by Wilfred Mamah
Published on: Feb 6, 2007
Topic:
Type: Opinions

By: Willy Mamah* & Frances Nworka*

This reflection is inspired by the article, “Did Tochi Deserve to Die?” authored by Leonard Dibia, Lloyd Okereafor and Chinelo Chinweze, of an NGO named Access to Justice, Lagos and published in the THISDAY Law column, of last week. The article, in review, squandered a golden opportunity to attack, frontally, the clear absence of transparency in Singapore’s archaic death penalty jurisprudence and merely succeeded in presenting a half-hearted analysis of the abolitionists’ case, whilst betraying a collective vision for the abrogation of this inhuman and despicable punishment, for all crimes, not only in Nigeria, but globally.

Our aim in this piece is, first and foremost, to give a clear and unequivocal response to the question posed by Dibia, et al, by stating that Tochi Amara Iwuchukwu, the Nigerian “child”, that was executed amidst clamour for clemency, deserved to live, but Singapore chose to murder him, in furtherance of a discredited deterrence philosophy, that often holds sway in a police society like Singapore. We will also seek to use the peg offered by Dibia et al, to expose the pitfalls and confusion in the death penalty “retentionists’” camp. We will argue that death penalty retention or abolition clearly demarcates a closed society from an open one. The recent executions in Singapore and Iraq provide case studies of how not to punish in the 21st century and beyond.

Deconstructing Dibia, et al:
First let us briefly deconstruct the opinions of Dibia’s et al, to enable us appreciate the dilemma and inelegance of the reductionists’ philosophy. Dibia and co made the following observations, which we find contradicting, self cancelling and unacceptable.
They wrote:

“…the argument for proscribing death penalty in its totality and in all circumstances is not acceptable, especially in cases of wilful and inexcusable homicide. It must be understood that the collective consensus by which human society (of all races and tribes) prescribed extreme penalties for certain degrees of offences was more informed by notion of justice and respect for human life” (Emphasis supplied)

Which consensus are they referring to and how does this assertion support the very first sentence in their article, which called to mind the living statement of the president of Turkmenistan, on the unassailable rational for abolishing the death penalty? Dibia and co went further to demonstrate the confusion that “retentionists” often experience: they conceded that “the justice system, including appeals in many countries, are extremely flawed, leaves room for permanent miscarriage of justice, and, thus, raises concern for the possible innocence of convicts”. (Emphasis, supplied) So, the question is, if death penalty should be retained for certain offences, like wilful and inexcusable homicide, what waterproof legal measures could be in place to ensure that those found guilty are not victims of an “extremely flawed” justice system? Is it not said that it is better for 99 guilty persons to escape conviction, than for one innocent person to suffer an unjust and irreversible death? Is it not safer to argue for the blanket abolition of death penalty for all offences and in all circumstances, considering that there are several other alternatives, like the imposition of life sentence?

We equally find unacceptable Dibia et al’s equivocation about deterrence and the vicious circle inhibition they try to forge and also their attempt to poke fun on Nigeria’s moratorium strategy and the abolition effort, which exposed their real intent: to hide under the cloak of the abolitionist crusade and wreak havoc on Nigeria’s struggle for open and accessible justice. The contextual meaning evident in their assertion that many think that the moratorium on execution in Nigeria is politically motivated is obvious: the clear intention is to lampoon the moratorium efforts, which is an outcome of a seasoned study of the death penalty application in Nigeria, by the Nigerian Death Penalty Study Group. The Death Penalty Study Group in Nigeria carried an in-depth study involving all stakeholders: debates were conducted among politicians, students, professionals and so on in Nigeria, before the Group came up with the recommendation to freeze the application of death penalty in Nigeria. It would have been fairer, if Dibia and colleagues had presented their statistics for stating that many feel that the Moratorium is “politically motivated.” The lesson that we take from the article under review is that it is impossible to stand on the fence on an issue of fundamental importance like the death penalty. It is either one supports it or opposes it. There is no middle course, please.

