The right to life is a controversial one. It is also said to be inviolable. But, is it?
Some wonder what life, and who a person, is.
There is a school of thought that says that life begins at conception and that everyone who has life is a person/human being. Another school of thought says that life begins at birth and that everyone who has been born alive is a person/human being.
The former school of thought is the same school of thought that is anti-abortionist. – They say that a woman should not be permitted to have an abortion (except in very limited circumstances). The latter school of thought is rather liberal in their thinking and asserts that much as everyone has a right to life, a fetus is a cell/set of cells which cannot be given the attribute of a person. Well, I digress. The discussion on abortion and reproductive rights is for another day.
According to Google, a human being is [hu·man be·ing, noun] a man, woman, or child of the species Homo sapiens, distinguished from other animals by superior mental development, power of articulate speech, and upright stance.
So, for the purpose of our discussion, let us restrict our discussion to the Google definition of a human being.
Article 6 of the International Covenant on Civil and Political Rights provides thus:
- 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.
- 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 and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.
- When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
- Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
- Amnesty, pardon or commutation of the sentence of death may be granted in all cases. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
- Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
It has been in the news, how the President Uhuru Kenyatta, on the 24th of October, 2016 signed a commutation of all death sentences to life imprisonment. A total of 2.747 death row convicts were beneficiaries to this Presidential prerogative.
Whereas abolitionists of the death sentence had a reason to celebrate, proponents for the death sentence did not welcome the exercise of the president’s prerogative. Some looked at it as a political move, while others looked at it a move to give an opportunity to these death row convicts a second chance at life outside the prison walls.
Well, for whatever reason the President commuted these convicts’ sentences, we must all endeavor to separate the functions of the state and those of any religion. A mixture of the two has never worked. So, even when we are advocating for the right to life, we must do it with all reason, but free from religion and religious overtones.
The right to life must never be taken away from any one, arbitrarily. This means, like article 6 quoted above says, that 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.
The test of warranted death sentence is “in accordance with the law in force at the time of commission of the crime”. So, before we move for the total abolition of the death sentence, we should move for a change of the laws in force, such as the penal code.
It also goes without saying that it is repugnant and goes against all good conscience to hand the death sentence to persons below eighteen years of age and to pregnant women.
My recommendations on the death sentence are that:
- It must be confirmed by the highest court of law in the land. In the East African context, the highest court is the Supreme Court in the given country. An appeal against the death sentence should lie as of right up to the Supreme Court.
- A convict on death row has the right to seek for Pardon, amnesty or commutation of sentence from the relevant body. In East Africa, pardon is sought from the President
- It is legal and therefore acceptable for any State to abolish the death sentence.
With that said, live long! May you never die by the guillotine!
BY SAMALI BITALA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 7, Issue 4 of October 28th, 2016
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