The Death Penalty: A violation of basic human rights and an ineffective crime deterrent
By: Mathew BurnettTHE Namibian public is rightfully outraged in response to the sexual assault and murder of two young girls in Windhoek and Swakopmund.
In response, a number of people have called for the re-introduction
of the death penalty in Namibia.
I respectfully submit that the call to consider the legalization
of capital punishment is misguided.
Not only is the death penalty explicitly outlawed by the
Namibian Constitution, it also contravenes Namibia's regional and
international human rights obligations.
Moreover, the death penalty has not been shown to deter criminal
behaviour or reduce crime rates in other countries, and there is no
proven method to ensure that innocent people will not be put to
death at the hands of the State.
Article 6 of the Namibian Constitution states that "the right to
life shall be respected and protected."
It then goes on to explicitly state that "no Court or Tribunal
shall have the power to impose a sentence of death on any person,"
and that "no executions shall take place in Namibia."
Further, Article 131 provides that the repeal or amendment of
the fundamental rights and freedoms enshrined in the Constitution
that would diminish or detract from them is impermissible.
Because the right to life is a fundamental right, the only way
that Article 6 or portions thereof could be changed is to throw out
the Constitution and begin the process anew.
Taking such a drastic measure in order to legalize the death
penalty, which is currently condemned by the majority of countries
in the world, is without merit.
Current figures reveal that 118 countries in the world have
abolished the death penalty, either in law or in practice.
Since 1985 only four countries that had previously abolished the
death penalty have reinstated it (Nepal, the Philippines, Gambia,
and Papua New Guinea).
However, Nepal has now abolished it again, the Philippines have
suspended executions, and there have been no executions in Gambia
and Papua New Guinea.
Thus, if Namibia were to reintroduce the death penalty and carry
out an execution, it would stand alone in the world.
It is clear that countries that have abolished the death penalty
far exceed the number of countries which both retain and use the
death penalty (78).
In fact, in 2003, 84 percent of all executions were carried out
in only four countries (China, the United States, Iran, and
Vietnam).
Internationally, there are four treaties through which various
countries have explicitly agreed not to use the death penalty, or
to only do so during wartime.
Further, the cornerstone of international human rights, the
Universal Declaration of Human Rights, enshrines the protection of
the right to life and prohibits cruel, inhuman, and degrading
treatment (Articles 3 and 5).
Namibia has signed and ratified a number of international
treaties that similarly enshrine the protection of the right to
life as well as prohibit cruel, inhuman, or degrading
treatment.
They include the International Covenant on Civil and Political
Rights (Articles 6 and 7), the Convention on the Rights of the
Child (Article 37), and the Convention Against Torture and Other
forms of Cruel, Inhuman or Degrading Treatment or Punishment
(Articles 1 and 16).
Moreover, Namibia has obligations to two regional treaties that
enshrine the right to life and prohibit cruel, inhuman, and
degrading treatment; namely the African Charter on Human and
People's Rights (Articles 4 and 5) and the African Charter on the
Rights and Welfare of the Child (Article 5).
By reintroducing the death penalty, Namibia would arguably
contravene each of these international and regional agreements.
Even if it were acceptable to Namibians to throw out the
Constitution and ignore all of these international and regional
human rights obligations - which it should clearly not be -
research shows that the death penalty is simply not effective in
combating crime.
Indeed, a recent report that considers the relationship between
the death penalty and homicide rates conducted for the United
Nations concluded that "it is not prudent to accept the hypothesis
that capital punishment deters murder to a marginally greater
extent than does the threat and application of the supposedly
lesser punishment of life imprisonment."
This same report, in comparing the relationship between changes
in the use of the death penalty and crime rates, stated that "the
fact that the statistics … continue to point in the same
direction is persuasive evidence that countries need not fear
sudden and serious changes in the curve of crime if they reduce
their reliance upon the death penalty."
In Canada, for example, the homicide rate peaked the year before
the death penalty was abolished for the crime of murder, and has
fallen by 40 percent since.
In the United States, the State of Texas has become the nation's
leader in the use of the death penalty since 1982, yet in the years
between 1982 and 1991 the rate of violent crime grew by 46 percent
and the general crime rate grew by 24 percent.
The facts also show that the death penalty can lead to state
sponsored killing of innocent people.
For example, in the United States, 117 individuals have been
released from death row since 1973 after evidence of their
innocence was revealed.
Indeed, in 2000 the governor of one US state (Illinois) declared
a moratorium on the death penalty after thirteen death row inmates
were found to have been wrongfully convicted since 1977.
One of the men exonerated, Madison Hobley, made a false
confession after police wrapped a plastic bag over his head, beat
him, and choked him in order to force a confession.
Based on this coerced confession, he was convicted and spent 13
years on Illinois' death row before being exonerated.
In countries that permit the use of the death penalty, the risk
of innocent people being killed at the hands of the state is simply
unavoidable.
It can and does happen.
While it is natural that we want to protect ourselves and our
children from crime, the death penalty is simply not a wise or
effective way to accomplish that objective.
This does not mean, however, that a national debate on crime
reduction and prevention does not need to take place in
Namibia.
It is the responsibility of every Namibian to consider ways in
which to make Namibian society a safer place for everyone, but the
death penalty is not the answer.
