Should death penalty be abolished?

By Sanderson Makombe

‘You are killing an innocent man and you can all kiss my……..’These are recorded as the final words of death row inmate Roy Roberts as he was executed in Missouri, USA in 1999.Discomforting evidence later emerged that cast doubt on his conviction for murder.

Then last week there was a gruesome botched  execution of Romell Broom in Ohio,USA.It is reported technicians tried but failed to find a vein to administer the required mortal fluids and at one time Broom lay on his side trying to help them find the vein.

On 25 March 1997 in Florida Pedero Medina was on the electric chair awaiting his fate. With the first jolt of 2300 volts blue and orange flames sparked from the mask covering Medina’s face. Flames up to a foot long shot out from the right side of Medina’s head for 6-10 seconds.

The execution chamber was clouded with smoke and the smell of burnt flesh filled the witness room. We all remember the sorry sight of Saddam Hussein as he was led to the gallows with a very strong barbaric rope round his neck, with taunts echoing in the background. Doesn’t society have better methods of dealing with its’ malcontents?

The death penalty remains a controversial sentencing sanction. The debate on it’s’ merits or lack of is probably as old as the sanction itself. It is with great interest that MDC-T last week published their red zone on constitutional reform issues in Zimbabwe. Inevitably the party stated that it was advocating the abolition of the death penalty in Zimbabwe and this is the subject of this article. 

The death penalty has been on Zimbabwe’s statutes for a long time. Probably some of the most celebrated death row victims are the spirit mediums Mbuya Nehanda and Sekuru Kaguvi who were hanged by the colonialist regime in 1898.

Capital punishment is provided for by Section 12 of the Zimbabwean constitution which states ‘it shall be lawful for a person to be killed following a death sentence imposed on him/her by court’. Various offences can attract the death penalty in Zimbabwe including first degree murder and treason.

The Zimbabwe Prison Service reports that 76 African male prisoners were executed between April 1980 and December 2001.In the same period 244 inmates had been sentenced to death by the High Court of Zimbabwe. Approximately two thirds of those sentenced had their sentences quashed by the Supreme Court or commuted to life imprisonment.Chidhumo and Masendeke are probably the latest high profile inmates executed in Zimbabwe. 

This does not imply that there has been universal support for executions in Zimbabwe. Two former Chief Justices have been noted to have voiced their concern over executions. Chief Justice Enoch Dumbutshena is noted as having said to the Herald of 7 Dec 1987 ‘ I believe that many people we sentence to death for killing somebody should not be sentenced to death but given a life imprisonment term’.

His predecessor C.J Gubbay is recorded as having said ‘What may not have been regarded as inhuman or degrading a few decades ago may be revolting to new sensitivities which emerge as civilisation advances’. In that case, he was ruling on whether delaying executions and appalling conditions of incarcerations were not contrary to Sec 15 [1] of the constitution [CCJP v A.G and others [1991] [1] ZLR 242.

More significantly the draft constitutions produced by the Chidyausiku Commission and the National Constitutional Assembly in 2000 did not contain the death penalty, neither does the controversial Kariba Draft. 

At international level it can safely be said that we are moving towards abolition of the death penalty. Legally speaking the death penalty is not prohibited by international law, and neither is abolition yet a norm of international law.

The celebrated International Covenant for Civil and Political Rights [ICCPR] which is binding to most countries of the world actually does not prohibit the death penalty. Article 6 [2] of the same merely restricts its use to the ‘most serious crimes’. Most serious crimes is aptly unqualified and subjective to each country and region.

However the Second Optional Protocol to the ICCPR adopted in 1989 does prohibit the death penalty to state parties to the protocol [Article 1].Henceforth it remains optional. Efforts have been made through the United Nations to adopt resolutions abolishing it. In 1971 through Resolution 2857 and 1977 through Res 32/61, the UN took the first steps towards declaring abolition of death penalty as a universal goal and calling for restrictions on its use. However it was only in 1989 that the UN GA adopted the Second Optional Protocol to the ICCPR.

In addition both instruments instituting UN International Tribunals for Former Yugoslavia [ICTY] and for Rwanda [ICTR] did not carry the death penalty as a sanction. These tribunals were formulated to prosecute very serious crimes of interest to the international community: that is genocide, war crimes, and crimes against humanity.

In addition when the Rome Statute of the International Criminal Court was debated and formulated, the death penalty was also omitted as a sanction, yet this court has jurisdiction over ‘serious crimes of interest’ to the international community. 

As of now it is reported that 96 countries have abolished the death penalty for all crimes, 8 for ordinary crimes and 43 are de facto abolitionist. In Africa there are at least 15 abolitionist states and 21 de facto abolitionist [those who have the death penalty but haven’t used it in the last ten years and have committed not to use it].

