DEATH penalty is always a violation of human rights. Freedom from torture, inhuman and degrading treatment or punishment is protected under Article 3 of the European Convention on Human Rights. There are no exceptions — not for criminals, nor even in times of war — to the prohibition on torture or inhuman and degrading treatment or punishment. This reflects ‘one of the fundamental values of democratic societies’. The Amnesty International calls the death penalty ‘the ultimate, irreversible denial of human rights.’ It breaches not only the right to life, but the right not to be subjected to cruel, inhuman and degrading treatment.
That is why the United Kingdom and other European countries signed up to Protocol 6 and Protocol 13 to the Human Rights Convention, which abolished capital punishment.
The UK government had worked closely with the All-Party Parliamentary Group for the abolition of the death penalty, for which it has funded lobbying visits to both Suriname and the United States. The United Kingdom is committed to abolishing the death penalty worldwide.
In the 2010 case of Al-Saadoon and Mufdhi against the United Kingdom, the European court essentially prohibited the death penalty even though Article 2 of the Human Rights Convention appears to allow for an exception to the right to life.
The UK government has a policy of opposing the death penalty in all circumstances and is working towards abolition of the death penalty worldwide. For example, they lobby other countries to vote in favour of the UN resolution on the moratorium on the use of the death penalty.
But despite growing consensus in the United Kingdom and Europe on the need for abolition, capital punishment is on the rise across the world.
A report by the Amnesty International found a 54 per cent increase in the use of the death penalty from 2014 to 2015. And that report did not even take into account China, likely to be the world’s top executioner, as the country refuses to publish data on its use of the death penalty.
The death penalty is not outlawed by international law. However, there is growing international pressure for its abolition.
The death penalty takes away our most essential right, the right to life. Opening the door to the death penalty, even in very limited circumstances, means that innocent people may be executed. As Amnesty has stated, ‘The death penalty legitimises an irreversible act of violence by the state and will inevitably claim innocent victims. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.’ Many innocent people have already been executed. More will die unless the death penalty is eradicated.
The period leading up to death causes so much sufferings to the condemned that it amounts to torture. Death row phenomenon is the term given to the psychological distress caused to inmates by detaining them on death row in extreme conditions, often in isolation. The execution methods themselves also constitute a breach of the right not to be subjected to inhuman and degrading treatment, even the method that is supposed to be most ‘humane’, namely lethal injection.
It does not even prevent crime. There is no evidence that capital punishment has any impact on crime rates. So, there can be no argument for its justification.
Not only does the death penalty not deter crime, but it also leads to the brutalisation of society as a whole. States which allow the death penalty have higher violent crimes rates. In the United States, for example, more murders take place in states where capital punishment is permitted.
In 2017, Kenya became the latest country to abolish the mandatory death penalty, with the Supreme Court striking it down as unconstitutional and a violation of fundamental human rights. Widely condemned by the international community, the mandatory death penalty is the automatic imposition of a death sentence. In Kenya, those offences carrying this penalty included certain types of robbery — meaning that hundreds of people have been sentenced to death for crimes such as mobile phone muggings or robberies where there has been no physical harm to the victim, or loss of life.
In its landmark judgement, Muruatetu and Mwangi vs Republic of Kenya, delivered on December 14, 2017, the Supreme Court identified the mandatory death penalty as a ‘colonial relic’ and ruled it unconstitutional as it disproportionately punished an offender by failing to take into account the individual circumstances of their case. Thousands of prisoners who have had death sentences automatically imposed may be affected by the judgement.
In reaching its verdict, the court was able to rely on jurisprudence from other constitutional courts where the mandatory death penalty has been found to violate fundamental human rights.
The universality of human rights means that litigation has played an important role in the global fight against the death penalty. Legal restrictions placed on the imposition and application of the death penalty in one jurisdiction have been used as evidence of evolving standards of decency in another so that outdated, cruel and inhuman practices, such as the mandatory death penalty, have been increasingly rejected by the courts and pushed to the fringes.
However, securing legal change can be a slow process but the impact can be far-reaching, a legal success is never the end of the story. In Kenya, with the abolition of the mandatory death penalty, the work is only just beginning. The government has been given a 12-month timeframe to undertake a review of the implications of the judgement for all those affected. Further, new sentencing criteria will need to be established to guide judicial discretion in capital cases. Judges, defence lawyers and prosecutors will need to be provided with specialise training to support the transition to a discretionary sentencing system and to assist with re-sentencing hearings.
Moreover, ongoing engagement on the issue of the death penalty is essential to drive further reform. Judicial restriction can only go so far. In Kenya, as with every country that continues to retain the death penalty, abolition will only be achieved through the legislative process, requiring strong political commitment and principled leadership. Poorly informed public debate and a lack of reliable data revealing how the death penalty is applied in practice are just some of the factors making the reform a hard to achieve goal. It is, therefore, critical that litigation is accompanied by research, awareness raising activities and ongoing dialogues with governments and politicians. In doing so, we hope to promote greater understanding of the human rights issues associated with the death penalty and secure lasting change in practice.
The Supreme Court of Bangladesh ruled in May 2015 that the mandatory death penalty is unconstitutional. The court found that Article 29, 31 and 32 of the constitution were violated by the mandatory application of capital punishment, reasoning that the prohibition on being deprived of life ‘except in accordance with the law’ introduced a concept ‘akin to due process.’ The court stated:
‘A provision of law which deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, deprive the court of its legitimate jurisdiction to exercise its discretion not to impose death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions [sic]. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case. Therefore we have no hesitation in holding the view that these provisions are against the fundamental tenets of our Constitution, and therefore, ultra vires the Constitution and accordingly they are declared void.’
After a High Court ruling in the appeal of Sukur Ali filed by the Bangladesh Legal Aid and Services Trust in February 2010 (challenging the mandatory death penalty for rape) the mandatory death penalty in Bangladesh is probably unconstitutional.
As per the Death Penalty Database of Cornell Centre on the death penalty worldwide, in Bangladesh, at least 1,465 people were known to be under the sentence of death in 2017, down from 1,645 in 2016. Since 2014, the annual number of new death sentences has more than doubled and has never dipped below 140. In 2017, at least 273 people were sentenced to death. In 2016, there were 197 new death sentences; in 2015, around 197 and in 2014, at least 142.
Death penalty is brutal, ineffective and a complete denial of human rights. We must continue the fight to ensure it is eradicated worldwide.
Barrister Al Amin Rahman is an advocate at the Supreme Court.
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