The Necessity And Compatibility Of Capital Punishment Withhuman Right Laws With Particular Reference To Ethiopia

THE COMPATIBLITY OF CAPITAL PUNISHMENT WITH HUMAN RIGHT PROVISIONS; WITH PARTICULAR REFERENCE TO ETHIOPIA

SUBMITTED BY: Tarekegn Alemayehu

ADVISOR: Tewodros Alefe

Submitted in Partial Fulfillment of The Requirements For the Degree of Bachelor of Laws (LLB) At the Faculty of Law, Mekelle University

June 2009

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Mekelle, Ethiopia TABLE OF CONTENTS Page ACKNOLEDGEMNT--------------------------------------------------------------------INTRODUCTION------------------------------------------------------------------------CHAPTER ONE--------------------------------------------------------------------------GENERAL IDEA OF PUNISHMENT AND CAPITAL PUNISHMENT-------PUNISHMENT IN GENERAL--------------------------------------------------------Justification of Punishment-------------------------------------------------------------Theory of Punishment-------------------------------------------------------------------CAPITAL PUNISHMENT-------------------------------------------------------------Definition of Capital punishment------------------------------------------------------History of Capital Punishment---------------------------------------------------------Methods and Modes of executing Capital Punishment-----------------------------Arguments on Capital Punishment----------------------------------------------------Religious Views Towards Capital Punishment--------------------------------------CHAPTER TWO------------------------------------------------------------------------INTERNATIONAL MOVEMENTS OF ABOLISHING CAPITAL PUNISHMENT--------------------------------------------------------------------------The United Nations----------------------------------------------------------------------European Union--------------------------------------------------------------------------Inter-American State Organization Movement--------------------------------------The Abolition Movement in Africa---------------------------------------------------Abolition Movement in Ethiopia------------------------------------------------------Capital Punishment in Ethiopian Context--------------------------------------------The Period Before Fetha Negest-------------------------------------------------------The period from Fetha Negest to 1930 Ethiopian penal code----------------------Death Penalty under the 1930 Penal Code of Ethiopia------------------------------The period from 1957 to the period of 1974------------------------------------------2

The period from 1974 to the period of 2004------------------------------------------The period after the FDRE criminal code--------------------------------------------CHAPTER THREE---------------------------------------------------------------------THE COMATIBILITY OF DEATH PENALTY WITH HUMAN RIGHTS AND ETHIOPIAN CRIMINAL JUSTICE-----------------------------------------Human Right and Power of State to Punish----------------------------------------Death Penalty and Human Rights----------------------------------------------------Right to Life and Death Penalty------------------------------------------------------Freedom of Torture and Death Penalty----------------------------------------------The Deterrent Effect of Capital Punishment----------------------------------------Problems of Executing Capital Punishment-----------------------------------------Conclusion-------------------------------------------------------------------------------Recommendation-----------------------------------------------------------------------Bibliography-------------------------------------------------------------------------------------

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CHAPTER ONE GENERAL IDEA OF PUNISHMENT AND CAPITAL PUNISHMENT 1.1Punishment In General Punishment is necessary to protect peace and security of the society. When there is a crime there is also a punishment. In order to protect the peace and security of the community, every society has its own institution of punishment. Punishment distinguishes criminal law from all other types of law. It is a shield that protects society from the harm within itself. Punishment may effective in reducing or eliminating undesirable behavior. Punishment is the reaction of society against the person who breaches the social order. 1Every right has a limit. The social contract provides individuals with freedom of action with a certain limit. When one act beyond the provided limit, that is prohibited by law and hence made criminal. The possessor of the right should act within a limit of his right. Otherwise when the possessor of the right act beyond the limit set in his favor he begins to threaten others right and that may cause full of chaos. 2 In order to guarantee these rules are respected and to keep the security of society the state applies punishment to those persons who transgress the limit and commit criminal acts. Different scholars forwarded different definition for punishment.

1 2

Encyclopedia Britannica, 1986, 802 . Ibid

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H.L.A. Hart (1968) proposed that a punishment must include the following:3 1. It must involve pain or other consequences normally considered unpleasant. 2. It must be for an offense against legal rule. 3. It must be of an actual or supposed offender for his offense 4. Human beings other than the offender must intentionally administer it. 5. It must be imposed and administered by an authority constituted by a legal system against which the offence is committed. Many definitions of punishment forwarded by different scholars or legal writer’s center on these characteristics provided above by H.L.A. Hart. Therefore, to attain the status of legal punishment, a penalty must satisfy all these elements cumulatively. If it does not have one of these features, it ceases to be a legal punishment. Punishment is one species of large family of measures involving intentional deprivations of persons normally recognized rights by official institutions using coercive means if necessary.4Apart from punishment there is also more rudimentary rule regulated practices with in the groups such as family, school, or customary society, which apply sanctions in case of breach of rules. These practices, however, not fulfill the standard of a silent feature of law; legislations, organized sanctions, courts, etc. that H.L.A. Hart proposed as a standardized definition of punishment. Not long ago, corporal punishment was widely approved. Parents and teachers were told “to spare the road is to spoil the child”5. Both educational and legal systems depended upon punishment. Punishment now has fallen into some disfavor. For example physical 3

Thomas W.Simon, Law and Philosophy: An Introduction With Readings, 2001, 451 Supra note 1, 809 5 Encyclopedia of Psychology, 1984, vol.3, 193 4

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punishment is seldom used in schools, or with family. But what one approved as punishment may be considered as “a child abuse” or “spouse abuse”.6 The ultimate punishment, capital punishment, is one part of punishment and today it is extremely rare. But due to public attitude towards disfavor regarding some types of potential punishment it is still pervasive in the world today.

1.1.1 Justification of Punishment Regarding justification of punishment scholars are not of the same opinion. They provide different reasons why we use punishment. There are many possible reasons that might be given to justify or explain why someone ought to be punished. Depending on its cultural, moral, and religious attitudes different societies have different outlook as to why criminals must be punished. Based on these differences, people have different purposes for punishing criminals. 1. Retributive Theory According to this theory punishment is interested in correcting past wrongs. It looks backward to the crime and asks what justice requires correcting the past wrong.7It looks towards the original offense and seeks to punish the offender proportionately. This theory which, is the most stringent and harsh of all other theories, believes to end the crime itself. This type of justification for punishment is the oldest of others. The Golden Rule states “Do unto others as you would have others do unto you”. Law enforcement seems to have its own version on the Golden Rule, which translated as “Do unto others as they have not done to you”.8 According to retributive theory punishment applied simply in proportion to the seriousness of the offense. When a judge sentences for the purposes of retribution, punishment is simply applied in proportion to the seriousness of the offense. The “eye for an eye” system of justice 6

ibid Supra note 3 8 Ibid 7

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described in the Old Testament is an early form of retribution.9 It maintains that punishment is justified because it gives wrongdoers what they deserve. The suffering of wrongdoer is seen as good in itself, even if it has no other benefit. According to the retributivist theory, the more serious the crime the more serious the punishment should be. It underlies the idea of vengeance and revenge rather than that of social welfare and security. Therefore, the retributive theory is an objective of sentencing has no effort to change the offender and provide nothing to the society except a form of revenge. Since those men have done a wrong they must suffer for it. The proponents of this theory say that our sense of moral rightness demands punishment.10 A retributive theory basically relies on principle of fairness, justice, and equity and it refrains from being discriminatory or vindictive in its sentencing approach.11That means generally, although sentences might be severe and more frequent, the retributive theory suggests that they would be fairer and would impose punishment on those who deserve it. Retributive theory implies punishment on offences irrespective of its deterring effect on others. That means punishment should be imposed on the criminals not only to deter others from committing same crime but it should be imposed because the offenders deserve it. However, some argued that this is a “zero sum game” that such acts of street justice blood revenge are not removed from society, but responsibility for carrying them out is merely transferred to the state.12 Generally, retribution sets an important standard of punishment on the offender. The transgressor must get what he deserves, but no more. Therefore, a thief put to death is not retribution, because it is more than the act of the wrongdoer; but a murder to put 9

Ibid Patric R. Anderson and Donald J. Newman, Introduction to Criminal justice, 5th ed (1993), 286 11 Joseph J. Senna, Larry J. Siegel, Introduction to Criminal Justice, 4th ed (1987) 402 10

12

Justification for capital punishments,

http://www.justiceblind.com/death/dpsupport.html

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death is.13 Those all leads us to conclude the principle of “an eye for an eye, a tooth for a tooth …a life for a life” has a deterrent effect.

2. Deterrence Theory This theory aims to prevent crime through the example of offenders being punished. That is, it looks forward to the prevention of future crimes. It is to act as a measure of prevention of future crimes. It is to act as a measure of prevention to those who are contemplating criminal activity.14 According to these theories; punishment should not be designed to exact retribution on convicted offenders but to deter the commission of the future offences. In the ancient history of punishment all things was deterrent, and the chief end of the law of crime was to make the evil-doer example and a warning to all that like minded with him.15 The argument is that persons seeing and knowing that others are punished for committing crimes will be deterred from committing such offences by themselves. Deterrent theorists distinguish the effect of punishment as a general deterrent and its effect is a special deterrent. Punishment acts as a general deterrent insofar as the threat of punishment deters potential offenders in the general community and it acts as a specific deterrent insofar as the infliction of the punishment on convicted defendants leaves them less likely to engage in the crime.16 General deterrence is directed at preventing crime among general population, while special deterrence is aimed at 13

Ibid . Jay S. Albanese, Criminal Justice, 2001, 315

14

15

. Stephen A. Saltisburg, John L. Diamond, Kit Kinports, Thomas H. Moravets, Criminal

Law: Cases and Materials, 1994, 110 16

. Sanford H. Kadish, Stephen J. Schulhoter, Criminal Law and Its Process, (6ed, 1995),

115

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preventing future crimes by particular offender.17 The basic reasoning behind general deterrence is impeccable. One can easily understand that persons are deterred from actions likely to have painful consequences. Generally the basic idea of deterrence is to deter both offenders and others from committing a similar offense. 3. Incapacitation and Special Deterrence Incapacitation refers to the believe that dangerous criminal offenders should be locked away for a long period of time but special deterrence refers to the concept that the pains of their imprisonment should be so severe that on release convicted offenders will not dare to repeat their criminal act.18 This theory believes on the absence of dangerous peoples to minimize or totally void crime. At the heart of both incapacitation and the special deterrent the concept is the believe that a small number of people commit a great number of criminal offenses and that if they put out of circulation, their absence will have a significant role on the crime rate.19However, there are various researches that invalidate the above logic. Generally if people who have directly experienced punishment for something they did in the past refrain from future criminal activity because of the fear of being punished again, that is specific deterrence and if people who have not experienced punishment themselves but are deterred from crime by the fear that they might get the same punishment experienced by others it is known as general deterrence. When the judge hands down a sentence and tells the offender, “this ought to make you think twice next time,” the judge is thinking of a penalty as a specific deterrent; and if the judge says, “I intend to make an example of you,” the penalty’s general deterrent value is being emphasized.20 4. Rehabilitation and Reformation Theory 17

. Supra note 18, 316 Supra note 16, 58 19 Ibid 20 Hugo D. Barlow, David Kauzlarich, Introduction to Criminology, 8th ed, 2002, 215 18

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Traditionally rehabilitation and reformation were used interchangeably to express the same thing but it is not correct. Reform is direct consequence of punishment, whereas rehabilitation is an alteration of an offender’s behavior by non-punitive means so that he/she no longer violates laws.21It is generally expected that the criminal justice process will somehow reform or rehabilitate those caught up in it, or at least will not make them worse. It is recognized that virtually all persons who are processed, even those convicted and sentenced to life imprisonment, will eventually return to the community.22 This theory is the leading and the dominant feature in the most modern legal punishment. The theory rests upon the believe that human behavior is the product of antecedent causes, that these causes can be identified and that on the basis of therapeutic measures can be employed to effect changes in the behavior of persons treated. This approach sees criminal behavior as a consequence of social order or psychological shortcomings. The purpose of sentence, then, is to correct or threat these shortcomings in order to prevent future crimes.23It is impossible to divorce individual from the community. Because individual is also one part of the community. This theory is the most recent and most humane theory, of all theories raised above. It is based its foundation on the principle of reforming legal offenders through individual treatment. This theory presumes that it is proper to sentence an offender based on the likelihood of reform in the future rather than in the criminal conduct already committed. 24It held to make the offender good to rehabilitate or to change the mind of the offender through counseling, education and training. The rehabilitation philosophy holds that people are at the mercy of social, economic, and interpersonal conditions and interactions. Criminals themselves are the victim of 21

. Ibid 214

22

. La Fave Wayne R and Austin W. Scttim, Criminal Law, 1982, 12

23

. Supra note 14, 36 . Ibid

24

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racism, poverty, family disorganization, and other social problems. Therefore, it is the societies duty to help them compensate for their societal produced personal problems.25 There is a view, hold most prominently, but by no means exclusively by persons in psychiatry, that we ought never punish persons who break the law and that we ought instead to do something much more like what we do when we treat someone who has a disease. According to this view, what we ought to do to all such persons is to do our best to bring it about that they can and will function in a satisfactory way with in society. The society has an obligation to show the criminal that he/she is not rejected or detested by the community that he/she is not considered as the enemy of the community and the community understands his misfortune that derives him to this evil. The functional equivalent to the treatment of a disease is the rehabilitation of an offender, and it is rehabilitative system, not punishment system.26 Rehabilitation theory is the philosophy that society is best served when wrongdoers are not simply punished, but provided the resources needed to eliminate (avoid) criminality from their behavioral patterns.27It suggests that criminals can be treated and possibly even cured of their proclivities or tendency toward a crime. Since the root of a crime is embedded in a complex array of phenomena, economic, social, and cultural in nature the concern should be in identifying the problem and afford the appropriate treatment. A man may be restrained from particular act of crime on a particular occasion but the criminal nature in him is not touched, the criminal instincts are extirpated and they will bloom again in some other deed of crime. Truly, unless the punishment has the effect on character, unless education is regarded as an essential concomitant of punishment, the can be no hope of making punishment useful. We must realize that it is the criminality of human being not the humanity that must be uprooted.

25

. Supra note 11, 13 . Supra note 3, 468 27 . Larry K. Gaines and Roger LeRoy Miller, Criminal Justice In Action, 2006, 259 26

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It is far cheaper and more efficient and humane to help young offenders become established in the community than to punish them with a prison sentence and lock them in to a life of crime.28 Rehabilitation theory emphasized on the criminal offender and focused on correcting them. These mentioned above are only few among strongest justifications of punishment. There also other justifications like education and incapacitation. But it is worth considering here that none of them exclude the others completely, rather they interrelated to each other. And the most effective punishment is the one that holds most of these justifications harmoniously.