Sadly for Africa as on November 2008 Amnesty reports only six of the fifty three states had ratified the second optional protocol to the ICCPR on abolition of the death penalty.90% of all world executions are carried out by six countries: the USA, China, Iran, Iraq, Sudan and Pakistan. Draw backs have been encountered as some states have reinstituted the death penalty after abolition.

Papua New Guinea abolished the death penalty for ordinary crimes in 1975 but reinstated it for wilful murder in 1991.The Philippines abolished it after the overthrow of President Marcos in 1989 but brought it back in 1993.It took Gambia only two years to reinstate the death penalty having abolished it in 1993 whereas New York brought it back in 1995 after 30 years of abolition. 

It is the progression of the human rights movements that have had a major impact on abolishing the death penalty. The Council of Europe has made abolition a prerequisite for membership. In April 1983 it adopted Protocol No 6 to the European Convention on Human Rights which abolished the death penalty in peace time only.

However in 2002 Protocol No 13 was adopted which abolished capital punishment in all circumstances. As a result Europe is a death penalty free zone and there has not been an execution since 1997.

In 1990 the General Assembly of the Organisation of American States adopted Protocol to the American Convention on Human Rights to abolish the death penalty. However this protocol only calls for restriction of use rather than erasure.

The African Charter does not mention the death penalty. However in 1999 the African Commission on Human Rights adopted a moratorium on the death penalty.Very few states have observed the moratorium, forcing the commission to issue a plea in Abuja Nigeria in 2008 to do so.

Crucial to these human rights instrument is the provision in most that prohibits subjection to inhuman or degrading treatment, [European Convention on Human Rights Article 3, American Convention on Human Rights Article 5, African Charter Article 5, ICCPR Article 7].Various court judgements from these regions have expanded on what ‘inhuman and or degrading treatment’ is to attack most methods and process of execution.

In Soering v UK the European Court of Human Rights ruled that the death row phenomenon in the USA constituted inhuman and or degrading treatment fouling Article 3 ECHR.The same judgement was found in Zimbabwe by the Supreme Court in Catholic Commission of Justice and Peace v Attorney General and others 1993.

In South Africa in the case of The state v Makwanyane and others [CCT/3/94], the Constitutional Court found the death penalty to be inherently cruel, inhuman or degrading and therefore unconstitutional. In Tanzania in the Republic v Mbushuu and another [1994] TLR 146], the Court of Appeal ruled the death penalty inherently cruel, inhuman or degrading though constitutional. The same line was pronounced in the Privy Council case of Pratt et al v Attorney General of Jamaica.

Other judgements have centred on the methods of execution. The UN Human Rights Committee ruled the use of gas chambers constituted cruel, inhuman treatment in Ng v Canada. It found also public executions incompatible with human dignity.

Public stoning was pronounced barbaric particularly when the size of the stones were used to prolong suffering.Currenly there are challenges on legality of lethal injections in some states in USA though at international level lethal injections were found to be legal in Cox v Canada [No 539/1993] UN Doc. [Opinions of the UN Human Rights Committee are not binding but have persuasive power]. 

What are the merits or demerits of the death penalty? Most Muslim states argue that their Islamic laws and religion allows executions for various offences. The Islamic Council adopted a Universal Declaration of Rights which guaranteed the right to life but also provides for the death penalty under authority of the law under article 1[a].

Some Christians also argue that the bible prescribes executions as just. The Lord Jesus Christ was crucified on the cross apparently for blasphemous. Leviticus 24:17-21 says ‘he who kills a man shall be put to death’. Numbers 35: 30-31 reads ‘if anyone kills a person, the murder shall be put to death on the evidence of witness: but no person shall be put to death on the testimony of one witness.

Moreover you shall accept no ransom for the life of a murderer, who is guilt of murder, but he shall be put to death’. Genesis 9:6 ‘Whoever sheds blood of man; by man shall his blood be shed’. Exodus 21:12-14 provides ‘Whoever strikes a man so that he dies shall be put to death. But if he did not lie in wait for him, but God let him fall into his hand, and then I will appoint for you a place to which he may flee.

But if a man wilfully attacks another to kill him treacherously, you shall take him from my altar that he may die’. Lastly Romans 13; 1-4 says ‘let every person be subjected to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God.

Therefore he who resists what God has appointed, and those who resist will incur judgement.if you do wrong, be afraid for the authority does not bear the sword in vain: He is the servant of God to execute his wrath on the wrong doer’

However the same bible provide that ‘Vengeance is mine, I will repay, says the lord’ in Prov 25; 21.Moreso when Jesus was crucified he did not pray for vengeance but prayed ‘Forgive them Lord for they not know what they are doing’ 

Retributionists have argued that death penalty deters criminal behaviour and recividism.Scientific studies have consistently failed to find evidence that death penalty deters crime more effectively than other punishments. A report in the Wall Street Journal of June 21 2002 stated that in the past ten years then the number of executions in the USA had increased while the murder rate had declined.

