of Ubya submitted under article 40 of the lCCPR, UN Doc.
CCPR/C/1021Add.1, 15 October 1997, para 122, hereinafter referred to as 3rdperiodic report of Ubya.
152 The Penal Code was adopted by Law No 67-LF-1 of 12 June 1967. Similarly, inSenegal and the DRC, pregnant women are excluded from the application of thedeath penalty until they have given birth. See 4th periodic report of Senegalsubmitted under article 40 of the lCCPR, UN Doc. CCPR/C/103/Add.1, 22November 1996, para 45 (hereinafter referred to as 4th periodic report ofSenegal); and 3rd periodic report of the Oemocratic Republic of Congo submittedunder article 40 01 the ICCPR, UN Doc. CCPR/C/CODIZ00513, 3 May 2005, para65, hereinafter referred to as 3rd periodic report of the ORe.
153 Article 476 of the Egyptian Code of Criminal Procedures. Cited in the commentsby the government of Egypt on the concluding observations of the Human RightsCommittee on the 3rd and 4th periodic reports of Egypt, UN Doc. CCPR/C01761EGYIAdd.1, 4 November 2003. para 11 (g).
btz
History, current status and application of the death penalty in Africa 41
life imprisonment can be passed. Section 212(3) of the same Codegives the Court of Appeal the power to quash a death sentence passedon a pregnant woman and substitute it with life imprisonment. In thesame way, in Ghana, section 312(1) of the Criminal Procedure CodeAct 30 1960 provides that a sentence of life imprisonment be passedon a pregnant woman and not the death sentence. Section 215 of theCriminal Procedure Act 1965 of Sierra Leone prohibits the impositionof the death penalty on a pregnant woman, and states that a sentenceor life imprisonment must be imposed. In Uganda, if a womanconvicted of a capital offence is found to be pregnant, the sentenceto be passed on her is life imprisonment instead of death. 154 Also, thedeath penalty cannot be imposed on a pregnant woman in Zimbabweand Madagascar. 155 In Nigeria, although the Criminal Procedure Actand Criminal Procedure Code prohibit the imposition of the deathsentence on a pregnant woman convicted of a capital offence, Shari'apenallaws in some states allow for its imposition on such women. 156
With reference to juveniles, Prokosch has pointed out that theexclusion of juvenile offenders is so widely accepted in law andpractice that it is '1i?proaching the status of a norm of customaryinternational law. 1 In Kenya, it was held in Turon v R that asentence of death should not be pronounced against a person underthe age of 18 years. 158 Consequently, the death sentence that had
154 Section 102 af the Tria[ on Indictments Decree 1971.155 Initial report of Zimbabwe submitted under artide 40 of the ICCPR, UN Doc.
CCPR/C/74/Add.3, 29 September 1997, para 65, hereinafter referred to as initialreport of Zimbabwe; 3rd periodic report of Madagascar submitted under article40 01 the ICCPR, UN Doc. CCPR/ClMDGIZ00513, 13 June 2005, para 106,hereinafter referred to as 3rd periodic report of Madagascar.
156 In states that do not apply Shari'a penallaws, a convicted woman has the right toappeal against the finding of the murt that she was not pregnant at the time ofthe conviction. Amnesty International, 'Nigeria: The death penalty and women
157 under the Nigerian penal systems' Allndex: AFR 44/007/2004, 10 February 2004.E Prokosch 'The death penalty versus human rights' in Council of Europe, Deathpenalty: Beyond abofition (2004) 28. As mentioned earlier, the above prohibitionhas been stated in international human rights instruments. In addition to the UNinstruments mentioned above, artide 4(5) of the American Convention prohibitsthe death penalty for persons below 18 years of age. The US Supreme (ourtrecentty abolished the death penalty for persons below 18 years of age at thetime of commission of the crime (see Roper y Simmons, US Supreme Courtjudgment of 1 March 2005). Also, the lnter-American Commission on HumanRights has found a violation of the right to life in cases where the death penaltywas imposed on persoos below 18 years of age. The Commission in its decisionshas noted that internationat law has developed so as to prohibit as a jus cogensnorm the execution of persons who were under i 8 years of age at the time oftheir crimes (see for example, Graham v Unfted States, Case 11.193, Report No97/03, 29 December 2003; Domingues v Unfted States, Case 12.285, Report No62/02, Annual Report af the /nter-American Commfssfon on Human Rights (2001);Thamas v United States, Case 12.240, Report No 100/03, 29 December 2003; andBeaz(ey y United States, Case 12.412, Report No 101/03, 29 December 2003).
158 Turon v R (1967) E.A 789 (CA), cited in M Bwonwong'a Procedures in Cfiminallawin Kenya (1994) 263.
42 Chapter Two
been imposed on the appeLlant was quashed and the appellant wasordered to be detained during the president's pLeasure. 159 Section27(2) of the PenaL Code of Sudan 1991 prohibits the passing of thedeath sentence on someone less than 18 years of age. This section isreiterated in section 33(2) of the Constitution of the RepubLic ofSudan 1998, which prohibits the death penalty for persons below 18years of age. The death penalty is prohibited for persons under theage of 18 in Egypt. 160 In Libya, if a person below 18 years of age butover 14 commits a capitaL offence, he or she is sentenced to a termof not less than five years' imprisonment, to be served at a placereserved for juveniles. 161 The death penalty has therefore beenprohibited for juveniles in the penal laws of countries that includeEthiopia 162 Ghana 163 Nigeria,164 Sierra Leone,165 Madagascar,166Sudan,Ji,'? Uganda168 and Zimbabwe. 169 The UN Committee on theRights of the Child has expressed concern about the applicability ofthe death penaLty for crimes committed by children under the age of18 in Liberia, and stressed that such a penalty is in violation of article37(a) of the CRC. 170 Therefore, the imposition of the death penaltyon persons below 18 years of age in some African states is a matter ofconcern.1?1
159 Bwanwong'a (n 158 aboye) 263.160 Artic{e 11 of the Children's Act Na 12 of 1998.161 3rd periodic report of Libya, para 123.162 ArUele 118 of the Penal Cade 1957,163 Sectian 295(1) of the Criminal Pracedure Cade Act 30,1960.164 5ectian 39(1) of toe Criminal Cade Act 1<J90 and sectian 363 of the Criminal
Procedure Act 1990. These sections prahibit the use of the death penalty forpersons below 17 years of age, This falls short of international standards (eg theCRC & African Children's Chlllrter), which sets 18 as the age below which a persanshould benefit from the special pratection of the law and prohibits the deathpenalty on anyone below 18. It should be noted that the death penalty has beenused llIgainst juvenile offenders in Nigeria. See Mohammed Garuba and Others vAttorney General of Lagos State and Others (Suit No ID/559m/<J0, High Court ofLagos State, Ikeja Judicial Division; cited in O Agbakoba & O Dbeagu Handbook onde'ath pe'nafty: Towards a moratorium in Nige'ria (2002) 11, in which \he deathsentence was passed on 12 chHdren.
165 Section Zlb of the Criminal Procedure Act 1965.166 3rd periodic report of Madagascar, para 106.167 Section 27(2) of the Penal Code 1991. See also the 2nd periodic report of Sudan
submitted under artide 40 of the IC(PR, Ul'-I Doc. CCPR/C/75/Add.2, 13 March1997, para 71, hereinafter referred to as 2nd perlodic report of Sudan.
168 Initial report of Uganda submitted under artide 40 of the ICCPR, UN Doc. CCPRIClUGA12003/1, 25 February 2003, para 141, hereinafter referred to as initialreport of Uganda.
169 Initial report of Zimbabwe, para 65.170 The Committee further urged the government to amend its penallaw in order to
abotish by law the imposition of the death penalty on persons less than 18 yearsof age and rep(ace existing death sentences on such persons with a sanction inaccordance with the CRe. See conduding observations of the Committee on theRights of the Child on the initial report of Liberia submitted under artide 44 ofthe eRc, UN Doc. CRClC/15/Add.236, 4 June 2004, para 26.
171 As seen aboye, the penalty is imposed on persons below 18 years of age in, forexample, Nigeria and Sudan. The Constitution of Sudan (article 36) provides forthe imposition of the death penalty on persons under 18 years of age in cases ofretribution or hudud.
History, current status and application of the death penalty in Africa 43
Furthermore, the restriction that the death penalty should not beimposed on peofle over 70 years old172 and on those who havebecome insane17 has not been as widely accepted in law and practicein Africa as that regarding juvenile offenders.174 Very few penallawshave provisions for persons over 70 years of age and some do notprohibit totally the imposition of the death penalty on such persons.In terms of section 338 of the Criminal Procedure and Evidence Act ofZimbabwe, the imposition of the death sentence on an offender overthe age of 70 years is prohibited. 175 In Sudan, the death penalty canbe imposed on persons aboye 70 years of age with regard to certaincrimes. 176 However, under section 193(1) of the Criminal ProcedureAct of 1991, if the person sentenced to death has reached the age of70 years, the execution is stopped and the accused is referred to theHigh Court for an alternative sentence to be imposed. Therefore,even if a person over 70 years of age is sentenced to death in Sudan,it is not possible for the sentence to be carried out.
Insanity, on the other hand, is considered in most jurisdictions asa defence against a criminal charge. For example in Zambia, in JosephMutaba Tabo v The people, the appellant was convicted of murderand sentenced to death. On appeal, the Supreme Court of Zambiafound him not guilty for reason of insanity.177 Likewise, deathsentences imposed on mentally ill persons have been set aside inNigeria, where, in August 2003, the Shari'a Court of Appeal in Dutsedismissed a death sentence by stonin~ on Baranda on the grounds thathe was suffering from mental illness. 78
4.2 Offences for which the death penalty is imposed
4.2.1 Murder
Murder is the most common offence for which the death penalty isretained and sorne countries in Commonwealth Africa have retained
17Z Artide 4(5) of the ACHR.173 ECOSOC safeguard No 3.174 Amnesty InternaUonal has documented many cases in the USA of prisoners
sentenced to death, and sometimes executed, despite their limited mentalcapacity or the fact that they were mentaUy illo See Amnesty International 'Oeathpenalty worldwide: Developments in 2003' Al Index: ACT 50/007/2004, April2004.
175 Initial report of Zimbabwe, para 65.176 See sections 27(2) & 48 of the Penal Code 1991 and section 33(2) of the
Constitution of the Republic of Sudan 1998.177 Joseph Mutaba Tobo v The People (unreported) SCZ Judgment No 2 of 1991.
http://zamlii.zamneLzm/courts/supreme/fuU/91scz2.htm(accessed 1 October 2003).
178 Amnesty lnternational (n 120 aboye) 68.
44,Chapter Two
the mandatory death penalty for this offence.179 Hatchard andColdham180 point out that the retention of the mandatory deathpenalty for murder appears harsh, as the definition of the off~nce
contained in the penal codes of some Commonwealth Afncancountries is considerably broader than its definition in contemporaryEnglish law. For example, in Tanzania, the definition of maliceaforethought in the Penal Code includes recklessness. 181 The problemwith this is that it provides room for an unintentional homicide toamount to murder under the Penal Code and thus to attract amandatory death sentence. This is contrary to ECOSOC safeguard No1, which provides that the scope of offences punishable by deathshould not go beyond intentional crimes.
Other countries have done away with the mandatory deathsentence for murder. The sentence is discretionary as it allows for theconsideration of extenuating circumstances. For example, section 201of the Penal Code, as amended by Act No 3 of 1990 of Zambia,provides that a person convicted of murder may receive a lessersentence than death where extenuating circumstances are presentoTherefore, in cases where the death sentence has already beenimposed by the trial court despite the presence of extenuatingcircumstances, it will be substituted with a lesser sentence on appeal.This was the case in Lemm~ Bwalya Shula v Th¡e Peop/¡e182 and Jos¡ephMwandama v Th¡e People18 in which the death sentences imposed onthe appellants for murder were substituted with imprisonment owingto the presence of extenuating circumstances. Further, section 38 ofthe Penal Code of Sudan 1991 provides for exoneration of an offenderby the victim or his or her relatives. In such a case, the offender willnot receive the death sentence, or if it has been imposed, it will notbe carried out.
4.2.2 (rimes against property
The increase in crimes against property involving the use of armsprompted some governments to introduce a mandatory deathsentence for certain offences against property. For example, robberywith violence was not a capital offence in Kenya until 1976, whenincreased incidences of the same led to the introduction of the deathsentence lor the aboye crime to, as reported by the government, act
179 Co!dham (n 44 aboye) 230.180 Hatchard &: Coldham (n 26 aboye) 158.181 Hatchard &: Coldham (n 26 aboye) 158.182 Lemmy Bwalya Shu{a v The People (unreported) SCZ Judgment No 6 of 1991.
http://zamlii.zamnet.zm/courts/supreme/full/96s0507a.htm(accessed 1 October 2003).
183 Joseph Mwandama v The People (unreported) SCI Appeal No 127 of 1995.http://zamlii.zamnet.zmfcourtsfsupreme/fuUf96s0507a. htm(accessed 1 October 2003).
History, current status and application of the death penalty in Africa 45
as a deterrent. 184 In Cameroon, the Penal Code AmendmentOrdinance No 72/16 of 1972 extended the death sentence toaggravated theft, providing for a mandatory death sentence forpersons convicted of aggravated theft. To guarantee the mandatorynature of the death sentence, the aboye ordinance prohibited theapplication of section 91 of the Penal Code to aggravated theft, whichis to the effect that the courts have a general power 'upon a findingof mitigating circumstances in favour of a person convicted of felony'where the offence is punishable with death, to impose a sentence ofnot less than ten years' loss of liberty in the alternative. 185 However,with the passing of Law No 90/61 of 19 December 1990, whichamended certain provisions of the Penal Code, the death penalty foraggravated theft is now discretionary. The passing of Law No 90/61of 19 December 1990 aboye in Cameroon is a positive developmentwith regard to steps towards the abolition of the death penalty.Another positive development worth noting is the adoption of the newPenal Code Act No 01-079 of 20 August 2001 of Mali, which no longerprovides for the death penalty for offences against publicproperty.186 Similarly, the new Penal Code of the Central AfricanRepublic no longer provides for the death penalty for offences againstproperty.187 The death sentence is imposed for aggravated robbery(armed robbery) in Ethiopia, Ghana, Kenya (where there is 1055 oflife), Malawi, Nigeria, Sudan, Uganda and 2ambia. 188
4.2.3 Political offences
The death penalty for political offences is common in countriesexperiencing a degree of unrest. This was the case in Nigeria during
184 2nd periodic report of Kenya submitted under article 40 of the lCCPR, UN Doc.CCPR/C/KEN/200412, 27 September 2004, para 48, hereinafter referred to as 2ndperiodic report of Kenya.
185 For more on capital theft in Cameroon, see W Capstick 'Capital theft and theCameroon Penal Code Amendment Ordinance 1972' (1973) 13 British Journal ofCriminology 284.
186 2nd periodic report of Mali submitted under article 40 of the [CCPR, UN Doc.CCPR/C/MU12003/2, 13 January 2003,26, hereinafter referred to as 2nd periodicreport of Mali
187 2nd periodic report of the Central African Republic submitted under article 40 ofthe ICCPR, UN Doc. CCPR/C/CAFI2004I2, 21 September 2005, para 218,hereinafter referred to as 2nd periodic report of the Central African Republic.
188 See article 637(2) of the Penal Code of Ethiopia 1957, section 296(2) of the PenalCnde of Kenya 1985, section 168(1) of the Penal Code of Sudan 1991, Section402(2)(a) So (b) of the Criminal Code Act of Nigeria 199D, and section 294(2) of thePenal Code of Zambia 1990. Also stated in the reports of the national coordinatorsof Ghana, Malawi and Uganda presented at the First International Conference onthe Application of the Death Penalty in Commonwealth Africa in Entebbe, Ugandafrom 10 - 11 May 2004.
46 Chapter Two
the Nigerian state of emergency 1966 - 1970, during which a numberof political offences were made capital. 189 In some countries, thepolitical offences are limited to offences of waging or attempting towage war against the state. In others, it is much wider comprisingtreason, attempting to seize power by unconstitutional means,espionage, attempts on the life of the head of state, acts of terrorism(such as hijacking of aircraft, which is a capital offence in Egypt),sabotage, use of firearms and explosives especially but notnecessarily if it results in death (DRC, Ghana and Nigeria), and tradingillegally in or smuggling, arms (Uganda).190
With regard to treason, section 39(1) of the Penal Code Cap 16 ofTanzania, for example, provides for a mandatory death sentence fortreason. Other countries in which the death sentence (mandatory ordiscretionary) is provided for in law as the punishment for treasoninclude Botswan~ Cameroon, Ghana, Sierra Leone, Uganda, Zambiaand Zimbabwe.1 1 The Freetown High Court passed ten deathsentences in December 2004 against ten men convicted of treason.This has been seen as an extremely regressive step as it comes onlyweeks after the Truth and Reconciliation Commission of Sierra Leone(TRC) recommended the complete abolition of the death penalty inSierra Leone. 192 In Zambia, 59 men were sentenced to death followingan attempted coup in October 1997, despite the fact that no personswere harmed. 193 The imposition of the death sentence in such casesis seen as disproportionate as discussed in chapter five. In 1993, theEgyptian Penal Code defined too widely the range of acts covered byarticle 86 on terrorism, which can be punished by the death penalty.This was highly criticised by the UN Human Rights Committee. 194 Asstated earlier, the Human Rights Committee, established under theICCPR, has noted with concern the ver~ large number of offencespunishable by death under Egyptian law. 95
189 Also, in South Africa in the 1960s, after a number of politically mativatedincidents of sabotage together with child stealing and kidnapping, the offenceswere made capital.
190 Hood (n 98 aboye) 78·80.191 Reports of the national coordinatars of the aboYe countries presented at the First
International Canference on the Application of the Death Penalty inCommonwealth Africa in Entebbe, Uganda fram 10 - 11 May 2004.
192 Amnesty International 'Sierra Leone: Amnesty lnternational expresses dismay at10 death sentences for treason' Allndex: AFR 51/00912004, 21 December 2004.
193 Hood (n 98 aboye) 78.194 Hood (n 98 aboye) 79.195 Cancluding observations of the Human Rights Committee on the 3rd and 4rth
periadic reports of Egypt submitted under article 40 of the ICCPR, UN Dac. CCPRIC0I76/EGY, 28 November 2002, para 12. The Committee noted with concern thevery large number of offences punishable by death under Egyptian law.
ñ
History, current status and application af the death penalty in Africa 47
4.2.4 Economic crimes and drug-related offences
Economic crimes that have been made capital inelude: embezzlementof public funds or theft of public property (DRC, Mali, Niger, Somalia,Sudan and Uganda), currency speculation (DRC), economic sabotageand embezzlement (Ghana), economic sabotage (Nigeria), andmanufacturing and distributing counterfeit money or securities(Algeria).196 Hatchard and Coldham try to explain why the deathpenalty has been extended to certain economic crimes in someCommonwealth African countries, stating the following:
The deterioration in [the] economies of many Commonwealth Africancountries over the last thirty years has often been accompanied by anincrease in corruption, sabotage, smuggling, black-marketeering and thelike, and this has frequently led governments to create new offences, toimpose harsh penalties. 197
It is elear from the aboye that it is the increase in economic crimes,caused by the deterioration in the economies, that led governmentsto make certain economic crimes capital. But the question that arisesis: Will making these crimes capital prevent the economies fromdeteriorating? The answer to this question is negative. Making theseoffences capital will not curb the increase in economic crimes. Whatwill actually curb the increase in economic crimes is improvement inthe economy. It is important for governments in countries with highrates of economic crimes to find out why the economy isdeteriorating, as solving this question will in turn reduce theeconomic crime rates. Generally, governments focus more onimposing harsh penalties instead of trying to investigate the causes ofcrime. In fact, executions have been seen as symbols of the inabilityor unwillingness of governments to tackle the root causes of crime,such as poverty and inequality.198 Accordingly, Van Rooyen has statedthe following:
[The death sentence] is a very convenient political alternative to realeffective and difficult public protection and crime preventionprogrammes. It is a cheap way for politically inclined people to pretendto their fearful constituencies that something is being done to combatcrime, to protect the innocent. It obscures the real difficulties, the realcauses of crime. It delays long-term commitment to address thesemeaningfully.199
With regard to drug-related offences, countries in North Africa haveintroduced the death penalty for both the importation and possessionfor sale of certain quantities of drugs, or have made the death
196 Hood (n 98 above) 82-83. The death penalty 1s also provided tor economic crimesin Burkina Faso, Cameroon, Ethiopia, Libya, Malawi, and Togo.
197 Hatchard ft Coldham (n 26 aboye) 159.198 Agostoni (n 33 above) 77.199 J van Rooyen 'The criminal judge and the death sentence: Some observat1ons on
the views of Mr Just1ce Curlewis' (1991a) 32 Codicillus 4 9-10.
48 Chapter Twa
sentence mandatory lor such olfences where it was previouslyoptional. This has been in response to international concern about thegrowth 01 illicit trallicking in drugs. 200 The UN Special Rapporteur onextrajudicial, summary or arbitrary executions has stated that 'thedeath penalty should be eliminated lor crimes such as economiccrimes and drug-related oflences'.201 It is therelore important tonote that applying the death penalty to a wide range of economiccrimes and drug-related offences is incompatible with artide 6 01 theICCPR, as some of the olfences cannot be characterised as the mostserious.
4.2.5 Sexual offences
Some countries in Africa, especially in North Alrica, maintain thedeath penalty for sexual offences owing to the influence of IslamicLaw. Also, as noted aboye, Swaziland is considering the death penaltyfor rape. Capital sexual oflences indude: adultery - where theoffender is married; conviction for homosexuality for the third time;incest or gross indecency that amounts to adultery or homosexuality;abduction combined with rape; aggravated rape or rape of a minor;sodomy, and unlawlul sexual intercourse with a prisoner. 202 Thedeath penalty for the oflence of rape, especially in cases where itdoes not lead to death, is very disproportionate and excessive, andincompatible with artide 6 01 the ICCPR, as it cannot be characterisedas a 'most serious crime'. This has been the position 01 the USSupreme Court, which lound the death sentence lor the offence ofrape to be excessive and disproportionate. 203
The death sentence for 'exercising unnatural behaviour' is alsoexcessive and disproportionate. In February 2001, a court in Puntlandin Northern Somalia sentenced to death two women who had a lesbianrelationship for being guilty of 'exercising unnatural behaviour'. 204
The death sentence in this case was excessive and disproportionate,as having a lesbian relationship cannot be seen as one of the mostserious crimes.
200 Hood (n 98 above) 80-81. Drug-related offences have been made capital in Egypt,Libya, Nigeria, and Sudan.
201 'Extrajudicial, summary or arbitrary executions' Report by the SpecialRapporteur, UN Doc. E/CN.4/1997/60, 24 December 1996, para 91.
202 A number of sexual offences have been made capital in Sudan, Egypt, Lesotho,Malawi, Nigeria, Uganda, Tunisia, Morocco and Zimbabwe.
20] This was the position of the US Supreme Court in Coker v Georgia (1977) 433 US584. However, this decision applied only to the rape of an adult woman as theLoulsiana Supreme Court pointed out in Louisiana v Wilson 1996 WL 718217 (13December 1996). The Court held in this case that the death penalty for the rapeof a female under the age of 12 years was nat unconstitutionaL
204 Reported by BBC News, 23 February 2001. Cited in Hood (n 98 above) 84.
i±r
History, current status al1d application 01 the death penalty in Africa 49
4.2.6 Religious dissent
The death penalty for religious dissent is common in Muslim countries.Religious dissent in the form of blasphemy or apostasy (Egypt, Libyaand Sudan), giving or fabricating false evidence with the intent tocause any person to be convicted of an offence punishable with deathand leading to the conviction and execution of an innocent person(Nigeria), and kidnapPin~ f,Algeria, Egypt and Guinea) have also beenmade capital offences. o However, in Sudan for example, theconvicted apostate isdl,iven time to repent, but if he does not repenthe will be executed.l
5 The question of the mandatory imposition of thedeath penalty
As mentioned aboye, the death penalty is mandato\)' for certainoffences, for examp'le treason and murder in Kenya, ID murder andtreason in Malawi,IOa for aggravated robbery in Zambia,109 andmurder in Tanzania. l1D This is a matter of concern as judges in suehcountries are under a legal obligation to impose the death sentenceonce an accused is found guilty, as it is the only punishment the lawpermits for the criminal offence in question. The mandatory deathpenalty is, therefore, obviously one of the reasons for the ongoingpassing of death sentences in African states.
The mandatory death penalty in some African states, especiallyCommonwealth African states, is a coloniallegacy. Death was the onlysentence that could be pronounced upon a defendant who wasconvicted of murder, regardless of the nature of the offence or theparticular circumstances of the offender, under the common law ofEngland. 211 Britain applied this rule to many of its colonies, and uponindependence, as noted in chapter two, the penal policies of mostAfrican states showed a remarkable continuity with those of their
205 Hood (n 98 aboye) 85.206 See, for examp{e, the case of Mahmoud Mohamed Taha, a 76,year-old, who was
found guilty (together with four others) of subversion and sentenced to death.They were previously given one month to repent, which was later reduced tothree days. Mohamed was hanged, as he did not repent. The other four repentedpublicly on television and were freed. See Amnesty lnternational (n 112 above) 38& 48. The case 1S discussed in chapter (ive.
207 Report of the national coordinator of Kenya, Joy Asiema, presented al the Firstlnternational Conference on the Application of the Death Penalty inCommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.
208 See lnternship Report of Aron RoUin http://www.wmin.ac.uk/ccps/Internships2003_2.htm (accessed 20 July 2004).
209 Lubuto v Zambia, Communication No 390/1990, UN Doc. CCPR/C/55/D/39011990/Rev.1, 31 October1995.
210 Section 196 & 197 of the Tanzanian Penal Code (Cap 16).211 J Harrington 'The challenge to the mandatOlY death penalty in the
Commonweatth Caribbean' (2004) 98 American Journaf of Internationa/ Law 130.
SO Chapter Two
colonial predecessors. Thus, the mandatory death penalty wasretained in lormer British colontes.
The mandalory nature 01 the death penalty lor certain crimes hasnot been the main subject 01 challenges to the death penalty inAfrica. Among the lew cases in which the issue has been raised, thejudgment in 5usan Kigula and 416 Others v The Attorney General isworthy 01 note.212 The petitioners in this caSe challenged, in thealternattve, the mandatory death penalty in Uganda. TheConstitutional Court lound the various provisions 01 the law thatprescribe the mandatory death sentence unconstitutional as theindividuals concerned are not accorded the opportunity to mitigatetheir death sentences. 213
Nonetheless, the constitutionality 01 mandatory death sentenceshas been subject to worldwide judicial scrutiny and consideration,resulting in virtually unanimous condemnation 01 statutes providinglor mandatory death sentences. Mandatory death penalty statuteshave been struck down in many jurisdictions on the grounds that theyare a violation 01 the right to lile, are cruel and inhuman,214 and thatthey are a violation 01 the right to a lair trial as they are arbitrary,unlair and disproportionate.
The UN Human Rights Committee has lound the mandatory deathsentence to be in violation 01 the right to lile under article 6 01 theICCPR. The Human Rights (ommittee addressed the issue 01 themandat0Qi; death penalty lor aggravated robbery in Lubuto vZambia.2 Since the death sentence lor aggravated robbery wasmandatory, the author 01 the communication was convicted andsentenced to death lor aggravated robbery despite the lact that noone was killed or wounded during the robbery. The Human Rights(ommittee was 01 the view that the mandatory death penalty underthe aboye circumstances violated article 6(2) 01 the I((PR, whichallows lor the imfosttion 01 the death penalty only 'Ior the mostserious crimes' .21 The Committee's decision was based on the lactthat the court could not take into consideration the lact that the USe
212 Susan Kigula and 416 Others v The Attorney General, Constitutional Petition No 6of 2003, judgrnent delivered in June 2005, d\scussed 10 chapters four and five,hereinafter referred to as Susan (2005).
21] As aboye, at 40. The Coostitutlonal Court went further to provide the governmentwith a two-year periad to give effect to the judgment, after which atl deathsentences wau\d be set aside. It a\so held that the prisoners who had been ondeath row for more than three years were entitted to have their death sentencescammuted to life imprisonment.
214 In Woodson v North Carolina (1976) 428 US 280, the US Supreme Court held that amandatory death sentence wlthout consideration of the nature of the offence orthe circumstances of the offender constitutes cruel and unusual punishment. Seealso Roberts Vloui'iana (1977) 431 US 633, lockett vohio (1978) 438 US 586, andSUmner v 5humon (1987) 483 US 66.
215 LubutD v Zambia, Communication 390/1990, UN Doc. CCPRICl55/01390/1990/216 Rev.l. 31 October 1995, para 3.1.
As aboye, para 7.2.
ti
-
H;stary, current status and application o{ the death penalty in Africa 51
of firearms 'did not produce the death or wounding of any person' inimposing the sentence.Z17 Also, in Thompson v Saint Vincent and theGrenadines, Z18 the UN Human Rights Committee heId that a system ofmandatory capital punishment would deprive a person of the mostfundamental of rights - the right to life - without consideringwhether this exceptional form of punishment is appropriate in thecircumstances of his or her case. The Committee was, therefore, ofthe view that the carrying out of the death penalty in such a casewould constitute an arbitrary deprivation of life in violation of article6(1) of the ICCPR. Z19
Recent decisions of the Judicial Committee of the Privy Council(Privy Council)ZZO that stem from countries of the Commonwealthhave found the mandatory death penalty to be unconstitutional. Forexample the Privy Council held unanimously, in Reyes v TheQueen, Z21 that the mandatory death penalty for murder contravenedthe prohibition on cruel, inhuman and degrading punishment as it wasdisproportionate, inappropriate, and denies the accused his basichumanity. In Roodal v The State af Trinidad and Tobago,ZZ2 the PrivyCouncil quashed the mandatary death sentence far murder, basing itsdecisian on the fact that the death penalty need no langer be read asmandatory by virtue of a generous interpretation of the rights in theConstitutian, taking inta accaunt the international obligations ofTrinidad and Tobaga.
217 As aboye.218 Thompson v Sa;nt Vincent and the Grenad;nes, Communieation 80611998, UN
Ooc. CCPR/C/70/0/806/1998, October ZOOO, para 8.Z.219 As aboye. See also the reeent case of Rolando v Phmppines, (ommunication
1110/200Z, UN Ooc. CCPR/C/8Z10/1110/200Z, 8 Oecember Z004, para 5.2, inwhich the (ommittee found the mandatory imposition of the death penalty to bean arbitrary deprivation of life.
220 The decislons of the Privy Couneil are particularly instruetive to (ommonwealthAfrican states as they inherited their legat systems from the United Kingdom. Thedecisions also serve as a source of reference ta ather Afriean states. The decisionsof the Privy Couneil have led to the abolition of mandatory death sentenees inmany jurisdietions. Far exampte, they led to the abolition of the mandatory deathpenalty for murder in Jamaica in July 2004 (see e Dyer, 'UK limits Jamaica deathsentence' http://www.guardian.co.uk/printlO,3858,4966067·103690,00.html(accessed 19 July Z004).
221 Reyes v The Queen (2002) 2 App. Caso 235 (Privy (auneil), para 43. The decision inReyes was eanfirmed by the Privy (auneil in The Queen v Hughes (2002) 2 App.Caso 259 (Privy Council) where it was again held that the mandatory deathpenalty for murder was cruel, inhuman and degrading, and thereforeuneonstitutionaL. The aboye judgments were further canfirmed in Fax v TheQueen (2002) 2 App. Caso 284 (Privy Council) in which the Privy Council held thatthe eriminallaw provision in the eode of St Kitts and Nevis was uneonstitutional tothe extent that it re9uired a court to impose the death penalty on thoseconvicted of murder. Pnvy Couneil judgments are available at http://www.privyeouncil.org.uk (aceessed 1 September 2006).
222 Roodal v The State o{ Trinidad and Tobago, Privy CouneH Appeal No 18 of 2003,judgment of 20 November Z003, paras Z9·31 f1 35; [Z003J UKPC 78. See alsoForrester Bowe (Junior) and Trono Davis v The Queen, Prívy Counil Appeal Na 44of ZOOS, judgment of 8 March 2006 [2006] UKPC 10.
52 Chapter Two
The Inter-American Commission on Human Rights223 and the InterAmerican Court of Human Rights have also found mandatory deathsentences to be unconstitutional. In Hilaire et al v Trinidad andTobago,224 the Inter-American Court heId that a legislative schemathat submits all persons charged with murder to a judicial processthat does not consider the individual circumstances of the accused orthe particular nature of the crime violates the prohibition against'arbitrary' deprivation of life. This decision is very important in thatthe Court arrived at its decision despite the saving clause in theConstitution. This can be insightful with regard to challenges to themandatory death penalty in Africa as the African Charter and sornenational constitutions prohibit the arbitrary deprivation of Iife. Thisallows for the possibility of an interpretation to the effect thatmandatory death sentences in such jurisdictions are an arbitrarydeprivation of life.
In the Commonwealth Caribbean, the most recent series of legalchallenges to the death penal~ deals with the mandatory nature oflhe death penalty for murder. 5 This could also be a positive routeto take in Africa, with the goal of abolishing the death penalty. If onetakes into account the aboye decisions, this route is importantbecause in retentionist African states, where the death penalty ismandatory for certain offences, executions would amount to anarbitrary deprivation of life as convicted persons are executed forcrimes that do not exhibit characteristics of utmost seriousness inviolation of article 6(2) of the ICCPR.
Therefore, it is clear that for a trial lo be fair and to establishwhether the death penalty is an appropriate sentence for anindividual case, accused persons should have the opportunity topresent mitigating circumstances that arise in their case, whichdistinguishes them from other more severe cases of the same crime.Otherwise, the imposition of the death penalty would constitute aviolation of the right to life (and the right not to be subjected tocruel, inhuman and degrading punishment). The abolition of themandatory death penalty in retentionist African states is thereforevital, with a view to completely abolishing the death penalty.
22] In Aitken v Jamaica, Case 12.275, Report No 58/02, 21 October 2002 and Sewelf vJamaica, Case 12.347, Report No 76/02, 27 December 2002, the Inter·AmericanCommission found the imposition of a mandatory death sentence to beinconsistent with article 4(1) of the American Conyention.
224 Hjfaire et al v Trinidad ond Tobago, judgment of 21 June 2002, Series C, No 94,paras 103 &. 106. The Inter·American Commission on Human Rights also found themandatory death penalty to be cruel, inhuman and degrading in a number ofcases (see Downer and Tracey v Jamaica, 13 April2000, Report No 41/00; Baptistev Grenada, 13 April2000, Report No 38/00; Edwards v The Bahamos, 4 AprH 2001,Report No 48/01. (Decisions ayailable at website http://www.cidh.oas.org(accessed 20 July 2004).
225 Harrington (n 211 aboye) 126.
Histary, current status and applicatian af the death penalty in Africa 53
6 Death sentences and executions between 2000 and2005
In states that are considered abolitionist in practice and inretentionist states, the passing of death sentences has been ongoing.Death sentences reportedly passed in some African states between2000 and 2005 are reflected in table 2.1 below. 226
Anumber of previous studies have avoided addressing reasons forthe continued passing of death sentences in some countries on theAfrican continent. 117 Retention of the death penalty in the statutebooks of most African states is obviously a reason for the ongoingdeath sentences, as judges have to apply the law. Another reasoncould be that some capital trials do not conform to international andnational fair trial standards, as seen in chapter five. Proceduralsafeguards for the imposition of the death penalty are often notadhered to in some African states, which can lead to the passing ofdeath sentences in cases where it would not have otherwise beenpassed. The passing of some of these death sentences could also beattributed to polítical pressure, especially in cases where an offenderis charged with a polítical offence, for example terrorism or treason.In such cases, there is a possibility of the death penalty being used asa tool of political repression. 228
Although the passing of death sentences has been ongoing inAfrica, the number of countries that actually carry out executions hasreduced as illustrated in figure 2.2 below. The reasons for thedecrease in executions could be partly attributed to the fact that amoratorium on executions exists in some countries. For instance, inGhana, Mauritania, Liberia, Malawi, Swaziland and Zambia there is amoratorium on executions (official and unofficial). There aredifferent reasons for such moratoriums. In Swaziland the reason givenby the government is that it has suspended executions while itsearches for a more humane way of carrying out the death
226 The figures presented in Table 2.1 are based on information from a variety ofsources, including: Comments by the government of Egypt on the concludingobservations of the Human Rights Committee on the 3rd and 4th periodic reportsof Egypt, UN Ooe. CCPR/CO/76/EGY IAdd.1, 4 November 1003, para 9; AmnestyInternational (n 15 aboye) 61-62,166,203 & 272; Amnesty International AmnestyInternatianal Report (2002) 63,94,115,145,161,186,209,130 & 245; AmnestyInternational Amnesty Internat/anal Repart (2003) 63, 68, 95, 103, 148, 164, 211,233, 250 &258·259; Amnesty Internatiollal (n 120 aboye) 33. 37, 52-53, 68, 71 &84; Amnesty lnternational Amnesty International Report (2006) 79, 97, 117, 129,170, 199, 234 & 266; and Arnnesty Internatianal website http://wwvv.amnesty.org/deathpenalty (accessed 31 August 2006).
227 For example, Hood discusses the scale of death sentences in the USA and Africa.He points out that there have been fluctuations in the nurnber of death sentencesworldwide over the past 20 years, but does nat provide the reader with reasonsfor the increase in the nurnber of death sentences in sorne African countries. SeeHood (n 98 aboye) 87-93.
ZZ8 See chapter five.
54 Chapter Two
sentence.229 However, it has been alleged that the true reason whyexecutions have not taken place is because the government has notbeen able to procure another executioner since the last one died. 230
Executions are currently not carried out in Malawi because the formerpresident, Dr Muluzi, Rromised never to sign the death sentence for afellow human being. 31 The Zambian president has also refused tosign execution warrants.zn
"':;;=========::::;;;;::===;---------
,,-1+---------
..-1+---
o
• Numbet" of cOUlltrles In whlch deathsentefltei werv paued
1] Number uf countrles In whkh exectItll)fl$
we¡-ecarnedOllt
Figure 2.2: Seale of death sentenees and executions between 2000 and2005
The fact that death sentences continue to be passed, but theexecutions are not carried out leads to an increase in the number ofprisoners under sentence of death or on death row. Z33 For example,by the end of 2000 there were more than no persons on death row inZambia and up to 100 in Ethiopia.234 By the end of 2001, there were440 people under sentence of death in Burundi, 59 in Swaziland and1925 in Kenya.Z35 By the end of 2002, there were at least 450 on deathrow in Burundi, more than 80 in the DRC, at least 12 in Swaziland and354 in Uganda.236 By the end of 2003, over 450 prisoners were under
229 Report of the national coordinator of Swazitand, George Vukor-Quarshie,presented at the First International (onference on the Application of the Death
230 Penalty in Commonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.As aboye.
231 Statement from his speeeh to the 8th General Assembly of the World (ouneil ofChurches in Harare, Zimbabwe, quoted in Agostoni (n 33 aboye) 16.
n2 'Zambia: President outlaws death penalty'http://www.legatbriefafrica.co.za/newsletters/LBAfricaUSA029.html (aceessed13 February 2004).
2]] It should be noted that there are numerous prisoners on death row, especiaUy inde {acto abolitionist African states or those that have a moratorium in place.Howeyer, the exact numbers have nat been documented.
234 Amnesty Internationat (n 15 aboye) 100 B: 272.235 Amnesty Internationat (n 226 aboye) 63 B: 245; Mugonyi B: Njeru (n 7 aboye).236 Amnesty International (n 226 aboye) 63, 80, 236 a 258.
History, current status and application o[ the death penalty in Afrfca 55
sentence 01 death in Burundi and at least 3200 were on death row inKenya. 237 However, with regard to Kenya, in 2004 the governmentstated that there are 1900 convicts who had been sentenced to deathserving in Kenyan jails. 01 these, 200 had exhausted their judicialremedies in terms 01 seeking to have the death sentence lilted, and1700 had not yet exhausted their judicial remedies. 238 This reductionin number was a result 01 the commutation 01 death sentences inKenya in 2003 - 195 death sentences had been commuted and 28prisoners (those who had served 15 - 20 years) had been released. 239
As at July 2003, there were 487 prisoners on death row in Nigeria this was the total lor 24 states, with the state 01 Ogun having thehighest number with 107 death row inmates.240 In Uganda as 01 1January 2004, there were 457 death row inmates. 241 At the end 012004, 533 people were on death row in Burundi, at least 27 inCameroon, 20 in Chad, about 200 in the DRC, 946 in Kenya (in June),391 (in AU!l,¡ust) in Tanzania, and at least 525 in Uganda, and three inSwaziland. 42 By the end 01 2005, there were 499 people on death rowin Burundi, 400 in Tanzania, over 555 in Uganda (27 01 them women),three in Swaziland, hundreds in the DRC and over a dozen inEthiopia.243 Notwithstanding, executions have reportedly taken placein some Alrican states between 2000 and 2005, as reflected in table2.2 below. 244
2]7 Amnesty International (n 120 aboye) 36 &. 57.2]8 2nd periodic report of Kenya, para 54.2]9 Hands off Cain (n 97 aboye) 50.240 Amnesty lnternational (n 144 aboye).241 Report of the nationa! coordinator of Uganda, Emmanuel Kasimbazi, presented at
the First International Conference on the Application of the Death Penalty inCommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.
241 See generaUy, Amnesty International (n 97 aboye).24] See generaUy, Amnesty lnternational (n 226 aboye).244 The figures presented in Table 2.2 are based on information from a yariety of
sources, induding: Amnesty International (n 15 aboye) 61 a 94 of 2001 report, (n226 aboye) 94, 115 tt 230 01 2002 report, (n 226 aboye) 95, 233 tt 258 01 2003report, (n 120 aboye) 40 of 2004 report, (n 226 aboye) 234 of 2006 report; HandsOff Cain (n 97 aboye) 158; Amnesty International website http://www.amnesty.org/deathpenalty (accessed 31 August 2006).
56 Chapter Two
Table 2.1 Death sentences between 2000 and 2005245
2000 2001 2002 2003 2004 2005Burundi (99) Burundi (40) Burundi (50) Algeria Algeria (21) Burkina FasoEgypt (79) Central African Central African Burkina Faso Burundi (44) (2)Mali (14) Republic (I) Republic (25) (2) Cameroon (27) Burundi (4)Malawi (53) Egypt (103) Egypt (115) Burundi (14) Chad (19) DRCRwanda (164) Guinea (22) Ethiopia (7) Cameroon (8) DRC (27) EgyptZambia (11) Kenya (26) Kenya (126) Chad (4) Egypt (1) Ethiopia
Libya (8) Libya (2) DRC (3D) Equatorial GhanaNigeria (31) Njgeria (12) Egypt Guinea (1) Guinea (2)Rwanda (120) Rwanda (40) Ethiopia (6) Eritrea (7) Liberia (3 laSudan (26) Sudan (120) Ghana (1) Ethiopia (3) LibyaSwazitand (12) Togo (1) Malawi Kenya MalawiTunisia (1) Uganda (24) Moroeeo (14) libya (6) Mali
Nigeria (1) Moroceo (1) MoroceoRwanda (18) Nigeria (14) Nigeria (4)Somalia Rwanda Somalia (8)Sudan (24) Senegal (1) SudanSwaziland (1) I Sierea Leone Tanzanja
, Tanzania (10) Uganda
I
I
Somalia ZimbabweSudan (100)
~TanzaniaUganda
~_-----L Zimbabwe
a. The sentences were subsequently dismissed.
Table 2.2 Executions between 2000 and 2005246
2000 2001 2002 2003 2004 2005 I
Burundi (2) Botswana (1) Egypt Egypt Egypt (6) Libya 1Egypt (22) Egypt (4) Nigerja (1) Botswana (4) Sudan (2) SomaliaGuinea (7) Sudan (40) Chad (9) SomaliaSudan {3) Uganda (2) DRC (15) Tanzania (1)Zimbabwe (3) Sierra Leone
JJLUganda (2) (10)
I
Somatia (4)Sudan (13)Uganda (7)
IZimbabwe (4)I
245
246
In 2003, 2004 and 2005 the numbers ot death sentences passed are reported for12, 15 and six states respectively.The numbers of executions were not reported for Egypt in 2002 and 2003, and torLibya and Somalia in 2005.
,
Three I The right to life and the deathpenalty in Africa
1 Introduction
Although in the horizontal legal system of international law,ldiscussion of which rights take priority over others remainsunsettled,2 the right to life has been described as '[t]he mostfundamental of al! human rights'. 3 Al! human rights are of nosignificance without the right to life as 'life' is a prerequisite for theenjoyment of any other human rights. Accordingly, 'the right to lifehas been properly characterised as the supreme human right, sincewithout effective guarantee of this right, al! other rights of a humanbeing would be devoid of meaning'. 4
As stated in a number of human rights treaties, there are somerights that states may derogate from in times of emergency, but thereare also others that states may not derogate from as these rights aredeemed indispensable for a human rights regime. Among the nonderogable rights is the right to life. 5 The UN Human RightsCommittee, has observed that the right to life is the supreme rightfrom which no derogation is permitted even in times of publicemergency that threaten the life of a nation.6 The Committee furthernoted that all measures of abolition should be considered as progressin the enjoyment of the right to life.? In support of the condusion ofthe Human Rights Committee, the UN Special Rapporteur onextrajudicial, summary or arbitrary executions has emphasised that
4
67
The horizontal legal system of international taw ptaces aH norms on the sameplane, their interrelations ungoverned by any hierarchy. However, the ranking ofrights is significant in determining states' obligations to respect and protectcertain rights under a variety of circumstances (see T Orlin 'The right to lite I theright to die: The rights, their interrelationship and the jurisprudential problems'in T Orlin et al (eds) The jurisprudence of human rights law: A comparativeInterpretative approach (2000) 73).As aboye. The Inter-American Commission on Human Rights al50 regards the rightto life as fundamental and pre-eminent (see 5 Davidson The !nter-Americanhuman rights system (1997) 261).Lord Bridge in R v Home Secretary, Ex parte Bugdaycay [1987] AC 514, [1987] 1 AllER 940 (HL) at 5314 (AC).M Nowak 'UN Covenant on Civil and Political Rights: CCPR Commentary' referredto in Orlin (n 1 aboye) 74. See a150 5 Carl50, a G Gisvold Practical guide to the/nternatíona/ [ovenant on Civil and Political Rights (2003) 67.Other non·derogable rights include fair trial rights, and prohibition of torture,slavery and retroactive measures.See generally, CCPR General Comment No 6.CCPR General Comment No 6, para 6.
57
58 Chapter Three
the abolition of capital punishment is most desirable in arder fully torespect the right to lIfe.8
Though the right to life prevails over every other moralconsideration that might be thought to compete with it or overrideit,9 characterising the right to life as the supreme right does not meanthat it is absolute. At the international or nationallevel, the right tolife is not accorded the status of an absolute right,10 as self-defence,from a moral and ethical point of view, justifies the taking of life byan individual or even the state under certain circumstances. 11 On theother hand, the death penalty cannot be construed as an act of selfdefence against an immediate threat to life.
Although the right to lIfe is not absolute, it is still the 'supremeright' and the 'most fundamental' of all human rights. Wennergrenhas stressed the importance of the right to life in a dissent in Kindlerv Canada, 12 in which he stated:
The value of life is immeasurable for any human being and the right tolife enshrined in article 6 of the Covenant is the supreme human right. Itis an obligation of 5tate parties to the Covenant to protecl lhe lives ofall human beings on their territory and under their jurisdiction. If issuesarise in respect 01 lhe protection 01 the right to life, priority must not beaccorded to the domestic laws of other countries or to (bilateral) treatyarticle5. Discretion of any nature permitted under an extradition treatycannot apply, as there is no room for it under Covenant obligation5. It i5worth repeating that no derogation from a 5tate's obligations underarticle 6, paragraph 1, is permitted ...
Therefore, for the purposes of punishment under law, everyone's lifeis valuable and lives have equal value. Human life has infinite valueor worth and so must be respected and protected accordingly, whichtherefore follows that even murderers have to be treated in the lIghtof the value of their lives, a value not erased b~ the harm or injusticetheir lethal violence has caused the innocent. 3 Thus, sentencing todeath and executing a person violates that person's right to life sinceeven a murderer has an indisputable right to life, which has to berespected and protected in the same way as the right to life of a nonmurderer is respected and protected. In addition, Sane has argued
9
8
11
13
Report by the Special Rapporteur on extrajudicial, summary or arbitraryexecutlons, UN Doc. E/CN.4/1997!60, 24 December 1996, para 79.See H Bedau 'Abolishing the death penalty even for the worst murderers' in ASarat (ed) The kilUng state: CapitaL punishment ;n law, politics and culture(1999) 43.
10 e Boyle 'The concept of arbitrary deprivation of life' in B Ramcharan (ed) Theright to lite in internationallaw (1985) 221,222-223.G Devenish The Application of the death penalty ín South Atríca: Its hlstoricaland jurisprudential evo/utlon and background and its relationshíp withconstítutional and political reform (1990) 17.See dissenting apinion of Mr Bertil Wennergren in Kindler v Canada,Communication 470/1991, UN Doc. CCPR/C/48/D/470/1991, 3D July 1993 (HumanRights Committee).Bedau (n 9 aboye) 40.
12
ni
14
The iight to life and the death penalty in Africa 59
that 'deliberatety killing someone violates the most basic 01 all humanrights - the right to lile - and has no place in today's world' .14 Thus,the core 01 the case against capital punishment is the notion thatthere is something inexcusable about taking the lile even 01 a personguilty 01 an atrocious crime. 15
Some delenders 01 the death penalty have, however, argued thata murderer lorfeits his lile, and hence puttin~ him to death does notviolate his right to lile but merely inlringes it. 6 lt is not disputed thatunder appropriate conditions persons can lorleit their rights. 17 Butthe question to be asked is: What about the other rights 01 themurderer that can be enjoyed only il he is alive or his rights to dueprocess 01 law and to equal protection 01 the law? As seen below,where the death penalty is provided as an exception to the right tolile, procedural saleguards must be adhered to. 11 proceduralsaleguards are not respected, the imposition 01 the death penalty willamount to a violation 01 the right to lile.
This chapter examines the right to lile and its relation to thedeath penalty in Africa in the light 01 the protection allorded byvarious human rights instruments at the international and nationallevels. The chapter begins by dlscussing the right to lile in the UNhuman rights system and relers to the jurisprudence 01 the UN HumanRights Committee on the death penalty as a violation 01 the right tolile. Discussion 01 the UN system is relevant as Alrican states areparties to major UN human rights instruments, such as the ICCPR. 18
Further, the decisions 01 the Alrican Commission on Human andPeoples' Rights on the right to lile and the death penalty are alsoexamined. Relerence i5 atso made to the right to lile in the Europeanand Inter-American human rights systems when examining the right to
Amnesty Internationat 'Towards a world without exeeutions' Al Index: P0L10/004/1999,16 June 1999.
15 P Devine 'Capital punishment and the sanctity of life' in P French &. H Wettstein(eds) Ufe and death: Metaphysics and ethics (2000) 235. Although not discussedin this book, it 1S worth noting that the victim also has a right to life, which has tobe defended. Accordingly, defenders of the death penalty have argued thatcapital punishment for murder defends the right to life of the victim; it meansthe greatest mark from the state that it defends the ordinary citizen's 'right toI1fe' (see D Anderson The death penalty: A defence (2001) chapter 2). But theconcept of punishment itself is recognillon that the victim's right to lite has beenviolated. Opposition to capital punishment is to ensure that the punishmentinflicted does not lead to further violations, for example in this case a violation ofthe right to tifeof theoffender.
16 John Locke is in support of the argument that a murderer forfeits his tife, See JLocke, Second treatise af government (1690), sec 23.
17 For example, everyone's 'right to liberty' is recognised in international andregional human rights instruments. However, it does not foUow from this rightthat it is always wrong deliberately to deprive a person of liberty, as in the caseof imprísonment of a convicted offender. Therefore, under appropriateconditions, persons can forfeít their right to liberty.
18 Moreover, aH African states are member states of the UN. For a list of memberstates, see http://www.un.org/Overview/unmember.html (accessed 21 March2005).
21
'1';
60 Chapter Three
life under the UN and Afríean human rights systems. The ehapter thenexamines the right to life in Afriean national eonstitutions and howAfriean national eourts have interpreted these provisions. Refereneeis also made to the judgments of other (non-Afriean) national eourtson the death penalty as a violation of the right to life, as eourts inAfriea draw inspiration from sueh judgments.
2 The right to life under the United Nations humanrights system
2.1 The Universal Declaration of Human Rights
The UDHR is seen as the eornerstone of contemporary human rights. 19
It is important to examine the UDHR with regard to the death penaltybeeause of its eontinuing signifieanee as a benehmark for human rightsstandards. In addition, the World Conferenee on Human Rightsdectared in June 1993 that:
the Universal Declaration of Human Rights, which constitutes a commonstandard 01 aehievement for all peoples and all nations, is the souree 01inspiration and has been the basis lor the United Nations in makingadvances in standard setting as contained in the existing internationalhuman rights instruments, in particular the International Covenant onCivil and Polítical Rights and the International Covenant on Economic,Social and Cultural Rights. 2o
Therefore, an examination 01 the UDHR is important as it serves as asouree of inspiration not only to the UN bodies, but also to otherbodies (inctuding eourts) at the regional and national levels,irrespeetive of whether a state has eonsented to be bound by it,beeause it forms part of eustomary international law. 21
19 WSchabas The abolftian af the death penalty in fnternationallaw (2002) 23.20 Vienna Declaration and Prograrnme of Action, UN Doc. A/CONF.157123, 12 Ju(y
1993.The UOHR now forms part of customary international law, as it has inspired theadoption of other human rights treaties; it has served as a model for national billsof rights, and the organs of the UN have used it as a standard setting by which tomeasure the conduct of states (see J Dugard Internationaf law: A South Africanperspeetive 2nd edition (2000) 240-241).
..
2Z
242526
The right to life and the df?ath penalty in Africa 61
Article 3 of the UDHR states: 'Everyone has the right to life,liberty and security of person.' This article, similar to article I of theAmerican Declaration on the Rights and Duties of Man (AmericanDeclaration),22 makes no mention of the death penaLty. Looking atthe travaux préparatoires and subsequent interpretations of article 3of the UDHR by the UN General AssembLy and the Economic and SociaLCouncil resoLutions, it is clear that the death penaLty was consideredto be incompatibLe with the right to Life. 23 For exampLe, on 8 February1947 during the drafting process, the (omite Permanente deRelociones Espiritualistas submitted a letter to the UN SecretaryGeneraL requesting that capital punishment be outLawed 'as any formof vioLent death is unChristian' .24 ALso, during the Secretariat'sconsideration of the UNCHR's draft article 3 at the second pLenarysession of the Drafting Committee in June 1947, RooseveLt suggestedthat it might be better not to use the term 'death penalty' as therewas a movement underway in some states to abolish the deathpenaLty.25 SubsequentLy, any reference to the death penaLty wasremoved in the UDHR.
ALthough there was no reaL consensus that the UDHR should takean aboLitionist stance, Schabas has rightLy concluded that article 3 ofthe UDHR is abolitionist in outLook because by its silence on the deathpenalty it directLy envisages its abolition and implicitLy admits itsexistence as a necessary evil. 26 Bearing the aforesaid in mind, I am ofthe view that the appLication of the death penalty in Africa is,therefore, a vioLation of the right to Life guaranteed under article 3 of
Or-ganisation of American States (OAS) Resolution XXX, adopted by the 9thInternational Conference of American states, 1948 (reprinted in Basic documentspertaining to human rights in the 'nter-American system OEA/Ser.LlV/1.4 Rev.9,31 January 2003 at 17). Although the American Declaration was originaUyintended as a nan-binding declaration, similar to the UDHR, the Inter-AmericanCommission on Human Rights and the Inter-American Court af Human Rights haveheld that presently it is a source of international obligation for the OAS memberstates (see Inter-American Court af Human Rights, Advisory Opinian OC-10/89,Interpretation of the American Declaration of the Rights and Duties of Man withinthe framework of article 64 af the American Convention an Human Rights, 14 July1989, Series A, No 10 (1989))_ Member states af the OAS are now legally bound torespect the provisions of the American Declaration. Artide I of the AmericanDedaration guarantees the right to life in terms similar to the UDHR, providingthat 'every human being has the right lo Iife, liberty and security of his person'_
23 The travaux préparatoires show that 'the death penalty was viewed virtuallyunanimously as a necessary evil, one whose exístence could not be justified onphHosophical or scientific grounds' (Schabas (n 19 aboye) 42. For subsequentinterpretations of the UDHR, see UN General Assembly Resolutions 2393 (XXIII),2857 (XXVI) Et 44/128, and ECOSOC Resolution 1930 (LVIII).Schabas (n 19 aboye) 29.Schabas (n 19 aboye) 30.Schabas (n 19 aboye) 42-43. Schabas based his concluston en the fact that severalUN General Assembly and ECOSOC reselutions dealing with the limitation andultimate abolition of the death penalty refer to article 3 of the UDHR in theirpreambles, implying that article 3 is favourable to abolition. To support hisconcluslon, he also cites the UN Secretary-General's report of 1973 (UN Doc. El5242, para 11), which asserted that aruete 3 of the UDHR implies limitation andabolitíon of the death penalty.
L _
31
62 Chapter Three
the UDHR, which is binding on states as it constitutes eustomaryinternational law.
2.2The International Covenant on Civil and Political Rights
The ICCPR is considered because, as noted in the previous chapter, ithas been ratified by 50 African states, signed by two and Comoros isstill to sign and ratify it. Unlike the UDHR, the ICCPR is a bindingtreaty and is not silent on the death penalty. Artiele 6 of the ICCPR,which derives from artiele 3 of the UDHR, prohibits the arbitrarydeprivation of life. It further acknowledges the death penalty as anexception to the right to life, while listing safeguards and restrictionson its implementation. 27 For the imposition of the death penalty tobe seen as an exception to the right to life it has to be imposed forthe most serious crimes;28 procedural rules have to be respected,which inelude the right of anyone sentenced to death to seek pardonor commutation of the sentence; it must not be imposed on anyonebelow the age of 18 or be carried out on pregnant women.29 Thus, theimposition of the death penalty will not amount to a violation of theright to life if the aboye conditions are met.
However, as discussed in chapter five, even if the aboyeconditions are met, but the death penalty is imposed after an unfairtrial, it will still amount to a violation of artiele 6 of the ICCPR.Furthermore, although the death penalty is provided for in artiele 6of the ICCPR as an exception to the right to life, the travauxpréparatoires and subsequent interpretations of artiele 6 providestrong evidence of a growing trend in favour of the abolition of thedeath penalty. 30 The exceptions to the right to life under artiele 6have therefore gradually developed in favour of abolition,31 underinternational human rights treaty law.
2.3 The United Natíons Human Rights Committee
An examination of the jurisprudence of the UN Human RightsCommittee is relevant, as 32 African states have ratified the Optional
27 The American Convention is similar to the ICCPR in that it recognises the deathpenalty as an exception to the right to life and lays down similar restrictions onits impositlon (article 4). However, the CRC guarantees the right to lite in itsartide 6 and does not recognise the death penalty.
