What proactive arguments against Gambia’s execution of all in its death row?
On the 26th August 2012, at the occasion of the celebration of Eid, the Gambian leader has decided to apply to the letter the death penalty in a view to curb the upsurge in criminality in The Gambia.
His declaration was followed by condemnations from all over the world calling The Gambia to renounce to this grave decision as it has been now three decades that no death sentence was implemented.
However, surprisingly, on the 27th August 2012, a release from the ministry of interior informed the national and international community that nine of those in death row have been executed.
The shocking new prompted condemnations and strong warnings from the international community including the African Union, the European Union, the United States of America, Senegal which has two of its citizens among the executed persons and a third one who is still in the death row.
Human rights bodies also strongly condemned the executions as the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions urged The Gambia to refrain executing the remaining 38 persons in death row according to reports. The African Commission on Human and Peoples’ Rights which is hosted by The Gambia did so equally.
The question arising from the confrontation between the executions carried by The Gambia and the condemnations it sparked is as follows: is The Gambia authorised by international law to carry out death sentences? Or has The Gambia violated international law in carrying to the letter the death sentence?
The answer to this question will nourish the appropriate arguments against the move of The Gambia in the implementation of the capital punishment.
Apparent inexistence of an international law formal prohibition on The Gambia to carry out death penalty
The first point is that none of the international human rights treaties ratified by The Gambia explicitly forbids the implementation of the death sentence and the country is not among the six African states parties to the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the Abolition of the Death Penalty.
Equally, relevant treaties ratified by The Gambia such as the International Covenant on Civil and Political Rights (article 6), the African Charter on Human and Peoples’ Rights (article 4) though recognising the sacredness of life, do not expressly provide for the outlawing of the death penalty.
These instruments only state that the deprivation of the right to life shall not be arbitrary. Meaning that lawful deprivation of the right to life is permitted and the International Covenant on Civil and Political Rights elaborates more on the conditions of application of the death penalty in subsections 2 to 5 of its article 6.
The conditions are namely that the death sentence is carried as a result of a final judgement rendered by a competent court on the basis of a law in force and which criminalises and punishes most serious crimes at the time of the commission. Additionally, that law should not be contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. Also, there are provisions for anyone sentenced to death to “have the right to seek pardon or commutation of the sentence” and “amnesty, pardon or commutation of the sentence of death may be granted in all cases”.
At this point, the argument of saying that The Gambia is violating international human rights treaties that protect the right to life and associated rights is pointless and cannot stand strong in the fight to halt the executions in The Gambia because it is the constitution of this country (section 18) and its criminal laws that provide for the death penalty.
However, one can look closely at elements like the deeds of The Gambia as regards to the issue of death penalty over the years to establish that the point of The Gambian government arguing that The Gambia is clearly a retentionist state is not obvious as the government of The Gambia pretends it is.
The Gambia more likely a favorable to the abolitionist ideology
In fact, the abolitionist past of The Gambia, its current constitution as well as the positions of The Gambia in international law during the past twenty years are among other elements critical issues to look at closely in a view to mitigate or even establish that The Gambia is an abolitionist state or at least is currently not clear about what position to have on the death penalty; therefore, not prepared to carry out executions in these state of affairs.
History informs that The Gambia has applied the death penalty from its independence in 1965 to 1981 when Dawda Jawara former president abolished the capital punishment. The death sentence was then reinstatement in 1995 with the arrival to power of Jammeh who overthrown Jawara.
The reinstatement was subsequently done formally in the 1997 constitution of The Gambia which provides for the death penalty at its section 18 with subsection 3 stating as follow “The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia”.
The point is that these provisions clearly inform on the idea that the intention of the constitution, the intention of Gambians expressed in this constitution was not definitively established on keeping forever the death penalty in their legal framework; that is why the constitution states that after a period of ten years of existence, the people of The Gambia through its representatives at the national assembly will have to question the desirability or not of the death penalty.
It is to note that this has not been done in 2007 when the constitution turned ten and one can assert without doubt that The Gambia does not have a position on the death penalty if it is to stick with the constitution because the validity of the death penalty provided in the constitution has expired.
Consequently, no death sentence should have been pronounced or carried since 2007 pending the answer of the national assembly on the desirability of the death sentence. So, in such circumstances, it suffices not that the president decides to implement death sentence provided in the constitution for it to be legal because this is a partial reading of the constitution and there comes the inoperativeness of the argument of The Gambia purporting that the country is just applying the constitution and its laws by carrying the death sentence.
In fact, for an irreversible punishment like the death sentence, states that intend to utilize it must demonstrate their total abidingness to law to avoid the possibility to violate the rights of the accused. Obviously, The Gambia cannot demonstrate this law-abidingness guaranteeing fair trial and all measures to safeguard the rights of the accused because if the government and the state apparatus do not respect to the letter constitutional provisions.
As regards to Gambia’s position in international law these last decades, it appears that the country is closer to the abolitionist ideology than the retentionist one.
In fact, put aside the de facto moratorium on death penalty of up to two decades, it happened that the position of The Gambia evolved throughout years on the issue of the death penalty.
For instance, while in 2007 The Gambia voted against the United Nations General Assembly‘s first Resolution (62/149) relative to a Moratorium on the use of the death penalty, it abstained in 2008 at the adoption of Resolution 63/168 and in 2010 voted for Resolution 65/206 all relative to a Moratorium on the use of the death penalty. In the same vein, let recall that The Gambia has ratified the Rome Statute since 28 June 2002 and the judicial body established by the statute to prosecute and punish the most horrible crimes on earth does not provide for death sentence for those culprit of these crimes.
Therefore, it is inconsistent that The Gambia ratifies such a treaty and applies the death penalty and it shows fundamentally the penchant of the country for the abolitionist ideology.
Moreover, The Gambia declared proudly during its universal periodic review that though it has the death penalty in its statue books, it does not actually implement the death sentence.
In addition to this, one can remind that The Gambia is driven by an ideology of human rights since its independence to the extent that it hosts the African human rights primary monitoring body (The African Commission on Human and Peoples’ Rights) since its creation.
All these cannot be hidden or ignored even if since the seizure of power by Jammeh the country ranks among states with poorest human rights records; yet, a country leadership’s reluctance to human rights could impact on the human rights records of that country but cannot destroy the fact that the people of that country are profoundly rooted in human rights promotion and defence.
At this stage, it will be pointless in the case of the stance taken by the Gambian leader to try to develop arguments emotionally driven like the ruthless of the death penalty or the theory of the outlawing of the death penalty.
A proactive posture is to demonstrate that according to law, Jammeh and The Gambia cannot be given the privilege to carry out such irreversible sentences as long as the country and its leaders will not strictly respect their own law and freely accepted international obligations, as long as the judiciary will be so weak to ensure the proper application of law and the protection of the rights of the accused.
Actually, the people of The Gambia should be questioned as whether to implement the death sentence or not before any irreversible action is taken!
Finally, is a call for a better structuring of the response to the grave backward-looking move adopted by The Gambia and a strong position from all stakeholders to prevent further carrying of death sentences in The Gambia till the material and legal conditions are reunited to do so without causing irreparable harm.
 Though after the vote, the representative of The Gambia insisted that The Gambia’s vote was meant to be an abstention, it is a proof of how unclear and unestablished is the position of The Gambia on death penalty. As it is, the trends require that no execution be carried till the people of The Gambia decide clearly where they stand as regards to death penalty.