Re-stating the Abolitionist Stand:
So much has been written about this, and we will not spend so much time on it. But let it be noted that although it is often argued that public international law does not prohibit death penalty, there are unquestionable evidence to demonstrate that international law is rapidly moving away from regime of death penalty. The climax of this movement is the coming into force of the International Criminal Court Treaty. Article 5 of the ICC Treaty provides for Crimes within the jurisdiction of the Court as the crime of Genocide; Crimes against humanity; War crimes and the Crime of aggression. These are terrible crimes, but the court does not have power to apply the death sentence in all of them.
Article 77 of the Rome Statute provides that, subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
In addition to imprisonment, the Court may order:

(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.


No one should be surprised about the clear absence of death penalty provision in the ICC Treaty. The wording of Article 6 of the ICCPR, although short of abolition of the death penalty, left a clear signal that international law considers the abolition of the death penalty to be a desirable end. Hence, the 2nd Optional Protocol to ICCPR abolished the death penalty stating clearly in Article 1 that no one within the jurisdiction of state party shall be executed. The preamble to this Protocol is a must read for anyone desirous to find justification for the abrogation of this unusual punishment of death.

Another forward looking Treaty is the European Convention on Human Rights (ECHR). Although Article 2 of ECHR did not abolish the death penalty, Protocol No 6 of ECHR abolishes the death penalty in peace time and protocol 13 abolishes it in all circumstances. It is the policy of the Council of Europe to require that all new member states undertake to abolition the death penalty as a condition for admission into the European Union. For further discussion on the abolitionist stand, please, see:



• “When the State Kills: A Human Rights Issue” Amnesty (1989)
• W Schabas: The Death Penalty as Cruel Treatment and Torture: Capital Punishment Challenged in the World Court (1996)
• W Schabas: The Abolition of Death Penalty n International Law (2nd edition; 1997
See also, the deep reflection of Justice Chalskalson in State v. Mekwanyane, Constitutional. Court of the Republic of South Africa, 1995 Case No CCT/3/94, (1995) 1 LRC 269; Pratt v. Attorney General for Jamaica (1994) 2 AC 1, 1993 4 ALL ER 769; Catholic Commission for Justice and Peace in Zimbabwe v. AG SC OF Z 1993 Judgment no SC73/93 14 HUM. RTS LJ 323 (1993).

From the foregoing, it easy to see that, increasingly retention or abolition of capital sentence is becoming the clear yardstick for separating open societies from closed ones. There is a clear nexus between dictatorship and continued retention of capital sentence. Singapore and Iraq are illustrative.

The Flaws in Singapore’s Death Penalty Jurisdiction and why we believe that Tochi was murdered:
Transparency is a key to assessing whether or not any country’s criminal justice system could be trusted to deliver the level of fair trial in any trial involving the irreversible decimation of a human being. Although Singapore insists on its right to decide how to handle criminals, they cannot shy away from the obligation of transparency imposed by Article 14 of the ICCPR.
It is an open secret that Singapore emasculates freedom of the press, hence making it impossible for the public to have the essential information needed to monitor the application of the death penalty. In a recent report by the UN’s Economic and Social Council, written by the celebrated professor Phillip Alston, and titled “Transparency and the Imposition of the death Penalty”, Singapore’s culture of secrecy about key issues involving death penalty statistics was mentioned as a case study. The Report concluded rightly, that the public is unable to make an informed decision about death penalty in absence of key information; hence the public, ie democratic citizens know little or nothing about punishment being dished out in their name. Secrecy and fair trial are strange bed fellows and that is why Article 14 insists on fair and public trial. Amnesty International also wrote an interesting Report in 2004 about the Hidden Toll of Execution in Singapore and opened up several flaws in the country’s death penalty jurisprudence.

It is also important that a connection is drawn between absence of fair trial and breach of a country’s obligation under the ICCPR. Article 6, of the ICCPR, earlier referred to, limits the application of death penalty, insisting that countries that still wish to continue with the death penalty regime, must limit its use to the most serious offences and ensure that it is not being applied arbitrarily. The question that the committee on ICCPR have had to decide is what is meant by arbitrary application.

In Guerrero v. Columbia, Communication No R. 11/45 (5 Feb. 1979) UN Doc. Supp. No. 40 (A/37/40) at 137 (1982), the ICCPR Committee was called upon to interpret what is meant by “arbitrary.” In this case, the Colombian Police, in search of kidnappers, shot and killed seven people, who had no knowledge of the crime. The State sought to justify the police action, using the Country’s Legislative Decree No 0070. But the ICCPR Committee held that the police action cannot be justified merely by evoking national legislation. The Committee noted that the mere fact that the taking of life is lawful under national law does not by itself prevent it from being “arbitrary”.

