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Abolishing the death penalty in Africa
Submitted by admin on 4 October, 2010 - 00:58
From April 12-15, I represented IHEU at the regional conference on the abolition of the death penalty for North and West Africa. The conference, organised by the Working Group on the Death Penalty of the African Commission on Human and People’s Rights (ACHPR), was held at Benin Atlantic Beach Hotel, Cotonou in the Republic of Benin.
Sixty three participants representing 13 member states of the African Union and state parties to the African Charter on Human and People’s Rights, namely Algeria, Benin, Burkina Faso, Cote d’Ivoire, Egypt, Libya, Mauritania, Niger, Nigeria, Saharawi Republic, Senegal, Tunisia and Gambia, AU organs, UN agencies, national human rights commissions, academic institutions, international and national NGOs attended the event.
The objectives of the conference were to:
-debate the issues concerning the death penalty
- gather information about the consequences of the death penalty
- establish the fact that the penalty is a serious human rights abuse
-sensitise stakeholders on the consequences of applying the death penalty
-take a position concerning the abolition of the death penalty which is consistent with the world trend
- adopt political and legal strategies to give effect to the abolition
-engage relevant stakeholders on the continent to adopt a framework on the question of the death penalty in Africa
- explore the adoption of a protocol on the abolition of the death penalty in Africa.
The opening session was chaired by the head of the ACHPR, Ms Reine Alapini Gansou, while the Ministers of Justice and Foreign Affairs represented the government of Benin. In her opening speech, the Chairperson of the Working Group on the Death Penalty in Africa, Ms Zainabo Kayitesi, pointed out some of the achievements of the Working Group in the past years. She underscored the importance of dialogue and consultation in the efforts to abolish the death penalty in Africa. The government of Benin reiterated its support and endorsement of the efforts to abolish capital punishment and urged other member states to do so. Benin has observed a de facto moratorium on executions since 1993. It voted for and co-sponsored the two UN resolutions for a universal moratorium.
The plenaries featured many presentations on the death penalty and related issues. Ms Alice Mogwe from Botswana discussed the topic Understanding the Death Penalty: Origin and Evolution. She traced the history of capital punishment from the ancient pre-colonial days to the post-colonial times. Mogwe noted how the colonial dynamics influenced the policies and positions of African countries on the death penalty.
Commissioner Malila from Zambia outlined the arguments for and against the death penalty under the following headings – deterrence, retribution, innocence and possibility of error, arbitrariness, discrimination and human rights. For instance, under deterrence, he explained that those in support of the death penalty said that it helped deter criminals and again that some findings had also proved that it didn’t. He urged participants to see the conference as an opportunity to weigh the arguments and contribute to the debate. I spoke during the discussion at the end of his presentation. I pointed out that the arguments were heavily against the death penalty. I used the argument of possible innocence of the accused and possibility of error of conviction to support my position.
I also noted that part of the reason for the opposition to abolishing the death was lack of awareness and information. I told the participants that most Africans were ignorant of the sound and thoughtful arguments against capital punishment. I urged the commission to do more in the areas of public education and enlightenment.
Dr Robert Eno from Cameroon spoke on the issue of the death penalty within the international, regional and national human rights law. He listed the Universal Declaration of Human Rights, the African Charter on Human and People’s Rights, the Rome Statute, the Resolution of the ACHPR on the Death Penalty in Kigali (1999) and in Abuja (2008) and the fact that as of 2010, 15 African countries are de jure abolitionists while 10 are de facto abolitionists, as strong indications that the abolition of the death penalty is gaining ground within the human rights law in Africa.
Commissioner Kayitesi took the floor once again and discussed the problem of moratorium. She stressed the need to get retentionist states to observe a moratorium and prod those with moratorium to abolish the death penalty. She noted the challenges involved in getting states to take these steps. During the discussions, some participants pointed out that some countries could take a reverse course as was the case of Liberia. Liberia has abolished the death penalty, ratified the Second Optional Protocol to the ICCPR banning executions in 2005, but by a 2008 law reintroduced capital punishment. Many participants regarded the situation in Liberia as a dangerous precedent that could undermine the cause of abolishing the death penalty in Africa.
Another obstacle to the process of abolishing the death penalty was religion, particularly Islam. While representatives of Christian communities at the meeting were united in their support for the abolition of the death penalty, the Muslims were not. Some participants from Islamic countries argued vehemently against adopting any regional protocol on the abolition of the death penalty. They said such an instrument would conflict with Shari’a law that prevailed in their countries. The representative of the government of Egypt hurriedly drafted and issued a statement saying that Egypt would not support any regional mechanism to abolish the death penalty in Africa. The delegation from Libya supported the position of the Egyptian delegation. In reaction, another participant from an NGO in Egypt urged the conference to consider the view of the Egyptian delegate as the position of the government of Egypt, not of all Egyptians. She said she was a Muslim and an Egyptian but she was in support of abolishing the death penalty. Many people in Egypt were opposed to the death penalty.
Another participant, also from Egypt, a former ambassador who claimed to represent an ‘independent’ national NGO, when asked about his position on the issue, said he had not made up his mind. And he never did till the end of the conference!
Meanwhile there was an interesting contribution from an NGO representative from Mauritania. He reported that his organisation, in their bid to promote the abolition of the death penalty in Mauritania, invited the Muslim leaders for a dialogue. At the end of their discussion, the Muslim leaders said they could support abolishing the death penalty when it comes to political crimes but not for heinous offences. Their reason was that they would need a fatwa from their Sunni leaders in Egypt to support the abolition of capital punishment for such crimes.
Another contribution I made was in reaction to the repeated statement by a delegate from Egypt that abolishing the death penalty didn’t take into consideration the needs and feelings of the victims’ families who might have lost a bread winner. (I noticed that most delegates from the Muslim dominated states were obsessed with the idea that the death penalty was the best punishment for murderers). I told the conference that I didn’t see how the death penalty addressed the needs of the victims’ families; instead it widened the circle of victims. I proposed that states that are finding it difficult handling this should find out from other countries that had abolished the death penalty how such needs were addressed.
But I must say that it was not all gloom and doom with Islamic republics. In North Africa, both Algeria and Morocco have made remarkable progress towards abolishing the death penalty. Both countries have de facto moratorium on executions since 1993. In fact Algeria voted for and co-sponsored the two UN resolutions for a universal moratorium. Morocco abstained.
At the end of the conference, the participants urged the Commission to adopt a more proactive approach towards the abolition of the death penalty by engaging in public sensitisation and education programs and by engaging in dialogues with the different religious and faith groups. Participants also recommended the drafting of a Protocol to the African Charter on Human and People’s Rights on the abolition of the death penalty to fill the gaps and expand on the provisions enshrined in the Second Optional Protocol on the International Convention on Civil and Political Rights and place stronger emphasis on restorative rather than retributive justice.
Personally, I would like to commend the ACHPR for the efforts and initiatives to abolish the death penalty in the region. The conference was indeed a step in the right direction. I hope all states parties would eventually come to support and throw their weight behind the process. With the prevalence of corruption, porous justice system, bad governance and state orchestrated human rights abuses, the removal of the death penalty from the African penal system will be an auspicious development. African countries should join the comity of civilised nations in upholding the basic rights to life, justice and fair trial for all.