THE COMPATIBLITY OF CAPITAL PUNISHMENT WITH

HUMAN RIGHT PROVISIONS; WITH PARTICULAR

REFERENCE TO ETHIOPIA

SUBMITTED BY:

Tarekegn Alemayehu

ADVISOR:

Tewodros Alefe

Submitted in Partial Fulfillment of The Requirements For the

Degree of Bachelor of Laws (LLB) At the Faculty of Law,

Mekelle University

June 2009

1

Mekelle,

Ethiopia

TABLE OF CONTENTS

Page

ACKNOLEDGEMNT---------------------------------------------------------------------

INTRODUCTION-------------------------------------------------------------------------

CHAPTER ONE---------------------------------------------------------------------------

GENERAL IDEA OF PUNISHMENT AND CAPITAL PUNISHMENT--------

PUNISHMENT IN GENERAL---------------------------------------------------------

Justification of Punishment--------------------------------------------------------------

Theory of Punishment--------------------------------------------------------------------

CAPITAL PUNISHMENT--------------------------------------------------------------

Definition of Capital punishment-------------------------------------------------------

History of Capital Punishment----------------------------------------------------------

Methods and Modes of executing Capital Punishment------------------------------

Arguments on Capital Punishment-----------------------------------------------------

Religious Views Towards Capital Punishment---------------------------------------

CHAPTER TWO-------------------------------------------------------------------------

INTERNATIONAL MOVEMENTS OF ABOLISHING CAPITAL

PUNISHMENT---------------------------------------------------------------------------

The United Nations-----------------------------------------------------------------------

European Union---------------------------------------------------------------------------

Inter-American State Organization Movement---------------------------------------

The Abolition Movement in Africa----------------------------------------------------

Abolition Movement in Ethiopia-------------------------------------------------------

Capital Punishment in Ethiopian Context---------------------------------------------

The Period Before Fetha Negest--------------------------------------------------------

The period from Fetha Negest to 1930 Ethiopian penal code-----------------------

Death Penalty under the 1930 Penal Code of Ethiopia-------------------------------

The period from 1957 to the period of 1974-------------------------------------------

2

The period from 1974 to the period of 2004-------------------------------------------

The period after the FDRE criminal code---------------------------------------------

CHAPTER THREE----------------------------------------------------------------------

THE COMATIBILITY OF DEATH PENALTY WITH HUMAN RIGHTS

AND ETHIOPIAN CRIMINAL JUSTICE------------------------------------------

Human Right and Power of State to Punish-----------------------------------------

Death Penalty and Human Rights-----------------------------------------------------

Right to Life and Death Penalty-------------------------------------------------------

Freedom of Torture and Death Penalty-----------------------------------------------

The Deterrent Effect of Capital Punishment-----------------------------------------

Problems of Executing Capital Punishment------------------------------------------

Conclusion--------------------------------------------------------------------------------

Recommendation------------------------------------------------------------------------

Bibliography-------------------------------------------------------------------------------------

3

CHAPTER ONE

GENERAL IDEA OF PUNISHMENT AND CAPITAL

PUNISHMENT

1.1Punishment In General

Punishment is necessary to protect peace and security of the society. When there is a

crime there is also a punishment. In order to protect the peace and security of the

community, every society has its own institution of punishment. Punishment

distinguishes criminal law from all other types of law. It is a shield that protects society

from the harm within itself.

Punishment may effective in reducing or eliminating undesirable behavior. Punishment

is the reaction of society against the person who breaches the social order.1Every right

has a limit. The social contract provides individuals with freedom of action with a

certain limit. When one act beyond the provided limit, that is prohibited by law and

hence made criminal. The possessor of the right should act within a limit of his right.

Otherwise when the possessor of the right act beyond the limit set in his favor he begins

to threaten others right and that may cause full of chaos.2 In order to guarantee these

rules are respected and to keep the security of society the state applies punishment to

those persons who transgress the limit and commit criminal acts. Different scholars

forwarded different definition for punishment.

1 Encyclopedia Britannica, 1986, 8022 . Ibid

4

H.L.A. Hart (1968) proposed that a punishment must include the

following:3

1. It must involve pain or other consequences normally

considered unpleasant.

1. It must be for an offense against legal rule.

2. It must be of an actual or supposed offender for his

offense

3. Human beings other than the offender must intentionally

administer it.

4. It must be imposed and administered by an authority

constituted by a legal system against which the offence is committed.

Many definitions of punishment forwarded by different scholars or legal writer’s center

on these characteristics provided above by H.L.A. Hart. Therefore, to attain the status of

legal punishment, a penalty must satisfy all these elements cumulatively. If it does not

have one of these features, it ceases to be a legal punishment.

Punishment is one species of large family of measures involving intentional

deprivations of persons normally recognized rights by official institutions using

coercive means if necessary.4Apart from punishment there is also more rudimentary rule

regulated practices with in the groups such as family, school, or customary society,

which apply sanctions in case of breach of rules. These practices, however, not fulfill

the standard of a silent feature of law; legislations, organized sanctions, courts, etc. that

H.L.A. Hart proposed as a standardized definition of punishment.

Not long ago, corporal punishment was widely approved. Parents and teachers were told

“to spare the road is to spoil the child”5. Both educational and legal systems depended

upon punishment. Punishment now has fallen into some disfavor. For example physical

punishment is seldom used in schools, or with family. But what one approved as

3 Thomas W.Simon, Law and Philosophy: An Introduction With Readings, 2001, 4514 Supra note 1, 8095 Encyclopedia of Psychology, 1984, vol.3, 193

5

punishment may be considered as “a child abuse” or “spouse abuse”.6 The ultimate

punishment, capital punishment, is one part of punishment and today it is extremely

rare. But due to public attitude towards disfavor regarding some types of potential

punishment it is still pervasive in the world today.

1.1.1 Justification of Punishment

Regarding justification of punishment scholars are not of the same opinion. They

provide different reasons why we use punishment. There are many possible reasons that

might be given to justify or explain why someone ought to be punished. Depending on

its cultural, moral, and religious attitudes different societies have different outlook as to

why criminals must be punished. Based on these differences, people have different

purposes for punishing criminals.

1. Retributive Theory

According to this theory punishment is interested in correcting past wrongs. It looks

backward to the crime and asks what justice requires correcting the past wrong.7It looks

towards the original offense and seeks to punish the offender proportionately. This

theory which, is the most stringent and harsh of all other theories, believes to end the

crime itself. This type of justification for punishment is the oldest of others.

The Golden Rule states “Do unto others as you would have others do unto you”. Law

enforcement seems to have its own version on the Golden Rule, which translated as “Do

unto others as they have not done to you”.8 According to retributive theory punishment

applied simply in proportion to the seriousness of the offense. When a judge sentences

for the purposes of retribution, punishment is simply applied in proportion to the

seriousness of the offense. The “eye for an eye” system of justice described in the Old

6 ibid7 Supra note 38 Ibid

6

Testament is an early form of retribution.9 It maintains that punishment is justified

because it gives wrongdoers what they deserve. The suffering of wrongdoer is seen as

good in itself, even if it has no other benefit.

According to the retributivist theory, the more serious the crime the more serious the

punishment should be. It underlies the idea of vengeance and revenge rather than that of

social welfare and security. Therefore, the retributive theory is an objective of

sentencing has no effort to change the offender and provide nothing to the society

except a form of revenge. Since those men have done a wrong they must suffer for it.

The proponents of this theory say that our sense of moral rightness demands

punishment.10

A retributive theory basically relies on principle of fairness, justice, and equity and it

refrains from being discriminatory or vindictive in its sentencing approach.11That means

generally, although sentences might be severe and more frequent, the retributive theory

suggests that they would be fairer and would impose punishment on those who deserve

it.

Retributive theory implies punishment on offences irrespective of its deterring effect on

others. That means punishment should be imposed on the criminals not only to deter

others from committing same crime but it should be imposed because the offenders

deserve it. However, some argued that this is a “zero sum game” that such acts of street

justice blood revenge are not removed from society, but responsibility for carrying them

out is merely transferred to the state.12

Generally, retribution sets an important standard of punishment on the offender. The

transgressor must get what he deserves, but no more. Therefore, a thief put to death is

not retribution, because it is more than the act of the wrongdoer; but a murder to put

9 Ibid10 Patric R. Anderson and Donald J. Newman, Introduction to Criminal justice, 5th ed (1993), 28611 Joseph J. Senna, Larry J. Siegel, Introduction to Criminal Justice, 4th ed (1987) 40212 Justification for capital punishments,

http://www.justiceblind.com/death/dpsupport.html

7

death is.13 Those all leads us to conclude the principle of “an eye for an eye, a tooth for

a tooth …a life for a life” has a deterrent effect.

