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.