Death Penalty Related Positive Developments (2002-2005) Country Botswana
Positive Developments
Cameroon
Ghana
Source and Project Involvement
March 2005: due to the intervention of Ditshwanelo, a local human rights NGO, a stay of execution was granted in 1999 in the case of two men previously sentenced to death in April 1997. A re-trial was ordered on the grounds that they had not received a fair trial in the initial proceedings. The trial however did not begin until late 2004 and so the defence attorneys filed successfully for a permanent stay of prosecution on the grounds of unreasonable delay. Justice Walia, granting the request and acquitting the two accused, held that ‘there had been an unjustified delay on the part of the State in prosecuting the case, depriving the applicants of their right to a fair trial within a reasonable time’. The state has appealed against the decision and the appeal is to be heard soon. 2004: A communication is still pending before the African Commission on Human and People’s Rights regarding the Kobedi case. Mr. Kobedi was executed on 18 July 2003. The communication alleged that the imposition of the death penalty violated the African Charter on Human and People’s Rights. The communication was by Advocate Brian Spilg from South Africa, Attorney U. Mack from Botswana, and DITSHWANELO – The Botswana Centre for Human Rights. The Admissibility hearing was due to take place during the 35th Session of the ACHPR held in Banjul, The Gambia from 21 May to 4 June 2004. The Government of Botswana requested a postponement on grounds that they were unprepared. The hearing was then deferred to the 36th Session to be held in Dakar, Senegal from 23 November to 7 December 2004.”
National Coordinator’s Report
2005: Preparation of a Memorandum to the Head of State challenging the constitutionality of the sections of the Cameroon Penal Code on the death penalty. December 2004: the President of the republic passed decree n. 2004/344, commuting all death sentences that had become final, as at the date of signature of the decree, to life imprisonment. The decree also provides for the commutation and remission of other types of sentences (i.e. not capital ones). July 2004: Justice Department official said that death sentences were no longer carried out and that they were usually commuted to life imprisonment in response to petitions for presidential clemency. He said that 27 petitions were under examination, but provided no information about those still under sentence of death. Death sentences were last carried out in 1997.
National Coordinator involved.
Decree n. 2004/344 of 29th December 2004 on the commutation and remission of sentences
Amnesty International Report 2005, The state of the world’s human rights, www.amnesty.org
September 2004: Justice Felix Michael Lartey (Ghana Supreme Court Nominee) recently stated that the death sentence should be expunged from the Ghanaian Statute books, because the death penalty was not serving any purpose. Furthermore, in front of a 25 member Vetting Committee of
Hands Off Cain www.handsoffcain.org (Source: Accra Mail, 17/09/2004)
Kenya
Lesotho
Malawi
Parliament, he stated that punishment for first degree felony was meant to act as a deterrent; yet it has failed to do so. "Capital punishment serves no useful purpose now because it has been carried out many times but the offences have not stopped recurring.” "Killing is brutal and I think where a person is found guilty of a first degree felony that person should be kept somewhere for the rest of his life to suffer natural torture" he said. February 2005: the High Court started hearing a case in which an accused, Mr. Obwoka, charged with robbery with violence has sought to impugn the constitutionality of the death penalty as it relates to robbery with violence cases. Counsel for the accused argued that the sentence is inhuman and degrading, as offenders are not given a fair hearing like those charged with murder, treason and under Armed Forces laws. Counsel furthermore contended that section 296 (2) of the Penal Code, which deals with capital robbery should be declared null and void as it violates sections 70, 71 and 74 of the Constitution, which guarantee fundamental rights and freedoms of the individual and protection of right to life. The High Court has not yet made a decision on the question. The matter is still pending but this is the first time a challenge has been made on the penalty through the court process. March 2004: the National Constitutional Conference decided to retain the death penalty for murder and for the raping of minors, while abolishing it for treason and robbery with violence. March 2004: Kenyan President Mwai Kibaki commuted into life imprisonment all death sentences in the country. 2004: A total of 101 death row prisoners were released following a court ruling that the prosecution’s case had been led by officers below the rank of inspector, as required by the Penal Code. The legality of the release was questioned, as the law provides that death row convicts can be released only by the Court of Appeal or by presidential amnesty. No executions have been carried out in Kenya since the mid 1980s and in 2003 President Kibaki commuted 195 death sentences. 2004-05: in the case Tselise Monaleli and Another v. Rex C. of A (CRI) 6/2004, the High Court did not impose the death sentence on grounds that there were ‘extenuating circumstances’. The application of the provision on extenuating circumstances has always had a salutary effect on the death penalty in Lesotho's jurisdiction. Of the murder convictions handed down by the High Court both last year and so far this year, no death penalty was imposed as there were always extenuating circumstances. 2005: Currently in progress is the preparation, by the Lawyers chapter of the Civil Liberties Committee, of a constitutional challenge of the mandatory death penalty for murder. 2005 An Amendment has been made to the Penal Code Amendment Bill,
Daily Nation www.nationmedia.com/dailyna tion Hands Off Cain www.handsoffcain.org Amnesty International Report 2005, The state of the world’s human rights, www.amnesty.org
Report of National Coordinator, M. A. Owori
National Coordinator involvement.
