October 6, 2015 By: Alfred Kamanda
I have been following the recent debate, particularly on social media, on the question of whether or not the State should apply the death penalty for people convicted of offences for which death is the prescribed punishment by Law. The debate is a direct response to recent events in the country, including the decision of the High Court of Sierra Leone to hand down the death sentence in the matter between the State v. LAC and Another in which a popular “herbalist” was convicted and sentenced to death by hanging by Justice Alusine Sesay. This decision was shocking to many, especially when the conviction was reached largely on the basis of circumstantial evidence.
For the records, I am not saying that an allegation of murder cannot be proved purely by relying on circumstantial evidence, but it is part of the reason I think no one should be sentenced to death since it is not as reliable as direct evidence. The debate has never stopped since the verdict came down.
Another reason for the debate has been the increasing wave of gang-related killings around Freetown in recent times which prompted comments of the application of the death penalty for convicted perpetrators by the Minister of Internal Affairs, Paolo Conteh.
The legal basis for capital punishment is found in the Criminal Procedure Act of 1965. Pursuant to Section 211 of the Criminal Procedure Act 1965, “every sentence of death shall direct that the person condemned shall be hanged by the neck until he is dead, but shall not state the place of execution”. Furthermore, Section 16 (1) of the 1991 Constitution of Sierra Leone states thus: “No person shall be deprived of his life intentionally except in execution of the sentence of a court in respect of a criminal offence under the laws of Sierra Leone, of which he has been convicted”.
Treason and other related offences are also punishable by death pursuant to the Treason and State Offences Act 1963. Mutiny is also punishable by death under the Sierra Leone Military Forces Act 1961.
Consistent with international standards and practices, Sierra Leone has either signed or acceded to a number of international and regional human rights instruments which guarantee the right to life. Even though the death penalty is not explicitly outlawed in these international instruments, it is however reserved for very serious crimes. The International Convention on Civil and Political Rights, to which Sierra Leone acceded in 1996, stipulates in paragraph 1 of its Article 6 that ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’. Furthermore, paragraph 2 of the same article states as follows: ‘In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. This penalty can only be carried out pursuant to a final judgment rendered by a competent court’. Article 4 of the African Charter on Human and Peoples Rights, which Sierra Leone signed in 1993, provides that, ‘Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right’.
Internal Affairs Minister Paolo Conteh was heard on radio condemning the illegal spate of killings in recent days by gangs labelled as cliques. The minister also called for the enforcement of the death penalty imposed by the High Court in the LAC case. I join fellow compatriots in condemning the recent acts of violence by young people, but I do not agree that imposing a death penalty is the solution. LAC has 21 days to appeal against his conviction, which is why I consider Minister Paolo Conteh’s “Kill Dog before Dog leh dog know say die day” comment as very prejudicial to his right to appeal.
The “eye for an eye” law is now regarded as bad law in the Bible, and has been replaced by the law of Jesus Christ! The law since the birth, death and resurrection of Jesus Christ has preached more of peace, forgiveness and love for one another. So the “eye for an eye” principle holds no place in our Holy Book (the Bible).
Along with many human rights organizations, I have condemned the recent calls for the enforcement of the death penalty because we believe it is a bad law. The death penalty is still in our law books, but that is not because of the lack of efforts to repeal it. The Truth and Reconciliation Commission report recommended that the death penalty, among other obnoxious laws, be expunged from our laws. These bad laws, among other reasons, contributed to the outbreak of the more than a decade-long civil war that claimed the lives of at least 50,000 people and the wanton destruction of property.
The positivists would insist, “Apply the law stricto senso”! Positivism, however, recognizes that while the existing law must be respected, the people should never stop working together to change the bad laws. The Sierra Leone government has made some progress in upholding human rights standards and principles, and should not blot its international reputation by enforcing the death penalty.
Those advocating for the death penalty argue that it has a powerful deterrent effect. However, there is limited evidence to back this claim. It is possible to deter criminals from killing others by imposing long term prison sentences. That, too, is a deterrent measure. Taking the life of the convict will not resuscitate the deceased nor will it heal the pain and anguish of the deceased’s family members. Sending them to jail will keep them away from posing any threats to members of the public. In support of my position, Amnesty International has stated that “…research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment. Such proof is unlikely to be forthcoming. The evidence as a whole still gives no positive support to the deterrent hypothesis. The key to real and true deterrence is to increase the likelihood of detection, arrest and conviction”. Baccaria also supported this position by stating in his work in 1764 that “the murder that is depicted as a horrible crime is repeated in cold blood remorselessly”.
Moreover, the irreversibility of the death penalty should unite us against it. There is a possibility of a conviction being based on error of justice delivery. How would one address the error if the convict has already been executed? Amnesty International has provided ample evidence that such mistakes are very possible: in the USA for instance, Amnesty found out that 130 people sentenced to death have been found innocent since 1973 and released from death row.
Of essence is the fact that the death penalty could be misused by rogue politicians who masquerade in the guise of protecting the interest of the people. It could be used to politically witch-hunt people not dancing to their political tune – as was the case in the very dark ages in Sierra Leone. They could use it to execute political opponents for their own selfish purposes. This reminds us of the case of JMT Kaikai and others and how they were brutally executed in the hands of the then cruel system.
The minister and many others have argued for the death penalty in line with respecting the “eye for an eye principle” (retribution). However, we cannot teach that killing is wrong by sanctioning killing! According to Desmond Tutu, to take a life when a life has been lost is revenge, not justice. In addition, the issue of the execution of the innocent is also a bane for the “eye for an eye doctrine”, that people should get what they deserve and only what they deserve is breached by the implementation of the death penalty when the innocent is executed.
Finally, my opposition to the death penalty increases when I consider the level of judicial independence or lack of it. The judiciary is still weak, and a lot more needs to change before we can begin to fully trust it on such critical decisions. Public confidence in the judiciary is still very low. There are concerns that the courts can be influenced by private and political interests. Right to life is a human right, and the state shouldn’t support recommendations that undermine citizens’ rights. The government should promote respect for life rather than advocating for violence. Even where the law says it can be applied, it was held by the court of Appeal in The State v. Fornah (1975) that “the application of the death penalty is discretionary” and that even where a person has been convicted and sentenced to death, the State can choose not to apply it.
In light of all the above, It is time to repeal rather than appeal for the use of the death penalty. The State has to ensure that punishments are humane and serve to benefit society. The death Penalty should therefore be abolished and more humane punishments meted out to convicted criminals irrespective of their crime but reflective of the seriousness of the offences. For offences that carry the death penalty, life imprisonment would be a suitable substitute punishment.