28 Article 6(2) of the ¡CePR.29 Article 6(4) " (5) of the ¡CCPR.]0 See Schabas (n 19 aboye) 45·77 & 93. Unlike the ICCPR (and the UDHR), the
travaux préparatofres to the European Convention are of little assistance in theinterpretation of article 2, which guarantees the right to life. Thus, ininterpreting article Z of the Convention, ane relies on the PACE opinions, othertreaties on the abolition of the death penalty in Europe and the decisions of theEuropean Court on Human Rights.See generaUy, Schabas (n 19 above) chapters 2 & 3.
ti
The right to tite and the death penalty in Atrica 63
Protocol to the ICCPR, thus recognising the competence of the HumanRights Committee to receive and consider communications fromindividuals who elaim to be victims of a violation by a state party. 32
The decisions of the Human Rights Committee are not legally bindingstricto sensu. 33 Nevertheless, they represent highly authoritativedecisions which state parties are expected to implemento
The Human Rights Committee has elaborated on the right to lifeenunciated in artiele 6 of the ICCPR in its General Comment No 6 andin some death penalty cases. This section focuses on the aboyeGeneral Comment and some of the Committee' s cases, which show achange in views (progress towards abolition) based on evolvingstandards. In General Comment No 6,34 the Committee viewed theright to life as the supreme right from which no derogation ispermitted even in times of emergency that threaten the life of thenation. 35 With regard to the death penalty, the Committee stated:
While it foUows from artiele 6(2) to (6) that State parties are not obligedto abolish the death penalty totaUy, they are obliged to limit its use and,in particular, to abolish it for other than the 4most serious crimes'.Accordingly, they ought to consider reviewing their criminal laws in thislight and, in any event, are obliged to restrict the application of thedeath penalty to the 'most serious crimes'. The artiele also refersgenerally to abolition in terms which strongly suggest (paras 2 (2) and(6)) that abolitíon is desirable ... [Alll measures of abolition shouLd beconsidered as progress in the enjoyment of the right to life. 36
Thus, artiele 6 points to the abolition of the death penalty as a humanrights objective. In addition, as seen in chapter two, the Committee'sjurisprudence is that the automatic and mandatory imposition of thedeath penalty constitutes an arbitrary deprivation of life, in violationof artiele 6(1) of the ICCPR, in circumstances where it is imposedwithout any possibility of taking into account the defendant'scircumstances or the circumstances of the particular case. 37
Further, under artiele 6(2) of the ICCPR, the death penalty ispermissible as an exception to life if it is imposed only 'for the mostserious crimes'. In Lubuto v Zombia, the Human Rights Committee hadto address the issue of whether Lubuto's rights under the ICCPR had
32 Article 1 of the Optional Protocolo The Protocol was adopted by the UN GeneralAssembly in Resolution nODA (XXI) of 16 December 1966, entered into force on 23March 1976 (UN Ooe. A/6316 (1966), 999 UNTS 302). It has been signed by threeAfrican states and 18 are yet to sign and ratify the ProtocoL
33 The decisions of the Human Rights Committee are not legally binding strietosensu because they do not confer an enforceabte tiUe upon the complainant inthe event of a favourable decision by the Committee. See M Schmidt 'The deathrow phenomenon: A comparative analysis' in Orlin et al (n 1 aboye) 48.
34 CCPR General Comment No 6, para 7.35 CCPR General Comment No 6, para 1. ArUele 4 of the ICCPR prohibits derogations
from article 6 even in a time of public emergency.36 CCPR Generat Cornment No 6, para 6 (emphasis added).37 See for example, Rolando v Philippines, Communication 1110/2002, UN Doc.
CCPR/C/8210/111012002, 8 Oecember 2004, para 5.2.
64 Chapter Three
been violated. 38 One of the issues to be determined was whether thesentence in the instant case ~he death sentence) was compatiblewith article 6(2) of the ICCPR.3 The Committee was of the view thatthe crime could not be considered as the 'most serious crime', as theuse of firearms 'did not produce the death or wounding of anyperson' .40 The Committee, therefore, held that the mandatoryimposition of the death penalty under the circumstances violatedarticle 6(2) of the ICCPR, and that Lubuto was entitled, under article2(3)(a), to an appropriate and effective remedy entailing thecommutation of sentence. 41
With regard to extradition, in Kindler v Canada, the Human RightsCommittee had to address the issue of whether by extraditing MrKindler to the United States without seeking assurances that thedeath sentence would not be imposed, Canada exposed him to a realrisk of a violation of his rights under the ICCPR.42 Human RightsCommittee member Wennergren, in his individual dissenting opinionin Kindler v Canada, was of the opinion that it would appear logicalfor article 6(1) to be interpreted widely, while article 6(2), whichaddresses the death penalty, be interpreted narrowly.43 Wennergrenbased his opinion on the fact that in the travaux préparatoires to theICCPR many delegates and bodies participating in the drafting processsaw the death penalty as an 'anomaly' or a 'necessary evit,.44 Hewent further to state that article 6 does not permit states that haveabolished the death penalty to reintroduce it at a later stage, and thatthe right to life in article 6 of the ICCPR is the supreme human rightthat has to be protected without according priority to the domesticlaws of other countries.45 Accordingly, he was of the view that Canadaviolated article 6(1) by consenting to extradite Mr Kindler to theUnited States without having secured assurances that he would not be
38 Lubuto v Zambia, Communication 390/1990, UN Doc. CCPRICl55/D/390/19901Rey. 1, 31 Oetober 1995.
39 As aboye, para 7.240 As aboYe.41 As above, para 7.2 ti para 9.42 Kindler v Canada, Communication 470/1991, UN Doc. CCPRICl48/D/470/1991, 30
July 1993, para 13.1. This case concerned the extradition of Joseph Kindler to theUSA, where he would face the death penalty (para 2.1). The Committee foundthat the extradition did not violate Canada's obligations under artide 6 of theICCPR (para 14.6).
43 Dissenting opinion of Mr Bertil Wennergren (Kindler v Canaón).44 As aboye.45 As above. Howeyer, the Human Rights Committee is yet to take the view that
artide 6(2) of the ICCPR preyents the reintroduction of the death penalty(Schabas (n 19 aboye) 102).
51
The right to lite and the death penalty in Africa 65
subjected to the execution of a death sentence. 46
In Judge v Canada, the Human Rights Committee had theopportunity to reconsider its position in Kindler v Canada above 47
The Committee noted that its decision in Kindler v Canada had beenestablished ten years befare, and that since that time there had beena growing international consensus in favour of the abolition of thedeath penalty, and in states which retained the death penalty, agrowing consensus not to carry it out.48 The Committee stated asfollows:
For countries that have abolished the death penalty, there is anobligation not to expose a person to the real risk of its application. Thus,they may not remove, either by deportation or extradltion, individualsfrom their jurisdiction if it may be reasonably anticipated that they willbe sentenced to death, without ensuring that the death sentence wouldnot be carried out. 49
Accordingly, the Human Rights Committee found Canada in violationof Judge's right to life under article 6(1) by its deporting him to theUnited States, where he is under sentence of death, without ensuringthat the death penalty would not be carried out. 50
3 The right to life in the African human rights system
3.1 African Charter on Human and Peoples' Rights
The African Charter provides for the right to life in article 4, whichstates: 'Human beings are inviolable. Every human being shall beentitled to respect for his life and the inte~rityaf his persono No onemay be arbitrarily deprived of this right. ,5 The language of article 4with its reference to arbitrary deprivation of life is similar to that ofarticle 6(1) of the ICCPR, indicating a prohibition of the arbitrary use
46 As aboye. HRC rnember Rajsoamer Lallah was a(so af the opinian that there was acase befare the Committee ta find a violatian by Canada of article 6 of the ICCPR,as th~ right to life is fully respected and protected within Canada's territory, butCanada abrogated that leyel of respect and protection by extraditing Mr Kindlerto face the real risk of the death sentence. This inconsistency constituted a realrisk of 'arbitrary' deprivation af life within the terms of articte 6(1), as unequaltreatment 1S in effect meted out to different individuals (thase that areextradited and those that are not) withjn the same jurisdiction (see dissentingapinion af Mr Rajsoomer LaUah, paras 3.4 - 3.5).
47 Judge v Canada, Communication 829/1998, UN Doc. CCPR/C/78/D/829/1998, 20October 2003. This case concerned the deportation of Rager Judge to the UnitesStates to face capital punishment (paras 2.1 - 2.8)
48 As aboye, para 10.3.49 As aboye, para 10.4.50 As aboye, para 10.6. Similarly, the South African Constitutional Court, as seen
below, has found an extradition without seeking assurances that the deathsentence would not be imposed to be in yialation af the right to life.Emphasis added. In addition, see article 5 af the African Children's Charter, whichguarantees every child the inherent right to life.
66 Chapter Three
of the death penalty. In view of that qualifieation, Mbaya has pointedout that it permits the death penalty, whieh is widespread in Afriea,provided it is imposed in aeeordanee with the law. 52
However, an objeetive and not subjeetive analysis of artiele 4points towards abolition as a goal. Sueh an interpretation has to bemade in good faith and in aecordanee with the ordinary meaning to begiven to the terms of the African Charter in their eontext and in thelight of its objeet and purpose. 53
Although there is little interpretative material to assist ineonstruing artiele 4 of the Afriean Charter, this artiele has to beinterpreted in the light of:
international law on human and peoples' rights, particularly from theprovisions of various African instruments on human and peoples' rights J
the Charter of the United Nations, the Charter of the Organisation ofAfrican Unity, the Universal Declaration of Human Rights, otherinstruments adopted by the United Nations and by African countries inthe field of human and peoples' rights, as well as from the provisions ofvarious instruments adopted within the Specialized Agencies of theUnited Nations of which the Parties to the present Charter aremembers. 54
Therefore, based on the aboye, the analysis of the death penalty ininternational and national human rights instruments may be useful forthe purposes of interpreting artiele 4 of the Afriean Charter.
First, the interpretation of artiele 3 (right to life) of the UDHR,whieh points towards abolition as a goal, by relying in part upon thedrafting history and also on subsequent developments in statepraetice ineluding 'soft law' principies adopted by the UN organs, canbe very useful in interpreting artiele 4 of the Afriean Charter. 55Although the problem with drawing inspiration from the UDHR is thatthe right to life in artiele 3 is provided for in elearly unqualified terms,while that of artiele 4 of the African Charter is provided for insomewhat qualified terms, it should be noted that both instrumentsdo not explicitly mentian the death penalty.
Seeond, the Seeand Optianal Protoeol to the ICCPR may be usefulfor the purposes af interpreting artiele 4 of the Afriean Charter. Asnoted in the introduetary ehapter, it has been ratified by sevenAfriean eountries and signed by two wha are also parties to the Afriean
52 E Mbaya fA La recherché du noyau intangible dans la Charte africaine' in P MeyerBisch (ed) Le noyau intangible des Droits de l'homme (1991) 221, referred to in5chabas (n 19 aboye) 355.
5] See article 31 (general rule of interpretation of treaties) of the ViennaConvention on the Law of Treaties, adopted on 22 May 1969, entered into forceon 27 January 1980 (1155 UNT5 331).
54 See articLe 60 of the African Charter.ss 5chabas (n 19 aboye) 356.
--
The right to life and the death penalty in Africa 67
Charter. This Protocol abolishes the death penalty in peacetime. 56Thus, drawing inspiration from this instrument implies that the deathpenalty should be an exceptional measure, and be applied only inwartime, while having in mind the ultimate goal of abolition, as theProtocol aims at the abolition of the death penalty.
Third, article 4 of the African Charter has to be interpreted in thelight of articles 5(3) and 30(e) of the African Children's Charter andarticle 4(2)(j) of the African Women's Protocol, which placerestrictions on the application of the death penalty. In this light, itcannot be said that article 4 permits the death penalty in allcircumstances.
Furthermore, the interpretation of other human rights norms andstandards, such as resolutions on the death penalty, adopted by theUN and other bodies has to be incorporated in the interpretation ofarticle 4 of the African Charter. lnspiration has to be drawn from the1999 Resolution of the African Commission,57 which was adoptedbecause non-governmental organisations (NGOs) had expressedconcern about recent death sentences carried out in Africa.
OveraU, article 4 of the African Charter allows for the deathpenalty only if substantive and procedural safeguards and therestrictions on its imposition are respected. Otherwise, its impositionwitl be in violation of article 4 of the Charter. 58
Some scholars have gane further to seek guidance from theinterpretation of the right to life provisions in national constitutionsin interpreting article 4 of the African Charter. For example, Nowakrightly points out that the interpretation of the right to life provisionof the South African Interim Constitution Act 200 of 1993 might serveas a precedent for the interpretation of the African Charter as anabolitionist text. 59 This is because the African Charter, like the thenInterim Constitution, does not explicitly mention the death penalty asan exception to the right to life.
Although a direct parallel cannot be drawn between article 4 ofthe African Charter and the South African Interim Constitution, as theright to life provision in the latter is unqualified, the death penaltycould still be seen as an arbitrary deprivation of life. Further, in S v
56 See artides 1 and 2 of the Second Optional Protocol to the IC(PR.57 'Resolutlon Urging the State to Envisage a Moratorium on the Death Penalty'
(caps?) 13th Annual Activíty Report: 1999w 2000, Annex IV (ACHPR). This Resotutlonurged states to envisage a moratorium on the death penalty, to limit theimposition of the death penalty and to reflect on the possibility of abolishing it.
58 See the jurisprudence of the African Commission dlscussed below.59 MNowak '15 the death penalty an inhuman puni5hment? in Orlin et al (n 1 aboye)
42-43.
61
68 Chapter Three
Makwanyane, Ackermann J noted that the imposition of the deathpenalty is inherently arbitrary. 60 Thus, the fact that the death penaltyis inherently arbitrary implies that there is no guarantee that the rightto equality before the law, for example, which is essential for therespect of due process rights, can be respected owing to the arbitraryapplication of the death penalty. Thus, the death penalty cannot besaved by article 4 of the African Charter, as imposition of the deathpenalty without respect for due process rights constitutes a violationof the right to tife.
The African Commission on Human and Peoples' Rights, thesupervisory body of the African Charter, is yet to adopt such a broadand creative manner of interpretation. In interpreting human rightstreaties, objective criteria of interpretation that look to the textitself are more appropriate than subjective criteria that seek toascertain only the intent of the parties, because the object of suchtreaties is to protect the basic rights of individual human beings. 61 Itis hoped that the African Commission and the African Court on Humanand Peoples' Rights will adopt such an interpretation, drawinginspiration from the jurisprudence in other jurisdictions andinternational human rights instruments that abolish the deathpenalty.
3.2 The African Commission on Human and Peoples' Rights
Although the introductory chapter shows that the Commission'sposition with regard to the death penalty remains unclear, it has beenfaced with this issue. The African Commission has emphasised theimportance of the right to life in the foUowing words: 'The right tolife is the fulcrum of all other rights. It is the fountain through whichother rights flow, and any violation of this right without due processamounts to arbitrary deprivation of life. ,62 Thus, the AfricanCommission has found a violation of article 4 of the African Charter inmost cases in which the issue of the death penalty has been raised,not only in the context of fair trial rights, but also in the context ofthe right to life.
&0 S v Makwanyanl? (1995) 3 SA 391 (CC) para 153, hereinafter referred to asMakwanyanl? (1995).This was nated by lhe ¡nter·American Caurt of Human Rights, and could serve aspersuasive authority in the interpretation of artide 4 of the African Charter. Seelnter-American Court of Human Rights, Advisory Opinion OC-3/83 of 8 September1983, Restrictions to the death penalty (arts 4(2) and 4(4) American Conventionon Human Rights), Series A, No 3, para 50.
62 Forum al Conscience v Sierra Leone, Communication 223/98, 14th Annual ActivityReport: 2000·2001; (2000) AHRLR 293 (ACHPR 2000), para 20. This case concernedthe execution of 24 saldiers after trials that were aHegedly flawed and inviolation of Sierra Leooe's obligation under the African Charter, as they had noright to appeal to a higher tribunal (paras 1-5).
63
The right to life and the death penalty in Aldea 69
In Internat/onal Pen and Others (on behalf of Saro-W/wa) vN/geria, the African Commission found a violation of article 4 on thegrounds that the executions following a trial that violated article 7 ofthe African Charter rendered the deprivation of life arbitrary.63 TheCommission noted that '[g]iven that the trial which ordered theexecutions itself violates article 7, any subsequent implementation ofsentences renders the resulting deprivation of life arbitrary and inviolation of article 4,.64 The violation was compounded by the factthat the executions were carried out despite the Commission'srequest for a stay of execution and whiLe the case was pending.Likewise, in Amnesty International and Others v Sudan,65 theCommission found the execution of prisoners after summary andarbitrary trials to be in violation of article 4 of the African Charter.
Also, in Forum of Conscience v Sierra Leone,66 the Commissionfound that an execution after a trial that is in breach of due processof law (right to appeal) as guaranteed under article 7(1 Ha) constitutesan arbitrary deprivation under article 4 of the African Charter.
Considering the aboye decisions, one would think that theCommission would in subsequent cases go further to find a violationof article 4, independent of article 7, of the African Charter.Unfortunately, this has not been the case. In Interights et al (onbehal[ of Bosch) v Botswana, the issue of the death penalty was raisedin the context of, /nter alia, the right to life.67 Two of the issuesraised related to alleged violations of article 4 of the African Charter:First, did the president, in exercising his clemency, arbitrarily deprive
fnternationa{ Pen and Others (on behall 01 Saro-Wiwa) v Nigeria,Communicatíons 137/94, 139194, 154/96 and 161197, 12th Annual ActivityReport: 1998-1999: (2000) AHRLR 212 (ACHPR 1998). The communicationsconcerned the detention and trial of Mr Saro-Wiwa and the human rightsviolations suffered by him. During detention, he was denied access to a lawyer.His trial, and that of others, took place before a tribunal established under theCivil Disturbances Act. He was later sentenced to death together with his codefendants. Although the African Commission requested a stay of execution, hewas executed together with the others in secret (paras 1-10).
64 As aboye, para 103. See chapter five for a discussion of the death penalty inrelation to article 7 of the African Charter.
65 Amnesty Internationol and Others v Sudan, Communications 48/90, 50191, 52/91,89/93, 13th Annual Activity Report: 1999-2000; (2000) AHRLR 297 (ACHPR 1999),paras 47-52. These were a series of four cases against Sudan regarding theimposition of the death penalty after unfair trials and the carrying out ofexecutions after summary and arbitrary trials (paras 1-20).
66 Forum 01 Conscience v Sierra Leone, Communication 22319B, 14th Annual ActivityRepolt: 2000-2001; (2000) AHRLR 293 (ACHPR 2000), para 20.
67 Boseh (African Commission). The High Court of Botswana convicted MarietteBosch of murder on 13 December 1999 and sentenced her to death. An appeal tothe Court of Appeal of Botswana in 2001 was unsuccessful (para 2). A petition wassubmitted on her behalf to the Commission alleging violations of her rights in theAfrican Charter. The chairman of the African Commission, after receiving thepetition, wrote to the president of Botswana on 27 March 2001, appealing for astay of execution pending consideration of the communication by the Commission(paras 7-10) The presidenl did not respond to the appeal, and Bosch was executedby hanging on 31 March 2001 (para 11).
70 Chapter Three
Bosch of her right to life? Second, was the execution of Bosch pendingthe consideration of her communication by the African Commission inviolation of articles 1, 4 and 7(1) of the African Charter?68
With regard to the first issue on the clemency process, theCommission found that the clemency process did not fall under article4 of the African Charter. The Commission noted that the process thatcan be challenged as arbitrary is that which includes the holding of atrial so that an accused is given an opportunity to defend his cause. Itstated further that the intervention of the president does not affectthe non-arbitrariness of the process. 69 The Commission's finding wasbased on the fact that the president does not sit as a court to hearsubmissions on clemency and the attendance of the applicant and herlawyers at the hearing was impractical.
The Commission found the latter to be impractical as theclemency process in African states is shrouded in secrecy and couldresult in undermining the office and 'dignity' of the president.70
However, one may ask what about the dignity of the applicant ordefendant? The Commission's omission with regard to the dignity ofthe defendant, guaranteed under article 5 of the African Charter, andits placing more emphasis on the dignity of the president isproblematic. The Commission should have focused on settingprecedence with regard to a fair clemency process, which eliminatestotally or to some extent the secrecy in the whole process.
The Commission further noted in its decision that 'a person mustbe given reasonable time in which to assemble the relevantinformation and to prepare and put forward his representations'.71
This implies that if the issue was related to Bosch not being affordedadequate time to assemble the relevant information and to prepareand put forward her representations with regard to the clemencyprocess, then the finding of a violation would have been possible.
The African Commission avoided dealing with the issue on whetherBosch's execution pending the consideration of her communication bythe African Commission was in violation of, inter aUa, article 4 of theAfrican Charter. The Commission's evasion of the issue was based onits not being in possession of any proof that the president of Botswanadid receive the written letter seeking a stay of execution. 72 The onusof proof should not be on the Commission. Once the letter had beenfaxed, it was for the government of Botswana to ensure that theappropriate channels are in place to ensure that the president
68 Artide 1 obliges a state party to comp(y with the requests of the AfricanCommission.
69 Bosch (African Commission), para 43.70 Bosch (African Commission), para 46.71 Bosch (African Commission), para 48.72 Bosch (African Commission), para 50.
The right to life and the death penalty in Africa 71
receives the letter. Therefore, in my opinion, the approach adoptedin the Bosch case opens a door for future aouse, since states can usethis as an excuse not to comply with the Commission's provisionalmeasures. Notwithstanding, in International Pen and Others (onbehalf of Saro-Wiwa) v Nigeria, as discussed aoove, the Commissionfound a violation of article 4 of the African Charter, as the applicantswere executed despite the Commission's request for a stay ofexecution and while their communications were still pending. 73
Moreover, although the African Commission avoided dealing with theaoove issue, it acknowledged the development of international lawand the trend towards the abolition of the death penalty. TheCommission further encouraged all states party to the African Charterto take all measures to refrain from exercising the death penalty,74
It is clear from the aboye decisions, with the exception of theBosch decision, that the Commission has taken an approach similar tothat of the UN Human Rights Committee (discussed aboye and inchapter five) with regard to the relation between the right to life andfair trial rights. The Human Rights Committee is of the view that theimposition of the death penalty following an unfair trial is a breachnot only of procedural standards but also of the right to lifeJ5Similarly, the Commission, as seen aboye, is of the opinion that anexecution after an unfair trial also constitutes a breach of article 4 ofthe African Charter.
The African Commission's position is also similar to that of theInter-American Commission on Human Rights (Inter-AmericanCommission) and Inter-American Court of Human Rights (InterAmerican Court). The Inter-American Commission has found theimposition of the death penalty without respect for due process rightsto be in violation of the right to lifeJ6 Generally, the jurisprudenceof the Inter-American Commission shows that executions are arbitraryand therefore contrary to article I of the American Declaration andarticle 4 of the American Convention in the following circumstances:
...
7J74
7'76
Para 103.Bosch (Aflican Commission}, para 52. In terms of artide 62 of the African (harter,the measures taken have to be reported back to the Commisslon. States would,hereafter, have to indude such measures in their periodic reports to theCommission.Schaba, In 19 above) 112-113.See Andrews v Unfted States. Case 11.139, Report No 57196, 6 December 1996,üEA/Ser.L1VIII.98 Doc. 6 Rev. 13 AprH 1998 (lnter-American Cornmission). Thiscase concerned WilHam Andrews who had been sentenced to death and wasexecuted despite a precautionary measures request. The Commission noted thatinherent in the construction of artide I (American Dectaration) is a requirementthat before the death penalty can be imposed and befare the death sentence canbe executed the accused must be given aU the guarantees estabhshed by preexisting laws, including guarantees both at the national and international levels(para 177). Consequently, the Commission found a violation of artide I becauseMr Andrews was tried by a partial and incompetent court that did not provide himwith equal treatment at law (paras 175·177 &.184) .
72 Chapter Three
First, when a state fails to limit the death penalty to the 'most seriouscrimes'; second, when it denies an accused person the judicialguarantees of a fair trial; and third, when there is a disreputable andapparent diversity of practice within a member state resulting ininconsistency in the application of the death penalty for the samecrimes. 77
Similarly, the Inter-American Court, in interpreting artide 4 ofthe American Convention which guarantees the right to life, hasconsidered the imposition of capital punishment without respect fordue process to constitute an arbitrary deprivation of life. In AdvisoryOpinion OC-16/99, the Inter-American Court stated the following:
Failure to observe a detained foreign national's right to information,recognized in artiele 36(1)(b) of the Vienna Convention on Consularrelations, is prejudicial to the due process of law and, in suchcircumstances, imposition of the death penalty is a violation of the rightnot to be deprived of life 'arbitrarily', as stipulated in the relevantprovisions of human rights treaties (e.g. American Convention on HumanRights, Artiele 4; Intemational Covenant on Civil and Political Rights,Artiele 6), with the juridical consequences that a violation of this naturecarnes, in other words, those pertaining to the State's internationalresponsibility and the duty to make reparation. 78
The Inter-American Court has identified three limitations applicableto retentionist state parties, which could be of relevance to Africanstates:
First, the imposition or application of this sanction is subject to certainprocedural requirements whose compliance must be strictly observedand reviewed. Secand, the application of the death penalty must belimited to the most serious common crimes not related to poLiticaloffences. Finally, certain considerations involving the person of thedefendant, which may bar the imposition or application of the deathpenalty, must be taken into accaunt.79
Imposition of the death penalty without respect for the aboyelimitations constitutes a violation of the right to life. It can bededuced from the aboye that mandatory death sentences are dearly
77
78
79
In addition to the aboye case, see, for example, Graham v United States, Case11.193, Report No 97/03,29 December 2003; Domingues v United States, Case12.285, Report No 62/02, Annual Report Df the Inter-American Commission onHuman Rights (2001); Thomas vUnited States, Case 12.240, Report No 100/03, 29December 2003; Beaztey v United States, Case 12.412, Report No 101/03, 29Oecember 2003; Aitken v Jamaica, Case 12.275, Report No 58/02, 21 October2002; and Sewell v Jamaica, Case 12.347, Report No 76/02, 27 December 2002.Inter-American Court of Human Rights, Advisory Opinion OC-16/99 of 1 October1999. The right to jnformation on consular assistance in the framework of theguarantees of the due process of law., para 141(7). The right to information onconsular assistance is guaranteed under article 36(1)(b) of the Vienna Conventionon Consular Relations of 24 April1963. It should be noted that Advisory Opinion0(-16/99 was endoned by the UN General Assembly in December 1999 in thePreambte of the Resolution on 'Protection of migrants' (UN Doc. A/RE5/541166).Advjsory Opinlon OC·3/83, para 55.
The right to life and the death penalty in Africa 73
inconsistent with article 4 of the American Convention. Further, inrespecting restrictions on the application of the death penalty, stateshave to envisage the abolition of the death penalty as the ultimategoal. The Inter-American Court, in support of this, stated that therestrictions in article 4 of the American Convention are designed todelimit strictly the application and scope of the death penalty in orderto reduce its application 'to bring about its gradual disappearance'. 80Also, it follows from the Inter-American Court's opinion that reservations to a non-derogable right would be incompatible with theobject and purpose of the human rights treaty guaranteeing thatright. 81
If one bears in mind that the death penalty is being imposed inAfrican states without respect for due process,82 and the continuedimposition of mandatory death sentences in some African states,83the advisory opinions of the Inter-American Court could be veryrelevant to Africa. Imposition of the death penalty under suchcircumstances would amount to a violation of the right to life asguaranteed under the African Charter.
4 The right to life in African national constitutions
The constitution is the supreme law of the land in most legal systems.It can be seen as 'the legal embodiment of a country's highest values,extending human rights guarantees to everyone in the country'sjurisdiction,.84 The right to life is guaranteed in the nationalconstitutions of most African states.85 Constitutional protection ofthe right to life falls into two categories: qualified and unqualifiedright to life provisions. This section examines these categories, withthe view of identifying what obstructs (constitutional) challenges tothe death penalty in Africa.
As it is usually more cumbersome to amend the constitution thanother laws, an explicit constitutional provision on the death penaltyor a qualified right to life provision makes it difficult to challenge theconstitutionality of the death penalty. Where the qualification is not
80 Advisory Opinion OC-3/83, para 57.81 Advisory Opinion OC-3/83, paras 60-74.82 See chapter five.83 See chapter two.84 Amnesty lnternational 'Constitutional prohibitions of the death penalty' Al Index:
ACT50/05/99, 1 September 1999 http://web.amnesty.org/rmp/dplibrary.nsf/other?openview (accessed 1 October 2003).
85 A few constitutions do not have a right to life pravision. These are theConstitutions or Gabon (1997), Egypt (1980), Libya (1977). Madagascar (1998) andMoroccD (1996). AlsD, there are no constitutional provisions of the right to lite inSomalia, as its Constitution was suspended on 27 January 1991 (see ( Heyns (ed)Human rights in Africa (2004) 1505) and in Swaziland, as the country presentlyhas no constitution.
74 Chapter Three
clear, the possibility of relying on the provision to challenge theconstitutionality of the death penalty would depend on theinterpretation given to such a provision by the courts. The right to lifeis qualified by either providing that it may not be deprived arbitrarilyor other than in accordance with a sentence of a court of law, as seenin the examples below; or by expressly stating the legality of thedeath penalty under the right to life provision. 86 Examples ofqualified right to life provisions include: Botswana (1999, article 4);Eritrea (1997, article 15(1)), Ethiopia (1995, article 15); The Gambia(2001, article 18(1 )); Ghana (1996, article 13(1 »; Kenya (1999, article17(1 »; Lesotho (2001, article 4 and 5); Liberia (1984, article 11);Malawi (2001, article 16); Mauritius (2001, article 4(1)); Niger (1999,article 33(1 ); Nigeria (1999, article 33(1 )), Rwanda (1991, article 12);Sierra Leone (1996, article 16(1 », Sudan (1998, article 20); Tanzania(1995, article 14); Togo (1992, article 13); Tunisia (1991, article 5);Uganda (1995, article 22(1), Zambia (1996, article 12(1» and Zimbabwe (2000, article 12(1)l.
Some judges have taken the view that it is difficult to rely onclearly qualified right to life provisions to challenge theconstitutionality of the death penalty. For example, in Kalu v TheState (discussed below), Iguh J pointed out that one of thefundamental bases upon which the South African Constitutional Courtpronounced the death penalty unconstitutional is 'on account of thevital fact that the right to life in the relevant Constitution wasunqualified' .87 He therefore implied that it is difficult to challengethe constitutionality of the death penalty in Nigeria as the right to lifein section 30(1) of the Constitution of the Federal Republic of Nigeria1979 was provided for in clearly qualified terms.
Also, in the case of S v Ntesang (discussed below), an attempt tohave the death penalty declared unconstitutional was not successfulbecause of the qualification in the Botswana Constitution.88
Therefore, challenging the constitutionality of the death penalty isproblematic in African states in which the right to life is qualified intheir constitutions.
Furthermore, in countries where the death penalty is explicitlyprovided for in the constitution under the right to life provision,relying on the right to life to challenge the death penalty would beimpossible, unless the constitution is amended or the provision oncruel, inhuman and degrading treatment, if not qualified, is used (seechapter four). Therefore, in Equatorial Guinea (article 13), The
86 For example, article 13(a) of the Constitution of Equatorial Guinea 1999.87 Kalu v The State (1998) 13 NWLR 531,590, hereinafter referred to as Kafu (1998).
The South African Constitutlonal Court case discussed below confirms. that theunqualified nature of the right to life provision partly justified the finding of thedeath penalty being unconstitutional.
88 5 v Ntesang (1995) 4 BCLR 426, hereinafter referred to as Ntesang (1995).
The risht to lite and the death penalty in Africa 75
Gambia (artiele 18), Lesotho (artiele 5), Malawi (artiele 16) and Sudan(artiele 33), for example, it would be difficult for the death penaltyto be challenged based on their right to life provisions, which regardthe death penalty as an exception to the respective provision.
While it is difficult to rely on qualified right to life provisions tochallenge the death penalty, it is possible to challenge theconstitutionality of the death penalty in countries where the right tolife is provided lar in elearly unqualilied terms. This applies to theConstitutions of Algeria (1996, artiele 34); Benin (1990, artiele 15);Burkina Faso (2000, arUele 2); Burundi (2001, artiele 21); Cameroon(1996, Preamble); Chad (1996, artiele17); Congo (2001, artiele 7);Guinea (1990, artiele 6); Mali (1993, artiele 1); Mauritania (1991,artiele 13) and Senegal (2001, artiele 7). This is also the situation inSouth Africa. In both the Interim Constitution Act 200 of 1993 and thefinal Constitution Act 108 of 1996, the right to life is textuallyunqualified. 89 In S v Makwanyane (discussed below), which addressedthe question of the constitutionality of the death penalty, theunqualilied nature of the right to life was referred to by severaljudges and was used to support an argument that the right to life isgiven stronger protection in the South African Constitution. 90 TheCourt went further to use the qualifications of the right to life in otherjurisdictions to explain why challenges to the death sentence havefailed in those jurisdictions.91
Hence, from the aforesaid, African states like Cameroon,92 inwhich the constitutionality 01 the death penalty has not yet beenchallenged and the right to life has no qualification, can follow theSouth African example. This is because the absence of qualification,arguably, indicates that the drafters 01 the Constitution in questionintended the court, and not parliament, to decide whether or not thedeath penalty should be retained. 93
Whether or not a constitution has a limitation clause would affectthe possibility of relying on the right to life provision in thatconstitution, qualified or unqualified, to challenge the constitutionality of the death penalty. This is because the death penalty could besaved by the limitation clause. This was the situation in Tanzania
89 Section 9 of the Interim Constitution provided tor the right to life in the foUowingwords: 'Every person shall have the right to life! Section 11 of the finalConstitution provides: 'Everyone has the right to life,'
90 Makwanyane (1995) para 85.91 Makwanyane (1995) para 38.92 The Preamble of the Constitution of the Republic of Cameroon (1996) provides:
'Everyone has the right to life, to physical and moral integrity and to humanetreatment in all circumstances ... ' However, it is unfortunate that at present, theConstitution has no justiciable Bill of Rights, and the Constitutional Council,which has jurisdiction in matters pertaining to the Constitution, is yet to beestablished.
93 This was the interpretation adopted in Makwanyane (1995) para 25 and footnote33. See also the judgment of O'Regan J, para 324.
l ~.
76 Chapter Three
when the eonstitutionality 01 the death penalty was ehallenged. InMbushuu and Another v Republic (diseussed below), derogation lromthe qualilied right to lile provision (ineluding the provision prohibitinginhuman and degrading punishment) in the Tanzanian Constitution,with regard to the use 01 the death penalty, was saved by artiele 30(2)01 the Constitution. 94 Artiele 30(2) allows derogations Irom basicrights 01 the individual in publie interest. It states:
It is hereby declared that no provision eontained in this Part 01 thisConstitution, which stipulates the basic human rights, freedoms andduties, shall be eonstrued as invalidating any existing law or prohibitingthe enaetment 01 any law or the doing 01 any lawlul aet under sueh law,making provision for:
(a) ensuring that the right and Ireedoms 01 others or the public interestare not prejudieed by the misuse 01 the individual rights and Ireedoms;(b) ensuring the interests 01 delenee, public salety, public arder, publicmorality, public health ...(e) ensuring the execution 01 the judgment or arder of a court given ormade in any civil or criminal proceedings ...(d) enabling any other thing to be done which promotes, enhances orprotects the national interest generally.95
In the light 01 the aboye provision, the Tanzanian Court of Appeallound the death penalty to be in the publie's interest, as it wasreasonably neeessary to proteet the right to life. 96 However, the faetthat the Tanzanian High Court, in interpreting the aboye provision,arrived at a dilferent eonelusion implies that the suecess of suchchallenges depends on how a court interprets the relevant provision.For example, although the Interim Constitution 01 South Africa had alimitation elause, the death penalty was not saved by that elausebecause the requirements lor limitation 01 rights provided under thelimitation elause were not satislied. 97
Nevertheless, it should be noted that the appropriate approaeh tothe interpretation 01 a limitation elause, as pointed out by JusticeChaskalson, must be lound in the language 01 the text itsell,construed in the context of the constitution as a whole.98 This echoesthe Inter-American Court's opinion,99 which is to the elleet thatobjective criteria 01 interpretation that look to the text itsell aremore appropriate than subjeetive criteria that seek to ascertain onlythe intent 01 the parties. II courts adopt such an approaeh tointerpretation 01 limitation elauses, the basie rights 01 individual
94 Mbushuu and Another v The Republic (1995) 1 LRC 216 232, hereinafter referredto as Mbushuu (1995).
95 Cited in Mbushuu (1995) 228; and also in Republic v Mbushuu and Another (1994)2 LRC 335 337-338, hereinafter referred to as Mbushuu (1994).
96 Mbushuu (1995) 232. See 4.5.3 below for further discussion of the case.97 Makwanyane (1995) para 146. 5ee 4.5.4 below tor further diseussion of this case.n Mokwanyane (1995) para 115.99 AdvlSOlY Opinion OC-3/83, para 50.
",¡
The right to tite and the death penalty in Africa 77
human beings will be protected. Accordingly, the death penalty willnot be saved by limitation clauses, as it violates the most importantof all human rights, the right to life.
Just as it is difficult to challenge the death penalty in cases inwhich it is explicitly provided for in the constitution, so enshrining theabolition of the death penalty in a constitution strengthens thisapproach by establishing an additionallegal basis that can serve as abarrier to any hasty attempt to reinstate the death penalty. Forexample, seven 01 the 13 African states that have abolished the deathpenalty prohibit it on human rights grounds in their constitutions, thusprecluding any chance of a hasty attempt to reinstate the deathpenalty. These states are: Angola (1992, article 22), Cape Verde(1999, article 27), Cote d'lvoire (2000, article 2), Guinea-Bissau(1996, article 3691), Mozambique (1990, article 70), Namibia (1990,article 6), Sao Tomé and Príncipe (1990, article 21), and SeycheLles(1996, article 15). It would be difficult to reintroduce the deathpenalty in these countries, as it would require that the constitutionsbe amended.
Therefore, it is imperative that African states that abolish thedeath penalty should enshrine such abolition in their constitutions,since this lortifies the abolition and establishes an additional legalbasis that can serve as a barrier to any hasty attempts to reinstate thedeath penalty.
5 Jurisprudence of African national courts
This section examines the jurisprudence of African national courts onthe death penalty in relation to the right to life. It focuses not only oncases in which the challenge to the death penalty in relation to theright to life has been successful, but also on those in which thechaLlenge has not been successful. The unsuccessful cases areexamined with the aim of identilying what obstructed thesechallenges, so that the shortcomings can be taken into considerationwhen bringing future challenges.
5.1 The Court of Appeal 01 Botswana
The constitutionality 01 the death penalty was challenged in Botswanain the case 01 S v Ntesang. 100 In this case, the High Court hadconvicted the appellant 01 murder and, alter linding that there were
100 Ntesang (1995).
78 Chapter Three
00 extenuating eireumstanees, senteneed the appellant to death inaeeordanee with seetion 203(1) of the Penal Code of Botswana. 101
The appellant appealed against the sentenee, eontending that theprovisions of the Penal Code, whieh permitted the state intentionallyto take away the life of an individual, were ultra vires theConstitution sinee the right to life was enshrined by seetion 3thereof. 102 The Court found the death penalty to be eonstitutional asit is preserved by seetion 7(2) 01 the Constitution that saves any lawwhieh 'authorises the inflietion of any deseription of punishment thatwas lawful in the eountry immediately before the eoming intooperation' of the Constitution. 103
The Court of Appeal foeused mainly on the right to life provisionin seetion 4(1) of the Constitution, which is qualified, giving tittle orno attention to the right to life provision in seetion 3, which isunqualified. Seetion 3 of the Constitution of Botswana enshrines thefundamental right to life of the individual in unqualified terms.However, seetion 4(1) provides: 'No person shall be deprived of hislife intentionally save in the exeeution of the sentenee of a eourt inrespeet of an offenee under the law in force in Botswana of which hehas been eonvieted.' To substantiate the faet that it eannot disregardall the words from 'save' to the end of the provision in seetion 4(1)aboye, as submitted by eounsel for the appellant, the Court citedWhite J of the Supreme Court of the United States in South Dakota vNorth Carolina, in whieh he stated the following:
I take it to be an elementary rule of eonstitutional construction that noone provision of the Constitutlon lS to be segregated from all others, andto be considered alone, but that al1 the provisions bearing upon aparticular subject are to be brought into view ond to be so interpretedas to e{{ectuate the great purpose o{ the instrument. 1D4
tt is my view that the Court eould not agree with the submission ofeounsel for the appellant that the words from 'save' to the end of theprovision should not be giveo effeet beeause the Court ignored seetion3 of the Constitution. The aboye statement by White J states that 'allthe provisions bearing upon a particular subjeet are to be brought intoview and to be so interpreted as to effeetuate the great purpose of
101 Ntesan~ (1995) 338 a 341-342. Section 203(1) af the Penal Code states: 'Subjectto the provisions af sl.lDsection (2), any persan convicted of murder shall besentenced ta death.'
102 Ntesang (1995) 338. The appeHant further submitted that hanging as a method ofexecution contravened section 7(1) of the Constitution ln that it was subjection'to torture or to inhuman or degrading punishment'. However, the Court afAppeat did not address the constitutionality of hanging as a method of executionin itself, but noted that what has to be an5wered is whether or not the provisionsof the Penal Code that prescribe the death penalty by hanging i5 ultra vires the
103 Constitution (Ntesdng (1995) 346).Ntesang (1995) 347.
104 Empha5is added. South Dakota v North Carolina (1904) 192 US 268, 328; 48 L Ed448,465. See also Ntesang (1995) 347.
d
...
The rfght to life and the death penalty in Arrica 79
the instrument'. From my understanding, the statement implies thatthe Court of Appeal should have considered section 3 together withsection 4(1) in deciding whether or not the words from 'save' to theend of the provision should be given effect. This is because sections 3and 4(1) both have a bearing on the subject in question (theconstitutionality of the death penalty). Regrettably, less attentionwas given to section 3, which guarantees the right to life inunqualified terms.105 However, because of the presence of alimitation clause in the Constitution (section 7(2)), arriving at adifferent result is problematic.
Furthermore, in this case, the appellant drew the attention of theCourt to practices in a number of other countries as well as to theviews and opinions of various writers and international organisationsand bodies concerning the death penalty in general. 106 The Court ofAppeal was of the view that this was not of decisive force in the issuebefore the Court. 107 Nevertheless, the Court took judicial notice ofinternational developments towards abolishing the death penalty andhoped that this would engage the attention of parliament, which isresponsible for effecting changes to the statutes. 108
It would appear from the Court's decision not to attach muchimportance to worldwide progressive movements or practices towardsabolition, and its opinion that it has no power to rewrite theConstitution, that it was delegating its duty to interpret theConstitution and to uphold its provisions without fear or favour toparliament. This case illustrates the difficulties of relying on qualifiedright to life provisions to challenge the death penalty. In other words,what obstructed the aboye challenge was the qualified nature of theright to life provision and the existence of a limitation clause in theConstitution.
5.2 The Supreme Court of Nigeria
The death penalty has also been challenged in Nigeria in Kalu v TheState. 109 The appellant in this case was convicted of murder by theHigh Court of Justice, Lagos state, and sentenced to death pursuant
105 The problems with this challenge were, first, that section 4(1) was qualified.However, its effect would have been minimised if the Court had consideredsection 4(1} together with section 3 of the Constitution ln its lnterpretatían, asboth provisions relate to the subject in question. Second, the prohibitían of cruel,inhuman and degrading punishment or treatment was also qualified, thus savingthe provisions in the Penal Code that provided for the death penalty.
106 Ntesang (1995) 346.107 Ntesang (1995) 346.108 Ntesang (1995) 348.109 Kalu (1998) .
80 Chapter Three
to the mandatory provision of section 319(1) of the Criminal Code Lawof Lagos. 110 After an unsuccessful appeal to the Court of Appeal, theappellant further appealed to the Supreme Court. 111 In the SupremeCourt, the appellant raised the constitutionality of the death penaltyas a mandatory punishment for the offence of murder in Nigeria. Thequestion raised was whether the provisions of section 319(1) of theCriminal Code which prescribe the death penalty in relation to theoffence of murder are not contrary to and inconsistent with section31 (1 )(a) of the Constitution of the Federal Republic of Nigeria 1979,and therefore unconstitutional. 112
Although, section 31 (1 )(a) prohibits torture, inhuman ordegrading treatment, the Supreme Court was of the opinion that theright to life provision (section 30(1)) is a relevant provision indetermining whether the death penalty is a constitutionally valid andrecognised form of punishment in Nigeria. 113 Section 30(1) states:'Every person has a right to life, and no one shall be deprivedintentionally of his life, save in execution of the sentence of a courtin respect of a criminal offence of which he has been found guilty inNigeria.' Thus, the right to life provision is qualified.
The Supreme Court used the qualified word 'save' as the key toconstruing the right to life provision. The Court noted that althoughthe right to life is fully guaranteed, it is nevertheless subject to theexecution of a death sentence of a court of law in respect of acriminal offence of which one has been found guilty in Nigeria. 114 TheCourt looked at jurisprudence from other jurisdictions on the questionof the death penalty in relation to the right to life. These showed thatif the right to life provision is qualified, the death penalty was, inmost of the decisions, held to be constitutional; if un~ualified, thedeath penalty was declared to be unconstitutional. 1 s The Courtconcluded that the right to life under section 30(1) is clearly aqualified right, thus, the death ~enalty could not be said to beinconsistent with the Constitution. 16
110 Kalu (1998) 533·534.111 Kalu (1998) 534.112 Kalu (1998) 575 & 585.113 Kalu (1998) 587.114 Ka(u (1998) 537 & 587.115 Ka(u (1998) 538 & 590. The Court looked at, inter alia, cases in Indía (Bacan Sfngh
v State af Punjab (1983) 2 SeR 583), Tanzania (Mbushuu (1994) and Mbushuu(1995)), and South Africa (Makwanyane (1995)).
116 Kalu (1998) 544, 551 & 593. It should be noted that the queslion of whether theexecution of the appetlant would infringe his constitutional rights not to besubjected to torture or lo inhuman or degrading treatment was seen by the Courtto be a matter for determinatíon by the High (ourt in a separate action orproceeding instituted by the appellant for that purpose (Kafu (1998) 596). Thiswas because the case concerned the sentence itself and not the manner ofcarrying out the death sentence.
'5
The right to life and the death penalty in Africa 81
As in the Botswana case aboye, what obstructed the challenge inthe Kalu case was the qualified nature of the right to life provision.The 5upreme Court relied heavily on authorities that show that wherethe right to life is qualified, the constitutianality of the deathsentence is affirmed. However, the decision of the HungarianConstitutional Court (discussed below) which was reviewed by the5upreme Court of Nigeria showed that the death penalty could befound to be unconstitutional where the right to life is qualified. Yet,little weight was attached to this decision. 5ince the right to life isthe most fundamental of all human rights, recognising the deathpenalty is to deny the essence of this right. Therefore, courts have tobe bold enough, like the Hungarian Constitutional Court, to find theirway round obstacles to the abolition of the death penalty, such asqualified right to life provisions, as abolition is most desirable in orderfully to respect the right to life.
5.3 The Constitutional Court of Uganda
The approach adopted in Kalu has been endorsed by the UgandanConstitutional Court in 5usan Kigula and 416 Others v The AttarneyGeneral. 117
The case concerned a petition brought befare the CanstitutionalCourt by 417 death row inmates challenging the constitutionality ofthe death penalty. The petitioners contended that the imposition ofthe death sentence on them was unconstitutional, as it is inconsistentwith articles 24 and 44 of the Constitution prohibiting cruel, inhumanand degrading punishment; that the laws of Uganda prescribing thedeath penalty are themselves inconsistent with articles 24 and 44. 118
In the first alternative, the petitioners contended that the variousprovisions of the laws of Uganda providing for mandatory deathsentence are inconsistent with articles 20, 21 (equality befare andunder the law), 22 (right to life), 24 (prohibition of cruel, inhumanand degrading treatment or punishment), 28 (right to a fair hearing)and 44 (non-derogation clause) of the Constitution. 119
The right to life provision in the Ugandan Constitution is qualified.It reads: 'No person shall be deprived of life intentionally, except inthe execution of a sentence passed in a fair triat by a court ofcompetent jurisdiction in respect of a criminal offence under the laws
117 Susan Kigula and 416 Others v The Attorney General, Constitutionat Petition No 6of 2003, judgment delivered in June 2005, hereinafter referred to as 5usan(2005).
'" Susan (2005) 2.119 In the second alternative, the contention was that a long delay between the
pronouncement of the death sentence and the carrying out of the sentenceconstitutes cruel, inhuman and degrading treatment. In the third alternative, thepetitioners contended that hanging, as a legal method of carrying out the deathsentence, is cruel, inhuman and degrading.
82 Chapter Three
of Uganda and the conviction and sentence have been confirmed bythe highest appellate court.' In addition, the right to life is notinduded under the derogation dause as one of the rights from whichthere shall be no derogation. Accordingly, the Court found the deathpenalty to be constitutional, stating, ¡nter olio, that it is an exceptionto the rlfht to life, which is not induded under the non-derogablerights,12 The Court stated as follows:
[A]rtiele 22(1) recognises the death penalty as an exception to theenjoyment of the right to life. There is a well known rule ofinterpretation that to take away a right given by common law or statute,the legislature should do that in elear terms and devoid of anyambiguity. It is important to note that the right to life is not ineluded inartiele 44 on the list of non-derogable rights. Accordingly, artieles 24 and44 could not have been intended to apply to the death penaltypermitted in artiele 22(1 ).111
The Court paid no attention to the fact that under intemational lawthe right to life is non-derogable.
Nevertheless, it is commendable that the Court went further tofind the various provisions of the laws of Uganda prescribingmandatory death sentence to be unconstitutional, as they areinconsistent with, ¡nter olio, the r1fht to life. 122 Drawing from theexperience in other jurisdictions,12 the Court noted that denying aconvict facing the death sentence a hearing in mitigation is dearlyinconsistent with the equality principle guaranteed in artide 21 andthe right to a fair hearing ~uaranteed in artides 22(1 l, 28 andentrenched in arlide 44(cl. 24 This condusion is in line withintemational developments on the undesirability of mandatory deathpenalty.
5.4 The High Court and Court of Appeal of Tanzania
The Tanzanian High Court and Court of Appeal have been faced withthe issue of the constitutionality of the death penalty in the contextof the infringement of the rights to life, to dignity in the execution ofthe sentence, and to protection against cruel, inhuman or degradingtreatment. This section examines the role of the judgments dealingwith the right to life. In Republic v Mbushuu and Another, the twoaccused had been convicted of murder and sentenced to death. 125
The defence counsel then raised the question whether the deathpenalty was unconstitutional. It was argued that the death penalty
120 Susan (2005) 22-23.121 Susan (2005) 23-24.122 SUsan (2005) 40.123 For instance India and the United Kingdom.124 Susan (2005) 38 Ii 40.125 Mbushuu (1994) 335.
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The right to life and the death penalty in Africa 83
infringed the provisions of the Constitution guaranteeing, ínter alia,the right to life provided for in artiele 14 of the TanzanianConstitution. 126 Artiele 14 provides that '[e]very person has the rightto life (see below) and subject to the law, to protection of his life bysociety' .
The defence counsel submitted that the first part, 'every personhas the right to life', is absolute and not governed by the qualification(elaw-back elause) 'subject to law'. Counsel went further to statethat what is subject to law is the right of an individual to theprotection of his life by society.127 The High Court held that the rightto life is not absolute as both the right to life and the right toprotection of one's life by society are subject to the elaw-backelause.128 Nevertheless, Mwalusanya J stated:
The petitioners have only an evidentiary burden to show that the right tolife has been infringed. And that much they have succeeded to show.What remains then is for the Republic to prove on a balance ofprobabilities that the law prescribing the death penalty (the Penal CodeJis 'lawful' and that it is saved under article 30(2) of our Constitution. 12
The Court held that the death penalty was not in the public interestand not a punishment that is prescribed by a lawfullaw, and thereforeunconstitutional, as it is not saved by article 30(2) of the Constitution(quoted above).130 Althoujlh the English version of the right to lifeprovision is unqualified,13 the Court in its judgment relied on theSwahili version of the right to life provision, which is qualified. Thus,if the Court had relied on the unqualified English version, the deathpenalty would have been inconsistent with the right to life provision.The language of the Constitution, therefore, influenced the Court'sinterpretation of the right to life provision. However, the High Court,adopting a generous and purposive interpretation, found a way roundartiele 30(2) in finding the death penalty to be unconstitutional.
126 Mbushuu (1994) 335.127 Mbushuu (1994) 351.128 Mbushuu (1994) 352.119 Mbushuu (1994) 352.130 Mbushuu (1994) 358. The High Court also found the death penalty to be cruel,
inhuman and degrading both inherently and in the manner of its execution, andalso that 1t offends the right to dignity of man in the process of execution of thesentence.
131 The English version reads: 'Every person has the right to Uve and subject to law,to protection of his life by the society' (Mbushuu (1994) 337). Accordingly, it wassubmitted that it merely prescribed the right to tife and enjoins the law toprotect that right, and does not expressly provide for the deprivation of life.(Mbushuu (1995) 225) The Court of Appeal noted that the English version wasmisleading, and proposed another translation: 'Every persan has a right to lifeand to receive from the society the protection of his life, in accordance with law'(Mbushuu (1995) 225), which has now been retained in the TanzanianConsUtution, 1995. ArUele 14 now reads: 'Every person has the right to Uve andto the protection of his life by the society in accordance with law' (see Heyns (n85 above) 1599.
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The High Court, after finding the death sentence to be unconstitutional, replaced the death sentences of the two accused withlife imprisonment. 132 They then appealed to the Court of Appealagainst their conviction for murder in the High Court.133 The Court ofAppeal, after quashing the sentences, raised the question of whetherthe sentence of life imprisonment for murder was proper (in otherwords, whether the death sentence was unconstitutional).134
With regard to the right to life, the Court of Appeal also relied onthe Swahili version of the Constitution, noting that the translation inEnglish is misleading. 135 Although the Court noted that article 14 doesnot expressly provide for the deprivation of life, it went further tostate that the right to life is not absolute but qualified, meaning thatit can be denied by due process of law. 136 The Court of Appeal thenhad to decide whether the death penalty is one of such instanceswhere the due p¡rocess of law will deny a person his right to life andits protection. 1 7Since the Constitution allows derogations from basicrights for legitimate purposes, the legitimate purpose to which thedeath sentence was directed, as noted by the Court, was aconstitutional requirement that everyone's right to life should beprotected by law. 138 The Court found the death penalty to bereasonably necessary in arder to protect life by stating that:
we have already made a finding that the death penalty is cruel, inhumanand degrading '" BlIt the crucial question is whether or not the deathpenalty is reasonably necessary to protect the right to life. For this wesay it is the society which decides. The trial judge acknowledges thatpresently the society deems the death penalty as reasonably necessary.So, we find that although the death penalty as provided by s 197 of thePenal Code offends art 13(6)(a) of the Constitution, it is not arbitrary,hence a lawful law, and it is reasonably necessar~ and it is thus saved byart 30(2). Therefore, it is not unconstitutional. 13
As seen from the aboye judgment, and as Justice Chaskalson rightlystated in S v Makwanyane, the issues concerning the limitation ofbasic rights in the aboye case appear to have been influenced by thelanguage of the Constitution and the rules of interpretation developedby the courts to deal with the language. 140
131 Mbushuu (1994) 358.133 Mbushuu (1995).134 Mbushuu (1995) 222.135 Mbushuu (1995) 225.136 Mbushuu (1995) 226.137 Mbushuu (1995) 226. In its determination, the Court considered whether the
death penalty was cruel, inhuman and degradíng, and agreed with the trial judgethat it is inherentty an inhuman, cruet and degrading punishment. But the crucial
138 matter was whether it was saved by the IimitatiDn clause (Mbushuu (1995) 228).139 Mbushuu (1995) 231.
Mbushuu (1995) 232.140 SeeMakwanyane (1995) para 115.
szí
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The right to tite and the death penalty in Africa 85
The Court also seems to have relied heavily on the protection ofthe right to life of everyone, with the exclusion of that of murderers.As noted aboye, human life has infinite value or worth and so must berespected and protected accordingly, which therefore follows thateven murderers have to be treated in the light of the value of theirlives, a value not erased by the harm or injustice their lethal violencehas caused the innocent.1~1 Thus, the right to life of a murderer hasto be respected and protected in the same way as the right to life ofa non-murderer is respected and protected. But the Court of Appealseems to have given less weight to the right to life of murderers ininterpreting and applying the limitation clause.
In addition, since a court's duty is to interpret the constitutionand uphold its values, it is for the court and not society or parliamentto decide whether the death penalty is justifiable under a limitationclause or whether it is reasonably necessary in order to protect life.Justice Chaskalson has expressed his disagreement with the decisionof the Tanzanian Court of Appeal, in so far as it is inconsistent withthe above. 142 Thus, it would have been proper for the Court of Appealto decide what was reasonably necessary to protect the right to life,and not subject such a decision to the society, whose opinion isusually uninformed and fluctuates.
5.5 The Constitutional Court of South Africa
The South African Constitutional Court addressed the issue of theconstitutionality of the death penalty in the landmark judgment of Sv Makwanyane, in which it declared the death penaltyunconstitutional. 143 The two accused in the case were convicted onfour counts of murder, one count of attempted murder and one countof robbery with aggravating circumstances, and sentenced to deathon each of the counts of murder and to long terms of imprisonment onthe other counts. 144 The case before the Constitutional Court dealtwith the constitutionality of section 277(1 )(a) of the Criminal Procedure Act 51 of 1977, prescribing the death penalty as a competentsentence for murder.1~S The Constitutional Court had to decidewhether the death penalty was cruel, inhuman and degrading within
141 Bedau (n 9 aboye 40).142 Makwanyane (1995) para 115.143 Makwanyane (1995).144 Makwanyane (1995) para 1. The two accused appealed against the convictions
and sentences to the Appellate Division of the Supreme Court, which dismissedthe appeals against the convictions and concluded that the circumstances of themurderers were such that the accused shoutd receive the heaviest sentencepermissible according to law.
145 Makwanyane (1995) para 2.
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the meaning of section 11 (2) of the Interim Constitution Act 200 of1993.146
One of the contentions of the counsel for the accused in supportof the argument that the death penalty is cruel, inhuman or degradingpunishment was that the death penalty is inconsistent with theunqualified right to life entrenched in the South African InterimConstitution, and that it negates the essential content of the right tolife and other rights that flow from it. 147 Eight of the 11 judgesconsidered the death penalty as a violation of the right to life. Thesubsequent paragraphs discuss the views of some of the judges.
Justice Chaskalson stated that the unqualified right to life vestedin every person by section 9 of the Interim Constitution is anotherfactor crucially relevant to the question whether the death sentenceis cruel, inhuman or degrading punishment within the meaning ofsection 11 (2) of the Interim Constitution. 148 According to the findingof the Constitutional Court, capital punishment imposed a limitationon the essential content of the fundamental rights to life and dignity,contrary to section 33 of the Interim Constitution, which provides thatlaws shall not impose any limitations on the essential content offundamental rights. 149 Therefore, the fact that the person sentencedto death is denied his or her right to life is of great importance. 150
Though Justice Chaskalson based his conclusions on the prohibition ofcruel, inhuman and degrading punishment, he stated in his conclusionconcerning the right to life that:
[t]he rights to life and dignity are the most important of all humanrights, and a souree of all other personal rights ... By committingourselves to a society founded on the recognition of human rights we are
146 Makwanyane (1995) para 26. It was argued that section 277(1)(a) infringedseetions 8 (right to equality), 9 (right to lile), 10 (right to dignity) and 11(prohibition of cruel, inhuman or degrading treatment or punishment) of theInterim Constitution. The Court focused on section 11 (2) prohibiting cruel,inhuman or degrading punishment. However, the rights to tife and dignity wererelevant in determining whether section 11 (2) had been infringed.
147 Makwanyane (1995) para 27. The drafters of the South African lnterimConstitution opted for the 'Solomnic solution', which entrenched a simple rightto Life provision, leaving it to the judiciary to pronounce on the constitutionalityof capital punishment (see L du Plessis &. H Corder Understanding South Africa'stransitional bill of rights (1994) 146·147. See also L du Plessis fA background todrafting the chapter on fundamental rights' in B de ViUiers (ed) Birth of a
148 Constitution (1994) 95).Makwanyane (1995) para 80.
149 The Constitutional Court's judgment emphasises the relationsh1p between therights to life and dignity and the importance of these rights taken together. TheCourt stated that the rights to life and dignity taken together are the source of aHother rights. They are the essential contents of aH other rights under theConstitution, as the ultimate limit of all other rights is to be found in thepreservation of the twin rights of life and dignity. Take them away and all otherrights cease (see Makwanyane (1995) para 84). Therefore, the right to life lsconceptuaHy interrelated, and mutually reinforcing to the constitutional
150 protection of human dignity.Makwanyane (1995) para 140.