2. Deterrence Theory

This theory aims to prevent crime through the example of offenders being punished.

That is, it looks forward to the prevention of future crimes. It is to act as a measure of

prevention of future crimes. It is to act as a measure of prevention to those who are

contemplating criminal activity.14 According to these theories; punishment should not

be designed to exact retribution on convicted offenders but to deter the commission of

the future offences.

In the ancient history of punishment all things was deterrent, and the chief end of the

law of crime was to make the evil-doer example and a warning to all that like minded

with him.15 The argument is that persons seeing and knowing that others are punished

for committing crimes will be deterred from committing such offences by themselves.

Deterrent theorists distinguish the effect of punishment as a general deterrent and its

effect is a special deterrent. Punishment acts as a general deterrent insofar as the threat

of punishment deters potential offenders in the general community and it acts as a

specific deterrent insofar as the infliction of the punishment on convicted defendants

leaves them less likely to engage in the crime.16 General deterrence is directed at

preventing crime among general population, while special deterrence is aimed at

13 Ibid14 . Jay S. Albanese, Criminal Justice, 2001, 31515. Stephen A. Saltisburg, John L. Diamond, Kit Kinports, Thomas H. Moravets, Criminal

Law: Cases and Materials, 1994, 110

16 . Sanford H. Kadish, Stephen J. Schulhoter, Criminal Law and Its Process, (6ed, 1995),

115

8

preventing future crimes by particular offender.17 The basic reasoning behind general

deterrence is impeccable. One can easily understand that persons are deterred from

actions likely to have painful consequences. Generally the basic idea of deterrence is to

deter both offenders and others from committing a similar offense.

3. Incapacitation and Special Deterrence

Incapacitation refers to the believe that dangerous criminal offenders should be locked

away for a long period of time but special deterrence refers to the concept that the pains

of their imprisonment should be so severe that on release convicted offenders will not

dare to repeat their criminal act.18 This theory believes on the absence of dangerous

peoples to minimize or totally void crime. At the heart of both incapacitation and the

special deterrent the concept is the believe that a small number of people commit a great

number of criminal offenses and that if they put out of circulation, their absence will

have a significant role on the crime rate.19However, there are various researches that

invalidate the above logic.

Generally if people who have directly experienced punishment for something they did

in the past refrain from future criminal activity because of the fear of being punished

again, that is specific deterrence and if people who have not experienced punishment

themselves but are deterred from crime by the fear that they might get the same

punishment experienced by others it is known as general deterrence. When the judge

hands down a sentence and tells the offender, “this ought to make you think twice next

time,” the judge is thinking of a penalty as a specific deterrent; and if the judge says, “I

intend to make an example of you,” the penalty’s general deterrent value is being

emphasized.20

4. Rehabilitation and Reformation Theory

17 . Supra note 18, 31618 Supra note 16, 5819 Ibid20Hugo D. Barlow, David Kauzlarich, Introduction to Criminology, 8th ed, 2002, 215

9

Traditionally rehabilitation and reformation were used interchangeably to express the

same thing but it is not correct. Reform is direct consequence of punishment, whereas

rehabilitation is an alteration of an offender’s behavior by non-punitive means so that

he/she no longer violates laws.21It is generally expected that the criminal justice process

will somehow reform or rehabilitate those caught up in it, or at least will not make them

worse. It is recognized that virtually all persons who are processed, even those

convicted and sentenced to life imprisonment, will eventually return to the

community.22

This theory is the leading and the dominant feature in the most modern legal

punishment. The theory rests upon the believe that human behavior is the product of

antecedent causes, that these causes can be identified and that on the basis of therapeutic

measures can be employed to effect changes in the behavior of persons treated.

This approach sees criminal behavior as a consequence of social order or psychological

shortcomings. The purpose of sentence, then, is to correct or threat these shortcomings

in order to prevent future crimes.23It is impossible to divorce individual from the

community. Because individual is also one part of the community. This theory is the

most recent and most humane theory, of all theories raised above. It is based its

foundation on the principle of reforming legal offenders through individual treatment.

This theory presumes that it is proper to sentence an offender based on the likelihood of

reform in the future rather than in the criminal conduct already committed.24It held to

make the offender good to rehabilitate or to change the mind of the offender through

counseling, education and training.

21 . Ibid 214

22 . La Fave Wayne R and Austin W. Scttim, Criminal Law, 1982, 12

23. Supra note 14, 3624. Ibid

10

The rehabilitation philosophy holds that people are at the mercy of social, economic,

and interpersonal conditions and interactions. Criminals themselves are the victim of

racism, poverty, family disorganization, and other social problems. Therefore, it is the

societies duty to help them compensate for their societal produced personal problems.25

There is a view, hold most prominently, but by no means exclusively by persons in

psychiatry, that we ought never punish persons who break the law and that we ought

instead to do something much more like what we do when we treat someone who has a

disease. According to this view, what we ought to do to all such persons is to do our

best to bring it about that they can and will function in a satisfactory way with in

society. The society has an obligation to show the criminal that he/she is not rejected or

detested by the community that he/she is not considered as the enemy of the community

and the community understands his misfortune that derives him to this evil. The

functional equivalent to the treatment of a disease is the rehabilitation of an offender,

and it is rehabilitative system, not punishment system.26

Rehabilitation theory is the philosophy that society is best served when wrongdoers are

not simply punished, but provided the resources needed to eliminate (avoid) criminality

from their behavioral patterns.27It suggests that criminals can be treated and possibly

even cured of their proclivities or tendency toward a crime.

Since the root of a crime is embedded in a complex array of phenomena, economic,

social, and cultural in nature the concern should be in identifying the problem and

afford the appropriate treatment. A man may be restrained from particular act of crime

on a particular occasion but the criminal nature in him is not touched, the criminal

instincts are extirpated and they will bloom again in some other deed of crime. Truly,

unless the punishment has the effect on character, unless education is regarded as an

essential concomitant of punishment, the can be no hope of making punishment useful.

We must realize that it is the criminality of human being not the humanity that must be

uprooted.

25 . Supra note 11, 1326 . Supra note 3, 46827 . Larry K. Gaines and Roger LeRoy Miller, Criminal Justice In Action, 2006, 259

11

It is far cheaper and more efficient and humane to help young offenders become

established in the community than to punish them with a prison sentence and lock them

in to a life of crime.28 Rehabilitation theory emphasized on the criminal offender and

focused on correcting them.

These mentioned above are only few among strongest justifications of punishment.

There also other justifications like education and incapacitation. But it is worth

considering here that none of them exclude the others completely, rather they

interrelated to each other. And the most effective punishment is the one that holds most

of these justifications harmoniously.

1.1.2 Theory of punishment

The term punishment connotes a moral dimension of responsibility and blame. It is not

like responding to one force of nature by creating a counter-force. Such a simple

mechanistic will not do. It needs beyond such mechanism. Punishing a person is not like

a disciplining dog for tailing to heel-rather, punishment sends two important messages:

that the society holds the actor responsible and blame worthy for her conduct, and that

moral condemnation by the community, with whatever stigma is attached, is

appropriate.29

Punishment and offences share some common denominator in that both involve the

infliction of pain or suffering to the victim. However there is a big difference between

the two. Jeremy Bentham describes these dissimilarities as follows.30

The catalog of punishment is the same with that of offences. The same

evil done by the authority of law, will constitute a punishment or an

offense. This offense is the enemy of all and punishment is the common

28. Supra note 11, 1329 . Supra note, 12, 9930 . Richard C. Monk, Taking Sides, Crime and Punishment, 5th ed (1998), 216

12

protector. Offense for the individual of a single person produces a

universal evil, punishment by suffering of individual produces a general

good….

Having this nature, in order to achieve its pursuit, punishment should be effective. An

effective punishment is guaranteed when the punishment is just and equitable.

Therefore, punishment, as much as possible seeks to bring the complete public

protection at the same time avoiding the infliction of needless suffering on the offender.

When I say just and equitable punishment, I want to say attention should be paid not

only to the interest and need of the collectivity but also the offender and the victim as

well.

