The United Nations Office of the High Commissioner made a call to Non Governmental Organisations to receive any relevant information with regard to the question of the Death Penalty. Below is SALC’s Submission.
This submission was prepared by SALC. Our organisation is opposed to the death penalty and regards the execution of the death sentence as inhumane, degrading and cruel punishment and in clear violation of the right to life as stipulated in the International Convention of Civil and Political Rights and the African Charter on Human and Peoples Rights.
Worldwide, most death sentences are issued for murder and other crimes that involve intentional killing, or for armed robbery, drug-related offences, terrorism or blasphemy. In Southern Africa, the majority of – if not all – death sentences issued in 2016 were for murder or armed robbery. Regionally, other crimes that are technically eligible for the death penalty range from rape, treason, mutiny and espionage, although the death penalty is rarely issued in these cases. There have been instances in Malawi, Tanzania and Zambia where the Presidents have not assented to the death sentences passed by the Courts leaving the status of the people on death row as indeterminate, this uncertainty creates extreme difficulties for inmates and their immediate families.
There is an ever-increasing body of jurisprudence from the highest courts in Africa, the Caribbean and other jurisdictions in which the mandatory imposition of the death penalty for particular offences has been held to be unconstitutional and incompatible with respect for fundamental human rights. This jurisprudence establishes that such punishment is disproportionate and offends against the constitutional prohibition against arbitrary, cruel, inhuman or degrading punishments. In all such cases, these conclusions have been reached notwithstanding the fact the constitution in question authorises the use of the death penalty.
No constitutional or superior national court or international tribunal that has considered the legality of the mandatory death penalty has found it to be compatible with respect for fundamental human rights.
Developments in Southern Africa
Southern Africa, in particular, is moving in the right direction of abolition. The last two decades have seen a steady drop in the number of executions and death sentences on the African Continent. It has also seen Malawi abolish the mandatory death penalty, Zambia and Zimbabwe stop executing, and Madagascar abolish the death penalty outright. According to Amnesty International, in Sub-Sharan Africa, Botswana, Somalia, South Sudan and Sudan – carried out executions in 2018. In the SADC sub-region, which is composed of 13 countries, there are only 4 countries which have abolished the death penalty from their statutes, namely; Mozambique, Mauritius, South Africa and Namibia. Despite international commitments by Southern African countries, some countries persist in carrying out death sentences.
Botswana is the one country in Southern Africa still regularly hanging convicts – two persons in 2020, one in 2019, and 2 in 2018.. Amnesty International has reported that executions are often undertaken without prior notice, with families of those convicted only being notified after execution.
In Zimbabwe there has been no execution since 2005, but persons are still sentenced to death and there are over a hundred prisoners languishing on “death row”, some for more than 10 years. In 2018, there were approximately 81 inmates on death row, and no person had been appointed in the position of executioner. In March 2020, the President of Zimbabwe issued a Clemency Order which commuted the sentence of prisoners who had spent more than 10 years on death row, to life imprisonment. In 2018, a similar step was taken by the President of Zambia to commute the sentences of 332 prisoners on death row, to life imprisonment. However, a year later, there were still 315 inmates on death row at Mukobeko Maximum Security Correctional Facility. In December 2019, the Vice President of Zambia suggested that the country is ready for talks to abolish the death penalty.
In 2007, Malawi’s High Court in the case of Kafantayeni and others v The Republic Constitutional Case No. 12 of 2005 declared the mandatory death sentence requirement under section 210 of the Penal Code (prior to its amendment) unconstitutional. Subsequently, in Yasini v The Republic MSCA Criminal Appeal No. 29 of 2005, the Supreme Court ordered and directed that all murder convicts sentenced before the Kafantayeni decision should be brought before the High Court for re-sentencing. It took a significant time for this judgment to be implemented and only by 2015 were new sentencing hearings initiated after a coalition of stakeholders created the Malawi Resentencing Project to investigate and present mitigating evidence in these death penalty cases and ensure the sentencing hearings met international fair trial standards. As a result of the project, over 142 former death row prisoners have been released by May 2019. Malawi courts however continue to impose the death penalty.
In February 2020, a case was filed in Lesotho’s High Court (sitting as a Constitutional Court) to challenge the imposition of a mandatory death sentence for sexual assault if the accused was HIV positive, pursuant to section 32(a)(vii) of the Sexual Offences Act No.3 of 2003. Section 5(1) of the Constitution of Lesotho emphasises that “[n]o one shall be arbitrarily deprived of his life”, contemplating that there are circumstances in which it is permissible to take a life, however the right to freedom from discrimination is a well-canvassed fundamental human right in international and domestic laws globally. Lesotho is no different with regards to its recognition of this human right under section 18 of the Constitution which provides a legal foundation for the enjoyment of basic human rights.
Developments at a Regional Level
In April 2015, at its 56th Ordinary Session, in order to work towards abolition of the death penalty across the continent, the Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary Killings in Africa, which is a special mechanism of the African Commission on Human and Peoples’ Rights (ACHPR), has been working on a Draft Protocol to the African Charter on Human and Peoples’ Rights (the Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa) that would commit States to abolition. The protocol is currently being reviewed internally by the African Union before adoption, and is hoped to become a strong impetus to African States to abolish the death penalty, and to help African Union member states move away from capital punishment and towards systems emphasising restorative justice rather than retributive justice.
On the 10th October 2014, in a statement made by the Chairperson of the Working Group on Death penalty of the African Commission on Human and Peoples’ Rights on the 12th World Day against the Death Penalty, it was noted that states, have laws which prohibit the sentence to death or execution of persons with mental illness or intellectual disabilities, however, despite these legal provisions, persons with mental illness or intellectual disabilities are subjected to capital punishment and executions in some countries.