Still the report noted murder rates in non death penalty states were found to have remained consistently lower than states with a death penalty. States in the Northeast that have abolished the death penalty actually have a lower homicide rate than retentionists.

More interestingly was that retentionists’ states have higher rates of police details homicides than abolitionists states. From 1989 -1998, 292 police were killed in the South, where 90 percent of all executions occurred in 2000, while 80 were killed in the northeast where there are one percent of executions [FBI records].

From 1990 to 2004 murder rates in states without death penalty declined much more from 9.16 to 4.02 per 100 000 than those with capital punishment from 9.5- 5.71 per 100 000.Canada has seen its homicide rate decrease consecutively since it abolished the death penalty in 1976.The average homicide rate was 2.7 per 100 000 in 1977 compared to 2.8 the year before.

Over the next twenty years the rate fluctuated between 2.2  -2.8/100 000.In 1995 it went down to 1.98 [data from Amnesty].However South Africa has seen an increase in rape , murder since abolition. 

Some have argued that death penalty deters the murderer who is executed. In other words, the executed is incapacitated from reoffending either in prison or outside. They argue if criminals are sentenced and executed potential criminals will think twice before committing a crime for fear of losing their lives.

Prof Hag argues ‘Execution of those who have committed heinous murder may deter only one murder per year. If it does, it seems warranted. It is the only fitting retribution for murder I can think of’. He goes on to argue that although penalties can be unwise, repulsive or inappropriate and those punished pitiable, in a sense the infliction of legal punishment on a guilty person cannot be unjust. By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime. Convicted criminals have elected to give up some of their rights because of their acts’.

What about the rights of their victims which they so violently violated. Is it not a question of sympathising with the offender irrespective of the victims needs? John MacAdams remarked ‘if we execute murderers and there is in fact no deterrent effect, we have killed a bunch of criminals. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would rather risk the former’. Very retributionist indeed. 

These arguments seem to accept that the deterrent effect of death penalty is at most minimum. They are ready to argue it is ‘just deserts’, they deserve it, no more no less, no matter how uncomfortable the execution is. To some extend I sympathise with this reasoning. A woman with her 14 year old daughter are a victim of a crime. The offender first rapes the daughter as her mother watches in anguish. He chops of both arms and let her bleed to death slowly as the mother watches. He rapes the mother and then shots with his pistol through her private parts. He hacks of her boobs and lets her bleed to death slowly.

Graphic and horrendous indeed. Those are the stories of the genocide in Rwanda, of Foday Sankoh’s exploits in Sierra Leone. I watched in 2001 as Zanu PF thugs led by Joseph Mwale burnt to death my two colleagues Tichaona Chiminya and Talent Mabika in Buhera.Premeditated cold blooded murder. What rights do these criminals have to claim violation of human rights, that the execution are inhuman and degrading? What of the methods they used to execute their victims for unlawful reasons? 

However it is the realisation that criminal justice systems the world over are shrouded in imperfections that makes the death penalty undesirable. Execution is a totality, and irreversible. A recent study by the Columbia University Law School found that two thirds of all capital trials in USA contained serious errors.

When cases were retried over 80% were not sentenced to death and 7% were actually acquitted. The Innocence project in America notes since the reinstitution of the death penalty 176 people on America’s death row have been found innocent. The most telling was the discovery in 2003 than 13 Illinois death row inmates were not guilty as charged. The then governor George Ryan declared a moratorium on executions in Illinois remarking ‘our capital punishment system is haunted by the demon of error’. In Japan Sakae Menda was sentenced to death in March 1950 for a murder committed in 1948.Thirty years later he was found not guilty and released.

Now these are developed countries with top resources for their judiciary and yet errors are abound. In Zimbabwe most of those sentenced to death are very poor citizens who can not afford private legal representation. The human rights movement in Zimbabwe have noted that most are represented by pro deo lawyers supplied by law firms as a social service.

However the down side is that it has been noted that law firms mostly makes available their most junior practitioners thereby compromising the quality of representation. It is not far fetched then to conclude that a great number could have been saved if the representation was right. 

It has been argued that the cost of life sentencing is far greater than executions. However in USA because of the never ending appeals and spoilation litigation, it has been noted that death row inmates cost more to the state than those who have been sentenced to life imprisonment.

Besides imprisonment without prospect of release is as punishing as any sanction and has equal deterrent effect. It has been noted that most lifers actually go mental within their incarceration and the constant thought of guiltiness, shame, and loss of liberty is more painful than executions. 

It is for these reasons that I support abolishing the death penalty. There is a plus also to international cooperation especially in the field of extradition. Abolitionist states would not extradite a suspected criminal to a country which has a death penalty. Rwanda learned it the hard way when leading genocidaires fled to Europe and most European countries refused to extradite because Rwanda still had a death penalty. Cooperation only resumed when it abolished it.

Nothing works ! 

The writer can be contacted at [email protected]