The ICCPR Committee has also found violations of Art. 6, in cases, involving the application of the death penalty, without compliance to the convicts right to fair trial. See Llyodell Richards v. Jamaica, Communication NO 535/1993, UN Doc.CCPR/C/59/D/535/1993; Pratt & Morgan v. Jamaica, Communication No. 210/1986 and 225/1987 (6 April 1989); UN Supp. NO 40 (A/44/40 AT 222.

In the case of the 19 year old Nigerian; Tochi Amara Iwuchukwu; Singapore shifted the burden of proof from the state to the accused. The trial judge gave a clear indication that it is possible that Tochi did not know that what he was carrying was hard drugs. In the absence of the guilty mind, “mens rea; the actus reus, i.e. the actual act of carrying the drugs does not lead to guilt. Fair trial is therefore in issue here, but Singapore went ahead to execute the young boy, without giving any attention to any mitigating circumstance, insisting on their strict law that stipulates for a compulsory death sentence, which the judges, had to interpret strictly in defiance to the fundamental requirement of fair trial. It is indeed a real shame that a young boy of 19 should die in such a way in the 21st century.

The truth that must be faced is that as long as death penalty continues to be imposed, the society would continue to spread the deadly gospel of violence. The dangerous philosophy of deterrence, disablement and vengeance are at the heart of the culture of violence holding sway across the world. The best punishment for Saddam Hussein would have been to spend the rest of his life in jail, but Iraq chose the path of vengeance and retribution and we would have to spend the rest of our lives, trying to explain to our children that the horrific execution of Saddam, distributed on the World Wide Web, equals to justice. They may want to know, what indeed justice is, and whether justice is culture-specific. They may want to know what is just in the destruction of human life. They may want to know the difference between when a state kills and when an individual does same?

The Way Forward:
Let us face it: the philosophy of deterrence, disablement and vengeance has lost all forms of attraction. There are empirical basis to show that death penalty does not deter violent criminals. What deters offenders is the certainty of detection and punishment and there are so many ways to punish offenders. No society that retains the death penalty can claim to be an open society. Our conception of an open society is one that is transparent, tolerant and that strives to achieve what we would like to term “comprehensive justice”, that is, justice that is not one sided. Justice must connect to the realities of human existence, and factor in the challenges and deprivation that the human person continuously face. The state, must exercise leadership in the seeming feud between the forces of good and bad in any society. We have often said that the state must stand on a higher pedestal than the depraved offender.

It is heartening to note that Nigeria is on the path to an open society. Considering the strategic position of Nigeria, in Africa, we should not lose track as a result of the dangerous philosophy of deterrence, holding sway in Iraq and Singapore and some states of America. OBJ should be encouraged to learn a few lessons from the way Singapore shunned his pleas, for Tochi and take a significant step with the National Assembly to abolish this strange penalty. The Nigerian judiciary should be encouraged to continue to promote the rehabilitative theories of punishment. The state’s right to punish offenders is incontestable, but punishment must have utilitarian bases. The era of an “eye for an eye” is gone. Every society must go within itself in soul searching for answers to the dilemma of crime. Why are they criminals? What should be done to improve the justice system and ensure that law abiding citizens are protected? How do we develop alternatives and seek to recapture the offender and turn him around? How do we develop a comprehensive strategy for assisting victims of crimes? These are serious questions that no society can shy away from. Death Penalty is a cowardly way of confronting the real issues of crime and criminality. Iraq and Singapore should be instances of how not to punish in the 21st century and beyond.

We use this opportunity to appeal to the Attorney General of the Federation, Chief Bayo Ojo, to make public and implement the recommendations contained in the Prof. Oluyemi Bamgbose-led National Study Group on Death Penalty of 2004, which recommended that a moratorium be put in place pending when the issue of the death penalty is constructively debated by the Nigerian people and a consensus reached as to its abolition or retention in our statute books. We also call on the National Assembly to pass the Moratorium Bill submitted by HURILAWS in 2004 and make history before the curtain falls on May 29th on their tenure.

* Willy Mamah researches International Humanitarian Law, in London;
*Frances Nworka is the Executive Director of the Human Rights Law Service, Lagos, Nigeria.


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