1.2. CAPITAL PUNISHMENT

“The death penalty is our harshest punishment. It is irrevocable; it ends the

existence of those punished, instead of temporarily imprisoning them. Further,

although not intended to cause physical pain, execution is the only corporal

punishment still applied to adults. These singular characteristics contribute to

the perennial, impassioned controversy about punishment.”31

1.2.1 Definition of Capital Punishment

It has been a tradition for a lawyer to start dealing with a subject after defining the

scope their subjects in order to avoid various interpretations of the subject itself. As the

saying goes “a well started problem is a half solved problem” I am going to use capital

punishment as a meaning “killing of a person by a judicial process or the lawful

infliction of death as a punishment.” Death penalty is used to punish wrongdoers for

certain crimes. In this paper capital punishment, death penalty, and ultimate punishment

are used to express the same thing.

31. Ibid

13

1.2.2 History of Capital punishment

The exact date of origin of capital punishment is not known. But there is a view that the

authorized taking of human life must be as old as mankind. In the form of human

sacrifice, this taking reflects a believe in the sanction of life; in the form of punishment,

it forces us to confront our baser selves.32

It has been found very difficult, or more accurately impossible for scholars and students

of law interested in the history of capital punishment as to how, when, where, upon

whom and by whom it exactly inflicted at first. There is no clear evidence as to the first

use of capital punishment. As to Holy Bible, as it is clearly expressed in Genesis Art.4,

the first murderer ‘Cain’ was not sentenced to death. From the close reading of the verse

of this Bible, Abel’s death at the hands of his brother Cain, didn’t gave raise to capital

punishment. This is because Cain’s punishment was banishment instead of death. But

although Cain was not sentenced to death for murder, the Old Testament makes

reference stating that “whosoever sheds the blood of man, by man shall his blood be

shed.”33 But one thing is true that the Old Testament was ineffective when Cain

committed a murder. The Law of Moses comes be effective sometimes after the death

of Abel.

The first recognized death penalty laws date back to the eighteenth century B.C. and can

be found in the code of king Hammurabi of Babylon in which death penalty was

prescribed for over twenty different offenses.34 This is very similar with the ordinance

of Bible mentioned above, in which both demands “an eye-for-eye” punishment.

32 Peter Newman, The New Palgrave Dictionary of Economics and Law, 1998, vol.1, 201.

33. Holy Bible, Genesis 9:6

34 http://criminal.findlaw.com/crimes/more-criminal=topics-punishment/history-of- death penalty-laws.html

14

Death penalty is also part of Hittite code in the fourteenth century B.C. The Draconian

code of Athens, in the seventeenth century BC, made death the lone punishment for all

crimes.35In the fifteenth century BC, the Roman law of Twelve Tables also contained

the death penalty. Generally the ancient civilization and Middle East had the death

penalty in their codes. Historically many different crimes were deemed to be capital

offences by civil and religious authorities of the day. Offences like murder, treason,

arson and rape were widely employed in ancient Greece by the death punishment under

the laws of Draco (fl.7th century BC) and the Romans used it for a wide range of

offenses.36

Capital punishment has been prescribed for many crimes not involving loss of life,

including adultery, and blasphemy and the ancient legal principle Lex talionis (talion)-

“an eye for an eye, a tooth for a tooth, a life for a life”, which appeared in the

Babylonian code of Hammurabi, was invoked in some societies to ensure that capital

punishment was not properly applied.37

Execution of criminals and political opponents has been used by nearly all

societies. In most places the practice of capital punishment was reserved for

murder, espionage, treason, or as part of military justice. In some countries,

sexual crimes, such as rape, adultery, incest and sodomy, carry the death

penalty, as do so religious crimes such as apostasy (the formal renunciation of

state religion) were inflicted to death.38

In many countries of the world drug trafficking is also capital offense. In countries like

China human trafficking and serious corruption are capital offences punished by death.

Capital punishment in the ancient times was often avoided by the alternative of

banishment and sometimes by payment of compensation. And also, for instance, from 35 Ibid36 The New Encyclopedia of Britannica, 2005, vol.2, 831

37. Ibid38 http://oon.bsu.edu.ru/docs/SPCH.doc.

15

the eighth century to the mid-eleventh century in Japan, it was customary for the

emperor to commute every death sentence and replaces it with a deportation to a remote

area.39It replaces the capital punishment to other punishment, which is less severe or to

which is not severe as before.

In the history of capital punishment, until the existence of code of Hammurabi, there

was no unified system of justice, which formalized the relation between classes. Code

of Hammurabi was the first to set a different punishment and compensation according

to different classes/group of victims and perpetrators. The Torah (Jewish law), also

known as Pentateuch (the first five book of the Christian old testament), lays down the

death penalty for offences like murder, kidnapping, magic, violation of Sabbath,

blasphemy, and a wide range of sexual crimes, although evidence suggests that actual

executions were rare.40

Capital punishment is condoned or accepted in Islam. In the Medieval Islamic world,

there were a handful or small number of Sheikhs, who were opposed to killing as

punishment and also in the ‘One thousand and One Night’, which is also known as

‘Arabian Night’, a fictional storyteller Sheherazade is portrayed as being the ‘Voice

sanity and Mercy’, generally opposed the death punishment.41

The Qur’an prescribes the death penalty for several hadd (fixed) crimes-including

adultery and apostasy of Islam. But murder was not among them. In Islam murder is

treated as civil crime and is covered by the law of qisas (retaliation), whereby the

relatives of the victim decide whether the offender is punished to death by authorities or

made to pay diyah (wergild) as compensation.42

Generally, capital punishment is historically controversial issue both nationally and

internationally. It is believed that it exists before society’s organized.

39 Supra note 3640 Supra note 3841 Ibid42 Supra note 36

16

The historical significance of capital punishment is not only related to punishment but

also to the social control. Capital punishment by its nature was often administered upon

those who identified as members of social problem populations.43In such cases where it

was believed that these populations did not respect the established authority or where it

is believed that these populations were viewed as dangerous to the established authority,

capital punishment is administered.

1.2.3 Methods and Modes of Executing Capital punishment

Before the age of Enlightenment, that is 18th century, in Europe as well as in every

corner of the globe, execution of capital punishment was characterized by torture and

slow brutality. Executions were carried before an assembly of crowd. One of the most

defining characteristics of European Enlightenment was a call for moderation in

existing punishments.44In the history of capital punishment different modes of execution

are exercised. Among these beheading, boiling in oil, burning alive, burning,

crucifixion, disembowelment, drawing, flying alive, hanging, impalement, stoning,

strangling, being thrown to wild animals, and quartering (being torn apart) were highly

exercised.45 Those all were practiced as modes of punishment in the ancient times.

In Britain, hanging became the usual method of execution in the tenth century AD. As

many as 72,000 people were executed in the sixteenth century during the reign of Henry

VIII by common execution methods including boiling, burning at the stake, hanging,

beheading, and drawing and quartering.46

In America, when the young United States adopted the practice of capital punishment

from England, it also adopted the methods of the mother country. The methods like

quartering and boiling the convict alive are the methods adopted by the United States

43 Roslyn Muraskin, IT’S A CRIME: Women and Justice, (3rd ed2003), 29044 Supra note 3045 Supra note 3846. Ibid

17

from Britain.47 In nineteenth century the practice of hanging replaced these techniques

on the ground that they were too “barbaric”.

In the history of capital punishment America tried (attempted) to make the mode of

execution more humane. The 1890s saw the introduction of electrocution as less painful

method of execution than hanging. Nevada introduced lethal gas as the more humane

method of executing capital punishment in 1924, but the “chair” was the primary form

of execution until 1980s.48 Different states of United States use different methods of

execution of capital punishment. Today the most common method of execution in

United States are lethal injection (sixteen states), electrocution (fifteen states), lethal gas

(eight states), hanging (four states), and firing squad (two states).49

In United States, of the 143 executions carried out between 1977 and 1991, 54 were by

lethal injection, 83 by electrocution, 5 by gas chamber, and 1 by firing squad.50 Among

the states of America eight states provide for more than one method of execution and

grant the condemned person a choice, usually between lethal injection and other

methods.51 Generally lethal injection is considered as more humane than others and it

was first used by Texas in 1982 and today this method dominates executions in United

States.52 According to its proponents the main advantage of this method is that it’s

painless.

1.2.4 Arguments on Capital Punishment

As I have mentioned earlier capital punishment has been one of the most controversial

aspects of justice system in the world. Different scholars or thinkers have offered

various arguments to support and reject of capital punishment.

47. Supra note 27, 27148 Ibid49 Supra note 11, 33450 Ibid51 . Ibid52 Supra note 27, 271

18

In the history of capital punishment different law enforcement agencies, criminologists,

philosophers, religious figures, and general public have argued about capital

punishment from many different perspectives. Still it is subject to controversy that

states are not agreed on the necessity of capital punishment. Some believe that capital

punishment would deter criminals, while others contend that persons should be

punished based on the doctrine of retribution.