National Coordinator
Nigeria
Sierra Leone
which will give judges the discretion of whether or not to impose the death penalty or life imprisonment. This is a radical departure from what used to be the norm in Malawi, where the death penalty has always been mandatory. The Amendment Bill has already passed through Cabinet and should be tabled before Parliament soon. April 2004: President of Malawi Bakili Muluzi commuted the death sentences of 79 prisoners and freed 320 others in a gesture to coincide with Easter, marking another step by Malawi's leader to improve human rights. The death penalty is still on the statute books, but there have been no executions since 1992 and President Muluzi has made a personal commitment not to sign execution orders while in office. He has repeatedly commuted death sentences. November 2004: The Nigerian government said it would take a definite position on the nation's death penalty act in 2005 with a view to abolish or retain capital punishment in the judicial system. October 2004: The National Study Group on the Death Penalty presented its report to the Federal Government of Nigeria on 22 October 2004. The Study Group recommended that the sentences of all death row prisoners whose appeals have been concluded should be commuted to life imprisonment. Moreover, it called on the Federal Government to impose a moratorium on all executions until the Nigerian justice system could guarantee fair trials and due process in capital cases and minimize the risk that innocent people will be executed. The Federal Government had not imposed a moratorium by the end of the year. November 2003: President Chief Olusegun Obasanjo initiated a Parliamentary debate on the death penalty which commenced on 13 November 2003. On the same date, the National Study Group on the Death Penalty was inaugurated by the Minister of Justice and the Attorney General of the Federation. The Study Group was in charge of conducting a national debate in Nigeria. 2005: Establishment of Campaign Against the Death Penalty to campaign against the death penalty and launch constitutional challenges to the death penalty. First challenge launched in the Court of Appeal in the case of The State v Mariama Thoronka. June 2005: Government published the White Paper on the TRC report indicating that it will not abolish the death penalty. October 2004: the TRC published its report. Among its key recommendations, the TRC asked the government to ‘abolish the death penalty by repealing immediately all laws authorizing the use of capital punishment’. This recommendation is categorized as ‘imperative’, that is, the government ought to implement it ‘without delay’. The TRC further recommended the introduction of a moratorium on all executions pending a vote on abolition of the death penalty
Hands Off Cain www.handsoffcain.org
Amnesty International www.amnesty.org
Hands Off Cain www.handsoffcain.org
Statement of the Chairperson, National Study Group on Death Penalty, Professor O. Bamgbose, 22 October 2004 (forwarded by Udo Ilo, National Coordinator)
HURILAWS involved in consultation.
Amnesty International www.amnesty.org
National Coordinator involved.
