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.
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