The right to life and the death penalty in Africa 87
required to value these two rights aboye al! others. And this must bedemonstrated by the state in everything that it does, including the wayit punishes criminals. This is not achieved by objectifying murderers andputting them to death to serve as an example to others in theexpectation that they might possibly be deterred thereby.151
The aboye conclusion emphasises that the right to life is supreme and,therefore, should be valued aboye all others. Didcott J agreed withJustice Chaskalson and stated as one of his grounds for believing thedeath penalty to be unconstitutional the fact that 'capitalpunishment violates the right to life of every person' that is protectedby the South African Constitution. 152 He concluded as follows:
South Africa has experienced too much savagery. The wanton killingmust stop before it make5 a mockery of the civilised, humane andcompassionate society to which the nation aspires and hascon5titutionally pledged itself. And the state must set the example bydemonstroting the priceless value it places on the lives of all itssubjects, even the worst. 153
Sorne public commentators on the question before the ConstitutionalCourt stated that any doubts about the constitutionality of the deathpenalty was foreclosed by section 9 of the Constitution, whichproclaims the right to life in unqualified terms, read with section33(1 )(b) of the limitation clause, which provides that no limitationshall negate the essential content of the right in question. 154 Langa Jalso agreed with Justice Chaskalson's conclusions, including theconclusion that the death sentence, in terms of the provisions ofsection 277 of the Criminal Procedure Act, is unconstitutional,violating as it does, the right to life, which is guaranteed to everyperson by section 9 of the Interim Constitution. 155 He stated thefollowing:
The emphasis I place on the right to life is, in part, influenced by recentexperiences of our people in this country. The history of the pastdecades has been such that the value of life and human dignity has beendemeaned. Political, social and other factors created aclimate ofviolence, resulting in a culture of retaliation and vengeance. In theprocess, respect for life and for the inherent dignity of every personbecame the main casualties. The State has been part of thisdegeneration, not only because of its role in the conflicts of the past,but also by retaining punishments which did not testify to a high regardfor the dignity of the person and the value of every human life. Theprimacy of the right to life and its relationship to punishment needs tobe emphasised .. .' 56
151 Makwanyane (1995) para 144.152 Makwanyane (1995) para 174.153 Emphasis added. Makwanyane (1995) para 190.154 Makwanyane (1995) para 193.155 Makwanyane (1995) paras 215-216.156 Makwanyane (1995) paras 218-219.
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He goes further to note that the eoncept of ubuntu adds value onlife and dignity, implyin~ that the life of another person is at least asvaluable as one's own. 1 It therefore follows that, as a 'punishment',the death penalty is a violation of the right to life,1S8 as the deathpenalty rejects the value of the convicted person's life.
Mohamed J adopted a different approach in determining whetherthe death penalty is a violation of the right to life. He approached theconstitutionality of the death sentence with a sharper and narrowerfocus, by asking the following question:
Does the right to life, guaranteed under s 9, inelude the right 01 everyperson not to be deliberately killed by the State through a systematieallyplanned aet 01 exeeution sanctioned by the State as a mode 01punishment and performed by an executloner remunerated for thispurpose lrom public lunds?159
He answers this question in the affirmative, stating the following:
The deliberate annihilation 01 the lile 01 a person, systematieallyplanned by the State as a mode 01 punishment, is wholly andqualitatively different. It is not like the aet 01 killing in sell·delenee, anaet justiliable in the delenee 01 the elear right 01 the vietim to thepreservation 01 his lile. It is not perlormed in a state 01 suddenemergency, or under the extraordinary pressures which operate wheninsurreetions are conlronted or when the State delends itsell during war.It is systematically planned long alter - sometimes years alter - theoffender has eommitted the ollenee lar which he is to be punished, andwhilst he waits impotently in eustody lar his date with the hangman. Inits obvious and awesome finolity it makes every other right, sovigorously and eloquently guoranteed by chap 3 of the Constitutlon,permanently impossible to enjoy ... [It does not permit] the slightestpossibility that [the offender] might one doy successfully anddeservedly be able to pursue ond to enjoy the great rights of dignityand security and the fundamental freedoms in chapter 3 of theConstitution, the exercise of which is possible only if the 'right to life'is not destroyed ... 160
Mohamed J provides a elear distinction between taking life in the actof self-defence, which is justifiable, and taking life by the impositionof the death penalty, which is not justifiable. As seen aboye, he wasof the view that the death penalty destroys the right to life, thusdestroying other rights that ean only be enjoyed if the right to life isprotected. This emphasises the imperative nature of the right to life.
Mokgoro J and O'Regan J also found the death penalty toconstitute a violation of the right to lile. Mokgoro J was of the opinionthat the death penalty violates the essential content of the right to
157 Makwanyane (1995) para 225.158 Makwanyonf' (1995) para 234.159 Makwonyonf' (1995) para 269.160 Emphasis added. Mokwanyane (1995) paras 270-271.
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The right to life and the death penalty in Africa 89
life embodied in the South African Constitution in that it extinguisheslife itself. 161
O'Regan J emphasised the relationship between the right to lifeand dignity, noting that the right to life is antecedent to all otherrights, since without life, in the sense of existence, it would beimpossible to exercise rights or to be the bearer of them. 162 Further,O'Regan J, in answering the question whether the right to life anddignity are breached by the death penalty, states:
The purpose of the death penalty is to kill convieted eriminals. Its verypurpose lles in the deprivation of existence. Its inevitable result is denialof human life. It is hard to see how this methodical and deliberatedestruetion of life by the Government can be anything other than abreaeh of the right to life. The implementation of the death penalty isalso a denial of the individual's right to dignity ...163
As seen under the ICCPR and other regional human rights instruments,and the jurisprudence of the Human Rights Committee (discussedaboye), there can be no derogation from the right to life. Thus, theaboye eonclusion eould be insightful for jurisdictions in which theright to life is qualified or from which there eould be derogation.
Overall, the aboye deeision of the South African ConstitutionalCourt is very significant beeause it could act as persuasive authorityfor national courts in Africa that stitl uphold the death penalty,especially those with similarly framed right to life provisions. Thedeeision indicates that the Constitutional Court is committed both tothe persuasive authority af international sources and the specificrequirements of South Africa and its Constitution. 164 Therefore, theinterplay between the international and domestic jurisprudencecould be useful for African lawyers and courts in dealing with thedeath penalty.
Alsa, as stated aboye and as Nowak rightly points out, it mi!jhtserve as a precedent for the interpretation of the African Charter. 65This is because the African Charter, similar to the then InterimConstitution, does not explicitly mentian the death penalty as anexception to the right to life. In addition, the development of humanrights law has continued to move in the direction af regarding everyinstance in which the death penalty is applied as a violation of humanrights (including the right to life) as it is inhuman. This has also been
161 Makwanyane (1995) paras 313 ft 317.162 Makwanyane (1995) paras 326 Et 327.163 Makwanyane (1995) paras 334-335. He then concluded that 'tife by its very nature
cannot be restricted, qualified or abridged, limited 01' derogated from' as you areeither alive or dead (para 353).
164 R Keightley 'Torture and cruel, inhuman and degrading treatment or punishmentin the UN Convention against Torture and other instruments of internationallaw:Recent developments in South Africa' (1995) 11 South African Journal on HumanRights 400.
165 Nowak (n 59 above) 42-43.
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portrayed by the decision of the South African Constitutional Court inMakwanyane.
Furthermore, as seen aboye, a state has been held to infringe theright to life of an accused where the state extradites an accusedwithout obtaining an assurance that the accused will not be subjectedto the death penalty. Similarly, the South African Constitutional Courthas found a violation of the right to life in relation to the deathpenalty in the context of international judicial extradition.
In Mohamed v President of the Republic of South Africa andOthers, the first applicant, Mohamed (a Tanzanian national), who hadbeen sought by the United States as a suspect on capital charges, washanded over to American authorities by South African immigrationauthorities without seeking an assurance that the death sentencewould not be imposed on him. 166 One of the issues the ConstitutionalCourt had to decide was whether the handing over of Mohamed forremoval to the United States, as well as the subsequent removal,breached his constitutional right to life. The Court had to decide thisissue as it was contended that Mohamed's constitutional right to life,to dignity and not to be subjected to cruel, inhuman or degradingpunishment had allegedly been infringed. 167
After finding that the South African authorities were notempowered to deport Mohamed to the United States,168 the Courtwent further to consider the practice of different countries, forexample Canada and Germany, with regard to deportation orextradition and the death penalty. The practice followed by countriesthat have abolished the death penalty is that the governments seekand secure an assurance from the requesting state that the deathsentence will not be imposed on the person being deported orextradited. 169 The Court then held that in handing Mohamed over tothe United States without securing an assurance that he would not besentenced to death, the immigration authorities failed to give valueto Mohamed's right to liJ¡e, and to his right to have his dignityrespected and protected. 1 o In arriving at this conclusion, the Courtalso took into account the statement of Justice Chaskalson inMakwanyane that by committing ourselves to a society founded on therecognition 01 human rights we are required to value the rights to life
166 Mohamed v President of the Republic of South Africa and Others 2001 (7) BCLR685 (CC) para 2 hereinafter referred to as Mahamed (2001).
167 Mohamed (2001) paras 3 ti 23. In addition, the Court had to decide whether theaboye was also in breach of the Aliens Control Act 96 of 1991.
168 Mohomed (2001) para 36.169 Mohamed (2001) para 44.170 Mohamed (2001) para 48. See a[so, para 73. The Constitutional Court also found
the handing ayer of Mohamed to be in violation of his right not to be subjected tocruel, inhuman or degrading punishment.
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The right to life and the death penalty in Africa 91
and dignity, and that this must be demonstrated by the state ineverything that it does. 171
It is worth noting that in the aboye case, the Constitutional Court,adopting an approach similar to that of the European courts, made itclear that whether Mohamed was deported or extradited is of norelevance, as both deportation or extradition of a person to face anunacceptable form of punishment (the death penalty) isprohibited. 172 It should also be noted that in due course, Mohamedwas convicted of a capital offence, but the jury in New York did notimpose the death penalty.l73
6 Jurisprudence of other national courts
The jurisprudence of other national courts is examined as Africancourts refer to the case law of these courts, as seen aboye. Someconstitutions allow expressly for the courts' consideration of foreigncase law. 174 The jurisprudence of two national courts are discussedunder this section, that of the Canadian Supreme Court in Canada(Minister Df Justice) v Burns and AnDther and the HungarianConstitutional Court Decision 23/1990. The decision of the CanadianSupreme Court is important as it is an example of changing views thatfurther the course of abolition with regard to the question of theextradition of persons to countries with the death penalty to facecapital charges. It has been a source of reference for some Africannational courts, for example the South African Constitutional Court,and it could serve as a persuasive authority in cases alleging aviolation of the right to life in relation to the death penalty in thecontext of international judicial extradition. The HungarianConstitutional Court's decision is discussed because, as noted aboye,it can serve as a precedent for the interpretation of the AfricanCharter. 60th the Hungarian Constitution and the African Charterguarantee the right to life in similar terms, as they both prohibit thearbitrary deprivation of life.
6.1 The Supreme Court of Canada
The Canadian Supreme Court has also dealt with the death penalty asa violation of the right to life. In Canada (Minister Df Justice) v Burns
171 As above.172 Mohamed (2001) para 59. European courts draw no distinction between
deportation and extradition in the application of articte 3 of the EuropeanConvention on Human Rights.
17] R Hood The death penalty: A worldwide perspective (2002) 22, footnote 47.174 See, for example, section 39(1) of the Constitution of $outh Africa Act 108 of
1996.
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and Another,175 the Supreme Court had occasion to reconsider itsposition with regard to the extradition of fugitives to a country wherethey would face the death penalty. In this case, the respondents(Burns and Rafay) whose extradition was sought were wanted formurder in Washington state, where they would, if found guil~, faceeither life imprisonment without parole or the death penalty.1 6 Afterevaluating the respondents' particular circumstances, the Minister ofJustice of Canada ordered their extradition without seeking orobtaining assurances from the United States, as required under article6 of the Extradition Treaty between the two countries, that the deathpenalljY would not be imposed, or if imposed, would not be carriedoutY The respondents appealed against the Minister's decision andthe Court of Appeal set aside the extradition order on the groundsthat it was unconstitutional. 178
The Minister then appealed to the Supreme Court, contendingthat he was not required to seek the relevant assurances as acondition of extradition. 179 The outcome of the appeal was governedby section 7 of the Canadian Charter of Rights and Freedoms 1982(Canadian Charter), which states as follows: 'Everyone has the rightto life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principies offundamental justice.' Since, as noted by the Court, the extraditionputs the lives of the respondents at risk, it had to decide whether thethreatened deprivation was in accordance with the principies offundamental justice. 180
The Supreme Court, after weighing the factors for and againstextradition without assurances, held unanimously that theunconditional extradition of the respondents to the state ofWashington for the crime of murders, without an assurance that the
175 Canada (Minister of Justice) v Burns and Another (2001) SCC 7; (2001) 5 LRC 19,hereinafter referred to as Burns (2001). See also (2001) 2 Amicus Journal 16 &.(2002) 3 Commonwealth Human Rights Law Digest 324. Ten years earlier, themajority of the Court had held, in Kindler v Canada (Minister o[ Justice), that itwas not unconstitutional for the Canadian government to extradite a personaccused of capital murder to the state of Pennsylvania without an assurance thatthe death penalty would not be imposed (Kindler v Canada (Minister o[ Justice)(1993) 4 LRC 85, 130-132). However, it should be noted that the minority in thiscase found the extradition to be in violaban of the Canadian Charter, as the deathpenalty did constitute cruel and unusual punishment. See also, Re[erence re NgExtradition (eonada) (1993) 4 LRC 133.
176 Burns (2001) paras 9-13.177 Burns (2001) paras 14-19. Article 6 of the Extradition Treaty provides as foUows:
'When the offence for which extradition is requested is punishable by deathunder the laws of the requesting State and the laws of the requested Sate do notpermit such punishment for that offence, extradition may be refused unless therequesting State provides such aS5urances as the requested State considerssufficient that the death penalty shall not be imposed, or, if imposed, shaU nat becarried out. '
178 Burns (2001) para 20.179 Burns (2001) para 32.180 Burns (2001) para 59.
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The right to lite and the death penalty in Africa 93
death penalty would not be imposed, would violate their rights (rightto life, liberty and security of the person) under section 7 of theCanadian Charter. 181
The Court then had to decide whether the violation of therespondents' section 7 rights, which would occur if they wereextradited to face the death penalty, was reasonable anddemonstrably justifiable in a free and democratic society undersection 1 of the Canadian Charter. 18Z Section 1 provides:
The Canadian Charter of Rights and Freedoms guarantees the rights andfreedoms set out in it subject only to such reasonable limits prescribedby law as can be demonstrably justified in a free and democratic society
As the Minister's refusal to ask for assurances served no pressing andsubstantial purpose, the Court held that the infringement of therespondents' rights could not be justified under section 1 of theCanadian Charter. 18J Thus, the Supreme Court found a way round thequalification or \\mitation in article 1 in finding the extraditionwithout assurances that the death penalty would not be imposed tobe unconstitutional, and by applying the principies of fundamentaljustice to factual developments, many of which are of far-reachingimportance in death penalty cases. The balancing of these issuesweighed against the constitutionality of extradition withoutassurances. Consequently, once the state of Washington, which hadsought the extradition, had given assurances, Burns and his associatewere surrendered to face trial in the United States. 184
6.2 The Constitutional Court of Hungary
The Hungarian Constitutional Court has addressed the issue of thedeath penalty in relation to the right to life in a manner which couldbe instructive in interpreting article 4 of the African Charter. 185 DrTibor Horváth, on behalf of the League against Capital Punishment,petitioned the Constitutional Court to establish the unconstitutionalcharacter of penal provisions imposing capital punishment. Thus, theapplication was not based on a particular case. lt was argued thatthese provisions violate article 54(1) of the Hungarian Constitution,which states that every one has the right to life and to human dignityand no ene shall arbitrarily be deprived of this right. 186 In his petition,
181 Burns (2001) paras 130·132.182 Burns (2001) para 133.183 Burns (2001) para 143.184 Hood (n 173 aboye) 22, footnote 46.185 DecislOn 23/1990 of 24 October 1990 (Hungarian Constituttonal Court). Also
referred to in Kalu (1998) 592 ti Makwanyane (1995) paras 38 ti 327.186 lt was also argued that the rules violate article 54(2) which prohibits torture,
cruel, inhuman and degrading treatment or punishment. However, the Court paidno attention to this argument, focusing on the right to life and human dignity.
94 Chapter Three
the petitioner expressed his opinion that capitaL punishment may notbe justified ethicaLLy, it is incompatible with human rights, and thatit is an irreparabLe and irreversible means of punishment which isunsuitabLe and inexpedient for the prevention of severe crimes, or asa deterrent against the commission of such crimes. The Minister ofJustice - in his opinion dated 19 March 1990 and submitted to theCourt - considered the provisions on capitaL punishment to beunconstitutional on the grounds that capital punishment is anunnecessary and inhuman punishment that may not be justified onmoral grounds; it does not serve the purpose of punishment and isunsuitabLe as a deterrent against crimes. He then suggested thatabolition of capital punishment was in harmony with European legaldeveLopment. The ConstitutionaL Court also requested expertopinions on the subject. BasicalLy, the experts favoured the abolitionof capitaL punishment.
The Constitutional Court acknowledged that the wording of article54(1) did not excLude the possibiLity that someone may be deprived oflife and human dignity in a non-arbitrary way. Notwithstanding, theCourt went further to state that the PenaL Code provisions aLLowingfor capital punishment were inconsistent with article 8(2) of theConstitution, prohibiting any Limitations on the essentiaL contents offundamentaL rights. The Court emphasised that human life and humandignity form an indivisible and unrestrainabLe fundamentaL rightwhich alLows for the enjoyment of other fundamental rights.Accordingly, it held that the penal provisions not onLy limit theessential meaning of the fundamental right to life and human dignity,but also alLow for the entire and irreparable eLimination of Life andhuman dignity. Thus, the Court found the death penalty to beunconstitutional and declared the penal provisions in question nulland void.
The Court also based its decision on the fact that the ICCPRrecognises a development process towards the abolition of the deathpenaLty, and that by recognising internationaL covenants Hungaryassumed an obligation to recognise general human rights asfundamental values. This decision could be instructive for Africa, asmost African states have ratified the ICCPR and have recognised otherhuman rights instruments. Most importantly, as in the HungarianConstitution (article 54), the African Charter prohibits the arbitrarydeprivation of life. If one considers that the African Charter does nothave a derogation clause, the death penalty would certainLy be anarbitrary deprivation of life under that Charter if the AfricanCommission and the African Court on Human and People's Rightsadopt a similar approach. Moreover, the death penaLty wouLd be anarbitrary deprivation of life under similar provisions in Africannational constitutions. The Hungarian Constitutional Court's decisioncan, therefore, serve as a precedent for the interpretation of theAfrican Charter and some African nationaL constitutions, if one bears
•
The right to lite and the death penalty in Africa 95
in mind that human rights law has continued to develop in thedirectíon of regarding every instance in which the death penalty isapplied as a violation of human rights as it is inhuman, as has beenpointed out by the South African Constitutional Court in S vMakwanyane (discussed above).187
187 For additional discussion on the Hungarian case, see T Horváth 'Abolition afcapital punishment in Hungary' (1991) 33 Acta Jurídica Hungarica 153 a o van ZylSmit 'ls capital punishment constitutional? The answer from Hungary' (1994) 3South African Journal of Criminal Justice 348 .
Four I The prohibition of cruel, inhumanor degrading treatment orpunishment and the deathpenalty in Afrka
1 Introduction
'Cruel' has been defined as 'disposed to inflíct pain or suffering','harsh'; 'inhuman' as 'failing to conform to basic human needs','brutal'; and 'degrading' as 'tending to degrade', that is, to lower instatus or strip of honour.' Death destroys an individual's status and hisor her very existence in an organised society. The extreme severity ofa punishment is degrading to the dignity of human beings. Therefore,any punishment that strips human beings of their dignity or denies aperson's humanity is degrading.
'Cruel, inhuman or degrading treatment or punishment' has notbeen defined in human rights instruments. However, different bodieshave laid down the various components of this prohibition. Whatconstitutes the aboye is subjective, as can be seen from some of thecases of the UN Human Rights Committee.2The European Commissionon Human Rights (European Commission) in the Greek case describedthe concept of 'inhuman and degrading treatment' under article 3 inthe following words:
The notion of inhuman treatment covers at least such treatment asdetiberately causes suffering, mental or physical, which, in theparticular situation, is unjustifiable ... Treatment or punishment of anindividual may be said to be degrading if it grossly humiliates him befareothers or drives hím to aet against his will or consclence. 3
2
See Longman Dictionary of English language jn Penguin Hutchinson ReferenceLibrary (199&1 CD Rom.The cases are di5cussed below. See atso S Carlson ft G Gisvold Practical guide tothe International Covenant on (ivil and Political Rights (2003) 74.J (ooper Cruefty: AI1 analysis af artfcle 3 (2003) 3. The European Cornmission torHuman Rights also described 'torture' as an aggravaling form of inhumantreatment. In other words, the Commission was of the opinion that tortureencompasses inhuman and degrading treatment and that inhuman treatmentembodies degrading treatment. See European Commission tor Human Rights,Opinion of 5 November 1969, YB XXII 186. Extracts from the Opinion arereproduced in the Digest of Strasbourg CaSI? Law Relating to the EuropeanConvention on Human Rights Vol. 1 (Articles 1-5) 100-101. The EuropeanCommission atso attempted to tay down the parameters of article 3 in freland vUnited Kingdom (1978) 2 EHRR 25. The Commission stated that inhumantreatment and/or punishment will be so classlfied if íll-treatment causes 'intensephysical and mental suffering'; and treatment will be deemed to faH within thecategory of degrading treatment and/or punishment in viotation of article 3(European Convention) if it arouses in victims the feeling of fear, anguish and
97
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98 Chapter Four
In view of the aboye, and as seen from the jurisprudence examined inthis chapter, the death penalty is cruel and inhuman treatment orpunishment as it causes mental suffering and arouses the feeling offear and anguish in a death row inmate, as well as physical sufferingduring execution of the sentence.
Cruel punishment is clearly not a static notion; it reflects theevolving standards of decency that mark the progress of a maturingsociety.4 The question that arises then is: What are the indicators ofevolving standards of decency? In Furman v Georgia, Justice Powellbriefly summarised the proffered indicia of contemporary standardsof decency in relation to the death penalty, which included thefollowing: First, a worldwide trend towards the disuse of the deathpenalty; second, the reflection in the scholarly literature of aprogressive rejection of capital punishment founded essentially onmoral opposition to such treatment; third, the decreasing numbers ofexecutions over the last 40 years and especially over the last decade;fourth, the small number of death sentences rendered in relation tothe number of cases in which they might have been imposed; andlastly, the indication of public abhorrence of the penalty reflected inthe circumstances that executions are no longer public affairs. 5
The aboye implies that if the death penalty was not consideredcruel, inhuman or degrading, for example, in the early 1990s, it maybe considered so at presento A punishment can be cruel eitherbecause it inherently involves so much physical pain and sufferingthat civilised people cannot tolerate it, or because it is excessive andserves a legislative purpose that an alternative punishment could stillserve. Even if a punishment serves a valid legislative purpose, it canstíll be unconstitutional because it is harsh, dehumanising orabhorrent to currently existing moral values. On the whole, if theaboye indicators are positive (which is the case), the death penalty isa cruel, inhuman and degrading treatment or punishment.
Aplethora of international human rights instruments and nationalconstitutions, as seen below, prohibit 'torture or cruel, inhuman ordegrading treatment or punishment'. Although the main focus of this
4
inferiority capable of humiliatíng and debasing them and possibty breaking theirphysical and moral resistance (paras 159 &167).W Schabas 'lnternational legal aspects' in P Hodgkinson &. A Rutherford (eds)Capital punishment: Global issues and prospects (1996) 21.Furman v Georgia (1972) 408 US 238 at 434; In this case, the US Supreme Courtheld that the imposition and carrying out of the death sentence in the presentcases constituted cruel and unusual punishment, in violation of the 8th and 14thAmendments of the United States Constitution. It should be noled that thisdecislon was later overturned in 1976, when the US Supreme Court ruled in Greggv Georgia (1976) 428 US 153 that the punishment of death for murder does notviolate the 8th and 14th Amendments.
The prohibition of cruel, inhuman or degrading treatment or punishment and t/le deatl¡ penalty in Africa 99
chapter is on 'cruel, inhuman or degrading treatment or punishment',it is important at this point briefly to look at the relation between the'prohibition of torture' and the death penalty, as it is crucial in thecontext of the death row phenomenon (discussed below) and methodsof execution. The Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment (UN Conventionagainst Torture or CAT)6 defines torture as:
Any act by whieh severe pain or suffering, whether physical or mental, isintentionally inflicted on a person for sueh purposes as obtaining fromhim or a third person information or a confession, punishing him for anact he or a third person has committed or is suspeeted of havingcommitted, or intimidating or coercing him or a third persofi, or for anyreason based on discrimination of any kind, when such pain or sufferingis inflieted by or at the ¡nstigation of or with the eonsent oracquieseenee of a public officia! or other person aeting in an officialcapacity. It does not indude pain or suffering arising only from, inherentin or incidental to lawful sanctions.7
On the face of it', the death penalty is exempted from the aboyedefinition, as the .last sentence explicitly excludes 'pain or sufferingarising only from; inherent in or incidental to lawful sanctions'.Therefore, it is questionable whether the death row phenomenon andexecutions may invoke a violation of the prohibition of torture.However, as can be seen in the cases discussed in this chapter, it isaccepted that a certain amount of mental anguish or suffering isincidental to the imposition of the death penalty. Thus, although thedeath row phenomenon and executions might not invoke a violationof torture under the UN Convention against Torture as the deathpenalty is a lawfutpunishment, there are elements of torture involvedin the impositionl of the death penalty, such as 'mental pain orsuffering' with regard to the death row phenomenon and 'physicalpain or suffering' as regards the execution.
This chapter examines the death penalty in Africa in the contextof the prohibition against cruel, inhuman or degrading treatment orpunishment. The chapter begins by looking at this prohibition ininternational human rights instruments (under the UN and Africanhuman rights systems) and in African national constitutions and theirsubsequent interpretations. As in the previous chapter, developmentsin the European ~nd Inter-American human rights systems are alsohighlighted as they are a source of inspiration for the African human
..
6
7
Adopted by the UN G.A. Res. 39/46 of 10 December 1984, entered into force on26 June 1987.Article 1(1) of the UN Convention against Torture. It should be noted that unlike'torture', the 'cruel, inhuman or degrading treatment or punishment' is natdetined in any of the international human rights instruments or nationalconstitutions reterred to in this chapter. As will be seen in the cases discussed inthis chapter, distinctions have· been drawn between the various components ofthts prohibition.
100 Chapter Four
rights system. Further, since the cruelty of the death penalty ismanifested in both the time spent under sentence of death and in theexecution, the chapter examines the death row phenomenon andmethods of execution, which both invoke a violation of the prohibitionof cruel, inhuman or degrading treatment or punishment. Thejurisprudence of African national courts and those of other nationalcourts as well as international instances of the death rowphenomenon and methods of execution that are cruel, inhuman anddegrading are discussed.
2 Prohibition of cruel, inhuman or degradingtreatment or punishment under the United Nationshuman rights system
2.1 The Universal Declaration of Human Rights
Article 5 of the UDHR provides that '[n]o one shall be subjected totorture or to cruel, inhuman or degrading treatment or punishment'.Article 5 has not been subjected to interpretation in relation to thedeath penalty. However, as mentioned in the previous chapter, theUDHR is an abolitionist instrument by virtue of article 3, whichenvisages abolition.8
Moreover, the travaux préparatoires to the UDHR indicate thatthe death penalty was seen as a cruel, inhuman and degradingtreatment. During the drafting of the UDHR, Cassin, obviouslyinfluenced by earlier discussions on the subject of capital punishmentand the need to delete any mention of the death penalty from thedraft of the right to life article, proposed the following provision onthe right to life: 'Article 7. Every human being has the right to life andto the respect of his physical inviolability. No person, even if foundguilty, may be subjected to torture, cruelty or degrading treatment. ,9
Thus, in addition to considering the death penalty as a necessaryevil, the existence of which could not be justified on philosophical orscientific grounds,10 the aboye draft provision shows that the deathpenalty was viewed as cruel, inhuman and degrading treatment.Therefore, the application of the death penalty in Africa is a violationof the prohibition of cruel, inhuman or degrading treatment orpunishment as guaranteed under article 5 of the UDHR.
8 Article 3 of the UDHR guarantees the right to life. See chapter three for anínterpretation of this article.
9 UN Doc. E/CNA/AC.1 IW.21Rev.1 , also published as Annex D of UN Doc. EleNA!21 (see W Schabas The abolition o{ the death penalty In internationo{ low (2002)30-31).
10 Schabas (n 9 aboye) 42.
The prohibition of cruel, inhuman or der,¡rading treatment or punishment ond the death penalty in Africa 101
2.2 The International Covenant on Civil and Political Rights
Artiele 7 of the ICCPR prohibits cruel, inhuman or degradingtreatment or punishment. Just as the right to life is a non-derogableright, the right not to be subjected to cruel, inhuman or degradingtreatment or punishment must be protected at aH times, as artiele4(2) oi the ICCPR prohibits any derogation from artiele 7, even in atime of public emergency that threatens the life of the nation. Sinceartiele 7 is non-derogable, the UN Human Rights Committee considersreservations to artiele 7 not to be compatible with the ICCPR's objectand purpose. The Committee has thus stated that 'a State may notreserve the right to engage in slavery, to torture, to subject personsto cruel, inhuman or degrading treatment or punishment' .11 Similarly,the prohibition against cruel, inhuman or degrading treatment orpunishment under artiele 3 oi the European Convention12 and artiele5(2) of the American Convention13 are non-derogable.
The Human Rights Committee has elaborated on artiele 7 of theICCPR in its General Comment No 20, in which it stated that the aimof artiele 7 is to protect both the dignity and the physical and mental
=
11
12
13
UN Human Rights Committee, General Comment No 24: Issues relating toreservations made upon ratification or accession to the Covenant or the Optiona\Protocols thereto, or in relation to declarations under article 41 of the Covenant,4 November 1994, para 8 (UN Doc. CCPR/CI21/Rev.1/Add.6), hereinafter referredto as CCPR General Comment No 24. However, it should be noted that tworeservations concerning article 7 have been made. The government of Botswanahas made a reservation to the effect that it considers itse(f bound by article 7 tothe extent that 'torture, cruel, inhuman or degrading treatment' means torture,inhuman or degrading punishment or other treatment prohibited by section 7 ofthe Constitution of the Repubtie of Botswana (see C Heyns (ed) Human rights inAfdeD (2004) 53). The United States also made a similar reservation (see Sehabas(n 9 aboye 382).Article 15(2) of the European Convention prohibits deragation from article 3,even in a time of war or other publie emergeney threatening the life of thenation. Thus, the prohibition under article 3 is an absotute one, with noacceptable justifications under the Convention or under internationallaw for aetsin breaeh of the provision. It should be noted that in arder to strengthen theproteetion of persons against torture and inhuman or degrading treatment orpunishment, the Couneil of Eurape adopted the European Convention for thePrevention of Torture and Inhuman or Degrading Treatment or Punishment(adopted on 26 November 1987, entered ¡nto force on 1 February 1989 (ETS 126)).Article 1 of this Convention establishes the European Committee for thePrevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT),which shall examine the treatment of persons with a view to strengthening theprotection of their right under artide 3 of the European Convention. The CPT haspubUshed a set of standards relevant to ensuring the protection of personsagainst torture and inhuman or degrading treatment or punishment (For thesestandards, see 'The CPT Standards' http://www.ept.coe.int/en/docsstandards.htm (aeeessed 17 August 2004)Article 27(2) of the Amerícan Convention reeognises the right to human treatmentunder article 5 as non-derogable, even in a time of war, pubtic danger or otheremergeney.
2.4 Other United Nations standards
Other UN standards prohibiting cruel, inhuman or degradingtreatment or punishment are considered as they form part ofcustomary internationallawoThese standards include the Oeclarationon the Protection of All Persons from Being Subjected to Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment. 19
e right to respect one's inherent, the ICCPR is also of relevance
')ition in article 7 relates not'so to acts that cause mental
also noted that prolongedimprisoned person may
,,15 implies that prolonged.• discussed below, constitutes
_,-PRo The Committee found the.•y in some cases to constitute cruel,
.eatment, in violation of article 7 of the
....... against Torture and Other Cruel, Inhuman or/díng Treatment or Puníshment
UN Convention against Torture (or CAT) is examined in this studyit has been ratified by 42 African states, signed by five, and six are
still to ratify and sign the Convention. 17 The UN General Assembly'sdesire to make more effective the struggle against torture and othercruel, inhuman or degrading treatment or punishment throughout theworld saw the adoption of CATo CAT deals mainly with torture, butobliges state parties to prevent other acts of cruel, inhuman ordegrading treatment or punishment which do not amount to tortureas defined in article 1 in any territory under its jurisdictiono 18
Therefore, as noted earlier, though it is questionable whether theapplication of the death penalty does amount to torture despite thefact that it has elements of torture, it is prohibited under article 16of CAT.
14 UN Human Rights Committee, General Comment No 20: Replaces GeneralComment No 7 concerning the prohibitian of torture and cruel treatment orpunishment (artiele 7 of the lCePR), 10 March 1992, para 2, hereinafter referredto as CCPR General Comment No 20.
15 CCPR General Comment No 20, para 5.16 CCPR General Comment No 20, para 6.17 See 'Status of ratifications of the principal internatiooat human rights treaties'
http://www.unhchr.ch/pdfIreport.pdf (accessed 31 March 2005).16 ArUele 16 of the UN Conventioo against Torture. See a1so artides 10, 11, 12 and
13 of the same Convention.19 Adopted by the UN General Assembly, Resolution 3452 (XXX) of 9 December 1975.
The prohibition of cruel, inlJUman or degrading treatment or punishment and the death penaltv in Afrka 103
Article 1(1) of this Declaration incorporates the definition of torturein article 1(1) of the UN Convention against Torture. Unlike theConvention against Torture, which focuses mainly on torture, thisDeclaration focuses on both torture and cruel, inhuman and degradingtreatment or punishment. Article 2 of the Declaration provides:
Any act of torture or other cruel, inhuman or degrading treatment orpunishment is an offence to human dignity and shalL be condemned as adenial of the purposes of the Charter of the United Nations and as aviolation of the human rights and fundamental freedoms proclaimed inthe Universal Declaration of Human Rights.
Article 3 goes further to prohibit derogation from the aboyeprohibition in a time of emergency or other exceptionalcircumstances. Since, as is shown below, the death penalty is cruel,inhuman and degrading, it implies that it has to be condemned andshould be abolished as article 3 of the Declaration prohibits statesfrom permitting or tolerating cruel, inhuman or degrading treatmentor punishment. Other UN standards relevant to the enforcement ofthe prohibition of cruel, inhuman or degrading treatment orpunishment include the Standard Minimum Rules for the Treatment ofPrisoners20 and the Basic Principles for the Treatment of Prisoners. 21
3 Prohibition of cruel, inhuman or degradingtreatment or punishment in the African humanrights system
3.1 The African Charter on Human and Peoples' Rights
Article 5 of the African Charter provides that:
[e]very individual shalL have the right to respect of the dignity inherentin a human being and to the recognition of his legal status. All forms ofoo. cruel, inhuman or degrading punishment and treatment shalL beprohibited. 22
With regard to the death penalty, the African Commission has had theopportunity to address issues relating to alleged violations of article5 in one of the cases before it, as shown below.
20 UN Economic and Social Couneil (ECOSOC) Resolution 663 Cl (XXIV) of 31 July1957.
21 UN General Assembly Resolution 45/111 of 14 December 1990.22 The right to respect of one's dignity 15 the only right in the African Charter
described as 'inherent in a human be1ng'.
102 Chapter Four
integrity 01 the individual. 14 Thus, the right to respect one's inherentdignity guaranteed under artide 10 01 the ICCPR is also 01 relevancewhen dealing with artide 7. The prohibition in artide 7 relates notonly to acts that cause phtsical pain but al>o to acts that cause mentalsullering to the victim. 1 The Committee also noted that prolongedsolitary conlinement 01 the detained or imprisoned person mayamount to acts prohibited by artide 7. 16 This implies that prolonged(solitary) conlinement on death row, as discussed below, constitutesa violation 01 article 7 01 the ICCPR. The Committee lound theimpo>ition 01 the death penalty in some cases to constitute cruel,inhuman and degrading treatment, in violation 01 artide 7 01 theICCPR.
2.3 Convention against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment
The UN Convention against Torture (or CAT) is examined in this studyas it has been ratilied by 42 African states, signed by five, and six arestill to ratily and sign the ConventionY The UN General Assembly'sdesire to make more ellective the struggle against torture and othercruel, inhuman or degrading treatment or punishment throughout theworld saw the adoption 01 CAT. CAT deals mainly with torture, butobliges state parties to prevent other acts of cruel, inhuman ordegrading treatment or punishment which do not amount to tortureas delined in artide 1 in any territory under its jurisdiction. 18
Therefore, as noted earlier, though it is questionable whether theapplication 01 the death penalty does amount to torture despite thelact that it has elements 01 torture, it is prohibited under artide 1601 CAT.
2.4 Other United Nations standards
Other UN standards prohibiting cruel, inhuman or degradingtreatment or punishment are considered as they lorm part 01customary internationallaw. These standards indude the Dedarationon the Protection 01 All Persons from Being Subjected to Torture andOther Cruel, Inhuman or Degrading Treatment or Puni>hment. 19
14 UN Human Rights Committee, General Comment No 20: Reptaces GeneralComment No 7 concerning the prohibitíon of torture and cruel treatment orpunishment (article 7 of the ICCPR), 10 March 1992, para 2, hereínafter referredto as CCPR General Comment No 20.
15 CCPR General Comment No 20, para 5.1b CCPR General Comment No 20, para 6.17 See 'Status of ratifications of the principal international human ríghts treaties'
http://www.unhchr.ch/pdf/report.pdf(accessed 31 March 2005).18 Article 16 of the UN Convention agaínst Torture. See atso articles 10,11,12 and
13 of the same Convention.19 Adopted by the UN General Assembly, Resolution 3452 (XXX) of 9 December 1975.
The pf(Jhibition 01 cruel, inhuman or degrading treatment or punishment and the deolh penalty in Alrica 103
Artiele 1(1) of this Deelaration incorporates the definition of torturein artiele 1(1) of the UN Convention against Torture. Unlike theConvention against Torture, which focuses mainly on torture, thisDeelaration focuses on both torture and cruel, inhuman and degradingtreatment or punishment. Artiele 2 of the Deelaration provides:
Any act of torture or other cruel, inhuman or degrading treatment orpunishment is an ollence to human dignity and shall be condemned as adenial 01 the purposes of the Charter of the United Nations and as aviolation of the human rights and fundamental Ireedoms proclaimed inthe Universal Declaration 01 Human Rights.
ArUele 3 goes further to prohibit derogation from the aboveprohibition in a time of emergency or other exceptionalcircumstances. Since, as is shown below, the death penalty is cruel,inhuman and degrading, it implies that it has to be condemned andshould be abolished as artiele 3 of the Deelaration prohibits statesfrom permitting or tolerating cruel, inhuman or degrading treatmentor punishment. Other UN standards relevant to the enforcement ofthe prohibition of cruel, inhuman or degrading treatment orpunishment inelude the Standard Minimum Rules for the Treatment ofPrisoners20 and the Basic PrincipIes for the Treatment of Prisoners. 21
3 Prohibition of cruel, inhuman or degradingtreatment or punishment in the African humanrights system
3.1 The African Charter on Human and Peoples' Rights
Artiele 5 of the African Charter provides that:
[e]very individual shall have the right to respect of the dignity inherentin a human being and to the recognition 01 his legal status. All forms 01... cruel, inhuman or degrading punishment and treatment shall beprohibited. 22
With regard to the death penalty, the African Commission has had theopportunity to address issues relating to alleged violations of artiele5 in one of the cases before it, as shown below.
20 UN Economic and Social Counci\ (ECOSOC) Reso(ution 663 el (XXIV) of 31 July1957.
21 UN General Assembly Resolution 45/111 of 14 Oecember 1990.2Z The right to respect of one's dignity 1S t\1e only right in the African Charter
described as 'inherent in a human being'.
104 Chapter Faut
3.2The African Commission on Human and Peoples' Rights
In Interights et al (on behall 01 Bosch) v Botswana,B the AfricanCommission had to address, ínter olio, the following issues: First, wasthe sentence of death in the case a disproportionate penalty andhence a violation of article 5 of the African Charter? Second, did thefailure to give reasonable notice of the date and time 01 executionamount to cruel, inhuman or degrading punishment or treatment inbreach of article 5 of the African Charter?
With regard to the first issue on whether the sentence of death inthe case was a disproportionate penalty, the Commission lound nobasis for linding a violation of article 5 01 the Alrican Charter. Thiswas because, as the Commission noted, it was not established that theCourts in this case failed to consider the full circumstances beloreimposing the death penalty.24 In dealing with this issue, theCommission erroneously noted that 'there is no rule 01 internationallaw which prescribes the circumstances under which the deathpenalty may be imposed'. 25 As seen in the previous chapters of thisstudy and in the subsequent chapter, article 6 of the ICCPR and otherUN standards (such as the ECOSOC safeguards discussed in chapterfive) , for example, prescribe circumstances under which the deathpenalty may be imposed.
Unfortunately, the Commission did not deal with the substance ofthe second issue aboye - the failure to give reasonable notice of thedate and time of the execution. The Commission stated that if it dealtwith the issue, it would be unlair to the res~ondentstate, as the issuehad not been communicated to the state. 6 The Commission at thisstage gave priority to procedure at the expense of substance. Thecommunication of the issue to the state is a matter of procedure and,as an independent body, the Commission should give its opinion onsubstantive issues, which it failed to do in this case.
Nevertheless, it is clear from the Commission's decision that, ifthe second issue had been considered, it would have found a violationof article 5. This can be deduced from the Commission's statementthat 'a justice system must have a human face in matters of executionof death sentences by affording a condemned person an opportunityto arrange his affairs, to be visited by members 01 his intimate familybefore he dies, and to receive spiritual advice and comfort to enablehim to compose himself as best as he can, to face his ultimateordeal' .27 If the issue had been considered, it is likely that the
23 Bosch (African Commission). See chapter three for the facts of the case.24 Bosch (African Commission), paras 31 & 37.25 Bosch (African Commission), para 31.26 Bosch (African Commission), para 41.27 As aboye.
31
29
28
The prohibJtion of cruel, inhuman or degrading treatment or punishment ond the death prmo1ry in Afri(a 105
Commission would have found a violation of article 5 because Boschwas executed without having been given reasonable notice of thedate and time of execution or without informing her family.
Although the African Commission did not find a violation of article5 in the aboye case, it is worth noting that the Commission has fbundthe following to be cruel, inhuman and degrading treatment,constituting a violation of article 5 of the African Charter: Detention(imprisonment) of persons under deplorable conditions, constitutinga violation of their physical integrity;28 detention of a person withoutpermitting him to have contact with his family and refusing to informhis family whether the individual is being held and his whereabouts,amounting to inhuman treatment of both the detainee and the familyconcerned;29 holding prisoners in solitary confinement;30 andarbitrary detention of a person without him knowing the reason orduration of detention. 31
4 Prohibition of cruel, inhuman or degradingtreatment or punishment in African nationalconstitutions
As noted in the previous chapter, the constitution is the supreme lawof the land in most legal systems. An examination of the aboyeprohibition in national constitutions is necessary to identity whatcauses obstruction to constitutional challenges to the death penaltyin Africa.
See Amnesty International (on behaf{ of Orton and Vera Chirwa) v Malawi,Communications 68192 and 78192, 8th Annual Activity Report: 1994-1995, (2000)AHRLR 144 (ACHPR 1995) para 7; Organisation Mondiale Contre la Torture andOthers v Rwanda, Cornrnunications 27189, 46191, 49191 and 99/93, 10th AnnualActivity Report: 1996·1997, (2000) AHRLR 282 (ACHPR 1996) paras 26-27: andHurj·Laws v Nigerfa, Communication 225198, 14th Annual Activity Report: 2000-2001: (2000) AHRLR 273 (ACHPR 2000) para 40.See Amnesty International and Others v Sudan, Communications 48/90, 50/91,52191 and 89/93, 13th Annual Activity Report: 1999-2000; (2000) AHRLR 297(ACHPR 1999) para 54.
)0 See Ma{awi African Association and Others v Mouritania, Communications 54/91,61/91,98/93, 164-196/97 and 210/98, 13th Annual Activity Report: 1999-2000;(2000) AHRLR 149 (ACHPR 2000) para 115_See Huri-Laws v Nigeria, Communication 225/98, 14th Annua( Activity Report:2000-2001; (2000) AHRLR 273 (ACHPR 2000) para 40, In addition, to further theimplementation of existing provisions on the prohibition of torture and cruel,inhuman or degrading treatment or punishment, the African Commission adopted'Guidelines and Measures for the Prohibition and Prevention of liJrture, Cruel,Inhuman or Degrading Treatment or Punishment in Africa' (Robben lslandGuidelines), which had previously been adopted by the Robben Island Workshopon Torture. The Commission adopted these guidetines during its 32nd ordinarysession in Banjul, The Gambia, from 17-23 October 2002. See Resolution onGuidelines and Measures for the Prohibition and Prevention of Torture, Cruel,Inhuman or Degrading Treatment or Punishment, availabte at http:/ /www.achpr.org/englishlresolutions/resolution66_en.html (accessed 19 April2005),
l06Chapter Four
Most African national constitutions prohibit cruel, inhuman ordegrading treatment or punishment, but some constitutions do nothaye proYisions on cruel, inhuman or degrading treatment orpunishment. J2 Therefore, in Madagascar and Morocco, where thereare no proYisions on the aboye prohibition (and on the right to life),and in 5enegal (now abolitionist), where the right to life is unqualified, with no proYision on the aboye prohibition, it possible tochallenge the death penalty by relying on the aboye two rights. 33Also, it is possíble to challenge the death penalty on the grounds thatit is cruel, inhuman and degrading in Liberia and Tunisia, for example,since ít ís difficult to rely on the qualified right to life proyision intheir constitutions. However, this is restricted in countries where theconstitution has a limitation or derogation clause (discussed below).
It should be noted, however, that the constitutions do not use thesame terminology. Also, the treaties do not employ uniformterminology. For example, the UDHR, ICCPR and American Conventionprotect against torture, or cruel, inhuman or degrading treatment orpunishment, the European Convention omits the word 'cruel', as itprotects against torture or inhuman or degrading treatment orpunishment, and the American Dedaration (and the Constitution ofthe United 5tates, Eighth Amendment) protects against cruel(infamous) and unusual punishment.
In Africa, while most national constitutions employ the words'treatment' and 'punishment' together, the Constítution of Cameroon1996, for example, uses only the word 'treatment'. So the questionthat comes to mind is: Are punishments that are cruel, inhuman ordegrading allowed in Cameroon? Cameroon has signed and ratífiedother human rights instruments that prohibit cruel, inhuman ordegrading punishment. Therefore, though the national constitutions(and treaties) do not employ uniform terminology, the underlyingconcept, which is to prohibit cruel, inhuman or degrading treatmentor punishment, is the same. 5ince the underlying concepts are thesame, a proper interpretation and application of the word'treatment' in the Constitution of Cameroon would ínclude the word'punishment,.34 In this regard, Hudson points out that:
]2 These inelude the Constitutions ef Equatorial Guinea (1991), Liberia (1984),Madagascar (1998), Rwanda (1991), Senegal (2001), Tanzania (1995) and Tunisia(1991). Also, there is no such provision in Semalia, as the Constitution wassuspended on 27 January 1991 (see Heyns (n 11 aboye) 1505) and in Swaziland, asthe country presently has no Constitution.
33 The right not to be subjected to cruel, inhuman or degrading treatment orpunishment and the right to life.
34 It should be noted that in the absence of the Constitutional Councll, a body withfull jurisdiction in all matters pertaining to the interpretation and application efthe Constitution, the enforceability and justiciability of the rights guaranteed inthe Constitution of (ameraon remain untested.
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The prohibir/on of cfU"l, inllUmon or dpgroding rreotment or punishment and the death penalty in Afrlca 107
[w]hile the terminology is different, it is submitted that the underlyingconcept is the same. Each clause, in each national and internationalinstrument, was adopted to protect persons from unnecessary and unduesuffering. ~Therefore,l it is the interpretation and application which isimportant. 5
Same as the right to life provisions in African national constitutions,the prohibition of cruel, inhuman or degrading treatment is eitherqualified or unqualified. This prohibition is qualified either bysubjecting the provision to the law or exempting the death penaltyfrom the provision. Examples of Constitutions subjecting the aboyeprovision to the law inelude the following: Botswana (1999, artiele 7),Kenya (1999, artiele 74), Lesotho (2001, artiele 8(1) and (2)) andSierra Leone (1996, artiele 20(1) and (2)).
The Constitution of Zimbabwe 2000 is the only Africanconstitution that explicitly exempts the method of execution anddelay in the execution of the death sentence from the prohibition ofinhuman or degrading treatment or punishment. Article 15(1), (4) and(5) provides:
11) No person shall be subjeeted to ... inhuman or degrading punishmentor other such treatment.(4) The exeeution of a person who has been senteneed to death by acompetent court in respect of a criminal offence of which he has beeneonvicted shall not be held to be in contravention of subseetion (1)solely on the ground that the execution is carrled out in the mannerpreseribed in seetion 315(2) of the Criminal Proeedure Evidenee Aet[Chapter 59J as that seetion existed on 1 Oetober 1990.(5) Delay in the exeeution of a sentenee of death, imposed upon aperson in respect of a criminat offence of which he has been convicted,shallnot be heId to be in eontravention of subseetion (1).
Artiele 15(6) goes further to prohibit a stay, alteration or remission ofany sentence on the grounds that, since the sentence was imposed,there has been a contravention of subsection (1) which prohibitsinhuman or degrading punishment or treatment. The formulation ofthe aboye artieles presents an obstruction to challenges to the deathpenalty in Zimbabwe with regard to the constitutionality of the deathpenalty or method of execution, based on the prohibition of cruel,inhuman or degrading treatment or punishment. lt is worth notingthat artiele 15(4) and (5) were drafted in this manner owing to some
35 P Hudson 'Does the death row phenomenon violate a prisoner's human rightsunder internationa( law?' (2000) 11 European Journal o{ International Law 817.
39
37
36
108 Chapter Four
of the (successful) challenges to the death penalty, in which thechallenge was based on article 15(1) of the Constitution ofZimbabwe. 36
Furthermore, as stated earlier, some national constitutionsprohibit cruel, inhuman or degrading treatment in clearly unqualifiedterms, thus makin~ it possible to rely on the provisions to challengethe death penalty. 7 Reliance on the prohibition of cruel, inhuman ordegrading treatment or punishment is restricted by the presence of alimitation or derogation clause in sorne national constitutions. Forexample, article 24 of the Constitution of Uganda provides in clearlyunqualified terms that no person shall be subjected to any form ofcruel, inhuman or degrading treatment or punishment. Article 44(a)further provides that notwithstanding anything in this Constitutionthere shall be no derogation from the enjoyment of the freedom fromcruel, inhuman or degrading treatment or punishment. Conversely,article 43 provides for the limitatian of fundamental rights andfreedoms in the public interest. 38 This appears ta place a restrictionon the possibility of relying on article 24 to challenge theconstitutionality of the death penalty in Uganda.
Nevertheless, the 5upreme Court of Uganda, acting as aConstitutional Court of Appeal in Attorney General v Abuki,unanimously heId that the right to dignity and the right not to besubjected to inhuman treatment or punishment, when read witharticle 44(a), is 'absolute and unqualified'. 39 The Supreme Court was,therefore, of the opinion that there were no conceivablecircumstances that would justify derogation from the aboye right.
In Chifeya v S (1990) SC 64/90 (unreported), hereinafter referred to as ChUeya(1990), the Supreme Court of Zimbabwe had to decide on whether execution byhanging contravened section 15(1) of the Zimbabwean Constitution, providingthat 'no person shatl be subjected to torture or to inhuman or degradingpunishment or other such treatment'. The government pre-empted this byamending section 15 of the Constitution, specificaUy upholding theconstitutionality of executions by hanging (See Republic v Mbushuu and Another(1994) 2 LRC 335 345, hereinafter referred to as Mbushuu (1994); and J Hatchard& S Coldham 'Commonwealth Africa' in P Hodgkinson ti A Rutherford (eds)Capital punishment: Global issues and prospects (1996) 170). A!so, in CatholicCommlssion (1993) - discussed below - the Supreme Court of Zimbabwe founddelay in carrying out executions to be unconstitutionat, thus requiring thecommutation of the death sentences of the applicants to life imprisonment. Thegovernment again amended the Constitution by passing the Constitution ofZimbabwe Amendment (No 13) Act 1993 which retrospectively exempted thedeath penalty from the scope of section 15(1).See, for example, the Constitutiot'ls of Algeria (1996, artide 34); Benin (1990,artide 1B); Cameroon (1996, Preamble); Chad (1996, article 1a), Congo (2001,artiele 9); Libya (1977, article 31(c)); Mali (1993, .rtiele 3); and Toga (1992,article 21).
38 With regard to timitations of (restrictions on) and derogations from rights, seealso the Constitutions of Burundi (2001, "rtiele 50); Eritrea (1997, articles 26 a27); The Gambia (ZOOl, artieles 17(Z) ti 35); Ghana (1996, articte 31(10)); Guinea(1990, article 22); Malawi (2001, artide 44); and Nigeria (1999, article 45).Attorney General v Abuki (Z001) 1 LRC 63, 88.
»
rhe prohibitian al cruel, inhuman or degrading treatment ar punishment and the death penalty in A{rica 109
Regrettably, in Susan Kigula and 416 Others v The AttorneyGeneral,4o the Constitutional Court found the imposition of the deathpenalty not to constitute cruel, inhuman or degrading punishment41
- implying a derogation from this right. The Court based its argumenton the point that the right to life is not included in article 44 on thelist of the non-derogable rights and, accordingly, article 44 could nothave been intended to apply to the death penalty permitted in article22(1) of the Constitution (right to life provision). lt further stated thatif the framers of the Constitution had wanted to take away the rightsin article 22(1) by article 24, which prohibits cruel, inhuman ordegrading treatment of punishment, they would have done so in clearterms. The Court concluded that the imposition of the death penaltyconstitutes no cruel, inhuman or defrading treatment, thus is notinconsistent with articles 24 and 44. 4
Also, the Constitution of Tanzania 1995 has an unqualifiedprovision on cruel, inhuman or degrading treatment, but has alimitation clause which restricts any challenges to the death penaltyon the grounds that it is cruel, inhuman or degrading. Article 30(2) ofthe Constitution of Tanzania allows derogation from basic rights ofthe individual in public interest. ln the case of Republic v Mbushuuand Another, the constitutionality of the death penalty was raisedwith regard to the right to life, right to dignity and right not to besubjected to cruel, inhuman or degrading punishment.43 The HighCourt found the death penalty to be inherently cruel, inhuman anddegrading and also that it offends the right to dignity in the course ofexecuting the sentence.44
Based on its interpretation of article 30(2), the High Court foundthe death penalS§ not to be in the public interest and thereforeunconstitutional. 5ince concepts like cruel, inhuman or degradingare subject to evolving standards of decency, the High Court based itsfinding on factors such as the possibility of erroneous convictions,including the fact that most poor defendants did not receive adequatelegal representation; the fact that the sentences of life imprisonmentprovided protection against violent crime no less effective than thedeath sentence; and the mode of execution, the inhumane conditionson death row and delays.46
40 5usan Kigula and 416 Others v The Attorney General, Constitutional Petition No 6of 2003, judgment delivered in June 2005, 62, hereinafter referred to as Susan(2005).
41 Susan (2005) 24.42 As aboye.43 Mbushuu (1994) 340.44 Mbushuu (1994) 351. The Court noted that it is nat just the final act of stringing
up the prisoner that is an ugly matter but also the protracted tarment ta which heis subjected befare executian.
45 Mbushuu (1994) 358.46 Mbushuu (1994) 342-351.
110 Chapter Four
On appeal, the Court of Appeal agreed to these standards ofdecency and that the death penalty was inherently inhuman, crueland degrading punishment,47 but declared it constitutional as it wassaved by article 30(2) of the Constitution.48 The Court noted thatwhether or not a legislation which derogates from a basic right of anindividual is in the public interest depends on first, its lawfulness (itshould not be arbitrary) and second, the limitation imposed being notmore than reasonably necessary.49 The Court found the lawprescribing the death penalty not to be arbitrary;50 and whether it isreasonably necessary is for society to decide, and since the societyfavours the death penalty, it is thus saved by article 30(2).51
The Tanzanian case illustrates the restriction placed onchallenges to the death penalty by limitation or derogation clauses.However, the extent to which a limitation clause will affect aconstitutional challenge to the death penalty will depend largely onthe way the courts interpret and apply the limitation provision. 52 It isimportant for courts, when they interpret limitation or derogationclauses, to have in mind the underlying object of the provisionguaranteeing the right in question, as it was adopted to protectagainst a violation of the particular right. The fact that theprohibition of cruel, inhuman or degrading treatment or punishmentis seen in most jurisdictions as non-derogable should also be borne inmind.
5 The death row phenomenon
The unique horror of the death penalty is that from the moment thesentence is pronounced the prisoner is forced to contemplate theprospect of being taken away to be put to death at an appointedtime. 53
In some jurisdictions, the law specifies where a prisoner awaitingexecution is to be confined. For example, article 117 of the PenalCode of Ethiopia 1957 provides that the prisoner awaiting the
47 Mbushuu and Another v The RepubUc (1995) 1 LRC 216 228, hereinafter referred48 to as Mbushuu (1995).49 Mbushuu (1995) 232.50 Mbushuu (1995) 229.
Mbushuu (1995) 230.51 Mbushuu (1995) 232. As mentioned in the prevíous chapter, Justice Chaskalson
has expressed his disagreement with the aboye decision, noting that the court'sduty is to interpret the constitution and uphold its values; thus it is for the courtand not society or parliament to decide whether the death penalty is justifiableunder a limitation clause or whether it is reasanabty necessary in arder to protectlife (5 v Makwanyane (1995) 3 SA 391 (CC) para 115, hereinafter referred to asMakwanyane (1995).
52 See, far example, the Makwanyane case discussed below.53 Amnesty International When the state kHls ... The death penalty v. human rights
(1989) 61.
The prohibWan af cruel, inhuman ar degrading treatment ar punishment and the death penalty in Afriw 111
confirmation or the execution of the sentence be detained under thesame conditions as a prisoner serving sentence of rigorous imprisonmento In Swaziland, the law requires condemned prisoners to stay ondeath row until the execution warrant has been signed. 54 In otherstates, like Ghana and Zimbabwe, condemned prisoners are keptseparately; in others, like Cameroon and Nigeria, they are mixed intocells with those awaiting trial or other convicts respectively.
Generally, in most jurisdictions, the place where the condemnedprisoners are confined is called 'death row'. Thus, death row refersto the area in a prison that houses inmates awaiting execution and isoften considered an institutionalísed hell. 55 Vogelman describesdeath row as a place whose sole purpose is to preserve those who livethere so that they may be executed. 56 It is, therefore, in the deathchamber that the execution of the condemned makes capitalpunishment a social realíty.
