Late in the night on August 23, 2012, Gambian President Yayeh Jammeh had nine death row inmates at the notorious Mile 2 Central Prison in The Gambia executed to broad international condemnation.
Of the nine, three were convicted of treason, a notoriously politicized charge in a country under Jammeh’s authoritarian hybrid civilian-military rule.
Prior to this, The Gambia had only carried out a single execution since its independence from Great Britain in 1965. Specifically, Mustapha Danso was executed for the murder of an army commander during a failed coup attempt in 1981.
At the time of the August 23 executions, there were 47 inmates on death row. Two of those executed were Senegalese nationals and at least one was placed on death row prior to the enactment of The Gambia’s current constitution in 1997. The Gambia’s democratic government had abolished the death penalty in 1993, but President Jammeh reinstated it in 1995 after he took power in a coup the prior year.
The executions came as a shock to the international community, with sharp condemnation from the European Union, the African Union, and the Economic Community of West African States (ECOWAS), of which The Gambia is a member. The Gambia is a small nation of 1.3 million and explicitly restricts the usage of the death penalty to homicide in its constitution:
As from the coming into force of this Constitution, no court in The Gambia shall be competent to impose a sen- tence of death for any offence unless the sentence is pre- scribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.
In January 2012, the High Court in Banjul, a trial court, sentenced Amadou Scattred Janneh, a former Minister of Information and Communication, to life imprisonment after finding that the death penalty for treason was unconstitutional. In a separate appeal, how- ever, the Gambian Supreme Court upheld the death penalty for treason in October 2012 in a challenge by convicted coup plotter Lt. Gen. Lang Tombong Tamba and his accomplices.
The Gambian penal code still punishes treason as a capital crime and, as in other former British colonies in West Africa, the death penalty is mandatory upon conviction for homicide.
Tamba’s failed constitutional challenge against the death penalty for treason was surprising in light of both the plain text of Article 18(2) and the unanimous repeal of the mandatory death penalty for drug trafficking in April 2011. After all, the repeal was made on the legislature’s assumption that the penalty was unconstitutional. Tamba’s execution in spite of Article 18(2) and the repeal underscores the weakness of the rule of law in the postcolonial enclave.
Due to these contradictions, an umbrella organization named Civil Society Associations Gambia (CSAG) brought a death penalty challenge before the ECOWAS Community Court of Justice in December of 2012.
The Nigeria-based Socio-Economic Rights and Accountability Project (SERAP) also filed suit in the ECOWAS Court in Abuja on behalf of Michael Ifunanya and Stanley Agbaeze, two Nigerian citizens on death row in The Gambia.
SERAP argued that The Gambia denied the two Nigerians due process of law because they had not been permitted to appeal their sentences. SERAP is seeking a permanent injunction to stay the executions. The ECOWAS Court has expanding jurisdiction to hear human rights complaints and its decisions are binding on member states, including The Gambia.
Activists are skeptical that The Gambia would comply with the ECOWAS Court’s decisions. However, it is possible that the tentative death penalty moratorium installed after the international outcry over the August 2012 executions may remain indefinitely. The prospects for total abolition, however, are dim.
This article explores the murky constitutionality of the death penalty in The Gambia. This article will pay particular attention to the apparent contradiction between the legislature’s abolition of the death penalty for drug trafficking as unconstitutional and the Supreme Court’s decision in Lang Tombong Tamba upholding the death penalty for treason. Given the widespread trend toward abolition within Africa, even in other Islamic-majority countries, The Gambia is one of the few steadfast supporters of capital punishment.
THE CONSTITUTIONAL FRAMEWORK OF THE DEATH PENALTY: ARTICLE 18
The Republic of The Gambia grew out of the British post of Bathurst, which was built in 1816 in present-day Banjul to control trade on the Gambian River and to suppress the slave trade. Today it is an unstable polity despite its relatively strong history of democratic rule and good governance in the early decades after independence.
The country’s stability was punctured in 1994 when the Armed Forces Provisional Ruling Council (AFPRC) deposed Jawara and the Council’s chairman, Yayeh Jammeh, became head of state. Until a military coup d’e ́tat in 1994 ushered in a two-year interregnum of mili- tary rule, The Gambia arguably held the record as the longest surviv- ing multiparty democracy in Africa. By 1994, however, public support for Jawara’s ruling People’s Progressive Party was eroding as persistent resource constraints and poor government performance led to a low standard of living and low levels of development. For Jammeh’s part, while he initially rode a wave of public discontent to carry out populist reforms, declining human rights standards and media censorship have hampered the democratization process.
