Law and Advocacy(LASS) -The imposition of death penalty as punishment for a variety of crimes dates as far back as the Eighteenth-Century B.C and since then it has continued to attract mixed reactions.
Monday 26th October, 2020 marked yet another day that sparked mixed clouds of reactions among people, the Government and NGO’s when the High Court of South Sudan sitting in Juba presided over by Justice Douth Kulang sentenced a one Babu Emmanuel Lokiri, a 24-year-old male adult to death by hanging.
Babu was found guilty of killing three siblings namely, a 9-year-old Naomi, 7-year-old Blessing and 4-year old Nor Edward at Rock City in Juba on 1st August, 2020 contrary to Section 206 of the Penal Code Act 2008.
Following the courts sentence, many of our clients contacted us through our mail and comment boxes for a brief of the meaning and our view on the death sentence. Thanks to those who contacted us.
First and foremost, the criminal justice system is a device by which states protect the security of individual interests and ensure the survival of persons. The purpose of criminal sanctions is to make the offender give retribution for harm done and expiate his moral guilt, so punishment is meted out in proportion to the guilt of the accused. In this regard, the objective of criminal law should be “to give fair warning of the nature of the conduct declared to constitute an offense” and “to promote the correction and rehabilitation of offenders.” Both the deterrence of possible offenders and the stabilization and strengthening of social norms should be central while meting out punishments.
In respect to the Babu sentence, section 206 of the Penal Code Act 2008, states that whoever intentionally causes the death of another person or knowing that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause, commits the offence of murder, and upon conviction be sentenced to death or imprisonment for life, and may also be liable to a fine; provided that, if the nearest relatives of the deceased opt forcustomary blood compensation, the Court may award it in lieu of death sentence with imprisonment for a term not exceeding ten years.
This section thus imposes three 3 forms of sentences that the Court may consider given the circumstances namely;
- Death sentence. This is where the convict is sentenced to death by either beheading, electrocution, hanging, lethal injection, or shooting. But the universally preferred method of execution is by hanging.
- Imprisonment for life; where the convict is sent to jail for the remaining years of his lifetime.
- Imprisonment for a term not exceeding ten years where the nearest relatives of the deceased opt for customary blood compensation. Customary blood compensation is the financial compensation paid to the victim or heirs of a victim in the cases of murder, bodily harm, or property damage. It only applies when the victim’s family wants to compromise with the guilty party.
Any death sentence is subject to appeal (if any) or confirmation by the Supreme Court before execution is carried out.
Globally, the legality of the death sentence has been questioned many times and over two-thirds of the world’s countries have abolished the death penalty in law or in practice. As a result, there has been a downward trend in the number of death sentences and executions worldwide. However, the death penalty is still applied in 34 States and territories including China, Iran, Saudi Arabia, Iraq, and Egypt being the most in that order.
In Sub-Saharan Africa, four Countries- Botswana, Somalia, South Sudan, and Sudan – carried out 25 execution in 2019 and for the second year in a row, South Sudan saw an alarming increase in executions, putting to death at least 11 people in 2019.
LEGALITY OF DEATH PENALTY
Article 21 of the Transitional Constitution of South Sudan, 2011, restricts the imposition of death penalty as punishment for extremely serious offences in accordance with the law. It further prohibits imposition of death penalty on a child, a person who has attained the age of seventy and a pregnant or lactating woman, save after two years of lactation.
Thus, as a general rule, death penalty is not allowed in Sudan South except for extremely serious offences such as murder as prescribed under section 206, treason under section 64, giving or fabricating false evidence with intent to procure conviction for an offence punishable with death under sections 150 of the Penal Code Act, 2008 respectively.
Equally, the international community has adopted several instruments that have banned the use of the death penalty, including the following:
- The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. The exception being where death penalty is applied in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.
- Protocol No. 6 to the European Convention on Human Rights, concerning the abolition of the death penalty, and Protocol No. 13 to the European Convention on Human Rights, concerning the abolition of the death penalty in all circumstances.
- The Protocol to the American Convention on Human Rights to Abolish the Death Penalty.
CASE SCENARIOS IN SOUTH AND EAST AFRICA
In South Africa, the Constitutional Court through State v Makawanyane and another unanimously struck down the death sentence for murder for violating the right to life and human dignity and the right to be free from cruel, inhuman or degrading treatment and punishment.
In Uganda, the Supreme Court in Attorney General v Susan Kigula & 417 Others, confirmed that a mandatory death sentence violates the right to a fair trial by denying a proper sentence hearing and precluding the appellate review of criminal sentences and violated the principle of separation of powers; and that any inordinate delay lasting longer than three years would be unconstitutional. The Court, however, held that the death penalty in itself is constitutional but must be meted in the rare of rarest cases.
MORAL ARGUMENTS AGAINST DEATH PENALTY
Some moral arguments against death penalty include;
- The death penalty is not a viable form of crime control.
- Capital punishment wastes limited resources. It squanders the time and energy of courts, prosecuting attorneys, defense counsel and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society’s control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment.
- Opposing the death penalty does not indicate a lack of sympathy for murder victims. Death penalty epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems.
- Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws have not been appreciably altered by the shift from unrestrained discretion to “guided discretion.” Such “reforms” in death sentencing have been argued to merely mask the impermissible randomness of a process that results in an execution.
- A society that respects life does not deliberately kill human beings.
It is plausible that the Transitional Constitution of South Sudan, 2011 prohibits meting of death penalty except as punishment for serious crimes. This is in resonance with some of the international instruments.
However, the acceptation of death penalty as punishment for serious crimes without objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death removes the judge’s discretion that may lead to unfair, inequitable and discriminatory practice. The death penalty if not properly regulated may be arbitrarily abused.
- There should be put in place objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death e.g. Enacting sentencing guidelines that clearly spell the instances where death sentence may be passed, the sentence range, aggravating and mitigating factors of the death sentence. This will in return restore judges’ discretion i.e. judges may no longer be bound by law to hand down the death penalty for capital offenses. They may exercise their discretion on the suitable punishment for each case.
- The public should be sensitized about the dangers of unregulated meting of the death sentence and that anyone may be an innocent victim.
- Persons accused of capital offenses should be availed with legal representation in order to ensure that they are fairly represented during all the stages of the trials.
- Criminal judgments should be made publicly available. This will boost public confidence in the justice system.
- Convicts on death row should have a definite period within which they must be executed and if not executed within the timelines so prescribed, their death sentence should be deemed commuted to imprisonment for life as the case is with Uganda.