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6 posts from July 2012


Ghana Accepts Constitution Review Commission’s Recommendation to Abolish the Death Penalty

On July 10, the Constitution Review Commission’s recommendation for abolition of the death penalty was accepted by the Ghanaian government in a White Paper which stated that the death penalty would be replaced with life imprisonment in Art. 13 of the Constitution. This is an enormously significant development for this West African country. The White Paper added: “The sanctity of life is a value so much engrained in the Ghanaian social psyche that it cannot be gambled away with judicial uncertainties.”

Ghana is defined as an abolitionist de facto state by the United Nations, meaning that it has not carried out executions in the past 10 years. The last execution took place in 1993. No Ghanaian president has signed or approved executions since then. In the last three United Nations General Assembly Moratorium votes on the use of the death penalty—held in 2007, 2008 and 2010—Ghana abstained from voting.

In January 2010, the President of Ghana, Mr. John Evans Atta Mills, established the Constitution Review Commission as a separate entity. The Commission was formed to submit recommendations—in consultation with Ghanaian citizens—regarding amendments to the constitution. For the last two years, there has been national debate about the efficacy and necessity of the death penalty in Ghana. Moreover, the National Constitutional Conference, held in 2011 in Accra, raised the issue of retention or abolition of the death penalty. At this conference, a spokesperson for Hands Off Cain and the OSCE Committee on Human Rights, Democracy and Humanitarian Issues recommended abolishing the death penalty to the Constitution Review Commission. Although the Commission’s recommendation for abolition of the death penalty has been accepted by the Government of Ghana, this amendment will likely not go into effect until after this year’s elections. It is estimated that 83,616 submissions were received from Ghanaian citizens—both at home and abroad—concerning constitutional amendments. The process that led to the government’s decision to abolish the death penalty illustrates the importance of international and national dialogue to bring about the conditions necessary for abolition.

You can find Death Penalty Worldwide’s research on capital punishment in Ghana here

-- Anna Jackson



No exceptions: South Africa’s Constitutional Court upholds mandatory assurances against the death penalty in all cases

The standard practice among abolitionist nations is to insist on ‘satisfactory assurances’ that the death penalty will not be imposed or carried out before allowing the surrender of individuals to another country in which they face a possible death sentence or execution upon their return. So widespread is this version of the non-refoulement principle that it is now an international human rights norm: abolitionist nations are required in all circumstances to seek and obtain appropriate assurances, and failure to do so is a breach of the sending State’s binding international obligations.

Generally speaking, the norm operates smoothly and effectively; however reluctantly, retentionist nations typically do provide and abide by the necessary assurances (recent examples include the United States, Thailand and China). But what happens when the requesting State absolutely refuses to provide the necessary assurances? Does this mean that a murderer can avoid punishment simply by crossing a border, or must the failure to obtain the necessary guarantees result instead in the fugitive’s indefinite detention without trial? In these unusual cases, is there any satisfactory alternative to surrender without assurances?

Two recent cases in South Africa highlighted these troubling questions. Emmanuel Tsebe and Jerry Phale were both accused of murder in Botswana and were arrested after they fled to South Africa. Botswana sought the extradition of both men, but refused South Africa’s request to provide guarantees against the death penalty. Unable to extradite and powerless to prosecute, South African authorities then attempted to deport the men without any protection against death sentencing. However, the High Court ruled that the suspects could not be removed from South Africa “without the written assurance from the Government of Botswana that the applicant will not face the death penalty there under any circumstance.”  The South African government appealed the decision, arguing that it had discharged its constitutional obligations by seeking assurances as a condition of extradition and that a capital deportation was lawful where the detainee would otherwise avoid prosecution for murder.

On July 27, the Constitutional Court of South Africa provided a balanced and principled answer to the dilemma. In Minister of Home Affairs and Others v Tsebe and Others, the Court unanimously upheld the lower court’s ruling. The Court found no reason to distinguish this case from its 2001 decision holding that the surrender of any person facing a real risk of the death penalty would violate the  constitutional rights to life and human dignity and the right not to be subjected to cruel, inhuman and degrading punishment or treatment. There is “no exception to this principle,” the 11 judges ruled, and the difficulties that may arise “cannot override the need for us as a nation to stay on course on the path we have chosen for ourselves to respect, protect, promote and fulfil human rights, to observe our Constitution and deepen the values upon which we have chosen to create our new society.”  The Court also found a real risk that the men would face the death penalty upon their return, noting that “imposition of the death sentence on those convicted of murder in Botswana” is “mandatory where there are no extenuating circumstances.” As the summary of the judgment notes, Tsebe expands the Court's previous jurisprudence by requiring “not only that the South African Government seek assurance, but also obtain that assurance” in all cases. 

But the Court did not stop there. Addressing the “legitimate concerns” raised by the government, the majority pointed to a straightforward solution: the passage of draft legislation giving the South African courts “jurisdiction to try crimes that have been committed outside the borders of this country” in such cases would resolve the difficulty of a requesting State refusing to provide assurances. This option would satisfy the government’s necessary commitment to “sparing no effort in fighting crime” and negate the risk of the country becoming a “a safe haven for illegal foreigners and fugitives from justice,” while meeting the constitutional duty to “not be party to the killing of any human being as a punishment – no matter who they are and no matter what they are alleged to have done.” 

The full text of this historic judgment is available here in PDF format.

