By Michael Imran Kanu
Introduction
With lots of underlying assumptions, the constitutional review process and it progeny (the proposed new constitution or constitutional amendment), should chart the path towards a new Sierra Leone. As noted by President Ernest Bai Koroma, during the launch of the Constitutional Review Committee (CRC or Committee), the process is hinged onthe notion that the principal/basic normwill ‘capture[Sierra Leone’s] better habits, […] better values and […] better aspirations’. The Committee was established by the Government, with a broad based membership, and a mandateto review the Constitution of Sierra Leone 1991 (the Constitution), and the report of its predecessor, the Peter Tucker Constitutional Commission Report.
The main objective of revising the Constitution,as argued by the CRC,is to ‘strengthen the existing multi-party democracy and to create an open and transparent society’. There are key operative terms in the statement of object as argued by the CRC: Democracy (multi-party), open and transparent (society), which in my view deserves special attention, particularly with legal and philosophical analysis. This will be an endeavor in a subsequent paper, but I will argue that whether we view the key terms in a subjective context or objectively, (by noting them as the key goal of the constitutional revision), the CRC has elevated them to the status of fundamental principles to be read in every section of the new constitution.
This paper commences an analytical series of publications seeking to put forward sound legal, and where necessary political philosophical, arguments on the recommendations put forward by the CRC in the Abridged Draft Report. It will further provide explanatory analysis of some provisions/positions to aid greater citizenry comprehension in context, (far removed from the abstract as contained in the said Abridged Report). The paper specifically looks at the call for further consultation on the death penalty and its compatibility with the right to life. Itargues that the death penalty has no place in a decent or civilized society. It serves no useful purpose in deterring crimes and offends the new dignitarian posture of the revised constitution being put forward. The paper notes the argument of cost implication for life sentences, but argues that the balance shifts in favour of attaining the better values and aspirations to be captured in the new constitution, and concludes with a firm call for the abolition of the death penalty in Sierra Leone.
Death Penalty and the Right to Life in Sierra Leone – History and Contemporary Context
Sierra Leone may have had a history of using the death penalty as punishment for witchcraft and cannibalism before its colonization by Great Britain, but there existed no evidence to establish its institutionalization. The institutionalization of the death penalty is linked to the arrival of the settlers and their laws in the 1700s, including the death penalty as a means of judicial punishment under English law (Campbell v Hall(1772)1 Cowp 204). The Charter declaring Sierra Leone (Freetown) a crown colony formally introduced the death penalty.
Sierra Leone’s Independence Constitution 1961 recognized the death penalty as a form of judicial punishment, being an exception to the right to life provision. All subsequent constitutions have followed the Independence grundnorm including the Constitution under review (section 16). Offences for which the death penalty could be invoked are murder (under common law), treason and related offences (under the Treason and States Offence Act 1963, sections 30 and 31), mutiny (under the Republic of Sierra Leone Armed Forces Act 1961, section 37), and robbery with aggravation (under the Criminal Procedure (Amendment) Act 1973. Death by hanging, a truly undignified method, is the prescribed sentence as contained in section 211 of the Criminal Procedure Act 1965, except for a similar grotesque death by firing squad for military personnel.
Following judicial and seeming extra-judicial executions in the 1970s, 1980s and early 1990s, the last judicially sanctioned execution took place in 1998, and there has been a de factomoratorium on the execution of death sentences since. This status quo may not be far removed from the scar in the moral conscience of the nation after the 1998 execution, and its commitment to international human rights instruments and values. The moral scar and recognition of international values notwithstanding, the only legal leeway available for a death row inmate is the discretionary reliance on Presidential pardons under section 63 of the Constitution; which has been utilized mostly with reference to female death row prisoners, owing to sustained campaigns by advocacy groups. (Case of MK, 2011/AdvocAid). The moratorium I argue is reflective of Sierra Leone’s true values and society’s view of the death penalty. The new constitution will only codify the nation’s truly dignified anathema for the death penalty.
