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Capital punishment for capital crime: Is it worth-sustaining in our Criminal Code?

The right to life is the most precious and glorious natural right at the top of all human rights and fundamental freedoms duly protected and applauded by positive law, (both municipal and international). Hence, there is no wonder if any minor infringement upon this very right would eventuate in a heavy price when it comes to a criminal law provision sanctioning such an undesired interference.

Nevertheless, this is not an unconditional virtue to be appreciated and enjoyed by all people at all times and in all places at the expense of the collective good. In other words, it does not mean that all societies and their respective governments remain blindly and submissively loyal to the sanctity of this supreme ideal in front of the most irritating crimes perpetrated by individual and multiple offenders in exceptional settings.

As can easily be gathered from the exploratory overview of the various national legislations comparable to the Ethiopian Criminal Code effective as of 2005, the long-running series of punishments imposed on a criminal offender following the handout of a guilty verdict by a competent court include capital punishment, life imprisonment, any other jail term, (be it rigorous or simple), forfeiture or confiscation of property and fine in order of their priorities. Undoubtedly, the list indicated hereof is spearheaded by death penalty otherwise known as ‘capital punishment’ in the friendlier-looking sense of the term.

Death penalty, or “capital punishment”, (if one is obsessed with its modest expression), is the planned execution of an individual culprit or a group thereof by a government or ruling authority in response to a serious crime. It is considered to be the just punishment for a person or persons legally convicted of an action which is deemed a formidable threat to safety of the society in question.

Technically, the term ‘capital punishment’ denotes the most severe form of penalty resulting in the ultimate deprivation of life imposed on an unwanted culprit having been convicted of a serious crime such as murder or manslaughter or any other abominable offense grievously injurious to the societal interest by a competent court of law having material jurisdiction over the subject. Obviously, it provides for an infamous and excruciating punishment of an utmost gravity which distinguishes itself in the merciless taking of life of the accused in return for his wrongful act causing an extra ordinary harm to the society and the state to which he or she belongs.

What early laws governing death penalty looked like

Condemning and putting individual human beings to death by way of penalizing them for having committed or sponsored the commission of culpable crimes is as old as the existence of humanity itself. It appears to have been practiced since time immemorial and even accepted unquestionably, more or less, at the global level.

According to the Michigan State University’s Death Penalty Information Center (2006), “The first established death penalty laws date as far back as the Eighteenth Century BC in the Code of King Hammurabi in Babylon which is noted to have codified the death penalty for 25 different crimes”.

The pioneering records of the same source also remind us that “death penalty was part of the Fourteenth Century BC's Hittite Code, the Seventh Century BC's Draconian Code of Athens which made death the only punishment for all crimes and the Fifth Century BC's Roman Law of the Twelve Tablets”.

As far as the prior and rudimentary methods of its implementation are concerned, “death sentences set to translate into capital punishment were carried out by such means as beheading, crucifixion, boiling, drowning, beating to death, burning alive and impalement”. Also “hanging used to be another familiar method of executing the convict which had to be resorted to, around the tenth century AD. In the 17th century Britain, executions were particularly carried out in relation to such a vast number of capital offences as “marrying a Jew, failing to confess to a crime at the time of interrogation and treason, stealing, cutting down a tree and robbing a rabbit warren”.

For no logic other than the former colonizing the latter, Great Britain managed to impact upon the United States’ subsequent use of the death penalty more than any other country did. To that effect, “when European settlers came to the ‘new world’, they brought the practice of capital punishment” with them into the region discovered afresh.

The first ever recorded execution in those new colonies which were by then evolving into the United States of America was that of “Captain George Kendall in the Jamestown colony of Virginia in 1608. Kendall is said to have been executed for being a spy for Spain”.

Lingering debates on the pros and cons of capital punishment

The presumed risk of any penalty is the cost of a crime or wrongful act of the like manner which the offender in question has to pay; when the extent of the resultant suffering to be sustained is high as compared to the benefit which the crime he may have committed is anticipated to yield, it will probably be instrumental to somewhat deter a considerable number of potential wrongdoers far and wide.

That said, though, there arises a critical question as to whether a State as a supreme authority with a monopoly of force has, in the first place, the legitimate right to take away the life of a person found to be guilty of a serious crime, no matter how much he or she crosses the red line limits and restrictions prescribed by the criminal law on behalf of the society.

Should we go deeper into history, we are not that short of passionate people on both sides of this lingering debate throughout the ages. In view of this resource, far too many proponents of the death penalty argue that a sentence of life imprisonment would, by no means, be considered proportionate to the capital crime committed by the perpetrator and death penalty may, instead, be able to provide for a deterrent against any other similar moves in the future.

The core impression of these protagonists is that capital punishment creates an irreversible deterrent that the culprit in question will never have another opportunity whatsoever to take life or repeat the commission of similar criminal offence once again. Consequently, it may serve as a convenient form of incapacitation that would help to protect the society in question by preventing future crime in this manner.