Some prisoners in African countries endure a hard life on deathrow, suffering under difficult conditions often for decadesY In thenineteenth century, executions took place within hours or days of asentence of death, but delays have steadily increased in length, andmore often than not are measured in years. 58 In some African states,people have spent over ten years on death row. In Uganda, some havespent over ZO years on death roW. For example, Ogwang, currently thelongest serving prisoner on death row in the Luzira Upper Prison hasbeen on death row for oyer 20 years. 59 Lieutenant Colonel Addallah,Amin's notorious governor for the Central proYince, who wasconvicted of the murder of a district administrator, was on death rowfor 22 years. 60 In Kenya, death row inmates haye spent 20 years ormore in jail. 61 In Ghana, some prisoners have spent over ten years ondeath row. 62 In 2001, there were apparently at least 30 prisoners whohad been on death row for between eight and 25 years in Zambia, and
61
6Z
54
5556
Report of the national coordinator of SwazHand¡ George Vukor-Quarshie¡presented at the First International Conference on the Application of the DeathPenalty in Commonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.Hudson (n 35 above) 835.L Vogelman 'The living dead: Living on death row' (1989) Z South African Journalon Human Rights 195.
57 Amnesty International 'Africa: Report gives mixed review of Africa's deathpenalty record'http://www.oneworld.org/amnesty/press/18apr_africa.html (accessed 10 July2003).Hudson (n 35 aboye) 834.See generally, Susan Kigula and 416 Others v The Attorney General,Constitutional Petition No 6 of 2003.
60 W Wairagala 'The death penalty in Uganda' http://www.thedeathhouse.com(accessed 10 July Z003).G Munene 'Plan to release death row prisoners'http://allafrica.com/storiesI200307150153.html (acces5ed Z2 July Z003).'President grants amnesty to prisoners'http://aUafrica.com/stories/printable/200306300853.htm> (accessed 4 JulyZ003).
5859
b
112 Chapter Four
some prisoners served at least 18 years on death row before beingpardoned in Swaziland.63 Hence, some writers have expressedconcern regarding the nature of life on death row. 64
Prolonged confinement on death row subjects prisoners totreatment that does not respect their human dignity, thus amountingto cruel, inhuman and degrading treatment or punishment, oftenreferred to as the 'death row phenomenon'. Hudson has defined thedeath row phenomenon as 'prolonged delay under the harshconditions of death row'. 65 It is clear from the aboye definition that'long delays' alone or 'harsh conditions' are insufficient to constitutethe death row phenomenon. The 'long delays' must be accompaniedby harsh conditions or vice versa for them to constitute the death rowphenomenon. Hudson is of the view that harsh conditions alone arenot sufficient as they can be justified for security reasons; and delayalone is insufficient to constitute the death row phenomenon, asthere is the complication of defining the appropriate period ofdelay.66 Thus, both have to be present together.
However, prolonged delay taken together with other factors(irrespective of harsh conditions) would constitute the death rowphenomenon. Prolonged delay taken together with uncertainty, forexample, could constitute the death row phenomenon, because if aprisoner is uncertain about when he will be executed, even if theconditions on death row are not harsh, he still agonises anddeteriorates mentally, which leads to mental pain or torture. In otherwords, the uncertainty can lead to mental deterioration or suffering.
With regard to prolonged delays, the UN Special Rapporteur ontorture observed in his 1988 report to the UNCHR that 'if persons whohave been sentenced to death have to wait for long periods beforethey know whether the sentence will be carried out or not' and if theuncertainty lasts several years, the psychological effect may beequated with severe suffering, often resulting in serious physicalcomplaints. 67 Thus, the accompanying factor to prolonged delay isnot only harsh conditions, but could also be other factors, such asuncertainty leading to severe mental suffering or mental imbalance.
Schmidt refers to the death row phenomenon as 'the situation andtreatment of individuals sentenced to death and awaiting executionfor many years under particularly harsh conditions of detention' .68
63 R Hood The death penalty: A worldwide perspectiYe (2002) 111.64 For example, see R Johnson, R Death work: A study of the modern execution
process (1990) ix.65 Hudson (n 35 aboye) 836.66 Hudson (n 35 aboye) 836.67 Amnesty International (n 53 aboye) 62·63.68 M Schmidt 'The death row phenomenon: A comparative anatysis' in T Orlin et al
(eds) The jurisprudence of human rights law: A comparative interpretativeapproach (2000) 47·48.
71
b
Tl1e prohibition of cruel, inhumnn or degrading treatment or punishment and the death penalty in Africa 113
This definition appears broader as, in my view, other compellingfactors could be read into 'the situation and treatment of individualssentenced to death' .
The death row phenomenon has occupied both the highestappellate judicial bodies of many countries and a number ofinternational instances in recent years. 5ince the concept of thedeath row phenomenon is still developing, the definitions of theconcept are contradictory in the available jurisprudence. However,the jurisprudence on the death row phenomenon discussed belowshow that prolonged delay together with further compelling factors orprolonged delay and harsh conditions would constitute the death rowphenomenon. The jurisprudence and aboye definitions identify twomain elements of the death row phenomenon - prolonged delay andconditions on death row.
The death penalty, when preceded by long confinement andadministered bureaucratically, dehumanises both the agents andrecipients of this punishment and amounts to a form of torture. 69
Waiting to be executed or wondering for a long period of timewhether or not one will be successful in avoiding executionundoubtedly causes stress. 70 The factors that cause delays include thefollowing:
Firstly, there are the development of national and internationalprocedures of appeal and the proliferation in laws that protect theprisoner's rights. Appeals to human rights tribunals, for instance theUN Human Rights Committee, have increased thus lengthening thetime needed to attend to a case. Unfortunately, the proliferation ofsuch laws and appeals has had a negative outcome with sornecountries withdrawing from international human rights treaties.71
69 Hood (n 63 above) 109.70 As seen in chapter two, delays between the time of sentencing and the time of
execution have steadily increased in 1ength and more often than not aremeasured in years. In some African states, people have spent over ten years ondeath row.For example, Jamaica decided to withdraw from the Optiona1 Protoco1 to theICCPR since it faced numerous challenges from the UN Human Rights Committeein relation to the death row phenomenon. Jamaica denounced the Protocol on 23October 1997 alleging that the hearing of complaints pending against Jamaica bythe HRC (set up under the ICCPR) was time consuming and that the processprevented the carrying out of executions - the government of Jamaica was of theview that there was a real possibility that all death sentences would becommuted. See e Heyns & F Viljoen The impact of the United Nations humanrights treaties on the domestie level (2002) 353 - 354. See a150 M Nowak 'TheInternational Covenant on Civil and Political Rights' in R Han5ki & M SlIksi (eds) Anintroduction to the internationa[ proteetion of human rights (1999) 80 andSchmidt (n 68 aboye) 70, Jamaica's denunciation carne after the Human RightsCommittee conctuded from a series of cases submitted to it by those on death rowin Jamaica that the rights of those sentenced to death were not being respected,Jamaica's withdrawal carne into effect on 23 January 1998, Similarly, thegovernment of Trinidad and Tobago submitted a note re{ating to the denunciationof the Optional Protocol to the ICCPR (Schmidt (n 68 aboye) 71) to the UN
114 Chapter Four
Secondly, the prisoner's willingness to accept delay is a factor fordelay. Prisoners accept delay, even if it constitutes cruelty, becausethey are hoping that they might be successful in avoiding execution.Delay in judicial proceedings that have been attributable to theprisoners has been held to be the responsibility of the state or theappellate system, and not that of the prisoner. In Pratt ond Morgan vAttarney General of Jamaica et al, Lord Griffith observed as follows:
A 5tate that wishes to retain capital punishment must accept theresponsibility of ensuring that execution follows [as] swiftly aspracticable after sentence, allowing a reasonable time for appeal andconsideration of reprieve. It is part of the human condition that acondemned man will have every opportunity to save his life through useof the appellate procedure. If the appellate procedure enables theprisoner to prolong the appellate hearings over a period of years, thefault is to be attributed to the appellate system that permits such delaysand not to the prisoner who takes advantage of it. n
In Barret and Sutcliffe v Jamaica, Chanet, in a dissenting opinion,argued that:
[a] very long period [01 detention] on death row, even il partially due tothe failure of the condemned prisoner to exercise a remedy, cannot
72
Secretary-GeneraL on 26 May 1998. However, by a second note on the same day,Trinidad and Tobago re·acceded to the Optional Protocoi. lts instrument ofaccession induded a reservation excluding the competence of the Human RightsCommittee to receive and consider communications relating to any prisoner whois under sentence of death in respect of any matter relating to his prosecution,detention, trial, conviction and sentence, or the carrying out of the deathsentem:e on him and any matter connected therewith {Schabas (n 9 aboye) 389).The aboye reservation was entered despite the Human Rights Committee'sGeneral Comment No 24, in which it stated that reservations that offendperemptory norms woutd not be compatible with the object and purpose of theICCPR or the Optional Protocol (para 8). The Committee atso stated that theobject and purpose of the Optional Protocol is to recognise the competence ofthe Human Rights Committee to receive and consider communications fromindividuats who c!aim to be victims of a violation of the rights in the ICCPR. TheCornmittee stated further that because of this objeet, a reservation that seeks topreclude this would be contrary to the object and purpose of the OptionalProtocol, even if not of the ICCPR (para 13). The governments of Denmark,Norway, The Netherlands, Germany, Sweden, Ireland, Spain, France and Itatyhave expressed their disapproval of the aboye reservation as it appears to beunquestionably incompatible with the object and purpose of the OptionalProtocol {Schabas (n 9 aboye) 390-394). Trinidad and Tobago has a{so withdrawnfram the American Convention on Human Rights. Trinidad and Tobago notified theSecretary-General of the Organisation of American States of its denunciatlon ofthe American Convention on 26 May 1998. In accordance with article 78(1) of theAmerican Convention, the denunciation carne into effect one year from the dateof notification (see Basie documents pertaining to human rights in the InterAmerican system, OEA/Ser.l/V/I.4 Rev.9, 31 January 2003 at 69).Pratt and Morgan v Attorney General ofJamaica et al, Privy Council Appeal No 10of 1993, judgment delivered on 2 November 1993 (Judicial Committee of thePrivy Council) 23, hereinafter referred to as Pratt and Morgan (Privy CouncH).
rhe prohibirían af cruel, inhuman af degrading treatment ar punishment and the death penalty in Africa 115
exonerate the State party from its obligations under artiele 7 of the[ICCPR].73
Thirdly, the decreasing support for the death penalty is a factor fordelay. State officials grant stays of execution or remand a case forfurther review if they do not want to bear the responsibility forexecuting a prisoner. In Africa, the elemency process itself, which isautomatic for example in common law systems, takes a very long timein most cases. It also takes a considerable time for execution warrantsto be signed. The reasons for the long clemency process are political,procedural and religious. States are sensitive to public opinion andmore cautious in their approaches to execution. For example, it hasbeen reported that the Zambian ¡,resident refuses to sign executionorders because he is a Christian. 4 Thus, because of the president'sreligious beliefs, those who are under sentence of death will continueto be on death row until such time as their sentences are commuted,or the death penalty is abolished in Zambia, or the president changeshis beliefs, or a new president comes to power.
Despite the above factors, prolonged delay adds to the cruelty ofthe death sentence. As noted above, the UN Special Rapporteur ontorture has observed that long delays and uncertainty lead to severesuffering.75
Furthermore, the conditions in which condemned prisoners arekept exacerbate the inherently cruel, inhuman and degradingexperience of being under sentence of death awaiting execution. Thehorrible conditions on death row have been well documented.76 Forexample, in Nigeria, the living conditions of 12 juveniles sentenced todeath by the Lagos State Armed Robbery and Firearms Tribunal inJune 1988 for armed robbery were reportedly 'unfit for any human,much less young adolescents'.77 One would think that as years go bythe death row conditions would improve in many African states. Yet,the conditions are still deplorable. The conditions on death row in theChikurubi Maximum Security Prison in Zimbabwe were described inConjwaya v Minister afJustice and Anather as follows: 78 Prisoners are
73 Barret and Sutciiffe v Jamaica, Communications 270/1988 and 271/1988, UN Doc.A/47/40, views adopted on 30 March 1992. See Official records of the HumanRights Committee 1991/92, Vol. 11 (1995) 388-390, para 8.4, hereinafter referredto as Barret and Sutciiffe (Human Rights Cornmittee).
74 Legalbrief News Diary, 23 May 2003 http://www.legalbrief.co.za (accessed 10July 2003)_
75 Amnesty International (n 53 aboye) 62-63.76 Generatly, the conditions of detention in prisons have been a matter of concern in
most African states as they are below minimum standards (see AmnestyInternational Amnesty Internationat Report (2006)). See also the reports of the5pecial Rapporteur on prisons and conditions of detention in Africa (Dr VeraChirwa) on Malawi, Zimbabwe, Mali, Central African Repubtic, The Gambia and
n Mozambique. Available at www.penalreform.org (accessed 28 May 2004).Hatchard & Coldham (n 36 aboye) 174.
78 Conjwoyo v Minister of Justice and Anather 1991 (1) 2LR 105 (SC), 107-108,hereinafter referred to as Conjwayo (1991).
116 Chapter Four
confined separately in a windowless cell that is 4,6 metres long by1,42 metres wide. The cell has a low concrete platform covered by asleeping mato An electric light burns in each cell, which provides thesole source of illumination and is never extinguished.
Similarly, in Catholic Commission tor Justice ond Peace inZimbabwe v Attorney-General and Others, the conditions on deathrow in the Harare Central Prison in Zimbabwe were described asfollows: Prisoners are confined separately in a cell that isapproximately three-and-a-half metres long by two metres wide, witha single window very high up from which only the sky is visible, andthe prisoner is obliged to utilise a chamber pot as there is no inbuilttoilet. At 15:00 hours, the condemned prisoner is required to leave allclothing outside his cel~ thereupon, he is incarcerated naked, untilthe following morning.7
In Zambia, some of the cells in the Lusaka Prison areapproximately three metres by two metres. These celis hold up to sixpersons, and the uniforms of the prisoners in some cases consist ofrags of material crudely stitched together. 80 Some prisoners sufferfrom tuberculosis, but have no access to medical treatment. 81. Thedeath row section in the Mukobeko Maximum Security Prison (Zambia)was built for 50 prisoners, but by 2004 was housing more than 200prisoners.82 In Cameroon, although most of the prisoners are poor,they are required to pay for medical treatment. Moreover, despitethe absence of a death row section in the Bamenda Central Prison, theconditions in which the condemned prisoners are kept are deplorable.Their legs are chained together (the chains are never removed evenwhen they are doing sports), they are not allowed to use beds, so theyhave to sleep on the bare floor or use a mat or mattress if they canafford it, and are given one meal per day, usually served between13hOO - 14hOO.83 In Uganda, in the case of Susan Kigula and 416 Othersv The Attorney General, death row inmates describe their livingconditions in their affidavits. Ogwang, who has been in the
79
'081
82
83
Catholic Commission for Justice and Peace in ZimbQbwe v Attorney-General andOthers 1993 (1) ZLR 242, 246-247, hereinafter referred to as Catholic Commlssion(1993).Hood (n 63 aboye) 110-111.Hood (n 63 aboye) 111. The death row section of the Lusaka Prison in Zambia wasoriginaUy built for 48 prisoners under sentence of death, but in the spring of Z001it had more than 200 inmates, sorne suffering from tuberculosis but having noaccess to medical treatment.Report of the national coordinator of Zambia, Frederick Ng'andu, presented atthe First International Conference on the Application of the Death Penalty inCommonwealth Africa in Entebbe, Uganda from 10 - 11 May Z004.During my visit to the Bamenda Central Prison in April2004, I had the opportunityto speak to two condemned prisoners, Chi Cyprain, convicted of armed robbery,and Fonge Franklin, convicted of murder, who informed me of their conditions ofdetention. They were both tried in the Military Tribunal, sitting in Bamenda andcomposed of mHitary judges, and were sentenced to death.
The prahibition ar cruel, inhuman or degrading treatmenl or punishment and the death penalty in Africa 117
condemned section of the Luzira Upper Prison for over 20 years,states the following in his affidavit:
I believe that the death penalty is a cruel, degrading and inhuman formof punishment in the following way, .. , Every 'ingle day, I and my fellowdeath row inmates live in imminent fear of execution ... From the time acondemned prisoner arrives at Luz.ira Upper Prison, he is isolated fromall other prisoner, and confined in the Condemned Section, living onlywith fellow death row inmates .. , Thi, adds to our per,onal anxiety, andreminds us all the time of our impending exeeution by hanging. TheCondemned Seetion of the Luzira Prison is an extremely intimidatingstructure. The walls are high and all around uso They are painted a dull,har>h white calour. I and my fellow death row inmates have a verylimited area for movement both within the eells and outside. Thegallows and death chombers where inmates ore hanged are just abovethe cells ;n whkh sorne 01 us live, and aa as a constant rem;nder al aurrespective fates ... The living conditions are extremely depressing ...The lights in the cells are left ron] all night, making it difficult for us tosleep properly ... in our over-crowded cells, there is barely enoughroom to move around ...The cells in Luzira hove no toilet facilities ...our urination and defecation happens in open chamber pots ... Themeals are often inadequate and poorly prepared ... At all time" I andmy fellow death row inmate, therefore do not know when they arecaming for uso Thi, praetiee of being left in ,uspense adds to ourcon,tant daily fear, mental anguish and torture. 84
The prisoner is therefore ensnared in a dehumanising environmentfrom the moment he enters the cel!. The aboye conditions couldirrefutably lead to physical and mental deterioration. It is elear thatthe conditions are inhumane, as the prisoner is not treated withhumanity and with respect for his inherent dignity as stipulated inartiele 10 of the ICCPR and other human rights instruments andnational constitutions. 85
In most African states, ineluding Tanzania, the government hasused the poor state of the economy in their countries to justify thesubstandard conditions on death row. On the contrary, this argumenthas been strongly rejected by Mwalusanya J in Republic v Mbushuuand Another, stating that '[i]t is my view that the defence of povertycan be offered elsewhere, but not when the basic human rights of an
in
84
85
Emphasis added. The affidavits of Edward Mary Mpagi, who spent 18 years ondeath row befare receiving a presidential pardon, Mugerwa Nyansio, who hasbeen on death row since 1990, and those of other condemned prisoners at theLuzira Prison state similar living conditions. The interviews were conducted in2003 in Uganda by MIs Katende, Ssempebwa & Co. Advocates. Worthy of note isthe fact that Luzira Prison was constructed in 1927 to house 624 prisoners, but by2002 it was housing 2000 inmates (see W Wairagala, 'The death penalty inUganda' http;//www.thedeathhouse.com (accessed 10 July 2003).Conditions of detention similar to those discussed aboye have been found toconstitute cruel, inhuman and degrading treatment. In addition to the casesdiscussed in this chapter, see Aitken v Jamaica, Case 12.275, Report No 58/02, 21October 2002, para 137 (Inter-American Commission).
118 Chapter Four
individual are at stake'. 86 In addition, human rights standards haveintensified, which implies that governments cannot retain the deathpenalty and raise the economic argument as a long stay on death rowunder such deplorable conditions renders the ensuing execution cruel,inhuman and degrading.
In the paragraphs that follow, the jurisprudence on the death rowphenomenon of international instances and national courts isexamined, and it is shown that the death row phenomenon has beenexplicitly recognised as a violation of human rights. The jurisprudenceof the UN Human Rights Committee, the European Court, African andother national courts are considered.
5.1 Jurisprudence of the United Nations Human Rights Committee
The Optional Protocol to the ICCPR gives death row inmates the rightto petition the UN Human Rights Committee with alleged violations.The Human Rights Committee has been one of the first internationalinstances to address the death row phenomenon. Death rowphenomenon claims are brought under article 7 (prohibition oftorture, or cruel, inhuman or degrading treatment or punishment) andarticle 10 (right of persons deprived of their liberty to be treated withhumanity and with respect for the inherent dignity of the humanperson) of the ICCPR.
The Committee's position on the death row phenomenon wasclearly stated in 1989 in Pratt and Morgan v Jamaica in the followingterms:87
In principle, prolonged judicial proceedings do not per se constitutecruel, inhuman and degrading treatment even if they can be a source ofmental strain tD the convicted prisoners. However, the situation couldbe otherwise in cases involving capital punishment and an assessment ofthe circumstances of each case would be necessary.88
The Committee concluded that article 7 of the ICCPR had not beenviolated as the applicants had not sufficiently substantiated theirclaim that delay in judicial proceedings constituted for them cruel,inhuman and degrading treatment under article 7. 89 The Human
86 Mbushuu (1994) at 350.87 Pratt and Morgan v Jamaica, Communications 210/1986 and 225/1987, UN Doc.
A/44/40, views adopted on 6 Aprit 1989. See Offkial records af the Human RightsCommittee 1988/99, VollJ (1995) 491-423, hereinafter referred to as Pratt andMargan (Human Rights Committee). This case concerned two Jamaican citizens,Earl Pratt and Ivan Margan, who were arrested in October 1977 for murder andsentenced to death on 15 January 1979 (paras 1-2.4). In their complaint, theydaimed, inter olio, that the length of their detention on death row constitutedcruel, inhuman and degrading treatment contrary to article 7 of the ICCPR (para4).
88 Pratt and Morgan (Human Rights Committee) para 13.6.89 As aboye.
TlJe prohibítion o/ cruel, inhuman or degrading treatment or punishment and the death penalty in .do/rica 119
Rights Committee was again faced with the death row phenomenon inBarret and Sutcliffe v Jamaica. 90 The Committee maintained itsposition in Pratt and Margan, by reiterating that 'prolonged judicialproceedings do not per se constitute cruel, inhuman and degradingtreatment, even if the~ may be a source of mental strain and tensionfor detained persons'. 1 However, in a dissenting opinion dissociatingherself from the majority, Chanet endorsed the European Court'sdecision in Saering v United Kingdam (discussed below). 5he statedthat:
[iJn my view it is difficult for the criteria formulated by the Committeeto assess the reasonableness of the duration of proceedings to beapplied without qualification to the execution of a death sentence. Theconduct of the person concerned with regard to the exercise of remediesought to be measured against the stakes involved. Without being at allcynical, I consider that the author cannot be expected to hurry up inmaking appeals so that he can be executed more rapidly. On this point, Ishare the position taken by the European Court of Human Rights in itsjudgment of 7 July 1989 on the Soering case...my opinion is that, in thistype of case, the elements involved in determining the time factorcannot be assessed in the same way if they are attributable to the Stateparty as if they can be ascribed to the condemned persono A very longperiod on deoth row, even it partially due to the toilure ot thecondemned prisoner to exercise Q remedy, cannot exonerate the Stateparty trom its obligatíons under artiele 70t the Covenant.92
The Human Rights Committee's position changed in 1995, in Simms vJamaica,93 where it conceded that recent developments in nationaljurisdictions had admitted that prolonged detention on death rowmay constitute cruel and inhuman treatment. The Committee had inmind here the decision of the Judicial Committee of the Privy Councilin Pratt and Margan v Attomey General of Jamaica, which is discussedbelow. The Committee then stated that its jurisprudence remainsthat 'detention for any specific period would not be a violation of
90
91
92
93
Barret and Sutcfiffe (Human Rights Committee). The applicants, Randolph Barretand CLyde Sutcliffe, were found guflty of murder and sentenced to death on 27July 1978. WhHe awaiting execution, they submitted their complaint, allegingthat the time spent on death row, oyer 13 years, amounted to cruel, inhuman anddegrading treatment within the meaning of article 7 of the ICCPR. The applicantsalso complained about their conditions of detention (paras 1-2.3 & 3.4-3.5).8arret and Sutcfiffe (Human Rights Committee) para 8.4. The Committee found avialatian of articles 7 and 10(1) of the ICCPR in respect of the conditians ofdetention of Mr Sutcliffe (paras 8.6 & 9).Emphasis added. Individual opinian of Ms Christine Chanet in Barret and Sutcliffe(Human Rights Committee).5imms v Jamaica, Communication 541/1993, InadmissibiLity decision of 3 April1995, UN Doc. CCPRICl53/D/541 11993, 4 April 1995, para 6.S, hereinafterreferred ta as Simms (Human Rights Committee). The applicant, Erral Simms, wascharged with murder on 12 April1987, and was conyicted and sentenced to deathon 16 Noyember 1988 (para 2.1). lt was argued that the time spent on death rowconstituted cruel, inhuman and degrading treatment (para 3.7). Thecommunication was declared inadmissible (para 7).
9495
120 Chapter Four
article 7 of tne Covenant in the absence of some further compellingcircumstances,.94
5ubsequently, in Francis v Jamaica,95 the Human RightsCommittee found a violation of article 7 of the ICCPR. The Committeereaffirmed its position that delay in itself will not suffice or constitutea violation of article 7; 'further compelling circumstances' have to bepresent. 96 The compelling circumstance in this case which led to theCommittee's finding of a violation was that, over a period ofdetention on death row that had exceeded 12 years, the comf¡lainanthad developed apparent signs of severe mental imbalance. 7 Threefactors were considered in this case in assessing whether there hadbeen a violation of article 7: First, the extent to which delay was dueto the state; second, the conditions on death row; and third, themental condition of the prisoner, which had deterioratedconsiderably and seriously during his detention. 98
Therefore, the Committee did not find a violation in cases inwhich there are no 'further compelling circumstances'. This was thecase in Stephens v Jamaica and Johnson v Jamaica. In Stephens vJamaica,99 the Committee stated that in the absence of specialcircumstances, it reaffirmed its jurisprudence that prolongeddetention on death row cannot be generally considered as cruel,inhuman and degrading treatment.
In Johnson v Jamaica,'OO in which the period on death rowexceeded 11 years, the Committee gave three reasons for holding thatdelay in itself did not constitute a violation: First, the Committee heldthat allowing delay to constitute a violation would be inconsistentwith the object and purpose of the ICCPR.,o1 Secand, holding delay tobe a violation would be conveying a message to state parties retainingthe death penalty that they should carry out a capital sentence asexpeditiously as possible after it had been imposed.102 Third, other
Simms (Human Rights Committee) para 6.5.Francis v Jamaica, Communication 606/1994, UN Doc. CCPR/C/54/D/606/1994,25 July 1995'J'ara 9.2. The applicant, Clernent Francis, was conyicted of murderand sentence to death en 26 January 1981 (para 3.1). In alleging a Yiolation ofarticle 7, it was submitted that the mere fact that the applicant would no longerbe executed did not nullify the mental anguish of the 12 years spent on death rowfacing the prospect of being hanged (para 4.4).
96 As aboye, para 9.1.97 As aboye, para 9.2.98 As aboye, para 9.1.99 Stephens v Jamaica, Communication 373/1989, UN Doc. CCPRICl55/D1373/1989,
18 October 1995, para 9.4. The tength of detention on death row in this case hadbeen eight years and ten months (para 9.3).
100 Johnson v Jamaica, Communication 588/1994, UN Doc. CCPR/C/56/D/588/1994,22 March 1996. The Committee held in that there were no compellingcircumstances, aYer and aboye the length of detention on death row, which wouldturn Mr Jahnson's detention into a yiolation of articles 7 and 10 (para 8.6).
101 As aboye, para 8.3.102 As aboye, para 8.4.
The prohibition of cruel, inhuman or de~radjng treatment or plln/shment and the death penalty In Afrlca 121
may turn thattreatment or
death rowdegrading
circumstances related to detention ondetention into cruel, inhuman andpunishment. 103
In subsequent cases, some Committee members in their individualopinions have argued that long periods of detention on death rowhave been fer se sufficient to warrant a finding of a violation ofarticle 7. 10 Furthermore, the Human Rights Committee has founddelay to constitute a violation in the case of an individual sentencedto death for crimes committed while he was below 18 years of age,and who has been on death row for eight years. The Committee heldthat since the death sentence had been imposed in violation of article6(5) of the ICCPR, the detention on death row constituted a violationof article 7 of the ICCPR. 10S Although the finding of a violationdepends on a number of considerations, it is clear from the aboyejurisprudence that the death row phenomenon constitutes cruel,inhuman and degrading treatment or punishment. 106
103 As aboye, para 8.5.104 See, for example, LaVende v Trinidad and Tobago, Communication 554/1993, UN
Doc. CCPR/C/61/D/554/1993, 17 November 1997. In addition to the casesdiscussed aboye, the Human Rights Committee has found a violation of article 7 indeath row cases where detention under harsh conditions is extremely protracted(see Edwards v Jamaica, Communication 529/1993, UN Doc. CCPR/C/60/D/529/1993, 19 January 1993, para 8.3), where detention is accompanied by seriousmedical consequences (see, for example, Henry and Douglas v Jamaica,Communication 571/1994, UN Doc. CCPR/C/57/D/571 11994, 25 July 1996, para9.5; Brown v Jamaica, Communication 775/1997, UN Doc. CCPR/C/65/D/77511997,11 May 1999, para 6.13; and Whyte v Jamaica, Communication 73211997,UN Doc. CCPR/C/63/D/732/1997, 27 July 199B, para 9.4), or lack of psychiatrictreatment (Williams v Jamaica, Communjcation 609/1995, UN Doc. CCPR/C/61/0/609/1995,4 November 1997, para 6.5), or where there is evidence of beatingsand destruction of belongings by jailers (see, for example, Collios v Jamaica,Communication 240/1987, UN Doc. Al47/40, 1 November 1991, paras 8.6-8.7;Bailey v Jamaica, Communication 334/1988, UN Doc. A/48/40, 31 March 1993,para 9.3; Hylton v Jamaica, Communication 407/1990, UN Doc. A/49/4D, 8 July1994, para 9.3; and Leslie v Jamaica, Communication 564/1993, UN Doc. CCPR/c/63/D/564/1993, 7 August 199B, para 9.2).
105 Johnson v Jamaica, Communication 59211994, UN Doc.CCPR/C/64/D/59211994,25 November 1998, para 10.4. The Committee thus adopted a similar position tothat of the European Court of Human Rights in the Soering case, discussed below.Similarly, the lnter-American Commission has interpreted artide XXVI of theAmerican Declaration, which guarantees every person accused of an offence theright not to be 'Jubjected to cruel, infamous or unusual punishment, as though itprohibited the execution of minors (see lnter-American Commission on HumanRights Resolution No 3/87, Case 9647 v United 5tates, 22 September 1987).
106 The approach of the Human Rights Committee has been described as 'global', asit has not generaUy drawn a distinction between cruel, inhuman and degradingtreatment or punishment. In sorne cases, the Committee states that tlle acts haveamounted to a cruel, inhuman and degrading treatment or punishment, and inothers the Committee simply expressed the view that there has been a violationof article 7 of the ICCPR without specifying if the acts in question were cruel,inhuman and degrading. Unlike the Human Rights Committee, the European Courtof Human Rights, as seen aboye, has expressly attempted to draw cleardistinctions between the different types of prohibited acts. For more on this, seeR Keight\ey 'Torture and cruel, inhuman and degrading treatment or punishmentin the UN Convention against Torture and other instruments of internationallaw:Recent developments in South Africa' (1995) 11 South African Journal on Human
-
122 Chapter Four
5.2 Comparative jurisprudence: The European Court of HumanRights
The European Court of Human Rights (European Court) addressed thedeath row fhenomenon in the Landmark case of Soering v UnitedKingdom. 10 The appLicant, Soering (a German nationaL), was soughtfor two murders committed in virginia. 108 At the time of thecommission of the crime the appLicant was 18 years old, and he laterfled to EngLand where he was arrested in connection with chequefraud. 109 Soon after, the United States sought his extradition underthe 1972 extradition treaty with the United Kingdom. l1O The UnitedKingdom sought assurances from the United States that, in the eventof Soering being surrendered and being convicted of the crimes forwhich he had been indicted, the death penaLty, if imposed, wouLd notbe carried out. 111 Germany, which had aboLished the death penaLty,aLso sought his extradition, since, as Soering was a German nationaL,it had jurisdiction to try him for the murders pursuant to section 7(2)of the German Criminal Code. l12
The United States did not provide the assurances, but instead sentan affidavit stating that it wouLd convey the United Kingdom's wishesto the judge at the time of sentencing. l13 After Soering's unsuccessfuLappeaLs to the British authorities against his extradition, theSecretary of State (United Kingdom) signed a warrant ordering thatSoering be surrendered to the United States authorities. 114 Soeringthen appeaLed to the European Commission, contending that hisextradition to the United States wouLd amount to a violation of articLe3 of the European Convention by the United Kingdom. 115 TheEuropean Commission narrowLy decided that the death rowphenomenon did not reach a LeveL of seriousness that violated articLe3 of the European Convention.
The European Commission then referred the case to the EuropeanCourt, which agreed with the Commission on the majority of issues,but arrived at a different concLusion. FirstLy, the Court agreed thata state's decision to extradite may constitute a vioLation of articLe 3if there is a substantiaL risk that the fugitive wilL be subjected to in-
Rights 386-388. See also, K Bojosi, 'The death row phenomenon and theprohibition against torture and cruel, inhuman or degrading treatment' (2004) 4
107 African Human Rights Law Journal 321-326.Soering (1989).
108 Soering (1989) para 11.109 Soering (1989) para 12.110 Saering (1989) para 14.111 Soering (1989) para 15.112 Saering (1989) para 16.113 Soering (1989) para 20.114 Saering (1989) para 24.115 Soering (1989) paras 76·78.
--
The prohjbitiofl of cruel, inhuman or degrading treatment or punishment and the death penalty in Africa 123
human or degrading treatment or punishment in the requestingstate. 116 Secondly, it agreed that there was a substantial risk thatSoering would be sentenced to death, despite the United Kingdom'sclaims otherwise. 117 Lastly, the Court afreed that the death penaltywas not in itself a violation of article 3. 18
In arriving at its conclusion on whether in the circumstances therisk of exposure to the 'death row phenomenon' would make theextradition a breach of article 3 of the European Convention, theCourt considered the following: First, the length of detention prior toexecution; second, the impact of the conditions on death row atMecklenburg State Prison; third, how Soering's age and mental statewould affect him if he were subjected to the death row phenomenon;and lastly, the fact that Germany was willing to extradite and trySoering without the risk of suffering on death row.
With regard to the first issue, the length of detention prior toexecution, the Court was unanimously of the view that delay causedby the prisoner could constitute cruel and inhuman punishment. 119 Onthe second issue, the conditions on death row, the Court noted therisk of homosexual abuse and physical attack undergone by prisonerson death row, and concluded that the severity of a special regimesuch as that which operated on death row in Mecklenburg CorrectionalCentre would be compounded by the length of detention, whichlasted on average six to eight years. 'ZO Concerning Soering's age andmental state, the Court stated that 'the applicant's youth at the timeof the offence and his then mental state, on the psychiatric evidenceas it stands, are therefore to be taken into consideration ascontributory factors tending, in his case
jto bring the treatment on
death row within the terms of Article 3'. Z1
Similarly, as noted aboye, the Human Rights Committee hasconsidered an applicant's youth at the time of the commission of theoffence to bring his detention on death row for eight years within theterms of article 7 of the ICCPR. 1ZZ Regarding the last issue, thepossibility of extradition to Germany where there is no risk ofsuffering on death row, the Court noted that it was a circumstance ofrelevance for the overall assessment under article 3 of the EuropeanConvention. 1Z3 After considering the aboye factors, the Courtunanimously concluded that there is a real risk of Soering beingsentenced to death in Bedford County, Virginia; and that if he was
116 Soering (1989) paras 88·91.117 Soering (1989) paras 93-99.118 Soering (1989) paras 101-103.119 Soering (1989) para 10&.120 Soering (1989) para 107.121 As aboye.122 See Johnson v Jamaica, Communícation 592/1994, UN Doc.CCPR/C/64/D/5921
1994, 25 November 1998.123 Soer;ng (1989) para 110.
124 ChaptE'r Four
surrendered, it would constitute a violation of artiele 3 of theEuropean Convention by the United Kingdom. The Court stated in itsfinal conelusion that:
in the Court's view, having regard to the very long period of time spenton death row in such extreme conditions, with the ever present andmounting anguish of awaiting execution of the death penalty, and to thepersonal circumstances of the applieant. especially his age and mentalstate at the time of the offence, the applieant's extradition to theUnited States would expose him to real risk of treatment going beyondthe threshold set by artiele 3. A further consideration of relevance isthat in the particular instance the legitimate purpose of extraditioncould be achieved by another means which would not involve sufferingof such exceptional intensity or duration. Accordingly, the Secretary ofState's decision to extradite the applicant to the Unites Sates would, ifimplemented, give rise to a breach of article 3. 124
The aboye case provides the basis for other courts to embrace thedeath row phenomenon. A vast number of death row phenomenoncases cite this judgment, tangible proof of its strong relevance ininternationallaw. For example, some national courts in Africa, suehas the Supreme Court of Zimbabwe, have cited this judgment whendealing with the death row phenomenon.
Furthermore, the European Court has found the imposition of thedeath sentence following an unfair trial to be inhuman treatment inGeolan v Turkey,125 which was later upheld by the Grand Chamber inits judgment in the same case. Although the case did not dealspecifically with the death row phenomenon, in finding a violation ofartiele 3 of the European Convention, the Court made reference to itsdecision in Soering aboye and to factors such as the fear, uncertaintyand human anguish (also present in the death row ~henomenon)
resulting from the imposition of the death penalty.1 6 The Courtstated as follows:
[T]o impose a death sentence after an unfair trial is to subject thatperson wrongfully to the fear that he will be executed. The fear anduncertainty as to the future generated by a sentence of death, incircumstances where there is a real possibility that the sentence will beenforced, must give rise to a significant degree of human anguish. Suchanguish cannot be dissociated from the unfairness of the proceedingsunderlying the sentence whieh, given that human life is at stake,
124 ~pering (1989) para 111.125 Ocalan v Turkey, Apptication No 4~221/99 (2003) ECHR 125, judgment af 12 March
2003, hereinafter referred to as Ocalan (Z003); (2003) 7 Amicus Journal 24. Thiscase concerned Abdullah Ocalan, a Turkish nationat, who had Hed to Syria but waslater expelted; he then ended up in Kenya. He was arrested by Kenyall and Turkishauthorities, and subsequently transferred to Turkey to stand tria! for terrorismoThe applicant was later sentenced to death. The applicant argued that it wouldinfringe artide 2 to implement a death sentence that had been imposed foUowinga procedure which did not conform to articles 5 and 6 of the European Convention(~ee para 178).
126 Ocalan (2003) para 200 & 207.
ThF prohibition 01 crllel, inhuman or degrading trearmenr or plJnis/lment and the death penalty in Africa 125
becomes unlawful under the (ovenant ... [T)he imposition of a capitalsentence in such circumstances must be considered, in itself, to amountto a form of inhuman treatment. 127
5ince death sentences in most African states are imposed after unfairtrials, as mentioned in chapter five, the aboye decision is, therefore,instructive in challenging the death penalty in de {acto abolitionistand retentionist African states.
5.3Jurisprudence of African national courts
5.3.1 The Supreme Court o{ Zimbabwe
In one of the earliest reported cases in Zimbabwe (then Rhodesia),Dhlamíní and Others v Carter NO and Another,128 three appellantswho had been sentenced to death, two having been on death row fortwo years and nine months and the third for one month short of twoyears, sought to interdict the first respondent from carrying out thedeath sentences. They argued, ínter alia, that the delay between theimposition of the death sentence and the decision to confirm it wasso inordinate as to constitute inhuman or degrading punishment, inviolation of section 60(1) of the (onstitution (of the thenRhodesia)Y9 Beadle (J, in rejecting the argument on the basis thatthe original punishment cannot itself become tainted with theinhumanity of the treatment, stated as follows:
The inhuman treatment complained of in this case is the delay incarrying out the sentence. If, as I have already found, 'treatment' isdistinct from 'punishment', and if the inhumanity of the treatmentcannot taint the lawfulness of an otherwise lawful punishment, then theonly remedy the accused, who has been sentenced to death, has under s60(1) is to ask for an order that the delay should stop, something whichno person sentenced to death is ever likely to do. Even if, therefore¡ incertain circumstances, delay may be considered as inhuman treatment¡the remedy given an accused who is under sentence of death under s60(1) is not one which is likely to be of much value to him, as it giveshim no more than the right to ask for the delay to cease.130
It appears from the aboye judgment that the (ourt, in acknowledgingthat a condemned prisoner is not stripped of his rights, meant that theprisoner has the right to apply to have his execution expedited. The(ourt, therefore, saw its powers as limited to stopping inhumantreatment or punishment and not interfering with a lawful
lZ7 Oca/an (2003) para 207.128 Dhlamini and Others v Carter NO and Another (1968) 1 RLR 136. The case was
dealt with by the Appellate Division of the High Court of Rhodesia and is relevantwith regard to the attitude of the courts in Zimbabwe to delay in executing thedeath sentence. The case is referred to in Catholic Commission (1993) 256·257.
119 As aboye.1]0 As above¡ 157A-C.
126 Chapter Four
punishment. The decision has been criticised and held to be wronglydecided by Gubbay CJ in Catholic Cammission for Justice and Peacein Zimbabwe v Attorney-General and Others on the followinggrounds: 131 Firstly, the approach adopted by the Court is flawed, asit was sitting as a Constitutional Court and not an Appellate Court, andso was not restricted, as it believed itself to be, to those powersproperLy exercised by an Appellate Court. Secondly, it is irrelevant tothe prisoners' assertion that the aLternative to deLay may beexpeditious execution. Lastly, the judgment was given 20 years ago,thus, is out of step with more enlightened thinking.
The Supreme Court of Zimbabwe was faced with a similar matterin Cathalic Commission for Justice and Peace in Zimbabwe vAttorney-General and Others, in which it handed down a significantjudgment addressing the death row phenomenon. 132 The SupremeCourt had to consider whether the dehumanising factor of prolongeddeLay, considered in conjunction with the harsh and degradingconditions in the condemned section of the hoLding prison, meant thatthe executions themseLves wouLd have constituted inhuman anddegrading treatment contrary to section 15(1) of the Constitution ofZimbabwe. 133
Gubbay CJ began by considering the physical conditions endureddaily by the four condemned prisoners and their mental anguish; hethen proceeded by providing an exhaustive comparative anaLysis ofthe jurisprudence on the death row phenomenon in severaLjurisdictions
1including India, 134 the United States of America, 135 the
West Indies 36 and Canada. 137 He analysed the jurisprudence ininternationaL human rights instances, deaLing at great Length with thejudgment of the European Court of Human Rights in Soering v UnitedKingdom138 and the views of the UN Human Rights Committee inBarret and Sutcliffe v Jamaica. 139 The Court noted that no matter the
131 Catholic Commission (1993) 257-258.132 Catholic Comm;ss;on (1993). The case concerned four Zimbabwean citizens who
had been sentenced to death in 1987 and 1988 respectively, after being convictedof the crime of murder. They approached the Supreme Court after being servedwith warrants for their execution in 1993.
133 Catho{ic Commission (1993) 245. Section 15(1) provided that, 'no persan shall besubjected to torture or to inhuman or degrading punishment or other suchtreatment'. As the Supreme Court of Zimbabwe emphasised, the case concernedneither the constitutionality of the death sentence itself nar the manner ofexecution.
134 Catholic Commission (1993) 258-261.135 Catholic Comm;ssion (1993) 261-266.136 Catholic Commission (1993) 266-268.137 Catholic Commlssion (1993) 273-274.138 Cathoflc Commission (1993) 270-273.139 Catholic Commission (1993) 274-275.
The prohibitian af cruel, inhuman ar degrading treatment or punishment and the death penalty in Africa 127
magnitude of their crime, prisoners retain all basic rights, exceptthose necessarily removed from them by law. 140 In dealing with thefactor of delay, the Court preferred the opinion of the minority tothat of the majority of the Judicial Committee of the Privy Council inRiley and Others v Attorney General o[ Jamaica and Another(discussed below).141 The Supreme Court adopted the dissenting viewof Lords Scarman and Brightman in the Riley case, stating thefollowing:
It is no exaggeration, therefore, to say that the jurisprudence of thecivilized world, much of which is derived fram the cemmon lawprincipies and the prahibition against cruel and unusual punishments inthe English Bill of Rights, has recognised and acknowledged thatpralonged delay in executing a sentence of death can make thepunishment when it comes inhuman and degrading. As the SupremeCourt of California cemmented in People v Anderson, it is cruel and hasdehumanising effects. Sentence of death is one thing: sentence of deathfollowed by lengthy imprisonment prior to execution is another. 142
After its comparative analysis and exhaustive review of applicableconstitutional provisions and criminal law, the Supreme Courtconcluded, on the issue whether the delay constituted a breach ofsection 15(1) of the Constitution of Zimbabwe (prohibiting torture orinhuman or degrading punishment or other such treatment), that theperiods of detention on death row that the applicants hadencountered justified the commutation of their sentences to lifeimprisonment. 143 In other words, the Court was of the view thatkeeping a prisoner facing the agony of execution for an extendedperiod of time is an inhuman act, entitling the prisoner to a remedy,which in this case, is the commutation of the death sentence.
The aboye decision brought about highly critical response fromthe government, which stated that the court was seizing the functionsof the executive. Consequently, the Constitution of ZimbabweAmendment Act (No 13) 1993 was passed which retrospectivelyexempted the death penalty from the scope of section 15(1). Thus,this amendment overturned the decision above. l44 Nevertheless, theaboye decision serves as authority with regard to the abolition of thedeath penalty in Africa, and has received support from the Court ofAppeal of Tanzania, the Constitutional Court of South Africa and theConstitutional Court of Uganda. 145 If one takes into consideration the
140 Cathalic Camm;ssian (1993) 251.141 Riley and Others v Attorney General af Jamaica and Another (1982) 3 AH ER 469.142 Catholic Commissian (1993) 269.143 Catholic Commissian (1993) 282.144 Similarly, as noted aboye, in ChUeya (1990), the Supreme Court of Zimbabwe had
to decide on whether execution by hanging contravened section 15(1) of theZimbabwean Constitution. But, the government pre-empted this by amendingsection 15(1), specifically upholding the constitutionality of executions byhanging.
145 See Mbushuu (1995), Makwanyane (1995) and Susan (2005).
128 Chapter Four
number of people on death row in African states, the aboye decisioncould have a substantial effect if other jurisdictions follow theexample of the Supreme Court of Zimbabwe.
5.3.2 The Canstjtutianat Caurt af Sauth Africa
The Constitutional Court of South Africa, in S v Makwanyane, had todecide whether the death penalty was cruel, inhuman and degradingwithin the meaning of section 11 (2) of the Interim Constitution Act200 of 1993. 146 Ten of the 11 judges considered the death penalty ascruel, inhuman and degrading punishment.
Since the case concerned the death penalty in general and notspecifically the death row phenomenon, several judges of theConstitutional Court linked the issue of the death row phenomenon tothat of capital punishment generally. Although the case did not dealdirectly with the death row phenomenon, the views of some of thejudges on the subject could have a profound effect in otherjurisdictions that are willing to deal with the issue. The subsequentparagraphs discuss the views of some of the judges on the deathpenalty as cruel, inhuman and degrading and on the death rowphenomenon, where the judge in question makes reference to it.
Justice Chaskalson, in delivering the lead judgment, begins byclarifying the issue to be considered. He points that the question inthis case is not whether the death sentence is cruel, inhuman ordegrading in the ordinary meaning of these words but whether it is acruel, inhuman or degrading punishment within the meaning ofsection 11 (2) of the South African Interim Constitution. 147
In addressing the aboye question, Justice Chaskalson provides anexhaustive analysis of international and comparative law sources,commenting on the case law of international instances such as the UNHuman Rights Committee and the European Court,148 and nationalinstances, for exam~le the courts of the United States,149 Canada,150India,151 Hungary15 and Tanzania. 153 In arriving at the conclusionthat the death penalty is inconsistent with section 11 (2) of the InterimConstitution, prohibiting cruel, inhuman or degrading punishment, hestates:
Death is a cruel penalty and the legal processes, which necessarilyinvolve waiting in uncertainty for the sentence to be set aside or carried
146 Makwanyane (1995) para 26. For the facts of the case, see chapter three.147 Makwanyane (1995) para 26.148 Makwanyane (1995) paras 63-69.149 Makwanyane (1995) paras 40-42 & 55-56.150 Makwanyane (1995) paras 60-62 ft 05-107.151 Makwanyane (1995) paras 70-79.15Z Makwanyane (1995) para 38.153 Makwanyane (1995) paras 113-115.
The prohibition o/ cruel, inhuman or degrading treatment ur punishment and the deat/l penalty in Africa 129
out, add to the cruelty. It is also and inhuman punishment for it ...'involves, by its very nature, a denial of the executed person'shumanity·. and it is degrading because lt strips the convicted person ofall dignity and treats him or her as an object to be eliminated by theState. 154
Ackermann J places greater emphasis on the inevitably arbitrarynature of the decision involved in the imposition of the death penaltyin supporting his conclusion that, as a form of punishment, the deathpenalty constitutes cruel, inhuman and degrading punishment withinthe meaning of section 11 (2) of the Interim Constitution of SouthAfrica. 155 Didcott J, in agreeing with the aboye conclusion, links theissue of the death row phenomenon to the death penalty in hisconclusion. First, he states as a ground for believing the death penaltyto be unconstitutional the fact that capital punishment contravenesthe prohibition against cruel, inhuman or degrading punishment. 156
Then, with regard to the death row phenomenon (specifically lengthyimprisonment prior to execution), he cites the Californian case of ThePeople v Anderson, in which Wright CJ stated:
The cruelty of capital punishment lies not only in the execution itselfand the pain incident thereto, but also in the dehumanising effects ofthe lengthy imprisonment prior to execution during which the judicialand administrative procedures essentiaL to due process of law arecarried out. Penologists and medical experts agree that the process ofcarrying out a verdict of death is often so degrading and brutalising tothe human spirit as to constitute psychological torture. 157
Didcott J also refers to the judgments of Liacos J in District Attorneyfor the Suffolk District v Watson and Gubbay CJ in CatholicCommission for Justice and Peace in limbabwe v Attorney-Generaland Others, with regard to the time between sentence and execution,in arriving at the conclusion that 'every sentence of death must bestamped, for the purposes of [section¡ 11 (2), as an intrinsically cruel,inhuman and degrading punishment'. 58
Furthermore, Kentridge J, with regard to the uniquely cruel andinhuman nature of the death penalty, after referring to American caselaw, states the following:
The 'death row' phenomenon as a factor in the cruelty of capitalpunishment has been eloquently described by Lord Griffiths in Pratt vJohnson [1994] 2 AC 1 and by Gubbay CJ in Catholie Commission torJustice and Peaee in Zimbabwe v Attorney-General, Zimbabwe, andOthers 1993 (4) SA 239 (IS). Those were cases of inordinately extendeddelay in the carrying out of the death sentence, but the mental agony ofthe criminal, in its alteration of fear, hope and despalr, must be present
154 Makwanyane (1995) para 26.155 Makwanyane (1995) para 153.156 Makwanyane (1995) para 174.157 Makwanyane (1995) para 178.158 Makwanyane (1995) paras 178·179.
130 Chapter Four
even when the tlme between sentence and execution is measured lnmonths or weeks rather than years. 159
Previous case law on the death row phenomenon measures delays inexecution in terms of years, but Kentridge J goes further by measuringit in months or weeks. It should be noted that this remains an isolatedassessment and must be seen against the background of theConstitutional Court's emphasis on the arbitrary nature of theimposition of capital punishment. 160
Langa J also makes reference to the death row phenomenon. Heis of the opinion that the death sentence violates the right not to besubjected to cruel, inhuman or degrading punishment by stating that,'as a "punishment" the death penalty ... is cruel, inhuman anddegrading. It is asevere affront to human dignity. >161 Furthermore,he sees the death row phenomenon as merely aggravating the cruel,inhuman and degrading nature of the death penalty.'62
Similarly, Madala J in his decision, in which he finds the deathpenalty to be cruel, inhuman and degrading, links the issue of thedeath row phenomenon to that of the death penalty by analysing theCatholic Commission and Soering cases. 163 It can be deduced from hisjudgment that a consideration of the death row phenomena wasnecessary because this accords, in his view, with the concept ofubuntu. l64
The decision of the South African Constitutional Court in S vMakwanyane is one of the most widely known and justifiablyinfluential court opinions to address the death penalty. Although thecase did not deal specifically with the death row phenomenon, theCourt acknowledged it as not only falling within, but also constitutinga violation of, the prohibition of cruel, inhuman and degradingtreatment or punishment. Since in Africa, executions are delayed inmore cases than not, abolishing the death penalty will be the onlysolution to the death row phenomenon, as even where thosesentenced to death are executed without delay, most of the time thisis done after unfair trials or the convicted person being denied theright to appeal. 165
159 Makwanyane (1995) para 196.160 Schmidt (n 68 above) 59.161 Makwanyane (1995) paras 216 & 234.162 Makwanyane (1995) para 234.163 Makwanyane (1995) paras 246-249.164 Makwanyane (1995) para 250. Ubuntu has been translated as 'humanness', or in
its most fundamental sense as 'personhood' and 'morality' (see judgment ofMokgoro J. para 308). For other definitions of ubuntu, see the judgments of Langa
165 J (para 224), Madala J (para 244) and Mohamed J (para 263).See chapter five.
b
The prohibition o[ cruel, inhuman or degrading treatment or punishment ond the deoth penalty in Afrlca 131
5.3.3 The Constitutional Court 01 Uganda
In Susan Kigula and 416 Others v The Attorney General, one of theissues to be considered is whether the execution of the petitionerswho had been on death row for a long period of time is inconsistentwith articles 24, 44 or any provisions of the Constitution. 166 Thepetitioners relied on the Catholic Commission and Pratt and Morgan(Privy Council) cases in substantiating their argument that a longdelay on death row, coupled with harsh and difficult conditions,constitutes the death row phenomenon, which renders the carryingout of the otherwise lawful sentence a cruel, inhuman and degradingpunishment prohibited by articles 24 (prohibition of cruel, inhuman ordegrading treatment or punishment) and 44(a) (non-derogationclause).
Referring to the arguments put forward, the Court answered twoquestions it believed were raised by the issue. First, do condemnedprisoners have any fundamental rights and freedoms left to beprotected befare they are executed?167 The Court agreed with theCatholic Commission decision that prisoners did not lose aH theirconstitutional rights upon conviction and that a prisoner sentenced todeath stiH enjoys protection from cruel, inhuman and degradingtreatment. 168
Secand, what is the effect of delay on death row on thecondemned prisoners? The Court acknowledged that prolonged delayhad an adverse effect on the condemned prisoners' physical andmental state as a result of the death row syndrome. 169 It added thatUganda could not shut its eyes to the death row phenomenon that isrecognised worldwide. After considering the affidavits on the effectof delay and harsh conditions on death row, the Court held thatinordinate delays in such demeaning physical conditions indeedconstitute cruel, inhuman and degrading treatment prohibited byarticles 24 and 44(a).
The Court calculated the period of delay from when the prisonerhad exhausted his or her appeal process. The Court then held that adelay beyond three years after the highest appeHate court hadconfirmed the condemned prisoner's sentence would tend towardsunreasonable delay.170 However, the Court did not commute orrecommend the commutation of the sentences of those that hadexperienced delay beyond three years, but left this to the executive,
166 Susan (2005) 45. See chapter three for the facts of the case.167 SUsan (2005) 49.168 As above.169 Susan (2005) 50-51.170 Susan (2005) 60.
132 Chapter Four
despite the widely accepted view that any subsequent executionwould result in cruel, inhuman and degrading punishment.
As seen below, the Judicial Committee of the Privy Council (PrivyCouncil) has identified three types of delay, one of which is 'delaycaused by the prisoner's legitimate appeals'. Ostensibly, the UgandanConstitutional Court does not recognise this form of delay as formingpart of the death row phenomenon. This could result in appellateprocedures that echo down the years, which the Privy Council hasseen as incompatible with capital punishment.
Nonetheless, the Court shows an appreciation of the relevance ofdelay as a ground for challenging the constitutionality of the deathpenalty. While setting a time frame of three years is plausible, thechallenge that remains is to ensure that the right not to be subjectedto cruel, inhuman and degrading treatment of prisoners who are stillto exhaust all appeal processes is respected; and to ensure that theappeal processes do not take longer than is reasonably necessary.
5.4 Jurisprudence of other national courts and their relevance toAfrica
5.4.1 The Judicial Committee of the Privy Council
In addition to the fact that African courts make reference to thejurisprudence of the Judicial Committee of the Privy Council (PrivyCouncil), the Privy Council is an appellate court for someCommonwealth African states such as Mauritius. The Privy Council hashad numerous opportunities to address the death row phenomenon.Unlike the Human Rights Committee, the Privy Council allows delay tobe the predominant, if not the sole, factor in its analysis as isevidenced from its jurisprudence on the death row phenomenon.
Initially, the Privy Council did not find delay to constitute cruelpunishment. The first case that the Privy Council dealt with was DeFreitas v Benny, in which Lord Diplock found excessive delay causedby the prisoner pursuing appeals not to constitute cruelpunishment. 171 This approach was maintained in the case of Abbott vAttorney General of Trinidad and Tobago, in which a contention thata delay of eight months was so inordinate as to invoke a contraventionof the appellant's constitutional rights was dismissed as invalid. l72However, Lord Diplock did accept that:
it 15 possible to imagine cases in which time allowed by the authorities toelapse between the pronouncement of a death sentence and anotífication to the condemned man that it was to be carried out was so
171 D. Freira, v Benny (1976) AC 239; (197S) 3 WLR 388.172 Abbott v Attorney General af Trinidad and Tobaga (1979) 1 WLR 1342.
The prohibltion of cruel, inhuman ar degrading treatment or punishment ond the death penolty in Afrlca 133
prolonged as to arouse in [the prisoner] a reasonable belief that hisdeath sentence must have been commuted to alife sentence. 173
Furthermore, in Riley and Others v Attomey General of Jamaica andAnother, the appellants contended that the prolonged delay in theexecution of their sentences, which was substantially due to factorsoutside their control, had caused them sustained mental a'}§uish,thereby rendering the punishment inhuman and degrading. 1 ThePrivy Council held that whatever the reasons for, or length of, delayin the execution of a death sentence lawfully imposed, such a delaycould not be seen as a violation of section 17 of the JamaicanConstitution. 175 Ten years later, the decision in the above case wasoverturned in Pratt and Morgan v Attomey General of Jamaica et al,in which the Privy Council concluded as follows:
[I]n any case in which execution is to take place more than five yearsafter sentence there will be strong grounds for believing that the delayis such as to constitute 'inhuman or degrading punishment or othertreatment',176
The appellants in the above case submitted that to hang them afterthey have been held in prison under sentence of death for so manyyears would be inhuman punishment or other treatment in breach ofsection 17(1) of the Jamaican Constitution. 177 Section 17 provides:
(1) No person shall be subjected to torture or to inhuman or degradingpunishment or other treatment.(2) Nothing contained in or done under the authority of any law shall beheld to be inconsistent with or in contravention of this section to theextent that the law in question authorises the infliction of anydescription of punishment which was lawful in Jamaica immediatelybefore the appointed day.
In preferring a narrower construction of section 17(2), the PrivyCouncil heId that section 17(2) was confined to authorisingdescriptions of punishment for which the court may pass sentence anddoes not prevent the appellant from arguing that the circumstancesin which it is to be carried out is in breach of section 17(1 ).178 Afteracknowledging the protections available to a prisoner who has beensentenced to death, the Privy Council then turned to the issue ofdelay - whether delay was sufficient to constitute cruel or inhumanpunishment? In this regard, it stated:
17] As aboye, 1348.174 Riley and Others v Attorney General of Jamaica and Another (1982) 2 All ER 469,
471, hereinafter referred to as Riley (Privy Couneil).175 Rifey (Privy Couneil) 473. Seetion 17 prohibited torture or inhuman or degrading
punishment or other treatment in qualified terms.176 Prott and Margan (Privy Couneil) 26. The appellants, Earl Pratt and lvan Morgan,
who had been on death row for 14 years, were eonvicted of murder andsentenced to death on 15 January 1979.
