Towards the Abolition of the Death Penalty in Africa: A Human Rights Perspective

Lilian Chenwi

Description

In Towards the abolition of the death penalty in Africa - a human rights perspective, the author shows that international law increasingly recognises that the imposition and execution of the death penalty constitute violations of human rights. The author locates an emerging international trend towards the abolition of capital punishment in the African context. In doing so, she provides a particular African perspective on the issue. In this rich and informative text, she reflects on the role and impact of relevant UN instruments on African states, and analyses related African regional instruments, domestic law and case-law.About the editor:Lilian Chenwi is Associate Professor, School of Law, University of the Witwatersrand

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2007
• Nombre de lectures: 0
• EAN13: 9780980265804
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

TOWARDS THE ABOLITION OF THE DEATH PENALTY IN AFRICA A human rights perspective

Lilian Chenwi

2007

Towards the abolition of the death penalty in Africa: A human rights 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 of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa that have been peer-reviewed. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see: www.chr.up.ac.za/pulp

Printed and bound by: ABC Press Cape Town

Cover design: Yolanda Booyzen, Centre for Human Rights

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.chr.up.ac.za/pulp

ISBN: 978-0-9802658-0-4

© 2007 Copyright subsists in this work. It may be reproduced only with permission of the author.

ACKNOWLEDGMENTS

PREFACE

Table of Contents

ACRONYMS AND ABBREVIATIONS

TABLE OF CASES

TABLE OF SELECTED STATUTES

TABLE OF AFRICAN NATIONAL CONSTITUTIONS

TABLE OF INTERNATIONAL INSTRUMENTS

One / Introduction

Two / History, current status and application of the death  penalty in Africa

Three / The right to life and the death penalty in Africa

Four / The prohibition of cruel, inhuman or degrading  treatment or punishment and the death penalty  in Africa

Five / Fair trial rights and their relation to the death  penalty in Africa

Six / Conclusion

BIBLIOGRAPHY

OTHER INTERNATIONAL DOCUMENTS

SELECTED WEBSITES

SUBJECT INDEX

v

vi

viii

x

xvii

xix

xxi

1

15

57

97

149

199

219

228

234

235

Dedication

For my mother Mrs Mary Magdalene Chenwi And in memory of my father Mr Henry Shu Chenwi

Acknowledgments

This book is based on my doctoral thesis, the completion of which I could not have achieved alone. I express gratitude to Professor Frans Viljoen for acting as supervisor of my doctoral thesis and for setting me on this path, and to Professor Michelo Hansungule, the co-supervisor of my doctoral thesis. Thanks also go to the following persons and institutions: Tina Rossouw for her assistance in sourcing materials from the Oliver R Tambo Library at the Faculty of Law, University of Pretoria; Euphemia Chenwi, MariaGoretti Tutuwan, Irene Chenwi, Quinta Chenwi, William Chenwi and Norman Taku for their moral support; the Centre for Human Rights for giving me the opportunity to do my doctoral studies; and the British Institute of International and Comparative Law, andEnsemble Contre la Peine de Mort and Penal Reform International for assisting me to attend the First International Conference on the Death Penalty in Commonwealth Africa and the Second World Congress Against the Death Penalty, respectively. Thanks are also due to the Community Law Centre of the University of the Western Cape. A word of thanks also goes to the following people who assisted in the technical preparation of this publication: Lizette Besaans; Yolanda Booyzen and Denise Fourie.

v

Preface

This book arrives at an appropriate time. Although the world-wide movement towards the abolition of the death penalty has gathered momentum, advances remain fragile. Some of the world’s most populous and economically powerful states, particularly the United States and China, not only still retain the death penalty but actually execute those sentenced to death. The tenuousness of advances is also illustrated in the remarks of the new UN Secretary-General Ban Ki-Moon, soon after he assumed office in January 2007. Upon being asked to comment on the execution of Saddam Hussein, he underlined that, in the absence of universal consensus on the issue, the position of each state should be respected. Later, apparently under pressure from the UN High Commissioner for Human Rights, Louise Arbour, he was forced to reiterate unequivocally the long-standing institutional UN prin- cipled stance against the death penalty. In South Africa, where the death sentence was removed from the statute books after a judgment of the Constitutional Court in 1995, populist calls for its reintroduction are continuously heard. Remarkably, the ‘liberal’ opposition (the Democratic Alliance) does not have a principled position, but allows for a ‘free vote’ on this question.