Should one adhere to this preposition, therefore, “Capital punishment is likely to deter more than other punishments because people fear death more than anything else,” said Ernest van den Haag, Professor of Jurisprudence at Fordham University. According to him, “people normally fear most death deliberately inflicted by law and scheduled by the courts. Whatever people fear most is likely to deter them the most.”

Last, but not least, promoters of this conservative view would like to solidify their position by further arguing that the continued application of capital punishment in just ways can also limit prison overpopulation which seems to be out of the reach of standardized services at the moment.

On the contrary, opponents of this rather harsh measure of eliminating the convict vehemently counter-argue that death penalty stands for an ultimate denial of the most fundamental human right to life which should not be resorted to by all possible means. In the first place, there might be the possibility of wrongly executing someone who is pretty innocent under certain circumstances. Apart from the fact that the cost of prosecuting the death penalty is much higher than other cases, there may not be any deterrence to crime with the death penalty in place as is quite often disputed by the competing view.

In fact, there are some odd individuals who will always decide to operate outside the legal regime that society prescribes for the sake of collective safety and public security. Such are criminals that frequent into and out of prison time and again until they end up being incarcerated and spending their productive life in jail. Obviously, death penalty is not going to stop someone from hurting another person in this situation because the criminal is living for the thrill of the moment instead of thinking about his/her future consequences.

Worse, there is no going back once an execution of the human being has taken place regardless of its judicial endorsement. Not only that, the evidence obtained to formally justify the proposed penalty may, at times, be tainted and there follows a recurring tendency to misuse or wrongly utilize such an erroneous evidence in a rather biased and discriminatory manner.

Historically, it has been argued for long that if an individual willfully does a wrongful act or has brought a serious loss to the society due to his anti-social behavior, his life deserves to be forfeited. From about the 19th century onwards, though, eminent personalities have come to take a differing view on this rather divisive and thorny issue. Mahatma Gandhi, for instance, happened to say that “I cannot in all conscience agree to anyone being sent to the gallows. God alone can take life because he alone gives it”.

Although both the abolitionist and retentionist camps have been engaged in polarized debates either to eliminate the gruesome penalty altogether or at least suspend its outright implementation through an official moratorium on the judicial execution of their awaiting death row prisoners, nowadays,  a measure of consensus seems to have been built up and transpired  across the global community that the use of the death penalty would derail the inherent dignity and worth of the human person in its worst expression. Thus, a moratorium on its use is being issued by a dozen of countries to enhance the progressive development of Human Rights as one cannot, in any way, reach a conclusive evidence that the death penalty's deterrent value and that any miscarriage or failure of justice in the implementation of such penalty is irreversible and irreparable by its nature.

My prime mover to the pressing issue

I have to underscore at this stage on the revelation of a startling family exchange of views on the matter; I was primarily provoked to write this opinion piece on the crucial subject by my own daughter who is currently living in Germany. Having been fascinated and inspired by the determination of the former Federal Republic of Germany to scrap off capital punishment from its criminal book way back in 1949.

Truly, Art. 102 of the Basic Law of Germany promulgated on May 23 1949 and last amended on July 13 2017 officially abolishes capital punishment to be imposed and implemented on any criminal offense in the same manner as the constitutions of most of the European nations do.

My curious daughter, Bereket was tempted to have this formidable and symbolic position imported into her home country, Ethiopia without delay. During our lengthy telephone conversation from Europe we had conducted in one fine evening, she was quite critical as to why Ethiopia has lagged even behind many African fellow nations to take this legislative innovation and strongly challenged me as to why we had to maintain death penalty as a form of punishment to this date.

Admittedly, a quick scan of the international platforms on this regard reveals that the long-established and repressive policy to terminate life in return for a serious criminal act which had been pursued by several jurisdictions is now being discarded nearing elimination in all corners of our planet. According to the Amnesty International’s 2018 report on the subject, “at the end of the year, up to 106 countries had abolished the death penalty in their national legislations for all crimes and 142 countries had abolished it in law or practice. Only 56 of them still retain capital punishment as a preferred mode of possible deterrence.

From the standpoint of the scope of its application, 106 countries have completely abolished it de jure for all crimes.  Still 8 countries have abolished it for ordinary crimes (while maintaining it operational in view of exceptional circumstances such as war crimes). “28 of them are abolitionist in practice”.

The ambivalent Ethiopian approach

Ethiopia does not yet seem to have developed a full appetite to revoke capital punishment from the administration of its criminal justice system which has operated for more than 8 decades now. Not only its pioneering 1930 and the succeeding 1957 Penal codes, but also the country’s contemporary Criminal Code lately revised and enacted in 2005 have maintained death penalty to be still imposed in view of several offenses such as pre-meditated homicide, aggravated robbery, treason, terrorism-related crimes etc., not to also mention military offences.

