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High Crime Rate Forces Liberia to Reintroduce the Death Penalty and Put International Treaty Obligations aside: What the Critics Missed?

Document Cited authorities 3 Cited in Related
Vincent
DOI10.3366/E0954889009000437
Date01 September 2009
Published date01 September 2009
AuthorJamil Ddamulira Mujuzi
Pages342-354
INTRODUCTION

On 22 July 2008 the Liberian President, Ellen Johnson-Sirleaf, assented to a Bill that amended the 1976 Penal Code by providing that death penalty or life imprisonment without the possibility of parole shall be imposed on an offender who, during the commission of the crimes of terrorism or hijacking or armed robbery, causes the death of his victim. The law also provided that a person convicted of one of the above offences and who raped or attempted to rape his victim or who caused partial or permanent disability to his victim shall be sentenced to life imprisonment with the possibility of release at the age of 90 years old. The death penalty was introduced for the above offences despite of the fact that Liberia ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), Aiming at the Abolition of the Death Penalty,1

Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989. UN Doc.A/RES/44/128, entered into force on 11 July 1991.

the Second Optional Protocol to ICCPR, on 16 September 2005, which specifically obliges States Parties to ‘take all necessary measures to abolish the death penalty within’ their jurisdictions.2

Article 1(2).

 The President's assent to the Bill, as expected, attracted international condemnation from human rights NGOs, from an international law scholar, and from the United Nations human rights bodies. Amnesty International condemned the enactment of the law and ‘called on President Johnson-Sirleaf to repeal the law’ because it ‘directly’ violated Liberia's obligations under the Second Optional Protocol to ICCPR.3

Amnesty International Public Statement, ‘Liberia: Amnesty International Calls for Repeal of Death Penalty Law Signed by Liberian President’, AI Index: AFR 34/009/2008 (25 July 2008), available at http://www.amnesty.org/en/library/asset/AFR34/009/2008/en/e5975c98–5a6d-11dd-9cb0-a35a3c6f2100/afr340092008eng.pdf (accessed 7 October 2008).

 Professor William Schabas, a prolific writer on the death penalty,4

See W. A. Schabas, The Abolition of the Death Penalty in International Law, Cambridge University Press (2002); W. A. Schabas, ‘The United Nations and Abolition of the Death Penalty’, in J. Yorke (ed.), Against the Death Penalty: International Initiatives and Implications, Ashgate Publishing Limited (2008), pp. 9–41.

posted an article on his blog in which he argued that what the Liberian President had done was a violation of Liberia's obligations both under the ICCPR, (Article 6(1)) and the Second Optional Protocol to the ICCPR. He opined that ‘[t]his is the first time any State party to the Second Optional Protocol has attempted to reinstate capital punishment. It is a very serious development that should be immediately condemned’ by the Human Rights Committee, the High Commissioner for Human Rights and the relevant special rapporteurs.5

W. Schabas, ‘Liberian Parliament Attempts to Reinstate Capital Punishment’, 8 August 2008 at http://humanrightsdoctorate.blogspot.com/2008/08/liberian-parliament-attempts-to.html (accessed 7 October 2008).

 The UN Human Rights Committee, the enforcement body of the Second Optional Protocol to the ICCPR, released a press statement in which it said that it was ‘very concerned to learn that … [the Liberian] President … signed into law legislation envisaging the death penalty for a number of crimes.’ In the same statement, the Human Rights Committee added that

The Act signed by the President of Liberia on 22 July 2008 therefore constitutes a clear breach by Liberia of its international legal obligations under the Second Optional Protocol. The Committee urges Liberia to revisit the Act for possible amendment as soon as possible and encourages it, in the meantime, to maintain the moratorium in place since 1979.6

See ‘Rights Panel Concerned by Clear Breach of Law in New Liberia Death Penalty Legislation’ (26 August 2008) available at http://www.unhchr.ch/huricane/huricane.nsf/NewsRoom?OpenFrameSet (accessed 7 October 2008).