The issue of the death penalty may be approached from many angles, including the moral, philosophical, ethical — and legal. More particularly, as in this book, the focus may fall on the legally binding human rights obligations of states, derived from treaties that they have ratified. By adopting this perspective, the author essentially deals with human rightslaw, and puts forward arguments to reinforce an emerging trend to abolish capital punishment on the basis of international human rights law obligations of states.

Although there is no conclusive consensus that capital punishment, as such, violates human rights obligations under international law, numerous aspects of its application raise consistent human rights concerns. There is consensus that this form of punishment should only be imposed for the ‘most serious offences’, and only after all fair trial guarantees have been observed. However, in most states that retain this form of punishment, these two minimum requirements often are not met. In Africa, in particular, structural deficiencies in the criminal justice system greatly increase the risk of unfair trail proceedings. A recurring problem is inadequate legal representation. Those charged with capital offences usually do not have the means to appoint counsel, and depend onpro deowhich in Africa is often representation, inadequate. In addition, accused persons facing the death penalty may not be familiar with the language of the law, making them dependent on interpreters who may not be present at all the required stages.

It is also cruel and inhumane that someone sentenced to death should live in the shadow of the gallows for an extended period of time, exposing him or her to the ‘death row’ phenomenon.De factostates (that is, abolitionist states that allow the imposition but not the execution of death sentences) leave inmates on death row to live lifetimes of uncertainty. However, this criticism should not be viewed as an invitation tode factoabolitionist states to execute inmates awaiting death. In any event, the numbers of inmates on ‘death row’ are so great that it is unthinkable to execute all of them in one go. Rather, states should abolish the death penalty and commute the sentences of those already sentenced to death. Allowing the death sentence as a remote possibility leaves the door open for its arbitrary use in cases that will serve short-sighted and expedient political objectives. This criticism is similarly valid in respect of the imposition of the death sentence where some judicial discretion is usually allowed for.

vi

While capital punishment in itself arguably violates the right to life, the method of execution (such as hanging and stoning) often adds a dimension of cruelty, which dehumanises all who are involved in the process.

An emerging international trend towards abolition has found support on African soil, at both the national and regional levels. At the national level, the abolition of capital punishment has coincided with greater demo- cratisation in Africa after 1990. Before that date, only one African state (Cape Verde) had abolished the death penalty for all crimes; since 1990, a further twelve states have followed suit. Accomplishing regional adherence will not be plain sailing. Some of the most powerful countries (such as Egypt and Nigeria) and most states in Muslim North Africa retain capital punishment in practice. At the regional level, the African Commission on Human and Peoples’ Rights in 1999 followed the lead of the UN Sub-Commission on the Promotion and Protection of Human Rights by calling on all AU members states to ‘consider establishing a moratorium on executions’ and to ‘reflect on the possibility of abolishing the death penalty’. This book traces the emergence of a ‘trend’ towards a legally binding obligation on states.

In so far as the law allows for the possibility of capital punishment, the law must also be the means for its abolition. In a number of post-1989 Constitutions of African countries this has been done: Cape Verde 1992 Constitution, art 27(2); Mozambique 1990 Constitution, art 70(2), Namibia 1990 Constitution, art 6; Seychelles 1993 Constitution, art 15(2)). In the absence of clear constitutional guidance, abolition requires legislative inter- vention. As the South African situation illustrates, a progressive inter- pretation of existing law by an activist judiciary may provide the pivot that could steer the legislature towards abolition. For this reason, the author thoroughly canvasses important judicial decisions in countries such as Nigeria, South Africa, Tanzania, Uganda and Hungary. Law is often not enough, though. As a recent publication on the overturning of the death sentences imposed on two Basarwa men in Botswana (E Maxwell & A Mongwe, Inthe shadow of the noose(2006)) illustrates, legal challenges supported by social mobilization 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 the comments by external examiners and reviewers. The thesis was submitted to the Centre for Human Rights, Faculty of Law, University of Pretoria, and the degree LLD was awarded to the author in September 2005. I acted as supervisor, and Professor Michelo Hansungule as co-supervisor. The complete text of the thesis, which consists of seven chapters, is accessible at http:// upetd.up.ac.za/thesis/available/etd-10062005-151306/. In the thesis, the author deals in greater length with penological and extra-legal arguments in favour of, and against, the death penalty.