1.1.2 Theory of punishment The term punishment connotes a moral dimension of responsibility and blame. It is not like responding to one force of nature by creating a counter-force. Such a simple mechanistic will not do. It needs beyond such mechanism. Punishing a person is not like a disciplining dog for tailing to heel-rather, punishment sends two important messages: that the society holds the actor responsible and blame worthy for her conduct, and that moral condemnation by the community, with whatever stigma is attached, is appropriate.29 Punishment and offences share some common denominator in that both involve the infliction of pain or suffering to the victim. However there is a big difference between the two. Jeremy Bentham describes these dissimilarities as follows.30 The catalog of punishment is the same with that of offences. The same evil done by the authority of law, will constitute a punishment or an offense. This offense is the enemy of all and punishment is the common protector. Offense for the individual of a single person produces a 28

. Supra note 11, 13 . Supra note, 12, 99 30 . Richard C. Monk, Taking Sides, Crime and Punishment, 5th ed (1998), 216 29

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universal evil, punishment by suffering of individual produces a general good…. Having this nature, in order to achieve its pursuit, punishment should be effective. An effective punishment is guaranteed when the punishment is just and equitable. Therefore, punishment, as much as possible seeks to bring the complete public protection at the same time avoiding the infliction of needless suffering on the offender. When I say just and equitable punishment, I want to say attention should be paid not only to the interest and need of the collectivity but also the offender and the victim as well.

1.2. CAPITAL PUNISHMENT “The death penalty is our harshest punishment. It is irrevocable; it ends the existence of those punished, instead of temporarily imprisoning them. Further, although not intended to cause physical pain, execution is the only corporal punishment still applied to adults. These singular characteristics contribute to the perennial, impassioned controversy about punishment.”31 1.2.1 Definition of Capital Punishment It has been a tradition for a lawyer to start dealing with a subject after defining the scope their subjects in order to avoid various interpretations of the subject itself. As the saying goes “a well started problem is a half solved problem” I am going to use capital punishment as a meaning “killing of a person by a judicial process or the lawful infliction of death as a punishment.” Death penalty is used to punish wrongdoers for certain crimes. In this paper capital punishment, death penalty, and ultimate punishment are used to express the same thing.

31

. Ibid

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1.2.2 History of Capital punishment The exact date of origin of capital punishment is not known. But there is a view that the authorized taking of human life must be as old as mankind. In the form of human sacrifice, this taking reflects a believe in the sanction of life; in the form of punishment, it forces us to confront our baser selves.32 It has been found very difficult, or more accurately impossible for scholars and students of law interested in the history of capital punishment as to how, when, where, upon whom and by whom it exactly inflicted at first. There is no clear evidence as to the first use of capital punishment. As to Holy Bible, as it is clearly expressed in Genesis Art.4, the first murderer ‘Cain’ was not sentenced to death. From the close reading of the verse of this Bible, Abel’s death at the hands of his brother Cain, didn’t gave raise to capital punishment. This is because Cain’s punishment was banishment instead of death. But although Cain was not sentenced to death for murder, the Old Testament makes reference stating that “whosoever sheds the blood of man, by man shall his blood be shed.”33 But one thing is true that the Old Testament was ineffective when Cain committed a murder. The Law of Moses comes be effective sometimes after the death of Abel. The first recognized death penalty laws date back to the eighteenth century B.C. and can be found in the code of king Hammurabi of Babylon in which death penalty was prescribed for over twenty different offenses.34 This is very similar with the ordinance of Bible mentioned above, in which both demands “an eye-for-eye” punishment.

32

Peter Newman, The New Palgrave Dictionary of Economics and Law, 1998, vol.1, 201.

33

. Holy Bible, Genesis 9:6

34

http://criminal.findlaw.com/crimes/more-criminal=topics-punishment/history-of- death penalty-laws.html

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Death penalty is also part of Hittite code in the fourteenth century B.C. The Draconian code of Athens, in the seventeenth century BC, made death the lone punishment for all crimes.35In the fifteenth century BC, the Roman law of Twelve Tables also contained the death penalty. Generally the ancient civilization and Middle East had the death penalty in their codes. Historically many different crimes were deemed to be capital offences by civil and religious authorities of the day. Offences like murder, treason, arson and rape were widely employed in ancient Greece by the death punishment under the laws of Draco (fl.7th century BC) and the Romans used it for a wide range of offenses.36 Capital punishment has been prescribed for many crimes not involving loss of life, including adultery, and blasphemy and the ancient legal principle Lex talionis (talion)“an eye for an eye, a tooth for a tooth, a life for a life”, which appeared in the Babylonian code of Hammurabi, was invoked in some societies to ensure that capital punishment was not properly applied.37 Execution of criminals and political opponents has been used by nearly all societies. In most places the practice of capital punishment was reserved for murder, espionage, treason, or as part of military justice. In some countries, sexual crimes, such as rape, adultery, incest and sodomy, carry the death penalty, as do so religious crimes such as apostasy (the formal renunciation of state religion) were inflicted to death.38 In many countries of the world drug trafficking is also capital offense. In countries like China human trafficking and serious corruption are capital offences punished by death. Capital punishment in the ancient times was often avoided by the alternative of banishment and sometimes by payment of compensation. And also, for instance, from the eighth century to the mid-eleventh century in Japan, it was customary for the 35

Ibid

36

The New Encyclopedia of Britannica, 2005, vol.2, 831

37

. Ibid

38

http://oon.bsu.edu.ru/docs/SPCH.doc.

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emperor to commute every death sentence and replaces it with a deportation to a remote area.39It replaces the capital punishment to other punishment, which is less severe or to which is not severe as before. In the history of capital punishment, until the existence of code of Hammurabi, there was no unified system of justice, which formalized the relation between classes. Code of Hammurabi was the first to set a different punishment and compensation according to different classes/group of victims and perpetrators. The Torah (Jewish law), also known as Pentateuch (the first five book of the Christian old testament), lays down the death penalty for offences like murder, kidnapping, magic, violation of Sabbath, blasphemy, and a wide range of sexual crimes, although evidence suggests that actual executions were rare.40 Capital punishment is condoned or accepted in Islam. In the Medieval Islamic world, there were a handful or small number of Sheikhs, who were opposed to killing as punishment and also in the ‘One thousand and One Night’, which is also known as ‘Arabian Night’, a fictional storyteller Sheherazade is portrayed as being the ‘Voice sanity and Mercy’, generally opposed the death punishment.41 The Qur’an prescribes the death penalty for several hadd (fixed) crimes-including adultery and apostasy of Islam. But murder was not among them. In Islam murder is treated as civil crime and is covered by the law of qisas (retaliation), whereby the relatives of the victim decide whether the offender is punished to death by authorities or made to pay diyah (wergild) as compensation.42 Generally, capital punishment is historically controversial issue both nationally and internationally. It is believed that it exists before society’s organized. The historical significance of capital punishment is not only related to punishment but also to the social control. Capital punishment by its nature was often administered upon 39

Supra note 36 Supra note 38 41 Ibid 42 Supra note 36 40

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those who identified as members of social problem populations.43In such cases where it was believed that these populations did not respect the established authority or where it is believed that these populations were viewed as dangerous to the established authority, capital punishment is administered.

1.2.3 Methods and Modes of Executing Capital punishment Before the age of Enlightenment, that is 18th century, in Europe as well as in every corner of the globe, execution of capital punishment was characterized by torture and slow brutality. Executions were carried before an assembly of crowd. One of the most defining characteristics of European Enlightenment was a call for moderation in existing punishments.44In the history of capital punishment different modes of execution are exercised. Among these beheading, boiling in oil, burning alive, burning, crucifixion, disembowelment, drawing, flying alive, hanging, impalement, stoning, strangling, being thrown to wild animals, and quartering (being torn apart) were highly exercised.45 Those all were practiced as modes of punishment in the ancient times. In Britain, hanging became the usual method of execution in the tenth century AD. As many as 72,000 people were executed in the sixteenth century during the reign of Henry VIII by common execution methods including boiling, burning at the stake, hanging, beheading, and drawing and quartering.46 In America, when the young United States adopted the practice of capital punishment from England, it also adopted the methods of the mother country. The methods like quartering and boiling the convict alive are the methods adopted by the United States from Britain.47 In nineteenth century the practice of hanging replaced these techniques on the ground that they were too “barbaric”.

43

Roslyn Muraskin, IT’S A CRIME: Women and Justice, (3rd ed2003), 290 Supra note 30 45 Supra note 38 46 . Ibid 47 . Supra note 27, 271 44

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In the history of capital punishment America tried (attempted) to make the mode of execution more humane. The 1890s saw the introduction of electrocution as less painful method of execution than hanging. Nevada introduced lethal gas as the more humane method of executing capital punishment in 1924, but the “chair” was the primary form of execution until 1980s.48 Different states of United States use different methods of execution of capital punishment. Today the most common method of execution in United States are lethal injection (sixteen states), electrocution (fifteen states), lethal gas (eight states), hanging (four states), and firing squad (two states).49 In United States, of the 143 executions carried out between 1977 and 1991, 54 were by lethal injection, 83 by electrocution, 5 by gas chamber, and 1 by firing squad.50 Among the states of America eight states provide for more than one method of execution and grant the condemned person a choice, usually between lethal injection and other methods.51 Generally lethal injection is considered as more humane than others and it was first used by Texas in 1982 and today this method dominates executions in United States.52 According to its proponents the main advantage of this method is that it’s painless.

1.2.4 Arguments on Capital Punishment As I have mentioned earlier capital punishment has been one of the most controversial aspects of justice system in the world. Different scholars or thinkers have offered various arguments to support and reject of capital punishment. In the history of capital punishment different law enforcement agencies, criminologists, philosophers, religious figures, and general public have argued about capital punishment from many different perspectives. Still it is subject to controversy that states 48

Ibid Supra note 11, 334 50 Ibid 51 . Ibid 49

52

Supra note 27, 271

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are not agreed on the necessity of capital punishment. Some believe that capital punishment would deter criminals, while others contend that persons should be punished based on the doctrine of retribution. A judge’s most awesome sentencing alternative for those convicted of capital crime is the imposition of death sentence. It is the only sentence that once executed it is irreversible and final. It deprives the convicted person of an ultimate appeal.53 As the 18th century saw the coming of new ideas and thoughts the argument that capital punishment must be abolished get the inertia to counter-act the contrary view. Casare Beccaria was an outstanding person to condemn the use of capital punishment on its publication on ‘Crimes and Punishment’.54 This contained a general condemnation of the use of death penalty and its tendency to corrupt people rather than to prevent crime. People in different countries divided between two competing ideas having their own symbolic cause either to abolish or retain capital punishment. The argument of both emanate from different aspects of human knowledge. The abolitionists are claiming gradual victory from year to year; while the retentionists hold the view that abolitionists didn’t in fact secure victory, since the victory abolitionist claim is based on the number of risks. Supporters of capital punishment believe that those who commit a murder have forfeited their right to life. In addition, they believe that capital punishment is just form of retribution that expresses and re-enforces the moral indignation of law-abiding citizens.55That means any individual who kills human being must pay for the crime. 53

. Freda Adler, Gerhard O.W. Mueller, Williams S. Laufer, CRIMINOLOGY, 2nd ed

(1995), 446

54

. Eugner Mc Laughlin and John Muncie, Controlling Crime, 2001, p.168

55

Supra note 36

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They believe that capital punishment is morally fitting on the ground that a person who does wrong should suffer in proportion to his wrongdoing. However, the opponents (abolitionists) of capital punishment argue that, by legitimizing the very behavior that the law seeks to repress-killing-, capital punishment is counter productive for the moral message it conveys. Furthermore, they urge, when death penalty is used for petty offences, it is immoral because it is wholly disproportionate to the harm done.56 Again scholars argue whether or not death penalty is more deterrent. Supporters of capital punishment claim that death penalty is uniquely potent deterrent effect on potentially violent persons for whom the treat of imprisonment is not sufficient restraint.57According to some thinkers such as Kant, punishment should not only be equal but also be similar to the offence. This is based on the reason that most people will not commit a crime (act of homicide or other crime punishable by death) if they know the consequence of their act, that is, they may be executed as a result. Accordingly, if you steal from him, you steal from yourself; if you kill him, you kill yourself. The point is only law of retribution can determine exactly the kind and degree of punishment but such determination must be made by court of justice not by private individual judgment.58 According to those who favor death penalty, the prospect of capital punishment even perceived from the distance frightens the killer and stops him from committing crime because there are peoples who are more deterred by horror of punishment than the punishment itself. They hold the view that the fear of loosing once life will stop people from taking others life.59That means they abstain from it by regarding it with horror. Death penalty, even in its common sense, is the most feared punishment than other subsidiary punishments. Due to this reason the supporters of capital punishment say

56

Ibid Ibid 58 Supra note, 3, 256 59 Supra note 30, 218 57

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that, it is easier for professional criminals to accept imprisonment whatever the duration may be than being hanged or shooted.60 On the other hand the abolitionists hold the view that capital punishment is not a deterrent to capital offences. They argue that the research generally has demonstrated that, the death penalty is not more effective deterrent than life or long term imprisonment.61 They further believe that such terrible but relatively immediate punishment of execution does not deter criminals, instead they hold a long and painful punishment, that is, long and life imprisonment. This punishment is better depriving once freedom of action and also helps to deter others from such act by taking that example. They rise that in the history, capital punishment was used even for petty crimes and non-deterrence of it. According to their argument, if the capital punishment, in the ancient civilization, did not deter even petty offences like pick pockets or did not keep men from stealing horses or others, how it would keep men from committing murder? 62 They believe that capital punishment cannot deter criminals from committing such act, even there was a case when a man witnessed the execution of death penalty yet commits murder.63 Therefore, the abolitionists hold the view that because of all mentioned above and many other similar facts capital punishment has no deterrent effect. And they offer a substitution of capital punishment, which is life imprisonment. There is also a dispute whether capital punishment can be administered in a manner consistent with justice. The supporters of capital punishment believe that it is possible to fashion laws and other procedures that ensure that only those who deserve death are executed. In contrast, the opponents of capital punishment maintain that the historical application of capital punishment shows at any attempt to single out certain kinds of crime as deserving of death will inevitably be arbitrary and discriminatory.64 Due to this reason they hold the view that it is impossible to fashion laws that execute only those 60

Supra note 2 Ibid 62 Supra note 43, 284 63 Ibid 61

64

Supra note 36

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deserving death. They also propose that, even in a well run of criminal justice system, some peoples will be executed for crimes they did not commit. 65 Due to all these reasons abolitionists oppose the application of death penalty. Proponents of capital punishment always argue that, execution serve as a strong deterrent for serious crimes and produce the only real assurance that brutal criminals can never jeopardize the society. For these persons putting dangerous persons to death also conforms the desert perspectives requirement that punishment must be in proportion to the seriousness of the crime.66They believe that most capital offences must be punished by most severe punishment or capital punishment. For the very serious crime it is better to use serious punishment. For this argument they propose, “Before the brutality the death penalty is considered the brutality the offender showed the victim must not be forgotten.”67 However, the abolitionist criticized the death penalty, pointing to its consequences, like its finality, brutality of the act and mistakenly executing of innocent person. Death penalty by its nature has a final consequence. Once one is deadly punished everything become final. He has no any chance to survive again. This makes its brutality higher than other punishments. Again also mistake is unavoidable task in our life. Once we engaged in work there are so many possibilities to commit a mistake or fault. Since mistake can and have been made in its imposition, the innocent have been executed, and of course, that there is no remedy for any such mistake. Due to such reasons abolitionists condemn the applicability of death penalty. To put all in a nutshell, capital punishment is as controversial as any issue in criminal justice. According to the proponents of death penalty its use is justified in terms of justdeserts; taking of the life of one who has taken another’s life is the only just retribution.