Swaziland
Tanzania
Uganda
by Parliament. It also urged that any pending death sentences should be immediately commuted by the President. 2000: the Truth and Reconciliation Commission (TRC) was established by the government to create an impartial record of human rights abuses committed during the armed conflict and to provide a forum for victims and perpetrators to recount their experiences. It is worthy of note that there have still been no executions in Swaziland since 1983 even though there are still 3 persons on the death row. 2005: It is encouraging to note that last month, the Prime Minister came out in Parliament to express the view that the death penalty may soon be abolished in Swaziland as a punishment option. He hinted at two possible reasons for this volte face: it is unbearably expensive to keep prisoners on death row when they are not being executed; the search for a replacement hangman has been unsuccessful. 2005: Draft Constitution passed by Parliament and awaiting Royal Assent. 2005: Preparation of a communication to the African Commission on human and people's Rights concerning the Tanzania Court of Appeal decision that death penalty in Tanzania is Constitutional. Will also argue unfair trial for persons awaiting trial or appeal in death penalty cases as breach on relevant provisions under the African Charter. 2004: President Mkapa –marking Tanzania’s 43rd independence anniversarypardoned 3,656 prisoners including those convicted of murder when they were under 18 years of age and those who were sick to the extent that if they continued being in prison it could result in their deaths; April 2002: President Benjamin Mkapa commuted to life imprisonment the death sentences of 100 people convicted of murder. June 2005: ‘Petition challenging the Constitutionality of the Death Penalty
in Uganda’ was brought before the Constitutional Court of Uganda in 2003. S. Kigula and 416 other death row convicts filed a case seeking the court to rule on the constitutionality of capital punishment. All but four of the 417 petitioners were sentenced to death as a result of mandatory sentences, which were prescribed by the laws of Uganda. Their petition was primarily based on the brutality of capital punishment. The 14 lawyers challenging the death penalty urged the court to abolish the death penalty and replace it with punishments such as life imprisonment. The petition was argued on 4 grounds and the Court found as follows: The death penalty is inconsistent with and in contravention of the Constitution of Uganda because it is cruel, inhuman and or degrading. Justice Okello rejected the petitioners’ arguments finding that the
Amnesty International www.amnesty.org
National Coordinator
National Coordinator involvement.
Notified by Keir Starmer QC a lawyer involved in the petition and co-author of the project’s publication. Judgment sent by National Coordinator, Emmanuel Kasimbazi. S Kigula, F Tindigwihura, B Ogwang and 414 Others v. Attorney General, Petition challenging the Constitutionality of the Death Penalty in Uganda, Constitutional Court of Uganda, Petition No. 6 of
Zambia
Ugandan Constitution recognizes the death penalty as an exception to the right to life and therefore prescribing such sentence is not inconsistent with the Constitution and does not constitute cruel, inhuman or degrading punishment. Mandatory death sentences and the prohibition of the right of appeal are unconstitutional as they curtail the right to a fair hearing. In commenting on the distinction between the application of the sentence of death and other sentences, Justice Okello comments that “I can think of no possible rationale at all for that distinction yet, a person facing death sentence should be the most deserving to be heard in mitigation”. This, coupled with the inability to appeal against sentence was found to be repugnant to the principle of equality before the law and fair trial and therefore the laws prescribing a mandatory death sentence are unconstitutional. Of interest in the current climate is that amongst these laws the recent Anti-Terrorism Act 2002 is included. Death by method of hanging is inconsistent with the Constitution. Taking into account his finding that passing the sentence of death is permitted under the Constitution, Justice Okello stated that it follows that the implementing or carrying out of the death penalty by hanging cannot be cruel, inhuman or degrading. The lengthy periods between conviction and execution renders this punishment as exceedingly cruel and as degrading treatment. Justice Okello held that even though he found the imposition of the death penalty itself constitutional, the condemned persons did not lose all their constitutional rights and still had the right not to be subjected to cruel, inhuman and degrading treatment which resulted from the death row phenomenon. He states that “Death row syndrome arises from the harsh conditions and anguish in the death row. It is recognized worldwide. Uganda as a member of the global village cannot shut its eyes to the fact of death row phenomenon.” Having reproduced a detailed account of life on death row by an inmate, Justice Okello holds that such conditions and treatment are unacceptable by both Ugandan and the civilized international communities. On the issue of delay he stated that three years is inordinate and therefore not constitutionally permissible. President Mwanawasa has made a commitment not to sign execution orders and has commuted 60 death sentences in 2004. May 2004: President Mwanawasa commuted the death sentences of 15 prisoners convicted of murder and aggravated robbery. According to
2003.
Amnesty International www.amnesty.org
Zimbabwe
presidential press aide Jack Kalala, the 15 death sentences were replaced with sentences ranging from 20 to 50 years’ imprisonment to be backdated from the time the prisoners were first sentenced. February 2004: President Levy Mwanawasa commuted the death sentences of 44 soldiers who had been sentenced to death for their role in a failed 1997 coup and stated: "For as long as I remain President, I will not execute a death warrant." 2001: de facto moratorium by the current government. Negative: 2005: The Constitution Review Commission in its Interim Report recommended the retension of the death penalty in the Constitution. 2005: Work is being done by a 2 member team of Researchers who are researching on the issue of Public Opinion on the Death Penalty in the Zaka District of Masvingo Province, Zimbabwe. The data collected is expected to enhance the level of public discourse on the Death Penalty in Zimbabwe. If the data is favourable it can also be used in a possible challenge to the constitutionality of the Death Penalty in Zimbabwe.
National Coordinator