A judge’s most awesome sentencing alternative for those convicted of capital crime is

the imposition of death sentence. It is the only sentence that once executed it is

irreversible and final. It deprives the convicted person of an ultimate appeal.53

As the 18th century saw the coming of new ideas and thoughts the argument that capital

punishment must be abolished get the inertia to counter-act the contrary view. Casare

Beccaria was an outstanding person to condemn the use of capital punishment on its

publication on ‘Crimes and Punishment’.54 This contained a general condemnation of

the use of death penalty and its tendency to corrupt people rather than to prevent crime.

People in different countries divided between two competing ideas having their own

symbolic cause either to abolish or retain capital punishment. The argument of both

emanate from different aspects of human knowledge.

The abolitionists are claiming gradual victory from year to year; while the retentionists

hold the view that abolitionists didn’t in fact secure victory, since the victory

abolitionist claim is based on the number of risks.

Supporters of capital punishment believe that those who commit a murder have

forfeited their right to life. In addition, they believe that capital punishment is just form

53 . Freda Adler, Gerhard O.W. Mueller, Williams S. Laufer, CRIMINOLOGY, 2nd ed

(1995), 446

54 . Eugner Mc Laughlin and John Muncie, Controlling Crime, 2001, p.168

19

of retribution that expresses and re-enforces the moral indignation of law-abiding

citizens.55That means any individual who kills human being must pay for the crime.

They believe that capital punishment is morally fitting on the ground that a person who

does wrong should suffer in proportion to his wrongdoing. However, the opponents

(abolitionists) of capital punishment argue that, by legitimizing the very behavior that

the law seeks to repress-killing-, capital punishment is counter productive for the moral

message it conveys. Furthermore, they urge, when death penalty is used for petty

offences, it is immoral because it is wholly disproportionate to the harm done.56

Again scholars argue whether or not death penalty is more deterrent. Supporters of

capital punishment claim that death penalty is uniquely potent deterrent effect on

potentially violent persons for whom the treat of imprisonment is not sufficient

restraint.57According to some thinkers such as Kant, punishment should not only be

equal but also be similar to the offence. This is based on the reason that most people

will not commit a crime (act of homicide or other crime punishable by death) if they

know the consequence of their act, that is, they may be executed as a result.

Accordingly, if you steal from him, you steal from yourself; if you kill him, you kill

yourself. The point is only law of retribution can determine exactly the kind and degree

of punishment but such determination must be made by court of justice not by private

individual judgment.58

According to those who favor death penalty, the prospect of capital punishment even

perceived from the distance frightens the killer and stops him from committing crime

because there are peoples who are more deterred by horror of punishment than the

punishment itself. They hold the view that the fear of loosing once life will stop people

from taking others life.59That means they abstain from it by regarding it with horror.

55 Supra note 36

56 Ibid57 Ibid58 Supra note, 3, 25659 Supra note 30, 218

20

Death penalty, even in its common sense, is the most feared punishment than other

subsidiary punishments. Due to this reason the supporters of capital punishment say

that, it is easier for professional criminals to accept imprisonment whatever the duration

may be than being hanged or shooted.60

On the other hand the abolitionists hold the view that capital punishment is not a

deterrent to capital offences. They argue that the research generally has demonstrated

that, the death penalty is not more effective deterrent than life or long term

imprisonment.61 They further believe that such terrible but relatively immediate

punishment of execution does not deter criminals, instead they hold a long and painful

punishment, that is, long and life imprisonment. This punishment is better depriving

once freedom of action and also helps to deter others from such act by taking that

example. They rise that in the history, capital punishment was used even for petty

crimes and non-deterrence of it. According to their argument, if the capital punishment,

in the ancient civilization, did not deter even petty offences like pick pockets or did not

keep men from stealing horses or others, how it would keep men from committing

murder? 62 They believe that capital punishment cannot deter criminals from committing

such act, even there was a case when a man witnessed the execution of death penalty yet

commits murder.63 Therefore, the abolitionists hold the view that because of all

mentioned above and many other similar facts capital punishment has no deterrent

effect. And they offer a substitution of capital punishment, which is life imprisonment.

There is also a dispute whether capital punishment can be administered in a manner

consistent with justice. The supporters of capital punishment believe that it is possible

to fashion laws and other procedures that ensure that only those who deserve death are

executed. In contrast, the opponents of capital punishment maintain that the historical

application of capital punishment shows at any attempt to single out certain kinds of

crime as deserving of death will inevitably be arbitrary and discriminatory.64 Due to this

60 Supra note 261 Ibid62 Supra note 43, 28463 Ibid64 Supra note 36

21

reason they hold the view that it is impossible to fashion laws that execute only those

deserving death. They also propose that, even in a well run of criminal justice system,

some peoples will be executed for crimes they did not commit.65 Due to all these

reasons abolitionists oppose the application of death penalty.

Proponents of capital punishment always argue that, execution serve as a strong

deterrent for serious crimes and produce the only real assurance that brutal criminals

can never jeopardize the society. For these persons putting dangerous persons to death

also conforms the desert perspectives requirement that punishment must be in

proportion to the seriousness of the crime.66They believe that most capital offences must

be punished by most severe punishment or capital punishment. For the very serious

crime it is better to use serious punishment. For this argument they propose, “Before the

brutality the death penalty is considered the brutality the offender showed the victim

must not be forgotten.”67

However, the abolitionist criticized the death penalty, pointing to its consequences, like

its finality, brutality of the act and mistakenly executing of innocent person. Death

penalty by its nature has a final consequence. Once one is deadly punished everything

become final. He has no any chance to survive again. This makes its brutality higher

than other punishments. Again also mistake is unavoidable task in our life. Once we

engaged in work there are so many possibilities to commit a mistake or fault. Since

mistake can and have been made in its imposition, the innocent have been executed, and

of course, that there is no remedy for any such mistake. Due to such reasons

abolitionists condemn the applicability of death penalty.

To put all in a nutshell, capital punishment is as controversial as any issue in criminal

justice. According to the proponents of death penalty its use is justified in terms of just-

deserts; taking of the life of one who has taken another’s life is the only just retribution.

65 Ibid66 . Supra note 11, 380

67 Ibid

22

They support their argument by the Biblical prescriptions of the eye-for-eye …life-for-

life.68

Supporters also argue that, death penalty is necessary to deter others from committing

murder and other terrible offences and that without it there would be little reasons for

criminals to refrain from killing.69 According to those peoples, if the death penalty is not

allowed a person who commits certain crimes will leave without loosing anything.

They also argue that, capital punishment is the only way for assurance of a criminal not

to commit a murder or other crimes again. Once a person is deadly executed he/she has

no chance to commit another crime. This saves the community from crime. But in case

of life imprisonment criminals (prisoners) may commit a crime in a prison or outside

the prison. Therefore, they conclude their argument killing criminals is considered as

assuring person or community from terrible made by such individuals and it is

considered as assuring person or community from terrible made by such individuals and

it is considered as the best way to protect the peace and security of the community at

large.

The proponents again hold the view that the death penalty is an essential social symbol,

expressing the boundary of our cultural standards of decency and humanity. It is better

to set outer limits beyond which unnecessary behavior cannot be tolerated. According to

those persons, death penalty is clear and firm statement of our outrage at and repulsion

for murderer’s acts.70

The opponents of death penalty highly criticized the necessity of death penalty. They

maintain that historical evidence indicates that there is a diminution in capital crimes,

even when death penalty was rapidly and publicly used.71As I have mentioned earlier

capital punishment is the oldest method of punishing criminals, but the simple fact is

the frequency of application seems to have no relevance to the crime rate. Those groups 68 Supra note 10, 33669 Ibid70 Ibid71 Ibid 337

23

of people say that if deterrence theory worked, theoretically there should be a decrease

in serious crime when death penalty is used and increase when it is forbidden.

The opponents also insist that a person sentenced to death suffers more than his victim

suffered. This excess suffering is not proper according to rule of retaliation (lex talions).

Of course, one cannot know whether the murderer on death row suffers more than his

victim suffered; however, unlike the murderer the victim deserved none of the suffering

inflicted. Becarria argued that, by killing of a murderer, we encourage, endorse, or

legitimize unlawful killing.72 According to him the physical similarities of punishment

to the crime are irrelevant.

