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.

Gambia: Amnesty urges dropping of treason charges

An Amnesty International press release has called for the dropping of treason charges against five democracy activists, whom AI characterizes as prisoners of conscience.  According to the Gambian penal code, treason carries a death sentence.  One of the five was tried in abstentia and is not in prison, and the other activists include the head of the former journalists' association and a former minister of information and communication.  The case is at the prosecution stage; none have yet been convicted.

Gambia has a history of extrajudicial executions, but it is a de facto abolitionist state and has only carried out a judicial execution once (1981, for murder committed during a coup attempt, so technically not treason).  Because the new Gambian constitution forbids the death penalty for any crime other than aggravated or premeditated murder (Art 18.2), it is not clear that the death penalty for treason is constitutionally operable.  I am not sure that any Gambian defendant has raised a constitutional defense, or even if Amnesty is aware of it. 

Kenya: Damages for Wrongful Incarceration

A former death row inmate in Kenya has won 2 million Kenyan shillings for "unlawful confinement," according to a Daily Nation article.  He was sentenced to death after being convicted of robbery with violence which carries a mandatory death sentence in Kenya.  On appeal, his sentence was reduced to six and a half years, presumably because the greater charge of robbery with violence did not stick (since until I hear otherwise, the death sentence is still mandatory for robbery with violence even after Mutiso v. Republic striking down the mandatory death penalty for murder).  Apparently, his suit was based on the six extra months he spent in prison beyond when he completed his term.  The court agreed, as would courts in most countries, that the former death row convict is entitled to tort damages for wrongful detention.  I would be curious to know how frequently cases like this are actually litigated and how often the plaintiff (ex-defendant) prevails in a suit against the police commissioner and attorney general.

Zimbabwe: No Hangman

An article (from Inter Press Service news wire) explained that the 60-odd prisoners on death row in Zimbabwe cannot be executed because the country cannot find a hangman.  This is actually not an unusual problem; a number of countries in Sub-Saharan Africa have precisely the same problem, and even India, a major retentionist country, has trouble finding one when needed.  I have long believed that the death penalty is dying a slow death because of lack of supply, not necessarily lack of demand.  As another example, the difficulty for state death rows in the United States in importing drugs necessary for lethal injection (especially considering export rules of the European Union, where many are produced) will ensure that the death penalty will continue to decline even in the United States.

The article interestingly states that Zimbabwe has a "moratorium on the death penalty" as the issue is still before the full cabinet.  Zimbabwean public opinion is against the death penalty, which is aligned with precolonial Shona tradition, which did not employ the death penalty (but see Botswana, where the Tswana did perform the death penalty and public opinion still favors, which is an interesting juxtaposition).  According to the deputy minister of justice, Zimbabweans shun the job of hangman for superstition and cultural reasons, because many people believe that the act of carrying out an execution brings "evil spirits" to the hangman and his family.  The deputy minister of justice "castigated the death penalty describing it as a primitive and inhumane form of punishment" according to the article, and said that all prisoners should have their sentences commuted.

"Requirements" for the job, according to the article include dexterity in tying a knot and a cold-hearted person.  The monthly salary is 300 dollars, which is extremely low, and the job is reserved for men only.  "Zimbabwe's last hangman is said to be struggling with his conscience and claims to have regretted his job," according to the article.  All in all, a fascinating piece describing public opinion, cultural attitudes, and the abolitionist opinions of a high-level government official.

Zambia: Death Sentence for Armed Robbery

The High Court of Zambia sitting in Kitwe sentenced Friday Mwamba, a 72 year old fisherman, to death for aggravated robbery.  He stole a cell phone, a scarf, and a second cell phone, using a firearm in the robbery and threatening violence.  According to the news report from the Times of Zambia (available here), Judge Rhodah Kaoma stated that the penalty for aggravated robbery was provided by law in Section 294(2) of the penal code and that the defendant had to receive a death sentence regardless of his age.  Even more interestingly, the news report states that Mwamba did not say anything in mitigation.

Zambia possesses the Doctrine of Extenuating Circumstances like most other Southern African countries, so it does not have a strictly mandatory death sentence like the countries in East Africa.  In other words, the burden shifts to the defendant to show why he or she should not be executed.  Here, Mwamba did not say anything in mitigation, and therefore he could not carry his burden (although this result would not have occurred in Botswana, for instance, or Swaziland under its old constitution, where judges engage in searching review even where the defendant says nothing in mitigation).  Here, the defendant's age would have been an obvious extenuating circumstance, as would the fact that no murder or grievous bodily injury was committed here.  I am not sure why this decision seems so unrefined, because the sentence certainly seems disproportionate to the crime.  One need not worry about Mr. Mwamba though; Zambia is a de facto abolitionist country and is unlikely ever to carry out another execution (in fact, Zambia abstained in the last United Nations vote on a moratorium on the death penalty).