Even the Federal Constitution of 1995 which stipulates under Art. 14 and 15 that “every person has the inviolable and inalienable right to life”, the constitutional text did not shy away from perpetuating capital punishment by proclaiming that “a person may still be deprived of his precious life for a serious criminal offence to be determined by a court of law”.

As far as its actual implementation is concerned, however, the value of this life-threatening punishment has come to lose its relevance in due course. It should be noted that the country has not enforced capital punishment for 22 years now. The last known death sentence which turned into an execution was that of a high-ranking military officer convicted Kinfe Gebremedhin, the then Spy Chief of the nation which took place in 2007. Before that, the last recorded execution in Ethiopia was carried out in 1998, when a businessman was executed for having murdered a prominent war general.

It must be with the preliminary observation of this fascinating record of dwindling interest in the use of judicial execution in spite of maintaining death sentences in mind that The Cornell University Center on the Death Penalty has been emboldened to designate the Federal Democratic Republic of Ethiopia as a ‘de facto abolitionist as the country has never practiced it since then. Yet, this unilateral inaction alone does, by no means, exonerate the country from being publicly criticized and embarrassed for its longstanding and conservative position in the light of the global progress towards the complete abolition of capital punishment.

On one hand, the country has signed up and formally acceded to the 1966 International Covenant on Civil and Political Rights, (ICCPR), as one of the staunch champions for the unprecedented promotion and protection of human rights and fundamental freedoms, including the right to life throughout its jurisdiction. Ironically, though, let it be known that it still refuses no to the formal signature and ratification of the 1989 2nd Optional Protocol to the said covenant Aiming at the Abolition of the Death Penalty, to which even the little neighboring Republic of Djibouti has been a party, following the latter’s birth as an independent nation.

On top of this, Democratic Ethiopia did not shy away to become one of the 35 countries which had voted against the approval of the 7th Resolution No. 73/175 of the Moratorium on the Use of the Death Penalty although it was passed having been supported by 121 member states at the UN General Assembly on December 17 2018.

As a matter of principle, judicial execution doesn’t need to be carried out in a cruel, degrading and brutal manner. At various points in history, though, the death penalty was carried out by beheading, stoning, crucifixion, electrocution, shooting or hanging as has been elaborated earlier in this text.

Saudi Arabia still carries out sword-based executions, while India, Japan, and Singapore use hanging. The People’s Republic of China, on its part, uses a single shot to the back of the head, while Indonesia uses a firing squad.

When it comes to the real implementation of capital punishment here in Ethiopia, Art. 117 Sub.-Art. (3) of our existing criminal code bars public hanging and any other cruel and inhuman methods of execution, but leaves such a method to be determined by the executive body responsible for the administration of the federal or regional prisons where the intended execution is to be carried out. Although shooting has come to be the common method of execution, the law mandates that only members of the military are to be executed by firing squad.

Ethiopia’s position with regard to the long-lasting tolerance and preservation of capital punishment is rather shaky and questionable from the standpoint of its place in international law. The fact that the country did not practice judicial execution for the last two decades alone does not provide for a reliable guarantee that it may not be used at all, any time in the future, as deemed necessary.

Moreover, its official commitment to the mainstream international human rights’ instruments, including the ICCPR obliges the country to join the community of civilized nations which, in the majority, have adhered to the 2nd Optional Protocol to the ICCPR and thereby revise its domestic legislations with particular emphasis on the 2005 Criminal Code, so that they would become harmonious or compatible with its international obligations.

In my opinion, Art. 15 of the Federal Constitution cannot pose a formidable predicament in the advancement of the proposed elimination of capital punishment in the wake of its overall revision or substitution by a new one in the near future. On top of this, the above-cited constitutional provision rather preserves death penalty in a reluctant manner only to be resorted to in an anticipation of exceptional instances. As Kiya Tsegaye has pointed out in his opinion piece published in Addis Standard on March 1, 2012, “having a death penalty embedded in the constitution is not a substitute for its actual implementation” on the ground.

Thus, my renewed contention is that the prevailing context in itself would make it pretty easy to abolish capital punishment and say farewell to the ‘legal evil’ of judicial execution for good with little or no obstacle in the way forward. Nothing can be gained or accomplished by keeping it entrenched in our domestic criminal legislations short of actual implementation in practice, for which we are instead criticized and embarrassed for an uncivilized attitude in the eyes of the global community due to our frequent designation as a retentionist state and society paying little or no attention to the inviolable dignity and worth of the human person.

Ed.’s Note:  Merhatsidk Mekonnen Abayneh is a senior expert in law as well as peace and security studies. He is serving in the capacity of a Chief Legal Advisor to the President of the Amhara Regional State. The views expressed in this article do not necessarily reflect the views of The Reporter. He can be reached at [email protected].

Contributed by Merhatsidk Mekonnen Abayneh