Opponents also maintain that the publicity surrounding an execution may attract

unbalanced people to commit capital crimes rather than deter potential murderers, as the

seek the attention given to a person being executed and therefore commit crimes in

order to be on center stage themselves.73These all are some among many arguments

raised by different scholars towards capital punishment favoring and opposing its

application.

1.2.5. Religious Views towards Capital Punishment

Although death has prescribed in many sacred religious documents and historically was

practiced widely with the support of religious hierarchies, today there is no agreement

among religious fathers, or among denominations or sects with in them, on the morality

and necessity of capital punishment. During the last half of twentieth century,

increasing number of religious leaders campaigned against the death penalty. For

example, Pope John Paul II condemned capital punishment as cruel and unnecessary

punishment.74

72 Supra note 30, 21973 Supra note 1074 Supra note 36

24

Bible centered persuasion

The issue of capital punishment is related to morality. Morality is part of society’s

belief. Society’s belief may emanate from their religion, custom, history, and some

other factors attached to cultural values.

The retentionist holds the view that the most drastic form of crime, the taking away of

human life, must deserve the most drastic form of punishment. They forwarded the

Biblical teaching that “He that smith a man, so that he die, shall be surely put to

death”.75 They also hold principle of ‘lex talianism’ as propounded clearly by the

saying “life to life” is a justification for capital punishment. Let us see the status of

capital punishment in different religious institutions.

1. Buddhism

Buddhism is a religion and philosophy founded by Siddhartha Gautama in the North

East India, during the period from the late 6th century to the early 4th century BC.76

There is a disagreement among the followers of this religion as to whether or not

Buddhism forbids death penalty.

Chapter ten of the Dhammapada states:77

“Every one fears punishment; everyone fears death, just as you do.

Therefore, do not kill or cause to kill. Everyone fears punishment;

everyone loves life, as you do. Therefore, do not kill or cause to kill.”

The final chapter of the Dhammapada, states, “Him I call Brahmin who has put aside

weapon and renounced violence towards all creatures. He neither kills nor helps other to

kill.78Many Buddhists interpret these sentences as an injunction against supporting any

75 Bible, Exodus 21:1276 Supra note 3677 http://www.buddhanet.net/e-learning/buddhism/dp10.htm, retrieved on June 5, 2009 78 Ibid

25

legal measure, which might lead to the capital punishment. However, since

interpretation is personal, there is a dispute on this matter.

Historically, most states where the official religion is Buddhism have imposed death

penalty for some offences. Again also some has abolished capital punishment. For

example, Bhutan has abolished death penalty, but Thailand still retains it, although

Buddhism is the official religion of both countries.79 Therefore, I can conclude that in

Buddhism it is not clear whether death penalty is allowed or not.

1. Islam

As I discussed earlier capital punishment is allowed in Islam. The Qur’an prescribes the

death penalty for several offences/crimes including robbery, adultery, and apostasy of

Islam. Scholars of Islam hold it to be permissible but the victim or the family of the

victim has the right to pardon. That means they can determine whether the offender is to

be punished by death or not. In Islamic jurisprudence, to forbid what is not forbidden is

forbidden. Consequently, it is impossible to make a case for abolition of death

penalty.80For these peoples, abolishing death penalty is considered as violating the rules

of Qur’an.

Even though capital punishment is condoned in Islamic law or Shari’a law, there is a

great variation with in Islamic nations as to actual capital punishment.

2. Judaism

Judaism is the religion of Jews. The official teaching of Judaism approve the death

penalty in principle but the standard of proof required for the application of death

penalty is extremely stringent, and in practice, it has been abolished by various

79Ibid 80 Supra note 77

26

Talmudic decisions, making the situation in which death sentence could be passed

effectively impossible and hypothetical.81

“It is better and more satisfactory to acquit a thousand guilty person than to put a

single innocent one to death”.82 This famous quotation, which every law student and

scholars use, is taken from the 12th century legal scholars , Maimonides. This person

argued that executing a defendant on anything less than absolute certainty would lead to

slippery slope of decreasing burden of proof. Generally, in Judaism religion capital

punishment exists in principle but the standard of proof required for its execution makes

it difficult for its existence and application. It needs absolutely certain standards of

proof.

3. Christianity

Christian position on the necessity of capital punishment is not of the same. Although

some interpret that Jesus’ teachings condemn the death penalty in Gospel of Luke and

Gospel of Matthew regarding turning the other cheek, and John 8:7 of the Bible, others

consider Romans13:3-4 to support it. There are so many branch of Christian religion

(denomination) and their position regarding capital punishment varies from one another.

a. Roman catholic church

The Roman Catholic Church traditionally accept capital punishment as per the theology

of Thomas Aquinas (who accept the death penalty as necessary deterrent and prevention

method, but not as a means of vengeance.83 In the history of Catholic Church, Pope

John II, condemned the death penalty and the Catholic Church holds that capital

punishment should be avoided unless it is the only way to defend society from the

offender in question.84 The catechism of the Catholic Church states:85

81 Ibid82 Ibid83 Ibid84 Supra note 7785. Ibid

27

Assuming the guilty parties identity and responsibility have been fully

determined, the traditional teaching of the church, does not exclude

recourse to the death penalty, if this is the only possible way of

effectively defending human lives against unjust aggressor. If, however,

none lethal means are sufficient to defend and protect people’s safety

from aggressor, authority will limit itself to such means, as these are

more in keeping with the concrete conditions of common good and are

more inconformity to the dignity of human person. Today, in fact, as a

consequence of possibilities which the state has for effectively preventing

crime, the rendering one who has committed an offense incapable of

doing harm-without definitely taking away from him the possibility of

redeeming himself-the causes in which the execution of the offender is an

absolute necessity are very rare, if not practically non existent.

Generally, in this church, capital punishment is traditionally accepted but scholars of

this religion hold the view that if it is possible to deter criminals by means other than

capital punishment, it is better to abolish.

b. Eastern Orthodox Church

Eastern Orthodox Church is against the death penalty, believing that killing is wrong in

any circumstance.86 This denomination hold the position that killing is immoral and they

sited the Christ’s teaching to love their enemies.

c. Protestants

There are so many Protestants and they also take different position regarding capital

punishment. Several key leaders early in the protestant reformation, including Martin

Luther and John Calvin, followed the traditional reasoning in favor of capital

punishment, and the Lutheran Church’s Augsburg Confession explicitly defend it. Some

86 Ibid

28

protestant groups have cited Genesis 9:5-6, Romans 13:3-4, and Levictus 20:1-27 as the

basis for permitting the capital punishment. Those groups base their argument

provisions of the Gospel “Think not that I am come to destroy the law, or the prophets; I

am not come to destroy, but to fulfill”87 People in this category of thought believe that

the new testament is not by any means lenient to let the wrong-doer go unpunished.

Instead they claim that the church leave the matter of justice to the government in

power.

Mennonites Church of the Brethren and friends have opposed the death penalty since

their finding, and continue to be strongly opposed to it today.88 These groups, along with

other Christians condemned the use of capital punishment, and they cited Christ’s

Sermon on the Mount (Matthew 5:7) and sermon on the plain (Luke 6:17-49).89 In

These provisions Christ tells his followers to turn the other cheek and love their

enemies. This generally, which these groups believe mandates, nonviolence, including

to the death penalty.

Generally, the issue of capital punishment is subject to controversy even among

religious followers. The supporter holds the view that one must be punished by the

supreme punishment, as he has violated the supreme law, that is, the highest sacredness

of life. But those who opposes of this view hold Christ’s teaching to his followers to

turn the other cheek and love their enemies. Therefore, still capital punishment is

subject to argument.

87 Holy Bible, Matthew 5:1788 Supra note 7789 Ibid

29

CHAPTER TWO

INTERNATIONAL MOVEMENTS OF ABOLISHING CAPITAL

PUNISHMENT

Historically capital punishment is criticized by different writers and scholars and also

different states tried to limit the scope of application of capital punishment or abolish it

generally. Historically, criminal punishment is associated with barbaric sanctions,

including various forms of torture and mutilation. In the Middle Ages, convicted

criminals were often drawn and quartered as part of carrying out a sentence of death.

They might be hung up in a public place and left to die a slow and agonizing death from

starvation and exposure.90

90 William A. Schabas, ‘Life, The Right To: The Death Penalty’, in Rhona K.M. Smith and Christian Van den Anker,(eds), the essential of ---human rights (2 005) p. 239

30

As societies become more civilized or advanced, they eliminate many of these practices.