65

Ibid

66

. Supra note 11, 380

67

Ibid

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They support their argument by the Biblical prescriptions of the eye-for-eye …life-forlife.68 Supporters also argue that, death penalty is necessary to deter others from committing murder and other terrible offences and that without it there would be little reasons for criminals to refrain from killing.69 According to those peoples, if the death penalty is not allowed a person who commits certain crimes will leave without loosing anything. They also argue that, capital punishment is the only way for assurance of a criminal not to commit a murder or other crimes again. Once a person is deadly executed he/she has no chance to commit another crime. This saves the community from crime. But in case of life imprisonment criminals (prisoners) may commit a crime in a prison or outside the prison. Therefore, they conclude their argument killing criminals is considered as assuring person or community from terrible made by such individuals and it is considered as assuring person or community from terrible made by such individuals and it is considered as the best way to protect the peace and security of the community at large. The proponents again hold the view that the death penalty is an essential social symbol, expressing the boundary of our cultural standards of decency and humanity. It is better to set outer limits beyond which unnecessary behavior cannot be tolerated. According to those persons, death penalty is clear and firm statement of our outrage at and repulsion for murderer’s acts.70 The opponents of death penalty highly criticized the necessity of death penalty. They maintain that historical evidence indicates that there is a diminution in capital crimes, even when death penalty was rapidly and publicly used.71As I have mentioned earlier capital punishment is the oldest method of punishing criminals, but the simple fact is the frequency of application seems to have no relevance to the crime rate. Those groups 68

Supra note 10, 336 Ibid 70 Ibid 71 Ibid 337 69

23

of people say that if deterrence theory worked, theoretically there should be a decrease in serious crime when death penalty is used and increase when it is forbidden. The opponents also insist that a person sentenced to death suffers more than his victim suffered. This excess suffering is not proper according to rule of retaliation (lex talions). Of course, one cannot know whether the murderer on death row suffers more than his victim suffered; however, unlike the murderer the victim deserved none of the suffering inflicted. Becarria argued that, by killing of a murderer, we encourage, endorse, or legitimize unlawful killing.72 According to him the physical similarities of punishment to the crime are irrelevant. Opponents also maintain that the publicity surrounding an execution may attract unbalanced people to commit capital crimes rather than deter potential murderers, as the seek the attention given to a person being executed and therefore commit crimes in order to be on center stage themselves.73These all are some among many arguments raised by different scholars towards capital punishment favoring and opposing its application.

1.2.5. Religious Views towards Capital Punishment Although death has prescribed in many sacred religious documents and historically was practiced widely with the support of religious hierarchies, today there is no agreement among religious fathers, or among denominations or sects with in them, on the morality and necessity of capital punishment. During the last half of twentieth century, increasing number of religious leaders campaigned against the death penalty. For example, Pope John Paul II condemned capital punishment as cruel and unnecessary punishment.74

72

Supra note 30, 219 Supra note 10 74 Supra note 36 73

24

Bible centered persuasion The issue of capital punishment is related to morality. Morality is part of society’s belief. Society’s belief may emanate from their religion, custom, history, and some other factors attached to cultural values. The retentionist holds the view that the most drastic form of crime, the taking away of human life, must deserve the most drastic form of punishment. They forwarded the Biblical teaching that “He that smith a man, so that he die, shall be surely put to death”.75 They also hold principle of ‘lex talianism’ as propounded clearly by the saying “life to life” is a justification for capital punishment. Let us see the status of capital punishment in different religious institutions. 1. Buddhism Buddhism is a religion and philosophy founded by Siddhartha Gautama in the North East India, during the period from the late 6th century to the early 4th century BC. 76 There is a disagreement among the followers of this religion as to whether or not Buddhism forbids death penalty. Chapter ten of the Dhammapada states:77 “Every one fears punishment; everyone fears death, just as you do. Therefore, do not kill or cause to kill. Everyone fears punishment; everyone loves life, as you do. Therefore, do not kill or cause to kill.” The final chapter of the Dhammapada, states, “Him I call Brahmin who has put aside weapon and renounced violence towards all creatures. He neither kills nor helps other to kill.78Many Buddhists interpret these sentences as an injunction against supporting any 75

Bible, Exodus 21:12 Supra note 36 77 http://www.buddhanet.net/e-learning/buddhism/dp10.htm, retrieved on June 5, 2009 78 Ibid 76

25

legal measure, which might lead to the capital punishment. However, since interpretation is personal, there is a dispute on this matter. Historically, most states where the official religion is Buddhism have imposed death penalty for some offences. Again also some has abolished capital punishment. For example, Bhutan has abolished death penalty, but Thailand still retains it, although Buddhism is the official religion of both countries.79 Therefore, I can conclude that in Buddhism it is not clear whether death penalty is allowed or not.

2. Islam As I discussed earlier capital punishment is allowed in Islam. The Qur’an prescribes the death penalty for several offences/crimes including robbery, adultery, and apostasy of Islam. Scholars of Islam hold it to be permissible but the victim or the family of the victim has the right to pardon. That means they can determine whether the offender is to be punished by death or not. In Islamic jurisprudence, to forbid what is not forbidden is forbidden. Consequently, it is impossible to make a case for abolition of death penalty.80 For these peoples, abolishing death penalty is considered as violating the rules of Qur’an. Even though capital punishment is condoned in Islamic law or Shari’a law, there is a great variation with in Islamic nations as to actual capital punishment. 3. Judaism Judaism is the religion of Jews. The official teaching of Judaism approve the death penalty in principle but the standard of proof required for the application of death penalty is extremely stringent, and in practice, it has been abolished by various 79

Ibid Supra note 77

80

26

Talmudic decisions, making the situation in which death sentence could be passed effectively impossible and hypothetical.81 “It is better and more satisfactory to acquit a thousand guilty person than to put a single innocent one to death”.82 This famous quotation, which every law student and scholars use, is taken from the 12th century legal scholars , Maimonides. This person argued that executing a defendant on anything less than absolute certainty would lead to slippery slope of decreasing burden of proof. Generally, in Judaism religion capital punishment exists in principle but the standard of proof required for its execution makes it difficult for its existence and application. It needs absolutely certain standards of proof. 4. Christianity Christian position on the necessity of capital punishment is not of the same. Although some interpret that Jesus’ teachings condemn the death penalty in Gospel of Luke and Gospel of Matthew regarding turning the other cheek, and John 8:7 of the Bible, others consider Romans13:3-4 to support it. There are so many branch of Christian religion (denomination) and their position regarding capital punishment varies from one another. a. Roman catholic church The Roman Catholic Church traditionally accept capital punishment as per the theology of Thomas Aquinas (who accept the death penalty as necessary deterrent and prevention method, but not as a means of vengeance.83 In the history of Catholic Church, Pope John II, condemned the death penalty and the Catholic Church holds that capital punishment should be avoided unless it is the only way to defend society from the offender in question.84 The catechism of the Catholic Church states:85 81

Ibid Ibid 83 Ibid 84 Supra note 77 85 . Ibid 82

27

Assuming the guilty parties identity and responsibility have been fully determined, the traditional teaching of the church, does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against unjust aggressor. If, however, none lethal means are sufficient to defend and protect people’s safety from aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of common good and are more inconformity to the dignity of human person. Today, in fact, as a consequence of possibilities which the state has for effectively preventing crime, the rendering one who has committed an offense incapable of doing harm-without definitely taking away from him the possibility of redeeming himself-the causes in which the execution of the offender is an absolute necessity are very rare, if not practically non existent. Generally, in this church, capital punishment is traditionally accepted but scholars of this religion hold the view that if it is possible to deter criminals by means other than capital punishment, it is better to abolish. b. Eastern Orthodox Church Eastern Orthodox Church is against the death penalty, believing that killing is wrong in any circumstance.86 This denomination hold the position that killing is immoral and they sited the Christ’s teaching to love their enemies. c. Protestants There are so many Protestants and they also take different position regarding capital punishment. Several key leaders early in the protestant reformation, including Martin Luther and John Calvin, followed the traditional reasoning in favor of capital 86

Ibid

28

punishment, and the Lutheran Church’s Augsburg Confession explicitly defend it. Some protestant groups have cited Genesis 9:5-6, Romans 13:3-4, and Levictus 20:1-27 as the basis for permitting the capital punishment. Those groups base their argument provisions of the Gospel “Think not that I am come to destroy the law, or the prophets; I am not come to destroy, but to fulfill”87 People in this category of thought believe that the new testament is not by any means lenient to let the wrong-doer go unpunished. Instead they claim that the church leave the matter of justice to the government in power. Mennonites Church of the Brethren and friends have opposed the death penalty since their finding, and continue to be strongly opposed to it today.88 These groups, along with other Christians condemned the use of capital punishment, and they cited Christ’s Sermon on the Mount (Matthew 5:7) and sermon on the plain (Luke 6:17-49).89 In These provisions Christ tells his followers to turn the other cheek and love their enemies. This generally, which these groups believe mandates, nonviolence, including to the death penalty. Generally, the issue of capital punishment is subject to controversy even among religious followers. The supporter holds the view that one must be punished by the supreme punishment, as he has violated the supreme law, that is, the highest sacredness of life. But those who opposes of this view hold Christ’s teaching to his followers to turn the other cheek and love their enemies. Therefore, still capital punishment is subject to argument.

87

Holy Bible, Matthew 5:17 Supra note 77 89 Ibid 88

29

CHAPTER TWO INTERNATIONAL MOVEMENTS OF ABOLISHING CAPITAL PUNISHMENT Historically capital punishment is criticized by different writers and scholars and also different states tried to limit the scope of application of capital punishment or abolish it generally. Historically, criminal punishment is associated with barbaric sanctions, including various forms of torture and mutilation. In the Middle Ages, convicted criminals were often drawn and quartered as part of carrying out a sentence of death.

30

They might be hung up in a public place and left to die a slow and agonizing death from starvation and exposure.90 As societies become more civilized or advanced, they eliminate many of these practices. One of the reforms of French Revolution was a universal application of a rapid and apparently painless form of execution.91 It was in the later part of 18th century that there began a movement to limit the scope of capital punishment. Until that time very wide range of offences, including common theft, were punishable by death.92 In 1784, the USA states of Pennsylvania became the first jurisdiction to restrict the death penalty to first degree-murder. In addition, in 1846 Michigan abolished capital punishment for all murder and other common crimes. In 1983, Venezuela became the first country to abolish death penalty for all crimes. Portugal was the first European country to abolish death penalty, doing so in 1867; by the early 20th century, several other countries, including The Netherlands, Norway, Denmark, and Italy, had followed the suit.93 However, the path to abolition in these countries was not always straight. Various authoritarian regimes reinstated and expanded capital punishment during the 20th century in both Europe and South America. For example, death penalty was reintroduced in Italy by Mussolini’s Fascist regime in 1927 and in Germany was expanded beyond all recognition by the Nazi’s, where it was ‘to be translated from an instrument of penal policy into a tool of racial and political engineering.94 By the mid of 1960s some 25 countries have abolished the death penalty for murder, though only half of them also had abolished it for offenses against the state or military

90

William A. Schabas, ‘Life, The Right To: The Death Penalty’, in Rhona K.M. Smith and Christian Van den Anker,(eds), the essential of ---human rights (2 005) p. 239 91 Ibid 240 92 The New Encyclopedia Britannica (15th ed., 2005), vol.2 p.831 93 Ibid 94 Roger Hood, The Death Penalty: A World Wide Perspective, (3rd ed., 2002) p.10

31

code. Britain, for example, abolished capital punishment for murder in 1965, but treason, piracy, and military crimes maintained capital offenses until 1998.95 During the last third of 20th centuries, the number countries abolished death penalty increased more than threefold. These countries together with those “de facto” abolitionists, that is, those in which capital punishment is legal but not exercised-now represent more than half of the countries of the world.96 There are now several international human right conventions that abolish capital punishment altogether. The council of Europe adopted the first, in 1983 and approximately 70 states have ratified these treaties. Another 80 states have ratified the more general international human rights treaties, such as the International Covenant on Civil and Political rights.97 Of course these instruments do not totally prohibit the death penalty but they impose strict limitations. In 1970s the United Nations General Assembly passed a resolution that called for the restricting the number of offenses for which the death penalty could be imposed with a view toward abolishing it altogether. Optional protocols to the European convention on Human Rights (1989) have been established, under which countries party to the convention and the covenant undertake not to carryout execution.98 In 1980s, the International abolition movement gained momentum and treaties proclaim abolition were drafted and ratified. Protocol no.6 of European convention on Human Rights and its successors, the Inter-American Additional protocol to the American Convention on Human Rights to abolish the Death Penalty, and the United Nations Optional protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of Capital punishment on international norm come to existence.99 95 96

Supra note 102 Ibid

97

William A. Schabas, supra note 90, p.240

98

Supra note 92

99

History of Death Penalty; available on www.deathpenaltyinfo.org/part-ii-history-death-penalty.html, Retrieved on 6/4/2007

32

The council of Europe (1994) and European Union (1998) established as a precondition of membership in their organizations the requirement that prospective member countries suspend execution and commit themselves to abolition. This decision prompted several countries of the Central and Eastern Europe to abolish capital punishment. 100 For example; European countries like Czech Republic, Hungary, Romania, Slovenia, and Ukraine have now halted the capital punishment and have been admitted to the council. There are also few professionals in the field of criminology attempt to justify capital on scientific grounds. In the 1960s, studies commissioned by the council of Europe and the United Nations rejected the idea that the death penalty had a valid deterrent effect. They provide that deterrence is a difficult thing to analyze because of the difficulty in identifying people who have been in fact been deterred by the threat of punishment.101 The international law now universally condemns the execution of capital punishment for crimes committed while under the age of eighteen. Again several international tribunals and constitutional courts condemn the mandatory death penalty in different times.102 In Africa also some countries abolish the death penalty especially in 1990s, though most of them retained. Generally, there has been movement of abolishing capital punishment by different individuals, organizations, unions and NGOs.

