Kenya: East African Judges call to retain death penalty

At a widely covered conference in Nairobi, judges from Kenya, Tanzania, and Uganda issued a call to retain the death penalty (Kenya's Daily Nation here, Uganda's Monitor here, UK's Foreign and Commonwealth Office blog here).  A joint conference, entitled "Round Table on the Death Penalty in East Africa," was sponsored by the International Commission of Jurists, based in Geneva, and the Foundation for Human Rights Initiative, based in Kampala.  The conference was intended to pursue an abolitionist agenda, supported by several penal and judicial reform NGOs, but it made headlines for quite the opposite, when a number of judges who were invited made comments supportive of the death penalty.

According to press reports, Ugandan Justice David Musinga argued that public opinion supported the death penalty, and he was backed by Justice Emukule and Tanzanian Chief Justice Augustine Ramadhan and Lady Justice Philomena Mwilu (Kenya High Court).  Likewise, Judge Andrew Bashaija (High Court of Uganda) stated that there "should be instances reserved for the death penalty."  However, Judge Yorokamu Bamwine (Uganda) stated that a trial judge should possess ultimate sentencing discretion, which is intended to frame opposition to a mandatory death penalty.  I suspect that if asked a question narrowly, the majority of justices would oppose the mandatory death sentence, which forces judges to issue death sentences to all persons convicted of murder.

The blog post by Rob Macaire, the British High Commissioner to Kenya, is quite interesting as it explains how the organizers misjudged their audience.  In all three countries, political elites have made very strong statements against the death penalty, and Macaire and others misjudged political reaction.  A number of the conference attendees questioned British involvement.  But the mandatory death penalty in particular (now abolished in Uganda and Kenya, but not in Tanzania) is a uniquely British-derived punishment, with no historical antecedents before colonialism.  Some suspicion of the former colonial power's "rule of law" project is probably warranted, but Britain is also entitled to admit that it was wrong when it bequeathed an overly harsh and unjust death penalty law to its colonies in Africa.

Senegal: Extradition of former Chadian president Hissene Habre

The international press has widely covered the refusal of Senegal to extradite the former president of Chad, Hissene Habre, to Chad for an indictment of crimes against humanity, war crimes, and torture.  In 2008, Habre was sentenced to death in abstentia by a court in Chad, for his role in presiding over 40,000 political murders and widespread torture.  A Belgian court issued an international arrest warrant and requested his extradition in 2005, but the Senegalese Court of Appeal found that it had no jurisdiction to order compliance with the extradition request.  Senegal is required by the Convention Against Torture to try Habre, but Senegal's own constitution does not permit retroactive application of criminal law, and until recently the Senegalese judiciary did not have jurisdiction to try war crimes, crimes against humanity, and torture.

The Institute for Security Studies in Pretoria published an interesting piece arguing that the failure to extradite Habre for war crimes denies justice to his victims and gives him impunity.  A press release by Amnesty International condemns the extradition because of a the death sentence arising from a trial in abstentia (which does not accord with international norms for capital trials).  Like the Institute for Security Studies, Amnesty has called for Senegal to try Habre instead.  The UN High Commissioner for Human Rights Navi Pillay has also condemned Senegal for attempting to deliver Hissene Habre to the government of current Chadian president Idriss Deby, whose government had sentenced Habre to death.

This is a hard case, and one that may not have a satisfactory conclusion.  In one respect, Senegal should follow the emerging trend of not extraditing defendants who face death sentences.  There is cause for concern that Habre's trial in Chad did not comport with international standards and had political overtones.  On the other hand, Senegal did not have a legal mechanism to prosecute war crimes or crimes against humanity until 2008, and the Senegalese constitution prohibits retroactive application of criminal laws.  Short of a constitutional amendment, trying Habre in Senegal for crimes committed in Chad two decades before may not be possible.

Nigeria: Nollywood actress sentenced to death by hanging

An article in the Nigerian newspaper Vanguard reported that a 7 judge panel of the Nigerian Supreme Court upheld actress Rabi Ismail's death sentence by hanging (previously confirmed by the Court of Appeal) for administering sedative drugs on her boyfriend.  She was found guilty of culpable homicide, which requires a death sentence under section 221(b) of the Nigerian penal code.  She was arraigned and tried before the high court of Kano state in 2002.