One of the reforms of French Revolution was a universal application of a rapid and

apparently painless form of execution.91 It was in the later part of 18th century that there

began a movement to limit the scope of capital punishment. Until that time very wide

range of offences, including common theft, were punishable by death.92

In 1784, the USA states of Pennsylvania became the first jurisdiction to restrict the

death penalty to first degree-murder. In addition, in 1846 Michigan abolished capital

punishment for all murder and other common crimes. In 1983, Venezuela became the

first country to abolish death penalty for all crimes. Portugal was the first European

country to abolish death penalty, doing so in 1867; by the early 20th century, several

other countries, including The Netherlands, Norway, Denmark, and Italy, had followed

the suit.93

However, the path to abolition in these countries was not always straight. Various

authoritarian regimes reinstated and expanded capital punishment during the 20th

century in both Europe and South America. For example, death penalty was

reintroduced in Italy by Mussolini’s Fascist regime in 1927 and in Germany was

expanded beyond all recognition by the Nazi’s, where it was ‘to be translated from an

instrument of penal policy into a tool of racial and political engineering.94

By the mid of 1960s some 25 countries have abolished the death penalty for murder,

though only half of them also had abolished it for offenses against the state or military

code. Britain, for example, abolished capital punishment for murder in 1965, but

treason, piracy, and military crimes maintained capital offenses until 1998.95

During the last third of 20th centuries, the number countries abolished death penalty

increased more than threefold. These countries together with those “de facto”

abolitionists, that is, those in which capital punishment is legal but not exercised-now

represent more than half of the countries of the world.96 There are now several

91 Ibid 24092 The New Encyclopedia Britannica (15th ed., 2005), vol.2 p.83193 Ibid94 Roger Hood, The Death Penalty: A World Wide Perspective, (3rd ed., 2002) p.1095 Supra note 10296 Ibid

31

international human right conventions that abolish capital punishment altogether. The

council of Europe adopted the first, in 1983 and approximately 70 states have ratified

these treaties. Another 80 states have ratified the more general international human

rights treaties, such as the International Covenant on Civil and Political rights.97 Of

course these instruments do not totally prohibit the death penalty but they impose strict

limitations.

In 1970s the United Nations General Assembly passed a resolution that called for the

restricting the number of offenses for which the death penalty could be imposed with a

view toward abolishing it altogether. Optional protocols to the European convention on

Human Rights (1989) have been established, under which countries party to the

convention and the covenant undertake not to carryout execution.98

In 1980s, the International abolition movement gained momentum and treaties proclaim

abolition were drafted and ratified. Protocol no.6 of European convention on Human

Rights and its successors, the Inter-American Additional protocol to the American

Convention on Human Rights to abolish the Death Penalty, and the United Nations

Optional protocol to the International Covenant on Civil and Political Rights Aiming at

the Abolition of Capital punishment on international norm come to existence.99

The council of Europe (1994) and European Union (1998) established as a precondition

of membership in their organizations the requirement that prospective member countries

suspend execution and commit themselves to abolition. This decision prompted several

countries of the Central and Eastern Europe to abolish capital punishment.100 For

example; European countries like Czech Republic, Hungary, Romania, Slovenia, and

Ukraine have now halted the capital punishment and have been admitted to the council.

97 William A. Schabas, supra note 90, p.240

98 Supra note 9299 History of Death Penalty; available on

www.deathpenaltyinfo.org/part-ii-history-death-penalty.html, Retrieved on 6/4/2007100 Supra note 92

32

There are also few professionals in the field of criminology attempt to justify capital on

scientific grounds. In the 1960s, studies commissioned by the council of Europe and the

United Nations rejected the idea that the death penalty had a valid deterrent effect. They

provide that deterrence is a difficult thing to analyze because of the difficulty in

identifying people who have been in fact been deterred by the threat of punishment.101

The international law now universally condemns the execution of capital punishment

for crimes committed while under the age of eighteen. Again several international

tribunals and constitutional courts condemn the mandatory death penalty in different

times.102

In Africa also some countries abolish the death penalty especially in 1990s, though most

of them retained. Generally, there has been movement of abolishing capital punishment

by different individuals, organizations, unions and NGOs.

2.1 The United Nations

The United Nations, which is the largest organization in the world, plays an enormous

role in abolishing and minimizing capital punishment from the world community. The

United Nations adopted the International Covenant on Civil and Political Rights

(ICCPR) in 1966, affirmed in Article 6(1) that ‘every human being has the inherent

right to life’, and provides prohibition of arbitrary deprivation of life. However, this did

not bar capital punishment. Nevertheless, the human right committee which monitors

the compliance with the covenant and provides for its authoritative interpretation,

consider that the general prohibition in Article 6(1) on arbitrary deprivation of the right

to life means that countries where capital punishment has already abolished cannot

participate in it, even indirectly, by for example, extraditing someone to another country

where it might be imposed.103

101 William A. Schabas, supra note 90, p.240102 Ibid103 Ibid

33

Article 6(2) of the convention provides a condition under which life may be suspended

by state for most serious crimes. It says that ‘…sentence of death may be imposed only

for the most serious crimes’. That means the United Nations under the ICCPR allows

the death sentence with some restrictions. But it encourages states to abolish the death

sentence. At this time, that is, during the enactment of the ICCPR convention,

international abolition of death penalty was not yet a realistic goal of United Nations.

The United Nations shifts its focus to limiting the scope of death penalty to protect

juveniles, pregnant women and the elderly. It was in 1971(Resolution 2857) and again

1977(Resolution 3216) the United Nations took the first step towards declaring

abolition of death penalty as a universal goal when it is called for ‘the progressive

restriction of the number of offenses for which the death sentence might be imposed,

with a view to its abolition.’104

In December 1989, the UN General Assembly also adopted the second optional

protocol to the ICCPR. Article 1 of this protocol states that, “no one with the

jurisdiction of the state party to the present optional protocol shall be executed”. Clause

2 of this Article establishes the important principle that ‘the death penalty shall not be

re-established in states that have abolished it.’105 This protocol provides total abolition

of death penalty but like sixth protocol of the European Convention on Human Rights

(ECHR), allows states parties to retain the death penalty in time of the war if they make

a reservation. However, unlike the sixth protocol of the ECHR, the reservation can only

be made at the time of ratification or accession.106 Any state, which is a party to the

International Covenant on Civil and Political Right, can become a party to the protocol.

Today (in 2009), 66 of the 161 states in a position to do so (i.e. states party to the

ICCPR) have ratified the second optional protocol to the International covenant on Civil

and Political Rights.107

104 Roger Hood, supra note 94, p.15105 Second Optional Protocol to the International Covenant on Civil and Political Rights

of 19966, 1989

106. Roger Hood, supra note 94, p.15

34

In 1997, the UN High Commission for Human Rights approved a resolution stating that

the “abolition of death penalty contributes to the enhancement of human dignity and to

the progressive development of human rights”. This resolution was strengthened in

subsequent resolutions by a call for restriction of offenses for which the death penalty

can be imposed and for a moratorium on all executions, leading eventually to

abolition.108Because of the tendency to de facto abolition, there has been strong call with

in international organizations for a moratorium on capital punishment in states where it

has not been abolished. This is because in most countries, de facto abolition or

imposition of a moratorium is the first step in an evitable and irreversible process

towards total abolition.109

Challenging the death penalty is not seen solely as an internal matter among nations.

The United Nations office of the High Commissioner for Human Rights requests states

that have received a request for extradition on a capital charge to reserve explicitly the

right to refuse extradition on the absence of effective assurances from relevant

authorities of the requesting state that the death penalty will not be carried out and calls

upon states to provide such effective assurances if requested to do so, and to respect

them.110 This generally provided on Article 10 of Human Right Resolution 2005/59. The

Charter of Fundamental Rights of European Union, which is adopted in December

107.http://www.fiacat.org/en/IMG/pdf/

FIACAT_News_May_2009_Supplement_VAnglais_1.pdf, Retrieved on 6/4/2007

108. Vaibhav Goel, Capital punishment: A human right examination case study and

jurisprudence,

F:/capital punishment/ capital punishment A human right examination

case study and jurisprudence.htm, (retrieved on Feb 4, 2009)

109. William A. Schabas, supra note 90 , p.241110. Office of the Human Right Commissioner for Human Rights: Human Right

Resolution 2005/95

35

2000, also declared that it violates fundamental rights to extradite an individual to a

country where capital punishment is threatened.111

Today many European countries, along with Canada, Mexico and South Africa resisted

extraditing persons to countries like USA or other retentionists (may be Ethiopia) unless

there is assurances that death penalty will not be sought.112

In April 1999, the United Nations Commissions passed the resolution supporting

worldwide Moratorium on Execution. The resolution calls on countries, which have not

abolished the death penalty to restrict its use of death sentence, including not imposing

on juvenile offenders and limiting the number of offences for which it can be imposed.