2.1 The United Nations The United Nations, which is the largest organization in the world, plays an enormous role in abolishing and minimizing capital punishment from the world community. The United Nations adopted the International Covenant on Civil and Political Rights 100

Supra note 92 William A. Schabas, supra note 90, p.240 102 Ibid 101

33

(ICCPR) in 1966, affirmed in Article 6(1) that ‘every human being has the inherent right to life’, and provides prohibition of arbitrary deprivation of life. However, this did not bar capital punishment. Nevertheless, the human right committee which monitors the compliance with the covenant and provides for its authoritative interpretation, consider that the general prohibition in Article 6(1) on arbitrary deprivation of the right to life means that countries where capital punishment has already abolished cannot participate in it, even indirectly, by for example, extraditing someone to another country where it might be imposed.103 Article 6(2) of the convention provides a condition under which life may be suspended by state for most serious crimes. It says that ‘…sentence of death may be imposed only for the most serious crimes’. That means the United Nations under the ICCPR allows the death sentence with some restrictions. But it encourages states to abolish the death sentence. At this time, that is, during the enactment of the ICCPR convention, international abolition of death penalty was not yet a realistic goal of United Nations. The United Nations shifts its focus to limiting the scope of death penalty to protect juveniles, pregnant women and the elderly. It was in 1971(Resolution 2857) and again 1977(Resolution 3216) the United Nations took the first step towards declaring abolition of death penalty as a universal goal when it is called for ‘the progressive restriction of the number of offenses for which the death sentence might be imposed, with a view to its abolition.’104 In December 1989, the UN General Assembly also adopted the second optional protocol to the ICCPR. Article 1 of this protocol states that, “no one with the jurisdiction of the state party to the present optional protocol shall be executed”. Clause 2 of this Article establishes the important principle that ‘the death penalty shall not be re-established in states that have abolished it.’105 This protocol provides total abolition of death penalty 103 104

105

Ibid Roger Hood, supra note 94, p.15

Second Optional Protocol to the International Covenant on Civil and Political Rights

of 19966, 1989

34

but like sixth protocol of the European Convention on Human Rights (ECHR), allows states parties to retain the death penalty in time of the war if they make a reservation. However, unlike the sixth protocol of the ECHR, the reservation can only be made at the time of ratification or accession.106 Any state, which is a party to the International Covenant on Civil and Political Right, can become a party to the protocol. Today (in 2009), 66 of the 161 states in a position to do so (i.e. states party to the ICCPR) have ratified the second optional protocol to the International covenant on Civil and Political Rights.107 In 1997, the UN High Commission for Human Rights approved a resolution stating that the “abolition of death penalty contributes to the enhancement of human dignity and to the progressive development of human rights”. This resolution was strengthened in subsequent resolutions by a call for restriction of offenses for which the death penalty can be imposed and for a moratorium on all executions, leading eventually to abolition.108Because of the tendency to de facto abolition, there has been strong call with in international organizations for a moratorium on capital punishment in states where it has not been abolished. This is because in most countries, de facto abolition or imposition of a moratorium is the first step in an evitable and irreversible process towards total abolition.109 Challenging the death penalty is not seen solely as an internal matter among nations. The United Nations office of the High Commissioner for Human Rights requests states that have received a request for extradition on a capital charge to reserve explicitly the 106

. Roger Hood, supra note 94, p.15

107

.http://www.fiacat.org/en/IMG/pdf/FIACAT_News_May_2009_Supplement_VAnglais

_1.pdf, Retrieved on 6/4/2007 108

. Vaibhav Goel, Capital punishment: A human right examination case study and

jurisprudence, F:/capital punishment/ capital punishment A human right examination case study and jurisprudence.htm, (retrieved on Feb 4, 2009) 109

. William A. Schabas, supra note 90 , p.241

35

right to refuse extradition on the absence of effective assurances from relevant authorities of the requesting state that the death penalty will not be carried out and calls upon states to provide such effective assurances if requested to do so, and to respect them.110 This generally provided on Article 10 of Human Right Resolution 2005/59. The Charter of Fundamental Rights of European Union, which is adopted in December 2000, also declared that it violates fundamental rights to extradite an individual to a country where capital punishment is threatened.111 Today many European countries, along with Canada, Mexico and South Africa resisted extraditing persons to countries like USA or other retentionists (may be Ethiopia) unless there is assurances that death penalty will not be sought.112 In April 1999, the United Nations Commissions passed the resolution supporting worldwide Moratorium on Execution. The resolution calls on countries, which have not abolished the death penalty to restrict its use of death sentence, including not imposing on juvenile offenders and limiting the number of offences for which it can be imposed. Ten countries, including US, China, Pakis tan, Rwanda, and Sudan, voted against the resolution.113 Since the 1997, the United Nations Commission on Human Rights has passed the resolutions calling on countries that have not abolished the death penalty to establish a moratorium on execution annually.114 The United Nation introduced a resolution during the General Assembly’s 62nd session in 2007 calling for a universal ban. The approval of a draft resolution by the Assembly’s Third Committee, which deals with human right issues, voted 99 to 52, with 33 abstentions, in favor of the resolutions on November 15, 2007 and was put to a vote in

110

. Office of the Human Right Commissioner for Human Rights: Human Right

Resolution 2005/95 111

William A. Schabas, supra note 90, p.241 Vaibhav Goel, supra note 108 113 Supra note 99 114 Ibid 112

36

the Assembly on December 18.115Again in2008, a large majority of states from all regions adopted a second resolution calling for a moratorium on the use of death penalty in the UN General Assembly (Third Committee) on November 20. 105 countries voted in favor of the draft resolution, 48 voted against and 31 abstained.116

2.2 European Movement European Union and European Council also play a great role in abolishing capital punishment. The European Union has made abolition of capital punishment a precondition for membership, and in 1998 it embarked on a diplomatic policy to persuade other nations of Guidelines to European Union policy Towards Third Countries on the Death Penalty. This document stated that the objective of European Union is to ‘work towards the abolition of death penalty as a strongly held policy view agreed by all EU member states.117 The parliamentary Assembly of the Council of Europe opposed the death penalty in its resolution 1044 of 1994, and recommendation 1246 of 1994, which is re affirmed by resolution 1097(1996) and again by resolution 1187(1999) on Europe, A Death Penalty Free Continent. The parliamentary Assembly called up on all parliaments in the world, which have not yet abolished the death penalty to do so promptly, following the example of the majority of the Council of Europe states.118 The Parliamentary Assembly has strongly declared that the death penalty has no legitimate place in the penal systems of modern civilized societies. In addition, to that its application may well be compared with torture and be seen as inhuman and

115

http://www.acronym.org.uk/dd/dd87/87unfc.htm, Retrieved on 6/4/2007

116

ibid Council of European Union Guidelines to EU policy towards Third Countries on the Death Penalty, Brussels, 3June 1998 117

118

Roger Hood, supra note 94, p.16

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degrading punishment with in the meaning of Art.3 of the ECHR.119 Due to this reason in 1994 the Assembly made it a precondition that any country that wished to become a member of the Council of Europe to comply with sixth protocol to the ECHR, that is, to abolish the death sentence. Non-admission of the retentionist country to the Council of Europe has a significant role in the abolition of capital punishment, especially in Western Europe. This policy had an enormous impact on the countries of the former Soviet bloc in Eastern Europe, all of which wished to join the Council of Europe, as well as on several states of the former Soviet Union, including Ukraine and the Russian Federation.120 While aiming for the universal ban (abolition) of the death penalty the EU seeks, a moratorium in all countries, which retain capital punishment, as first step towards this end.121 The EU and Council of Europe are willing to accept a moratorium as an interim measure. Thus, while Russia is a member of council of Europe, and practices the death penalty in law, it not made public use of it since becoming a member of the council. Other states, while having abolished de jure, the death penalty in times of peace; and de facto, in all circumstances, have not ratified protocol no.13 yet and therefore have no international obligation to refrain from using the death penalty in time of war or imminent threat of war.122 Today, Europe is a continent free of death penalty in practice, all states but Russia, which has entered a moratorium, having ratified the sixth protocol to the European Convention on Human Rights, with the sole exception of Belarus, which is not still a member of Europe. Belarus is the last country in Europe and the former Soviet Union that still carrying out the execution.123 In addition to all these, as I have already mentioned, the EU has also banned detainee transfers in cases where the receiving party may seek the death penalty.

119

ibid ibid 106 121 F:/statement of the European Union on the Death Penalty.htm 122 Supra note 115 123 ibid 120

38

Recently the EU, in its meeting of permanent council held in 19 April 2007, reiterates its long standing and active opposition to the death penalty in all circumstances. As declared on many occasions and recently on the Third World Congress against the Death Penalty in Paris in February 2007 and at the 4th session of the Human Right Council in March 2007, consider that the abolition of death penalty contributes to the enhancement of human dignity and progressive development of human rights.124 The EU is generally aware of the suffering of the victims of violent crime and their families; they strongly believe that capital punishment tends to further a casual attitude to the right to life. According to EU death penalty does not serve as effective deterrent, and miscarriage of justice, which is inevitable in any legal system, would be irreversible.125 In countries where death penalty has not been abolished the EU seeks execution to be in accordance with those generally accepted safeguards.126 These all are the movements European Union to make free death penalty continent globe.

2.3 Inter-American State Organization Movement The Inter-American system for protection of Human Rights followed the abolitionist vanguard and organization of American states-of which US is a member-adopted in 1990. Protocol to the American convention on Human Rights to abolish the death Penalty, adopted by the General Assembly of the organization of America in 1990, provide for the total abolition of the death penalty. However, allows states parties to retain the death penalty in wartime if they make a reservation to that effect at the time of ratifying or acceding the protocol. Any state party to the American convention on Human Rights can become a party to protocol. Currently eight states have ratified this protocol.127 Article one of this protocol calls upon states to abolish from the use of death penalty, but does not impose obligation to 124

Supra note 121 ibid 126 ibid 127 Vaibhav Goel, supra note 108 125

39

erase it from the statute book. Thus, de facto abolitionist countries may also ratify the protocol.It provide under Article 4(3) of the convention that those countries that have already abolished the death penalty may not reinstate it.

2.4 The Abolition Movement in Africa Comparing with other continents, like Europe and America the movement of abolishing capital punishment in Africa is a recent issue. Many problems hinder the movement of capital punishment in Africa. For instance international human rights standards have had only a limited impact on most African states particularly because of the general perception of international law in African states as a threat to sovereignty. Again also the discrepancies between international law and domestic law with regard to the death penalty are very apparent and disturbing in some African countries. For example in Sierra Leone those charged with the most heinous crimes by national courts can be sentenced to death while in similar cases the charged persons cannot be sentenced to death under Special Court of Sierra Leone (SCSL) are limited to imprisonment.128 however the national court of this country can impose death penalty, as it is retained in their respective penal statute. Furthermore, the death penalty debate in another regions fuelled by the use of new technologies, particularly DNA testing, to show that innocent persons are undeniably sentenced to death. But these new technologies are new to Africa. These all mentioned above hiders the abolition movement in Africa. The African commission position on the death penalty remains unclear. The commission has not pronounced itself on the death penalty as such. This could mainly be attributed 128

Lilian Manka Chenwi, Towards Abolishment of the Death Penalty in Africa, available

on, http://upetd.up.ac.za/thesis/available/etd-10062005-151306/unrestricted/00front.pdf, retrieved on 6/4/2009

40

to the fact that it has not been presented with a direct challenge to the death penalty. However there are some commissioner openly stated their opposition to death penalty, or that they favor abolition. For instance the late commissioner Beye personally opposed the death penalty at the commissioner’s 12th session (1992).129 Recently also, during the commission’s 36th ordinary session (2004), the death penalty, appearing for the first time on the commissions agenda. Commission Chirwa initiated debate about abolition of death penalty in Africa, and urged the commission to take a clear position on the subject. Accordingly, the death penalty has been included on the commission’s agenda for subsequent sessions. 130 Furthermore the African commission, in recent decision Interights et al (on behalf of Bosch) V Botswana, acknowledges the development of international law and the trend towards the abolition of death penalty. The commission further conceded its support of this trend by its adoption of 1999 Resolution, and encouraged all states party to the African charter on Humans and Peoples’ Rights (African Charter) to take all measures to refrain from exercising death penalty.131 In 1987, the then Justice of Zimbabwe told an International Conference on the death penalty that all African countries retain the death penalty, except two small countries Seychelles (for ordinary crimes only, 1979) and Cape Verde (1981)- which had done away with capital punishment and only five abolitionist de facto.132 However up to the end of 2007 a remarkable transformation towards the abolitionist position among African countries comes to be seen. Africa is one of the death penalty regions in the world, as most African states still retain the death penalty in their statutes. According to Amnesty Internationals report in 2007, 14 countries in Africa are abolitionist for all crimes while 18 are abolitionist in practice. Out of 60 countries ratified the optional protocol to the International Covenant on Civil 129

ibid ibid 131 ibid 132 Roger Hood, supra note 94, p.38 130

41

and Political Rights (ICCPR) seven are African countries.133These all shows us that Africa is recently moving to abolition of capital punishment.

2.5 Abolition Movement in Ethiopia Capital punishment exists in Ethiopian laws even before the Fetha Negest. Our 1957 penal code also encompasses many provisions that inflict death penalty. When the military government of Derg come to power additional laws also promulgated to impose death sentence for certain criminal offenses in addition to that of 1957. The new FDRE criminal code also encompasses over thirty-two provisions entailing death penalty. This shows us that a reluctant movement of government to abolish capital punishment. To the best of writers’ research there is no organized public or private movement of abolishing capital punishment In Ethiopia. Death penalty, which in itself can only arguably scape the accusation of abolitionists of being “cruel, inhuman and degrading” and contrary to the right to life” did not receive a lot of attention among legal scholars or human rights activists in Ethiopia so far. However this doesn’t mean that in the long run innovative human right lawyers don’t challenge its status in Ethiopia. However, even though the federal and regional competent courts of jurisdictions pronounce the death penalty for serious offenses, its actual application is not common these days compared to the previous times of our history. Even though death penalty is imposed on many peoples in Ethiopia, its actual execution is rare. As provided on the FDRE combined report to the African Commission on Human and Peoples’ Rights on implementation of the African Charter on human and peoples rights, during the last 15 years, only three death penalties have actually been carried out within the State.134 This situation is due to the strict and numerous preconditions set for the imposition of the 133

http://www.fiacat.org/en/IMG/pdf/FIACAT_News_May_2009_Supplement_VAnglais_1.pdf.

