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HUMAN RIGHTS, HUMAN WRONGS:

feb march west india

 

Leah Alexander of the West India Committee talks about the ongoing issue of the death penalty in the English-speaking Caribbean

As of 2017, more than two-thirds of countries worldwide have abolished the death penalty in law or in practice. European abolition moved with a tour de force in the aftermath of World War II, as nations recoiling at the horrors of fascism sought to safeguard human rights.

In the UK, this was underpinned by a series of miscarriages of justice that began to alter public opinion, and in 1965 the death penalty for murder ceased to exist. However, as one of Britain’s most controversial colonial exports, state-sponsored execution continues to exist as a legal instrument in the arsenal of Caribbean governments to this day. Though the last execution to take place on Caribbean soil was in St Kitts and Nevis in 2008, many prisoners remain in appalling conditions on Death Row.

The Commonwealth Caribbean’s relationship with the death penalty can be traced back to the early days of the British Empire. The British model used throughout her colonies prescribed mandatory death to anyone convicted of murder, and the method of execution was always hanging. Mercy could be granted by the Executive, a Head of State or Governor, however this process took place behind closed doors. Upon independence, Caribbean nations chose to protect this practice from future challenge, enshrining the use of the death penalty within their Constitutions. It could only be deemed unlawful through constitutional reform.

Nevertheless, over the past 25 years, human rights lawyers have sought to manoeuvre these obstacles, challenging the process of imposition rather than the existence of the death penalty itself. The Death Penalty Project, a London-based charity comprised of human rights lawyers specialising in capital cases, has been at the forefront of this movement. Claiming to “never turn down a case,” the Death Penalty Project has worked alongside Caribbean lawyers to provide pro-bono legal assistance to those at risk of execution since 1992. Their appeals to Britain’s Judicial Committee of the Privy Council, then the final Court of Appeal for all criminal cases in the Caribbean, have resulted in landmark decisions that have become a major thorn in the side of government and their capacity to execute.

Developments in Caribbean jurisprudence

Three cases, mounted by the Death Penalty Project and presided over by the Privy Council, have been of particular importance to the development of Caribbean criminal jurisprudence. In the 1994 case of Pratt and Morgan v. Jamaica, the Privy Council ruled that a prisoner could not be held on Death Row for more than five years, as this would constitute “inhuman or degrading punishment,” prohibited within the Jamaican Constitution. The implications of this landmark decision were felt widely across the Caribbean and hundreds of death sentences were commuted to life imprisonment.

The second pivotal case was that of Neville Lewis v. Jamaica in 2001. The Privy Council held that the mercy process, once carried out in private, would now be subject to judicial review. Furthermore, they deemed it unlawful to execute any prisoner who had a petition pending before an international human rights body. The appeals process could take many years, often exceeding the five-year execution window, thus creating a loophole for those held on Death Row.

Ultimately, the watershed moment in Caribbean criminal jurisprudence came in 2002 with the successive cases of Reyes, Hughes and Fox. Here the Privy Council upheld the reasoning of the Eastern Caribbean Court of Appeal that the mandatory imposition of the death penalty for murder was inhuman and thus unconstitutional. Only Barbados and Trinidad and Tobago, whose Constitutions expressly protect the mandatory sentence, could now execute without going through a discretionary process. The regional and high courts in the Caribbean reaffirmed this decision, and drew from India’s and post-apartheid South Africa’s criminal justice systems to outline a sentencing framework where only the ‘worst of the worst’ and those beyond hope of reformation would be put to death.

Political and public opinion

The decisions of the Privy Council, however, have not gone without criticism. Commentators note that the Caribbean is the only remaining part of the historic British Empire to rely on the British court system for appeals, and question the relevance of British judges ruling on distinctly Caribbean issues. To address these concerns, in 2005 the Caribbean Court of Justice was established in Trinidad and Tobago as a regional court for trade disputes, with the additional task of developing local Caribbean criminal jurisprudence. Barbados, Belize, Dominica and Guyana have all elected to replace the Privy Council with the Caribbean Court of Justice as their final Court of Appeal, a transfer of powers encouraged by the Privy Council. The Caribbean Court of Justice has gained credibility for its rigorous decisions and contrary to some expectations, has reaffirmed some of the Privy Council’s most progressive rulings against the imposition of the death penalty. Though support for the Privy Council has waned, there are still some who believe it can continue to provide the necessary checks and balances on Caribbean governments.

Political opinion on the use of capital punishment is divided, and can often become a matter of contention between opposing parties during election cycles. The argument that the death penalty acts as a deterrent remains persuasive and many politicians have claimed high crime rates necessitate a harsh punishment. This persists in spite of an overwhelming amount of research demonstrating a lack of correlation between the death penalty and crime rates.

Public support is similarly contested. Saul Lehrfreund, Co-Executive at the Death Penalty Project, believes support for judicial execution in the Caribbean exists in an abstract sense. When asked outright, participants in research studies recorded popular support for capital punishment, but when confronted with individual cases and offered the choice of a discretionary over mandatory sentence, individuals became surprisingly merciful.

The future of the death penalty

Importantly, events in the Caribbean have had a profound impact on criminal jurisprudence throughout the Commonwealth. Malawi, Uganda and Kenya’s Supreme Courts used the same arguments made in the Reyes case to strike down their mandatory sentences, whilst the Death Penalty Project has used similar reasoning to defend those at risk throughout South-East Asia. The UN General Assembly provide the theoretical framework for this movement, passing four resolutions in the last decade calling upon member states to restrict the use of the death penalty. Nevertheless, a global consensus is far from being reached, and we only have to look to China, the US and several countries in the Middle East to see the extent to which it persists. The UN, therefore, cannot prohibit its use.

It is difficult to find examples where populations have demanded abolition and it has often fallen to those in power to assert courageous leadership to effect change. It is likely this will only happen in the Caribbean once leaders start to see the death penalty as a significant human rights issue. Unfortunately, successive Caribbean governments have shown little commitment to do so, consistently opposing international initiatives targeting abolition, such as the Second Optional Protocol to the International Covenant on Civil and Political Rights. As such, when considering international sanctioning coupled with constitutional protection and the challenges posed by divided domestic opinion, the full abolition of the death penalty in the Caribbean is an unlikely vision for the foreseeable future.

 

Gervase@aumitpartners.co.uk

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