Ten countries, including US, China, Pakis tan, Rwanda, and Sudan, voted against the

resolution.113 Since the 1997, the United Nations Commission on Human Rights has

passed the resolutions calling on countries that have not abolished the death penalty to

establish a moratorium on execution annually.114

The United Nation introduced a resolution during the General Assembly’s 62nd session

in 2007 calling for a universal ban. The approval of a draft resolution by the Assembly’s

Third Committee, which deals with human right issues, voted 99 to 52, with 33

abstentions, in favor of the resolutions on November 15, 2007 and was put to a vote in

the Assembly on December 18.115Again in2008, a large majority of states from all

regions adopted a second resolution calling for a moratorium on the use of death penalty

in the UN General Assembly (Third Committee) on November 20. 105 countries voted

in favor of the draft resolution, 48 voted against and 31 abstained.116

2.2 European Movement

111 William A. Schabas, supra note 90, p.241112 Vaibhav Goel, supra note 108113 Supra note 99114 Ibid115 http://www.acronym.org.uk/dd/dd87/87unfc.htm, Retrieved on 6/4/2007

116 ibid

36

European Union and European Council also play a great role in abolishing capital

punishment. The European Union has made abolition of capital punishment a

precondition for membership, and in 1998 it embarked on a diplomatic policy to

persuade other nations of Guidelines to European Union policy Towards Third

Countries on the Death Penalty. This document stated that the objective of European

Union is to ‘work towards the abolition of death penalty as a strongly held policy view

agreed by all EU member states.117

The parliamentary Assembly of the Council of Europe opposed the death penalty in its

resolution 1044 of 1994, and recommendation 1246 of 1994, which is re affirmed by

resolution 1097(1996) and again by resolution 1187(1999) on Europe, A Death Penalty

Free Continent. The parliamentary Assembly called up on all parliaments in the world,

which have not yet abolished the death penalty to do so promptly, following the

example of the majority of the Council of Europe states.118

The Parliamentary Assembly has strongly declared that the death penalty has no

legitimate place in the penal systems of modern civilized societies. In addition, to that

its application may well be compared with torture and be seen as inhuman and

degrading punishment with in the meaning of Art.3 of the ECHR.119 Due to this reason

in 1994 the Assembly made it a precondition that any country that wished to become a

member of the Council of Europe to comply with sixth protocol to the ECHR, that is, to

abolish the death sentence. Non-admission of the retentionist country to the Council of

Europe has a significant role in the abolition of capital punishment, especially in

Western Europe. This policy had an enormous impact on the countries of the former

Soviet bloc in Eastern Europe, all of which wished to join the Council of Europe, as

well as on several states of the former Soviet Union, including Ukraine and the Russian

Federation.120

117 Council of European Union Guidelines to EU policy towards Third Countries on the Death Penalty, Brussels, 3June 1998118 Roger Hood, supra note 94, p.16

119 ibid120 ibid 106

37

While aiming for the universal ban (abolition) of the death penalty the EU seeks, a

moratorium in all countries, which retain capital punishment, as first step towards this

end.121 The EU and Council of Europe are willing to accept a moratorium as an interim

measure. Thus, while Russia is a member of council of Europe, and practices the death

penalty in law, it not made public use of it since becoming a member of the council.

Other states, while having abolished de jure, the death penalty in times of peace; and de

facto, in all circumstances, have not ratified protocol no.13 yet and therefore have no

international obligation to refrain from using the death penalty in time of war or

imminent threat of war.122

Today, Europe is a continent free of death penalty in practice, all states but Russia,

which has entered a moratorium, having ratified the sixth protocol to the European

Convention on Human Rights, with the sole exception of Belarus, which is not still a

member of Europe. Belarus is the last country in Europe and the former Soviet Union

that still carrying out the execution.123 In addition to all these, as I have already

mentioned, the EU has also banned detainee transfers in cases where the receiving party

may seek the death penalty.

Recently the EU, in its meeting of permanent council held in 19 April 2007, reiterates

its long standing and active opposition to the death penalty in all circumstances. As

declared on many occasions and recently on the Third World Congress against the

Death Penalty in Paris in February 2007 and at the 4th session of the Human Right

Council in March 2007, consider that the abolition of death penalty contributes to the

enhancement of human dignity and progressive development of human rights.124

The EU is generally aware of the suffering of the victims of violent crime and their

families; they strongly believe that capital punishment tends to further a casual attitude

to the right to life. According to EU death penalty does not serve as effective deterrent,

and miscarriage of justice, which is inevitable in any legal system, would be 121 F:/statement of the European Union on the Death Penalty.htm122 Supra note 115123 ibid124 Supra note 121

38

irreversible.125 In countries where death penalty has not been abolished the EU seeks

execution to be in accordance with those generally accepted safeguards.126 These all are

the movements European Union to make free death penalty continent globe.

2.3 Inter-American State Organization Movement

The Inter-American system for protection of Human Rights followed the abolitionist

vanguard and organization of American states-of which US is a member-adopted in

1990. Protocol to the American convention on Human Rights to abolish the death

Penalty, adopted by the General Assembly of the organization of America in 1990,

provide for the total abolition of the death penalty. However, allows states parties to

retain the death penalty in wartime if they make a reservation to that effect at the time

of ratifying or acceding the protocol. Any state party to the American convention on

Human Rights can become a party to protocol.

Currently eight states have ratified this protocol.127 Article one of this protocol calls

upon states to abolish from the use of death penalty, but does not impose obligation to

erase it from the statute book. Thus, de facto abolitionist countries may also ratify the

protocol.It provide under Article 4(3) of the convention that those countries that have

already abolished the death penalty may not reinstate it.

2.4 The Abolition Movement in Africa

Comparing with other continents, like Europe and America the movement of abolishing

capital punishment in Africa is a recent issue. Many problems hinder the movement of

capital punishment in Africa. For instance international human rights standards have

had only a limited impact on most African states particularly because of the general

perception of international law in African states as a threat to sovereignty.

125 ibid126 ibid127 Vaibhav Goel, supra note 108

39

Again also the discrepancies between international law and domestic law with regard to

the death penalty are very apparent and disturbing in some African countries. For

example in Sierra Leone those charged with the most heinous crimes by national courts

can be sentenced to death while in similar cases the charged persons cannot be

sentenced to death under Special Court of Sierra Leone (SCSL) are limited to

imprisonment.128 however the national court of this country can impose death penalty, as

it is retained in their respective penal statute.

Furthermore, the death penalty debate in another regions fuelled by the use of new

technologies, particularly DNA testing, to show that innocent persons are undeniably

sentenced to death. But these new technologies are new to Africa. These all mentioned

above hiders the abolition movement in Africa.

The African commission position on the death penalty remains unclear. The

commission has not pronounced itself on the death penalty as such. This could mainly

be attributed to the fact that it has not been presented with a direct challenge to the

death penalty. However there are some commissioner openly stated their opposition to

death penalty, or that they favor abolition. For instance the late commissioner Beye

personally opposed the death penalty at the commissioner’s 12th session (1992).129

Recently also, during the commission’s 36th ordinary session (2004), the death penalty,

appearing for the first time on the commissions agenda. Commission Chirwa initiated

debate about abolition of death penalty in Africa, and urged the commission to take a

clear position on the subject. Accordingly, the death penalty has been included on the

commission’s agenda for subsequent sessions. 130

128 Lilian Manka Chenwi, Towards Abolishment of the Death Penalty in Africa, available

on, http://upetd.up.ac.za/thesis/available/etd-10062005-151306/unrestricted/00front.pdf,

retrieved on 6/4/2009

129 ibid130 ibid

40

Furthermore the African commission, in recent decision Interights et al (on behalf of

Bosch) V Botswana, acknowledges the development of international law and the trend

towards the abolition of death penalty. The commission further conceded its support of

this trend by its adoption of 1999 Resolution, and encouraged all states party to the

African charter on Humans and Peoples’ Rights (African Charter) to take all measures

to refrain from exercising death penalty.131

In 1987, the then Justice of Zimbabwe told an International Conference on the death

penalty that all African countries retain the death penalty, except two small countries

Seychelles (for ordinary crimes only, 1979) and Cape Verde (1981)- which had done

away with capital punishment and only five abolitionist de facto.132 However up to the

end of 2007 a remarkable transformation towards the abolitionist position among

African countries comes to be seen.