134

http://www.achpr.org/english/state_reports/Ethiopia/Initial%20Report%20_Ethiopia.pdf, retrieved on June 10, 2009

42

penalty and the extreme reluctance of courts to impose such a penalty as well as the reluctance of the government to carryout the same. This is very few comparing to actual execution in previous governments. This situation is due to the strict and numerous preconditions set for the imposition of the penalty and the extreme reluctance of courts to impose such a penalty as well as the reluctance of the government to carryout the same. We can take this as a movement of abolition capital punishment. Again also when we look Art 116 of 1957 penal code it provides shooting and hanging publicly as mode executing capital punishment, which is considered as cruel and inhuman treatment or punishment. But when we look the recent FDRE criminal code it abolishes such inhuman and cruel mode of punishment. We can take this also as one movement. However, one thing we should not forget is capital punishment will be replaced by a more humane type of punishment in our country no matter how long it takes. Therefore, to put all in a nutshell though there no organized movement of abolition of capital punishment the few number of actual execution the reformation of cruel and inhuman modes of execution may be considered as a movement to abolish capital punishment in Ethiopia.

2.6Capital Punishment in Ethiopian Context

43

Capital punishment is a subject to be studied, commented and examined in different perspectives. Capital punishment has been practiced in Ethiopia for quite a longtime. One may say that, it is as old as our legal history. Capital punishment has been in Ethiopian legal tradition without facing any challenge. Until the very recently it has been an accepted form of punishment by the Ethiopian society. In the Ethiopian legal history, capital punishment is not this much studied, criticized, evaluated and given remarks. There are also no enough written materials on the Ethiopian capital punishment. Legal literatures in the Ethiopian situation are not abundantly available. As opposed to European and American states, one is not in a position to go much if he/she wants to explore the historical sources of capital punishment in Ethiopia. This is due to the known reason that judgments were not systematically recorded and even if we find scanty records they are not available in the modern libraries of higher education centers. They may be available in museums, historical churches and other historical places. Generally speaking, it is very difficult to trace the historical genesis of capital punishment accurately in the Ethiopian context. But for the purpose of this paper I will try to see capital punishment in retrospect by dividing Ethiopian penological history into six periods. These periods may be divided as follows. 1. The period before Fetha Negest 2. The period from Fetha Negest to the enactment of the Ethiopian first modern penal code of 1930 3. The period from 1930 to the 1957 in which the other more sophisticated penal code appeared 4. The period from 1957 to the period of 1974 5. The period from 1974 to the period of 2004 6. The period after the New Federal Democratic Republic of Ethiopian criminal code of 2004 to present.

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Each of these period as characterized by different laws maintains quite unique positions as regards to capital punishment and capital offenses. Let as try to see each of them separately.

2.6.1The period before Fetha Negest This period is known by its absence of written and organized laws. The absence of ample material before the Fetha Negest makes difficulty to study more about the capital punishment before that time. I do not have the believe that capital punishment originated after Fetha Negest. This can be inferred from the statement “The long and grant history of our country demonstrates that our people have always both administered and lived according to the law. Our people were first ruled by Mosaic Law.”135 Mosaic Law was used for instruction in Ethiopian Church before Fetha Negest and even after that.136 Mosaic law provides capital punishment for various crimes, which indicates the principle of ‘an eye for an eye’ as I have mentioned earlier in chapter one. But one is not certain whether Mosaic Law ruled the whole Ethiopian, because the previous Ethiopia was not exactly situated at the present one. jurisdictional boundary of present Ethiopia is determined later.

The

These all make

difficulty to study capital punishment in Ethiopia before 15th century.

2.6.2 The period from Fetha Negest to 1930 Ethiopian penal code Fetha Negest, the first integrated legal code, was translated from Arabic in the Midfifteenth century.137 It is a very interesting legal compilation. Although, there is a 135

Abba Paulos Tzaudu, The Fetha Negest, 1968, p.5

136

Aberra Jembere, An Introduction to Legal History of Ethiopia:1434-1974, (1999), p.

38 137

Ethiopia Crime and Punishment: available on www.photius.com/countries/ethiopia/national_security/ethiopianational_security_crime_andpunishment.htm

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popular believe that Fetha Negest was introduced in Ethiopia in the Mid-fifteenth century during the, reign of Zar’a Ya’qob, the exact date when Fetha Negest become an integral part of Ethiopian legal system is not yet definitely established, or the time when it started to be cited as an authority in the process of adjudication of cases by courts was not yet certainly known138. This is due to lack of recorded evidence on courts decisions and judgments. The Fetha Negest provides the death penalty for various criminal offenses and it applied on different groups of peoples who violate the Law of Fetha Negest. The Ethiopian historians cited a case in which Emperor Zar’a Ya’qob himself pass a death sentence in accordance with the provisions of the Fetha Negest on his own son, who had been found to have killed one of his servants and his daughter for anti-Christian practices prohibited by the Fetha Negest.139 Fetha Negest was applied only to Christians, Muslims who become subject to Ethiopian rule through conquest continued to be judged in their own courts according to shari’a law.140 Fetha Negest was very much influenced by the religious or nearer to the fact by the teaching of Christian ethics as propounded in the Old and New Testament. For these main reasons it seems Fetha Negest provides death sentence for various violations of religious ethics. There are so many provisions of Fetha Negest that can provide the death penalty for violations or religious ethics. For example, Chapter XLVI section II of the Fetha Negest states that a prophet who preaches against the divine Lord must be slain. Again, in the same provision it provides death penalty for a person who gives sacrifice to what were termed as “strange gods”. One who blasphemes God was also punishable to death; even one that has eating pagan sacrifices and honoring ‘idols’ was liable to capital

138

Aberra Jembere, supra note 135, p.194 ibid 140 supra note 137 139

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punishment.141 Either man or woman who is found to be magician or a wizard is subject to death sentence. They shall be stoned, since they are impious.142 Homicide is also capital offense impose death sentence on the offender. Chapter XLVII of the Fetha Negest retained the nature of homicide as a capital crime deserving capital punishment. The mode of punishment suffered for committing homicide was carried out by killing the body and [thus] separating the soul [from the body] by the means of corporal punishment carried out by the temporal judge, so that the temporal law may be fulfilled.143 In the Fetha Negest, occasionally attempted murder was capital offense punished by death. This shown by the provision that; “the servant who attempted to kill their master must be thrown into the fire”, and also servants who heard the cries of their master while he was being killed, or knew and certainly aware of what was happening to him, but didn’t render any help are punished by death.144 In the Fetha Negest criminal majority for homicide was set at the age of seven, which is lower than the present criminal majority age. Death also provided for those who shelter murderers and generally capital punishment was imposed for the above crimes under the Fetha Negest on the principles of both deterrence and retributive theory. This can be inferred from the fact that punishment was meant, “to serve a lesson to others who desire to be involved in this deed, and so that relatives of persons murdered through their treachery may be pleased.145 Generally, like in ancient Europe, in Fetha Negest, many crimes that are today considered as petty offenses like incest, kidnapping, a betrothered girl, a slave who dares to carryout his mistress, theft, arson, and others were punishable by death. The modes of execution were rather many and cruel. Stoning, throwing in fire alive, and 141

Abba Paulos Tzaudu, supra note 135, Chapter XLVI sec II ibid Chapter XLVI sec III p. 287 143 ibid 289 144 ibid 295 145 ibid 142

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others were done for horrifying and degrading human dignity. Fetha Negest and customary laws remained the basis of criminal procedure until 1930.146

2.6.3. Death Penalty under the 1930 Penal Code of Ethiopia The 1930 penal code of Ethiopia, which is the milestone in the Ethiopian legal history, was the first in its kind in trying to comprehensively covering crime and their punishment. This penal code, which was primitive in its application, was strove for modernity in its application.147 It is reckoned as part of old laws because it is a legal code drown up before the constitution of 1931, and it reflects the norms and values of the old absolutist monarchy.148 One main characteristic that distinguishes the 1930 penal code as compared to Fetha Negest is, capital punishment was centralized. To impose the death penalty the Emperor should first confirm it.149This code didn’t specify the capital punishment was to be carried out. The 1930 penal code defines death penalty as follows; The sentence of death means having punished by punishment of death by the instrument, and at the place prepared for this purpose, after the passing of the sentence of death, either for taking life or some other crime. This sentence of shall not be passed by any other court but the kings court.150 The above provision doesn’t specify explicitly what sort of instruments to employ in order to execute the condemned man. It seems that, the above provision gives discretionary power to the people concerned to carry out the judgment. But it is believed that most cruel method of punishment, which was exercised during Fetha Negest, like stoning to death, throwing the condemned person into burning fire, or to employ the sword in executing the convict at public were common. 146

supra note 137 ibid 148 Aberra Jembere, supra note 135, p.195 149 Penal code of the Empire of Ethiopia, 1930 150 ibid 147

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Death sentence was introduced in 1930 penal code of Ethiopia in situations like:  Homicide151  Giving false evidence (if the taker of life is sentenced to death and put to death because of false evidence given against him, the man who caused his death by giving false evidence shall be sentenced to death.152  Crime committed against the Emperor and the Royal family and the government.153  Criminals who start war in the country and cause it to be disturbed and ravages.154 There are also other offenses/crimes that cause the death penalty other than mentioned above in the 1930 penal code. The code didn’t make homicide the state affair. Rather it was left to the victims’ family to determine the death of the offender. As it was clearly stipulated in Article 408 of the 1930 penal code, the state didn’t bother to prosecute the offender if the families of the victim agree to take blood money from that of the murderer or his family. This can be done even after sentences of death has been passed but before execution takes place.155 Generally, comparing with Fetha Negest, method of executing the offender in this penal code is somehow humane. Those burning alive, stoning to death or use of sword was not exercised after the coming of this code. The new code abolished mutilation but retained death penalty and permitted flogging.156

2.6.4.The period from 1957 to the period of 1974

151

ibid, Art 404, 405, 410, 411 ibid, Art 366 153 ibid, Art 171-172 154 ibid, 175, 177, 179 155 ibid, 408 156 supra note 137 152

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The 1957 penal code of Ethiopia also come up with the capital punishment. It provided various punishments for various crimes. Having retained capital punishment, it goes on to provide specific instructions. The punishment is to be executed by hanging, or on a member of the armed forces, by shooting. However, executions are to be carried out without any cruelty, mutilation or other physical sufferings. Jean Graven, the drafter of 1957 penal code of Ethiopia, provide the reason why Ethiopia retained death penalty and its necessity for homicide and write as follows; “In Ethiopian context it would be in particular have been an inconceivable mistake, and even an impossibility, to abolish the death penalty at the present time. It is not only necessary for social protection, but is based on thevery deepest feeling of the Ethiopian people for justice and for atonement. The destruction of life, the highest achievement of the creator,

can only be paid for

by the sacrifice of the life of the guilty person. As in the Christian European system of the Middle Ages, death is always the necessary condition for the pardon and salvation of the sinner, and also for the expiation for the evil which he has committed, it is accepted and approved by all, and in the first place by the criminal who has deserved it, and is carried out in a dignified atmosphere quite different from that of our former executions with the ax or guillotine.”157 Under the penal code of 1957, many crimes that cause death penalty like, murder (Art.522), robbery (671), crimes against the emperor and others. In 1957 penal code, even criminal attempts may cause the death sentence. For example outrages against the Emperor of the Imperial family (248), outrages against the dynasty (Art.249), outrages against the constitution and constitutional authorities (Art.238) and uprising and civil war (240) are attempts that may cause death sentence in 1957 penal code of Ethiopia.

157

Fasil Nahom, “Punishment and Society: A development approach”, Journal of

Ethiopian Law; vol.12 (1982) p. 129

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Generally, in 1957 penal code death penalty was maintained but with all necessary protection as to the instance of application and the condition of administration. It applies in case of grave offense, such as homicide, genocide, treason, armed robbery and so on.

2.6.5.The period from 1974 to the period of 2004 This is a time when the 1957 penal code was amended by special penal code of the 1974(proclamation no.8/1974) by increasing the sanction of certain types of crime. A November 1974 decree introduced martial law, which set up a system of military tribunals empowered to impose the death penalty or long prison terms for a wide range of political offenses. The decree applied the law retroactively to the old regimes officials who had been accused of responsibility of famine deaths, corruption, and misadministration and who had been held without formal charges since earlier in the year.158 In July 1976, the then government amended the penal code to impose the death penalty for “anti-revolutionary activities” and economic crimes like hoarding, overcharging, and interfering with consumer commodities.159 In 1981 the amended special penal code replaced the special penal code. This penal code included offenses against the government and the head of state, such as crimes against the states’ independence and territorial integrity, armed uprising, and commission of “counter-revolutionary” acts, which is also available in the earlier special penal code, breach of trust by public officials and economic offenses which result the death penalty.160 The military penal code was applied until the Transitional Government come to power and returned back the 1957 penal code in 1988 E.C. Under the FDRE government 158

supra note 137 ibid 160 ibid 159

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Ethiopia regulated the society mostly by the 1957 penal code until the coming of the 2004 Federal Democratic Republic of Ethiopian criminal code.

2.6.6.The period after the FDRE criminal code The FDRE criminal code, which is enacted in 2004, has replaced the 1957 penal code. The new code tries to properly address crimes born in advances of technology and the complexity of modern life. The 1957 penal code was needed for amended because of its failure to properly address new crimes like hijacking of aircraft, computer crimes and money laundering. The 1957 penal code of Ethiopia give little attention as to crimes related to corruption and drugs. In order to cover all these backlogs the FDRE come up with the new modern criminal code. Like the 1957 penal code, the FDRE criminal code retained death penalty for crimes that have grave nature and if they have serious danger to the public health and life. Under the FDRE criminal code, there are over thirty-two situations under which one may possibly be subjected to capital punishment. These crimes are scattered in the code, mainly in four book of the FDRE criminal code. Twenty six of the provisions under which one possibly punished by death are found under book three,161 two under book four,162one under book five,163 and the rest three under book six.164 Book three is all about offenses against the state or against national or international interests. Book four deals about crimes against public interest or the community. Book five is about crimes against the individuals and the family, and book six is against the

161

Federal Criminal Code of Ethiopia, criminal code, Arts 238, 240, 241, 246, 247, 248,

251, 252, 258, 269, 270, 271, 272, 273, 275, 276, 278, 288, 298, 299, 303, 311, 312, 313, 316, and 317 162

ibid, Arts 512 and 514 ibid Art 539 164 ibid Arts 671, 672, and 673 163

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property. Each book is divided into several titles, chapters, sections, paragraphs and articles. The following are articles that entail death penalty under the Federal Democratic Republic of Ethiopian criminal code. Under book three of the code there are 26 articles entailing death penalty these are 1.Art.238 outrages against the constitution or constitutional order 2.Art.240 Armed Rising of Civil war 3.Art. 241 Attack on the political or territorial integrity of the state 4.Art.246 Attack on the independence of the state 5.Art.247 Impairment the Defensive power of the state 6.Art.248 High Treason 7.Art.251 Collaboration with the enemy 8.Art.252 Espionage 9.Art.258 Aggravation to the crime 10. Art.269 Genocide 11. Art.270 war crimes against civilian population 12. Art.271 war crimes against wounded, sick or shipwrecked persons or medical services 13. Art.272 war crimes against the prisoners and interned persons 14. Art.273 pillage, piracy, and looting 15. Art.275 Dereliction of duty towards the enemy 16. Art. 276 Use of illegal means of combat 17. Art. 278 Franc Tireurs 18. Art. 288 Desertion 19. Art. 298 Insubordination 20. Art. 299 Mutiny 21. Art. 303 Breaches of Guard duty 22. Art. 311 Demoralization of the defense force 23. Art. 312 Cowardice 24. Art. 313 Capitulation

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25. Art. 316 Abandonment of a wounded or killed member 26. Art. 327 Sabotage Under book four of the code the following two provisions entail death penalty. 1.Art 512 Grave cases of crimes against freedom and security of communication 2.Art 514 spreading human disease Under book five Article 539, which talks about aggravated homicide, entail death sentence, and Under book six the following offenses are punishable by death, 1.Art 671 Aggravated robbery 2.Art 672 looting 3.Art 673 piracy Generally, there are around thirty-two provisions that can impose death penalty for specified crimes in the FDRE criminal code. This all shows us that the general perception of international human right is not taken into consideration. Despite the growing international human rights in general and standards on the abolition or limitation of death penalty in particular, having this much provision entailing death penalty shows us our misperception of international human rights.