Constitutionally, The Gambia operated under a Westminster system for the first five years following independence, with Queen Elizabeth II as head of state as represented in the colony by a gover- nor-general. In April 1970, a new Republican constitution installed a system of checks and balances, with a president as head of state and a unicameral House of Representatives.
The country’s early experiences had mixed success and there were significant infringements on civil liberties imposed after the 1981 coup attempt. However, the prosecutions that followed, which included a high-profile acquittal of an opposition leader, were a testament to judicial independence in the country. In 1982, in the wake of the coup attempt and instability in Senegal’s Casamance region, Senegal and The Gambia formed the Senegambia Confederation with the intention of creating an integrated political union between the two. Senegambia, however, failed to make significant progress toward integration and was dissolved in 1989.
A new constitution replaced the 1970 one after the AFPRC coup in 1994, which strengthened executive power, ousted the jurisdiction of the Privy Council in London as the country’s highest court, created a new Supreme Court, and replaced the House with a National Assembly.37 Developing constitutional jurisprudence had profound political consequences under the new constitution.
In 1997, the Supreme Court found unconstitutional the provisions of an anti-corrup- tion law that limited the rights of an accused to appeal to the highest court. Judicial review was emerging.
Hassan B. Jallow, who later became a Gambian Supreme Court justice and the chief prosecutor at the International Criminal Tribunal for Rwanda, reflected on the abolition of the death penalty during the final year of Jawara’s presidency and its reinstatement under the AFPRC military government in 1995. According to Jallow, 87 death sentences had been handed down between independence in 1965 and abolition in 1993, of which 23 were for murder and 64 for treason related to the 1981 coup attempt. These resulted in only a single execution. “By and large . . . the tradition had developed, and with it a public expectation, of the President commuting to life imprisonment, or to a lesser term, all sentences of death on the recommendation of the Advisory Committee on the Prerogative of Mercy.” Jallow believed that the death penalty was incongruous with the internationally recognized right to life, and believed that the letter of the law should reflect the country’s customary practice. He viewed abolition as a “drive to deepen and consolidate our democratic achievements,” but he lamented that, because of the events to follow, abolition had been performed only by statute. Almost precisely two years later, the AFPRC military regime reinstated the death penalty and all previously enacted death sentences.
The 1970 Constitution of The Gambia contemplated the contin- ued existence of the common law mandatory death penalty through a savings clause of the right to life provision at Article 14(1), which read as follows:
No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of The Gambia of which he has been convicted.
The 1970 Constitution also included a provision for the execu- tive prerogative of mercy. This included the power of pardoning and commuting criminal sentences in Article 54. It also included the establishment of an Advisory Committee on the Prerogative of Mercy, to be appointed by the President, in Article 55. These articles were in pari materia with most of the common law constitutions in Sub- Saharan Africa and were generally based on the European Convention on Human Rights, which applied to Britain’s colonies after September 1, 1953, and lapsed at independence in 1965. Departing colonial offi- cials and the drafters of the 1970 Constitution looked to the ECHR and other international sources in delineating the scope of fundamental rights.
The 1997 Constitution provided a more detailed right to life clause that altered the scope of the death penalty. The relevant por- tions of Article 18 of the 1997 Constitution of The Gambia read:
(1) No person shall be deprived of his or her life inten- tionally of right to life except in the execution of a sen- tence of death imposed by a court of competent
jurisdiction in respect of a criminal offence for which the penalty is death under the Laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted.
(2) As from the coming into force of this Constitution, no court in The Gambia shall be competent to impose a sen- tence of death for any offence unless the sentence is pre- scribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.
(3) 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.
A simple comparison between the text of the 1970 Constitution and the 1997 Constitution indicates a desire to restrict the scope of the death penalty from that contemplated by the original common law mandatory death penalty. This intention is manifest in three ways. First, the additional provision at Article 18(2) prohibits the death penalty for any crime other than an “offence involv[ing] violence, or the administration of any toxic substance, resulting in the death of an- other person,” which appears to extinguish the death penalty for rape, armed robbery, and treason, among other capital crimes. Second, the provision at 18(3) mandates a 10 year review of the death penalty, with the hope of encouraging the abolition of the death penalty. Finally, the provision at Article 82(2) concerns the Advisory Committee for the Prerogative of Mercy. Unlike the 1970 Constitution, the 1997 Constitution does not leave the membership of the Com- mittee solely to the prerogative of the executive, but instead requires that the National Assembly confirm members.