This book makes a significant, ‘African’ contribution to the growing literature that focuses on the death penalty, by updating and extending the limited focus on Africa in the two standard texts dealing with the death penalty (W Schabas,The abolition of the death penalty in international law (in 1997, second edition in 2002) and R HoodThe death penalty: A world wide perspective(2002)). It is published in line with PULP’s mission of promoting a voice to younger academics and a space for scholarship that is of particular relevance to Africa.

Frans Viljoen Centre for Human Rights, Pretoria March 2007

vii

AAR AC ACHPR ACHR ADRDM AHRLR AI All ER ANC AU BCLR BHRC CA CAT

CC C & F CPT

CRC DOC DRC ECHR ECOSOC ECOWAS EHRR ESCOR ETS F 3d F SUPP GA GAOR GLR HC HRC IAYHR ICC ICJ ICCPR ICTR ICTY ILM JCPC LRC MDC NGO NO NWLR OAS OAU PACE Para PC RLR SA

Acronyms and abbreviations

- - - - - - - - - - - - - -

- - -

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Annual Activity Report Appeal Cases African Commission on Human and Peoples’ Rights American Convention on Human Rights American Declaration of the Rights and Duties of Man African Human Rights Law Reports Amnesty International All England Reports African National Congress African Union Butterworths Constitutional Law Reports Butterworths Human Rights Cases Court of Appeal UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Constitutional Court Clark and Finelly’s House of Lords Cases European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Convention on the Rights of the Child Document Democratic Republic of Congo European Court of Human Rights Reports Economic and Social Council Economic Community of West African States Essex Human Rights Review Economic and Social Council Official Records European Treaties Federal Reporter Third Series Federal Supplement General Assembly General Assembly Official Records Ghana Law Reports High Court Human Rights Committee Inter-American Yearbook on Human Rights International Criminal Court International Commission of Jurists International Covenant on Civil and Political Rights International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Legal Materials Judicial Committee of the Privy Council Law Reports of the Commonwealth Movement for Democratic Change Non-Governmental Organisations Number Nigerian Weekly Law Report Organisation of American States Organisation of African Unity Parliamentary Assembly of the Council of Europe Paragraph Privy Council Rhodesian Law Reports South African Law Reports

viii

SC SCOR SCR SCSL SCZ SJC TLR TRC UDHR UHRC UN UNCHR UNHRC UNTS USA VOL WL WLR YB ZLR

- - - - - - - - - - - - - - - - - - - -

Supreme Court Security Council Records Supreme Court Reports Special Court for Sierra Leone Supreme Court of Zambia Supreme Judicial Court Tanzanian Law Reports Truth and Reconciliation Commission Universal Declaration of Human Rights Ugandan Human Rights Commission United Nations United Nations Commission on Human Rights United Nations Human Rights Committee United Nations Treaty Series United States of America Volume Westlaw Transcripts Weekly Law Reports Year Book Zimbabwe Law Reports

ix

Table of cases

African Commission on Human and Peoples’ Rights

Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, Communications 68/92 and 78/92 (2000) AHRLR 144 (ACHPR 1995)

Amnesty International and Others v Sudan, Communications 48/ 90, 50/91, 52/91, 89/93 (2000) AHRLR 297 (ACHPR 1999)

Constitutional Rights Project (in respect of Akamu and Others) v Nigeria, Communication 60/91 (2000) AHRLR 180 (ACHPR 1995)

Constitutional Rights Project (in respect of Lekwot and Others) v Nigeria, Communication 87/93 (2000) AHRLR 183 (ACHPR 1995)

Forum of Conscience v Sierra Leone, Communication 223/98 (2000) AHRLR 293 (ACHPR 2000)