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CHAPTER THREE THE COMATIBILITY OF DEATH PENALTY WITH HUMAN RIGHTS AND ETHIOPIAN CRIMINAL JUSTICE This is the final part of the thesis and under this chapter the compatibility and necessity of death penalty with human right laws is briefly discussed in detail and again its necessity and compatibility with the objective of Ethiopian criminal justice is generally analyzed. At the end the writer wounds up with the conclusion whether or not the principle of capital punishment contradicts with human rights and with the purpose of criminal justice.

3.1 Human Right and Power of State to Punish Human rights are rights that are belong to an individual as a consequence of being human. They refer to a wide continuum of values that are universal in character and in some sense equally claimed for all human beings.165Human person possesses rights because of the very fact that he is a person, a whole, a master of himself and his acts, and which consequently is not merely a means to an end, but an end, which must be treated as such. The state and the law exist for individual living in a society. The state and the law protect the individual against being treated as a mere means, and support the establishment of the conditions for his /her comprehensive development.166

165

The New Encyclopedia Britannica, (15th ed., 2005), vol.6, p.137

166

Solomon Abadi, Materials for the Study of Constitutional Law II (Human Right Focus), 2002, unpublished Mekelle University Library

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Human rights are natural rights. This right do not emanate from the government will or from individual convention. Human rights are protections to which all human beings are entitled because of their humanity and not because of their status or individual merit. The states are subordinated to protection of human rights and this may be realized only in the limits of respect for fundamental rights and freedoms. With the introduction of this model, in spite of the fact that human rights law was created, among other things, to protect individual from the power of state, the state increasingly becomes regarded as a guardian of human rights.167 The protection and promotion of human right is directly related to the power and duties of the state/government. The promotion of human right precedes the protection of human rights. If some of the declaration (UDHR) embodied in the national constitution, it is classified as promotion of human rights. On the other hand, acceding, ratifying and enforcing the rights convention like ICCPR, ICESCR and others equivalent to protection of the rights.168 The states have a duty to protect human rights. G. Tunkin, wrote on his book ‘Theory of International Law’ that;169 1. All states have the duty to respect the fundamental rights and freedoms of all persons with in their territory; 2. States have the duty not to permit the discrimination by reasons of sex, race, religion or language and; 3. States have a duty to promote universal respect for human rights and to cooperate with each other to achieve this objective. In democracy a government does not grant rights and freedoms but is created to protect those rights and freedoms that every individual possesses by virtue of their existence. According to John Locke the power of state is limited and people may legitimately overthrow a government when it has breached its trust. The government has a duty to respect, preserve, fulfill and educate human rights. Here this paper only emphasize in

167

Marek Piechowiak, ‘What are Human Rights,’ (1997) p.9, ibid 169 Makolm N.Shaw, International Law (5th ed., 2006) p.250 168

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respecting and preserving of human rights. A government has a duty to take a legal action on individuals or groups or institutions that violate or abuse of human rights. According to the believe of the 17th and 18th centuries political philosophers like Locke, the individual human being is the most precious value in human society. The moral justification for the existence of government is to liberate the individual from the economic, political, religious and moral restrictions. This is possible by instituting government whose power is limited.170 A government that has come to power this way is only an agent, a mere instrument for implementing peoples will, having no independent and inherent power. The principle is that human being does not exist for the benefit of the state, but the state exists for the benefit of the human beings. Therefore, the state is there only to serve the best interest of the people because the people for the people bring it there. Government is important for the protection of human rights. Human rights cannot be preserved without the government but the problem arises when the government itself is inherently hostile to those rights. As mentioned above states have rights and duties. In order to perform its duties efficiently the government (the state) backed by enormous discretion. However, the rights and duties of the state as regards to the overall protection of the community clearly conflicts in many instances with the individual rights of citizens. This is the reason why limiting the power of state is needed. The state has the power and duty to punish criminals. All forms of the punishment applied by the government with one purpose or another deprive the individual some right. Nevertheless, it is still the will of the people themselves that criminals must be punished because they have endangered public security. Not punishing such individuals may develop the stage of barbarism. The right of individual is most vulnerable to violations when the person is accused of crime. The mere fact that a person is prosecuted doesn’t mean that nature has withdrawn 170

supra note 167, pp.9-10

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all the rights that has bestowed on him. Experience over a long period of time in different places evidenced that one of the situation in which human right violation is at its peak starts at the moment, the suspect is arrested. Responding to this problem right of accused was introduced, i.e., the right to be presumed innocent until proven guilty. As a successor of the rights of the accused the most fundamental human right the right not to be subjected to inhuman and degrading punishment comes. The Federal Democratic Republic Of Ethiopian constitution, like Universal Declaration of Human rights and other human right instruments provides prohibition of inhuman treatment and inhuman punishment. The infliction of punishment should be made primarily with the affirmation of man and his freedom, namely, his value as man. It has to be made on the presumption that unlike animals man has to take responsibility for his deeds therefore he has to take punishment that his wrongful act incurs. Punishment is only applied on human beings because they can take a lesson from suffering the pain. However, no matter punishment must never be so cruel as to cause suffering more than necessary to cause the reformation of the criminal and the method of punishment should be selected taking into account the human feeling of the criminals. The method should not be so degrading as to treat the criminal as object.171 Many international human right documents to this situation for this has been striking importance. Article 7 the ICCPR, and Article 5 of UDHR, Article 5 of African Charter on Peoples Rights (ACHPR) are few among them to mention. The inherent dignity and of the equal and inalienable rights of all member of the family is the foundation of freedom, justice, and peace in the world.172 Therefore, any individual or organized institution should not violate inalienable human rights. However, in times of public emergency that threats the life of the nation and the existence of the states which is officially proclaimed, states may have temporarily limits human rights save some few rights which are inalienable all times like the right lo life, protection against inhuman and cruel punishment, etc. 171

172

Cliff Roberson, Criminal Procedure Today: Issues and cases, (2nd ed., 2003) p.440 Preamble of Universal Declaration of Human Rights, Dec. 10, 1948

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Generally, states have a legal responsibility to prevent human rights violations and to use the means at their disposal to investigate and punish such violations. Where this did not happen, the state concerned had failed in its duty to ensure the full and free exercise of these rights these rights with in its jurisdiction. 173 But the issue is how to find reasonable balance between the duty of state to provide security for its citizens and the right of individuals to be protected from the oppression by states.

3.2.Death Penalty and Human Rights Under this topic I am going to discuss whether or not imposition of death penalty on an individual for committing certain particularly heinous crimes against society violates that individual’s human right. All major international human rights declarations, conventions and covenants stipulate that every one has the right to life, liberty and security of person. The debate about death penalty does not usually employ the terminology of human rights. Nevertheless, the use of death penalty intersects with international law and is challenged by it.174 The reasons why countries abolished death penalty in increasing number vary from one country to other. For one state, it was broader understanding of human rights. For instance, Spain abandoned the last vestige of death penalty in 1995 stating that “… the death penalty has no place in the general penal system of an advanced civilized society…”. Similarly, Switzerland abolished death penalty because it constituted “a flagrant violation of right to life and dignity”.175 Of course, those countries who retained the death penalty in their national laws have their own justification and their justification also vary from one state to other state. In places like Soviet Union it might be preventing embezzlement, in Singapore it might be preventing drug traffic, in Nigeria it might be preventing armed robbery, in United States it might be deterring 173

174

175

supra note 169 p.362

supra note 108 ibid

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murder, in Guatemala it might be preventing revolution and in countries like Ethiopia it might be preventing counter-revolution.176 Generally, those countries that have retained and abolished capital punishment has their own justifications. Defining the death penalty as human rights issue is a critical first step, but one may resist by countries that aggressively use the death penalty. When the General Assembly considered a resolution in1994 to restrict the death penalty and encourage moratorium on executions, Singapore asserted, “capital punishment is not a human right issue”. In the end, 74 countries abstained from voting on the resolution and it failed.177 But for an increasing number of countries the death penalty is a critical human right issue. In 1997, the United Nation High Commission for Human Rights approved a resolution stating that “the abolition of death penalty contributes to the enhancement of human dignity and to the progressive development of human rights.178 This resolution is strengthened in subsequent resolutions by a call for a restriction of offenses for which the capital punishment can be imposed and for a moratorium of all executions, leading eventually to abolition. Generally, under this chapter whether the imposition of death penalty contradict with human right laws or not will be discussed clearly and briefly. In order to come up with the conclusion the writer will try to see the death penalty with some fundamental human rights provided under the FDRE constitution and other international human rights.

176

http://www.aubreyharris.com/docs/The_Death_Penalty,

%20A%Question_of_Human_Right.pdf 177 178

supra note 174 United Nations High Commission for Human Right Resolution, April 13, 1997

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3.2.1.Right to Life and Death Penalty Just like birth, death is the supreme mystery of our lives, and no violence must be interfere with this natural process; we come into this world and leave it according to rules that were created before man.179 The FDRE constitution provides under Article 15 that “Every person has the right to life. No person may be denied of his life except as a punishment for a serious criminal offense determined by law.”180 In doing so, this provision creates the basis for the death sentence as the ultimate punishment for grave crimes. The question raised here is whether the state should take away something it cannot give. When we come to Article 10 of the FDRE constitution, which declares “human rights and freedoms emanating from nature of mankind are inviolable and inalienable”.181 Right to life is one among rights emanating from nature of mankind. The above article unequivocally declares that humans by virtue of their nature possess human rights and freedoms and they are inviolable and inalienable. This is because of the fact that they flow from and protect human nature, which could be endangered if these rights are taken away. Right to life is not a privilege granted by the state to the individual but it is inherent in the human being by the very fact that he/she is a person. There is no external granting authority such as state or society. If we were granted natural rights by the state, for instance, then there is no sense of speaking about natural rights because the would be the same as civil rights and legal rights.182

179

Aleytina Kozina, Death Penalty: Human Rights and Capital Punishment: Available on

http://human right/Death Penalty Human rights and Capital Punishment.htm 180

Article 15, Federal Democratic Republic of Ethiopian Constitution ibid, Art.10 182 supra note 179 181

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Blackstone has placed the human life at the apex: “life is the immediate gift of God, a right inherent by nature in every individual… of such high value…”183. It is recognized that the right to life is the most fundamental and basic human rights. Indeed, the right to life is the fountain from which all the other human rights spring and it therefore deserves the greatest respect. The UN commission on Human Rights affirms the significance attached to the right to life in its saying ‘for the people in the world today there is no important question than those of preserving peace and ensuring the cardinal right of every human being namely the right to life.’184 Therefore, it is possible to conclude that all rights derive their authority from the right to life. Like the FDRE constitution, some international laws provide death sentence with the right to life. All major international human right declarations, conventions and covenants stipulate that everyone has the right to life, liberty and security of person. The official position of UN General Assembly is that it is desirable to abolish the death penalty in all countries and that the crime to which it applies should be progressively reduced. Death penalty is the ultimate denial of the right to life. Death penalty is a criminal punishment imposed on individual for committing certain serious offenses. Different types of punishments are designed to serve their goals by depriving the criminal the enjoyment of certain rights. For example imprisonment restricts the individual’s freedom of movement. There are also other forms of criminal sanctions, which limit the criminal’s choice of action. Likewise death penalty militates against the individual’s right to life. Death penalty is a system of punishment by which the state takes away the life of individual criminal for the evil he has committed. However unlike other punishments, once a person is punished by death he/she loose his/her right to life and it cannot be re-exercised. This makes death sentence more serious than others.

183

184

Dr. Durga Das Basu, Human Rights in Constitutional Law, (2nded., 2003) p.392

B.G Ramcharan, The Right To Life In International Law, 1995, p.5

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When we look the FDRE constitution it recognized the inviolability and inalienability of natural rights, and Article 14 specifically recognized inalienability of right to life. According to our constitution we do have not only natural rights but also these are “inalienable” rights. What does the word inalienable right mean? Black’s Law Dictionary defines inalienable right as “rights, which are not capable of being surrendered or transferred without the consent of the one possessing such rights”.185 This means that inalienable right is right that cannot be taken away or cannot be transferred. There are rights like constitutional, civil and legal rights. These rights are alienable rights. Since they are alienable the granting authority can take them away, which is the source of the rights in the first place. However, our constitution provides a special term that inalienability of right to life, security and property of person under Article 14. However, this paper only rely on the right to life. As mentioned earlier right to life is a natural right that fall under Article 10 of the FDRE constitution. Again also according to both Article 10 and 14 of the FDRE constitution, right to life is inalienable right, which is not granted by state or society but from nature. Therefore, it cannot be forfeited or transferred. The question raised here is if we accept the idea of inalienable right to life as declared in the FDRE constitution Article 10 and 14, how we advocate capital punishment? If the right to life is truly “inalienable right” the state cannot take it away and no person may transfer it or forfeit it. That is the very meaning of inalienable right. The writer of this paper believe that the right to life is inalienable right granted by our constitution and once we subscribe the notion of inalienable right to life, we can’t advocate death penalty at the same time. Since our constitution clearly provides the inalienability of right to life this right cannot be taken away or given up. It is part of the nature of the person as human being. The writer of this paper argued that death penalty is unconstitutional because it violates the inviolable human right, right to life, 185

Deluxe, Black’s Law Dictionary, (6th ed., 1990)

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constitutionally guaranteed as per Article 14 of the FDRE constitution. This is because the fact that capital punishment takes away more than the right to life, for it takes life itself. In the recent decades, United Nations, under UN Resolution 2857 of Dec. 1971, The Second Optional Protocol to the International Covenant on Civil and Political Rights (1989) and the Commission on Human Rights, Resolution 8, (1998), tries to abolish death penalty or limit the offenses for which the death penalty may imposed. Again also European Additional protocols and Protocol to the American Convention on Human Rights To Abolish the Death Penalty (1990) recognized the incompatibility of death penalty with the right to life and other human rights and abolished the death penalty. Traditionally, capital punishment was accepted punishment for the serious criminal and it was not deemed contradicts with the right to life. However, today the attitude modern societies have towards death penalty is changed. International tribunals recognized that human right norms must be interpreted in an evaluative dynamic manner. Even if death penalty was not deemed contradict with the right to life in 1948, 1957, or 1969, it may well be today or at some future date. The writer of this paper believes that the highest possible punishment should not be death penalty because a state that respects life being sacrosanct should not lawfully murder. Today, when the world is moving towards abolishing death penalty from the globe, when UN is encouraging the abolition of death penalty for enhancement of human rights, when death penalty is considered as non-civilization, Ethiopia still remained the death penalty in the New FDRE criminal code of 2004. As I have stated in chapter two of this paper, there are many provisions entail death penalty in FDRE criminal law of 2004.