I find the public reaction to be particularly interesting.  Unsurprisingly, Amnesty International condemned the ruling in a press release.  More interestingly, press reports abound on the reaction of other Nollywood actresses and the Actors Guild of Nigeria, who condemned the death sentence as "barbaric and outdated."  For more on this reaction, see another article in Vanguard here.  An interview in the periodical Leadership with the actress's mother is quite strange (or at least not well edited) but adds some additional content to Ismail's life and current unfortunate situation and is very intimate and sad.  In the interview, the actress's mother recounts how the actress steadfastly maintains her innocence and claims that there was some confusion over identifying the body of the victim.  The actress apparently had state-funded legal assistance.

Kenya: Judicial candidate opposes death penalty

According to a report in the Daily Nation on July 6, a Mombasa-based magistrate Lilian Mutende told the Judicial Services Commission (a constitutionally-mandated independent body that vets judicial candidates, among other tasks) that the death penalty "dehumanizes people" and was "unconstitutional" rather than discretionary.  Mutende's interview with the Commission was part of a very large vetting process for High Court vacancies as part of the new constitution's judicial independence efforts.  Twenty-six candidates for High Court slots will be selected from a pool of 115 (of which Mutende was one).

Mutende's comment that the death penalty was unconstitutional is, according to the article, based on an interpretation of Article 26 as circular, as I have mentioned earlier on this blog.  In other words, Article 26 permits violation of the right to life when authorized by the constitution "or other written law" (which presumably must comply with the constitution) but then provides no authorization except for abortion where the mother's life is in danger.  I believe her interpretation of Article 26 is correct, particularly as the Article was specifically designed to be more ambiguous than the prior constitution's authorization for the death penalty.  I also think her views are representative of a large segment of Kenya's political elite, which is unusual in many African countries, but similar to countries such as Zambia, Zimbabwe, and probably Tanzania.

It is also interesting to note that Mutende is not the only candidate calling for abolition of the death penalty.  According to an August 4 Daily Nation article, three additional candidates for High Court positions - two magistrates and a lawyer - also told the Commission that the death penalty violates Article 26 of the new Kenyan constitution.

Nigeria: Death penalty for poor building engineering?

An interview in a Nigerian periodical with the immediate past president of the Nigeria Society of Engineers states that the interviewee, Kassim Ali, advocates the death penalty for persons guilty of poor building design that leads to fatal building collapses.  Ali stated that poor building design that leads to collapse is a "wilful killing" and the engineers often are not punished.

There are, of course, criminal penalties for structural building collapse for engineers in other parts of the world, and the article suggests that these codes are non-existent or underenforced in Nigeria.  Ali's use of the death penalty in the interview highlights a strongly-held misconception, that the death penalty has a strong deterrent effect.  In addition, his proposal relies on a negligence standard, and I think that a crime of negligence or constructive intent is insufficient grounds on which to base a death penalty charge.

Zambia: Woman arrested in Pakistan for drug trafficking

A Zambian woman was arrested in Pakistan for drug trafficking in the amount of 250 grams of cocaine, a crime that could carry the death penalty, the Times of Zambia reported.  The cocaine was apparently hidden in her uterus, and she was arrested by airport personnel as she was about to board a plane to Dubai.  The article states that she risks a possible death penalty or a lengthy jail term, but it is not clear whether this choice is because the death penalty is discretionary in this case or whether the prosecution has not yet chosen whether to pursue a charge that carries a mandatory death sentence.

Interestingly, the article states that ten Zambian women have been arrested in the last six months in Asia and South America for trafficking in narcotics.  The method by which the drugs were being transported in this case apparently was indicative of a certain drug cartel.  I would be interested in finding further sources about the drug trade in Zambia and how it compares to the rest of Africa.

Kenya: Death row inmate killed

According to a Daily Nation article, an inmate on death row in Kenya was murdered by six other inmates, including one who was reportedly the victim's ex-lover.  The other inmates were also on death row, for murder and violent robbery.  The cause of death was strangulation, but the victim's body was also repeatedly lacerated by a razor blade.  As motivation, a note was found with the body stating that the victim may have been an informant of some kind.  The article also states that another inmate died last month at the same facility (Naivasha prison) after he was sexually abused. 

I imagine statistics as to prison sexual abuse and violence against men who have sex with men (whether GLBT or otherwise) are difficult to come by in the African context, but if anyone knows of similar cases do let me know.