Gambia: Abolition of Death Penalty for Drug Trafficking

As I referenced in the last post, the Gambian National Assembly recently (April 7, 2011) invalidated the death penalty for drug trafficking.  Although the law was a relatively recent creation, enacted in October 2010, the penalty was not constitutionally operable because of Article 18(2) of the Gambian constitution of 1997, which forbids the death penalty except for aggravated or premeditated murder, the only constitution in Africa with such a limitation.  The Gambia is a major drug transit point for especially cocaine and heroin traveling between South America and Europe.

The abolition of the penalty was widely expected because it was facially constitutionally inoperable.  Under Section 18(2) of the 1997 Gambian Constitution:

"As from the coming into force of this Constitution, no court in the Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person."

In other words, the Gambian constitution forbids the death penalty for anything other than aggravated or premeditated murder (what is in the United States typically called "first degree" murder).  I looked at the Gambian Penal Code recently, and the only other offenses that merit the death penalty are treason and some military offenses.  My question is: is the death penalty unconstitutional even for extraordinary crimes like treason?  The recent capital prosecutions of coup plotters in the country, upheld by the Court of Appeal, would likely be unconstitutional (or at least inoperable; the constitution reads all unconstitutional death sentences as "life imprisonment" sentences, see transitional provisions at Gambian Constitution sched. 2, art. 16).

An editorial in a major Gambian paper supporting the legislation is here.

A news article from Banjul's Daily Observer about the legislation is here.

Nigeria: Proposed Death Penalty for Kidnapping

In Nigeria, the governor of Edo State, Adams Oshiomhole, is advocating the introduction for imposition of the death penalty for kidnapping.  The impetus for the law appears to be the recent separatist hostage-taking and terrorism spree in the south of the country rather than typical kidnapping per se.

The penalty, if passed, would appear to be unique in Africa.  If passed, the law would not immediately be unconstitutional (unlike the drug trafficking death penalty in the Gambia), although it may violate Nigeria's obligations under the International Covenant on Civil and Political Rights, which allows the death penalty only for the "most serious crimes."  A Nigerian court could find that the law violates Nigeria's ban on cruel, inhuman, or degrading punishment.  And the law would certainly violate an emerging international consensus (confirmed in UN and African Union resolutions) that the death penalty's scope could be restricted but should not be expanded.  In any case, such a law would be challenged and hopefully will invite more clarity from Nigerian courts.

The article, originally from Daily Trust, is here.

Kenya: High Court judge finds death penalty unconstitutional

A High Court judge sitting in Nakuru, Anyara Emukule (who was recently in the papers for clearing for burial the body of the Kenyan Olympian who was killed under unusual circumstances a few weeks ago) has found the death penalty to be incompatible with Kenya's new constitution.  He sentenced John Kimita to 30 years in prison with the option of parole after twenty years.  Judge Emukule already had the discretion to substitute a lesser sentence after Mutiso v. Republic, which invalidated the mandatory death penalty provision at Section 204 of the Penal Code last July, so it is unclear whether the decision would be appealed and whether Judge Emukule's holding had alternate grounds.

The argument against the constitutionality of the death penalty in Kenya would rest on how the new clause is drafted.  I suspect that the ambiguity of the new clause is intentional, because Kenya has a wide gap between the attitudes of the political elites and of the general population toward capital punishment.  This is the result.

The death penalty under the old constitution was clearly saved:

71(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.

The right to life clause of the new constitution is more ambiguous:

26(1) Every person has the right to life.
26(2) The life of a person begins at conception.
26(3) A person shall not be deprived of life intentionally, except to the extent authorized by this constitution or other written law.
26(4) Abortion is not permitted [with exceptions].

There are two ambiguities here.  One is that the clause that would "save" the death penalty, 26(3), is not a claw-back exception to 26(1) as it was in the former constitution.  From a statutory interpretation viewpoint, they are different subsections to the same right to life provision, and consequently, a judge has to reconcile any inconsistency between them (keeping in mind that, from a constitutional interpretation standpoint, a judge should not resolve any inconsistency such that one clause is meaningless unless it is unavoidable).  Judge Emukule could well have read Section 26(3) as not saving the death penalty because to do so would be consistent with 26(1), and 26(3) did not require saving the death penalty as under the old constitution.

The other difference between the two constitutions, of course, is that under the new constitution, the "right to life" provision contains no exceptions (or at least, prohibits deprivation of the right to life unless it is consistent with other clauses of the constitution, i.e., the abortion clauses).

It would be difficult to imagine that this decision will stick.  But Judge Emukule definitely noted an intentional constitutional ambiguity, and his method of resolving it accords with principles of constitutional interpretation.

For the Nairobi Star article, click here.
For a staff editorial by the Nairobi Star supporting the decision, click here.
For the Daily Nation article, click here.

Ethiopia: Death penalty sentences against Derg officials dropped

The Ethiopian government has dropped death sentences against 23 senior officials in the Derg, which was the military junta that governed the country between the overthrow of Haile Selassie in 1974 to its own dissolution in 1987 and the overthrow of its leader, Mengistu Haile Mariam, in 1991.  The Derg officials were tried and convicted on charges of genocide, mass murder, torture, and other crimes.  According to press reports, the pardon does not include former president Mengistu, who is in exile in Zimbabwe and was tried and convicted in abstentia.

