Here we are again, clamouring for the death penalty as if it is a crime-fighting solution as opposed to a punishment. Resort to demands for executions shows mob mentality and a lack of actual, real solutions to tackling the rise in crime.
Pratt & Morgan v The Attorney General of Jamaica, decided that keeping a convicted murderer on death row for five years without carrying out the death sentence was inhumane and degrading and therefore unconstitutional. Even condemned prisoners are entitled to fundamental rights and freedoms. We still can’t manage to complete the entire appellate process in five years – and I suspect we have given up trying.
Boyce v Joseph, CCJ Appeal No. CV2 of 2006, decided that the death penalty was a perfectly constitutional approach to punishment but that Barbados could not execute condemned prisoners while appeals to international human rights bodies were pending, even though those rights of appeal had not been incorporated into the domestic law by an Act of Parliament.
We sign up for all kinds of treaties, but no one has thought to establish some legislative change to the rule in Pratt & Morgan. So when you add international tribunals to the hierarchy and those international tribunals are decidedly against executing prisoners, you end up with a populace clamouring for something they just simply will never be able to get.
On November 5, 1981, Barbados ratified the American Convention on Human Rights, Article 4 of which discourages use of the death penalty. The Inter-American Court of Human Rights (IACHR) has stated that “without going so far as to abolish the death penalty, the Convention imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty and to bring about its gradual disappearance.”
In the Boyce & Joseph appeal to the IACHR, it was found that the mandatory death sentence imposed on all those convicted of murder in Barbados violates the right to life, as it is arbitrary and fails to limit the application of the death penalty to the most serious crimes.
Our Government has undertaken to abolish the mandatory aspect of the death penalty and will repeal the Savings Law Clause contained in Section 26 of the Constitution, which underpins the constitutionality of the death penalty in our Westminster constitutions.
Nearly a decade has passed since this undertaking and we still have seen no legislative changes outlining varying categories of murder with the associated penalties. Think about what you see on TV, for example, with first-, second- and third-degree murder. Instead, all we continue to get is a lot of long talk from politicians and an attempt to lie by omission. Not one of them has taken the time to explain to the public the depth of our international commitments on this issue and that, realistically speaking, we are probably never going to see a hanging again.
Given the vagaries of our court system, the manner in which crimes are investigated and all the other fallibilities of humans, I personally am not uncomfortable with the cessation of executions.
We were at one point allowing all manner of persons who had been charged with murder to plead guilty to the lesser count of manslaughter, thereby circumventing the death penalty provisions and the Constitution (Amendment) Act 2002. No one is allowed to plead guilty to murder, since that means you should automatically die (and only a madman would do that), but there should be a trial as opposed to allowing obvious murderers to plead to a lesser offence and, at some point in the future, walk amongst us. We should, however, wait and see the approach of the new Director of Public Prosecutions to this issue.