Andrew Novak
Abstracted From: Andrew Novak, The Abolition of the Mandatory Death Penalty in Africa: a Comparative Constitutional Analysis, 22 Indiana International & Comparative Law Review 267 (2012) (207 Footnotes Omitted)
The mandatory death penalty for the crime of murder is in rapid retreat worldwide. Originally diffused to the common law countries of the Caribbean, Africa, and South and Southeast Asia by way of the British Empire, the penalty has been found unconstitutional and incompatible with human rights norms in at least ten Caribbean nations since the year 2000. A new wave of litigation has appeared in the postcolonial common law nations of East and Southern Africa, and courts in Malawi, Uganda, and now Kenya have found an automatic sentence of death unconstitutional and have replaced mandatory schemes with discretionary ones that allow consideration of mitigating factors in the capital sentencing process. The resulting criminal justice regimes operate in closer conformity with international human rights norms and explicitly adopt these norms in their domestic legal systems.
This harmonization of death penalty regimes across borders is no accident: it was the deliberate intention of a small network of international anti-death penalty advocates to create a body of transnational jurisprudence from which to draw in bringing incremental challenges in national courts. By initially petitioning the United Nations Human Rights Committee and the Inter-American Human Rights System to find the mandatory death penalty incompatible with human rights treaty obligations, this core of advocates succeeded in developing a corpus of persuasive reasoning on which they could rely in challenges before binding national courts of appeal in the Caribbean as well as the Eastern Caribbean Court of Appeal, the Privy Council in London, and eventually the Caribbean Court of Justice. The strategy had worked before. A decision of the European Court of Human Rights in 1989 found that undue delay and conditions of death row could eventually render an otherwise constitutional sentence cruel and degrading. It was followed over the next decade by decisions arising out of such diverse jurisdictions as Canada, Jamaica, India, and Zimbabwe.
The constitutions of former British colonies in the Caribbean and Africa are in pari materia with one another, created from a template used by departing colonial officials at Lancaster House in London where most constitutional negotiations hurriedly took place on the eve of independence. The fundamental rights portions of the constitutions are heavily based on the European Convention of Human Rights, which applied to Britain's colonies when the Convention went into force in 1953 and lapsed at independence. Almost all of these constitutions contain a right to life provision that is clawed back by a subclause specifically saving the death penalty. In addition, every constitution contains a clause prohibiting torture and cruel, inhuman, or degrading treatment and punishment. A constitutional challenge to the mandatory death penalty rests on the interplay between these two clauses. Anti-death penalty advocates argued that the constitutions only prevent challenge to the death penalty per se, and not textually to the mandatory nature of the death penalty. As a result, courts could find that a mandatory death penalty qualifies as cruel and inhuman punishment since it could be disproportionately harsh; classifying all murders the same even though all are not equally heinous.
Anti-death penalty advocates succeeded on another track as well. Because the mandatory death penalty provides for an automatic sentence of death upon conviction of murder, no sentencing hearing takes place. Courts have interpreted this as a violation of the right to a fair trial, another right that appears in every common law constitution in the Caribbean and Sub-Saharan Africa, which should include the right to present mitigating evidence on a defendant's behalf in a sentencing hearing. The United Nations Human Rights Committee, the Inter-American Commission on Human Rights, and the Privy Council in London, then the highest court for most Commonwealth Caribbean nations, accepted this argument in a series of challenges. Both lines of jurisprudence have the same two holdouts: Malaysia and Singapore, which are also former British colonies. The constitutions of these two countries do not include the right to a fair trial or protections against cruel, inhuman, or degrading punishment. Although the mandatory death penalty has been extinguished in most of the Caribbean, it still survives in Southeast Asia.
This Article will turn first to the two major common law retentionist powers that have invalidated the mandatory death penalty: the United States and India. These decisions provided legal groundwork for launching a series of challenges in the Caribbean. This Article then distinguishes the jurisprudence arising from Malaysia and Singapore, which have resisted challenges for reasons that are peculiar to their constitutional regimes. Finally, this Article analyzes the three most recent decisions invalidating the mandatory death penalty, arising from the Constitutional Court of Malawi, the Supreme Court of Uganda, and the Court of Appeal of Kenya. Each of these three decisions has made a unique contribution to the body of global common law death penalty jurisprudence. As mandatory death penalty challenges advance in half a dozen more African countries, these three decisions will become especially important as persuasive authority. The result will be a death penalty regime harmonized across borders, in which the death penalty is confined only to the rarest and most serious cases, incorporating international human rights norms in sentencing proceedings.
. Adjunct Professor of African Law, American University Washington College of Law.