Perspectives from Religion and Reason (Political Philosophy)
By focusing onthe death penalty under the ambit of the right to life, this paper supports placing premium on the issue of abolishing this form of punishment in the new constitution. Simply put, death penalty has no place in the ‘better Sierra Leone’. In the CRC Abridged Report, a lot of premium has been placed on the notion of ‘human dignity’, with the intention of elevating dignity to a substantive right. This is most desirable and arguments in support of this position will be made in subsequent publications. For the purposes of abolishing the death penalty, I only intend to use the dignitarian argument in support of my stance; whilst considering the religion aspect due to its importance in Sierra Leone, notwithstanding the separation of the State and religion.
I will start with the Islamic faith which appears to have a strong supportive stance on the death penalty for certain specific offences, namely: Irtidad (apostasy), Zina (adultery), blasphemy, and Qatal (murder and manslaughter). The death penalty is considered to be a fundamental principle in Islamic law. However, article 5 of the Arab Charter of Human Rights by the Arab League recognizes the right to life, and the preamble affirms ‘the faith of the Arab nation in the dignity of the human person whom God has exalted ever since the beginning of creation’. The right to life notwithstanding, the death penalty may be imposed with limitations for a person under 18 years, pregnant women and mothers with children below 2 years of age. Despite the strong stance on the imposition of the death penalty under Islamic law, there are instances in which a death sentence could be commuted, following acts of renunciation and payment of ‘blood money’, thereby lessening the effect of retribution.
On the other side of the spectrum, dignity has a basis both in Catholicism and reason (political philosophy). The sum of the argument from both Catholicism and political philosophy is the inviolable nature of humanlife based on the ‘Image of God’ doctrine developed by the Catholic Church (Thomas Aquinas), and human self-worth or pricelessness as posited by Immanuel Kant. The notions from religion and reason were fused by Jacques Maritain, whose writings heavily influenced the Universal Declaration of Human Rights (UDHR). The argument from the dignity perspective places a premium on the unacceptability of man to take another’s life, even in the form of judicial punishment. If man is the ‘Image of God’, then man must not kill God.
Judicial decisions or laws (within the broader view) do not fall from the sky. In the most simplistic of sense, they represent the agreement of society. Thus, a society may decide to kill its kind, for an outrage, including murder. What will then be the nature of that society that practices ‘an eye for an eye’ in the institutional sense? Avishai Margalit, a contemporary political philosopher, argues that such a society is not a decent society. A decent society is one in which its institutions do not humiliate its people; i.e. it does not treat humans as non-humans. The test of a decent society is firmly rooted in the manner it treats it prisoners or how it executes punishment.As the citizenry aspires for a better Sierra Leone, a decent Sierra Leone, the only place for the death penalty is in the history books, and not the living constitution.
The International Debate (Pro vs. Con Death Penalty) and Human Rights Perspective
The argument on either side of the debate on the death penalty is not novel, even to Sierra Leone, and there may not be a need to re-examine all points in this paper. For completeness, I will briefly survey the legal landscape internationally, (covering case law and juristic arguments), confirming the solid move towards abolition of the death penalty. There has been a progressive move towards the abolition of the death penalty under international law since the 1940s.AfterWorld War II, States have drastically limited the use of the deathpenalty; hence potentially recognizing the universality of its abolition. Amnesty International estimates that about 129 countries have abolished the death penalty either in law or practice. Human rights jurist William Schabas suggestion, which I adopt for Sierra Leone, simplyunderlines theuniversal abhorrence for the death penalty, which is evident in the self-restriction practiced by many States.
Further jurisprudence from courts (national and supra-national) has seen the successful challenge of the constitutionality of the death penalty. In South Africa, its progressive Constitutional Court in the State v.Makwanyane (1995) (3) SA 391 (CC), successfully upheld the constitutional challenge on the death penalty anchored on the inviolable right to life. The court acknowledged the ubuntu (value placed on the dignity of life) principle of the South Africa people referenced in the case. The European Court of Human Rights (ECtHR) and its Inter-American counterpart have held that the death penalty is incompatible with the right to life in Al-Saadoon&Mufdhi v. the United Kingdom (2010) and Hilaire v. Trinidad & Tobago (2002) respectively. The ECtHR has further given an opinion against extradition at the possibility of the receiving country’s use of the death penalty, Soering v. the United Kingdom(1989), wherein the death row phenomenon in the United States was placed under the spotlight.