Huri-Laws v Nigeria, Communication 225/98 (2000) AHRLR 273 (ACHPR 2000)

International Pen and Others (on behalf of Saro-Wiwa) v Nigeria, Communications 137/94, 139/94, 154/96 and 161/97 (2000) AHRLR 212 (ACHPR 1998)

Interights et al (on behalf of Bosch) v Botswana, Communication 240/2001 (2003) 55 AHRLR (ACHPR 2003)

Malawi African Association and Others v Mauritania, Communications 54/91, 61/91, 98/93, 164-196/97 and 210/98 (2000) AHRLR 149 (ACHPR 2000)

Organisation Mondiale Contre la Torture and Others v Rwanda, Communications 27/89, 46/91, 49/91 and 99/93 (2000) AHRLR 282 (ACHPR 1996)

Pagnoulle (on behalf of Mazou) v Cameroon, Communication 39/ 90 (2000) AHRLR 57 (ACHPR 1997)

African national courts

Attorney General v Abuki(2001) 1 LRC 63 (SC, Uganda)

Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General and Others1993 (1) ZLR 242 (S) (SC, Zimbabwe)

Chileya v S(unreported) SC 64/90 (1990) (SC, Zimbabwe)

Conjwayo v Minister of Justice and Another1991(1) ZLR 105 (SC, Zimbabwe)

Dhlamini and Others v Carter NO and Another(1968) 1 RLR 136 (Appellate Division of the High Court of Rhodesia (now Zimbabwe))

Dogbe v The Republic(1976) 2 GLR 82 (Ghana)

x

105, 161, 196

69, 105, 162, 163, 164, 177

161, 177, 183

161, 177, 181, 183

68, 69, 184

105

69, 71, 162, 164, 172, 177, 184

7, 69, 104, 203

105

105

169

108

116, 126, 129

108

115

125

174

Table of cases xi

Joseph Mutaba Tobo v The People(unreported) SCZ Judgment No 2 of 1991 (SC, Zambia)

Joseph Mwandama v The People(unreported) SCZ Appeal No 127 of 1995 (SC, Zambia)

Kalu v The State(1998) 13 NWLR 531 (SC, Nigeria)

Kaunda and Others v The President of the Republic of South Africa and Others(2004) 10 BCLR 1009 (CC)

Lemmy Bwalya Shula v The PeopleSCZ Appeal No (unreported) 122 of 1995 (SC, Zambia)

Mbushuu and Another v The Republic (1995) 1 LRC 216 (CA, Tanzania)

Mohamed v President of the Republic of South Africa and Others 2001 (7) BCLR 685 (CC, South Africa)

Mohammed Garuba and Others v Attorney General of Lagos State and Others(Suit No ID/559m/90 (HC, Lagos State, Ikeja Judicial Division)

Nemi and Others v The State(1994) 1 LRC 376 (SC, Nigeria)

Prah and Others v The Republic(1976) 2 GLR 278 (Ghana)

Re Mlambo(1993) 2 LRC 28 (SC, Zimbabwe)

Republic v Arthur(1982-83) GRL 249 (Ghana)

Republic v Mbushuu and Another(1994) 2 LRC 335 (HC, Tanzania)

S v Makwanyane3 SA 391 (CC); (1995) 6 BCLR 665 (CC, (1995) South Africa)

S v Ntesang(1995) 4 BCLR 426; (1995) 2 LRC 338 (CA, Botswana)

S v Ntuli(1996) 1 BCLR 141 (CC, South Africa)

Sanderson v A-G[1997] 12 BCLR 1675 (CC, South Africa)

Smyth v Uhsewokunze(1998) 4 LRC 120 (SC, Zimbabwe)

Turon v R(1967) E.A 789 (CA, Kenya)

Human Rights Committee

Bailey v Jamaica, Communication 334/1988, UN Doc. A/48/40, 31 March 1993

Barret and Sutcliffe v Jamaica, Communications 270/1988 and 271/1988, UN Doc. A/47/40, 30 March 1992

Birindwa and Tshisekedi v DRC, Communication 241/1987, UN Doc. CCPR/C/37/D/241/1987, 29 November 1989

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