--- Mark Warren


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Developments on the Death Penalty in Jordan

In mid-June 2012, the World Coalition Against the Death Penalty organized its 10th annual General Assembly, hosted by Penal Reform International in Amman, Jordan. This General Assembly focused on the progress made, existing challenges and strategies towards the abolition of the death penalty in the Middle East, North Africa and abroad. There were over 130 civil society organizations in attendance, including the Jordanian media and a number of non-profit and non-governmental organizations. The topics discussed as crucial for the coming years included: “1. the adoption of the United Nations General Assembly moratorium resolution on the death penalty (set to be discussed December 2012); 2. steps towards developing and adopting an Optional Protocol to the African Charter on Human Rights on abolition of the death penalty; 3. the SAFE California Campaign and abolition of the death penalty in Connecticut.”

The General Assembly was opened by the Secretary General of the Jordanian Ministry of Justice, Judge Dr. Mustafa al-Assaf, who discussed the progress that Jordan has made toward the abolition of the death penalty, as well as the challenges that remain. Jordan is a retentionist state, meaning that the state retains capital punishment for certain crimes and has carried out executions within the last ten years (the last execution took place in March 2006).  Nevertheless, courts continue to impose death sentences as a form of punishment, as demonstrated by the 74 Jordanians currently under sentence of death (including seven Jordanians sentenced to death just this year)—all for crimes involving premeditated murder. In recent years, the Jordanian Penal Code has been amended to limit the number of crimes for which the death penalty can be applied. At present, the following crimes are punishable by death: murder, rape (of a girl under 15), some drug-related offenses, espionage, treason and terrorism.

At the latest United Nations General Assembly session in 2010, Jordan abstained from voting on a resolution calling for a moratorium on the death penalty. Jordan’s abstention, taken together with its decision not to carry out any executions for the last six years, indicates that the government may be moving toward abolition of capital punishment.

Elsewhere in the Middle East and North Africa, political change has brought renewed scrutiny of the death penalty. Thus far, however, none of the newly elected democratic governments have moved definitively to abolish the death penalty. In Jordan, the hiatus in executions provides an opportunity for reflection on whether the death penalty is a deterrent, whether its practice is consistent with international standards and whether a society moving towards a more liberated present can afford to retain this practice. 

-Anna Jackson



Benin Signs International Treaty, Commits to Abolishing the Death Penalty

On July 5, 2012, Benin became the 75th state to accede to the Second Optional Protocol of the International Covenant for Civil and Political Rights. The 1989 human rights treaty aims at the universal abolition of the death penalty. By becoming a state party, Benin pledges to immediately cease carrying out executions and to take all necessary measures to abolish the death penalty within its jurisdiction. 

Benin has not carried out any executions in almost 25 years. The two last individuals to be executed, in 1987, had been convicted of ritual murder. Despite the long-standing de facto moratorium on executions, Benin’s attitude towards the death penalty only began shifting towards abolition in recent years. As recently as 2006, Benin’s minister for justice declared that the death penalty had to be maintained to deter foreign criminals.

The turning point came in 2009-2010, when the president tabled an abolition bill before the National Assembly. Under this bill, the death penalty would have been prohibited by Benin’s constitution. While that bill did not pass, in August 2011 the National Assembly voted overwhelmingly (55 to 5) in favor of ratifying the Second Optional Protocol, and therefore in favor of abolition.

Benin is poised to join the 104 countries that have already abolished the death penalty – more than half of the world’s states.  The number of countries that retain the death penalty has decreased steadily over the past two decades. Last year, 21 countries carried out executions. In 2012, so far, only 12 are known to have executed individuals.

Death Penalty Worldwide’s full updated entry for Benin can be found here.

-- Delphine Lourtau



Singapore to Introduce Discretionary Sentencing for Drug Couriers

In a major shift, Singapore’s government announced this week that it intends to abolish the mandatory death penalty for certain crimes relating to drug trafficking. 

According to media reports, Deputy Prime Minister Teo Chee Hean told Parliament that a drug courier who is not involved in the supply or distribution of narcotics would not face the mandatory death penalty, so long as one of two conditions is met:  (1) he must cooperate with authorities in a "substantive" way, or (2) he must have a mental disability that "substantially impairs" his judgment of the gravity of the act.

The Singapore Law Society characterized the announcement as a “historic moment for the criminal justice system in Singapore.”  The Association of Criminal Lawyers of Singapore stated:  “Death row inmates deserve punishment, but not all deserve death. These new measures are progressive and will have (a) massive impact on the criminal justice system."

There are currently 35 individuals on Singapore’s death row, many of whom should benefit from the changes in the law.  According to the Association of Criminal Lawyers of Singapore, the government is considering applying these changes retroactively.  It is not yet clear how many of the 35 condemned prisoners would qualify for resentencing under the proposed legislation.  One of them is Cheong Chun Yin, who was sentenced to death for carrying heroin from Myanmar to Singapore.  Another is Yong Vui Kong, a Malaysian national who was only 19 years old when he was arrested for possession of 47 grams of heroin and sentenced to death.

In a separate statement, Singapore announced its intention to restrict the mandatory death penalty in homicide offenses to individuals who have an express intention to kill.  Singapore’s announcement is an important step toward compliance with international norms that restrict the death penalty to the “most serious offenses.”  Singapore has long been one of the most stalwart defenders of the death penalty in the United Nations, and its decision to restrict the application of the death penalty may have ripple effects in Southeast Asia.

Even with these changes, however, Singapore’s application of the death penalty fails to conform to international human rights norms.  The mandatory death penalty has been condemned by a number of international and domestic courts as an arbitrary and inhumane punishment, as it precludes judges from considering the facts of the offense and the individual characteristics of the offender in determining an appropriate sentence. 

-- Sandra Babcock