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Therefore, the writer of this paper conclude his idea that it is not wise to retain death penalty in Ethiopia at present time, when the death penalty contradicts the inalienable right to life provided under the constitution, and when awareness of people towards human right is more developed and when so many countries of the globe adopt and ratify protocols explaining the inhumanity of death penalty and abolish it.

3.2.2.Freedom of Torture and Death Penalty The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of the 1984 defines torture as “any cruel act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on person for such purposes….” The FDRE constitution provides prohibition against inhuman treatment in Article 18. It says in full “Everyone has the right to protection against cruel, inhuman, degrading treatment or punishment”.186 What kinds of punishment are categorized as cruel and inhuman treatment? There may be a number of possibilities to categorize certain punishment as cruel or inhuman. It might be suggested that, for example, punishment that are painful and infrequently administered. The interpretation of cruel and inhuman punishment is subject to problems. One may reasonably argue that the meaning of “cruel and inhuman” punishment reflects the consensus of public opinion at any one time. Article 5 of the Universal Declaration of Human Rights states that no one, for any reason, under any circumstances, even in national emergencies should be subject to cruel, inhuman or degrading punishment. When we look Article 6(2) of the ICCPR, it retains the death sentence for “the most serious offenses”. Again Article 6(6) of the same covenant declares that ‘Nothing in this article [Article 6] shall be invoked to delay or to prevent the abolition of capital punishment by any state party to the present covenant. Furthermore, when we read Article 7of the covenant declares, “No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.”187 186 187

Federal Democratic Republic of Ethiopian Constitution, Art.18 International Convention on Civil and Political Right, 1966, Art.7

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There are a human right lawyers who could argued that, notwithstanding Article 6(2) of ICCPR, a dynamic interpretation of Article 7 of the same covenant (“no one shall be subjected to torture or to cruel, inhuman, degrading treatment or punishment”), ought to be interpreted to denounce any imposition of capital punishment.188 Usually even those who impose it do not deny the cruelty of death penalty. This is because it is impossible to punish a person by death without torturing or inflicting some pain to the offender. However the cruelty of death penalty is justified. It is justified in the same way that those who carry out them justify all violations of human rights. It is justified in the same way that when authorities tried to justify Dean Tshenuweni Simon Farisani’s treatment and the treatment of others in south Africa, when they told him, as you will recall, it is better for one man to be killed than the whole society to be troubled; it is better for few people to be tortured the whole society to be troubled.189 They justify torturing individuals as for the protection of the whole society. That means it is better to sacrifice the individual for some higher cause. Death penalty by its nature is “cruel and unusual” or “cruel, inhuman, or degrading.” The constitutional court of South Africa that the state’s death penalty statutes in1995, under a clause of its interim constitution forbidding “cruel, inhuman or degrading treatment or punishment.”190 Again also European court of Human Rights and some national courts have held that, even if capital punishment is not prohibited, the period of waiting prior to execution may itself produce a form of inhuman and degrading treatment or punishment.191 According to the definition of torture, in Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, it is not only physical suffering that can be considered as torture and cruel punishment but also mental suffering. When we come to our country, Ethiopia there is many people sentenced to death waiting execution. Executions were rarely happened to those sentenced to death. Therefore, to conclude the idea a person sentenced to death is not free from mental or psychological torture until the execution is carried out. 188

Roger Hood, supra note 94, p.20 supra note 176 190 ibid 191 ibid 189

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The death penalty defies the right of citizens to be protected from such cruel, inhuman or degrading treatment or punishment. Both inhuman treatment and punishment is prohibited. But what constitute inhuman and cruel under Article 18 of FDRE constitution is subject to controversy. It needs interpretation to what constitutes cruel, inhuman, and degrading treatment or punishment. And the interpretation of this provision seems the defendant is the beneficiary of the doubt. Torture cannot be separated from the death penalty. Death penalty may be just punishment for certain heinous crimes but no injustice is done if we refrain from imposing death penalty. Even the government that practices it universally condemns torture. Usually supporters of the death penalty justify that they are going to kill these people because they deserve to die. They deserve to die because they committed acts, which put them outside of the human race. They say that it is foolish to talk about their having human right-they can’t have human rights. The government applied death sentence always tells that it is not that they are torturing, disappearing or locking up people; but torturing, disappearing or locking up “terrorist” or “communist” or “counter revolutionaries” or others because of their acts should no longer treated as part of human race.192 The author of this paper think that such governments do not like to be reminded that the very meaning of human rights that they are inalienable. Such rights are not awards given by government for good behavior. It is difficult to kill or torture people if you regard them as being human. To conclude the idea under this topic, death penalty can be categorized under the inhuman, cruel and degrading treatment or punishment and it contradicts with the rights provided under Article 18 of the FDRE constitution. The writer further believes that in refraining from imposing death penalty the state contributes to reducing our tolerance for cruelty and thereby fosters the advance of human civilization. Article 25 of the FDRE constitution provides the right to equality and equal protection of the law of all people. All person whether criminal or not has the right to equal protection of law. However the cruel and inhuman punishment inflicted on person while execution of 192

supra note 184

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death penalty also violates the equal protection of the law provided under Article 25 of the FDRE constitution. Due all these aforementioned reasons one can possibly say death penalty is unconstitutional and violates fundamental human right laws.

3.3.The Deterrent Effect of Capital Punishment Under this topic the writer will raise whether the death penalty is more deterrent than others. If the death penalty is needed to deter future murderers, that would be strong reason in favor of using death penalty, since otherwise we could be sacrificing the future victims of potential murderers whom we could have deterred.193 Most abolitionists believe that death penalty does not deter more than other penalties. The death penalty poses a set of distinct question of philosophical, political and criminological nature.194 Although different states abolish capital punishment for different reasons they share common grounds that of the inhuman, unnecessary and irreversible character of capital punishment, no matter how cruel the crime committed by the offender. Besides, the international communities as the whole, in so far as both the Rome Statute of The International Criminal Court and the United Nations security council Resolution establishing the International Criminals Tribunals for the former Yugoslavia and for Rwanda do not provide the death penalty among the range of sanctions, even when the most serious crimes, including genocide, crime against humanity, and war crimes are to be tried.

193

Jeffrey Reiman, ‘Against Death Penalty’, in Paul Leighton and Jeffrey Reiman(eds),

Criminal Justice Ethics (2001), p.425 194

. http:/www. EUROPEAN UNION MEMORANDUM ON THE DEATH

PENALTY.htm

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As discussed earlier in the first chapter of this paper deterrence can be categorized into specific and general. Here we will try to discuss whether capital punishment deters the crimes more than other penalties in Ethiopian context. 1. Specific Deterrence The FDRE criminal law has incorporated capital punishment to prevent wrong doers from committing further crimes or another crime.195 This is the specific deterrence character of our criminal justice. This is revenging the offender for his/her wrong. We are going to kill the offender, but frightening, unpleasant, or fear are nothing for the offender who is going to die. Since once a person died has no chance to leave again frightening, unpleasant, or fear of the offender have nothing to do not to commit further crime. This contradicts with the objective of Ethiopian criminal law. Modern criminal laws do not take revenging the offender as their objective. Capital punishment is the most severe and inevasible punishment that is considered as a fitting to the crime committed. It indicates that killing a person who has killed another person. Our previous government used death sentence as revenge. This is today characterized as the act of undemocratic states that only wants to satisfy their interests not public interest. When we kill the offender to deter him, we are calling another commission of crime from the side of the offender’s family and imposing a pain on the family and relatives of the offender. This may cause another problem. For example, when the offender is killed the relatives of the offender may incite for revenge against the victims family. Due to this reason, punishing the offender by death may result with a long bloody conflict and hostility among society. This may contradict with the very purpose of Ethiopian criminal law as expressed in the FDRE criminal code as to ensure order, peace and the security of the state, peoples, and inhabitants for public good.

195

The Federal Democratic Republic of Ethiopian Criminal Code, 2005, Art.1

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People may commit crime by the influence of different reasons. It may be when they need to possess certain things, because of mental factors such as emotionality and anger; economic problem such as poverty or lack of opportunities and other problems. However, capital punishment does not consider these situations as stipulated under the FDRE criminal code. The writer of this paper believes that killing someone never solved any problem never benefit the whole society. The society may be benefited from the rehabilitation of the offender. Again also the very purpose of our criminal justice is not to create pain to one part of society and to create happiness to the other part of society. Rather it is generally for the societal happiness and protection. However, when death penalty is applied, we are imposing psychological pain on the victim’s relatives and society. We are putting the family of the offender without any assistance. These all makes capital punishment nondeterrent. 2. General Deterrence This is the assumption of criminal law that punishing criminals discourages other potential offenders from committing crime.196 It is difficult to measure the effectiveness of the fear of punishment on prospective wrongdoers, except as to certain widespread statutory violations, such as petty motor vehicle offenses, black marketing etc. 197 The theory of general deterrence as discussed in chapter one believes that the threat of punishment deters prospective offenders in the general community. It is based on the assumption that criminal behavior can be prevented if people are afraid of penalties. The FDRE criminal law provides this term in the article one of the codes. It reads as “… to make them [the offenders] a lesson to others”. 198 However there are many reasons that make ineffective capital punishment as general deterrence. The following are some among many; 196

197

198

Barry Latzer, Death Penalty Cases, 2nd ed., 2002 p.13

Steven Lowenistein, Materials for the Study of the Penal of Ethiopia, 1967 p.24 supra note 195

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Some offenders who are engaging committing capital crime want to achieve their goals. They know the probability of response or attack from the victims or other persons during the commission, probability of loosing their life, and probability of punishment by death. Knowing these all when a person engaged in committing capital crimes, death penalty fail to deter such persons. As discussed in chapter two of this paper the FDRE criminal law encompasses over thirty-two articles that may entail death penalty. One may comment that we have the “bloodiest code” the twenty first century witnessed, when the ‘eye for an eye’ mentality should be part of history we frown up on. But the history of punishment shows that there is no necessary correlation between the severity of punishment and the incidence of the crime.199 This is understandable when the fact of the complexity of the causation is born in mind. This may also shows the non-deterrent effect of capital punishment. Article 117(3) of the FDRE criminal code says in full: “death sentence shall not be carried out in public by hanging or any other inhuman means.” However, it did not clearly express the mode of executing death sentence. The execution body only knows the means of execution. According to the writers view it is difficult to deter prospective offenders and educate the people without observing and knowing the means of execution. This is because the death of the offender and place of execution may impose on the prospective offenders the threat of fear. Therefore, non-disclosing the means of executing capital punishment by itself put in question the deterring effect of death penalty. Generally, capital punishment cannot deter prospective offenders or its deterring effect is not this much important. Humanistic values, ethical points of view and human rights reasons weighed in favor death penalty. For our criminal justice the writer personally opt for more humane, but also more effective, criminal justice system paved the way for considering appropriate alternative criminal sanctions to the death penalty. The writer 199

supra note 178

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further assume non-lethal penalties such as long term or life imprisonment instead of death. Based on all these mentioned above life imprisonment is more deterrent than death penalty.

3.4.Problems of Executing Capital Punishment Miscarriage of Justice: when we apply death penalty there is a probability of mistaken killings. Of course the probability of innocent execution is rare, but do occur. Over a long enough time they lead to execution of some innocents. If we allow death penalty innocent people will also continue to be executed. This is not morally right because life cannot be restored once taken. Capital punishment by its nature is irrevocable. Here the point is that the innocent are sometimes wrongfully convicted and if they receive the death penalty there is no way to correct the wrong done to them. If someone is executed and later found to have been innocent, there is no way to give him back the life that has been taken because life cannot be restored once taken. In a recent survey of professor Hugo Adam Beada and Michael Radelet found that 7000 persons were executed in the USA between 1900 and 1985 and that 35 were innocent of capital crimes.200 Again also the German refugee scholar and lawyer Max Hirschberg, in his study of wrongful convictions rightly observed, “Innocent people wrongfully convicted are countless.”201 These all shows us that through a long run the innocent person may be executed. Taking all these into consideration the author believes that the possibility that innocent person could be executed is sufficient in itself to warrant an end of capital punishment.