177 Prott and Margan (Privy CouncH) 15.178 Prott and Margan (Privy CouncH) 18.
134 Chapter Four
There i5 an instinctive revulsion against the prospect of hanging amanalter he has been held under sentence of death for many years. Whatglves rise to this instinctive revulsian? The answer can only be ourhumanity; we regard it as an inhuman act to kee¡Pg aman facing agony ofexecution over a long extended periad of time.1 9
It is elear Irom the aboye that the Privy Council was adopting the viewthat the death row phenomenon was a violation 01 human rights - theright not to be subjeeted to cruel, inhuman or degrading treatment orpunishment. Further, in deeiding on whether the delay eonstitutedinhuman or degrading punishment or other treatment within themeaning 01 seetion 17(1), the Privy Couneil identilied three types 01delay that eould oeeur during a prisoner's time on death row: First,delay entirely due to the fault 01 the prisoner; seeond, delay eausedby the ¡j¡risoner's legitimate appeals; and third, delay eaused by thestate. 1 o With regard to the seeond type 01 delay, whether a prisonereould rely on delay whieh he eaused by pursuing appeals, the PrivyCouneil stated as follows:
If the appellate pracedure enables the prisoner to pralong the appellatehearings oyer a period of years, the fault is to be attributed to theappellate system that permits sueh delay and not to the prisoner whotakes adyantage of it. Appellate procedures that echa down the yearsare not compatibLe with copitaL punishment. The death rowphenomenon must not become estabLished as a part 01 aurjurisprudence. 181
The Privy Couneil then eoneluded that to exeeute the appellants now,after holding them in eustody in an agony of suspense for so manyyears, would be inhuman punishment within the meaning of seetion17(1 ).182 The Privy Council, in basing its aeeeptanee of the death rowphenomenon on delay, departed Irom the UN Human RightsCommittee and the European Court, who based their aeeeptanee ofthe doctrine on faetors in addition to delay, as seen aboye. However,it eould be argued that the delay in the aboye case was so prolongedthat the PriYy Couneil did not eonsider it neeessary to examine otherfaetors. 183
The consequences of the aboye judgment were the eommutation0140 death sentenees in Trinidad and Tobago in late Deeember 1993and early 1994; the eommutation of numerous death sentences in theeourse of 1995 in Jamaica; and unfortunately, the exeeution of Ashby,who had been eonfined to death row for four j"ears and over 11months, in Trinidad and Tobago on 13 July 1994. 1 4
179 Pratt and Margan (Privy CauneH) 19.180 As above.181 Emphasis added. Pratt and Morgan (Privy (ouneit) 23.18Z As aboye.18] Hudson (n 35 aboye) 849.184 Sehmidt (n 68 aboye) 62.
The prohibition of cruel, inhumlJlJ or degrading treatment or punishment ond the deoth penalty in Africa 135
Apparently, the Privy Couneil realised the potential danger insetting a rigid time frame of five years of delay as eonstituting stronggrounds for a violation, so it took the opportunity to qualify itscondusions in Pratt and Margan v Attorney General 01 Jamaica et al.In Guerra v Baptiste, the Privy Council stated that the period of fiveyears enunciated in Pratt and Margan v Attorney General 01 Jamaicaet a/185 was not intended to provide a limit or a yardstick by referenceto which individual cases should be eonsidered in eonstitutionalproeeedings. Concerning the present case, the Privy Council held:
Bearing in mind that the unjustified period of delay runs into period 01years, and has led to a lapse 01 time since sentenee 01 death wasimposed far in excess of the target periods of 12 months and two yearsand indeed close to the period (five years) from which it may beinlerred, without detailed examination 01 the particular case, that therehas been such delay as will render the condemned man's exeeutionthereafter unlawful, their Lordships have no doubt that to execute theappellant alter sueh a lapse 01 time [Iour years and ten months betweensentence and completion 01 the entire domestic appellate proeess]would constitute cruel and unusual punishment contrary to his rightsunder [the Constitution 01 the Republic 01 Trinidad and Tobago].186
The Privy Couneil therefore saw the delay in the aboye case asunacceptable and eonstituting an aet of injustiee. 187 Months later, inReckley v The Minister 01 Pub/ie Salety and Immigration and Others,the Privy Couneil treated the five-year time frame as the length oftime that needed to be reaehed before a violation eould oecur. 188 Insum, the jurisprudenee of the Privy Couneil shows that the deathpenalty is cruel, inhuman and degrading punishment owing to thedeath row phenomenon.
5.4.2 The 5upreme Court 01 India
Although the Constitution of India has no provision prohibiting cruel,inhuman and degrading treatment or punishment, the 5upreme Courtof India has filled the void by interpreting the Bill of Rights in theConstitution in the light of international norms (particularly article 7of the ICCPR and article 3 of the European Convention). In FrancisCoraUe Mullin v The Administrator, Union Territory 01 Delhi, the
185 Guerra v Baptiste, Privy CauneH Appeal No 11 of 1995, judgment delivered on 6November 1995 (Judicial Committee of the Privy Council) at 15, hereinafterreferred to as Guerra (Privy Council). In this case, the appeUant was served witha warrant for his exeeution after he had been on death row for four years and tenmonths, just short of the five-year guideline.
186 Guerra (Privy Couneil) 16.187 With regard to the question of delay, see atso, the judgments of the Privy Couneil
in Henfield v Attorney General af the Commanwealth af the Baharnas (1996) 3WLR 1079; and Fisher v Minister af Pub/ic Safety and Irnmigration (1998) 3 WLR201.
188 Reckley v The Minister af Public Safety and Immigratian and Others (1996) 2 WLR281.
136 Chapter Four
Supreme Court interpreted article 21 of the Indian Constitution,which guarantees the right to Uve with basic human dignity, asembodying the right not to be subjected to inhuman or degradingtreatment or punishment. '89 This interpretation can serve aspersuasive authority for African states (mentioned aboye) that do nothave any constitutional provision proscribing cruel, inhuman anddegrading treatment or punishment.
The aboye case provided the base for considering the question ofdelay in the carrying out of the death sentence in Vatheeswaaron vState of Tamil Nadu, in which the appellants claimed that to taketheir lives after they had been left for eight years in illegal solitaryconfinement was a gross violation of their fundamental right underarticle 21 of the Constitution. 190 The Court, quoting from the minorityopinion in Riley and Others v Attorney General of Jamaica andAnother, conceded that:
a period of anguish and suffering 1S an inevitable consequence ofsentence of death. But a prolongation of it beyond the time necessaryfor appeal and consideration of reprieve 1S noto And it is no answer to saythat the man will struggle to stay aUve. In truth, it is this ineradicablehuman desire which makes prolongation inhuman and degrading. '91
The Supreme Court of India went further than the Privy Council infinding the cause of delay to be immaterial when the sentence ofdeath is concerned, and held in an obiter dictum that delay exceedinga period of two years in the execution of a sentence should besufficient to entitle a person under sentence of death to demand thequashing of his sentence on the grounds that it offended article 21 ofthe Constitution of India. 192
The obiter dictum in the above case was overturned in 5her 5inghand Others v The 5tate af Punjab, in whieh the Court held that it wasnormal for appeals to take over two years, and to impose a striet timelimit of two years would enable a prisoner to defeat the ends ofjustiee by pursuing a series of frivolous and untenable proceedings. '93
As a result, the petition was adjourned in order for the governor ofPunjap to explain why the petitioners had not been executed in themore than eight months since the dismissal of their appeals. '94
The Supreme Court has, in later cases, substituted the sentenceof death with life imprisonment of a prisoner who had been awaiting
189 Francfs CataUe Mul/fn v The Administrator, Union Territory of De/M AIR 1983 se74&.
190 Vatheeswaaran v State af Tamfl Nadu AIR 1983 se 361, hereinafter referred to asVatheeswaaran (1983).
191 Vatheeswaaran (1983) 363.192 Vatheeswaaran (1983) 367. Accordingly, the appeal was aUowed and the death
sentence cornmuted to lite imprisonment (Schmidt (n 68 aboye) 56).193 Sher SinSh and Others v The State af Punjab (1963) 2 SeR 583, 596A·B.194 Stated in (athalic Cammissian (1993) 260. With regard to the questlon of delay,
see also, Treveniben v State 01 Gujarat (1989) 1 SeJ 383.
The prahibition of cruel, Inhuman or degrading treatment or punishment and the death penalty in Africo 137
execution for two years and nine months, 195 and a prisoner who hadbeen awaiting his mercy petition for over eight years on the groundsthat he suffered the mental agony of living under the shadow of deathfor far too long. 196 It is clear from the aboye cases that the SupremeCourt of India does not dispute the fact that delay in carrying out thedeath sentence eould give rise to a violation of the rights of thecondemned prisoner.
5.4.3 The position in the United States o{ America
Although the Supreme Court of the United States has not yetaddressed the death row phenomenon, some United States courtshave dealt with the issue of delay in carrying out the death sentence.The decisions of two state supreme courts which point to therelevance of delays in the execution of a death sentence, includingprolonged detention on death row, as a relevant ground forconstitutional challenges to the death penalty are considered in thissection.
In The People v Anderson, 197 the Supreme Court of California hadto determine whether the death penalty violated article 6 of theCalifornia State Constitution, which prohibits cruel and unusualpunishment. In finding a violation of article 6, the Court stated asfollows:
The cruelty of capital punishment lies not only in the execution itselfand the pain incident thereto, but also in the dehumanising effects ofthe lengthy imprisonment prior to execution during which the judicialand administrative procedures essential to due process of law arecarried out. 198
The Court further heId that an appellant's insistence on receiving thebenefits of appellate review of the judgment eondemning him todeath does not render the lengthy period of impeding execution anyless torturous or exempt sueh cruelty from constitutionalproseription. 199 As with the Zimbabwean government's reaetion tothe decision in the Catholic Commission case, the Californian StateConstitution was amended in a manner that overruled the aboyedeeision, by exempting the death penalty from the prohibition againsteruel or unusual punishment. Nonetheless, the decision has reeeivedsupport from the South Afriean Constitutional Court, the SupremeCourt of Zimbabwe and the Privy Couneil.
195 Ahmed v State af Maharashtra AIR 1985 se 231.196 Madhu Mehta v UnlDn af India (1989) 3 SeR 775.197 The People v Anderson (1972) 493 P 2d 880.198 As aboye, 894-895.199 As aboye.
138 Chapter Four
A similar decision was arrived at in District Attomey for theSuffolk District v Watson, in which the Supreme Judicial Court ofMassachusetts held the death penalty to comtitute a violation of theState Constitution of Massachusetts that prohibits cruel punishment. 2DD An important part of the Court's ratio decidendí, asexpressed in the opinion of the Chief Justice, was the delay andmental anguish experienced while awaiting the execution. He stated:
The mental agony is, simply and beyond question, a horror ... we knówthat mental pain is an inseparable part of our practice of punishingcriminals by death, for the prospect of pending execution exacts afrightful toH during the inevitable long wait between the imposition ofsentence and actual infliction of death. 201
As seen aboye, both the Supreme Court of California and the SupremeJudicial Court of Massachusetts have shown an appreciation of therelevance of delay in itself as a graund for challenging theconstitutionality of the death penalty.
6 Methods of execution as cruel and inhuman
There exist extra-legal and legal methods of execution. The existenceof extra-legal methods is as a result of the fact that people resort toinformal justice. Informal justice has manifested itself on the Africancontinent in genocide (Liberia, Rwanda and Sierra Leone), massexecutions and brutal killings, including political assassinations. Anexample of extra-legal executions is that carried out in Cameraon bythe 'operational command unit' (the 'Bepanda nine' case). InFebruary 2001, nine boys were arrested in Douala for the theft of aneighbour's gas bottle, and later killed. 2D2 Extrajudicial executions bysecurity forces in many African states and elsewhere are a matter ofconcern. 203 Regarding legal methods, the most common methods ofexecution in Africa include hanging, shooting (usually by firing squad)
200 District Attorney far the Suffolk District v Watson (1980) 411 NE 2d 1274 (Mass.).201 As aboye, 1283.202 Amnesty International 'Cameroon: The government must throw more light on the
disappearance of 9 chHdren in Douala' Al Index: AfR 17/002/2001, 2 March 2001.203 Annual reports of the UN Special Rapporteur on extrajudicial, summary or
arbitrary executions to the Commission on Human Rights http://www.ohchr.org/english/issues/executions/annual.htm (accessed 18 December 2004).Furthermore, due to the increase in extra-legal executions, UN ECOSOCrecommended the Principles on the Effective Prevention and Investigation ofExtra-legal, Arbitrary and Summary Executions (ECOSOC Resolution 1989/65 of 24May 1989). In paragraph 1 of this Resolution, ECOSOC recommended that thePrinciples on the Effective Prevention and Investigation of Extra-legal, Arbitraryand Summary Executions should be taken into account and respected bygovernments within the framework of their national legislation and practices.
í±r
The prohlbitjen el crIJel, inhuman er degradlng treatment or punlshment aod tlle del1th pl"nalty in Afrka 139
and stoning. 204
The methods of executions are provided for in the penallegislation of African states. For example, section 69 of the PrisonsAct chapter 90 of the Laws of Kenya provides that any personsentenced to death shall be hanged by the neck until he is dead andthe sentence shall be carried out in such a manner as thecommissioner of prisons shall directo 205 Prior to execution by hanging,the prisoner is taken for neck and body measurements, as the ropesneed to be the right strength and the drop needs to be worked out inrelation to the individual's weight. 206 The prisoner is hanged from arope tied round his neck and is killed by the force of the rope exertedagainst the body being pulled down by the force of gravity.207 Deathis either brought about by damage to the spinal cord or byasphyxiation caused by constriction of the trachea. At times theexecution results in instant death, but in some cases death does notoccur. Cases have been documented of failed hangings in variouscountries including Tanzania and Uganda. 208 Hanging is used inBurundi, Cameroon, Congo, Egypt, Equatorial Guinea, Ethiopia, TheGambia, Kenya, Lesotho, Libya, Malawi, Nigeria, Sierra Leone, Sudan,Swaziland, Tanzania, Tunisia, Uganda, Zambia and Zimbabwe. 209 Thehanging method was described in Republic v Mbushuu and Another asfollows:
The prisoner is dropped through a trapdoor eight to eight and a hall leetwith a rape around his neck. The intention is to break his neck so that hedies quickly. The length of the rope is determined on the basis of suchlactors as body weight and muscularity or fatness of the prisoner's neck.li the hangman gets it wrong, the prisoner is dropped too far, the
204 Recently, an abhorrent method has been used in a public execution in Somalia. On2 May 2006, Omar Hussein was tied to the stake, hooded and stabbed to death(Amnesty International, 'Somalia: Child publidy €xecutes father's killer on ordersof summary court' Al lndex: AFR 521001/2006, B May 2006). Other methods ofexecution that have in the past been employed in sorne African states indudebeheading by guillotine (Congo) and beheading by sword, and execution by meansof the weapon used to kiU the victim (Mauritania). See Amnesty International (n53 aboye) 123 ft 174. There are other methods that have been used in othercountries out of Africa. For example, execution by electrocution, poisonous gasand lethal injection (used for example in the United States of America),execution by bullet fmm a pistol in the back of the head (China), and executionby strangling and subsequently cutting the body into pieces and throwing it intoacid (Pakistan), This method of execution was ordered by a Pakistan special courtin March 2000 for aman convicted of serial killing and mutilation of dozens ofrunaway children. However, the Council of Istamic Ideology declared this unIslamic and an appeal was launched (see Amnesty International Amnestyfnternationa/ Report (2001) 186).
205 Report of the national coordinator of Kenya, Joy Asiema, presented at the FirstInternational Conference on the Application of the Death Penalty inCommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.
206 Vogelman (n 56 aboye) 192.207 Amnesty International (n 53 aboye) 54.20S See Mbushuu (1994) 343, and the affidavit of Anthony Okwonga below.2M Information gathered from a variety of sources, including Amnesty International
and the penal statutes of the respective countries.
140 Chapter Four
prisoner's head can be decapitated or his face can be torn away. If thedrop is too shart then the neck will not be broken but instead theprlsoner will die of strangulation. 210
Also, Okwonga, a retired prison officer of the Luzira Prison in Ugandahas described in great detail the preparation put in place for hangingat the Luzira Prison. He stated the following:
[P]risoners to be executed are dressed in an unusual overall-like outfitwith no provislons for hands and fcct. They are covered from head totoe. They are handcuffed and leg-cuffed to avoid instances of violence.Black hoods are placed over their heads. Weights are placed into theside pockets of their outfits in the case of smaUer or lightcr prisoners tomake them heavier. With the hoods over their heads, the prisoners areblindfolded when they are led to their death. At the gallows, their legsare tied up, a noose is put aYer their heads and it 15 tightened at theback 01 the head, cutting off breathing. There is a metal loop on theright side of the neck designed to break the prisoner's neck when hedrops. When all is set, the hangman releases a lever which opens up thetrap doors at the bottom of the gallows, sending the prisoner to hisdeath. After the prisoner's body drops, the assembled officers, priestsand medical personnel proceed to the bottom of the gallows to certifythe death. In the event that the prisoner i5 not dead, then the prisoner i5killed by hitting [him or her] at the back of the head with a hammer or acrow-bar. The bodies are then placed in hastily prepared coffins andburied unmarked in lTlass graves under the prison vegetable farden.They are also sprayed with acid to help them decompose faster. 2 1
As regards shooting, the execution is carried by a single executioneror by a firing squad. In Africa, the firing squad is used and is mostlyemployed by military courts. Oeath is as a result of damage to thevital organs such as the heart, damage to the central nervous systemor haemorrhage. 21Z As with hanging, death can either be immediateor in some cases prolonged. Execution by firing squad is employed inAlgeria, Benin, Burkina Faso, Burundi, Cameroon, Central AfricanRepublic, Chad, Congo, ORC, Egypt, Equatorial Guinea, Ethiopia,Ghana, Libya, Madagascar, Mali, Mauritania, Morocco, Niger, Nigeria
jRwanda, Sierra Leone, Somalia, Sudan, Togo, Tunisia and Uganda. 21
Stoning is comman in states that apply the Shari'a law, as it ismostly used for offences such as adultery. This method is employed inMauritania, Nigeria and Sudan. 214 With staning, aman is buried up tohis waist and a woman to above her chest, and they are then stoned.The stones may not be too small as this will delay death or too big to
210 Mbushuu (1994) 343.211 Affidavit of Anthony Dkwonga in the case: Suson {LOOS). The afftdavit of Ben
Ogwang in the same case corroborates that of Anthony Okwonga.212 Amnesty lnlernational (n 53 aboye) 57.213 Information gathered from a variety of sources, induding Amnesty lnternationat
and the penal statutes of the respective countries.214 As aboye.
The prohibition o{ cruel, Inhuman (;>( út>sr<Jdlng treatment or punishm!?nt and the decJch penalty in Africa 141
result in swift death.215 Thus, stoning can cause a protracted death.Death is caused by damage to the brain, asphyxiation or acombination of injuries.216
It is generally argued that the execution of a person who has beensentenced to death in conformity with the relevant provisions ofhuman rights that limit but at the same time explicitly authorisecapital punishment cannot be considered as cruel, inhuman ordegrading punishment. 217 However, as discussed aboye, executionafter prolonged delay under the harsh conditions of death rowconstitutes cruel, inhuman or degrading punishment. Thus, deve·loping more 'humane' methods of execution cannot relieve the deathrow phenomenon.
As discussed below, the UN Human Rights Committee has statedthat methods of execution may themselves be cruel, inhuman anddegrading. Moreover, since there is no method of execution thatguarantees an immediate and painless death, some writers havedescribed the execution process as distinctly mechanical, impersonal,and ultimately dehumanising, and never mundaneo 218 The subsequentparagraphs examine the jurisprudence of the UN Human RightsCommittee, African and other national courts on the method ofexecution as cruel, inhuman and degrading treatment, and show thatmethods of execution used in Africa, such as stoning and hanging,have been found to be cruel, inhuman and degrading.
6.1 The United Nations Human Rights Committee
The UN Human Rights Committee has applied the prohibition of cruel,inhuman or degrading treatment to the methods of execution. TheCommittee, in General Comment No 20, stated that when the deathpenalty is applied by a state party for the most serious crimes, it mustnot only be strictly limited in accordance with article 6 of the ICCPR,but must be carried out in such a way as to cause the least possiblesuffering. 219 The Human Rights Committee has had the opportunity to
215 Report of the national coordinator of Nigeria, Jude Ha, presented at the FirstInternational Conference on the Application of the Death Penalty inCommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.
216 Amnesty International (n 53 aboye) 61.217 M Nowak 'Is the dpath penalty an inhuman punishment?' in OrUn, T et al (eds) (n
68 aboye) 34.218 See, for example, Johnson (n 64 aboye) ix-x.219 CCPR General Comment No 20, para 6. SimHarly, the UN Economic and Social
Council has also stated that where capital punishment Dccurs, it shaU be carriedout so as to inflict the minimum possibte su((ering, See Safeguard No 9, UNSafeguards Guaranteeing Protection of the Rights o( Those Facing the DeathPenalty, UN Ecosoe ResolutlOn 1984/50 of 25 May 1984, endorsed by the UNGeneral Assembly in Resolution 39/118, adopted without a vote on 14 December1984, hereinafter referred to as ECOSOC safeguards.
142 Chapter Four
apply the aboye standard in the case of Ng v Canada,220 in whieh theCommittee had to eonsider whether execution by gas asphyxiationviolated article 7 of the [CCPR, prohibiting cruel, inhuman anddegrading treatment or punishment. The Committee held thatexecution by gas asphyxiation as practised in California violatedarticle 7 of the [CCPR, as it would not meet the test of 'least possiblephysical and mental suffering' .221 The Committee stated as follows:
The Committee is aware that, by definltion, every execution of asentence may be considered to constitute cruel and inhuman treatmentwithin the meaning of article 7 of the Covenant; on the other hand,article 6, paragraph 2, permits the imposition of capital punishment ferthe most serious crimes. Nonethe\ess, the Committee reaffirms, as it dídin its General Comment 20[44] on artiele 7 of the Covenant (CCPR/C/21 IAdd.3, paragraph 6) that, when imposing capital punishment, theexecution of the sentence ' ... must be carried out in such a way as tocause the least possible physical and mental suffering'. In the presentcase, the author has provided detaHed information that execution by gasasphyxiation may cause prolonged suffering and agony and does notresult in death as swiftly as possible, as asphyxiation by cyanide gas maytake oVer 10 minutes... the Committee concludes that execution by gasasphyxiation, should the death penalty be impased on the author, wouldnot meet the test of '(east possible physical and mental suffering', andconstitutes cruel and inhuman treatment, in violation of arUcle 7 of theCovenant. 222
In noting that gas asphyxiation may take more than ten minutes, theCommittee appears to have adopted the criterion of instantaneity forfinding a violation of article 7. Some Committee members disagreedwith the aboye conclusion. Mavrommatis and Sadi uttered theirdissenting opinion in the following words:
Every method of judicial execution in use taday, including execution bylethal injection J has come under críticism for causing protonged paio orthe necessity to have the process repeated. We do not believe that theCommittee shoutd look into such details ln respect of execution such aswhether acute paio of limited duration or less pain of longer duration ispreferable and could be a criterion for a finding of violation of theCovenant. 223
Mavrommatis and Sadi did not dispute that executions could be crueland inhuman, but disagreed with the criterion used in arriving at theconclusion. They added that 'a method of exeeution such as death bystoning, which is intended to and actually infliets prolonged pain and
Z10 Ng v Canada, Communication 469/1991, UN Doc. CCPR/C/49/D/469/1991 , 7January 1994. The case concerned Charles Chitat Ng, a British national. who hadbeen extradited to the United States by Canada te stand trial on 19 criminalcounts, inc\uding kidnapping and 12 murders, where, if conYicted, he could face
221 the death penalty (para 1-2.1).As aboye, para 16.4.
222 As aboye, para 16.2-16.4.223 Dissenting opinion of Messrs. Andreas Mayrommatis and Waleed Sadi in Ng v
Canado.
i
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The prohibition 01 cruel, inhuman or degrading treatrnent or punis!lment and the death penalty in Arrica 143
suffering, is contrary to article 7'.224 If one bears this in mind, thenAfriean states, such as Nigeria and Sudan, whieh employ this methodof execution, are failing to comply with their obligations under theICCPR, as the use of stoning as a method of execution amounts tocruel and inhuman treatment in violation of article 7 of the ICCPR.
Herndl expressed a similar opinion, while stating that in his viewthere is no 'agreed or scientifieally proven standard to determine thatjudicial execution by gas asphyxiation is more cruel and inhuman thanother methods of judicial execution'. 225 He was in fact acknowledgingthat other methods of execution are cruel and inhuman.
Ando, in a dissent, also disagreed with using swiftness of death asa criterion in finding a violation, while stating that 'article 7 prohibitsany method of execution which is intended for prolonging suffering ofthe executed or causing unnecessary pain to him or her'. 226
In addition, other Committee members held that the extraditionof Mr Ng by Canada, which has abolished the death penalty,constituted a violation of the right to life in article 6 of the ICCPR,whieh automatically implied a violation of article 7 as well, regardlessof the way the execution may be carried out. 227 Thus, as can bededuced from the aboye case, methods of executions are generallyconsidered cruel and inhuman. Therefore, it is submitted that theaboye implies that the death penalty be abolished as there is nomethod of execution that can be used that would not have somedegree of cruelty or inhumanity since by definition, every executionof a sentence of death may be considered to constitute cruel andinhuman treatment within the meaning of article 7 of the ICCPR.
6.2 The High Court and Court of Appeal of Tanzania
Similar to the position of the US Supreme Court (discussed below), theHigh Court and Court of Appeal of Tanzania have described executionby hanging as a cruel, inhuman and degrading form of punishment. InRepublic v Mbushuu and Another, the process of hanging wasdescribed in the following words:
One leading doctor described the process as 'slow, dirty, horrible,brutal, uncivilised and unspeakably barbarie'. The prisoner is droppedthrough a trapdoor eight to eight and a half feet with a rope around hisneck. The intention is to break his neck so that he dies quickly... lf thehangman gets [the length of the drop wrong] and the prisoner is droppedtoo far, the prisoner's head can be decapitated or his face can be tornaway. If the drop is too short then the neck will not be broken but
224 As aboye.225 Dissenting opinion of Mr Kurt Herndl in Ng v Canada, para 18.226 Dissenting opinion of Mr Nisuke Ando in Ng v Canada.227 See individual opinions of Fausto Pocar (partly dissenting and partly concurring),
Rajsoomer Lallah (dissenting) and Christine Chanet (dissenting) in Ng v Canada.
144 Chapter Four
instead the prisoner will die of strangutation...There are a few cases inwhich hangings have been messed up and the prison guards have had topull on the prisoner's legs to speed up his death or use a hammer to hithis head. The shock to the system causes the prjsoner to lose controlover his bowels and he will soi! himsell. 228
In the light 01 the above, Mwalusanya J concluded that 'not only is theprocess generally sordid and debasing, but also it is generallybrutalisin~ and thus deleats the very purpose it claims to bepursuing'. 29 Accordingly, Mwalusanya J held that the death penaltyis cruel, inhuman and degradlng punishment and also ollends the rightto dignity in the course 01 the execution. 230 The Court 01 Appeal inMbushuu and Another v Republic agreed with the above linding onhanging as a method 01 execution, stating that:
[t]he execution 01 the death penalty too, that is hanging, is inhuman anddegrading. We do not agree with the trial judge that hangings beingconducted in private índicate the guilty conscience of the state. We are,however, of the apinjon that the privacy surrounding executions 1Srecognition that hangings are inhuman and degrading ... So, we agreewith the trial judge that the death penalty is inherently inhuman, crueland degrading punishment and that is also so in its execution and that itoffends [the right to dignity and the prohibition 01 inhuman or degradingtreatment].231
The Tanzanian decision above reveals that hanging, as a method 01execution, is cruel, inhuman and degrading. Therelore, il one bearsin mind that there is no humane method 01 execution, African statesthat employ hanging as a method 01 executlon (including Africanstates that use other methods, such as shooting and stoning) shouldconsider abolishing the death penalty in order to uphold human rights,particularly the right not to be subjected to cruel, inhuman ordegrading treatment or punishment. However, as diseussed earlier inthis ehapter, the Court lound the death penalty to be constitutional,as it was saved under seetion 30(2) 01 the Tanzanian Constitution.
6.3 The Constitutional Court 01 Uganda
One 01 the ¡ssues that the Court had to eonsider in Susan Kigula and416 Others v The Attorney General was whether the method 01execution by hanging as preseribed by seetion 99(1) 01 the Trial andIndictment Aet 01 Uganda constitutes a cruel, inhuman and degradingpunishment and is, therelore, in violation 01 the Constitution 01Uganda.232
228 Mbushuu (1994) 343.7.29 As aboye.230231 Mbushuu (1994) 351.m Mbushuu (1995) 228.
Susan (2005) 40-45_
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The prohibition of cruel, Inhuman or df'groding treatment or punishment and the death penalty in Afrka 145
Due to the fact that the Court had already found that the deathpenalty was recognised in the Constitution and that the prohibition ofcruel, inhuman and degrading punishment was not intended to applyto the death penalty, it found hanging as a method of execution to beconstitutional. 233
Despite the aboye finding, the Court did not dispute the fact thathanging may constitute cruel, inhuman and degrading punishment.Justice Okello stated that '[e]xecution by hanging may be cruel, butI have found that articles 24 and 44(a) were not intended to apply to[the] death sentence permitted in article 22(1 j' .234 Hanging wasfound constitutional because, as Justice Twinomujuni stated, theissue was not whether inflicting the death sentence by hanging is goodor not, or whether hanging is a desirable or appropriate sentence inUganda; the issue was whether hanging is authorised by theConstitution. 235
6.4 The Supreme Court of the United States of America
The US Supreme Court has dealt with the constitutionality of hanging,a method of execution commonly used in Africa, in the case ofCampbell v Wood, in which one of the questions presented waswhether execution by hanging violates the Eighth Amendment of theUS Constitution, prohibiting 'cruel and unusual punishment' .236 Theminority decision, which has been cited with approval in manyjurisdictions, is very instructive. It states the following with regard tothe process of hanging:
[H]anging is a savage and barbaric method of terminating life. We areconvinced that judicial hanging is an ugly vestige of earlier, less civilisedtimes when science had not yet developed medically-appropriatemethods of bringing human life to an end. Hanging is a crude, rough, andwanton procedure, the purpose of which is to tear apart the spine. It isneedlessly violent and intrusive, deliberately degrading and dehumanising. It causes grievous fear beyond that of death itself and theattendant consequences are often humiliating and disgusting. 237
After considering the hanging process in detail and the pain associatedwith it, the Court then concluded that hanging was, without theslightest doubt, 'cruel and unusual' in layman's terms and in theconstitutional sense, thus in violation of the Eighth Amendment of theUnited States Constitution. 238 The minority put forward two reasonsfor finding execution by hanging unconstitutional: First, almost every
2J3 SUsan (2005) 43-45.234 Emphasis added. Susan (2005) 44-45.235 Susan (2005) 111.236 Campbell v Waad (1994) 18 F.3d 662 at 670.237 As aboye I 701.238 As aboye, 716-717.
146 Chapter Four
state had rejected hanging as a lorm 01 punishment, which compelsthe conclusion that hanging lails to comport with evolving standardsDI decency; and second, the practice DI judicial hanging wasdemonstrably incompatible with the respect lor human dignity that isthe mark DI a civilised societyB9
The minority considered the majori~ decision, which did notconsider hanging to be cruel and unusual, 40 as flawed, stating that
there is simply no justilieation lor the majority's failure to eonduct aninquiry into whether soeiety's 'evolving standards of deeeney' prohibithanging ... were the majority to follow precedent and consider whetherhanging violates our evolving standards 01 deceney, it would be bound toeonclude that it is a lorm of execution that has been unequivocallyrejected as contrary to contemporary standards, and that the reason torits rejeetion is that this atavistic praetiee simply fails to provide therespeet for human dignity that civilized society demands. 241
7 Cruelty beyond the prisoner
The cruelty 01 the death penalty extends beyond the prisoner to theprisoner's lamily, to the prison guards and to the otficials who haveto carry out the execution. With regard to the impact DI executionson the executioner, inlormation shows that the role 01 theexecutioner can be very disturbing, even traumatic. Judges,proseeutors and other ollicials may also experience difficult moraldilemmas il the roles they are required to play in administering thedeath penalty conlliet with their own ethical views.
The cruelty 01 the death penalty on others has been evidenced,lor example, in Uganda. Etima, the Commissioner General 01 Prisonsin Uganda, in an affidavit stated as lollows:
In my capacity as Commissioner, l am entitled to attend executions. Inthat capacity I attendecl one execution and I found it to be a very crueland inhuman punishment. It had sueh a traumatie, horrifying, debasingand dehumanising ellect on me that I vowed never to attend any otherexecution again, and I have never attended any other since. Afterwitnessing that execution: I did not sLeep lor two days; I eould not sleepproperly for a long time and I had nightmares, which keep re·oecurringup to today; the images of this execution haunt me to date and I am nowconvineed that they shall haunt me unti! the end of my days. Although Ihave not attended any subsequent executions, whenever executions arecarried out, they have had the effect of making me feel dehumanisedwith the guilty feeling of one who has killed. It is particularly unnervingin my position having regard to the faet that through the ehain ofcommand, I command officers to carry out the execution yet my
239 As aboye, 700.240 As aboye 683.241 As aboye, 708.
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The prohibitioll DI cruel, inhuman or degradlng treatmli'nt Dr pun/shment Gnd the death penalty in Africa 147
conscience tells me that killing is wrong...the implementation 01 thedeath penalty has adversely affected the public view 01 the prisondepartment and its staff. Some segments 01 the public view the prisonstaff as killers and 'butchers'. 242
The aboye explains the difficulty in getting staff to work insections of the prison that require one to take part in executionsowing to the effect of executions on the officers. It further explainswhy some prison authorities advocate for abolition. In addition,Byabashaija, the Ugandan Deputy Commissioner General of Prisons,pointed out in an affidavit that 'the death penalty is a cruel, inhumanand degrading punishment not only to the condemned prisoners, butalso to the prison staff'. 243 The situation is exacerbated by the factthat there is no training of any kind that prepares the prison officialsto deal with the trauma they endure as a result of participating in, orwitnessing, executions. 244
Judges have also expressed their experience of the cruelty of thedeath penalty. During a lecture at the University of Buea, Cameroon,in 1998, a Cameroonian judge described the sleepless nights andmental torture he experienced when he had to pronounce a deathsentence and after he had witnessed the execution. 245
Aformer prison warder in South Africa, Chris, also is an emotionalwreck today and suffers from severe post-traumatic stress, althoughit is years since he witnessed an execution. 246
Therefore the abolition of the death penalty is even moredesirable if one takes into consideration the alorementioned.
242 Affidavit of Joseph Etima, Commissioner General of Prisons in 5usan (2005).243 Affidavit of Johnson Byabashaija, Deputy Commissioner General of Prisons in
5usan (2005). The affidavits of Moses Kakungulu Wagabaza, David Nsalasatta andTom Ochen, aH Assistant Commissioners of Prisons, and that of Vincent Oluka, aprison officer at Luzira Prison, also demonstrate the cruelty of the death penaltyon others.
244 As aboye.245 The author was present at thls lecture.246 Chris witnessed only a few hangings but they were enough to unhinge him. He
assaults his wife as a result of his constant nightmares and stress. Also, formerprison warder Johan 5teynberg has stated that the images of execution will neverleave him. Chris and 5teynberg stated their views during a discussion on Deathand democracy, broadcast on Special Assignment, SABC 3 at 21h30 on 9 March2004 (South Africa). For further information on this discussion, see http://www.sabcnews.com/specialassignmentldeathdemoc.html (accessed 4 AprH2004).
five I Fair trial rights and their relationto the death penalty in Afrka
1 Introduction
Afair trial is a basic element of the notion of the rule of law; 1 and theprincipies of 'due process' and 'the rule of law' are fundamental tothe protection of human rights. 2 At the centre of any legal system,therefore. must be a means by which legal rights are asserted andbreaches remedied through the process of a fair trial in court, as thelaw is useless without effective remedies. 3 The fairness of the legalprocess has a particular significance in criminal cases, as it protectsagainst human rights abuses and is the foundation stone forsubstantive protection against state power. Hence, the protection ofhuman rights in criminal cases begins, but does not end, with fair trialrights.4
Fair trial rights are not without restrictions as it is necessary incriminal cases to balance the rights of the individual defendantagainst a wider interest. Thus, courts are repeatedly faced withdecisions as the extent to which the rights of the defendants shouldbe modified or restricted in the wider interest when considering fairtrial provisions. s Nevertheless, constitutional due process andelementary justice require that the judicial functions of trial andsentencing be conducted with fundamental fairness, especially wherethe irreversible sanction of the death penalty is involved. 6
To a great extent, increased concern about the use of the deathpenalty in Africa is as a result of the death penalty being imposedafter trials that do not conform to international and national fair trialstandards. In other words, many capital trials in Africa fall short ofstandards for a fair tria!. For example, as seen below, trials areconducted after excessive delay, and in some cases defendants haveno access to legal assistance and lack proper defence. Adherence tofair trial (due process) rights in death penalty cases is essential. Insome of its resolutions the UN General Assembly has pointed out theimportance of respecting fair trial standards in death penalty cases by
12J456
e Ovey 8:: RWhite The European Convention on Human Rights (2002) 139.RClayton &. H Tomlinson Fair trfal rights (2001) 2.H Davis Human rights and civilliberties (2003) 146.Clayton &. Tomlinson (n 2 aboye) 2.Clayton 8:: Tornlinson (n 2 aboye) 4.American Civil Liberty Union 'The case against the death penalty' http://www.aclu.org/deathpenalty/deathpenalty.cfm?ID=9082&.c=17 (accessed 20 April 2004).
149
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150 Chapter Five
all countries.7 Also, the UN Special Rapporteur on extrajudicial,summary or arbitrary executions has reiterated that:
proceedings leading to the imposition of capital punishment mustconform to the hlghest standards of lndependence, competence,objectivity and impartiality of judges and juries, in accordance with thepertinent international legal instruments. AH defendants facing theimposition of capital punishment must benefit from the services of acompetent defence counsel at every stage of the proceedings.Defendants must be presumed innocent until their guilt has been provedbeyond a reasonable doubt, in strict application of the highest standardsfor the gathering and assessment of evidence. In addition, all mitigatingfactors must be taken into account. 8
Some of the issues raised in the aboye statement, for instancecompetent defence counsel, are discussed later in this chapter. Thestatement emphasises the relevance of fair trial standards, and howimportant it is that they be respected in capital trials in order toensure a fair trial.9 Respect for fair trial rights is imperative, as thenon-existence of due process of law within the jurisdiction of a stateweakens the efficacy of the remedies provided under domestic law toprotect the rights of individuals. 10 In addition, in Resolution 1996/15of 23 July 1996, the UN ECOSOC encouraged UN member states inwhich the death penalty has not yet been abolished to ensure thatdefendants facing a possible death sentence are given all guaranteesto ensure a fair trial, bearing in mind the UN standards for a fair trialdiscussed below.
Resolutions 2393 (XXIII) of 26 November 1968 and 35/172 of 15 December 1980.Report by the Special Rapporteur on extrajudicial, summary or arbitraryexecutions, UN Doc. E/CN.4/1997/6D, 24 December 1996, para 81. It should benoted that taking mitigating factors into account, as stated aboye, would dependon whether the death penalty is mandatory or discretionary. Nevertheless, it iswithout doubt that there is a possibility of sorne defendants having an unfairsentencing or not having a fair trial in jurisdictions where the death sentence ismandatory.The European Court of Human Rights has also emphasised how important it is torespect fair trial rights. In Delcort v Belgium (1970) 1 EHRR 355, the Court statedthat 'in a democratic society within the meaning of the Convention, the right to afair administration of justice holds such a prominent place that a restrictiveinterpretation of Article 6(1) would not correspond to the aim and purpose of thatprovision' (para 25). In subsequent cases the Court has pointed out theimperative nature of fair trial rights (see for example, Collozza and Rubinat vItaly (1985) 7 EHRR 516 and lana v Turkey (1998) 4 BHRC 241 (the right of anaccused to be present at and to take part in an ora! hearing); Yagci and Sargin vTurkey (1995) 20 EHRR 505 (right to a hearing within a reasonable time); AJlenetde Ribemont v France (1995) 20 EHRR 557 (presumption of innocence); Ocalan(2003); and Soeríns (1989».
10 This view was expressed by the Inter-American Commission on Human Rights (seeS Davidson The In ter-American human rights system (1997) 296)_ Also, the InterAmerican Court of Human Rights has indicated that the concept of due process oflaw is a necessary prerequisite to ensure the adequate protection of personswhose rights and obligations are pending determination befare a court or tribunal(see Inter-American Court of Human Rights, Advisory Opinion OC-9/87 of 6October 1987, Judicial guarantees in states of emergency, para 29).
Fair trial rights and their relation to the death penalty in Afri[a 151
It is, therefore, imperative that fair trial standards for theimposition of the death penalty are meto Failure to respect fair trialstandards in capital trials increases the likelihood of innocentdefenders being sentenced to death, and subsequently executed.Moreover, it can also lead to abuse of the whole trial process.
This chapter examines fair trial rights in relation to the deathpenalty in Africa. The chapter begins by discussing the fair trial rightsin the UN human rights instruments and other UN fair trial standardsand how they have been interpreted. This is followed by anexamination of fair trial rights in the African human rights system,especially the jurisprudence of the African Commission, as theCommission has had more impact where the issue of the death penaltyhas been raised in the context of the deprivation of fair trial rights.Reference is also made to fair trial rights in relation to the deathpenalty in the Inter-American and European human rights systems, asthey are a source of inspiration for the African system. Subsequently,some of the fair trial rights with regard to capital trials in Africanstates are examined to establish if these rights have been respectedor noto Finally, consequences of failure to respect fair trial rights incapital trials (the results of unfair capital trials) are discussed.
2 Fair trial rights under the United Nations system
2.1 The Universal Declaration of Human Rights
The UDHR makes reference to some fair trial rights, though not indetail, in articles 9, 10 and 11. Article 9 prohibits arbitrary arrest anddetention. Article 10 guarantees the right of everyone, in thedetermination of any criminal charge against him, to a 'fair and publichearing by an independent and impartial tribunal'. Article 11 (1)guarantees the right of everyone charged with a penal offence 'to bepresumed innocent until proved guilty according to law in a publictrial at which he has had all the guarantees necessary for hisdefence'. And article 11 (2) prohibits retroactive laws. As mentionedin chapter four, the UDHR is an abolitionist instrument by virtue ofarticle 3, which envisages abolition. l1
2.2 The lnternational Covenant on Civil and Political Rights
The ICCPR does not only provide for fair trial rights but also providesprocedural safeguards to be followed in death penalty cases. The
11 Artic\e 3 of the UDHR guarantees the right to life. See chapter three for aninterpretatlon of this artide.
152 Chapter Five
procedural safeguards are provided for in article 6 of the ICCPR.Article 6(2) provides that:
[ijn countries which have not abolished the death penalty, sentence ofdeath may be imposed only for the most serious crimes in accordancewith the law in force at the time of the commission of the crime and notcontrary to the provlsions of the present Covenant and to the Conventionon the Prevention and Punishment of the (rime of Genocide. Thissentence can only be carried out pursuant to a final judgment renderedby a competent court.12
From the aboye it is clear that the death penalty has to be restrictedto 'the most serious crimes'. The UN Human Rights Committee hasstated that the expression 'the most serious crimes' must be readrestrictively to mean that the death penalty should be quite anexceptional measure. 13 That is, it should be limited to exceptionaloffences. In addition, articles 6(4) and (5) provide for the right ofanyone sentenced to death to seek pardon or commutation of thesentence, and prohibit the imposition of the death sentence onanyone one below the age of 18 or the carrying out of the deathsentence on pregnant women, respectively. State parties to the ICCPRare further prohibited from invoking it to delay or prevent theabolition of capital punishment. 14
The provisions of article 14 of the ICCPR (discussed below) havebeen added to article 6 by reference to the 'Covenant' in article 6(2)and must, therefore, be observed. 15 This implies that if article 14 ofthe ICCPR is violated during a capital trial, article 6 is alsobreached. 16 The UN Human Rights Committee ha5 also noted that itfollows from article 6 that state parties are obliged to limit the use ofthe death penalty and, accordingly, they have to review their criminallaws in the light of article 6,17
12 Emphasis added.13 CCPR General Comment No 6, para 7.14 Article 6(6) of the ICCPR. To this extent the ICCPR can be seen as an abolitionist
instrumento15 CCPR General (omment No 6, para 7.16 This interpretation was adopted by the UN Human Rights Committee by
consensus, but has subsequently been questioned by one of the Committeemembers (Mr Wennergren). Despite this, it is the established jurisprudence of theCommittee. See Ghandhi (2003) 17. In Reid v Jamaica (Communication 250/1987,UN Doc. CCPR/C/39/D/250/1978, 21 August 1990, para 11.5), the Committeestated that 'the imposition af a sentence of death upon the conclusion of a trialin which the pravisians of the Cavenant have nat been respected constitutes, ifno further appeal against the sentence is avaHable, a viotation of article 6 of theCovenant' .
17 CCPR General Comment No 6, para 6. Likewise, it has been suggested that the useof the word 'court' in artide 1 of the European Convention, which guarantees theright to life, may implicitly incorparate the procedural guarantees found inarticle 6 of the Convention, thus implying that in capital cases state parties wouldfind themselves barred from derogating from article 6 of the Convention. (see WSchabas The abolitian 01 the death penalty in internatiana/ law (2.00Z) 268, farfurther discus~ion on this).
•
Fai,. tríal rights and thefr relatiOlI tú the death penalty ín Africa 153
In restricting the application of the death penalty, state partiesshould have as their ultimate goal its total abolition, as the HumanRights Committee ha, acknowledged that article 6 refers generally toabolition in terms which strongly suggest that abolition is desirable. 1BThus, African state parties have to envisage abolition as a final goaland, in accordance with article 2(2) of the ICCPR, have to take thenecessary steps to adopt legislative and other measures not only togive effect to the rights in the ICCPR but also to achieve the goal ofabolition. 19
Furthermore, article 14 of the ICCPR provides for more generalstandards for a fair trial with regard to anyone charged with a criminaloffence. These standards include the following: First, equality of allpersons before the courts and tribunals. Second, the right of anyonecharged with a criminal offence to a fair and public hearing by acompetent, independent and impartial tribunal established by law.Third, the right to be presumed innocent until proven guilty accordingto law. Fourth, the right to be informed promptly and in a detailedlanguage which he understands of the nature and cause of the chargeagainst him. Fifth, the right to have adequate time and facilities forthe preparation of his defence. Sixth, the right to be tried withoutundue delay. Seventh, the right to represent himself or to have legalassistance assigned to him if he cannot afford legal assistance and ifit is in the interest of justice. Eighth, the right to free assistance ofan interpreter. Ninth, the right not to be compelled to testify againsthimself or to confess guilt. Lastly, the right to have his conviction andsentence reviewed by a higher tribunal.
It should be noted that other provisions in relation to proceduralfairness, contained in article 9 of the ICCPR, which guaranteeseveryone the right to liberty and security of the person, are relevantwith regard to the pre-trial phase of a trial. This article prohibitsarbitrary arrest and detention. 2o It provides for the right of anyonearrested to be informed at the time of arrest of the reasons for hisarrest and be promptly informed of any charges against him. 21 Thearticle further guarantees the right of anyone arrested or detained ona criminal charge to be brought promptly before a judge or other
18 As aboye19 The ICCPR has been ratified by 50 African states and signed by two. This is quite
impressive, although the maln problem is nol ratification but the domesticationof these standards. Not aH the states that h(¡ve ratified the ICCPR haveincorporated it ¡nto their domestic laws. For example, in Botswana, no humanrights treaties, induding the ICCPR, have been incorporated ¡nto national taw; inEritrea, the ICCPR has nol been prodaimed as the law of the state; and in Malawi,the ICCPR has not been incorporated into domestic law (C Heyns (ed) Humanrights in Atriea (2004) 904,1064 & 1247).
ZQ Article 9(1) 01 the ICCPR.21 Article 9(2) 01 the ICCPR.
154 Chapter FiVe
officer authorised by law to exercise judicial power and anentitlement to trial within a reasonable time or to release.~2
The duty of African state parties to the ICCPR to respect strictlyprocedural safeguards in article 6 and the fair trial rights set forth inarticle 14 is imperative. It is worth noting that although state partiescan derogate from article 14 in a time of public emergency thatthreatens the life of the nation, they cannot derogate from article6. 23 Nonetheless, according to the UN Human Rights Committee'sGeneral Comment No 29, any measures to derogate from article 14must be of an exceptional and temporary nature, during a situation of'public emergency which threatens the life of the nation' and thestate party must have officially declared a state of emergency.24
Although article 14 is derogable, it would appear that, with regardto capital trials, it cannot be derogated from during a state ofemergency. The Human Rights Committee has stated that 'as article6 of the Covenant is non-derogable in its entirety, any trialleading tothe imposition of the death penalty during a state of emergency mustconform to the provisions of the Covenant, including all therequirements of articles 14 and 15,.25 This means that, with respectto death penalty cases, article 14 cannot be derogated from. TheCommittee is, therefore, of the opinion that there is no justificationfor derogation from fair trial rights during emergency situations, asthese rights must be respected during a state of emergenc~ in orderto protect non-derogable rights such as the right to life.2 Thus, ifAfrican state parties cannot respect fair trial rights at all times incapital tríals, then it is imperative that they consider abolishing thedeath penalty, as imposition of the death penalty following an unfairtrial is a breach not only of procedural standards but also of the rightto life.
" Article 9(3) af the ICCPR.23 Artide 4(1) of the lCCPR aHows state parties to derogate from their obligations
under the ICCPR in a time of public emergency which threatens the life of thenation to the extent strictly required by the exigencies of the situation, and themeasures taken should not be inconslstent with their other obligations underinternationa! law. Artide 4(2) prohibits deragation from articles 6, 7, 8(1) & (2),11, 15, 16 and 18, even in a time o( public emergency.
24 UN Human Rights Committee, General Comment No 29: States of emergency(artiele 4 af the ICCPR), 31 August 2001, para 2 (UN Dac. CCPR/C/21/Rev.1/Add.11), hereinafter re(erred to as ICCPR General Comment No 29.
25 CCPR General Comment No 29, para 15.26 CCPR General Comment No 29, para 16.
-
31
Fair trial rights and their relation to the deat/l penalty in Alrfca 155
2.3 Other United Nations fair trial standards
Other UN fair trial standards discussed here, though not binding, formpart of customary international law. The fair trial standards in theICCPR have been reiterated and elaborated upon in the ECOSOCsafeguards,27 Safeguard Nos 1 and 2 provide for the imposition ofcapital punishment only for the 'most serious crimes' and only for acrime for which it is prescribed by law at the time of its commissionin countries that have not yet abolished it, respectively.28 SafeguardNo 3 prohibits the imposition of the death penalty on persons below18 years of age and the carrying out of the death sentence onpregnant women or new mothers. Safeguard Nos 6, 7 and 8 provide,respectively, for the right to appeal, to seek pardon or commutationof sentence, and prohibit execution where an appeal against thedeath sentence or an appeal for pardon or commutation of sentenceis pending.
With regard to trials in general, other fair trial safeguards havebeen enumerated in UN resolutions, which must be respected by allstates. They incorporate standards in human rights treaties, forexample in the ICCPR. These standards are applicable in capital cases,as they relate to trials in general. They include the following: TheCode of Conduct for Law Enforcement Officials,29 Basic PrincipIes onthe Role of Lawyers,30 UN Basic Principies on the Inde~endenceof theJudiciary,31 UN Guidelines on the Role of Prosecutors
j2 the Principies
on the Prevention of Arbitrary Arrest and Detention,3 the Declarationof Basic Principies of Justice for Victims of Crime and Abuse ofPower,34 and the Basic Principies on the Use of Force and Firearms byLaw Enforcement Officials. 35
2.4 The United Nations Human Rights Committee
As seen aboye, in some of its General Comments, the UN HumanRights Committee has interpreted the procedural safeguards and fair
27 ECOSOC safeguards.28 According to safeguard No 1, the scope of the 'most serious crimes' 'should not
go beyond intentional crimes with lethal or other extremely grave consequences' .29 UN GA Res. 34/169 of 17 December 1979, UN Doc. A/34/46 (1979).30 UN GA Res. 45/121 of 14 December 1990, UN Doc. A/CONF.144/28/Rev.1 at 118
(1990).UN GA Res. 40/32 of 29 November 1985 and 40/146 of 13 December 1985, UN Doc.A/CüNF.121 1221 Rev.1at 59 (1985).
32 See UN Doc. A/CONF.144128/Rev.1 at 189 (1990).33 See UN GA Res. 34/169 of 17 December 1979, and A Adeyemi 'United Nations
human nghts instruments and criminal justice norms and standards' in MBassiouni ft Z Motala (eds) The protection 01 human rfghts in African criminalproceedings (1995) 3.
34 UN GA Res. 40/34 of 29 November 1985, UN Doc. A/40/53 (1985).35 UN GA Res. 45/121 of 14 December 1990, UN Doc. A/CONF.144/28/Rev.1 at 112
(1990).
41
156 Chapter Five
trial provisions in article 6 and 14 of the ICCPR respectively. Thissection, therefore, focuses on the jurisprudence of the Committeewith regard to fair trial rights in relation to the death penalty, inwhich the Committee has also emphasised the imperative nature offair trial rights. 36 The Committee has found a violation of article 14and consequently article 6 in a number of death penalty cases.
For example, in Burrel v Jamaica, the Human Rights Committeefound a violation of article 14(3)(b) and consequently article 6 of theICCPR, because the death penalty was imposed on Mr Burrel after atrial in which the provisions of the ICCPR were not respected. 37 TheCommittee's decision was based on the fact that Mr Burrel was notinformed that his legal aid counsel was not going to argue anygrounds in support of his appeal and he was not given an opportunityto consider any remaining options open to him. 38 The Committee,therefore, considered this to be in violation of the right to haveadequate time and facilities for the preparation of one's defenceand to communicate with counsel of one's own choosing. 39 Theremedy in this case entailed the payment of compensation to thefamily of Mr Burrel, as he had been executed before the Committeecould decide on the matter. 40
The Human Rights Committee has found the imposition of thedeath sentence in absentia and subsequently no attempts to notifythe convicted person to be in violation of the right to a fair trial,specifically articles 14(3)(a), (b), (d) and (e) of the ICCPR.41 TheCommittee further noted that the failure of a state party to respectthe relevant requirements of article 14(3) leads to a conclusion thatany death sentences imposed are contrary to the provisions of theICCPR and thus in violation of article 6(2).42 Further, in Lubuto vZambia, the Human Rights Committee found a violation of article14(3)(c), the right to be tried without undue delay, because the trial
36 Some of the Committee's decisions with regard to fair trial rights and the deathpenalty are atso discussed below, when examining the specific rights.
]7 Burrel v Jamaica, Communication 546/1993, UN Doc. CCPR/C/57/D/546/1993, 138 August 1996, para 9.4.
As aboye, para 9.3.39 Article 14(3)(b) af the ICCPR.40 Burrel v Jamaica, para 11. The execution of Mr Burrel before the Committee
could decide on the matter is a breach of ECOSOC safeguard No 8 prohibitingexecutions where an appeat is pending.See Mbenge v Zaire, Communication 16/1977, UN Doc. CCPR/C/18/D/16/1997,
42 25 March 1983, para 14.1 & 14.2As above, para 17.
Fair trial rights and their relatioo to the death penalty in Africa 157
process took eight years.43 The Committee then ordered that thedeath sentence imposed on Mr Lubuto be commuted. 44 It is implicit inthe Committee's decision that a state party cannot plead that thelack 01 economic resources prevented it Irom providing all theelements 01 a lair trial.45
It is worth noting that the Human Rights Committee in itsjurisprudence has gone out 01 its way to emphasise the imperativenature 01 procedural saleguards (Iair trial rights) in death penaltycases. 46 In Reid v Jamaica, the Committee stated that 'in capitalpunishment cases, the duty 01 [s]tate parties to observe rigorously allthe guarantees lor a lair trial set out in article 1401 the Covenant iseven more imperative'. 47 It should also be noted, as mentionedaboye, that the Committee, in holding that a violation 01 article 14
"
4445
46
47
Lubuto v lambia, Communication 390/1990, UN Ooc. CCPR/C/55/D!390/19901Rev. 1, 31 October 1995, para 7.3. Mr Lubuto was sentenced to death on August1983 for aggravaced robbery committed on 5 February 1980. The Supreme Courtof Zambia dismissed his appeal on 10 February 1988 (para 2.1). The Committeealso found a violation of article 6(2} of the ICCPR in this case, with regard to theproportionality of the death sentence imposed (see 6.6.1 below). See also,Chamba(a v Zambla, Communication 856/1999, UN Doe. CCPR/C/78/0/856/1999,30 July 2003, in which the Human Rights Committee found che lengthy detention(22 months) to be arbitrary, constituHng a violation of artlcte 9(1) read togetherwith article 2(3) of the ICCPR.As above, para 9.As aboye, para 7.3. It should be noted that the Committee normaHy states anappropriate remedy where fair trial rights have been violated such as release, aretriat or a new appeal where there is sorne doubt about the guilty verdict itself;commutation of sentence, where article 14(3)(c) has been breached; andcompensation to the convicted person where the sentence has atready beencommuted or to the family of the convicted person where he has already beenexecuted. Wlth regard to release, see the tollowing cases: Kelly v Jamaica,Communication 253/1987, UN DOL A/46/40, 8 April 1991, para 7; Pinto v Trinidadand Tobago, Communication 512f1992, UN Doc. CCPR/Cf571D/512/1992, 29 July1996, para 13.2; McCordie v Jamaica, Communication 663/1995, UN Oae. CCPRfC/64fD/633/1995, 25 November 1998, para 10; and Yasseen and Thamas vGuyana, Communication 676/1996, UN Doc. CCPR/C/621D/676/1996, 31 March1998, para 9. On retrial, see Simmonds v Jamaica. Communication 338/1988, UNOoe. CCPR/Cl46f01338/1988, 19 November 1992, para 10. A new appeal was theremedy in MeLeod v Jamaica, Communication 734/1997, UN Doc. CCPR/C/62/DI73411997, 3 June 1998, para 8. On commutation, see Lubuto v lambia,Communication 390/1990, UN Doe. CCPR/C/55/D/390/1990/Rev. 1, 31 October1995, para 9. With regard to compensation, see Hylton v Jamaica,Communication 407/1990, UN Doc. CCPRICl51 10/407/1990, 15 July 1994, para11.1; Johnson v Jamaica, CommunicaHon 653/1995, UN Doc. CCPR/C/64/D/653/1995, 3 December 1998, para 10; and Surrel v Jamaica, Cornmunication 54611993, UN Doc. CCPR/Cl57/D/546/1993, 1 Augu5t 1996, para 11.See, for example, Koné v Senegal, Communication 386/1989, UN Doc. CCPRICI52/01386/1989, 27 January 1994; Gridin v Russian Federation, Communication770/1997, UN Doc. CCPR/Cl69/770,119, 18 July 2000; Monsaraj and Others vSierra Leone, Communications 839/1998, 840/1998 and 841/1998, UN Ooe. CCPRIC/72/0/839/1998, 30 July 2001. However, it should also be noted that theCommittee has made it clear in numerous cases that it will not consider issues oftact or evidence arising out of death penalty cases un{ess lt is obvious that theevaluation of the evídence was arbitrary or amounted to a denial of justice (SGhandhi 'The ICCPR and the death penalty' {2003) 6 Amicus Journa( 17).Reid v Jamaica, Commullication 250/1987, UN Doc. CCPRICl39/01250/197B, 21August 1990, para 12.2.