Behavioral law and economics focus on the study of man’s irrationality, hinged on the principle of rationality in traditional law and economics. Often the focus is based on experiments putting forward theories explaining human behavior for the use of policymakers (even in law making). Behavioral law and economists suggest that the high certainty of sentence and punishment (death being the ultimate), do not deter crimes. For example in Country X, where offences of robbery with aggravation and murder are punishable by death, a criminal (C) is prone to take the chance (probability of detection) to kill a robbery victim (V), with robbery the initial criminal intent, to reduce the probability of C’s detection and ultimate punishment. Studies show that these calculations are made by criminals, and instead of deterring crimes, there is the possibility for more serious crimes to be committed.
The main opposing contention to the abolition of the death penalty rests on the following: Legal formalism(positivism), deterrence and retribution. I will focus on the deterrence and retribution arguments as the legal formalism point of enforcing the death penalty is circular and weak: that is, enforce the death penalty because it is legal, it is legal because the law (constitution) so provides. In the Nigerian case of Kalu v. State (1998) 12 S.C.N.J.1, legal positivism/formalism swayed the Supreme Court in upholding the constitutionality of the death penalty, although it recognized the movement of other domestic courts declaring the death penalty unconstitutional. In Bachan Singh v Ounjab (1993) 1 S.C.R. 145, the majority in the Indian Supreme Court was also constrained by legal formalism, but the dissent went at length to show the international abhorrence for the death penalty.
The retribution argument remains the strongest pro death penalty stance. From religion, ‘Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man’ (‘Holy Bible, The (King James Version)’, Genesis, chap. 9:6) remain a reference point in Christendom. There are further references to punishment by death for adultery, blaspheming in the book of Leviticus (20:10; 24:16). Much as there is a Catholic argument using the ‘Image of God’ in putting forward the inviolable nature of human life, even for criminals, the biblical text could be used to support the practice based on retribution. Islamic law, as aforementioned,upholds the death penalty as a means of retribution. However, retribution is limited by the possibility of permitting the payment of ‘blood money’ and pardon from the victim or the victim’s relatives for commutation of the death penalty(‘Sudan: Criminal Code of 1991’, sec. 38(1) for example). Further, it is view that the prospect of the ultimate penalty of death will deter crimes. However, there is no acceptable empirical evidence supporting this deterrence claim,(State v. Makwanyane, 1995).The basic object remains retribution. Thus, does Sierra Leone wishes to be seen as a retributive society?
Death Penalty in a Better Sierra Leone?
Although history shows that Sierra Leone may have had a non-institutionalized practice of using the death penalty as a means of punishment, my anthropological observation gives the sense of general disapproval of such a method of punishment. The moral hurt from the executions of the 1970s, 1980s and the 24 military personnel in 1998 weighs heavily on the citizenry moral conscience. Further, there is no culture of non-institutionalized revenge killings (retribution) for fatal crimes, notwithstanding the recent civil strife. The Truth and Reconciliation Commission Report records in ink, the Sierra Leonean value of forgiveness.
I note and agree that a better Sierra Leone cannot be builton a mere moral case or human observation. The moral case however is built on the substantive State practice of almost two decades of de facto moratorium on the death penalty. The State’s position falls in line with the practice of the Special Court for Sierra Leone, which adopted a non-capital punishment sentencing framework. In ratifying the Special Court Statute in 2002, Sierra Leone affirmed as a State its agreement not to impose the death penalty, even on the convicts held for the most reprehensible carnage in the decade of civil war. In the Residual Special Court Statute passed in 2012, itfurther confirmedits position in international law and practice with implications for domestic law. I therefore argue that the continuation of the death penalty domestically will not only offend the letter, spirit and legacy of the Special Court, but also be discriminatory (between criminals under international law versus domestic law for crimes committed in Sierra Leone). These cannot be the better values it aspires to as a nation.
It follows from my arguments and narrative that in line with the object of the constitutional review, and the inclusion of a more substantive right to human dignity, the death penalty should be abolished in Sierra Leone. It has no place in our new and better body politic. I strongly urge the CRC to accordingly follow the South African ubuntu value, which reflects a Sierra Leonean value, and make the right to life absolute and inviolable.
About the author: Michael Imran Kanu is a legal practitioner in Sierra Leone, and a doctor of juridical science (SJD) candidate at Central European University (CEU), Budapest, Hungary. Until recently, he was a prosecutor at the Anti-Corruption Commission.
(C) Politico 01/03/16