The Gambia is a party to the International Covenant on Civil and Political Rights (ICCPR), which states that the death penalty may only be reserved “for the most serious crimes.” The Gambia has not ratified the Second Optional Protocol to the ICCPR which commits state parties to the abolition of the death penalty. Nonetheless, the United Nations Human Rights Committee has, as early as 1982, held that the ICCPR “strongly suggest[s]. . .that abolition is desirable.” The U.N. Committee generally holds that a limitation on rights must be established by law, must not be applied in a discriminatory manner, must not be applied in a manner that would undermine the substance of the right, and must be directly related and proportionate to the specific need on which the limitation is predicated. The African Com- mission on Human and Peoples’ Rights has come to a similar conclusion and permits limitations only when “strictly proportionate with and absolutely necessary” for the advantages derived from the limitation.
As the Commission explained in a general principle applicable to all fundamental rights, “[g]overnments should avoid restricting rights, and have special care with regard to those rights protected by constitutional or international human rights law.” The implication of these principles is that constitutional provisions providing for the death penalty should be narrowly interpreted since the death penalty limits the fundamental right to life.
The legislative saga over imposing the death penalty for drug trafficking offenses in The Gambia accords with the plain reading of Article 18(2).58 In October 2010, the National Assembly passed a mandatory death sentence for anyone possessing more than 250 grams of cocaine or heroin. The Gambia is increasingly a transit point for drugs en route from Latin America to Europe because the country’s administrative softness and its substantial tourist trade allow couriers to easily travel on commercial flights. Massive drug busts, including the June 2010 seizure of two metric tons of cocaine worth about $1billion, lent urgency to the country’s efforts to combat the drug trade. Critics have said that the drug enforcement agency is too “cozy” with alleged drug traffickers.
No prosecutions occurred due to the belief that prosecutions were constitutionally inoperable under Article 18(2) and due to pro- tests from the Gambian bar.63 The legislature abolished the penalty by substituting “life imprisonment” instead of “sentence to death” in April of 2011. The legislature also increased the monetary penalties in the Drug Control Act. It did not change the lesser penalties in the Drug Control Act of 2003, including a minimum ten years sentence for trafficking smaller amounts of drugs and a presumption of trafficking where a person is found in possession of one gram of heroin or cocaine, ten grams of cannabis resin, or two kilograms of cannabis.
The executions in August 2012 raised some of these constitu- tional issues. First, the Ministry of the Interior issued a press release afterwards stating that the executions were carried out by firing squad rather than hangings.
Executions by firing squad are exceptionally rare in common law Sub-Saharan Africa. Second, two of those exe- cuted would have been entitled to certain internationally recognized diplomatic rights because they were foreign nationals of Senegal. Because the executions were carried out secretly and suddenly, the lack of warning to diplomatic officers, families, and attorneys of the prisoners is, at best, contrary to dicta of the African Commission and, at worst, a violation of international law.
Most importantly, one of those executed had been on death row since 1988, prior to the new constitutional provisions at Article 18 and Schedule 2 of the 1997 Constitution.70 Schedule 2 of the 1997 Consti- tution states at Article 16:
Where any law makes provision for a sentence of death in any case other than that provided for in section 18 (2), the law shall have effect as if imprisonment for life were substituted for that penalty.
Because the prisoner in question, Lamin Darboe, had been on death row since 1988, his death sentence would have been automati- cally substituted for life imprisonment if his case involved a death sen- tence “other than that provided for in section 18 (2).” He was convicted of murder carried out in a violent fashion, so as a technical matter his sentence would survive Article 18(2) under the new constitution.
However, Gambian opposition leader Halifa Sallah confirmed in a letter to President Jammeh that all prisoners then on death row had had their sentences commuted to life imprisonment when the then-House of Representatives abolished the death penalty in 1993.72 Those death sentences, according to Sallah, were unconstitutionally reinstated in August 1995 when an AFPRC decree again legalized capital punishment.73 Certainly, even if Darboe’s death sentence could be inter- preted as constitutional, his reinstatement to death row when The Gambia reinstated the death penalty in 1995 was not in accordance with ordinary rule of law principles.
Although Darboe’s execution was the most constitutionally problematic of the nine, several others raised additional objections. A word must be said about the mental torture or distress that takes place in the mind of a prisoner as he or she awaits final execution. Courts around the world have recognized that delays longer than several years or demeaning conditions on death row could turn an other- wise constitutional death sentence into a sentence that is cruel, inhumane, and degrading. Four of those executed in August 2012 had been on death row for more than ten years, and six of them for about five years or more. These executions were not in accordance with the emerging international consensus that undue delay on death row becomes cruel and degrading punishment.
Andrew Novak is the Adjunct Professor of African Law at American University, Washington College of Law
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