200

201

http://www.123helpme.com/preview.asp?id=11170, retrieved on May 11, 2009

Thomas W. Simon, supra note 92, p.482

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When we come to the FDRE criminal law it is designed to contribute towards the promotion of a fair judicial system in the country. However, the author believes that capital punishment can hinder the promotion of fair justice system. In proving whether a person is a guilty of a crime or not there is a general principle that “proof beyond reasonable doubt” required. The writer of this paper think that a higher burden of prove is required when the sentence may be death. Before the government deprive a defendant’s life, it must prove the defendant’s guilt by a standard more vigorous than “beyond reasonable doubt”. The term “beyond reasonable doubt” does not mean ‘beyond all possible doubt’. From the term reasonable doubt we understand that there is a doubt but that doubt should be required reasonable. In our criminal justice we don’t have any special procedure for proving capital punishment. The writer think that prove beyond reasonable doubt for a crime of capital punishment causes injustice. This is because even in countries like USA, which have well skilled legal professional and well-organized legal system, mistake in criminal justice is obvious as mentioned above. For instance, between 1973 and 2005, 123 people in United States were released from death row when the new evidence of their innocence emerged.202 Therefore, based on the above premises one can imagine how many people may convicted and executed by mistake in developing countries. Based on the above reason the writer think that prove beyond reasonable doubt is not enough for proving the guilty of capital offense entailing death penalty. In order to make a person guilty of capital punishment prove of guilty should be “beyond all possible doubt”. After the judge finds a defendant guilty beyond reasonable doubt it should not proceed to the penalty phase unless it also certifies it has found the defendant guilty beyond all possible doubt. In countries like Ethiopia the probability of miscarriage of justice is high comparing countries like United States and other developed countries. In our country many people 202

Facts

and

Figures

on

death

penalty,

available

on:

http://www.dereches.org/deathpenalty, visited on, February 4, 2009

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are living in a poor condition and the numbers of such peoples are high especially by those who commit capital crimes. Most probably they are poor peoples that engaged in committing capital offenses. After committing a crime when they brought to the court they may receive poor legal representative. Usually the quality legal representation is a better predictor of whether or not someone will be sentenced for death than the facts of the crime. Generally, those who are poor in economy cannot afford better legal counsel. Even if state assign for him/her, the assignee cannot fully protect him/her because of less satisfactory of fees or fear of the person if set free. Therefore, due to all the above reasons the use death sentence in our country can possibly cause injustice to the convicted person. Usually the famous crime inflicted death sentence in Ethiopia is murder. When we look reasons why people commit murder the living conditions of individuals have its own contribution or impact. Those who are economically poor and uneducated people are most likely engaged in such capital offenses. The murderer may kill individual to get a money or food. It is the writers’ opinion that causing a death of the offender by denying basic needs of him is not fair. If we provide him food, job opportunity, and good living condition he may not engaged in such activities. The writer of this paper believes that capital punishment bias against the economically and socially weaker sections and this contradicts with the principle of fair justice system. The FDRE criminal law says, “Death sentence shall not be carried out unless confirmed by the head of the state. It shall not be executed before ascertainment of its nonremission or non-commutation by the pardon or amnesty.”203 Those condemned to death have the right to appeal to higher court and to petition for presidential clemency. The president is empowered to commute capital sentence to life imprisonment. 204 The problem arises when the president of the country fail to confirm or commute the death sentenced by the court. According to the FDRE criminal code it is impossible to execute death sentence without confirmation of the president of the country. The criminal code and the constitution of FDRE provide nothing under which condition can the president 203 204

The Federal Democratic Republic of Ethiopian Criminal Code, 2005, Art. 117(2) The Federal Democratic Republic of Ethiopian Constitution, 1994, Art.28

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confirm or not death sentence. It only gives the president discretionary power to judge over the offenders life. Again the time limit under which the president can confirm or commute the sentence of death is not clearly determined in both the criminal code and the constitution. Therefore, the confirmation or commutation of the president may take a long period of time. The long period of putting a person sentenced to death without execution or commutation can possibly cause mental torture over the offender. This violates the human rights of the offender. Generally, these all are reasons why I oppose capital punishment for Ethiopian criminal justice system

Conclusion As it is clear from the discussion punishment is the reaction of society against a person who breaches the social order. In order to protect the rules and the society the state applies punishment to those who transgress beyond their rights. The purpose of the criminal law is to prevent the commission of crime against the public at large by providing punishments as a major means to deter offenders and potential offenders and to rehabilitate offenders as well as to enforce the social and public morality.

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So far I have tried to show historical evolution of capital punishment in abroad and Ethiopia. There are a number of possible arguments for both sides of the coin. In an attempt to be fair, I have touched up on the main arguments for and against capital punishment. Capital punishment is one among different punishments applied for guilty of crime. It is a punishment made by killing an offender who commits a specified crime in a judicial system. Historically minor offenses were punishable by death. Different arguments have been offered in support of capital punishment and against capital punishment by modern thinkers and others. The opponents argued on the ground of deterrence, retribution, community protection and so on. On the other hand the opponents argued on the ground of non-deterrence, vengeance, human right violations and so on. Even the religious followers hold different view as to the necessity of capital punishment. Historically different modes of execution of capital punishment, which were considered as cruel and inhuman, were applied. The other thing is international movement of abolishing capital punishment. There are organizations like United Nations, European Union, and Inter-American states organizations that play a role in abolishing a capital punishment. There are also human right defenders like Amnesty International and Human Rights Watch that argued for the abolition of capital punishment in order to protect human rights. To day almost 2/3 of the world countries in the world abolished the death penalty in practice and by law. Ethiopia is one among countries retained death penalty in the world. The FDRE constitution and criminal law allows the death penalty for serious criminal offenses. The new FDRE criminal law contains over 32 provisions entailing or causing the death sentence. The purpose and objective of the FDRE criminal law are to preserve the peace, order, and security of the state and to protect the society at large by preventing the commission of the crime. That is generally there are deterrence, rehabilitation, and education purpose in our criminal law. Again, the FDRE criminal law provided to

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promote fair judicial system, protection of human rights and to bring economic progress in the country. However, capital punishment contradicts with the human right provisions like right to life, freedom of torture and others provided under the FDRE constitution and other international human rights. In addition the existence of capital punishment can create a problem of hindrance of the objective of the FDRE criminal law such as, revenge rather than deterrence, prevent the chance of offender to rehabilitate, miscarriage of justice will occur, violates the rights of the offenders, create unpleasant pain on the community, avoid the economic benefit of the society and the state which can get during after rehabilitation. Generally, capital punishment is not compatible with human rights and modern criminal laws. Abolition of capital punishment is a better alternative to avoid such problems.

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Recommendation The writer of this paper believes that capital punishment is not as deterrent as life or long-term imprisonment. This is proved by the studies made in different countries. If we punish a person by death small person witnessed such execution may be deterred from capital offenses. But in case of long and life imprisonment there is a probability that many person witnessed his punishment and those persons may be deterred from capital offenses. In addition to this capital punishment has a retrospective affect. That is, it comes after society is attacked, and the peace, order and security of the state are already disturbed. It is better to use imprisonment (long term or life) instead of capital punishment. In case life or long-term imprisonment there is probability of academicals

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and vocational trainings in prison and through this way prison administration has an important to prevention further crime. This all benefits the society at large. Rehabilitation is one among purposes of punishment. That means when we punish individual it has a message for him not to commit further crime. Capital punishment does not consider the chance to rehabilitate. Once capital punishment is applied it is impossible to apply rehabilitation theory or to learn from his bad act. This is because once a person is punished by death his chance to leave again is unthinkable and his rehabilitation too. Therefore rehabilitation is more effectively possible by other form of punishment like imprisonment, fine, etc. Severity of the punishment is not the solution to the capital crimes. If severity of punishment is the solution to capital offenses then the world could have used capital punishment for every offence and then the world be free from crimes. However, using violent punishments can never halt crime. When I say this I don’t mean that punishment should be abandoned. But punishment should be in such away that it is capable of deterring and rehabilitating criminals. Many factors contribute to the growth of crimes. We should go to the roots crimes and then try to find solution to them. For example, those people who engaged in criminal activities are especially those who have no job, food and other materials needed for their life. Mistake is unavoidable task in execution capital punishment. Human judgment is not perfect; nor human wisdom is infallible. In execution of capital punishment miscarriage of justice are possibly occurred for different reasons. It must be conceded that the drastic and irrevocable punishment should be banned forever. If we abolished capital punishment miscarriage of justice also shall be disappeared. Capital punishment discriminates against the poor. Because of capital punishment unequal application of the law takes place due to the poorness of those convicted person. The poor do not have the means to hire lawyers. One may say that the constitution gives the right for the accused to have a lawyer at the expense of the

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government if he is unable to have one. But practically such lawyers do not show the interest to defend their clients. Hence in most cases the poor are subjected to capital punishment, not because they are criminal but because they cannot be afford to have lawyers. This problem is worse especially in poor countries like Ethiopia. There is no repayment for the destruction of something irrevocable. The only practical alternative to killing the worst the criminals we have is keeping them locked up for life. By doing so offenders will come good people. If death penalty is applied it can create unpleasant pain top the community, avoid economic benefit of the offender and the state, which can get during and after rehabilitation. Death penalty is retained in our laws. But the FDRE criminal law fails to identify the modes of execution of capital punishment. Even though the 1957 penal code provides two modes execution, hanging and shooting, the new FDRE criminal law is not clear as to the mode of execution of capital punishment. The mode of execution is not publicly known. This is the secret only known by the executing organ. The author of this paper believes that non-disclosing the mode of execution of capital punishment shows nontransparency of government as to this matter. If death penalty is mandatory to be retained in Ethiopia it is better to specify the mode of its execution. Again also proof of guilty should not only beyond reasonable doubt rather it should be beyond all possible doubt. Death penalty violate fundamental human rights like the inalienable right to life, freedom of torture and cruel punishment, which is constitutionally guaranteed. Since those of life and torture cannot be separated from capital punishment it is better to abolish it forever. Using the experience of those country which abolished death penalty and has lower crime rates it is better to take in to consideration our capital punishment. Generally, for all mentioned above the writer conclude that it is good if we abolish death penalty from our laws.

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Bibliography Books 1. The Encyclopedia Britannica, 1986 2. Thomas W.Simon, Law and Philosophy: An Introduction With Readings, 2001 3. The Encyclopedia of Psychology, 1984, vol.3 4.

Patric R. Anderson and Donald J. Newman, Introduction to Criminal justice, 5th ed (1993)

5. Joseph J. Senna, Larry J. Siegel, Introduction to Criminal Justice, 4th ed (1987) 6. Jay S. Albanese, Criminal Justice, 2001 7. Stephen A. Saltisburg, John L. Diamond, Kit Kinports, Thomas H. Moravets, Criminal Law: Cases and Materials, 1994 8.

Sanford H. Kadish, Stephen J. Schulhoter, Criminal Law and Its Process, 6th ed, 1995)

9. Hugo D. Barlow, David Kauzlarich, Introduction to Criminology, 8th ed, 2002 10. La Fave Wayne R and Austin W. Scttim, Criminal Law, 1982 11. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice In Action, 2006 12. Richard C. Monk, Taking Sides, Crime and Punishment, 5th ed (1998) 13. Peter Newman, The New Palgrave Dictionary of Economics and Law, 1998, vol.1 14. Holy Bible 15. The New Encyclopedia of Britannica, 2005 16. Roslyn Muraskin, IT’S A CRIME: Women and Justice, 3rd ed, (2003) 17. Freda Adler, Gerhard O.W. Mueller, Williams S. Laufer, CRIMINOLOGY, 2nd ed, (1995) 18. Eugner Mc Laughlin and John Muncie, Controlling Crime, 2001 19. William A. Schabas, ‘Life, The Right To: The Death Penalty’, in Rhona K.M. Smith and Christian Van den Anker, the essential of ---human rights (2 005) 20. The New Encyclopedia Britannica 15th ed.,( 2005), vol.2 21. Roger Hood, The Death Penalty: A World Wide Perspective, 3rd ed., (2002)

81

22. Abba Paulos Tzaudu, The Fetha Negest, 1968 23. Aberra Jembere, An Introduction to Legal History of Ethiopia: 1434-1974, (1999) 24. The New Encyclopedia Britannica, (15th ed., 2005) 25. Solomon Abadi, Materials for the Study of Constitutional Law II (Human Right Focus), 2002 Mekelle University Library, (unpublished) 26. Marek Piechowiak, What are Human Rights, (1997) p.9, 27. Malcolm N.Shaw, International Law (5th ed., 2006) 28. Cliff Roberson, Criminal Procedure Today: Issues and cases, (2nd ed., 2003) 29. Dr. Durga Das Basu, Human Rights in Constitutional Law, (2nded., 2003) 30. B.G Ramcharan, The Right To Life In International Law, 1995 31. Deluxe, Black’s Law Dictionary, (6th ed., 1990) 32. Jeffrey Reiman, ‘Against Death Penalty’, in Paul Leighton and Jeffrey Reiman (eds), Criminal Justice Ethics (2001) 33. Barry Latzer, Death Penalty Cases, 2nd ed., 2002 34. Steven Lowenistein, Materials for the Study of the Penal of Ethiopia, 1967

Websites 1. Justification

for

capital

punishments,

available

on

http://www.justiceblind.com/death/dpsupport.html 2. http://criminal.findlaw.com/crimes/more-criminal=topics-punishment/history-ofdeath penalty-laws.html 3. http://www.buddhanet.net/e-learning/buddhism/dp10.htm, retrieved on June 5, 2009 4. History of Death Penalty; available on www.deathpenaltyinfo.org/part-ii-history-death-penalty.html 5. http://www.fiacat.org/en/IMG/pdf/FIACAT_News_May_2009_Supplement_VAn glais_1.pdf, Retrieved on 6/4/2007 6. http://www.acronym.org.uk/dd/dd87/87unfc.htm

82

7. F:/statement of the European Union on the Death Penalty.htm 8. Lilian Manka Chenwi, Towards Abolishment of the Death Penalty in Africa, available

on,

http://upetd.up.ac.za/thesis/available/etd-10062005-

151306/unrestricted/00front.pdf, retrieved on 6/4/2009 9. http://www.fiacat.org/en/IMG/pdf/FIACAT_News_May_2009_Supplement_VAnglais_1.pdf 10. Ethiopia

Crime

and

Punishment:

available

on

www.photius.com/countries/ethiopia/national_security/ethiopianational_security_crime_andpunishment.htm 11. http://www.aubreyharris.com/docs/The_Death_Penalty, %20A%Question_of_Human_Right.pdf 12. Aleytina Kozina, Death Penalty: Human Rights and Capital Punishment: Available on http://human right/Death Penalty Human rights and Capital Punishment.htm 13. Vaibhav Goel, Capital punishment: A human right examination case study and jurisprudence, F:/capital punishment/ capital punishment A human right examination case study and jurisprudence.htm, (retrieved on Feb 4, 2009) 14. http:/www. EUROPEAN UNION MEMORANDUM ON THE DEATH PENALTY.htm 15. http://www.123helpme.com/preview.asp?id=11170, retrieved on May 11, 2009 16. Facts

and

Figures

on

death

penalty,

available

on:

http://www.dereches.org/deathpenalty, visited on, February 4, 2009 17. http://www.achpr.org/english/state_reports/Ethiopia/Initial%20Report%20_Ethiop ia.pdf, retrieved on June 10, 2009

Laws 1. Second Optional Protocol to the International Covenant on Civil and Political Rights of 19966, 1989 2. Office of the Human Right Commissioner for Human Rights: Human Right Resolution 2005/95

83

3. Council of European Union Guidelines to EU policy towards Third Countries on the Death Penalty, Brussels, 3June 1998 4. Federal Criminal Code of Ethiopia, criminal code, 2005 5. Universal Declaration of Human Rights, Dec. 10, 1948 6. United Nations High Commission for Human Right Resolution, April 13, 1997 7. Federal Democratic Republic of Ethiopian Constitution 8. International Convention on Civil and Political Right, 1966, Art.7 Journal 1. Fasil Nahom, “Punishment and Society: A development approach”, Journal of Ethiopian Law; vol.12 (1982)

84

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