Matthew Burnett, a former legal intern at the Legal Assistance
Centre, is a researcher and writer on international human rights
and other public international law topics.
He currently lives and works in Johannesburg, South Africa.
I respectfully submit that the call to consider the legalization of
capital punishment is misguided.Not only is the death penalty
explicitly outlawed by the Namibian Constitution, it also
contravenes Namibia's regional and international human rights
obligations.Moreover, the death penalty has not been shown to deter
criminal behaviour or reduce crime rates in other countries, and
there is no proven method to ensure that innocent people will not
be put to death at the hands of the State. Article 6 of the
Namibian Constitution states that "the right to life shall be
respected and protected."It then goes on to explicitly state that
"no Court or Tribunal shall have the power to impose a sentence of
death on any person," and that "no executions shall take place in
Namibia."Further, Article 131 provides that the repeal or amendment
of the fundamental rights and freedoms enshrined in the
Constitution that would diminish or detract from them is
impermissible.Because the right to life is a fundamental right, the
only way that Article 6 or portions thereof could be changed is to
throw out the Constitution and begin the process anew.Taking such a
drastic measure in order to legalize the death penalty, which is
currently condemned by the majority of countries in the world, is
without merit.Current figures reveal that 118 countries in the
world have abolished the death penalty, either in law or in
practice.Since 1985 only four countries that had previously
abolished the death penalty have reinstated it (Nepal, the
Philippines, Gambia, and Papua New Guinea).However, Nepal has now
abolished it again, the Philippines have suspended executions, and
there have been no executions in Gambia and Papua New Guinea.Thus,
if Namibia were to reintroduce the death penalty and carry out an
execution, it would stand alone in the world.It is clear that
countries that have abolished the death penalty far exceed the
number of countries which both retain and use the death penalty
(78).In fact, in 2003, 84 percent of all executions were carried
out in only four countries (China, the United States, Iran, and
Vietnam). Internationally, there are four treaties through which
various countries have explicitly agreed not to use the death
penalty, or to only do so during wartime.Further, the cornerstone
of international human rights, the Universal Declaration of Human
Rights, enshrines the protection of the right to life and prohibits
cruel, inhuman, and degrading treatment (Articles 3 and 5).Namibia
has signed and ratified a number of international treaties that
similarly enshrine the protection of the right to life as well as
prohibit cruel, inhuman, or degrading treatment.They include the
International Covenant on Civil and Political Rights (Articles 6
and 7), the Convention on the Rights of the Child (Article 37), and
the Convention Against Torture and Other forms of Cruel, Inhuman or
Degrading Treatment or Punishment (Articles 1 and 16).Moreover,
Namibia has obligations to two regional treaties that enshrine the
right to life and prohibit cruel, inhuman, and degrading treatment;
namely the African Charter on Human and People's Rights (Articles 4
and 5) and the African Charter on the Rights and Welfare of the
Child (Article 5).By reintroducing the death penalty, Namibia would
arguably contravene each of these international and regional
agreements.Even if it were acceptable to Namibians to throw out the
Constitution and ignore all of these international and regional
human rights obligations - which it should clearly not be -
research shows that the death penalty is simply not effective in
combating crime.Indeed, a recent report that considers the
relationship between the death penalty and homicide rates conducted
for the United Nations concluded that "it is not prudent to accept
the hypothesis that capital punishment deters murder to a
marginally greater extent than does the threat and application of
the supposedly lesser punishment of life imprisonment."This same
report, in comparing the relationship between changes in the use of
the death penalty and crime rates, stated that "the fact that the
statistics … continue to point in the same direction is
persuasive evidence that countries need not fear sudden and serious
changes in the curve of crime if they reduce their reliance upon
the death penalty."In Canada, for example, the homicide rate peaked
the year before the death penalty was abolished for the crime of
murder, and has fallen by 40 percent since.In the United States,
the State of Texas has become the nation's leader in the use of the
death penalty since 1982, yet in the years between 1982 and 1991
the rate of violent crime grew by 46 percent and the general crime
rate grew by 24 percent.The facts also show that the death penalty
can lead to state sponsored killing of innocent people.For example,
in the United States, 117 individuals have been released from death
row since 1973 after evidence of their innocence was
revealed.Indeed, in 2000 the governor of one US state (Illinois)
declared a moratorium on the death penalty after thirteen death row
inmates were found to have been wrongfully convicted since 1977.One
of the men exonerated, Madison Hobley, made a false confession
after police wrapped a plastic bag over his head, beat him, and
choked him in order to force a confession.Based on this coerced
confession, he was convicted and spent 13 years on Illinois' death
row before being exonerated.In countries that permit the use of the
death penalty, the risk of innocent people being killed at the
hands of the state is simply unavoidable.It can and does
happen.While it is natural that we want to protect ourselves and
our children from crime, the death penalty is simply not a wise or
effective way to accomplish that objective.This does not mean,
however, that a national debate on crime reduction and prevention
does not need to take place in Namibia.It is the responsibility of
every Namibian to consider ways in which to make Namibian society a
safer place for everyone, but the death penalty is not the answer.
Matthew Burnett, a former legal intern at the Legal Assistance
Centre, is a researcher and writer on international human rights
and other public international law topics.He currently lives and
works in Johannesburg, South Africa.