158 Chapter Five
3.1 The African Charter on Human and Peoples' Rights
3 Fair trial rights in the African human rights system
The lnter-American Commissíon on Human Rights has adopted a similar view tothat of the UNHRC with regard to the relation between the right to life and fairtrial rights. lt is clear from the Commission's jurisprudence that since a violationaf due process invaUdates a conviction and sentence, an execution pursuant toflawed criminal proceedings would amount to an arbitrary deprivation of tife,thus a violation of the right to life under articte 1of the American Declaration(see for example Graham v United States, Case 11.193, Report No 97/03,29December 2003). Similarly, the In ter-American Court of Human Rights hasadopted the same approach, finding the imposition of capital punishment withoutrespect for due process to constitute an 'arbitrary' deprivation of life. The InterAmerican Court had to address the consequences of the imposition andapplication of the death penalty with regard to the ICCPR and persons of foreignnationality in the light of faHure to give the notificatlon referred to in article36(1 )(b) of the Vienna Convention on Consular Relations (see In ter-AmericanCourt of Human Rights, Advisary Opinion OC-16/99 of 1 October 1999, para 125).The right to informatían on consular assistance is guaranteed under article36(1)(b) of the Yienna Convention on Consular Re\atíons of 24 April 1963. TheCourt was of the opinion that the right to information on consular assistancemakes it possible for the right to due process of law under arUcle 14 of the ICCPRto have practical effects in tangible cases (paras 122-124). After considering thejurisprudence of the UNHRC and noting that because of the irreversible nature ofthe death penalty the strictest and most rigorous enforcement of judicialguarantees is required, the Court held as fOl{ows: '[Non-observance] of adetained foreign national's right to information, recognized in article 36(1)(b) ofthe Vienna Convention on Consular Relations, is prejudicial to the guarantees ofthe due process of law¡ in such circumstances, imposition of the death penalty isa violation of the right not to be "arbitrarj(y" deprived of one's Iife, in terms ofthe relevant provisions of the human rights treaties (eg the American Conventionon Human Rights, artide 4; the International (avenant 00 Civil and Polltica(Rights, artide 6) with the juridical consequences inhereot in a violation of thisnature, Le., those pertaining to the international responsibitity of the State andthe duty to make reparations' (para 137). Since the African Charter prohibits thearbitrary deprivation of life in artide 4, drawing inspiration (rom this opinion ininterpreting artide 4 implies that article 4 woutd be violated if the death penaltyis imposed under the above circumstances.
48
Procedural safeguards for a fair trial have been provided for in article7 of the African Charter. The due process rights provided for in article7 are: First, the right to an appeal to competent national organsagainst acts of violating an individual's fundamental rights asrecognised and guaranteed by conventions, laws, regulations andcustoms in force (article 7(1)(a)). Second, the right to be presumedinnocent until proved guilty by a competent court or tribunal (article7(1 )(b». Third, the right to defence, including the right to be
also constitutes a breach of article 6, has made article 14 nonderogable, at least in death penalty cases. The Inter-AmericanCommission on Human Rights has adopted a similar position withregard to the relationship between fair trial rights and the right tolife.4B The reference to the 'Covenant' in article 6(2) also makes thefair trial rights in article 14 non-derogable.
Fair trial rights and their relation to the death penalty in Africa 159
defended by counsel of an individual's choice (article 7(1 )(c)). Lastly,the right to be tried within a reasonable time by an impartial court ortribunal (article 7(1 )(d»).
The fair trial (due process) rights provided for in article 7 are notas exhaustive as those, for example, in article 14 of the ICCPR. Theright to an interpreter, which is an aspect of fair trial, is omitted.However, this has been stated in some of the resolutions on the rightto a fair trial of the African Commission on Human and Peoples' Rights(African Commission), as seen below. Article 6 of the African Charter,which deals with the right to liberty and security of the person, is alsorelevant with regard to the pre-trial phase in ensuring a fair tria!. Itprohibits arbitrary arrests and detentions. However, it should benoted that article 6 has been criticised as not having dealt sufficientlywith the pre-trial phase of the criminal process, and article 7 as beingincomplete.49
3.2 The African Commission on Human and Peoples' Rights
The African Commission has dealt with fair trial rights in some of itsresolutions and in a number of death penalty cases. The resolutionsincorporate and expand on fair trial rights contained in the AfricanCharter. They, therefore, supplement the provisions of the AfricanCharter. 50 In 1992, the Commission adopted the Resolution on theRight to Recourse and Fair Tria!. 51 The Commission's adoption of thisResolution was aimed at deepening the understanding of substantiverights guaranteed by the African Charter. 52 The Preamble highlightsthe imperative nature of fair trial rights in the words 'the right to afair trial is essential for the protection of fundamental human rightsand freedoms'. This Resolution restates the fair trial rights containedin articles 6 and 7, and the right to equality before the law providedfor under article 3 of the African Charter. The Resolution goes furtherto provide for fair trial rights that are not contained in the AfricanCharter, for example the right of individuals to have the freeassistance of an interpreter if they cannot speak the language used incourt, and the right of individuals to have adequate time and facilitiesfor the preparation of their defence. 53
49 F Viljoen 'Introduction to the African Commission and the regional human rightssystem' in C Heyns (n 19 aboye) 404. GeneraUy, detentian and trial, which areaften the areas where systematic violations of civil and political rights occur, arenot dealt with adequately in the African Charter (see C Heyns 'Civil and politicalrights in the African (harter' in M Evans & R Murray (eds) The African [harter onHuman and Peoples' Rights: The system in practice, 1986-2000 (2002) 155).
5D See article 66 of the African Charter.51 Resolution on the Right to Recourse and Fair Trial, 11th session in Tunis, Tunisia,
2·9 March 1992 (see Heyns In 19 aboye) 526).52 5th Annual Activity Report: 1991-1992, para 22.53 Resolution on the Right to Recourse and Fair Trial, para 2(e)(1) & (IV).
160 Chapter Fíve
In 1999, the African Commission adopted the Resolution on theRight to a Fair Tria( and Legal Assistance in Africa. 54 As can bededuced from the Preamble of this Resolution, its adoption was ameans to emphasise the importance of the right to a fair trial and theneed to strengthen the proyisions of the African Charter relating tothis right. This Resolution adopts the Dakar Declaration andRecommendations on the Right to a Fair Trial in Africa, which states:
The right to a fair trial is a fundamental right, the non-observance ofwhich undermines all other human rights. Therefore the right to a fairtrial is a non-derogable right, especially as the Alrican Charter does notexpressly allow for any derogations from the rights it enshrines. 55
This goes further to emphasise the imperatiye nature of fair trialrights. In addition, in 2003, the Commission adopted Principies andGuidelines on the Right to a Fair Trial and Legal Aid in Africa(hereinafter referred to as African Commission's principies andguidelines).56 The general principIes inelude the right to a fair andpublic hearing by a legally constituted, competent, independent andimpartial judicIal body. The aboye principies and guidelines identifyessential elements of a fair hearing, which inelude: The equality of al!persons befare any judicial body; the right to consult and berepresented by a legal representative or other qualified persons ofone's choice at all stages of the proceedings; the right to theassistance of an interpreter il a defender cannot understand thelanguage being used; the right to a determination of the defender'srights and obligations without undue delay; and the right to an appealto a higher judicial body. Thus, the African Commission's principiesand guidelines incorporate the fair trial standards in the ICCPR andthe African Charter and elaborate on them.
In addition to the aboye resolutions, the African Commission hasaddressed the issue of fair trial rights in a number of death penaltycases, in which the issue of the death penalty was raised in thecontext of the deprivation of fair trial rights during the trial process,and found to be a yiolation of the rights under article 7 of the AfricanCharter. In these cases, the Commission, after finding a violation ofartiele 7(1 )(d), consequently lound a yiolation of artiele 26, which
54 Resolution on the Right to a raíf Trial and Legal Assistance in Africa, 26th sessionin Klgali, Rwanda,1-15 Noyember 1999 (see Heyns (n 19 aboye) 584).
55 See Heyns (n 19 aboye) 585.56 Adopted at its 33rd ordinary session in Nlamey, Niger in May 2003. See Final
Communique of the session and 17th Annual Activity Report: 2003-2004. ThePreamble of the principles and guidelines points out the need for these fair trialstandards to become known to e'leryone in Africa, and urges that these standardsbe promoted and proteeted by civil society organisations, judges, lawyers,prosecutors and academics, and be inCDrporated into domestic tegislation bystate parties to the African Charter and respected by them.
59
itb
Fair trial rights and their re{atjan to the death penalty in A[rica 161
gives state parties the duty to guarantee the independence of thecourts. Article 26 is therefore relevant to the right to a fair tria!. 57
In Amnesty Internatianal (on behalf of Orton and Vera Chirwa) vMalawi, the African Commission found a violation of article 7(1 )(c),the right to defence, on the grounds that the trial of the Chirwas tookplace befare a Traditional Court consisting of five chiefs who had nolegal training, and the Chirwas were tried without being defended bycounse!. 58 The African Commission has subsequently elaborated onthe meaning of the right to defence. The right to defence, includingthe right to be defended by counsel of one's choice guaranteed underarticle 7(1 )(c) as seen in the Commission's decision in ConstitutionalRights Project (in respect of Lekwot and Others) v Nigeria, requiresthat the counsel representing the accused should not be intimidatedor harassed during the tria!. Intimidation and harassment of counselto the extent that the~ withdraw from a case would amount to aviolation of this right. 5 If after such withdrawal the accused is notgiven the opportunity to procure the services of another counsel, hisright to be represented by counsel of his choice is violated. 60
Further, the severity of sentence (the death sentence) is arelevant consideration in establishing whether denial of the right toappeal constitutes a violation, as was the African Commission'sposition in Constitutional Rights Project (in respect of Akamu andOthers) v Nigeria. 61 The Commission found a violation of article7(1 )(a) in this case on the grounds that special tribunals created in
57 Articles 3 and 5 of the African Charter are also relevant to the right to a fair trial.Article 3 guarantees equality before the law and article 5 provides for the right tothe respect of the dignity inherent in a human being and to recognition of hislegal status.
58 Amnesty Internatianal (an behalf o[ Ortan and Vera Chirwa) v Malawi,Communications 68/92 and 78/92, 8th Annual Activity Report: 1994-1995; (2000)AHRLR 144 (ACHPR 1995) para 10. In this case, the Southern Regional TraditionalCourts had sentenced Orton and Vera Chirwa to death after a trial that did notmeet fair trial standards. After internationa( protest, the sentences werecommuted to tife imprisonment. (see paras 1-5).Caostitutional Rights Project (in respect of Lekwot and Others) v Nigerio,Communication 87/93, 8th Annual Activity Report: 1994-1995; (2000) AHRLR 183(ACHPR 1995), para 12. In this communication, the individuals cancerned hadbeen sentenced to death under the Civil Disturbances (Special Tribunal) DecreeNo 2 af 1987. The Decree does nat provide for any judicial appea( against thedecisions of the special tribunals and prohibits the courts from reviewing anyaspect of the operatian of the tribunal. The Communication also atleged that theaccused and their caunsels were constantty harassed and intimidated during thetriat, ultimately forcing the withdrawa! of the defence counsel (see paras 1 & 2).
60 As aboye.61 Constitutional Rights Project (in respect of Akamu and Others) v Nigeria,
Cammunication 60/91, 8th Annual Activity Repart: 1994-1995; (2000) AHRLR 180(ACHPR 1995).
162 Chapter Five
1984 in Nigeria foreclosed any avenue of appeal to 'comJletentnational organs' in criminal cases bearing such penalties. 2 TheCommission further found a violation of article 7(1 )(d) on account ofthe fact that an appearance of partiality had been created by thecomposition of the special tribunals. 63 The character of the individualmembers of the tribunal was immaterial in deciding whether the rightto be tried by an impartial court or tribunal had been violated.
Similarly, in International Pen and Others (on behalf of SaroWiwa) v Nigeria, the Commission found specia! tribunals with anappearance of partiality to be in violation of article 7(1 )(d), andconsequently article 26 of the African Charter, as the government didnot guarantee the independence of the judicial bodies in question. 64
Article 7(1 )(a) also would be violated if accused persons have nopossibility of appealing their sentences to competent nationalorgans.65 Further, to openly pronounce an accused guilty prior to andduring the trial will constitute a violation of the accused's right to bepresumed innocent. 66
In Amnesty International and Others v Sudan, the Commissionfound a violation of article 7(1)(d), firstly, as the composition of
62
6J
64
.,66
As aboye, para 13. The indiyiduals in this Communication had been sentenced todeath under the Robbery and firearms (Special ProYlsion) Decree No 5 of 1984,which created special tribunals composed of one serving or retired judge, onemember of the armed forces and one member of the police force. The Decreedoes nal provide for any appeal of sentences, but merely subjects them toconfirmation or disallowance by the governor of the state (see para 1).As aboye, para 12. Similarly, the Inter-American Commission 00 Human Rights hasfound the appearance of partiality to constitute a viotation of the right to betried by an impartía! tribunaL In Andrews v United States (Case 11.139, Report No57/96, 6 Oecember 1996, OEA/Ser.LIV/II.98 Rev. 6, 13 April 1998), the InterAmerican Commission had to address, inter alia, the right to an impartial hearingguaranteed under artide XXVI of the American Declaratíon. The Commissionnoted that the international standard on the issue of 'judge and jurorimpartiality' employs an objective test based on 'reasonableness, and theappearance of impartiality' (para 159). After assessing the faets in an objectiveand reasonable manner, the Commission held that 'the eyidence indicates that MrAndrews did not receive an impartial hearing because there was a reasonableappearance of "racial bias" by sorne members of the jury, and the omíssion of thetrial Court to volr dfre the jury tainted hls trial and resu{ted in him beingconvicted, sentenced to death and executed' (para 165). Accordingly, theCommission found the United States in violation of article XXVI (2) of the AmericanDeclaratton because Mr Andrews had the right to receive an impartial hearing asprovided by the aboye artide (para 172). The Commission further reiterated thatin capital punishment cases state parties have an obligation to observe rigorouslyaH the guarantees fer an impartial trial (para 172).International Pen and Others (on behalf of Saro-Wiwaj v Nigeria, Communication137/94, 139/94, 154/96 and 161197, 12th Annua\ Activity Report: 1998-1999;(2002) AHRLR 212 (ACHPR 1998L paras 90 & 95. The Communications concernedthe detention and trial of Mr Saro·Wiwa and the human rights violations sufferedby hím. During detention, he was denied access to a lawyer. His trial, and that ofothers, took place before a tribunal established under the Civil Disturbances Act.He was later sentenced to death together with his co-defendants. Although theAfrican Cornmission requested a stay of execution, he was executed together withthe others in secret (see paras 1-10).As aboye. para 93.As aboye, para 96.
-
Fair trial rights and theír refation to the death penalty in AfrJca 163
special courts in Sudan creates the impression, or indicates thereality, of a lack of impartiality (the courts consisted of 'threemilitary officers or other persons of integrity and competence'appointed by the president, his deputies and senior militaryofficers);67 and secondly, on the basis that the government dismissedjudges opposed to the formation of these courts. The Commission sawthe judges' dismissal as depriving the courts of the personnelqualified to ensure that they operate impartially, thus denyingindividuals the right to have their case heard by such body.68 Further,giving a tribunal the power to veto the choice of counsel ofdefendants is an unacceptable infringement of the right to freelychoose one's counsel under article 7(1 )(c), which is essential to theassurance of a fair trial.69
The African Commission, in a recent case, did not find a violationof fair trials rights. In Interíghts et al (on behalf Bosch) v Botswana,70one of the issues raised was whether the misdirection of the trialjudge with regard to the onus of proof was so fatal as to deny the rightto a fair trial in the circumstances of the case, thus amounting to aviolation of article 7(1 )(b) of the African Charter.?1 According to thetrial judge, the burden of proof was on the accused (Bosch) to proveon a balance of probabilities that someone else was responsible forthe murder she was accused of committing.72 This resulted in areversal of the presumption of innocence. Despite recognising thisreversal, the Court of Appeal of Botswana upheld Bosch's convictionon the grounds that the reversal did not result in a miscarriage ofjustice. The Commission noted that there is no general rule orinternational norm to the effect that any misdirection by itselfvitiates a verdict of guilt, and that a breach of article 7(1) would ariseonly if the conviction had resulted from such misdirection. 73 Drawinginspiration from, ínter alia, the case law of the European Court onHuman Rights, and based on the fact that Bosch's conviction formurder did not result from the misdirection but from the evidencepresented-J the Commission concluded that there had not been aviolation./4
&7 Amnesty fnternational and Others v Sudan, Communications 48/90, 50/91, 52/91,89/93, 13th Annual Activity Report: 1999-2000; (2000) AHRLR 297 (ACHPR 1999),para 68. In this cornmunication, it wa50 alleged that in Sudan legal representationis denied at new trials and there i50 no appea( of a death sentence (see paras 1·20for a summary of the facts).
&8 As above, para 69.&9 As above, para 64 &. 66.70 Bosch (African Commis5oion). See chapter three far the facts of the case.71 Article 7(1)(b) guarantee50 the right of every individual to be presumed innocent
until proved guilty by a competent coun or tribunal.72 There was no direct forensic evidence Iinking Bosch to the murder, but there was
a strong circumstantial ca50e against her - there was no dispute that she hadbrought the murder weapon into Botswana, her alibi far the night of the crimewas que5otianable, and there was a dear motive.
73 Bosch (African Commission), paras 14 &. 26.74 As above, paras 27 & 28.
164 Chapter Five
According to the Commission's decision, there could be a basis forfinding a violation of articles 4 and 7(1) of the African Charter, if it isshown that the Courts' (the High COllrt and Court of Appeal ofBotswana) evaluation of the facts were manifestly arbitrary oramounted to a denial of justice,75 However, this was not the case. Itshould be noted that a reversal of the presumption of innocence is afundamental violation of article 7(1)(b) of the African Charter. Thepresumption of innocence is essential to ensure a fair trial. 5ince therights under article 7 are mutuaHy dependent, as seen from thejurisprudence of the African Commission, the Commission should havebeen bold enough to find a violatíon of article 7(1). as there was aclear violation of article 7(1)(b) - presumption of innocence -' byplacing the burden of proof on Bosch.
Nevertheless, as seen in aH the cases discussed aboye, with theexception of the Bosch case, the jurisprudence of the AfricanCommission shows that the mere appearance of partiality alone willsuffice to find a violation of the right to be tried by an impartial courtor tribunal. It is a\so clear from the jurisprudence aboye that therights under article 7 are mutually dependent, and where the right tobe heard is infringed, other violations may occur, such as an executionbecoming arbitrary (thus a violation of article 4). Violations of article16 may also occur as governments have a duty to provide structuresnecessary for the exercise of the right to be tried by an independent(and impartial) court. In some of the cases above, the Commissionalso found a violation of article 4 of the African Charter, whichguarantees the right to life, on the grounds that the executions werecarried out after a trial that violated article 7 of the Charter, thusrendering the deprivation of life arbitrary.76
Thus, the Commission has taken an approach similar to that of theUN Human Rights Committee with regard to the relation between theright to life and fair trial rights. As discussed above, the Human RightsCommittee is of the view that the imposition of the death penaltyfollowing an unfair trial is a breach not only of procedural standardsbut also of the right to life. 5imilarly, as seen in AmnestyInternatianal and Others v Sudan and Internatianal Pen and Others(on behalf af Saro-Wiwa) v Nigeria, the Commission is of the opinionthat an execution after an unfair trial also constitutes a breach ofarticle 4 of the African Charter.77
75 As above, para 29,76 See, for example, Internationa/ Pen and Others (on behalf of Saro-Wiwa) v
Nigerio. (ommunication 137/94, 139/94, 154/96 and 161/97, 12th AnnualActivity Report: 1998-1999; (2002) AHRLR 212 (ACHPR 1998), para 103 tt Amnestyfnternational and Others v Sudan, Communications 48/90, 50/91, 52191, 89/93,13th Annual Activity Report: 1999-2000; (2000) AHRLR 297 (ACHPR 1999), paras47-52.
77 As aboye.
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Falr trial rights and thelr relation to the death penalty in Africa 165
The Commission has had more impact where the issue of the deathpenalty has been raised on procedural grounds than in relation to theright to life. Its decisions on fair trial rights have been progressive,and can be seen as procedural benchmarks in capital cases. TheCommission normally recommends a remedy, which could be that thecomplainants be released in cases where they have not yet beenexecuted; that the government annuls decrees that lead to theimposition of the death penalty without respect for due processrights, or that the government concerned put an end to the violationsin order to abide by its obligations under the Charter. However,implementation of the decisions of the Commission depends largelyon the political will of African states. Nonetheless, since imposition ofthe death penalty following an unfair trial is a breach of bothprocedural standards and the right to life, it is imperative for statesthat cannot respect fair trial standards to consider abolishing thedeath penalty, as increased concern about its use in Africa is as aresult of it being imposed after unfair trials.
4 Fair trial rights in African national constitutions
Fair trial rights have been enumerated in the national constitutions ofmost African states. For example, articles 19 and 20 of theConstitution of Ethiopia 1995; section 32 of the Constitution of theRepublic of Sudan 1998; article 13 of the Constitution of Tanzania1995; article 18 of the Constitution of Zambia 1996; the Preamble ofthe Constitution of the Republic of Cameroon 1996; sections 35 and36 of the Constitution of the Federal Republic of Nigeria 1999; section19 of the Constitution of Ghana 1996; section 28 of the Constitutionof Uganda 1995, and section 23 of the Constitution of Sierra Leone1996.78
However, some of these safeguards or standards in nationalconstitutions do not conform to the norms and standards of therelevant UN instruments79 or those at the regionallevel. For example,despite the fact that Sierra Leone has ratified the ICCPR and AfricanCharter, accused persons have no right to a lawyer at the appeal stageof the trial. 80
78 Also, see the Constitutions of the Central African Republic (artides 1 a 3) andDjibouti (artide 10). However, some of the provisions are very inadequate. Itshould be noted that the Constitution of Morceeo 1996 has nothing on fair trialrights. Somalia and SwazHand have no constitution at presento The Constitution ofSomalia was suspended on 27 January 1991. For the seetions of the variousAfriean constitutions that deal with fair trial rights, see Heyns (n 19 aboye) 854855.
79 A Adeyemi (n 33 aboye) 4.80 Stated in the report of the national coordinator of Sierra Leone, Abdul Tejan
Cole, presented at the First lnternational Conference on the Application of theDeath Penalty in Commonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004(see http://www.biid.org/deathpenalty(accessed 30 June 2004).
81
166 Chapter Five
5 Respect for fair trial rights in capital trials in Africa
As long as the existence of the death penalty remains a reality inAfrica, it is imperative that this penalty is imposed only in exceptionalcircumstances, and that fair trial standards for its imposition are metso as to prevent or mitigate the effects of an erroneous death penaltysuch as the conviction of the ¡nnocent. If such fair trial standardscannot be met, the death penalty should not be imposed, since, asmentioned aboye, constitutional due process and elementary justicerequire that the judicial functions of trial and sentencing beconducted with fundamental fairness, especially where theirreversible sanction of the death penalty is involved. Furthermore, asstated above, the UN Genera! Assembly has pointed out in some of itsresolutions the importance of respecting fair trial standards in deathpenalty cases by all countries. 81
To a great extent, increased concern about the use of the deathpenalty in Africa is a reslllt of the fact that capital trials in Africa,more often than not, fall short of these standards. For example, trialsare conducted after excessive delay, and in some cases defendantshave no access to legal assistance and often lack proper defence. Thesubsequent paragraphs examine some of the fair trial nghts, with theaim of showing that they often are not respected in capital cases inthe Legal systems of African states.
5.1 The right to be tried within a reasonable time
The purpose of the right of an accused te be tried within a reasonabletime is to prevent undue and oppressive incarceration prior to trial,to minimise anxiety and concern accompanying public accusation andto limit the possibilities that long delay will impair the ability of anaccused to defend him- or herself. 82 In other words, the object of thisright is to give effect to the principaL right to a substantively fair trial,thus preventing injustice resulting from de!ays. The right of anaccused to be tried within a reasonable time runs throllgh the pretrial, trial and post-trial phases of a tria\. That is, this right relates notonly to the time by which a trial should commence, but also the timeby which it should end and judgment be rendered; and all stages must
Resolution 2393 (XXIII) of 26 November 1968 and Resolution 35/172 of 15December 1980.
82 M Code Trial within Q reasonable time: A short history al recent controversiessurrounding speedy trial rlshts in Canada and the United Stetes (1992) 9. Seealso, N Steytler Constitutional criminal procedure: A commentary an theConstitution o{ the Republic of South Africa (1996) 272.
83
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Fair trial rights and their relation to the death penalty in Atrico 167
take place 'without undue delay' or within a reasonable time.8l
Therefore, to make the right to be tried within a reasonable timeeffective, a procedure must be available in order to ensure that thetrial will proceed 'without undue delay' both in the first instance andon appeal. 84
In establishing whether this right has been víolated (or whetherthere has been undue delay), factors such as the nature andcomplexity of the case, the availability of state resources with regardto the investigation or prosecution of the case, and the kind ofprejudice suffered by the accused have to be considered. 85 The aboyefactors have to be taken into account as it is difficult to establishundue delay, for example, where there are insufficient resources tocarry out investigations, or where the case is very complex, or theaccused has not suffered any prejudice. Hence, delay in itself mightnot amount to a violation of the right to a trial within a reasonabletime. For instance, a case in which an accused had not been broughtto trial two years after his first appearance did not constitute aviolation of the right to a trial within a reasonable time. 86
The right to be tried within a reasonable time is a constitutionalvalue of supreme importance that must be interpreted in a broad andcreative manner.87 Trials heId within a reasonable time have anintrinsic value. If innocent, the accused should be acquitted with themínimum disruption to his social and family relationships. If gllilty,the accllsed should be convicted and an appropriate sentence beimposed withollt unreasonable delay.88
Regrettably, most capital trials in Africa take many years, asaccused persons are not brought before a cOllrt within a reasonabletime. In Sierra Leone, for example, the main problem with capitaltrials is that of massive pre-charge and pre-trial delays, andmoreover, suspects are most often not informed of the reasons fortheir arrest until they are about to be charged in court, contrary to
UN Human Rights Committee, General Comment No 13: Equality befare the caurtsand the right to a fair and public hearing by an independent court established bylaw (artide 14 of the JCCPR), 13 April 1984, para 10, hereinafter referred to asCCPR General Comment No 13.CCPR General Comment No 13, para 10.In a case against Argentina, the lnter-American Commission on Human Rights haslaid down three criteria to be used to determine what constitutes a reasonabletime, name(y the duration of imprisonment; the nature of the acts that led tocriminal proceedings; and the difficulties or judicial problems encountered whenconducting trials (see Davidson (n 10 aboye) 288). In this case, the lnter-AmericanCommission, relying on these criteria, found a pre-trial detention period of fouryears in this case not to be an unjustifiable delay in the administration of justice(Case 10.037 v Argentina (1989) lAYHR 52,100). This goes to show that there is noset perlad of time to be considered as unreasonable, as it will depend on thecircumstances of each case.
86 Sonde,son v A-G [1997] 12 BCLR 1675.87 Smyth v Uhsewokunze [1998]4 LRC 120, 129b.88 Re Mlambo (1993) 2 LRC 28 at 34e-f (Supreme Court of Zimbabwe).
94
9D
89 A person arrested for treason, murder or robbery with aggravation may spend anaverage of between three and six months in police custody despite the fact thatsection 17(3) of the Constitution of Sierra Leone 1991 specifically states thatpersons arrested for capital offences have lo be brought befare a court of lawwithin ten days from the date of arresto Report of the national coordinator ofSierra Leone, Abdul Tejan-Cale, presented at the First International Conferenceon the Application of the Death Penalty in Commonwealth Africa in Entebbe,Uganda from 10 - 11 May 2004.International Commission of Jurists 'Zambia: Attacks on Justice' http://www.icj.org/news (accessed 16 May 2004).Section 35(5) of the Constitution of Nigeria 1999.Section 35(4) of the Constitution of Nigeria 1999.Report of the national coordinator of Nigeria, Jude Ita, presented at the FírstInternational Conference on the Application of the Death Penalty inCommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.Amnesty International 'Nigeria: The death penalty and women under the- Nigerianpenal systems' Allndex: AFR 44/007/2004, 10 February 2004.Initial report of Lesotho submitted under article 40 of the lCCPR, UN Doc. CCPR/C/81/Add.14, 16 January 1998, para 101, hereinafter referred to as initial reportof Lesotho,
96 2nd periodic report of MaU, page 25.97 4th periodic report of Morocco submitted under article 40 of the ICCPR, UN Doc.
CCPR/C/15/Add.1, 15 Oetober 1997, para 74, hereinafter referred to as 4thperiodíc report of Moroceo. The aboye time limits are doubled in mattersaffecting state security.
98 As aboye, para 76.
919293
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168 Chapter Ffve
section 17(2)(a) of the Constitution of Sierra Leone 1996.89 In Zambia,trials take very long, often more than three years from the date ofarrest. 90 In Nigeria, section 35(3) of the 1999 Constitution providesthat detained persons have to be informed within 24 hours of theircrime. Such persons shall be brought before a court of law within 24hours if the court is within 40 kilometers from the place of detentionor 48 hours if more than 40 kilometers. 91 Further, the accused has tobe tried within two months from the date of arrest or detention in thecase of a person not entitled to bail or within three months in the caseof a person entitled to bail. 92 However, this is not the case in practiceespecially in cases where a person is suspected of having committeda capital offence. 93 The pre-trial time in detention is rarely less thanfive years in some states and in some cases over ten years. 94 Also inLesotho, although section 12(1) of its Constitution provides that theaccused person be afforded a hearing within a reasonable time, thelaw enforcement agencies more often than not do not comply withthis provision. 95 In Mali, an arrested person is kept in custody for amaximum of 24 hours, which can be extended by 24 hours on writtenauthorisation of the public prosecutor. 96 Similarly, in Morocco, thelength of time a person can be held in custody is limited to 24 hours,which may be extended on the written permission of the crownprocurator. 97 For serious offences, pre-trial detention under article154 Code of Criminal Procedure of Morocco is an exceptional measurerequiring a court order, which may not exceed two months but can berenewed for up to five times. 98 This means that a capital offenderends up spending not less than ten months in detention. In Egypt, the
Fair trial rights and their relation to the death penalty in Africa 169
duration of pre-trial detention is not clear, as the law does notprovide a specific time frame. 99
Trials that take too long can lead to injustice, as it becomesdifficult to procure witnesses owing to the long trials. This has beenthe case in Cameroon where capital trials take very long. Article 106of the Code of Criminal Investigation states that an arrested personmust immediately be brought before a competent authority, but inpractice, persons are held in custody for 24 hours, which can beextended up to three times under article 9 (amended) of the Codeof Criminallnvestigation. 100 Some lawyers in Cameroon have statedthat one of the difficulties they face with regard to capital trials isthe fact that the trials are lengthy, with many adjournments, andthat the consequence of trials not undertaken within a reasonabletime is that it makes it difficult to secure the presence ofwitnesses. 101 It is difficult to guarantee a fair hearing under suchcircumstances.
Such delays are clearly in violation of fair trial rights in the ICCPR,African Charter, national constitutions of the aboye states, and otherUN and African Commission standards for a fair trial. The AfricanCommission held in Pagnoulle (an behalf of Mazou) y Cameraon102that two years without any hearing or projected trial date constitutesa Yiolation of article 7(1 )(d) of the African Charter dealing with theright to be tried within a reasonable time. The Commission's findingwas based on the fact that no reason had been given for the delays.Although the case was not related to the death penalty, it setsprecedence for capital cases.
As can be deduced from the aboye case, the burden is on the stateto justify lengthy detentions or delays in bringing an accused beforea court within a reasonable time. Otherwise such detentions willamount to a yiolation of the right to be tried within a reasonable time.
99 Concluding observatíons of the Human Rights Committee on the 3rd and 4thperiodíc reports of Egypt submitted under article 40 of the ICCPR, UN Doc. CCPR/COI76/EGY, 28 November 2002, para 14.
100 3rd periodíc report of Cameraon submítted under artícle 40 of the ICCPR, UN Doc.CCPR/C/ 102/Add.2, 1 December 1997, paras 30-32, hereinafter referred to as 3rdperiodic report of Cameraon.
101 1became aware of these difficultíes from a discussian with sorne defence tawyersin April 2004 in (ameraan, ín which I asked them of the difficulties theyexperience in preparing capital cases.
102 Pagnoulle (on beha(f of Mazou) v Cameraon, Cammunication 39/90, 10th AnnualActivity Report: 1996-1997; (2000) AHRLR 57 (ACHPR 1997), para 19. See also thefoHowing case: Birindwa and Tshisekedi v DRe, Communication 241/1987 (HumanRights Committee), UN Doc. CCPR/C/37/D/241/1987, 29 November 1989, para13, in which the Human Rights Committee found a violation of article 9(3) of theICCPR because Tshisekedí was nat braught befare a judge within a reasonabletime, thus was nat tried within reasonable tíme. See also Muteba v DRC,Communícation 124/1982 (Human Rights Committee), UN Doc. CCPR/c/221D/124/1982, 24 July 1982, in which the committee found a violatíon of the right tobe braught promptly befare a judge and to be tried within reasonable time.
170 Chapter Five
Based on the jurisprudence of the UN Human Rights Committee incases against sorne African states, for example Senegal and Zambia,these delays also have to be attributable to the accused or to hisrepresentative for them to be justifiable. 103
Sorne of the delays are caused by deficiencies in the criminaljustice systems of various African states. In Ghana, for example, thepolice service is ill-equipped and lacks adequate training. Coupledwith corruption this impacts negatively on the pre-trial phase of thecriminal justice system. 104 In Lesotho, delays are a result of the lackof resources and a shortage of qualified staff particularly at theinvestigative and preparatory stages. 105 Similarly, in the DRC, longpre-trial detention is a result of the lack of funds to bring detaineesto trial, including transporting them to court. 106 In Zambia, theefficiency of the judiciary is doubtful as it is understaffed, with lessthan 15 judges of the High Court serving the entire Pn0pulation ofslightly more than ten million people countrywide.. 07 In Kenya,inadequate forensic technology and expertise within the investigativearm of the police, evidence tampering, the attitude of lawenforcement officers, poor remuneration and working conditionsimpact negatively on the investigation process and this results indelays.108 The justice system in Burundi suffers from a lack ofresources and inadequate training for personne1. 109 The difficultywith respecting the right to be tried within a reasonable time inUganda is that:
[t]he administration of justice in Uganda is painfulLy slow. The Judiciary... lis] understaffed and under funded. It cannot effectively respond tothe rising rate of crime. Courts of judicature are understaffed ... This
103 Koné v Senegal, Communication 386/1989 (Human Rights Committee), UN Doc.CCPR/C/52101386/1989, 27 October 1994, para 8,7. In this Communlcation, thecomplainant had been kept in eustody tor four years and tour months, The HumanRights Committee found thís delay to be incompatible with artide 9(3) of theICCPR owing to the absence of special cireumstances justifying such delay, such asthat there were or had been impediments to the investigatlons attributable to theaccused or his representative, Also, in Chambala v Zambla, Communication 85611999 (Human Rights Committee). UN DOL CCPR/C/78/DIB56/1999, 30 July 2003,para 7.2, the complainant was arrested and detained without charge for 22months. The Human Rights Cornmittee was of the view that since the state hadnat sought to justify this lengthy detention, it was therefore arbitrary and aviolation of artide 9(1) read together with article 2(3) ot the IC(PR.
104 Report of the national coordinator of Ghana, Kristine Lartey, presented at theFirst International Conference on the Applicatlon of the Death Penalty in(ommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.
105 Report af the national coordinator of Lesatho, Mases Owori, presented at theFirst lnternational Conference on the Appllcation of the Oeath Penalty inCommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004,
10& Amnesty lnternational Amnesty International Report (2006) 97.107 Amnesty International 'Zambia: Time tú abolish the death penalty' Allndex: AFR
63/004/2001,18 July 1001.108 Report of the nationa( coordinator of Kenya, Joy Asiema, presented at the Fírst
lnternational Conference on the Application of the Death Penalty jnCommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.
109 Amnesty Intemational (n 106 aboye) 79.
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Falr triaf rights and thelr re/otlan ta the death penalty in Africa 171
problem is compounded by irregular High Court sessions. The Director ofPubllc Prosecutions, which 1S responsible for prosecuting cases, 1Sinadequately staffed and under funded which has contributed to thedelay of [iJustice. "O
When the human rights of individuals are at stake, deficiencies in thecriminal justice system cannot be used to justify violations of suchrights. It is elear from the UN Human Rights Committee's decision inLubuto v Zombio that a state cannot use its economic situation tojustify violations of minimum human rights standards (ineludingviolations of fair trial rights).111 It is imperative that accused personsbe tried within a reasonable time. Delays must not exceed a fewdays, 112 otherwise, they will constitute a violation of the aboye right.
Nonetheless, as long as these deficiencies continue to exist insome African states, it is without doubt that accused persons in suchstates will not receive a fair trial. Thus, considering the irreversiblenature of the death penalty, it is recommended that these statesconsider abolishing the death penalty so as to reduce the risk ofconvicting innocent defendants as a result of deficiencies in theircriminal justice systems.
5.2 The right to be presumed innocent until proven guilty by acourt of law
In any system of criminal justice, the presumption of innocence isfundamental to the protection of human rights. 113 The right to bepresumed innocent until proven guilty by a court of law is directlylinked to the right to be tried within a reasonable time, because togive effect to the former, an accused has to be tried within areasonable time. Respect for the latter right mitigates the tensionbetween the presumption of innocence and the publicity of the trial,thus rendering the criminal justice system more coherent and fair. "4Unfortunately, as seen aboye, the right to be tried without unduedelay has not been respected in some African states, andconsequently the presumption of innocence of an accused person isnot upheld in such cases.
110 Initial report of Uganda, para 242.111 Lubuto v Zambla, Communication No 390/1990, UN Doc. CCPR/C/55/D/3901
1990/Rev.1, 31 October 1995, para 7.3. In this case, the Human Rights Committeefound a period of eight years between arrest and final declsion of the court to beincompatible with the requirements of article 14{3)(c) of the ICCPR.
112 See UN Human Rights Committee, General Comment No 8: Right to liberty andsecurity of persons (article 9 of the ICCPR), 30 June 1982, paras 2-3, hereinafterreferred to as CCPR General Comment No 8. The Human Rights Committee is ofthe opinion that pre·trial detention should be an exception and as short aspossible, thus ensuring conformity with the right 'to trial within a reasonabletime or to release'.
113 See CCPR General Comment No 13, para 7.114 Steytler (n 82 aboye) 273.
172 Chapter Five
The right to be presumed innocent is, however, not respected insome African states, for example, Nigeria, Cameroan and otherCommonwealth African states, as before the trial suspects aretortured and treated as guHty by the police and the society atlarge. 115 No respect for the right to be presumed innocent in acountry like Morocco could be attributed to the fact that there is noprovision for this right in the Constitution or the Code of CriminalProcedure. 116 The UN Human Rights Committee has expressedconcern over this, and recommended that the government adoptappropriate legislation so as to guarantee the presumption ofinnocence, as required under artide 14(2) of the ICCPR. 117
Since the burden is generally on the prosecution to prove the guHtof an accused person, a court has to conduct the trial without formingan opinion on the guilt or innocence of the accused in advance. Ittherefore follows that the right to be presumed innocent by a court01 law requires that the respondent state, lor instance, should notmake open statements prior to and during the trial in pressconferences or at public gatherings regarding the guilt of the accused.In Internatianal Pen and Others (on behalf af Saro-Wiwa) v Nigeria,the Alrican Commission found the government of Nigeria to be inviolation of the right to be presumed innocent under artide 7(1 )(b) ofthe Alrican Charter because the government pronounced the accusedguHty of the crimes in question at various press conferences andbelore the UN. 118
In addition, the requirement that an accused be released on baHpending trial is important, as it gives effect to the right of everyaccused to be presumed innocent untH proven guilty according tolaw. 119 Yet the granting of baH is severely restricted in many cases.Generally speaking, in most jurisdictions in Africa it is rare for aperson accused 01 a capital offence to get baH, for, despite theprovisions lor baH, judges are often reluctant to grant baH in capital
cases. Examples of this can be seen in Cameroon120 and in Uganda. 121
Section 23(6)(a) 01 the Ugandan Constitution (1995), which deals with
115 Country reports presented at the First International Conference on theApplication of the Death Penalty in Commonwealth Africa in Entebbe, Ugandafrom 10 - 11 May 2004.
116 Concluding observations of the Human Rights Committee on the 4th periodicreport of Moroceo submitted under article 40 of the ICCPR, UN Doc. CCPR/C1791
117 Add.l13,l November 1999, para 18.As aboYe.
118 Internationa{ Pen and Others (on behalf of Saro-Wiwa) v Nigeria, Communication137/94, 139/94, 154/96 and 161/97, 12th Annual Activity Report: 1998-1999;(2002) AHRLR 212 (ACHPR 1998), para 96.
119 Artiele 7(1)(b) of the African Charter. The African Charter is silent on the issue ofbail but it is suggested that the entitlement to baH can be read into the right tobe tried within a reasonable time (article 7(1)(d) of the Charter) and the right toliberty and security of the person (articte 6 of the Charter), read together witharticle 9(3) of the ICCPR. The African Comrnission has recognised the right to baHin the Principles and Guidelines on the Right to a Fair Trial and Legal Aid in Africa.
fDir trial rights ami their re/atfan to the deatfJ penalty in Afrfca 173
baH, uses the word 'may', which implies that baH can be denied.Worst 01 aH, the Ugandan military courts do not accord accusedpersons baiL; the~ are detained untiL such time as the court is readyto hear the case. 22 This amounts to a violation 01 the right to libertyof accused persons and their right to be presumed innocent. InLesotho, baH can be refused where an accused is charged with capitalmurder, unless the accused adduces evidence that satislies the courtthat exceptional circumstances exist, which in the interest 01 justicepermit his or her release. 123 However, it is not clear what isconsidered to be in the 'interest of justice' and the criteria used todetermine this.
Further, bail can be relused to persons charged with murder andtreason in Ghana. 124 As seen in the cases below, the courts have beenlenient in applying this provision. It would appear that where it canbe established that there has been, or would be, unreasonable delayin bringing an accused to trial, or where the applicants allege, withoutany objection lrom the prosecution, that they did not commit theoffence in question, baiL can be granted. In Republic v Arthur, 125 theapplicants, who had been charged with murder, filed for baH pendingtrial, arguing that there was no likelihood 01 their case being heardwithin a reasonable time. The Court held that what constituted anunreasonable time had. to be determined within the particularcontext, and therefore dismissed the application on the grounds thatthe applicants had faiLed to show that there had been unreasonabledelay in bringing them to trial. Also, in Prah ond Others v TheRepublic,126 the applicants, who had been charged with murder,applied for baH on the grounds that they had not committed theoffence. The Court heId that, although under section 96(7)(a) baHcould not be granted, the applicants could be granted bail, as the
120 Thls was brought to the author's attention durir.g research conducted by theauthor in AprH 2004 1n Cameroon, when defence lawyers were asked about theposition in law rcgarding the granting of baH to those accused of capital offences.Section 118{1) of the Crimina! Procedure Ordinancc makes provision for baH in aHcriminal cases.
121 Report of the national coordinator of Uganda, Emmanuel Kasimbazi, presented atthe First Internationa\ Conference on the Application of the Death Penalty inCommonwealth Africa.
122 In¡tial report of Uganda, para 296.123 Criminal Procedure and Evidence Act No 10 of 2002.124 $ection 96(7)(a) of the Criminal Procedure Code of Ghana (Act 30) 1960. Murder
and treason are punishabte bydeath under Sections 46 &. 180 of the Criminal Codeof Ghana 196D respectively. See atso artlde 21 (d)(i) of the Constitution of Uberia1984.
125 Republic v Arthur (1982-83) G.L.R. 249.126 Proh and Otners v The Republic (1976) 2 G.L.R. 278.
174 Chapter Five
prosecution did not oppose the affidavit in which the applicantsdenied committing the crime. 127
In other jurisdictions, bail is refused to those charged with capitaloffences regardless of the fact that the law makes provision for it. Forexample, despite the provision for bail in section 71 of the CriminalProcedure Act 1965 of Sierra Leone, it has become standard practicenot to admit to bail persons accused of treason, murder or aggravatedrobbery, which are capital offences. 128 In Sudan, bail is prohibited forcrimes punishable with the death penalty, provided that, if the arrestcontinues for more than six months the record is submitted to thehead of the Judicial Authority, who then makes whatever order isdeemed appropriate. 129 This provision is open to abuse, as it does notspecifya list of the appropriate measures that can be made.
In a nutshell, the refusal of bail to accused persons in capital casescould impact negatively on the right of accused persons to bepresumed innocent. The situation is exacerbated by the deficienciesin the criminal justice systems.
5.3The right of an accused to have adequate time for thepreparation of his or her defence
The right of an accused to have adequate time for the preparation ofhis or her defence implies that an accused should have access tomaterials necessary for the preparation of his or her defence. 130 Whatconstitutes adequate time depends on the circumstances of eachcase, but the facilities must include access to documents and otherevidence that the accused requires to prepare his or her case, as wellas the opportunity to engage and communicate with counsel. 131However, this has not been the case in some African states. In Nigeria,for example, the prosecution is always reluctant to share informationwith the defence lawyers, and in some cases there have beenallegations of the prosecution suppressing information favourable tothe accused .132
The right of an accused to have adequate time for the preparationof his or her defence implies that if the accused is going to be tried inabsentia, he or she has to be notified of the date and place of the
127 As aboye; Dogbe v The Repubffc (1976) 2 G.L.R. 82, with regard to baH in murdercases.
126 Report of the nationat coordinator of Sierra Leone, Abdul Tejan-Cole, presentedat the First International Conference on the Application of the Death Penalty inCornmonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.
1Z9 Section 106(1) of the Criminal Procedures Act of 1991.130 See Guideline N(3) of the African Cornmission's principles and guidelines.131 CCPR General Comment No 13, para 9.13Z Report of the national coordinator of Nigeria, Jude 110, presented at the First
International Conference on the Application of the Death Penalty inCommonwealth Africa in Entebbe, Uganda from 10 - 11 May 2004.
Fair trial rights and their retotioo to th€' death penalty in Africa 175
trial. In Mbenge v Zaire, no steps were taken to inform the accusedbeforehand of the proceedings against him, as required under article14(3)(a) of the ICCPR. m It was alleged that the accused learned ofthe death sentences through the press. 134 The Human RightsCommittee held that judgment in absentia requires that, despite theabsence of the accused, aH due notification has to be made to informthe accused of the trial date and place and to request the accused'sattendance. Otherwise, it amounts to a violation of article 14(3)(b) ofthe ICCPR as the accused, in particular, is not given adequate timeand facilities for the preparation of his or her defence.135
Furthermore, the right of an accused to have adequate time forthe preparation of his or her defence is also related to the right to betried within a reasonable time. The fact that an accused should betried without undue delay does not mean that the accused should notbe given adequate time to prepare his or her defence or does notpreclude the carrying out of a full investigation. In Uganda, in 2002,two soldiers were executed after an emergency field court martial,which reportedly lasted just two hours and 36 minutes, and did notallow for a full investigation of circumstances surrounding thecase. 136 It cannot be said that the trial of the soldiers was fair withouta fuH investigation into the circumstances of the case, which couldhave revealed information that could have been relevant in decidingthe case.
5.4 The right to a fair hearing by an independent and impartíalcourt established by law
The right to a fair hearing by an independent and impartíal courtestablished by law means that aH parties before the court have to besubjected to the same standards of hearing. This will enable everyonebefore a court to have a fair hearing, without any discrimination.Nevertheless, it should be noted that the true test of fair hearing in agiven case is whether, from the observatíon of a reasonable personpresent at the trial, justice has been done. 13?
In order to clarify the aboye right, provided for under article7(1 )(d) of the African Charter, the African Commission adopted the
133 Mbenge v ZaiTe, Communication No 16/1977, UN Doc. CCPR/C/18/D/16/1977, 25March 1983.
134 As aboye, para 2.2.1]5 As aboye. lhe Human Rights Committee atso found the aboye circumstance to be
in violation of article 14(3)(d), as the accused could not defend himself throughlegal assistance of /lis choice, and artide 14(3)(e), as the accused did not hayethe opportunity to examine, or have examined, the witnesses against h1m and toobtain the attendance and examination of witnesses on his behalf.
136 Amnesty International Amnesty International Report (2003) 258.137 M Owoade 'Sorne aspects of human rights and the administration of criminal
justice in Nigeria' in Bassiouni & Motala (n 33 aboye) 181.
176 Chapter Five
Resolution on the Respect for and Strengthening of the Independenceof the Judiciary.138 In addition, most jurisdictions in Africa haveconstitutional provisions that guarantee anyone charged with acriminal offence the right to a fair hearing by an independent andimpartial court established by law. 139
However, with regard to military and other special tribunals, it isquestionable whether these tribunals can be independent andimpartial. The UN Human Rights Committee has noted that theexistence of military and special courts that try civilians in manycountries could present problems as far as the equitable, impartialand independent admínistration of justice is concerned. 14ü Further,the African Commission's principies and guidelines provide that ifsuch tribunals do not use the duly established procedure of the legalprocess, they shall not be created to displace the jurisdiction of theordinary judicial bodies. 141
Some African states have empowered special or military courts topass death sentences without affording full fair trial safeguards. InSudan, Tunisia, Egypt, Eritrea, Nigeria and Somalia for example(discussed below), capital trials have taken place before specialcourts that could not be seen as competent, independent orimpartial, as the presence of military judges or untrained judges insuch courts raises doubts regarding their independence, competence,and impartiality.
In Sudan, in 2002, special courts in the Darfur region, created in2001 by presidential decree to try offences related to armed banditry,imposed death sentences alter summary trials under military judgeswhere the accused were frequently denied lawyers. 142 The fact thatthe special courts were created by presidential decree raisesquestions regarding their independence. Therefore the rulings ofthese courts (already stated aboye) could not be seen as impartial. 143
In 2004, special criminal courts in the Darfur region continued toimpose death sentences after summary trials that failed to meet fair
138 Resolution on the Respect for and Strengthening of the Independence of theJudiciary, 19th session in üuagadougou, Burkina Faso, 26 March - 4 April1996 (seealso Heyns (n 19 aboye) 558). See also 9th Annual Aetivity Report: 1995-1996,Annex V at 5.
139 See, for example, artide 4 of the Constitution of Burkina Faso 2000, arUcle42(2)(f)(i) of the Constitution of Nigeria 1999, artide 19 of the Constitution ofToga 1992, and articte 18(2) of the Constitution of Zimbabwe 2000.
140 CCPR General Camment No 13, para 4. The Committee's doubt about theimpartiality and independenee of these courts stems from the faet that quiteoften the reason for their establishment is to enable exeeptionaL procedures to beappLied that do nat eomply with normal standards of justice.
141 Guideline A(4)(e), African Cammission's principles and guidelines.142 Amnesty lnternational (n 136 aboye) 233. It should be noted that the imposition
of the death sentences by the special courts is a violation of artide 4 of theAfrican Charter, especially if the accused are, or were, subsequently executed.
143 As aboye, 252.
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Fair trial rights and their retatlan to the death penalty in Africa 177
trial standards. 144 The aboye raises questions regarding the Sudanesegovernment's commitment to respecting its duties under article 26 ofthe African Charter, which gives state parties the duty to guaranteethe independence of courts. As discussed aboye, the AfricanCommission, in Amnesty International and Others v Sudan, has foundsuch tribunals to be in violation of article 7(1 )(d), first, by reason oftheir composition, and second, on the basis that the government'sdismissal of judges opposed to the formation of these courts deprivescourts of the personnel qualified to ensure that they operateimpartially, thus denying individuals the right to have their case heardby an impartial and independent body.145 Similarly, the AfrícanCommission has found the establishment of military courts and specialtribunals in Nigeria to be in violation of article 7(1 )(d) of the AfricanCharter due to their composition. 146
Furthermore, capital trials take place in Egypt before exceptionalcourts such as state security courts, established under emergencylegislation, in which trial procedures fall short of international andregional fair trial standards. 147 For example, it is not possible fordefendants before such courts to have a fair trial as they do not havethe right to a full review before a higher tribunal, amounting to aviolation of article 14(5) of the /CCPR, which Egypt has ratified. Thefact that these courts are established by emergency decree castsdoubts on their independence. The Human Rights Committee hasnoted that the independence of military and state security courts inEgypt is not guaranteed. 148 Also, 5hari'a court trials in Nigeria and
144 See generalty, Amnesty International Amnesty fnternatfona/ Report (2005).145 Amnesty International and Others v Sudan, Communications 4B190, 50/91, 52191,
89/93, 13th Annual Activity Report: 1999-Z000; (ZOOO) AHRLR Z97 (ACHPR 1999).para 68-69.
146 Constitutional Rights Project (in respect af Lek-wot and Others) v Nigeria,Communication 87/93, 8th Annual Actjvity Report: 1994-1995; (2000) AHRLR 183(ACHPR 1995), para 14; Constitutional Rights Project (in respect Df Akamu andOthers) v Nigeria Communication 60/91, 8th Annual Activjty Report: 1994-1995;(ZOOO) AHRLR 180 (ACHPR 1995). para 12; International Pen and Others (on behalfaf Saro-Wiwa) v Nigeria, Communication 137/94, 139/94, 154/96 and 161197,1Zth Annual Activity Repart: 1998-1999; (200Z) AHRLR Z12 (ACHPR 1998). para 90.For further djscussion of this right and how it has been addressed by the AfricanCommission and the ¡nter-American Commission, see R Barnidge 'The AfricanCommissjon on Human and Peop!es' Rights and the Inter-American Commission 00Human Rights: Addressing the right to an impartial hearing on detention and trialwithin a reasonable time and the presumption of jnnocence' (2004) 4 AfrlcanHuman Rights Law Journall08.
147 See generaLty, Amnesty International (n 144 aboye).148 Concluding observations of the Human Rights Committee on the 3rd and 4th
periodic reports of Egypt submitted under article 40 of the ICCPR, UN Doc. CCPRIC0176/EGY, 28 November 2002, para 16(b). Also in Eritrea, trials befare specialcourts are unfair, with the accused having no right la defence counsel. Jt is alsounlikely that such special courts could be independent, competent and impartialowing to the presence of military judges, which is exacerbated by the fact thatthey have tittle or no legal trainjng {see Amnesty International (n 136 aboye)100). In Somalía in 2004, lslamic and informal clan courts that cannot beconsidered as independent and competent continued to impose the death penalty(see generally, Amnesty Internationa\ (n 144 aboye).
1;176 Ch' '"
~ternational fair trial standards as they, basic rights such as the right to a lawyer'l they have imposed the death penalty
Josentia. 149
A,dependence of the judiciary is questionable inJ.Jntries. For example, the Human Rights Committee
,_"d concern at the judiciary's lack of independence in the,.,c'of Congo, first on account of the lack of any independent
.c¡(anism responsible for the recruitment and discipline of judges,ánd second, the many pressures and influences, including those of theexecutive branch, to which judges are subjected. 150 The Committeefound this to be in violation of article 14(1) of the ICCPR andrecommended that the government take appropriate steps to ensurethe independence of the judiciary, in particular, by amending therules coneerning the eomposition and operation of the SupremeCouncil of Justice and its effective establishment. 151 The Committeehas also expressed concern over the independence of the judiciary inSudan, stating:
The Committee is eoneerned that in appearance as well as in faet thejudiciary is not truLy independent, that many judges have not beenseLeeted primariLy on the basis 01 their LegaL quaLifieations, that judgesean be subject to pressure through supervisory authority dominated bythe Governrnent ... 152
Thus, if the independence or impartiality of the judiciary is notguaranteed, it is very unlikely that defendants will receive a fair trial.As a result, it is imperative that retentionist African states considerabolishing the death penalty, a5 it cannot be guaranteed thatdefendants facing such serious and irreversible punishment (the deathpenalty) will receive a fair trial.
5.5The right to be present at the trial
Every accused person has the right to be present at his or her trial.Although the African Charter makes no reference to this right,Guideline N(6)(c) of the African Commission's principies andguidelines provides that in criminal proceedings the accused has theright to be tried in his or her presence. In most African states, for
149 Amnesty Internationat (n 106 aboye) 199 &. 234.150 Conduding observations of the Human Rights Commfttee on the 2nd periodic
report of Congo submitted under artide 40 af the ICCPR, UN Doc. CCPR/C/791151 Add.118, 27 March 2000, para 14.
As above.152 Conduding observations of the Human Rights Cammittee on the 2nd periodic
report of Sudan submitted under article 40 of the ICCPR, UN Doc. CCPR/C/791Add.85, 19 November 1997, para 21.
-
Fair trial rights and their relation to the death penalty in Africa 179
example in Egypt, Gabon and Sudan, there is provision for an accusedto be present at the trial. 153
Generally, an accused person can be removed from the courtroom during the trial on account of his or her misconduct, and thecourt can proceed with the trial in his or her absence. 154 It should benoted that an accused person may voluntarily waive the right to bepresent at his or her hearing. 155
An accused person may not, however, be tried in absentia. 156
Nevertheless, the UN Human Rights Committee has noted thatproceedings in absentia are in some circumstances (for instance,when the accused person, although informed of the proceedingssufficiently in advance, declines to exercise his or her right to bepresent\ ~ermissible in the interest of the proper administration ofjustice. 5 Where an accused person does not waive this right, anytrial in absentia will not only be a violation of the right to be tried inhis or her presence, but also a violation of the right to have adequatetime for the preparation of his or her defence, the right to legalrepresentation, and the right to examine witnesses.
In Mbenge v Zarre, discussed aboye, no steps were taken to informthe accused beforehand of the proceedings against him, as requiredunder article 14(3)(a) of the ICCPR. It was alleged that the accusedlearned of the death sentences against him through the press, andthat the judicial authorities of his country neither summoned him toappear nor allowed him to defend himself or have a lawyer to defendhim. 158 The Human Rights Committee held:
Judgment in absentia requires that, notwithstanding the absence af theaccused, all due natificatian has to be made to inform him of the dateand place of his trial and to request his attendance. Otherwise, theaccused, in particular, is not given adequate time and facilities for thepreparation of his defence (article 14(3)(b)), cannot defend himselfthrough legal assistance of his own choosing (article 14(3)(d) nor doeshe have the opportunity to examine, or have examined, the witnessesagainst him and to obtain the attendance and examination of witnesseson his behalf (article 14(3)(e») ... In the view of the Committee,
153 See combined 3rd and 4th periodic reports of Egypt submitted under article 40 ofthe ICCPR, UN Ooc. CCPR/C/EGY/2001/3, 15 April 2002, para 404(d), hereinafterreferred to as combined 3rd and 4th periodic reports of Egypt; 2nd periodicreport of Gabon submitted under article 40 of the ICCPR, UN Doc. CCPR/C/1281Add.l, 14 June 1999, para 32 (hereinafter referred to as 2nd periodic report ofGabon); and 2nd periodic report of Sudan submitted under article 40 of theICCPR, UN Doc. CCPR/C/75/Add.2, 13 March 1997, para 115(h), hereinafterreferred to as 2nd periodic report af Sudan.
154 Far exampte, this is the case in Kenya (see W Mutungu The r;ghts of an arrestedand an accused persan (1990) 57).
155 Guideline N(ó)(c)(3), African Commission's principles and guidelines.156 Guidetine N(6)(c)(2), African Commission's principles and guidelines.157 Mbenge v Zafre, Communication No 16/1977 (Human Rights Committee) UN Doc.
CCPR/C/18/D/16/1977, 25 March 1983, para 14.1.158 As aboye, para 2.2.