It is, of course, increasingly the norm to try and prosecute former undemocratic regime leaders for crimes committed on their watch.  This trial appears to be a little unusual because it was so long running (1994 to convictions in December 2006) and because it ended in the death penalty for Mengistu and other officials.  Mengistu is unlikely ever to be extradited by Zimbabwe as he is extremely close to the ZANU-PF regime and is said to live in luxury.  Mengistu originally received a life sentence, but this was heightened to death on appeal.

The article is available here, and one about Mengistu's conviction from several years ago is here.

Southern Sudan: Prison reform and independence

The transitional government of Southern Sudan is receiving assistance from the United Nations to update the country's 80 operational prisons.  Southern Sudan will be independent after July 1.  The article highlights overcrowding, lack of separate juvenile facilities or facilities for mental illness, shortages of potable water, and long delays in prison before detainees are even charged with a crime.  "It is estimated that 45 per cent to 50 per cent of detainees at any one time have not been convicted of a crime and still await trial."  Some prisoners remain in detention so long without being charged that they outserve any eventual sentence they might receive.

The UN initiative will attempt to change that.  The corrections advisory unit of the UN Mission in Sudan are working with their Sudanese counterparts to enhance procedures, improve infrastructure, and raise skills of staff.

The full article is here.

Somalia: Execution of government soldier

The military court of Somalia's transitional federal government carried out a death sentence against an enlisted soldier who was convicted of murder of another soldier.  The execution was apparently public, with government officials in attendance.

Somalia is one of the more regular executing countries in Sub-Saharan Africa.  Egypt, Libya, and Sudan are the others; they typically perform at least one judicial execution among them per year and sometimes more.

The article, from a Mogadishu press wire, is here.

Uganda: Interview with Wrongly Convicted Inmate

This is an interesting article about anti-death penalty advocate Edmary Mpagi, who was convicted in Uganda for murder and sentenced to death.  However, the victim of the crime was not actually deceased.  It took Mpagi 18 years to receive an executive pardon, and he was released from prison in July 2000.  In this interview, he discusses the conditions of life in Uganda's notorious Luzira Prison and his witnessing of several rounds of executions.

"Most of the prisoners who were executed while I was on death row were innocent but faced the gallows because they were poor.  They could not afford to hire lawyers to defend themselves.  In our case we had a state lawyer whom we only met twice.  We did not have a lawyer in the real sense.  There are also cases of widespread torture during interrogations so some suspects, especially in treason cases, end up admitting crimes they have not committed."

"We would hear the crying of inmates (before their execution).  Executions normally took place at night.  When a prisoner reached the gallows, we would all listen.  After a few moments, we would hear a loud sound like a sudden explosion, as the trap doors of the gallows sprang open and the prisoners were dropped to their death.  We would then hear the corpses fall with a loud bang on the death table."

AllAfrica.com has the entire article.

Swaziland: Amnesty's 2011 report

Amnesty International has released its 2011 report on Swaziland, which detailed an overall negative picture of repression of dissent, politically-motivated security measures, police and prison brutality, excessive use of force, and deprivations concerning health, economic security, and women's rights.  The report also detailed Swaziland's status as a de facto abolitionist country.  According to the report, no executions have taken place in the country since 1983, and no new death sentences have been imposed.  Two people remained under sentence of death.

For all the criticisms possible of Swaziland's undemocratic 2006 constitution, the country has a relatively good track record on the death penalty.  Sandwiched between two fervently abolitionist countries, South Africa and Mozambique, Swaziland essentially wrote its mandatory death penalty out of existence in favor of a discretionary regime in a series of Court of Appeal decisions starting in 1999.  Dlamini (Daniel) v. Rex, appeal case No. 11/1998 (unreported).  The decision, confirmed in later Swaziland Court of Appeal cases, was essentially codified in Swaziland's new constitution in 2005 in a clause specifically forbidding the mandatory death penalty.  Swaziland Constitution art. 15(2).  I suspect it is highly unlikely that Swaziland will ever carry out another judicial execution.

For the Amnesty report, click here.

Mozambique: Extradition Bill Passed

The Parliament of Mozambique debated and preliminarily passed a bill setting out basic rules of extradition for foreign nationals who are accused of crimes.  Although Mozambique has ratified extradition procedures with other Southern African nations and with Portuguese-speaking countries, it has not had a legal framework for extradition to other countries until the current proposed bill.  Under the bill, extradition is only permissible if the alleged crime is a felony and is also illegal in Mozambique.  Extradition is not permissible for political or military offenses, or if the person faces torture, other forms of cruel, inhuman, or degrading treatment, discrimination, or the death penalty.

Despite some criticism that the bill does not properly deal with reciprocity, Mozambique is in good company when it comes to refusing to extradite criminals who could face the death penalty.  The European Union and Canada have such a policy with extraditing criminals to the United States, and the Portuguese-speaking world has been unanimous in its opposition to the death penalty.  Mozambique's constitution forbids it, and the country has been supportive of abolition at the United Nations level.

More here.