 The Analyst, which calls itself ‘Liberia's most analytical newspaper’, wrote that the Liberian President ‘shocked even lawmakers by swiftly signing into law a bill … seeking to make armed robbery, hijacking and terrorism … capital offenses in the Republic of Liberia.’7

See ‘Ellen Pen Seals Robbers’ Fate: But Amnesty International Annoyed’, The Analyst (28 July 2008), available at http://www.analystliberia.com/ellen_pen_seals_robbers_fate_july28_08.html see also http://allafrica.com/stories/200807281571.html (accessed 7 October 2008).

  In defending the relevancy of the law, the President's Office (the Executive Mansion) issued a press statement on 24 July 2008 which stated that

On Tuesday, July 22, 2008, President Ellen Johnson Sirleaf signed into law ‘An Act to amend chapters 14 &15 Sub-Chapter (c), Title 26 of the Liberian Code of Laws Revised,’ known as the New Penal Code Law of 1976, by adding thereto four new sections thereby making the crimes of armed robbery, terrorism and hijacking, respectively, capitol [sic] offences and providing punishment thereof. Section 15.34 (4) of this Act provides that ‘In the event death occurs during the commission of a crime of Armed Robbery, Terrorism or Hijacking, the accused convicted under Sections 14.54, 15.32 and 15.33 of this Act shall be sentenced to death by hanging or imprisonment for life without possibility of parole.’ The President is fully cognizant that Liberia is a signatory to the UN's Second Optional Protocol aiming at the abolition of the death penalty. However, she responded to the appeal of the majority of the people for a robust response to the increasing level of crime involving robberies that include physical assault, rape and murder by robbers who attack innocent citizens. The President is committed to revisiting the Act for possible amendment as soon as the situation is brought fully under control and sustainable peace is assured.8

See ‘Executive Mansion Provides More Details on Rationale of Armed Robbery Bill’ (24 July 2008), available at http://www.emansion.gov.lr/press.php?news_id=798 see also http://allafrica.com/stories/200807250008.html (accessed 7 October 2008).

 The above mentioned critics, in one way or another, rightly highlighted the fact that Liberia's act was in violation of its international law obligations. It is therefore unnecessary to repeat that discussion here. It also shows that some countries ratify human rights treaties for public relations and without the genuine will, desire and commitment to implement the rights enshrined in those treaties. However, it should be underscored, as Amnesty International clearly puts it in its objection to this law that Article 27 of the 1969 Vienna Convention on the Law of Treaties is to the effect that a State may not invoke its domestic law as a justification for its failure to observe its international obligations. The fact that the Liberian President was attempting to address the increasing violent crime rate could not be a justification for assenting to a Bill that aimed at defeating the core aim and purpose of the Second Optional Protocol to the ICCPR. The purpose of this Article is to argue that there are three important points that all the critics mentioned above ignored: one, the human rights implications of a sentence of life imprisonment without the possibility of parole; two, the human rights implications of a sentence of life imprisonment where the prisoners will only be released after reaching the age of 90 years old; and, three, the critics chose not to advise Liberia that it could withdraw from the Optional Protocol, though this would be insurmountable move. The article will outline Liberia's obligations under the Second Optional Protocol to the ICCPR followed by the controversial provisions and then a discussion of the three important issues that all the above critics did not point out will follow THE SECOND OPTIONAL PROTOCOL TO THE ICCPR

The Second Optional Protocol to the ICCPR had a long and heated drafting history.9

Schabas, supra note 4, pp. 155–87.

It is founded on the belief that the ‘abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights’10

Preamble paragraph 1.

 and recalls Articles 3 of the Universal Declaration of Human Rights11

Article 3 of the Universal Declaration of Human Rights provides that ‘[E]very one has the right to life, liberty and security of person.’

 and 6 of the ICCPR.12

Article 6 of the ICCPR provides that:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

 … 

Any one sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any State Party to the present Covenant.

 States Parties are desirous to ‘undertake … an international commitment to abolish the death penalty.’13

Preamble paragraph 4.

 It obliges a State Party to ensure...

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