178 Chapter Five
Somalia fall short of international fair trial standards as theyfrequently deny individuals basic rights such as the right to a lawyerand in Somalia (Somaliland) they have imposed the death penaltyafter trying an accused in absentia. 149
Generally, the independence of the judiciary is questionable insome African countries. For example, the Human Rights Committeehas expressed concern at the judiciary's lack of independence in theRepublic of Congo, first on accaunt of the lack of any independentmechanism responsible for the recruitment and discipline of judges,and second, the many pressures and influences, including those of theexecutive branch, to which judges are subjected. 150 The Committeefaund this to be in violation af article 14(1) af the ICCPR andrecommended that the government take appropriate steps to ensurethe independence of the judiciary, in particular, by amending therules concerning the composition and operation of the SupremeCouncil of Justice and its effective establishment. 151 The Committeehas also expressed concern over the independence of the judiciary inSudan, stating:
The Committee is eoncerned that in appearanee as well as in faet thejudieiary is not truly independent, that many judges have not beenselected primarily on the basis of their legal qualifications, that judgescan be subjeet to pressure through supervisory authority dominated bythe Government ... 1S2
Thus, if the independence or impartiality of the judiciary is notguaranteed, it is very unlikely that defendants will receive a fair tria!.As a result, it is ímperative that retentionist African states considerabolishing the death penalty, as it cannot be guaranteed thatdefendants facing sueh serious and irreversible punishment (the deathpenalty) will receive a fair trial.
5.5 The right to be present at the trial
Every aceused person has the right to be present at his or her tria!.Although the African Charter makes no reference to this right,Guideline N(6)(c) of the African Commission's principies andguidelines provides that in criminal proceedings the accused has theright to be tried in his or her presence. In most African states, for
149 Amnesty International (n 106 aboye) 199 & 234.150 Concluding observations of the Human Rights Committee on the 2nd periodic
report of Congo submitted under article 40 of the JCCPR, UN Ooc. CCPR/C/79/151 Add.118. 27 Mareh 2000. para 14.
As aboye.152 (oncluding observations of the Human Rights Committee on the 2nd periodic
report of Sudan submitted under article 40 of the ICCPR, UN Doc. CCPR/C/79/Add.B5, 19 Noyember 1997, para 21.
Fair trial rights and the;r relation to the death penalty in Africa 179
example in Egypt, Gabon and Sudan, there is provision for an accusedto be present at the trial. 153
Generally, an accused person can be removed from the courtroom during the trial on account of his or her misconduct, and thecourt can proceed with the trial in his or her absence.154 It should benoted that an accused person may voluntarily waive the right to bepresent at his or her hearing. 155
An accused person may not, however, be tried in absentia. 156
Nevertheless, the UN Human Rights Committee has noted thatproceedings in absentia are in sorne circumstances (for instance,when the accused person, although informed of the proceedingssufficiently in advance, declines to exercise his or her right to bepresent\ ~ermissible in the interest of the proper administration ofjustice. 5 Where an accused person does not waive this right, anytrial in absentia will not only be a violation of the right to be tried inhis or her presence, but also a violation of the right to have adequatetime for the preparation of his or her defence, the right to legalrepresentation, and the right to examine witnesses.
In Mbenge v Zai"re, discussed aboye, no steps were taken to informthe accused beforehand of the proceedings against him, as requiredunder article 14(3)(a) of the ICCPR. It was alleged that the accusedlearned of the death sentences against him through the press, andthat the judicial authorities of his country neither summoned him toappear nor allowed him to defend himself or have a lawyer to defendhim. 158 The Human Rights Committee held:
Judgment in absentia requires that, notwithstanding the absence of theaccused, all due notification has to be made to inform him of the dateand place of his trial and to request his attendance. Otherwise, theaccused, in particular, is not given adequate time and facilities for thepreparation of his defence (artide 14(3)(b)), cannot defend himselfthrough legal assistance of his own choosing (artide 14(3)(d)) nor doeshe have the opportunity to examine, or have examined, the witnessesagainst him and to obtain the attendance and examination of witnesseson his behalf (artide 14(3)(e)) ... In the view 01 the Committee,
153 See combíned 3rd and 4th periodic reports of Egypt submitted under article 40 oflhe ICCPR, UN Doc. CCPR/C/EGY/Z001/3, 15 April ZOOZ, para 404(d), hereinafterreferred to as combined 3rd and 4th periodic reports of Egypt; 2nd periodicreport of Gabon submitted under article 40 of the ICCPR, UN Doc. CCPRICl12BIAdd.1, 14 June 1999, para 32 (hereinafter referred to as 2nd periodíc report ofGabon); and 2nd perlodic report of Sudan submitted under article 40 of theICCPR, UN Ooc. CCPR/CI75/Add.Z, 13 March 1997, para 115(h), herein'!lerreferred to as 2nd periodic report of Sudan.
154 For example, this is the case in Kenya (see W Mutungu The rights Df an arrestedand an accused person (1990) 57).
155 Guideline N(6)(c)(3), African Commission's principles and guidelines.156 Guideline N(6)(c)(2), African Cornmission's principles and guidelines.157 Mbenge v Zorre, Cornmunication No 16/1977 (Human Rights Cornmittee) UN Doc.
CCPR/C/18/D/16/1977, Z5 March 1983, para 14.1.158 As aboye, para 2.2.
180 Chapter Five
therefore, the Sate party has not respected Q. Monguya Mbenge's rightsunder artiele 14(3)(a), lb), (d) and (e) of the Covenant. 1S9
5.6 The right to legal assistance and proper defence
The ríght to legal assistance (representation) and proper defence isvery important, as it is central to the realisation of a fair trial. Theright to counsel is a fundamental pillar of the administration ofjustice. 160 This ríght guarantees accused persons three rights: Todefend themselves ín person, to defend themselves through legalassistance of their choice, and, in certain conditions, to be given freelegal assistance. Generally, free legal assistance is dependent on theinterest of justice and insufficient means to procure the services ofcounsel. However, the term 'ínterest of justice' is vague and thereare no generally accepted established criteria to determine if it is inthe interest of justice that an accused person be given legal aíd, thusleaving the right to legal assistance open to abuse.
The constitutions of sorne African states explicitly provide that anaccused person be provided with legal representation at state orpublic expense if he or she cannot afford one. For example, artiele20(5) of the Constitution of Ethiopia 1995 provides that if an accusedcannot afford legal counsel and miscarriage of justice will result, theaccused has to be provided with legal representatíon at the expenseof the state. 161 Artiele 24(3)(d) of the Constitution of The Gambia2001 is more specific as it states that if an accused is charged with acapital offence, the accused shall be entitled to legal representatíonat the expense of the state. 162
In addition, the UN Human Rights Committee has stated that incapital trials 'unavailability of legal aid amounts to a violation ofartiele 6 juneta artiele 14 of the Cavenant' .163 Unavailability of legalaid will also amount to a violation of artiele 7(1 Hc) of the AfricanCharter. However, as seen below, capital trials have beenconducted in some African states in which the accused had no legalrepresentation, was refused representation, or was provided withinadequate defence counsel.
159 As aboye, paras 14.1-14.2.160 MFinketstein The right to counsel (1988) 1-1.161 See abo, article 42 (2)(f)(v) of the Constitution of Malawi 2001.162 Upon ratification of the ICCPR, The Gambia entered a reservation in respeet of
article 14(3)(d) to the effect that 'for financial reasons free legaL assi.stance foraccused persons is timited in our constitution to persons charged with capitaloffences only'. See Heyn:> (n 19 aboye) 53. Article Z8(3)(e) of the Constitution ofUganda 1995 has a similar provision with regard to capital offences.
163 Conduding ob"ervations of the Human Rights Ccmmittee on the 2nd periodicreport of Jamaica submitted ur¡der artide 40 of the fCCPR, UN Dcc. CCPR/C1791Add.83, 19 November 1997, para 14.
Fair trial rights and their relation to the death penalty in Africa 181
It is undisputable that capital trials are very expensive and thatmost people charged with capital offences cannot afford the fees ofexperienced counsel. As a result, they are assigned inexperiencedcounsel or articled clerks who are not well versed with the issues incapital trials. Without effective representation, an accused canhardly be said to have had a fair trial. 164 For example, in 2003 inSudan, 24 people were sentenced to death by a special court in whichthey were tried without adequate legal representation. 165 No accessto lawyers in Sierra Leone prevented ten people sentenced to deathin December 2004 from lodging an appeal. 166 This constitutes aviolation of articles 6 and 14 of the ICCPR and article 7(1 )(c) of theAfrican Charter.
The right of an accused to legal assistance requires that thecounsel representing the accused should not be intimidated orharassed during the trial. Intimidation and harassment of counsel tothe extent that they withdraw from a case would amount to aviolation of this right. 167 If after such withdrawal, the accused is notgiven the opportunity to procure the services of another counsel, theaccused's right to be represented by counsel of his or her choice isviolated. 168
Furthermore, the right of an accused person to legal assistanceentitles the accused to proper defence. The African Commission'sprincipies and guidelines provide that the lawyer appointed shall bequalified to represent and defend the accused and shall have thenecessary training and experience corresponding to the nature andseriousness of the matter. 169 The UN Special Rapporteur onextrajudicial, summary or arbitraryexecutions has reiterated that 'alldefendants facing the imposition of capital punishment have tobenefit from the services of a competent defence counsel at everystage of the proceedings' .170 However, in some African states likeBotswana and Malawi, as seen below, inexperienced lawyers havedefended capital offenders.
164 J Hatchard & S Coldham 'Commonwealth Africa' in P Hodgkinson & A Rutherford(eds) Capital punishment: Global issues and prospects (1996) 164.
165 Amnesty lnternational, 'Sudan: 24 sentenced to death after unfair trial' J Al Index:AFR 54/027/2003, 29 April 2003. Also, in Nigeria, a Shari'a court in Bauchisentenced Jibrin Babaji to death by stoning on 14 September 2003 after a trial inwhich he was not represented by a lawyer (Amnesty International AmnestyInternationaf Report (2004) 68),
166 Amnesty International (n 106 aboye) 228.167 See Constitutional Rights Project (in respect of Lekwot and Others) v Nigeria,
Communication 87/93, 8th Annual Activity Report: 1994-1995; (2000) AHRLR 183168 (ACHPR 1995), para 12.
As aboye.169 Guideline H(e)(1) and (2), African Commission's principles and guidetines.170 Report by the Special Rapporteur on extrajudicial, summary or arbitrary
executions, UN Doc. E/CNA/1997/6D, Z4 December 1996, para 81.
182 Chapter F;ve
In Botswana, forexample, Kobedi, a South African, was sentencedto death and executed in July 2003 after a trial that did not meet thestandards for a fair trial. 171 Kobedi was represented, in his originalhearing, by a lawyer who was unfamiliar with the trying of deathpenalty cases, and who failed to raise important legal and factualissues on his behalf. Owing to the fact that his lawyer did not have thenecessary training and experience corresponding to his case, Kobedicould, therefore, not be said to have benefited from the services of acompetent defence counsel at every stage of the proceedings asrequired under international human rights law.
Likewise, in Malawi, sorne defence lawyers are inexperienced andlack the necessary resources to enable them prepare their cases. In2002, the Malawi Legal Aid Department had seven lawyers, includi~
three new graduates with no experience in handling capital cases. 1
The lawyers lacked up to date law books, had problems withtransport, and had neither the time nor budget for tracing andinterviewing witnesses. 173 These lawyers cannot be said to be in aposítion to offer proper defence.
In addition, the remuneration given to sorne defence lawyersaffects their ability and commitment to defend an accused personeffectively, thus not fully affording an accused person the right tolegal assistance and proper defence. In Republic v Mbushuu andAnother, it was stated that most poor persons in Tanzania do notobtain good legal representation, as lawyers on dock briefs, who arepaid very tittle, defend them. As a result of such poor remuneration,the defence counsel may not exert enough effort in such a case. 174 Asa result, it is likely that most poor persons in Tanzania on capitalcharges will be sentenced to death as the lawyers do not make enougheffort in their cases. In such cases, the defendants' right to legalassistance and proper defence is violated. Similarly, owing toresource constraints in Botswana, the amount paid to state-fundedlawyers is minimal, and often the result is that lawyers who lack theskills, resources and commitment to handle such serious mattershandle most pro deo cases. 175
171 See Hands Off Cain, The death penalty worldwide: 2004 report (2004) 37-38. Seealso, 'Botswana rushes another South Affican to the gallows' http://www.mg.co.za/content/13.asp?ao=1761 (accessed 16 May 2004).
172 Penal Reform lnternational 'The quatity of justice: Trial observations in Malawi'http://www.penalreform.org/english/dp_malawi.htm (accessed 16 May 2004).
173 As aboye.174 Republic v Mbushuu and Another (1994) 2 LRC 335 353_ hereinafter referred to as
Mbushuu (1994).175 Ditshwanelo - The Botswana Centre for Human Rights 'Ocath penalty in
Botswana' http://www.ditshwanelo.org.bw(accessed 16 May 2004).
Foir trial rights and their relation to the death penalty in Africa 183
5.7The right to appeal to a higher judicial body
An accused person has the right to appeal against his or her convictionor sentence or both. The right to appeal is provided for in article7(1 )(a) of the African Charter and article 14(5) of the ICCPR. ECOSOCsafeguard No 6 requires that anyone sentenced to death shall have theright to appeal to a court of higher jurisdiction, and steps should betaken to ensure that such appeals become mandatory. This right isalso provided for in the national constitutions of most Africanstates. 176 The right to appeal or review to a higher court at theminimum implies the opportunity to have adequate reappraisal ofevery case and an informed decision on it. l77 Of relevance in decidingwhether denial of the right to appeal constitutes a violation of article7(1 )(a) of the African Charter is the severity of the sentence. 178 Thus,denial of the right to appeal in capital trials will amount to a violationof the aboye provision due to the severity of the death sentence.
Despite the aboye provisions, in sorne African states there is noautomatic right of appeal, while in others there is no provision insorne cases for a formal appeal, with sentences merely beingconfirmed or otherwise by a higher body.179 The African Commissionhas found the procedure in special tribunals in Nigeria, wheresentences are subject to confirmation or disallowance by the governorof a state, with no provision for judicial appeal against the decisionsof the tribunals or where courts are prohibited from reviewing anyaspect of the operation of such tribunals, to constitute a violation ofthe African Charter. 180 From the Commission's decision, it is clearthat the governor of a state is not a higher judicial body or'competent national organ' (as stated in the African Charter). Thus,subjecting sentences to confirmation by such a body or others ofsimilar character cannot be seen as a genuine appeal procedure. Theright to appeal is also denied to those convicted of capital offences inother African states. In Burundi, for example, those sentenced todeath by civilian courts do not have the right to a full appeal. 181 Thosewho face trial in Egypt befare exceptional courts, such as 5tatesecurity courts, established under emergency legislation, do not have
176 See, far example, artide 17(7) of the Constitution of Eritrea 1997, artide 20(6) ofthe Constitution of Ethiopia 1995, and artide 42(2)(f)(VII!) of the Constitution ofMalawi 2001.
177 S v Ntuli (1996) 1 BCLR 141.178 Constitutional Rights Project (in respect af Akamu and Others) v Nigeria,
Communication 60/91, 8th Annual Activity Report: 1994-1995; (ZOOO) AHRLR 180(ACHPR 1995), para 13.
179 Hatchard & Coldham (n 164 aboye) 168.180 See Constitutional Rights Project (in respect o{ Akamu ond Others) v Nigeria,
Communication 60/91, 8th Annual Activity Report: 1994-1995; (ZOOO) AHRLR 180(ACHPR 1995), para 13; and Canstitutional Rights Project (in respect af Lekwatand Others) v Nigeria, Communication 87/93, 8th Annual Activity Report: 19941995; (ZOOO) AHRLR 183 (ACHPR 1995), para 11.
181 Amnesty International Amnesty Internationol Report (2002) 63.
184 Chaptl.?r Five
the right to a full review oftheir sentence before a higher tribunal. 182
In Sierra Leone, people have been tried, convicted and executed afterbeing denied the right to appeal to a higher tribunal, which theAfrícan Commission has found to be in breach of article 7(1 )(a) of theAfrícan Charter. 183 In Forum of Conscience v Sierra Leone,184 theexecution of 24 soldiers by a court martial without the right to appealwas found to be in violation of artícle 7(1)(a) of the African Charter,whích provides for the right to appeal. Generally, the Commission'sdecisions emphasise that the rlght to appeal must be respected incases involving serious offences.
Furthermore, the death sentence cannot be carried out until theexpiration of the time for appeal in some African states, for examplein Sierra Leone. 18S In others, despite the existence of a provision forthe right to appeal, those convicted of capital offences have beenexecuted without having been given adequate time to appeal, ordespite the fact that they were stHl trying to appeal, or their appealswere still pending. The aboye amount to a violation of the right toappeal.
In Mansaraj and Others v Sierra Leone,186 the Human RightsCommittee found a violation of article 14(5) of the ICCPR because thecomplainants did not have a right to appeal the convíction by a courtmartial, a fortiori in a capital case. ECOSOC safeguard No 8 prohibitsexecution where an appeal against the death sentence is pending oran appeal for pardon or commutation of sentence is pending. Yet, inChad for example, four men sentenced to death on 25 October 2003after a three-day trial were executed while the defence counsel wastrying to appeal the sentence. 187 This does not only amount to adenial of the right to appeal, but also a violation of the right to a fairtrial.
5.8 The right to seek pardon or commutation
Pardon (clemency) or commutation is the last hope for a prisonerunder sentence of death. In most states, it is exercised by the chief
182 Amnesty lnternational (n 136 aboye) 94 and generally, Amnesty Interflational (n144 aboye).
183 Forum af Con.science v Sierra Leone, Communication 223/98, 14th Annual Acti'lityReport: ZOOO-Z001: (ZOOO) AHRLR 293 IACHPR 2000), para 20.
184 As aboye, See also, fnternationa{ Pen and Others (on behalf o/ Saro-Wiwa) vNigeria, Comrnunications 137/94, 139/94, 154/96 and 161/97, 1Zth Annual
1B5 ~~~i~~lYo~elhr:~a1r¿~~~ ~~drdT~~iJ/~Rs~~/r~ 2L~~~~~~~~~f4J:~~C9o~~, presentedat the Ftrst Internationat Conferenc€ on the Apptication of the Death Penalty inCommonwealth Africa in Entcbbe, Uganda frQm 10 - 11 May 2004.
186 Mansaraj and Others v Sierra L~one, Cornmunicatiolls S,39/1998, 840/1998 a 84111998, UN Doc. CCPR/C/72/D/839/1998, 30 Ju[y Z001, para 5.6.
187 Integrated Regionallnformation Networks (IRIN) 'Chad: First executtons by fjringsquad in more than a decade' http://www.irinnews.org/report.asp?ReportID=37687EtSelectRegion=WesLAfrica aSelectCountrY':::CHAD (accessed 16 May 2004).
Fair trial rights and their relation to the death penalty in Africa 185
executive (the president) of the country in which the death sentencewas imposed. In some states, other bodies could be empowered toexercise pardon or commutation. In Zimbabwe, in addition to thepresident having the power to pardon eonvicted persons or exercisethe prerogative of mercy and commute a death sentence, parliamentis empowered to consider a petition for pardon submitted to it by anoffender sentenced to death. 188 In Libya, ~eneral amnesties areproelaimed by the General People's Congress. 89
The president or other body in charge acts on his or its owninitiative or on the presentation of a petition by the convicted personto be considered for pardon or elemency. Through the exercise ofelemency, a death sentence ean be set aside, which usually takes theform of a deeision to commute the sentence to a lesser punishment.Pardon or commutation is important in that it can be used to mitigatethe harshness of punishment, correct possible errors in the trial or tocompensate for the rigidity of the criminallaw by giving considerationto factors relevant to an individual case for which the law makes noallowance.
The right to seek pardon or commutation is guaranteed underartiele 6(4) of the ICCPR and ECOSOC safeguard No 7. Furthermore,the UN ECOSOC has reeommended that UN member states provide for'mandatory appeals or review with provisions for elemency orpardonin all cases of capital offences' .190 This right is also provided for innational constitutions and laws of African states. 191 For example, inTanzania, a person sentenced to death can appeal to the president tocommute the sentence under section 325(3) of the CriminalProcedures Act of 1985. The president relies on the judgment andnotes of evidence taken during the trial to arrive at a decision. 192
Also, artiele 121(4) of the Constitution of Uganda 1995, dealing withthe prerogative of mercy, gives the president the power, on theadvice of the Advisory Committee on the prerogative of mercy, togrant any person convicted of an offence a pardon either free orsubject to lawful conditions. Artiele 121 (5) requires that, after aperson has been senteneed to death, the trial judge or personpresiding over the eourt or tribunal submits a written report of theease and other relevant information to the Advisory Committee on theprerogative of merey. This Committee consists of the Attorney
188 lnitia! report of Zimbabwe, para 68-70.189 3rd periodic report of Ubya, para 129.190 UN ECOSOC Resolution 1989/64 of 24 May 1989, Implementation of the Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death Penalty, para1(b).
191 See, far example, section 325(3) of the Tanzanian Criminal Procedures Act of1985; and article 121 (1) of the Constitution of Uganda 1995.
192 3rd periodic report of Tanzania submitted under article 40 af the ICCPR, UN Doc.CCPR/C/83/Add.2, 7 Octaber 1997, para 49, hereinafter referred to as 3rdperiodic report of Tanzania.
186 Chapter Five
General, six prominent citizens 01 Uganda (not members 01parliament) appointed by the president, a member of the Ugandanlaw society or District Council.193 The only successlul appeal duringthe past live years has been that 01 Nassur, who had been on deathrow lor 20 years, and was pardoned by the president in 2001. 194 Thefact that the Attorney General is part 01 this Committee, and that thepresident partly controls the process by appointing the six prominentUgandans raises much concern.
The power to grant pardon or commutation is discretionary andthe chiel executive is not obliged to lollow the recommendations 01the Advisory Committee or the trial judge. The extent to which thisdiscretion is exercised is questionable. Further, it should be borne inmind that, generally, the clemency process varies Irom country tocountry. Sorne apply a more generous standard, while others exerciseclemency or pardon on very limited grounds. In sorne African states,the president controls the whole process. In Zambia, the presidenthas total control over the process as he appoints members 01 theAdvisory Committee on the prerogative 01 mercy, is entitled topreside at its meetings and determine the procedure. 195 In Ghana,Lesotho, Uganda and Zimbabwe, the president does not have totalcontrol over the process, as he acts on the advice 01 the AdvisoryCommittee.196 Also in Togo, the granting 01 pardon by the presidentis exercised in the light 01 an opinion given to him by the SupremeJudicial Council. 197
Moreover, in practice, there is very little inlormation as to theextent to which the prerogative is exercised since in most Africanstates the process is shrouded in secrecy. This is a matter 01 concernand altows lor arbitrariness in the exercise 01 clemency and disparityin the granting 01 pardon or clemency.198 The prepared reports areconfidential in Zimbabwe, Zambia and other countries in SouthernAfrica. 199 Despite the aboye, this process is the last hope lor a person
193 Artiele 121 (1) of the Constitution of Uganda 1995.194 Initial report of Uganda, para 139-140.195 Hatchard & Cotdham (n 164 aboye) 169. Also in Kenya and Tanzania.196 Hatchard 8; Coldham (n 164 aboye) 169. See also Initia! report of Zimbabwe, para
68·71.197 3rd periadic report af Toga submitted under artide 40 of the ICCPR, UN Doc.
CCPR/CITGOI2001/3, 5 July 2001, para 110, hereinafter referred lo as 3rdperiodic report of Toga.
198 In additian, the affenders are nat allowed to participate in the merey process.During the First Internatianal Conferenee on the Applieation of the Death Penaltyin Commonwealth Ahica in Entebbe, Uganda, from 10 - 11 May 2004, this was oneof the issues of concern (the author was present al this canference). The InterAmerican Commission on Human Rights has found a viotation of the right to life ina case where the applicant was not given an effeetive and adequate opportunityto participate in the merey process (see Aitken v Jamaica, Case 12.275, Report No58/02, 21 October 2002). This decision ceuld be instructive fer African states,since the prerogative of mercy proeess is shrouded in secreey ín most states with
199 defendants not being offered an opportunity to participate in the process.Hatchard & Coldham (n 164 aboye) 169.
Fair triar rights and the;r relation to the death penalty in Africa 187
sentenced to death and is seen as the last means of correcting judicialerrors. Amnesty International has noted that 'it is an illusion tosuppose that the inherent arbitrariness and fallibility of human justicecan somehow be made right by a process which itself is arbitrary'. 200There is, therefore, a need for the clemency process to be moreaccountable.
Alternatively, pardons are not only an executive issue, as they canbe granted by way of renouncing retribution or pardon from the victimor the victim's family in countries that apply Islamic law. In Libya,renunciation of the right to retribution in return for payment of bloodmoney or for any other reason is equivalent to commutation of thedeath penalty.20 In Sudan, the death penalty can be commuted withthe pardon of the victim or the victim's relatives
iand such pardon
cannot be retracted if made expressly by consent. 02
Nevertheless, it is important to emphasise that respect for thisright reduces the risk of executing the innocent, as any possible errorsin the trial can be corrected.
6 Consequences of failure to respect fair triar rights
The proper administration of justice cannot take place in cases inwhich fair trial rights are not respected. As a result of not respectingfair trial rights in capital cases, the application of the death sentencebecomes discriminatory, disproportionate and arbitrary, the risk ofexecuting the innocent increases, and the death penalty can be usedas a tool of political repression.
However, because of other factors that have a bearing on trials(discussed below), sorne of the aboye consequences, such asdiscriminatory and arbitrary use of the death penalty, still occur incases where fair trial rights are respected. The subsequentparagraphs examine these consequences, and show that since suchconsequences are unavoidable owing to the non-respect for fair trialrights and other factors impacting on trials, it is necessary thatretentionist African states consider abolishing the death penalty.
6.1 Discriminatory and disproportionate use
One of the consequences of not respecting fair trial rights in Africa isthat the application of the death penalty becomes discriminatory,both economically and racially, and disproportionate. The death
200 Amnesty International When the state kills ... The death penalty v human rights(1989) 34.
201 3rd periodic report of Libya, para 129.202 Section 38(1) of the Penal Code of Sudan 1991.
188 Chapter Flve
penalty has been inflicted mostly on the poor, the mentally disturbedand members of racial, religious or ethnic minorities. 203 It is applieddisproportionately to the disadvantaged, that is, those who, for avariety of reasons, are not able to function properly within thecriminal justice system. As noted earlier, it is undisputable thatcapital trials are very expensive and that most people charged withcapital offences cannot afford the fees of experienced counsel. As aresult, they are assigned inexperienced counsel or articled clerks whoare not well versed in the issues of capital trials. Thus, it is more likelyfor the death penalty to be inflicted on a poor than a rich personoConsequently, 'capital punishment' has been interpreted to mean: 'Ifyou do not have the capital, you will get the punishment. ,204
Evidence of racial discrimination in the application of capitalpunishment has been seen in South Africa. In pre-abolitionist SouthAfrica, the death penalty was imposed on a racially differentiaL basisparticularLy in rape cases.20S Death sentences were imposed disproportionateLy on bLack defendants, including those described as'coloureds', by an almost entirely white judiciary.206 Dugard observedthat:
it is impossible to divorce the racial factor from the death penalty inSouth Africa. Df the 2740 persons executed between 1910 and 1975 lessthan 100 were white. No white has yet been hanged for the rape of ablack and only about six whites have been hanged for the murder ofblacks. Furthermore, blacks convicted of murder or rape of whites areusually executed. 207
In addition to the aboye, most blacks in South Africa were too poor tohire a lawyer, so they were given pro deo counsels, who were themost junior members of the bar.208 The poverty of the bLackdefendants thus jeopardised their cases. This was exacerbated by thefact that the burden of proving any extenuating circumstances was onthe accused. Inexperienced advocates are likely to be unsuccessful inpreparing this aspect of the accused's defence. Furthermore, Justice
203 Amnesty lnternational (n 200 aboye) 27. Racial discrimination was one of thegrounds on which the US Supreme Court relied in Furman v Georgia (1972) 408 US238 in ruling the death penalty unconstitutional.
204 By Rev Joseph Lowery, cited in M Meehan 'A dozen reasons to oppose the deathpenalty'http://members.verizon.net/-meehan4/dozen.htmt (accessed 30 December2003).
205 F van Oosten 'Race as a factor in South African criminal justice' (1991) 32Cadicillus 25.
206 For studies in this regard, see, for example, J Dugard Human rights and the SauthAfrican legal order (1978) 127; G Devenish The applicatian of the death penaltyIn Sauth Africa: fts historical and jurfsprudential evolution and background andIts relationship wlth constitutional and polltical reform (1990) 19; M Seleoane
207 The death penalty: Let the people decide (1996) 23-24.Dugard (n 206 aboye) 127.
20B For more informatian on the pro deo system, see Devenish (n 206 aboye) 14 a JMihálik 'Articled clerks, legal aid and capital offenders' (1991 b) 108 South AfrfcanLaw Joumal 721.
Falr triaf rights and their relatjon to the death penalty in Afdca 189
Chaskalson, in support of the fact that the death penaltydiscriminates against the poor, stated in Sv Makwanyane as follows:
Accused persons who have the money to do so are able to retainexperienced attorneys and counsel, who are paid to undertake thenecessary investigations and research, and as a result they are less likelyto be sentenced to death than persons similarly placed who are unableto pay for such services. 209
Evidence of the disproportionate application of the death penalty onthe poor has been revealed in Tanzania. In Republic v Mbushuu andAnother, it was stated that most poor persons in Tanzania do notobtain good legal representation, as lawyers on dock briefs, who arepaid very little, defend them. As a result of such poor remuneration
óthe defence counsel may not exert enough effort in these cases. 21Hence the possibility of most poor persons accused of capital offencesin Tanzania being sentenced to death as the lawyers do not makeenough effort in their cases.
Disproportionate use of the death penalty also results from themandatory nature of the sentence. The mandatory death sentence forthe offence of aggravated robbery in Zambia has been seen asdisproportionate. In Lubuto v Zambia,211 the Human RightsCommittee addressed the issue of the mandatory death penalty foraggravated robbery. 5ince the death sentence for aggravated robberywas mandatory, the author of the communication was convicted andsentenced to death for aggravated robbery despite the fact that noone was killed or wounded during the robbery.21Z The Committeefound this to be in violation of article 6(2) of the ICCPR.213 The deathsentence in this case was di~roportionate, as no one was killed orwounded during the robbery. 14
6.2 Arbitrary application of the death penalty
Capital punishment is a source of controversy among judges who havemoral reservations about the death penalt{ and who are legallyobliged in certain circumstances to impose it. 15 At every stage of theprocess, there is an element of chance, as the outcome is dependentupon factors such as the way the police investigate the case, the waythe prosecutor presents the case, how effectively the accused is
209 S v Makwanyane (1995) 3 SA 391 (CC) para 49, hereinafter referred tD asMakwanyane (1995).
210 Mbushuu (1994) 353.211 Lubuto v Zambia, Communication 390/1990, UN Doc. CCPR/C/55/DI390/19901
Rev.1, 31 October 1995.212 As aboye, para 3.1.213 As aboye, para 7.2.214 Also, the US Supreme Court has found capital punishment to be an excessive,
'dispropDrtionate' penalty for the offenc€ of rape (Caker v Geargia, discussed inR Hood, The death penalty: A worldwide perspective (2002) 84).
215 Deyenish (n 206 aboye) 15.
190 Chapter Five
defended, the personality and particular attitude to capitalpunishment of the trial judge, and if it goes on appeal, the judges whoare selected to hear the appeal. 216 Overall, the outcome is dependenton respect for fair trial rights, and the degree of chance can bereduced if fair trial rights are respected,
Factors such as inadequate legal aid and prosecutorial discretionresult in sorne defendants being sentenced to death and executed,while others convicted of similar crimes are not,217 Therefore, if theright to legal assistance is not fully guaranteed, the application of thedeath penalty becomes arbitrary, as the possibility of escaping thedeath sentence is higher in cases where accused persons haveadequate legal aid than in those where legal aid is inadequate,
Although respect for fair trial rights reduces the element ofchance, it does not eliminate it, as other factors not related to fairtrial rights increase the element of chance, leading to arbitrariness inthe use of the death penalty, For example, domestic and internationalpressure influences the imposition of the death penalty, Furthermore,arbitrariness in the use of the death penalty is exacerbated by thefact that the personal disposition of judges influences sentencing. InSouth Africa, between 1968 and 1988, it was noted that disparity inthe use of the death penalty by individual judges must have beenattributable to the personal disposition of judges. Z18 It was pointedout that the personal attitude of the presiding judge affectedsentencing practice in death penalty cases,219 Personal views onpenal poli96 are an important factor in explaining differingsentences.2 Moreover, people have been sentenced to deathbecause of the divergent views judges hold regarding their role in thereprieve process. The problem has been illustrated in Bruck'sresearch:
The Durban judge oo. told me that, on occasion, he had even imposeddeath sentences to frighten local criminals, while fuUy intending towrite to the Mini5try of Justice to recommend clemency. He didn't knowwhether these death sentences had actually been commuted. He feltsure they had been, but he never inquired. (lf he had, he might havebeen surprised. The judge had informed me that the state presidentcommutes about 80 per cent of the death sentences every year, bul the
216 Makwanyane (1995) para 48.217 E Prokosch 'The death penalty versus human rights' in CouncH of Europe, Death
penalty: Beyond abolition (2004) 29.218 e Murray et al 'The death penalty in the Cape Provincial Division: 1986 - 1988'
(1989) 5 South African Journal on Human Rights 154155.219 For further discussion on this, see Murray et al (n 218 aboye). See also, M
Olmesdahl 'Predicting the death sentence' in M Olmesdahl &. N SteyHer (eds)Criminal justice in South Afrjca (1983) 191.
220 For materials substantiating this point, see J Hogarth Sentencing as a humanprocess (1971) chapters 5, 6 a 7; R Hood a R Sparks Key issues in crimínofogy(1970) chapter 5; and A Bottom(ey Decisions in the penal process (1973) chapter 4(referred to in Murray et al (n 218 above) 164-165).
Fair trial rights and their relation to the death penalty in Africa 191
actual commutation rate last year was just 15 per cent, less than the alifth Df what he believed).221
Similarly, Justice Curlewis, then deputy judge-president 01 theTransvaal Provincial Division 01 the Supreme Court 01 South Afdca,stated that only an ignoramus, or a person with liUle regard lor thetruth, would deny that judicial attitudes towards the death penaltyplay a material role in imposing or not imposing the deathsentence. 222 He went lurther to state that chance determined whowould be sentenced to death and who would noto 223 The life of anaccused, therefore, depended upon the caprice of fate - whether theaccused was tried before an abolitionist judge or one who supportsthe death penalty. 224 In addition, Van Rooyen has stated that it ishumanly impossible to devise guidelines. legislatively or throughappellate judgments, which will elliciently bring about substantialuniformity in the imposition of the death sentence. 225
The abovementioned implies that the imposition of the deathpenalty, even where fair trial rights are respected, is inevitablyarbitrary and unequal. In other words, by respecting fair trial rights,arbitrariness can be reduced but not eliminated.226 In S vMakwanyane, Justice Chaskalson attached much importance to theelement of arbitrariness, stressing that arbitrariness is present inevery trial and not only those carrying the possibility 01 the deathpenalty. He acknowledged the fact that such arbitrariness cannot beeliminated completely, as it is difficult or almost certainly notpossible to design a system that avoids arbitrariness and delays incarrying out the sentence. 227
Also, in Republic v Mbushuu and Another, it was pointed out thatwhat puts the Tanzanian law into disrepute is the fact that the deathpenalty is arbitrary in that mentally ill or insane people are sentencedto death as il they were normal people who committed murder. 228 Asa result 01 the arbitrary use of the death penalty in some Africanstates, as was the case in South Africa, 01 the thousands put on trialfor capital offences, only a small percentage are sentenced to deathby the trial court, and 01 this small percentage, a large number have
221 Cited in Murray et al (n 218 aboye) 167.222 D Curlewis 'Correspondence' (1991) 7 South African Journal on Human Rights
229.223 Curlewis (n 222 aboye) 230.224 E Bertelsmann 'The death sentence: Can it eyer be discretlonary?' (1991) 32
Codicillus 11-12.ZZ5 J van Rooyen 'The criminal judge and the death sentence: Sorne observations on
the v;ews of Mr Justice Curlewis' (1991a) 32 Codicillus 4.116 The exceptionaUy high standard of procedural fairness set by the United States
courts in attempting to avoid arbitrary decisions haye been met with difficulties227 (see Makwanyane (1995) para 56).
Makwanyane (1995) paras 54-55.228 Mbushuu (1994) 355.
192 Chap[E'r FlvE'
their death sentences guashed or substituted with a term ofimprisonment on appeal. 2 9
Generally, arbitrariness cannot be eliminated because theimperfections inherent in criminal trials means that persons similarlyplaced may not necessarily receive similar punishment. 230 Thus,because arbitrariness cannot be eliminated completely, as it isdifficult or almost certainly impossible to design a system that avoidsarbitrariness and delays in carrying out the death sentence, the deathpenalty should be abolished.
6.3 Risk of executing the innocent
Failure to respect fair trial standards in capital trials increases thelikelihood of innocent defenders being sentenced to death andsubsequently executed. This fallibility, which leads to thediscriminatory or arbitrary imposition of the death penalty, alsomakes the execution of prisoners who have been wrongly convictedinevitable. 231 ECOSOC safeguard No 4 provides that 'capitalpunishment may be imposed only when the guilt of the person is basedupon clear and convincing evidence leaving no room for an alternativeexplanation of the facts'. Convictions for capital crimes have to befree of error so as to ensure that an innocent person is not sentencedto death. 232
Respect for fair trial rights mitigates the effects of the deathpenalty, such as conviction of the innocent. For example, the right tolegal representation as discussed aboye requires that defendants beentitled to proper defence. Poor legal representation, in violation ofthis right, increases the likelihood of innocent persons beingconvicted.
In Rf?public v Mbushuu and Another, Mwalusanya J pointed outthat the risk of executing the innocent 'assumes greater proportionswhen one considers the fact that most poor persons do not obtaingood legal representation'; and 'the possibility of a judicial error, for
22q MakwanyanE' (1995) para 48.230 MakwanyanE' (1995) para 45. With regard to imperfections in criminal trials
leading to arbitrariness in the imposition and carrying out of the death sentence,see for example the case of two women in South Africa, Victoria Gwe and SandraSmith, who were both tried for the same offence, with men as co-accused, andsentenced to death. On appeal Victoria Gwe was acquitted on the charge forwhich the death sentence was imposed, while Sandra Smith was executed on 2
231 June 1989 (see Murray et al (n 218 aboye) 169).Amnesty lnternational (n 200 aboye) 31.
232 Despíte the evolving standards of proof, such as DNA testing, the risk of executingthe innocent stiU exists. Notwithstanding the use of DNA testing in the USA, forexample, the mast influential and troubling aspect of the death penalty is thedemanstrabte faHure of the system to convict and sentence only the guilty (see HBedau 'The present situation of the death penalty in the United States' in (ouneil01 Europe (n 217 aboye) 209).
¿
Fair trial rights and their relation to the death penalty in Africa 193
whatever reason, assumes ever greater importance because the deathpenalty is irreversible, [that is] once carried out that is the end of thematter, it cannot be corrected'. 233 With regard to the Tanzaniansystem, he noted that 'the risk of executing the innocent is greatunder the present system because of the nature of legalrepresentation offered' and that 'it is just human nature that ithappens so'. 234
As in the case of arbitrariness in the imposition of the deathpenalty, the risk of executing the innocent can be mitigated byrespecting fair trial rights but cannot be eliminated completely. Thepossibility of error cannot be excluded from any system of justicebecause of certain factors that affect any case that comes before thecourt and that are almost certainly present to some degree in all courtsystems. These factors include the differences that exist between therich and poor, between good and bad prosecutors, between good andbad defence, between severe and lenient judges, between judgeswho favour capital punishment and those who do not, and thesubjective attitudes that might be brought into play by factors suchas race and class. 235 As can be deduced from the aboye, a poorlyprepared defence, missing evidence, coerced confessions, thedefendant's previous criminal record and the attitude of theinvestigators can lead to wrongful convictions.
Therefore, despite the procedural safeguards that have to befollowed before the death penalty is imposed, there is still the chanceof judicial error, leading to the conviction of innocent persons. 236 Thefact that miscarriages of justice have continued to surface means thatthere is always a risk of executing the innocent. This risk isexacerbated by the fact that the death penalty is irreversible. If aninnocent person is unjustly imprisoned, he can be released andcompensated if the error is discovered. Unlike all other criminalpunishments, the death penalty is uniquely irrevocable. lf an innocentperson is killed, the person cannot be brought back to life if it isdiscovered that the person was unjustly executed. The killing of aninnocent person is irreversible, and since there is always the risk ofexecuting the innocent, it is submitted that abolishing the deathpenalty is the only means of ensuring that a person is not unjustlyconvicted and subsequently executed.
Therefore, error cannot be excluded in capital trials. In support ofthis, Justice Chaskalson, in S v Makwanyane, pointed out that
Z33 Mbushuu (1994) 353.234 Mbushuu (1994) 353.235 Makwanyane (1995) para 54.236 For example, notwithstanding the sophisticated legal system of the United
Kingdom and the inbuilt checks and balances in the system of criminal procedure,persons haye been conyicted and executed as a result of judicial error (seeDevenish (n 206 aboye) 13),
194 Chapter Five
'imperfection inherent in the criminal trials means that error cannotbe excluded'. 237 He went further to acknowledge that, 'thepossibility of error will be present in any system of justice and thatthere cannot be perfect equality as between accused persons in theconduct and outcome of criminal trials'. 238 Thus, it is not possible toensure that convictions for capital crimes are free of error.
Furthermore, some supporters of the death penalty, like Van denHaag, have acknowledged the fact that the execution of someinnocent persons is inevitable because judges and juries are humanand fallible. 239 However, he goes further to argue that some innocentpersons have to suffer in order that sufficient guilty persons can beconvicted to provide the general deterrent effect that he believesexecutions provide. 240 In my opinion, Van den Haag, in constructinghis argument, does not take into consideration the rights of theinnocent persons who are to suffer and the fact that the death penaltyis not more of a deterrent than other punishments like lifeimprisonment. 241 If he had done so, it is likely that he would not haveformulated this argumento
Moreover, there is considerable evidence that many mistakeshave been made in sentencing people to death. 242 A remarkablenumber of prisoners on death row have been released after newevidence showed that they were innocent. There have been reportsof persons from countries in Africa, for example, Malawi, beingreleased from prison, sometimes after many years in custody, on thegrounds of their innocence. 243 Also, persons have been sentenced todeath in Uganda and released after many years on grounds of theirinnocence. For example, Mpagi was on death row for 19 years inLuzira Maximum Security Prison for murder. It later turned out thatthe man he was accused of murdering was alive. Mpagi said courtofficials refused to try him in the district where the murder wasalleged to have been committed. His conviction was the result of an
237 Makwanyane (1995) para 54.238 Makwanyane (1995) para 54.139 Hood (n 214 aboye) 137.240 Hood (n 214 aboye) 138241 Justice Chaskalson 1s of the apinion that both the death penalty and life in prisan
are deterrents (Makwanyane (1995) para 123). Also, the Ethiopian Human RightsCauncil has described as flawed arguments that claim the death penalty reducescrime in society, as it has nat been proven that the death penalty reduces crimesmore than other forms of punishment ('Cal! to abalish death penalty in Ethiopia' .;Moil and Guardian, 3 October 2003). Van Rooyen has also stated that the kargument that the death penalty is a unique deterrent can have no credibilityat!:
2" all (Van Rooyen (n 225 aboye) 4). 1Mich1gan State University and Death Penalty Information Centre' Arguments forand against the death penalty' (2000) http://deathpenaltyinfo.msu.edu
243 (accessed 3 October 2003). 'fHood (n 214 aboye) 132. ,
y,'
'11
W11
Fair triat rights and their relation to the death penalty in Africa 195
irresponsible justice system and indillerent investigators. 244 Also, inUganda, a man has been sentenced to death lor electrocuting hiswile, although he did not have electricity in his house at the time thecrime was committed. 245
From the abovementioned, it is indisputable that there is no wayto remedy entirely the occasional mistake that results in theexecution 01 the innocent. Therelore, to maintain the death penaltyin the lace 01 the demonstrable lailures 01 the judicial system toexclude the possibility 01 error or to guarantee that justice will nevermiscarry is unacceptable. Heightening lears that the ínnocent areíncreasingly being victims 01 hangmen and execution squads hasprovoked a debate on the desirability 01 abolishing the death penaltyin Nígeria. 246 In a nutshell, since the capital punishment system isunreliable, the risk 01 executing the innocent precludes the use 01 thedeath penalty, especially since nothing can be done to make amendsil a mistake has been made or once a person has been executed.
6.4 Using the death penalty as a tool 01 polítical repression
Where lair trial rights are lully respected, it is difficult to use thedeath penalty as a tool 01 polítical repression. But where such rightsare not respected, it paves the way lor the death penalty tó be usedto repress political opponents.
Governments in Africa, in an attempt to rid themselves 01 politicalopposition, have directed the death penalty at prominent individualpolitical opponents. Among the cases olten cited in support 01 theaboye are the cases 01 Tsvangirai 01 Zimbabwe, the Chirwas 01 Malawiand that 01 76-year-old Mohamed 01 Sudan. In the cases 01 the Chirwasand Mohamed, lair trial rights were not respected in imposing thedeath penalty. 247
Tsvangirai, an opposition leader 01 the Movement lor OemocraticChange (MOC), together with two others (Ncube, Secretary-General 01the MOC, and Gasela, Spokesman 01 the MOC) was accused 01 treason,an ollence that carries the death penalty in Zimbabwe. 248 Although
244 See M Lacey 'Foes of death penalty making gradual gains in Africa' The New YorkTimes, 20 October 2004; New York Times News Service 'African countries slowtyturnlng against the death penalty' http://www.taipeitimes.com/News/editlarchives/2004/1D/23/2003208105 (accessed 25 October 2004); and W Wairagala'The death penalty in Uganda' http://www.thedeathhouse.com (accessed 10 July2003).
245 New York Times News Service (as aboye).2A6 See E Anaba, 'Law and human righls: Oeath penalty: Options for the government
- Study group' Vanguard (Lagos), 5 November 2004.247 The Chirwa and Mohamed cases are discussed in Amnesty International (n 200
aboveI48-50.248 Hands Off Cain (n 171 aboye) 129.
196 Chapter Five
Tsvangirai was later acquitted,249 the events surrounding the casepoint to the fact that the charge of treason was a means to intimidatean opposition leader. On 13 June 2003, for example, four prisonersconvicted of murder were hanged at the prison complex whereTsvangirai was being held, prompting allegations that Mugabe wasseeking to intimidate his polítical rival. 250
With regard to the second case, Orton Chírwa, the former Ministerof Justice of Malawi, was arrested in December 1981, together withhis wife, and brought to trial in July 1982 on charges of having'prepared, endeavoured or conspired to overthrow the MalawiGovernment by force or other unlawful means'. 251 The trial tookplace before a Traditional Court consisting of five chiefs, who had nolegal training; the defendants were not allowed to call witnesses;rules on the admissibility of evidence were disregarded, and thedefendants were denied the right to legal representation. 252 Theywere convicted and sentenced to death on 5 May 1983, and theNational Traditional Court of Appeallater confirmed the sentences on7 February 1984.253 Owing to an international appeal urging PresídentBanda not to execute the Chirwas, the sentences were commuted tolife imprisonment.254 It is clear from this case, and bearing in mindthat fair trial rights were not respected during the trial, that theChirwas were arrested, tried, convicted and the death sentenceimposed solely to repress them. In addition, the African Commission,as discussed aboye, has found the imposition of the death sentence onthe Chirwas to be in violation of fair trial rights. 255
Concerning the case of Mohamed of Sudan, he was the leader ofthe Republican Brothers Movement that had engaged in non-violentpolitical activities and supported a new approach to Islam. 256 On 5January 1985, Mohamed was arrested along with four other membersof the movement, charged with 'undermining or subverting theconstitution', which is a capital offence, tried on 7 January, and
249 The High Caurt af Zimbabwe acquitted Tsvangirai in Octaber 2004. See'Zimbabwe's Tsyangirai acquitted ot treason' http://www.afrol.cam/artides/14547 (accessed 30 December 2004). The other two accused had been acquittedon 8 August 2003.
250 Hands Off Cain (n 171 aboye) 130.251 Amnesty International (n 200 aboye) 49.252 As aboye.15J As aboye.lS4 Amnesty InternationaL (n 200 aboye) 50.255 See Amnesty Internatianal (on behalf of Orton and Vera Chirwa) v Malawi,
Communications 68/92 and 78/92, 8th Annual Activity Report: 1994-1995; (2000)AHRLR 144 (ACHPR 1995), It should be noted that Orton Chirwa died in prisan,while Vera Chirwa was released after international appeals by the UN Commissionon Human Rights (UNCHR) and Amnesty InternationaL
2S6 This movement had distributed leaflets calling tor the repeal of Islamic lawsintroduced in 1983, appealing tor a peaceful politica! satution to the conflict inSudan and advocating an Islamic reviva! based on the Sunna, the teachings af theprophet Mahammed (see Amnesty lnternatiana{ (n 200 aboye) 48).
Fair triaf rights and their re{ation to the death penalty in Afriea 197
found guilty of subversion on 8 January and sentenced to death. 157
The Court of Appeal confirmed their sentences on 16 January, rulingthat in advocating an unacceptable form of Islam, they were guilty of'heresy,.158
The Court of Appeal's ruling was in violation of fair trial rights, asthe five men had not been charged with 'heresy'. The Court gavethem one month in which to repent or the death sentence would becarried out. This was later reduced to three days.159 On 18 January,Mohamed was hanged in Kober Prison in Khartoum North, without thethree days deadline elapsing to see if he would repent or noto 160 Thus,the government of Sudan directed the death penalty at Mohamed torid itself of him or in the hope of silencing him and the others in themovement. The use of the death penalty as a tool of politicalrepression in this case was possible owing to the fact that there wasno respect for the due process of law.
As can be deduced from the aboye examples, non-respect for fairtrial rights has paved the way for the death penalty to be used as atool to repress political opponents in some African states. Inaddition, even with respect for fair trial rights, the imposition of thedeath penalt~ in African states for political offences in general isquestionable. 161 Amnesty International has noted that 'it is difficult,
257 Amnesty Internationa( (n 200 aboye) 48.258 As aboye.259 As aboye.260 As aboye. The other four men repented after they had been foreed to wateh their
leader being hanged, and they were freed.261 Other African states in which the death penalty has been used as a tool af
paliUcal repression inelude Ghana in 1979 and Uberia in 1980. In Liberia, thesituatlon was exacerbated by the faet that a decree was issued defining the crimeof high treason, effective 'retroactively' and punishable by death. Liberia issuedthis decree despite international law prohibitioos that existed at the time onapplying the death penalty retroactiyely (see Amnesty International (n 200 aboye)51). Furthermore, it is worth mentioning that before the death penalty wasabolished, it had previously been used in South Africa as an instrument of politicalrepression. In the 1960s, the Legal Aid Bureau, registered under the WelfareOrganisations Act 1946, received financial grants from the state on the Expresscondition that no defences were provided in 'political' matters. A 'No baH' tawwas passed in 1961, which empowered the Attorney General to issue a certifica tethat someone who had been aeeused of a political erime should not be grantedbaH (See L Lazar 'The Republie of South Africa' in J Coutts (ed) The aecused: Acomparative study (1966) 192 li 197). The situation was exaeerbated by the faetthat a person on a political charge, sueh as sabotage, was deemed guilty unless heproyed his innocence. This ereated doubt as lo whether justice was actuaUy donein political trials. This eould be seen as a means used by the state to direct thedeath penalty at politieal opponents, who were charged with political offences.Many death sentences were imposed in trials of 'unrest-related incidents'. Later,caUs were made for the ayoidance of the death penalty for political crimes. Forexample, the South African Dutch Reformed Church, which had declared inNoyember 1988 that it had always accepted the death penalty, called for an endto executions in 'political cases' sorne months later (J Mihálik 'The moratoriumon executiQns: lts background and implications' (1991a) 108 South Afdean LawJournal118 139-142). See also, P Maduna 'The death penalty and human rights'(1996) 12 South Afriean Journal on Human Rights 194. where DJ Dalling, former
198 Chapter Five
if not impossible, to isolate politically motivated crimesthe death penalty without, in effect, punishing the perpetratorstheir political views as well as for their crimes' .262 Abolition ofdeath penalty would, however, prevent the use of punishmentsthe death penalty as a tool of polítical repression.
South African member of partiament, stated that the death penalty had been atoo! of repression (and also a racist tool).
262 Amnesty lnternational (n 200 aboye) 19.
I Conclusion
In the cause of truth and justice I invite all heads of state in Africa, ourcommon home, te abolish the death sentence, to work fer the removalof violence among our peoples and so to prepare a better future for ourchildren. '
How much support has this statement gained, and will it gain inAfrica? How many African heads of state will heed or have heeded tothis call? Considering that the majority of African states still retain oruse the death penalty, this statement might not gain much supportfrom them. There has been debate on the death penalty worldwide.With the debate on the death penalty in Africa still emerging incomparison with the international debate, studies on the deathpenalty in Africa are relevant. This book has contributed to thisdebate in several ways, showing that it is vital for African states torethink their position with regard to the death penalty.
In the course of social evolution, a consensus forms among nationsand peoples that certain practices can no longer be tolerated. 2 Therehas been a growing trend for the abolition of the death penalty; thisis illustrated by comparing the dates of abolition compiled bySchabas.3 Since one of the research questions of this study is whetherit is appropriate for Africa to join the international trend towards theabolition of the death penalty, and to put the death penalty in Africainto international perspective, it is important first to consider thebackground to the current worldwide abolition movement, and theinternational abolition trends.
This chapter begins by examining the current abolitionmovement. It then considers developments showing a trend towardsthe abolition of the death penalty. Later, this chapter draws theconclusions that can be deduced from the preceding chapters andgives the necessary recommendations.
Dr Bakili Muluzi, then president of Malawi, in his speech to the 8th GeneralAssembly of the World (auneil of Churches in Harare, Zimbabwe, quoted in TAgostoni, May the state kili! (2002) 16.e Dieter, 'The death penalty and human rights: US death penalty andinternational law' http://www.deathpenaltyinfo.org/oxfordpaper.pdf (accessed16 May 2004).W Schabas The abolition o{ the death penalty In international law (2002) 364365.
199
200 Chapter 51)(
1 The abolition movement
The current worldwide movement to abolish the death penalty has itsroots in the liberal utilitarian and humanistic ideas initiated by theEnlightenment in Europe at the end of the eighteenth century.4 Anexample of such ideas is that of Beccaria. In his treatise, On crimesand punishment, Beccaria stated that capital punishment was bothinhumane and ineffective, and that it was counterproductive if thepurpose of law was to impart a moral conception of the duties ofcítizens to each other. 5
Although the Enlightenment saw the emergence of partialabolitionism, and the nineteenth century saw the growth of theabolitionist movement and the abolition of capital punishment bysome countries,6abolition experienced a delay in the first decades ofthe twentieth century before the adoption of the UDHR in 1948.Schabas points out that the influential criminological doctrines thatthe death penalty was scientifically necessary as a social measure,and the rise of totalitarianism in Eurape after the First World Warwere sorne of the reasons for the delay experienced.7 Despite theaboye setback, abolition gained ground after the Second World Warand the adoption of the UDHR.
There were also a few setbacks in the 1990s. For example, in theAfrican continent, as noted in chapter two, the perlod of abolition inThe Gambia was very short, from 1993 to 1995. By 1994, ten countriesincluding Burundi, Comoros and Guinea that were considered de {actoabolitionist prior to 1994 resumed executions. However, as discussedin chapter two, the present status of abolition in Africa has improved.Therefore, the case for abolition has become more compelling as theyears have gone by, with experience showing that executionsbrutalise those involved in the process. B Moreover, internationallawmakers continue to urge the limitation and subsequent abolitionof the death penalty9 as it i5 a major threat to fundamental humanrights.
45
6
78
,
R Hood The death penalty: A worldwide perspective (2002) 9.As aboye. Cesare Beccaria convinced statesmen of the uselessness andinhumanity of capital punishment, and his work led to measures abolishing thedeath penalty in Austria and Tuscany.In 1846, Michigan abolished capital punishment permanently. Jt was the firstjurisdiction to aboUsh capital punishment. This was foUowed by Venezuela andPortugal, abolishing the death penalty in 18671 the Netherlands in 1870, (astaRica in 1882, Brazil in 1889, and Ecuador in 1897.Schaba:¡ (19971 6.Amnesty International When the state kills ... The death penalty v. human rights(1989) 1.Schabas (n 3 aboye) 1 & 20.
Concfusion 201
2 Abolition trends
Generally, there has been a growing trend for the abolition of thedeath penalty, which can be seen by comparing the dates of abolition,or in the case of de {acta abolition states, the dates of the lastexecution. At the internationallevel, this growing trend has been asfollows, using ZO-year intervals: Between 1860 and 1879, threecountries abolished the death penalty; no country abolished the deathpenalty in the next two decades (1880 - 1899), but between 1900 and1919, three countries abolished it; between 19Z0 and 1939, twocountries abolished the death penalty; one country abolished itbetween 1940 and 1959; between 1960 and 1979, 13 countriesabolished the death penalty; between 1980 and 1999, 51 countriesabolished the death penalty; and between ZOOO and Z006, 15countries abolished the death penalty.1o Thus, as noted in chaptertwo, a total of 88 countries have now abolished the death penalty.Figure 6.1 below illustrates the international abolition trend.
Figure 6.1: Number of countries abolishing the death penalty1860 - Z006
fO',-- ~
"!---------------------7Oj-- ~
6Oj-- _
c----I l. Number of cllUntriesl
70 j--- _
fOj~ _
4Oj--- _
soj-- _
'j..J-Lc--~-_~~~-_1860·1879 1880-1899 19OO-19f~ 1920·1919 1940·1959 1960-1978 1980-1999 2000-2006 I
3 o 3 2 1 13 51 15 ~
In Africa, as seen in the subsequent paragraphs (and also in previouschapters), there have been specific developments that show a trendtowards the abolition of the death penalty.
10 The figures are based on information from the following sources: Schabas (n 3aboye) 364-365; Hood (n 4 aboye) 249-251; Amnesty lnternational, 'Abolitionistand retentionist countries: Abotitionist for all crimes' http://web.amnesty.org/pages/deathpenalty-abolilionist1-eng (accessed 6 September Z006).
202 Chapter Six
~---- ---------------2000·2006
---------------.
1990-1'.1991980-1989
---------
"j--------
Figure 6.2: Abolition trend in Africa
Another positive trend towards abolition has also been the willingnessof the courts to deal with death penalty issues in a constitutionalcontext and that of the African Commission to include the deathpenalty in its agenda.
In addition, prior to 1999, the African Commission had not paidmuch attention to the death penalty or addressed the issue of thedeath penalty in any of its resolutions. However, the situationchanged in November 1999 when the Commission passed theresolution urging states to envisage a moratorium on the deathpenalty.13 This resolution calls upon states to limit the imposition ofthe death penalty, to consider establishing a moratorium on the deathpenalty and to reflect on the possibility of abolishing the death
Evidently, there has been significant progress towards ending thedeath penalty in Southern Africa11 following intense lobbying fromhuman rights activists in the region. There is an apparent abolitiontrend in the countries of the Economic Community of West AfricanStates (ECOWAS).12 The abolition trend in Africa has been as follows:Between 1980 and 1989, only Cape Verde abolished the deathpenalty. Between 1990 and 1999, nine countries abolished the deathpenalty. Between 2000 and 2006, three countries abolished the deathpenalty.
:: r=- --------"-------------=J¡
11 See generaUy, J Hatchard 'Capital punishment in southern Africa: Sorne reeentdevelopments' (1994) 43 International and ComparativE' Law Quarterly 923 & DMavunduse 'A new rnillennium free from death penalty in southern Afriea' http://www.sarde.net/editorial/sanf/1999/09/30-09-199-nf2.htm (accessed 30 January2004).
12 Amnesty lnternationat, 'West Africa: Time to abolish the death penalty' Al Index:AFR OS/OOJ/ZOOJ. 10 October 200J.
13 13th Annual Aetívity Report (1999-2000) Annex IV; See also: http://www.achpr.org/htmlldirectoryofresolutions.html (accessed 17 May 2003).
ti
Condusion 203
penalty. The adoption of this resolution, placing the death penalty inthe Commission's agenda and establishing the Working Group on theDeath Penalty are major steps towards the abolition of the deathpenalty in Africa.
