Capital punishment is the imposition of the death sentence on a convicted accused, by the justice system, as a penalty for the commission of a defined crime. The death penalty is also known as capital punishment, death sentence or punishment by death. The use of the word “capital” to describe the punishment of death comes from the Latin word “capitalis” which means “regarding the head”. It follows therefore that capital punishment is execution of a person by beheading. It was mostly done by hanging (by the head until one’s feet quit kicking), or use of a guillotine (to behead) and firing squad in mostly political executions. Modern times have changed the mode of delivery of capital punishment and the new modern ways include: lethal injection, electrocution, and gas chamber. Capital crimes include premeditated murder, and aggravated rape.
Historically, in the development of the common law system, the death sentence was for religious and political dissenters. In the past, and though the same has trickled to some jurisdictions today, capital punishment was often accompanied by torture. More so, capital punishments were a public event where the masses attended and cheered as someone hang by the neck and their legs kicked at nothing.
According to statistics from the Amnesty International, 102 countries have abolished the death sentence and at least 1,634 people were executed in 25 countries in 2015. Some countries, like Uganda and Kenya, they have abolished the death sentence defacto. They have not used it for at least ten years. For Uganda, the last execution happened in 2005 while in Kenya, the last execution happened in 1987. In Uganda, there is case law that says that if a death sentence is not carried out within three years after it was issued, it automatically turns into a life sentence (the Susan Kigula Case).
Most laws do not permit the execution of minors. Particularly, international law prohibits the sentencing of minors to death. To be eligible for a death sentence, one must be over 18 years. However, the execution of minors has happened only in Iran, Saudi Arabia and Sudan.
The death sentence is a very controversial topic in many countries. Often, the position on whether death sentence is lawful or unlawful varies from a judge’s political, cultural or religious ideology. The international convention on civil and political rights seems to appreciate this variation and provides that capital punishment may be carried out only in compliance with a lawful order issued by a competent judicial body. However, international instruments like the Charter of Fundamental Rights of the European Union, prohibits capital punishment.
More so, the United Nations General Assembly has adopted many non-binding resolutions calling for a global moratorium on executions.
History of the death penalty
The 5th Century BC Roman Law of the Twelve Tablets, the 7th century BC Draconian code of Athens (which made death the only punishment for all crimes) the 14th Century BC Hittite Code, the In 18th code of King Hammaurabi (which made death the punishment for 25 different crimes) were among the first codified laws which made a provision for the death sentence. In those first codes, the death sentence was by crucifixion, burning, impalement, drowning or stoning/beating to death. It is in the 10th Century AD that hanging became popular, especially in Britain. During the reign of Henry VIII, about 72,000 people were executed. Among the crimes that were punishable by death was treason, not confessing to a crime, and marrying a Jew. By 1700, in Britain, 222 crimes were punishable by death.
It is the state of Michigan which became the first state to abolish the death penalty for all crimes except treason, in 1846. At the same time, some other states made more capital crimes especially if committed by slaves.
The period from 1907 to 1917 marked the progressive period on abolition of capital punishment. Six states in the America banned the death sentence and three others limited it to first degree murder and treason. However, tis progressive period was hampered by both the Russian Revolution and the First World War As such; five of the six states that had abolished the death sentence reinstated it.
The abolitionist movement spread to East Africa through human rights activists from Europe and America.
The law and morality
In the East African Community, all states are defacto abolitionists. However, all east African community states have retained the death sentence for capital offences.
In the Susan Kigula Case, which sought to challenge the constitutionality of the death sentence was overruled by the Supreme Court of Uganda when a full bench ruled that a death sentence is indeed constitutional, since the constitutional provides that no one shall be deprived of life arbitrarily. But the court made a landmark decision when it was ruled that the death sentence is automatically commuted into a life sentence if the execution does not happen within the first three years of incarceration.
The Constitutions of Kenya and of Rwanda, just like those of the other east African community states guarantees the right to life. The wording of the clause is however not absolute because it says that no one should be deprived arbitrarily, but only in accordance with a procedure established by law. Other constitutions, like that of Uganda require the death sentence to be confirmed by the Supreme Court.
We have already written about presidential pardon.
Arguments against the death sentence say that there is no difference between murder and capital punishment. They say that in both circumstances, a life is taken. Arguments for the death sentence say that murder is an unlawful act while capital punishment is a penalty for crimes which are so grave and that is only imposed by the judiciary after the accused has defended him or herself.
In support of the abolition of capital punishment, Mahatma Gandhi is often quoted that, “An eye for an eye will make the whole world blind”–Mahatma Gandhi. More so, that the argument for an eye for an eye and a tooth for a tooth are barbaric and should have no place in a civilised country. However, in support of the death sentence, the good book is often quoted that, “do unto others as you would like them to do unto you”.
More so, in an argument to abolish the death sentence, it is said that the right to life is the most fundamental human right given than rights are only enjoyed by those who have life. It is argued that the taking of life is not only irreversible; it is an absolute punishment which no human being should be subjected to by another. And it is true that some accused persons have been wrongfully put on death row. (John Grisham has written a book about it – the Innocent Man where a man is convicted of murder only for it to be established later that he did not commit the crime). In rebuttal of that arguments, supporters of the death sentence say that punishment is what it is – it not to be enjoyed, but that it should have a deterrent effect on the masses. They also say that punishment should be equal in burden and proportionate to the crime committed. That it is not enough to just incarcerate the convicted. More so, that the duty of Counsel is to make sure that if indeed the accused is innocent, the evidential burden placed on the prosecution should be challenged and not get to the beyond a reasonable doubt level.
From a sociological point of view, it is argued against the death sentence that it serves no purpose but only hurts the basic unit of the country. When a person is murdered, he may have been the bread winner thus depriving the family of a source of livelihood. That even when criminals are sent to death row, there is no research on the part of the government to determine the status of the convicted in the family so that provision is made where there is a gap. Alternative punishments like community work for life, whose proceeds go to the bereaved family should be considered. They also argue that punishment should be correctional after which, if successful, the convicted will be given an opportunity to go back to the community.
There is so much truth in the arguments against the death sentence, and they should be given due consideration. Alternative and sufficient punishments should be devised for those who commit heinous crimes such as aggravated sexual offences, murder, terrorism and aggravated robbery. Even in the dispensation of criminal justice, the judiciary must protect all the fundamental human rights.
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 3, Issue 5 of March 31st 2017
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