It is worth emphasising at this point that the African Commission'srecent decision in Interights et al (on behalf of Bosch) v Botswana14
should not be seen as a step backwards. The Commission'sacknowledgment, inter olio, of the evolution of internationallaw andthe trend towards the abolition of the death penalty,15 in keepingwith article 60 of the African Charter, is an excellent inroad forinternational law to help future Commission decisions, especially indeath penalty cases. Moreover, the Bosch case was finalised at the34th ordinary session (Z003) of the African Commission and thedebates on the abolition of the death penalty commenced at its 36thordinary session (Z004). Overall, the Bosch decision underscores theneed to strengthen the jurisprudence of the Commission and theAfrican Court of Human and Peoples' Rights by drawing their attentionto the jurisprudence of similar bodies on the abolition of the deathpenalty.
Another trend towards abolition has been the progress in thecommutation of death sentences in the African continent, which canbe seen as implying that sorne countries have recognised that thedeath penalty is undesirable. Death sentences have been commutedin various African states, including Algeria, Gabon,16 Lesotho17 andSudan. 18 Furthermore, in ZOOO in Nigeria, amnesty was granted toprisoners under sentence of death; in Algeria, 115 death sentenceswere commuted (15 of them to ZO years' imprisonment and 100 to lifeimprisonment). In ZOOZ, 100 death sentences were commuted to lifeimprisonment in Tanzania. In Z003 in Kenya, 195 death sentenceswere commuted and Z8 prisoners (who had served 15-ZO years) werereleased; in Ghana, the president granted amnesty to 179 prisonerswho had spent at least 10 years on death row. In February Z004, thePresident of Zambia quashed the death sentences imposed on 44soldiers convicted of treason in 1999 and replaced these sentenceswith jail terms ranging from 10 to ZO years; in May he commuted thedeath sentences of 15 prisoners and replaced them with sentencesranging from ZO to 50 years' imprisonment. In April Z004, 79 deathsentences were also commuted in Malawi. In Z005 in Cameroon, anumber of prisoners under the sentence of death benefited from a
14 Interights et al (an behalf af Bosch) v Botswana, Communication 240/2001, 17thAnnual Activity Report: 2003-2004 (d1scussed in chapters four, five and six).
15 As aboye.16 2nd periodic report of Gabon, para 1517 lnitial report of Lesotho submitted under artiele 40 of the ICCPR, UN Doc CCPR/CI
81/Add.14, 16 October 1998, para 61.18 See generally, Amnesty Internationat Amnesty International Reports (2005) &
(2006); and Hands Off Cain The deoth penalty warldwide: 2004 repart (2004).
204 Chapter Six
2004 presidential decree,19 and in Kenya, the death sentences of fourpeople were commuted and the government is in the process ofcommuting all death sentences to life imprisonment - the process isyet to be completed. 20
Thus, although it is not yet common practice to commute deathsentences in all African states that claim to be de facto abolitionists,the recent increase in commutations can be read as a move towardsthe non-implementation of the death penalty in these states.
There have also been other recent developments in Africa thatpoint towards abolition. For instance, a de facto moratorium has beenin place in Zambia since 1997, and the president has promised neverto sign execution warrants. 21 On 19 April 2003, Mwanawasa appointeda commission to review the Constitution, one of the specific terms ofreference being to advise on the future of the death penalty inZambia. 22 Regrettably, the Constitution Review Commission (CRC) hasrecommended the retention of the death penalty in the nextConstitution following submissions made by petitioners acrossZambia. Some of the submissions made called for the Bill of Rights tobe made superior to other provisions of the Constitution. The CRC alsorecommended that all offences should be eligible for bail, that thequestion of whether bail should be granted or not should be left to thediscretion of the courts, and that the Constitution should guaranteethe right to judicial review. 23 However, the recommendations of theCRC should not be seen as a complete setback as they are a move tostrengthen judicial review, thus ensuring fairness in trials.
In November 2003, the Nigerian government set up a nationalstudy group on the death penalty and asked it to prepare an advisoryopinion to guide the government on whether or not to abolish thedeath penalty. 24 In 2004, the study group recommended that anofficial moratorium on executions be put in place until the Nigeriancriminal justice system could ensure fundamental fairness and dueprocess in capital cases and minimise the risk of innocent people
19 The decree provídes for the commutation of the death ~entences of peopleariginaUy sentenced to death befare the date of sígnature, with the exceptian ofrepeat offenders and persens sentenced fer, ¡nter alia, assault causing the death 1af a minor and theft with violence entailing the death of a persono See Article 1 Jaf Oecree No 20041344 of December 29, 2004 on the commutation and remission 1of sentences; reproduced in (ameraon Tribune No 8258/4457 of December 31, 12004, p. 13. 1
20 The afaresaid wa.s based on information from, jnter alia, Amnesty International (n .11.
18 aboye) 2005 ti 2006 reports, and Amnesty Jnternatjonat Reports (2001), (2003) .li (2004)
21 Hands Off (ain (n 18 aboye) 51.22 As aboye.23 Amnesty International, 'The death penatty warldwide: Developments in 2005'
http://web.amnesty.org/pages/deathpenatty·developments-eng (accessed 5 July2006).
24 E Anaba, 'Law and human rights: Death penalty: Options tor the government Study group' Vanguard (Lagos), 5 November 2004.
!1
de
Condusion 205
being executed. 25 The government is yet to respond publicly to therecommendations for a moratorium on the death penalty by the studygroup.
The Truth and Reconciliation Commission (TRC) of Sierra Leonehas recently concluded its report, in which it has recommended, ínteralia, the abolition of the death penalty and the immediate repeal bvparliament of all laws authorising the use of capital punishment. 26
The TRC noted in its report that this recommendation is imperativeand should be implemented without delay. It further recommendedthe introduction of a moratorium on all judicially sanctionedexecutions and the immediate commutation of existing deathsentences. 27
Also, in April 2004, the Ugandan Minister of Justice andConstitutional Affairs, Mukwaya, said the Ugandan government wasconsidering substituting the death penalty with long jail terms. 28 TheJustice Minister of Algeria, Belaiz
ihas pledged to restrict the death
penalty to terrorism and treason. 9 In a future session of parliamentin the DRC, a proposal for the re-introduction of a moratorium and theconcession of a general amnesty will be discussed. 30 In Mali also, theKonaré government introduced a two-year suspension of executionson 16 May 2002 so that the maintenance or abolition of the deathpenalty could be discussed. Traore, a member of the JusticeCommission of the National Assembly, announced in February 2004that the Mali parliament was working on legislation to renew thismoratorium.3"1
Furthermore, in the recent process of constitution making, theKenyan government proposed in its submission on the draftConstitution that the death penalty should be done away with. 32Although the proposal was shut down by the representatives of thepeople, who stated that it was still necessary to keep the deathpenalty in the statute books,33 on 9 March 2004 the NationalConstitutional Conference, which was reviewing the draftConstitution of Kenya, abolished the death penalty for treason androbbery with violence but retained it for murder and rape ofminors. 34 The opportunity to abolish the death penalty totallyseems to have been lost as the proposed draft Constitution is silent
25 As aboye.26 The TRC report is ayailable at http://www.iss.co.za (accessed 30 November 2004)27 As aboye.28 As aboye, 56.29 Hands off (ain (n 18 aboye) 55.JO See Hands Off Cain, 'Africa: Moratorium on execution with a view to the abolition
of the death penalty' December 2004 (Africa anti·death penalty projectdocument).
31 As aboye.32 2nd periodic report of Kenya, para 56.33 As aboYe.34 Hands off (ain (n 18 aboye) 50.
206 Chapter 5ix
on abolition. However, presently there is a de {acto moratorium onthe death penalty in Kenya. 35 Nevertheless, during the examinationof the second periodic report of Kenya, UN Human RightsCommittee members highlighted the disadvantage of the de {actomoratorium, specifically 'the people who had been pitifullyabandoned in the death rows since 1988,.36 The response of Wako,head of the delegation of Kenya, was that the issues of integratingthe provisions of the Covenant on Civil and Political Rights into theConstitution regarding, inter olio, the deathfenalty would remainthe locus of the government's action plan. 3 Later on, during the61st session of the UNCHR, Murungi, Minister 01 Justice andConstitutional Affairs, stated that one of the steps taken thus far bythe government to improve the state of human rights in Kenya wasa commitment to abolish the death penalty. He stated thefollowing: 'We are committed to abolish the death penalty. In themeantime, we are in the process of commuting death penalties tolife imprisonment.'38
3 The way forward for African states
Most African states still retain the death penalty despite a growinginternational trend towards its abolition and the fact that they areparties to major international human rights instruments. Generally,this book shows that African states fall short of their obligations underinternationallaw. The failure to domesticate the standards in human
35 See 2nd periodic report of Kenya, paras 52 &. 56.36 The last execution in Kenya in c()mplianee with the death sentence was in 1988.
See 2nd periodic report of Kenya, para 52.37 See UN press release 'Human Rights Committee condudes consideration of
Kenya's report on compliance with the ()venant on Civil and Political Rights'. UNDoc. HR/CT/658, 15 March 2005. The report was considered during the 83rdsession of the Committee. It should be noted that in its eoncluding observations,the Committee made the folLowing recommendatlons ta Kenya: First, to cansiderabolishing de jure the death penalty and aeceding to the 2nd Optional Protocol tothe ICCPR; secand, to remove the death penalty from the statute books forcrimes that do not meet the requirements of article 6(2) of the ICCPR; and third,to ensure that the death sentenees ()f aH those on death row whose final appealshave been exhausted are commuted. The second recommendation was madebecause the Committee noted from the report of Kenya that the death penaltyapplies to crimes not having fatal or similarly grave consequences, such asrobbery with violence or attempted robbery with vioLence, which do nat qualifyas 'most serious crimes' within the meaning of article 6(2) af the ICCPR. Seeconcluding ()bservations of the Human Rights Committee an the 2nd periodicreport of Kenya submitted under article 40 of the ICCPR, UN Doc. CCPR/CO/83/KEN, 28 March 2005.
38 See statement by Han. Kiraitu Murungi. EGH, MP, Minister of Justice andConstitutional Affairs of the Republie af Kenya, at the 61st session of theCommission on Human Rights, Geneva. 16 March 2005. Available al http://www.ohchr.org/english/bodies/ehr/sessions/61/highlevel·state.htm (accessed 31March 2005). This recent development shows how international pressure can pushstates to go ane step further with regard to abolition ()f the death penalty.
1
Conclusion 207
rights instruments has been a problem, as it prevents these standardsfrom being invoked in courts at the domestic level. 39
Nonetheless, the human rights standards at the internationallevelare engraved in national law. Despite this, as revealed in this book,the current operation of the death penalty in many African statesconflicts with human rights in several ways. First, the death penaltyis in itself a violation of the ríght to life as it allows for the takíng oflife and rejects the value of the convicted person's life. Second, itviolates the right not to be subjected to cruel, inhuman and degradingtreatment, both ín the context of the death row phenomenon andmethods of execution. Moreover, the cruelty of the death penaltyextends beyond the condemned prísoner, to the prisoner's family,judges, prison guards and other officials who have to carry out theexecution. Lastly, the death penalty in Afríca also conflicts with fairtrial rights.
An argument to ensure fair trial standards may be construed as aconditional validation of the death penalty, that is, if the fair tríalstandards are in place, the death penalty may be imposed. However,because other factors (for ínstance, the lack of resources, thepersonal disposition of a judge and the manner in which a case isconducted) affect the outcome of tríals, and because it is difficult oralmost certainly not possible to design a system that avoidsarbitrariness, judicial error and delays in carrying out the deathsentence, the use of the death penalty in Africa remains problematic,despite efforts to ímprove faír trial standards.
Although the death penalty is a violatíon of human rights, generalinterpretations of the right to life and the right not to be subjectedto cruel, inhuman and degrading treatment or punishment cannot beimposed on all national systems, as the formulation of the aboyeprovisions in the constitutions of African states differs. lt is preciselythese formulations in the constitutions of African states that obstructchallenges to the death penalty in Africa. The limitation clauses innational constitutions exacerbate the situation. However, this studyshows that some courts have found a way round qualified provisionsand limitation clauses in finding the death penalty to beunconstitutional.
Furthermore, it has been illustrated that the imperfections in thecriminal justice system make it impossíble to remedy the occasionalmistakes which result in the execution of the innocent. To maintain
39 As noted in chapter five, not all African states that have ratified the ICCPR, forexample, haye incorporated it into their domestic laws. In Botswana, no humanrights treaties, including the IC(PR, haye been incorporated into nationallaw. InEritrea, the ICCPR has not been proclaimed as the law of the state. In Malawi, theICCPR has not been incorporated into domestic law (see C Heyns (ed) Humanrights in Africa (2004) 904, 1064 ft 1247). Also, the ICCPR has not beendomesticated in Kenya (see UN press release (n 37 aboye)
41
208 Chapter 5ix
the death penalty in the face of the demonstrable failures of thejudicial system to exclude the possibility of error or to guarantee thatjustiee will never miscarry is unacceptable. 5ince the best case forabolition rests on a commitment to respecting substantive dueprocess,40 it is certain that abolition is the only way to ensure thatsuch mistakes do not happen since, as demonstrated in the precedingchapter, fair trial rights are, usually, not respected in capital trials.Furthermore, the decrease in executions in Africa implies that someAfriean states retain capital punishment, but clearly with littlecommitment to use it as a means of crime control. This lack ofcommitment can be seen to mean that the death penalty isundesirable.
However, the abolition of the death penalty cannot be a one-offacto It is not like putting an end to one human rights abuse. When thedeath penalty is abolished, a substitute penalty has to be found forthe crime. Considering the criminological arguments for the retentionof the death penalty in Africa,41 it is obvious that there is someresistance to alternative sanctions to the death penalty. Kahan hasadvanced a number of explanations for the resistance to alternativesanctions, one of which is the failure of democratie polities.42Generally, members of the public are ignorant of the availability andfeasibility of alternative sanctions.43 Life imprisonment, for example,can also serve as a deterrent, and as a preventative, retributive andrehabilitative measure_ There has been no proof that the deathpenalty in Africa, or elsewhere, deters more effectively than lifeimprisonment.
Another explanation for the resistance to alternative sanctionsrelates to their inadequacy along the expressive dimension ofpunishment.44 Applying Kahan's explanation to the case of the deathpenalty, alternative sanctions are rejected by members of the publicnot because they perceive that these punishments would not work orare not severe enough, but because they believe they fail to express
40 A Sarat 'Capital punishment as a legal, political, and cultural faet: Anintroduetion' in A Sarat (ed) The killJng state: Capital punishment in law, politicsandculture(1999) 11.The criminologieal arguments behind the concept of capital punishment eoneernretribution, deterrenee, prevention and rehabilitation. See generally, S vMakwanyane (1995) 3 SA 391 (CC) (hereinafter referred to as Makwanyane(1995)); Republic v Mbushuu and Another (1994) 2 LRC 335, hereinafter referredto as Mbushuu (1994); E Burchell & P Hunt South African criminal law andprocedure (1970); M Seleoane The death penalty: Let the people decide (1996); Jvan Rooyen 'The criminal judge and the death sentenee: Sorne observations onthe views of Mr Justiee Curlewis' (1991a) 32 Codicillus 4; RLempert 'Dessert anddeterrence: An assessment of the moral bases of the case for capital punishment'(1981) 79 Michigan Law Rev;ew 1177; E van den Haag Ei:. J Conrad The deathpenalty: A debate (1986); A Loewy Crfminallaw in a nutshell (2000).
42 D Kahan 'What do alternative sanctions mean?' in L May et al Legal philosophy:43 Multiple perspectives (2000) 715.
As aboye.44 As aboye,
Conclusion 209
condemnation as dramatically and unequivocally as the deathpenalty. Since the central theoretical premise of the case foralternative sanctions is that all forms of punishment areinterchangeable along the dimension of severity,~5 a long prisonsentence or life imprisonment can also express condemnation asdramatically and unequivocally as the death sentence. The fact thatsome African states have abolished the death penalty completely orfor certain offences that were punishable by death is proof thatalternative sanctions exist that can serve the purpose of punishment"- deterrence, retribution, rehabilitation and prevention. Since thelife sentence exists, it cannot be said that the death sentence is theonly proper sentence to meet the purposes of punishment.46 Hence,Justice Lartey, a Supreme Court of Ghana nominee, has acknowledgedimprisonment as an alternative to the death sentence, stating thatinstead of passing the death sentence on murderers or on those whohave committed other offences attracting the death sentence, theoffenders should be confined at a recognised place to die naturally.47Also, the Ugandan Minister of Justice and Constitutional Affairs,Mukwaya, has stated that 'the government is considering scrappingthe death sentence on capital offences '" Long jail terms will replacethe death penalty. ,48
This book does not adopt any specific proposal regarding whichpunishment should replace the death penalty in Africa. The choice ofan alternative sanction depends on a number of factors that affect theoperation of the criminal justice system in a state, for instance, theavailability of resources and whether the substitute punishment suitsthe crime. The realistic alternatives to the death penalty in Africahave to be decided at the national level, bearing in mind that anypunishment has to be fair, adequate, and, more importantly,enforceable. Any alternative sanction should not constitute cruel,inhuman and degrading treatment or punishment, and should notcontravene criminal justice standards (fair trial standards in general).For example, a mandatory life sentence for murder is no differentfrom a mandatory death penalty, as it does not give the courts theopportunity to consider mitigating circumstances.
45 Kahan (n 42 above) 715.46 J van Rooyen 'South Africa's new death sentence: ls the beH toUing for the
hangman' (1991b) 4 South African Journal of Criminal Justice 79 84.47 K Mensah &; 1Essel, 1Abolish capital punishment says supreme eourt Nomlnee' in
Acera Majl (Acera), 17 September 2004.48 'Death sentence to be repealed' http://allafriea.eom/stories/printable/
200404300382.html (accessed 14 May 2004).
210 Chapter 5ix
4 Strategic initiatives
Human rights law, whether in the form of international commitmentsor domestic protection, proclaims that violations of human rights areprohibited and should be redressed.49 Article 2 of the ICCPR enjoinsstate parties to introduce the necessary steps in accordance withtheir constitutional processes and with the provisions of the Covenantto give effect to the rights recognised therein. Therefore, Africanstates have to take certain measures to give effect to the rights thatare being violated owing to the retention and use of the death penaltyin Africa. In this regard, the following recommendations are madewhich are geared towards realising the abolition of the death penaltyin Africa. The recommendations are directed at the African Union(AU), African Commission, African governments, including theexecutive, legislature and judiciary, and civil society, including nongovernmental organisations (NGOs).
4.1 The African Union
The African continent remains the only region with a human rightstreaty that is yet to adopt a protocol on the abolition of the deathpenalty. Article 66 of the African Charter provides: 'Special protocolsor agreements may, if necessary, supplement the provisions of thepresent Charter.' As article 4 of the African Charter makes no mentionof the death penalty, and considerin~ that one of the principies of theAU is respect for the sanctity of life, o it is recommended that the AUadopt a protocol to the African Charter on the abolition of the deathpenalty in Africa.
Considering the small number of ratifications of the SecondOptional Protocol by African states, one might pose the question:Should one not encourage African states to ratify the existing protocolinstead of seeking the adoption of a new protocol to address the sameissue? The answer is simple. African states have realised thatinternational human rights instruments do not always address theunique problems of the continent. 51 Aprotocol to the African Charterwould gain more legitimacy, as it would take into consideration theunique problems of the continent. The aboye explains in part why notall the abolitionist and de [acto abolitionist African states haveratified the Second Optional Protocol.
49 T Orlin 'The right to life / the right to die: The rights, their interrelationship andthe jurisprudential problems' in T Orlin et al (eds) The jurisprudence Df humanrights law: A comparative interpretative approach (2000) 1.
so ArUele 4(0) of the Constitutive Act of the African Union, adopted in Lomé, Togo,on 11 July 2000. and entered into force on 26 May 2001 (CAB/LEG/23.15).
51 M Nsibirwa 'A brief analysis of the Draft Protocol to the African Charter on Humanand Peoples' Rights on the Rights of Women' (2001) 1 African Human Rights LawJournal40
Conclusion 211
In addition, the ultimate test for any legal system that purports todeal with human rights is the difference it makes to the lives ofpeople. 52 The adoption of a protocol on the death penalty woulddefinitely make a difference to the lives of the people, especiallythose accused of capital offences. A protocol on the abolition of thedeath penalty in Africa has an important place in the framework ofhuman rights protection in Africa. It would be essential in enhancinghuman rights protection in Africa and in clarifying the situation of thedeath penalty in Africa.
It is suggested that experts be appointed to draft the protocol.The process must be participatory, involving various interestedparties who deal with human rights daily, such as, lawyers, NGOs,government officials, academics and civil society. The followingrecommendations are made regarding the content of the protocol.
First, the protocol should abolish the death penalty in peace andwartime, but should allow a reservation at time of accession orratification for the use of the death penalty in wartime. As in the caseof the Second Optional Protocol to the ICCPR and Protocol No 6 to theEuropean Convention, the word 'peacetime' should not be included inthe protocol to avoid drawing attention to the wartime exception.Allowing the possible use of the death penalty in wartime willencourage ratification of the protocol by states that are not preparedto renounce its use during wartime. Besides, the political priority atthe moment is first to obtain and ensure observance of a continentwide moratorium on executions, which could subsequently beconsolidated by the complete abolition of the death penalty inAfrica. 53 The first step to achieving this would be the adoption of aprotocol that allows for the possibility of the death penalty inwartime. 54
Second, the protocol should set a time frame within which, afterratification, the protocol cannot be denounced until the expiry of thattime periodo For example, a state party can denounce Protocol No 6only after the expiry of five years from the date on which it becamea party to it and after six months' notice to the Secretary-General ofthe Council of Europe. 55 Since the African Charter is silent on
52 C Heyns 'The African regional human rights system: In need of reform?' (2001) 2African Human Rights Law Journal156.
53 The same argument was used in the European human rights system to justify theabotition of the death penalty ln peacetime only, under Protocol No 6 (see CRavaud 'The case-law of the institutions of the European Convention on HumanRights' in Council of Europe, Death penalty: Beyond abolition (2004) 112).
54 The approach in Protocol No 13 to the European Convention - abolishing thedeath penalty in aH circumstances - cannot be taken in Africa owing to theabsence of a continent-wide moratorium on executions. It was possible in Europe,as there was a moratorium on executions throughout Europe at the time.
55 ArUde 15 of the European Convention sets down the above conditions fordenunciation. 5ince articles 1 to 5 of Protocol No 6 are regarded as additionalarticles to the Convention, article 15 of the Convention applies to the Protocolo
212 Chapter 5ix
denunciation, the protocol would have to set its own time frame forany denunciations. Allowing for a possibility of denunciation wouldalso encourage ratification of the protocol.
Third, the articles abolishing the death penalty and those dealingwith reservations or derogations should be regarded as additionalarticles to the African Charter. A provision of this nature is important,as the protocol would supplement the provisions of the AfricanCharter in ensuring greater protection of human rights in Africa.
Fourth, since some of the provisions of the protocol would beregarded as additional articles to the African Charter, reservations orderogations under the African Charter in respect of the protocolshould be prohibited. This will give more force to the provisions of theprotocol.
Fifth, the protocol should make reference to international law inthe article dealing with the reservation to use the death penalty inwartime, thus following the approach of the Inter-American humanrights system. This would afford greater protection of the rights ofthose facing the death penalty during wartime, because, as notedaboye, internationallaw treaties applicable in wartime would have tobe respected.
Lastly, the protocol on the abolition of the death penalty in Africashould provide that states include in their periodic reports to theAfrican Commission the measures taken to give effect to the protocol.A provision to this effect would provide a mechanism by which theimplementation of the protocol could be monitored.
4.2 The African Commission
At present, the African Commission is the supervisory body of theAfrican Charter. Article 45(3) of the African Charter mandates theCommission to '[i]nterpret all provisions of the present Charter at therequest of a State Party, an institution of the Organization of AfricanUnity or an African organization recognized by the Organization ofAfrican Unity'.
Although the Commission adopted the 1999 Resolution and hasconsidered article 4 in individual cases before it, the provision is yetto be interpreted in the context of the death penalty by itself.Therefore, pending the adoption of a protocol to the African Charteron the abolition of the death penalty in Africa, there is need for theAfrican Commission to adopt a resolution in which it explicitlyinterprets article 4 of the African Charter, thus going further than the1999 Resolution. As stated in article 60 of the African Charter, suchan interpretation has to be done in the light of international law onhuman and peoples' rights, other instruments adopted by the UN and
¡in
Conclusion 213
by African countries in the field of human and peoples' rights. 56
Abolitionist state parties (ineluding de {acto abolitionists),institutions of the Organisation of African Unity (now African Union)and African organisations are encouraged to request an interpretationof artiele 4 of the African Charter in the light of the abolition of thedeath penalty in Africa.
Furthermore, the African Commission is encouraging debate onthe question of the death penalty in Alrica. However, for a debate onthe death penalty in Alrica to have more force, the AlricanCommission has to take a clear stance on the subject, by, forinstance, adopting a resolution as recommended aboye or initiatingthe adoption of a protocol to the African Charter on the abolition ofthe death penalty in Alriea. 57 The Commission should also inelude thedeath penalty as one of the issues to be diseussed in the agenda of itssubsequent sessions. The Commission should aim at convincing statesto put in place a moratorium on the death penalty as a means toachieving the abolition of the death penalty in Africa. In addition, theAfrican Commission should eneourage governments, especially de{acto abolitionist states, to ¡nclude in their periodie state reports tothe Commission, under artiele 62 of the Afriean Charter, the measuresthey have taken towards realising the total abolition of the deathpenalty in their respective countries.
4.3 Alriean governments (eomprising the exeeutive, judiciary andlegislature)
For the reeommendations provided in this seetion to be realised, allthree branehes of government, the executive, legislature andjudieiary, have roles to play. The following six recommendations aremade: First, it is reeommended that an offieial continent-widemoratorium (legislatively adopted or executive imposed) on the deathpenalty in Africa be introduced. The eall for an official moratorium isborne out 01 the convietion that the flaws in national criminal justicesystems in Africa and the applieation of the death penalty in generalallow for the possibility of innocent persons being senteneed to deathand subsequently executed. Though a moratorium dilfers fromabolition, as a moratorium can be suspended at any time, it leans in
56 Possible interpretations of article 4 of the Charter geared towards abolitiol1 of thedeath penalty in Africa have been addressed in chapter three.
57 Commissioner Chirwa, as seen in the introductory chapter, also urged theCommission to take a dear stance on the death penalty.
214 Chapter 5ix
the same direction. This explains why the emphasis is on alegislatively adopted or executive-imposed moratorium and not ajudicially imposed moratorium. 58
The adoption of a moratorium in Africa is achievable because inadopting a moratorium governments do not have to give up the'power' to kili or concede that they lack the power to kiU. It is awinning strategy politically, with regard to abolition, Amoratorium isthe surest, soonest way towards abolition of the death penalty. 59 Amoratorium on the death penalty in Africa could lead to abolition inthat a moratorium shows that society can do without the deathpenalty and survive. It also shows that there are alternative sanctionsto the death penalty, as during the period of the moratoriumalternative sanctions are used.
In addition, at the national level a moratorium is likely to beaccompanied by governmental studies of how the death penalty hasbeen administered in the past, as well as how alternatives to capitalpunishment can and do work, and whether the death penalty isdesirable in the presento This provides a forum for enlightening thosewho remain unconvinced that the death penalty violates the right tolife in particular (and human rights in general), and for thepresentation of the case against the death penalty in Africa.Therefore, it is necessary that governments establish commissions tostudy the range of questions associated with the death penalty.
Second, the executive should commute existing death sentences.A moratorium on the death penalty in Africa wiu be effective if it isfollowed by the commutation of all existing death sentences. This willaccord with the 1999 Resolution of the African Commission. Also,considering that more often than not executions are not carried out,as can be seen from the decrease in the number of executions inchapter two, the commutation of existing death sentences is muchdesired. Therefore, African governments (the executives inparticular) have to put in place measures with regard to commutingall existing death sentences and have to aim at removing capitalpunishment from their laws, as this will foster the course of abolitionin Africa.
Third, in order to further the course of abolition, abolitionist stateparties to the African Charter should request an amendment of article4 to specifically exclude the death penalty. Article 68 of the AfricanCharter reads as follows:
58 Although a judicially imposed moratorium would not be as effective as alegislatively adopted or exeeutive-imposed moratorium, it is definitely a steptowards abolition, as it woutd prevent the passing of death sentences. Therefore,pending the introduction of a legislatively adopted or executive-imposedmoratorium, a judicialty imposed moratorium is recommended as a step towardsabolition especiaUy in African states where the death penalty is not mandatory.
59 Hands Off Cain (n 18 aboye) 157.
1
Conclusion 215
The present Charter may be amended if a state party makes a writtenrequest to that effect to the Secretary-General of the Organization ofAfrican Unity. The Assembly of Heads of Sate and Government may onlyconsider the draft amendment after all the State parties have been dulyinformed of it and the Commission has given its opinion on it at therequest of the sponsoring State. The amendment shall be approved by asimple majority of the State parties. It shall come into force for eachstate which has accepted it in accordance with its constitutionalprocedure three months after the Secretary-General has received noticeof acceptance.
This is a complex route towards the abolition of the death penalty inAfrica, but is worth embarking upon. It is described as difficultbecause it might not be feasible at the moment considering the statusof abolition in Africa. However, it would definitely be feasible in thefuture with the increase in the number of abolitionist states. TheAfrican Children's Charter and the African Women's Protocolamended artiele 4 of the African Charter with regard to women andchildren. Their amendment implies that there is a chance of successwith regard to requesting an amendment to artiele 4 of the AfricanCharter specifically to exelude the death penalty. The following twoamendments are proposed: First, the deletion of the last sentence ofartiele 4, which reads, 'No one may be arbitrarily deprived of thisright.' Second, rephrasing the last sentence of artiele 4 of the AfricanCharter to read 'No one may be deprived of this right intentionally'and adding a subsection section stating: 'A law shall not provide for asentence of death to be imposed by any court.'
Fourth, there is need to improve the national criminal justicesystems. This is a temporary measure, pending the abolition of thedeath penalty, as it is not possible to design a criminal justice systemthat is free of error. Thus, it is geared towards reducing the chancesof error in capital trials. As seen in chapter five, a number of factorsaffect the respect for fair trial rights in capital trials in African states,and these increase the risk of sentencing to death and executing theinnocent. 60 Therefore, while the abolition of the death penalty inAfrica is still pending, it is important for African governments toremedy the shortcomings in their criminal justice systems (as well ashuman rights complaints mechanisms) that affect their ability toadminister justice effectively. Governments should ensure theavailability of resources to the police and judiciary for carrying outproper and swift investigations. The creation of a legal aid scheme incountries that do not have it would improve the administration ofjustice in those countries.
60 These factors include the flaws in the criminal justice system such as lack ofresDurces, which hampers the whole trial process, inadequate training ofpersonnel (police officers, lawyers and judges), inadequate legal aid, andunderstaffed courts.
216 Chapter 5ix
Also, judges and lawyers have to be given effective legal trainingso that they can apply and use fair trial standards appropriately. Theyshould also be educated about human rights as the lack of rightsconsciousness among lawyers, judges and the judiciary as a wholeaffects the respect for fair trial rights. This is important because, asrevealed in chapter five, the provisions of human rights instrumentssuch as the ICCPR have not been invoked in national courts in someAfrican states because judges, lawyers and court officers have notbeen informed about the content of the ¡CCPR. To implement theeffective functioning of the criminal justice system, states have toadopt legislative and other measures to ensure that national fair trialstandards conform to those of internationallevel. In carrying out theaboye, states must have the goal of abolition in mind, as theimperfections inherent in the criminal justice system make itimpossible to design a system that avoids arbitrariness, judicial errorand delays in carrying out the death sentence.
Fifth, the legislature needs to revise the laws or constitutions thatprovide for the death penalty. The realisation of the abolition of thedeath penalty in Africa lies largely with the legislature, as thelegislature is able to change the law. üwing to the clash between thelegislature and public opinion, the legislature should consider thedeath penalty as a 'choice-insensitive' issue, the right answer towhich does not depend substantially on what the majority of peoplemight think.61 This will further the course of abolition in Africa, as thelegislature will not have to rely so much on public opinion, but ratheron other important issues like the death penalty being a violation ofhuman rights in arriving at a decision to change the law orconstitutions that allow for the death penalty.
Lastly, pending the abolition of the death penalty, African statesshould show greater commitment to human rights instruments thatthey have ratified by domesticating them. As mentioned aboye, thedomestication of human rights instruments is problematic, making itdiffieult for them to be invoked in courts at the national level.Therefore, states that have not yet done so should ensure that humanrights instruments that they have ratified are domesticated, and that
61 It may be accepted that, at present, a majoríty of Africans do support the deathpenalty. However, since public opinion is bound to fluctuate, the question thatarises is: When can public opinion be relied on? Dworkin distinguishes twocategories of issues - 'choice sensítive' and 'choice-insensitlve' issues. Theformer relates to policy decisions, that is, 'issues whose correet solution, as amatter of justice, depends essentiaUy on the character and distribution ofpreferences within the community'. The latter relates to decisions of principIe,that is , those issues the right answer to which does not depend substantially onwhat a majority of people might think (R Dworkin, 'What is equality? Part 4:Politieal equality', referred to in F Viljoen 'Endnotes to the death penaltydecísion' (1996) 113 South African Law Journal 666). The South AfríeanConstitutional Court in addressing the role of public opinion in the context of thedeath penalty, though nat explicitly, places the question of the eonstitutionalityof the death penalty under the second category (Makwanyane (1995) para 88).
1
Conclusion 217
domestic laws are in conformity with these instruments. Theobligations under the various human rights instruments should befulfilled and mechanisms put in place to monitor progress in theimplementation of the human rights standards and the difficultiesencountered. 5ince the ratifying of conventions is a significant step,it is recommended that states that are still to ratify major humanrights treaties do so.
4.4 Civil society (including non-governmental organisations)
The role of civil society (the media, lawyers, academics and students)in general and NGOs in particular is crucial with regard to serioushuman rights violations, for example, the violation of the right to life,which is a fundamental human right. Their role is essential in theimplementation of the aboye recommendations and promotion of thecourse of abolition in the African continent. For example, they havea role to play by lobbying for abolition in general, or specifically forthe adoption of a moratorium on the death penalty in Africa, thecommutation of death sentences, the adoption of a protocol to theAfrican Charter, and the amendment of article 4 of the AfricanCharter. Furthermore, there is the need for academics to engage inadditional and continuous research regarding policy formulation andimplementation geared towards abolition and, as a way forward, toinitiate the establishment of an African Centre for Policy Research onthe Death Penalty.
In order to encourage an abolitionist movement in Africa, it isimportant for the media, in collaboration with lawyers andacademics, to educate the public, targeting constitutional reviewcommissions in particular on the flaws in the application of the deathpenalty in Africa. States have to be encouraged to domesticateinternational human rights instruments that they have ratified so thatthey can be invoked in courts. In addition, courts have to be remindedof their role in interpreting the constitution without fear or favour,and in bearing in mind the rights of the minority in deciding whetheror not the death penalty is constitutional. The role of civil society ingeneral is relevant with regard to putting pressure on the respectivebranches of government in achieving the aboye. There is a great needfor NGOs, in collaboration with government institutions, to set up aproject designed to lobby for abolition of the death penalty in Africathrough public awareness campaigns and regional and nationalconferences.
5ince it is difficult to rely on certain constitutional provisions insorne countries to challenge the constitutionality of the deathpenalty, public interest litigations are encouraged. Lawyers shouldbring cases before courts or other judicial bodies on the conformitybetween the national constitution and international human rights
218 Chapter Six
treaties that have been ratified by the country in question and therespective criminal law providing for the application of the deathpenalty. This could lead to a recommendation for a moratorium on thedeath penalty or its total abolition by the court. 62
62 In this regard, see, for example, the foUowing case: Re the conformny betweenthe Constitution o[ the Repubfic of Befarus, the international treaties of theRepublic o[ Belarus and the provfs;ons of the Criminal Code 01 the Republic 01Belarus stipulating the application 01 the death penalty as a punishment (2004)16 BHRC 135. The Constitution of Belarus guaranteed the right to life, but statedthe death penalty as an exception to this right with regard to extremely gravecrimes (article 24). The right to life had been proclaimed and guaranteed in anumber of international treaties, which the Republic of Belarus had ratified. TheHouse of Representatives of the National Assembly of Belarus therefore asked theConstitutional Court to rule on the conformity between the Constitution, theinternatianal treaties af the state and the provisians of the Criminal Codestipulating the applicatian of the death penalty as a punishment The Court foundthat the Criminal Code was at variance with the Constitution because of theabsence in the Cade of the specification of the temporary character of the deathpenalty. The Caurt further held that providing the death penalty as an exceptianin the Canstitutian permits the decisian to declare a moratorium on theapplication of the death penalty or complete abolition of capital punishment.However. the Caurt left the latter to be resolved by the Head of State and byparliament.
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Other international documents
AFRICAN HUMAN RIGHTS SYSTEM
Resolutions
ACHPR 1992 Resolution: Resotution on the Right to Recourse andFair Trial, eleventh session held in Tunis, Tunisia, 2 - 9 March1992 (reprinted in eHeyns (ed) Human rights in Africa (2004) 526)
ACHPR 1996 Reso(ution: Resolution on the Respect For andStrengthening of the lndependence of the Judiciary. nineteenthsession held in Ouagadougou, Burkina Faso, 26 March - 4 April1996 (reprinted in eHeyns (ed) Human dghts ¡nA/rica (2004) 558)
ACHPR Resolution of 15 November 1999: Resotution Urging Statesto Envisage a Moratorium on the Death Penalty, twenty-sixthsession held in Kigali, Rwanda, 1 --15 November 1999 (ThirteenthAnnual Activity Report (1999-2000) Annex IV (reprinted in C Heyns(ed) Human ríghts ín Arríea (2004) 589)
ACHPR 1999 ResoLution: Resolution on the Right to a Fair Trial andLegaL Assistance in Africa, twenty-sixth session heLd in Kigali,Rwanda, 1 - 15 November 1999 (reprinted in e Heyns (ed) Humanrights in Afríca (2004) 584)
ACHPR 2002 ResoLution: ResoLution on GUldelines and Measuresfor the Prohibitian and Prevention of Torture, Cruel, Inhuman orDegrading Treatment or Punishment in Africa, thirty-secondsession held in Banjul, The Gambia, 17-23 October 2002
Other African Commission on Human and Peoples' Rightsdocuments
Principles and Guidetines on the Right to a Fair Trial and Legal Aidin Africa, adopted at its 33rd ordinary session in Niamey, Niger inMay 2003.
Examination of state reports Vol 3 (12th session) 1995, avaHableat website http://www.law.wits.ac.za/sess12-complete.htm(accessed 17 May 2003)
Fifth Annual Activity Report: 1991 -1992 (10th and 11th sessions)
Eighth Annual Activity Report: 1994-1995 (16th and 17th sessions),reprinted in (1995) 5 Review of the African Commission on Humanand Peoples' Rights 163
Tenth Annual Activity Report: 1996-1997 (20th and 21st sessions),reprinted in (1999)8 Review of the African Commission on Humanand Peoples' Rights 77
Twelfth Annual Activity Report: 1998-1999 (24th and 25thsessions)
Thirteenth Annual Activity Report: 1999-2000 (26th and 27thsessions)
Fourteenth Annual Activity Report: 2000-2001 (28th and 29thsessions)
228
159
176
202
160
105
160, 172
7
159
105,161,177,181,183,196
105, 169
69,162,164,172,177,184
8,37,67,69,105,163,164,
177,20268,69,105,
184
Other international documents 229
Seventeenth Annual Activity Report: 2003-2004 (34th and 35thsessions)
Hineteenth Activity Report: July-December 2005 (38th session)
Twentleth Activity Repart: January-June 2006 (39th sessionJ
UNITED NATIONS HUMAN RIGHTS SYSTEM
General comments
Gene-ral Cornment No 6: TMe right to life (artíde 6 of the ICCPR),UN Doc. HRIIGENI1IRev.1 at 6 (1994), 27 JUly 1982 (UNHRC)
General Cornment No 8: Right to liberty and security of persans(article 9 01 the ICCPR), 3D June 1982 (UNHRC)
General Comment No 13: Equality befare the courts and the rightto a fair and public hearing by an independent court establishedby law (artide 14 01 the ICCPR), 13 April1984 (UNHRC)
General Comment No 20: ReplacE'S General (omment No 7concerning prohibitian of torture and cruel treatment orpunishment (artide 7 of the ICCPR), 10 March 1992 (UNHRC)
General Comment No 24: lssues re\ating to reservations madeupon ratification or accession to the (ovenant or the OptlonatPratocols thereto, or in relation to dedarations under article 41af the Cavenant, UN Doc. CCPR/CI21/Rev.1/Add.6, 4 November1994 (UNHRC)
General Coroment No 29: States af emergency (artide 4 of theICCPR), UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001(UNHRC)
Resolutions
UNCHR Resolution 1999/61 of 28 Aprit 1999: Question of the deathpenalty (UN Doc. E/CN.4/RES/1999/61)
UNCHR Resolution 1997/12 of 03 April1997: Worldwide abolition01 the death penalty (UN Doc. E/CN.4/19971L.20)
UNCHR Resolution 1999/61 af 28 April1999: Questian of the deathpenalty (UN Doc. E/CN.4/RES/1999/61)
UNCHR Resolution 2005/59 of 20 April 2005: The qu€stion of thedeath penalty (UN Doc. E/CN.4/2005/L.101 Add.17)
UN ECOSOC Resolution 1984/50 of 25 May 1984: SafeguardsGuaranteeing Protection of the Rights of Those Facing the DeathPenalty (1984 UN ESCOR Supp. (No 11 at 33, UN Doc. E/1984/84(1984))
UN ECOSOC Resolution 1989/64 of 24 May 1989: lmptementationaf the Safeguards Guaranteeing Protection af the Rights of ThoseFacing the Death Penalty
ECOSOC Resolution 1989/65 of 24 May 1989: Principles on theEffective Prevention and Investigatian of Extra-legal, Arbitraryand Summary Executions
7, 160,203
8
8
37,57,63,152
171
167,171,174,176
101,102,141
101,114
154
6
37
185
138, 1B5
230 Other internatfonal documents
UN ECOSOC Resolution 1996/15 0123 July 1996: UN Guidelines onlhe Role uf Prosecutors (Eighth United Nations Congress on thePrevention of (rime and the Treatment of Offenders, Havana, 2.7August -7 September 1990, UN Doc. A/CONF.144/28/Rev.l at 189(1990))
UN ECOSOC Resolution 663 CI (XXIV) 01 31 July 1957: StandardMinimum Rules for the Treatment of Prisoners (24 UN ESCOR Supp.(No 1) at 11, UN Doc. E13048 (1957))
UN GA Resolution 32161 of 8 December 1977: Capital punishment
UN GA Resolution 34/169 of 17 December 1979: The Principles onthe Prevention of Arbitrary Arrest and Detention, and Code ofConduct for Law Enforcement Offidals (34 UN GAOR Supp. (No 46)at 186, UN Doc. A134/46 (1979))
UN GA Resolution 35/172 of 15 December 1980: Arbitrary orsummary executions
UN GA Resolutions 40/32 of 29 November 1985 and 40/146 of 13December 1985: Basic Principles on the Independence of theJudiciary (Seventh United Nations Congress on the Prevention of(rime and the Treatment of Offenders, MUan, 26 August - 6September 1985, UN Doc. A/CONF.121122JRev.l at 59 (1985»
UN G/I. Resolutlon 40/34 of 29 November 1985: DedaraHon ofBasic Principles of Justice for Victims of Crimes and Abuse ofPower (40 UN GAOR Supp. (No 53) at 214, UN Doc. A/40/53 (1985))
UN GA Resolution 45/121 of 14 December 1990: Basic principles onthe Role 01 Lawyers (UN Doc. A/CONF. I 44128/Rev. 1 at 118(1990)), and Basic Principtes on the Use of Firearms by LawEnforcement Officials (UN Doc. A/CONF.144I2BIRcv.1 at 112(1990»)
UN GA Reso(ution 45/111 of 14 December 1990: Basic Principlesfor the Treatment of Prisoners (45 UN GAOR Supp. (NO 49A) at 200,UN Doc. A/45/49 (1990))
UN GA Resolution 2393 (XXIII) of 26 November 1968: CapitaLpunishment
UN GA Resolution 2857 (XXVI) 01 20 December 1971: Capitalpunishment
UN GA Resolution 3452 (XXX) of 9 December 1975: Dedaration onthe Protection of AH Persons from Being Subjected to Torture andOlher Cruel, Inhuman or Degrading Treatment or Punishment (30UN GAOR 5upp. (No 34) at 91, UN Doc. A/l0034 (1975»
5tate reports
Combined third and fourth periodic reports of Egypt submittedunder artide 40 o( the ICCPR, UN Doc. CCPR/C/EGY1200113, 15April2002
Fourth periodic report of Moroceo suhmitteounder artide 40 ofthe ICCPR, UN Doc.CCPR/C/151 Add.1, 15 October 1997
Fourth periodic report of Senegal submitted under article 40 ofthe ICCPR, UN Doc. CCPR/C/1D3/Add.1, 22 November 1996
150
103
36
155
150,166
155
155
155
103
25,61,150,166
25
102
36,40,46, 53,169,177,179
168,172
40
Other internationai documents 231
Initial report of Lesotho submitted under artide 40 of the ICCPR,UN Doc. CCPR/C/81/Add.14, 16 October 1998
Initial report of Uganda submltted under artide 40 of the ICCPR,UN Doc.CCPR/C/UGA!2003/1, 25 Fcbruary 2003
¡niHal report of Zimbabwe submltted lInder article 40 of theICCPR, UN Doc.CCPR/C/74/Add.3, 29 September 1997
Second periodic report of Central African Republic submittedunder article 40 01 the ICCPR, UN Doc. CCPR/ClCAF1200412, 21September 2005
Second periodic report of Congo submitted under artícle 40 of theICCPR, UN 00c.CCPR/C/63/Add.5, 5 M.y 1997
Second periodic report of Gabon submitted under article 40 of theICCPR, UN Doc. CCPR/Cl128/Add.1, 14 June 1999
Second periodic report of Kenya submítted under submitted underarticle 40 of the ICCPR, UN Doc. CCPR/ClKENIZ004/2, 275eplember 2004
Second periodic report of Mali submitted under arUcle 40 of theICCPR, UN 00c.CCPR/C/MLlII00312, 13 January 2003
Second periodic report of Sudan subm1tted under articte 40 of theICCPR, UN Doc. CCPR/C/75/Add.2, 13 March 1997
Third periodic report of Cameraon submitted under ()rtide 40 oflhe ICCPR, UN Doc.CCPR/C/l0l/Add.2, 1 December 1997
Third periodlc report of Libya submítted under artide 40 of theICCPR, UN Ooc. CCPR/C/102/Add.1, 15 October 1997
Third periodic report of Madagascar submitted under article 400fthe ICCPR, UN Doc. CCPR/ClMDGI20051J, 13 June 2005
Third periodíc report of Tanzania submitted under article 40 ofthe ICCPR, UN Doc.CCPR/C/831Add.2, 7 October 1997
Third periodic report of the Democratic Republic of Congosubmitted under artlde 40 of the ICCPR, UN Doc. CCPR/C/CODI2005/3, 3 May 2005
Third periodic report of Toga submitted under article 40 of theICPR, UN Doc.CCPR/CITGO/2001/3, 5 July 2001
Concluding observatlons
Conduding observations of the Committee on the Rights of theChitd on the ¡nltial report of Liberia submitted under article 44 ofthe CRC, UN Doc. CRC/C/15/Add.236, 4 June 2004
Concluding observations of the Human Rights Commlttee on thefourth periodic report of MoroceD submitted under article 40 ofthe ICCPR, UN Doc. CCPR/CI79/Add.113, 1 November 1999
Conduding observations of the Human Rights Committcc on thesecond periodic report of Congo submitted under artide 40 of theICCPR, UN Doc. CCPR/CI79/Add.118, 27 March 2000
168.203
42, 171, 173,186
41. 42,43,185,186
45
178
179. 203
45, 55, 205,206
45, 168
42, 178, 179
169
40, 42, 185,187
41,42
15, 185
40
15,36,186
42
172
178
40,53
232 Other international documents
Conduding observations of the Human Rights Committee on the 180second periodic report of Jamaica submitted under artide 40 ofthe ¡CCPR, UN Doc. CCPRICl79/Add.83, 19 November 1997
Conduding observations of the Human Rights Committee on the 206second periodic report of Kenya submitted under artide 40 of the¡CCPR, UN Doc. CCPR/CO/83/KEN, 28 March 2005
Conduding observations of the Human Rights Committee on the 178second periodic report of Sudan submitted under artide 40 of the¡CCPR, UN Doc. CCPR/CI79/Add.85, 19 November 1997
Concluding observations of the Human Rights Committee on the 36,40, 53, 169,third and fourth periodic reports of Egypt submitted under artide 1774001 the ¡CCPR, UN Doc. CCPR/CO/76/EGY, 28 November 2002
Concluding observations of the Human Rights Committee on the 36third periodic report of Togo submitted under article 40 of the¡CCPR, UN Doc. CCPR/C0I76ITGO, 28 November 2002
Comments by states on conctuding observations
Comments by the government of Egypt on the concludingobservations af the Human Rights Committee on the third andfourth periodic reports of Egypt, UN Doc. CCPR/C0176/EGYIAdd. 1, 4 Navember 2003
EUROPEAN HUMAN RIGHTS SYSTEM
Opinions
European Commission on Human Rights, Opinian of 5 Navember1969, YB XXII 186 (Extracts from the Opinion are reproduced in theDisest of Strasbourg Case Law Relatins to the EuropeanConvention on Human Rights Vol 1 (Artides1-5) 100-101)
Resolutions
European ParHament Resotution 64-0468, 0487, 0497, 0513 and0542/970112 June 1997
Guidelines to the European Union Policy towards Third WorldCountries on the Death Penalty ('EU Guide!ines'), adopted in 1998
PACE Opinion No 233 (2002) of 21 January 2002: Draft Protocol tothe European Convention on Human Rights concerning theabolition of the death penalty in aH circumstances
PACE Recommendation 1246 (1994) of 4 October 1994: Abotitionof capital punishment
PACE Reso(ution 1044 (1994) of 4 October 1994: Abolitian ofcapital punishment
PACE Resolution 1097 (1996) of 28 June 1996: Abolitian of thedeath penalty in Europe
97
27
26,27
26
26
-
Table o/ ;nternationat instruments 233
INTER-AMERICAN HUMAN RIGHTS SYSTEM
Opinions
Inter-American Court of Human Rights, Advisory Opinion OC-3/83of 5 September 1983, Restr(ctions to the death penalty (Arts. 4(2)and 4(4) American Convention on Human Rights), Ser. A, No 3
lnter-American Court of Human Rights, Advisory Opinion 0(-9/87of 6 October 1987, Judicial guarantees in states of emergency
/nter-American Court of Human Rights, Advisory Opinion OC-16/99of 1 October 1999, The right to information on consular assistancein the framework of the guarantees of the due process of law(endorsed by the UN General Assembly in December 1999 in thePreamble of the resolution on 'Protection of migrants' (UN Doc.A/RE5/54/166)
68
150
72,158
Selected websites
African Commission on Human and Peoples Rightshttp://www.achpr.org
American Civil Uberty Unionhttp://www.aclu.org
Al website against the death penaltyhttp://www.amnesty.org/deathpenalty
Annual reports of the UN Special Rapporteur on extrajudicial, summary or arbitraryexecutions
http://www.ohchr.org/english/issues!executions/annual.htm
BIICLhttp://www.biicl.org
Centre tor Capital Punishment 5tudieshttp://www.wmin.ac.uk/law/page-495
Death Penalty Information Centrehttp://www.deathpenaltyinfo,org
Hands Off Caiohttp://www.handsoffcain.org
Institute of Security Studieshttp://www.iss.co.za
International Commission of Juristshttp://www.icj.org
UN treaty body databasehttp://www.unhchr.ch/tbs/doc.nsf
US Department of State human rights country reportshttp://www.state.gov/ g/drl/rls/hrrpt
234
Subject index
A
abolitionas a result of colonial influenceconstitutional reviews leading tointernational trend
movement
resistance totrend ín Africaon human rights grounds
abolitionist in practiceabolitionist states
Africa
Internationalaggravating circumstancesalternative sanctionsamnesty (see OlSD pardon)appeal, right to
B
baH
ecapital affencesclemency (see also pardon and amnesty)Code of King HammaurabiCommutation
CauneH of Europe, membershipcrimes against propertycriminal law
cruel, definition ofcruel, inhuman or degrading treatment or
puníshment, prohibition ofqualifiedunquatifled
cruelty of the death penalty
customary lawinternatlonalAfrican
odeath penalty
as a human rights lssuealtematives toarbítrary apptication of
as a tool of potítical repressiondiscriminatory and
disproportionate useextensl0n of
235
3030, 31
3,11,13,26,199,201,206
3,8,25,61,79,199,200,217
5,6,8201, 202, 203
2,7,31,77,20030,31,33,34,213
29,30,31,34, IDO,202,215
27, 3038,85
208,209, 214111,203,205
41,68,69,130,155,161,183
168,172-174,197,204
17,43-49, 174, 196182, 184
176, 33, 34,40, 55, 62,
64,108,127,131,134,157,191,204,214,217
26, 2744
20-22,38,51,63,127,152,185,218
97
107, 133107-109
100,114,115,129,137,146,207
41,60,62,102,15518,20
1,217,209, 214
13, 31, 50,65,66,68,130,187,189
32, 33, 53, 187, 19513, 46, 48, 50, 51, 104,
18721,24,37,38,45,47
236 Subjecet index
in colonial Africain pre-colonial Africanon-extension ofreduction in scoperestrictions on
scope ofunconstitutionality of
death rowcond1t1ons on
definition ofnumber of prisoners onprolonged delay or time on
women ondeath row phenomenon
death sentences, scale ofdf! {acto abolition
commitment to statusstates (see abolitionist in
practice)degrading, definition ofdeterrencedignity
DNA testingDraconian Code of Athensdrug-related offences
E
economic crimeselderly, restriction of the death penalty forevolving standards of decencyexceptional courtsexecution
as an alternative to tackling crimemethods of (see methods o{
execution)of the innocent
of the insane or mentally illresumption ofscale of
extenuating circumstancesextradition
extrajudicial, summary or arbitraryexecutions
in Africa5pecial Rapporteur an
19,20,31,4918, 19
3736
16,21-23,25,35,43,62, 67, 73
21, 34, 35, 372, 25, 50-52, 74, 80-85,
87,93, 94, 98, 108,109,129,188,207
109,111-113,115-117,120,123,124,131
11134, 54, 55
81,102,109,111-115,118-121,125,130,131,
133,135,137,141,186,197,203
5510,12,99,100,110,
112,113,118,119,121-124,126,128-130,
132, 13453,54
31
9715,20,21,208,209
1,26, 27, 70, 82, 83,86-91,93,94,97,101
103,108,109,112,117,118,129,130,136,144,146,161
4,19217
37, 38, 47
4724,43
98, 109, 146177,183
47
2,27,187,192,204,207,213,215
4331-33,200
53, 21444, 78, 188
5,58,64,90-93,122124, 143
1381,37,48,57,150,181
F
fair hearing, right tofair trial rights
adequate time for preparation ofdefence
appeal to a higher judicial body(see appeal)
competent, independent andimpartial tribunal or court
accused to be present at trialpresumption of innocence
trial within reasonable timelegal assistance and proper
defence (see legal aid; see ulsolegal representation)
G
Genocide
H
Hittite Cadehuman dignity (see dignity)humanitarian law and death penalty
infarmation on consular assistance, right toinhuman, definitian ofinnocence, evidence ofinsanitylnternational Criminal CourtInternational Criminal Tribunals
fer Rwandafer the Former Yugoslavia
internationallawdefinition ofdiscrepancies with domestic lawhorizontal legal system ofminimum obligations
Islamic law
J
juvenilesimposition of death penalty onrestriction of death penalty on
justice, informal
L
legal aidlegal representatíon
liberty, right to
life, right toarbitrary deprivation of
5ubject index 237
81,82,160,169
70,153,156, 159, 174,179
71,107,151-153,158160,162-164,175
178150,151,153,158,
162,163,171166,172,173,175,177
6,138,152
17
22
72, 15897
4,192-19439,43,191
35
4,3535
214
5725
48,187,196
41,42,115,12116,23,24,39,41,42,
155138
156,180,190,215109,149,153,163,166,175,179,180,
189,190,192,193,19622,59,61,92,93,153,
159,171-173
16,24,28,51,52,62,63, 65, 67, 69, 72, 90,
94,158,164
238 Subject index
non-derogation fmmnot absotutequatifiedunquatified
life imprisonment, alternative to deathpenalty
M
mandatory death penattymethods of execution
as cruel and inhumanbeating to deathbeheadingboitingburning at the stakecrucifixiondrawing and quarteringdrowningetectrocutionfiring squad or shooting
gas chamberguiUotinehanging
headman's axeimpalementtethal injectionspearingstoningthe garrottethe wheel
military courtsmitigation or mitigating circumstances or
evidencemoratorium
most serious crimes
murder
N
non-retroactive usenon-derogable rights
p
pardon (see afso amnesty and clemency)
peacetime, abolition of death penalty inpoliticat offences
pregnant women or new mothersimposition of death penalty onrestriction of death penalty for
procedural guarantees (see fair trial rights)public executjons
57,63,15458, 83, 84
66,73-76,78-81,83,8925, 66, 67, 73-75, 78
80,83,84,86,87,10617, 208, 209
50-52, 82
81, 83, 13817
17, 20, 13917171717
17, 1817, 139
17,20,18,138,140,144
17, 13917, 139
17,18,20,31,69,78,108,117,127,138-141,
143, 14417
17, 1817,139,142
1838,43, 139-144, 181
1717
140,173,176,17745, 52, 82, 209
6,26, 27, 32, 53, 54,67,202,204-206,211,
213,214,217,21821,24, 36, 37, 48, 50,
62, 63, 72, 141, 142,152,155,206
18, 20, 43, 49, 69, 7779, 82, 92, 173, 174,
196, 205
35,3857,63,89,101,154
16,23,62,112,117,152,155,184-187
27,67,21118,21,24,30,32;45,
72, 197
39,4016,22,23,39,40,155
139
public opinion
public security
R
racial discriminatianreligious decent as capital affenceretentianist states
Africainternatianal
Retributian
Roman Law af the Twetve Tablets
ssecrecy and death penaltyself defencesexual offencesshari 'a courtsshari'a lawstate security courtsstatus of the death penalty
in Africain internationallaw
sovereigntyas an obstacle to abolitionpriority glven to
Special Court for Sierra Leonesummary executions, princíples on
T
terrorismtorture
death penalty asdefinition afelements afaf trial suspectsprohibitian of
Special Rapparteur ontraditional courtstreasan
trials in abstentia
uubuntuundue delays, trials
vvulnerable graups, protection of
wWartime
abalitian of death penalty incrimesuse af death penalty in
Working Group on the Death Penalty
5ubject index 239
8,31,33,85,110,115,216
15,76,83,109,110
162,187,18849
29-3130
20, Zl, 4Z, 187, Z08,20917
32, 70, 18658, 8818,48
38, 39,43, 177, 1816, 39,41, 140
177,183
2921
4, 8, 15, 335
4, 35138
7,37,46,53,124, Z05
26, 28, 113, 12997,99
99172
57,80,93,98-101,106,126, 127, 133
112,115161
17,18,20,46,49,53,168,173,174,195-197,
203,205156,174,175,178,179
88, 130153,156,160,167,
171, 175
28
27, 21130
22-24, 35, 67, 2118,203