Africa is one of the death penalty regions in the world, as most African states still retain

the death penalty in their statutes. According to Amnesty Internationals report in 2007,

14 countries in Africa are abolitionist for all crimes while 18 are abolitionist in practice.

Out of 60 countries ratified the optional protocol to the International Covenant on Civil

and Political Rights (ICCPR) seven are African countries.133These all shows us that

Africa is recently moving to abolition of capital punishment.

2.5 Abolition Movement in Ethiopia

Capital punishment exists in Ethiopian laws even before the Fetha Negest. Our 1957

penal code also encompasses many provisions that inflict death penalty. When the

military government of Derg come to power additional laws also promulgated to impose

death sentence for certain criminal offenses in addition to that of 1957. The new FDRE

criminal code also encompasses over thirty-two provisions entailing death penalty. This

shows us that a reluctant movement of government to abolish capital punishment.

131 ibid132 Roger Hood, supra note 94, p.38133 http://www.fiacat.org/en/IMG/pdf/FIACAT_News_May_2009_Supplement_VAnglais_1.pdf.

41

To the best of writers’ research there is no organized public or private movement of

abolishing capital punishment In Ethiopia. Death penalty, which in itself can only

arguably scape the accusation of abolitionists of being “cruel, inhuman and degrading”

and contrary to the right to life” did not receive a lot of attention among legal scholars or

human rights activists in Ethiopia so far. However this doesn’t mean that in the long run

innovative human right lawyers don’t challenge its status in Ethiopia.

However, even though the federal and regional competent courts of jurisdictions

pronounce the death penalty for serious offenses, its actual application is not common

these days compared to the previous times of our history. Even though death penalty is

imposed on many peoples in Ethiopia, its actual execution is rare. As provided on the

FDRE combined report to the African Commission on Human and

Peoples’ Rights on implementation of the African Charter on human

and peoples rights, during the last 15 years, only three death penalties

have actually been carried out within the State.134 This situation is due

to the strict and numerous preconditions set for the imposition of the

penalty and the extreme reluctance of courts to impose such a penalty

as well as the reluctance of the government to carryout the same.

This is very few comparing to actual execution in previous governments. This

situation is due to the strict and numerous preconditions set for the

imposition of the penalty and the extreme reluctance of courts to

impose such a penalty as well as the reluctance of the government to

carryout the same. We can take this as a movement of abolition capital

punishment.

Again also when we look Art 116 of 1957 penal code it provides

shooting and hanging publicly as mode executing capital punishment,

which is considered as cruel and inhuman treatment or punishment.

134 http://www.achpr.org/english/state_reports/Ethiopia/Initial%20Report%20_Ethiopia.pdf, retrieved on June 10, 2009

42

But when we look the recent FDRE criminal code it abolishes such

inhuman and cruel mode of punishment. We can take this also as one

movement.

However, one thing we should not forget is capital punishment will be replaced by a

more humane type of punishment in our country no matter how long it takes. Therefore,

to put all in a nutshell though there no organized movement of abolition of capital

punishment the few number of actual execution the reformation of cruel and inhuman

modes of execution may be considered as a movement to abolish capital punishment in

Ethiopia.

2.6Capital Punishment in Ethiopian Context

Capital punishment is a subject to be studied, commented and examined in different

perspectives. Capital punishment has been practiced in Ethiopia for quite a longtime.

One may say that, it is as old as our legal history. Capital punishment has been in

Ethiopian legal tradition without facing any challenge. Until the very recently it has

been an accepted form of punishment by the Ethiopian society. In the Ethiopian legal

history, capital punishment is not this much studied, criticized, evaluated and given

remarks. There are also no enough written materials on the Ethiopian capital

punishment.

Legal literatures in the Ethiopian situation are not abundantly available. As opposed to

European and American states, one is not in a position to go much if he/she wants to

explore the historical sources of capital punishment in Ethiopia. This is due to the

43

known reason that judgments were not systematically recorded and even if we find

scanty records they are not available in the modern libraries of higher education centers.

They may be available in museums, historical churches and other historical places.

Generally speaking, it is very difficult to trace the historical genesis of capital

punishment accurately in the Ethiopian context. But for the purpose of this paper I will

try to see capital punishment in retrospect by dividing Ethiopian penological history

into six periods. These periods may be divided as follows.

1. The period before Fetha Negest

2. The period from Fetha Negest to the enactment of the Ethiopian first modern penal

code of 1930

3. The period from 1930 to the 1957 in which the other more sophisticated penal code

appeared

4. The period from 1957 to the period of 1974

5. The period from 1974 to the period of 2004

6. The period after the New Federal Democratic Republic of Ethiopian criminal code of

2004 to present.

Each of these period as characterized by different laws maintains quite unique positions

as regards to capital punishment and capital offenses. Let as try to see each of them

separately.

2.6.1The period before Fetha Negest

This period is known by its absence of written and organized laws. The absence of

ample material before the Fetha Negest makes difficulty to study more about the capital

punishment before that time. I do not have the believe that capital punishment

originated after Fetha Negest. This can be inferred from the statement “The long and

grant history of our country demonstrates that our people have always both

44

administered and lived according to the law. Our people were first ruled by Mosaic

Law.”135 Mosaic Law was used for instruction in Ethiopian Church before Fetha Negest

and even after that.136 Mosaic law provides capital punishment for various crimes,

which indicates the principle of ‘an eye for an eye’ as I have mentioned earlier in

chapter one. But one is not certain whether Mosaic Law ruled the whole Ethiopian,

because the previous Ethiopia was not exactly situated at the present one. The

jurisdictional boundary of present Ethiopia is determined later. These all make

difficulty to study capital punishment in Ethiopia before 15th century.

2.6.2 The period from Fetha Negest to 1930 Ethiopian penal code

Fetha Negest, the first integrated legal code, was translated from Arabic in the Mid-

fifteenth century.137 It is a very interesting legal compilation. Although, there is a

popular believe that Fetha Negest was introduced in Ethiopia in the Mid-fifteenth

century during the, reign of Zar’a Ya’qob, the exact date when Fetha Negest become an

integral part of Ethiopian legal system is not yet definitely established, or the time when

it started to be cited as an authority in the process of adjudication of cases by courts was

not yet certainly known138. This is due to lack of recorded evidence on courts decisions

and judgments.

The Fetha Negest provides the death penalty for various criminal offenses and it applied

on different groups of peoples who violate the Law of Fetha Negest. The Ethiopian

historians cited a case in which Emperor Zar’a Ya’qob himself pass a death sentence in

accordance with the provisions of the Fetha Negest on his own son, who had been found

135 Abba Paulos Tzaudu, The Fetha Negest, 1968, p.5136 Aberra Jembere, An Introduction to Legal History of Ethiopia:1434-1974, (1999), p.

38

137 Ethiopia Crime and Punishment: available on www.photius.com/countries/ethiopia/national_security/ethiopia-national_security_crime_andpunishment.htm138 Aberra Jembere, supra note 135, p.194

45

to have killed one of his servants and his daughter for anti-Christian practices prohibited

by the Fetha Negest.139

Fetha Negest was applied only to Christians, Muslims who become subject to Ethiopian

rule through conquest continued to be judged in their own courts according to shari’a

law.140 Fetha Negest was very much influenced by the religious or nearer to the fact by

the teaching of Christian ethics as propounded in the Old and New Testament. For these

main reasons it seems Fetha Negest provides death sentence for various violations of

religious ethics.

There are so many provisions of Fetha Negest that can provide the death penalty for

violations or religious ethics. For example, Chapter XLVI section II of the Fetha Negest

states that a prophet who preaches against the divine Lord must be slain. Again, in the

same provision it provides death penalty for a person who gives sacrifice to what were

termed as “strange gods”. One who blasphemes God was also punishable to death; even

one that has eating pagan sacrifices and honoring ‘idols’ was liable to capital

punishment.141 Either man or woman who is found to be magician or a wizard is subject

to death sentence. They shall be stoned, since they are impious.142

Homicide is also capital offense impose death sentence on the offender. Chapter XLVII

of the Fetha Negest retained the nature of homicide as a capital crime deserving capital

punishment. The mode of punishment suffered for committing homicide was carried out

by killing the body and [thus] separating the soul [from the body] by the means of

corporal punishment carried out by the temporal judge, so that the temporal law may be

fulfilled.143

In the Fetha Negest, occasionally attempted murder was capital offense punished by

death. This shown by the provision that; “the servant who attempted to kill their master

139 ibid140 supra note 137141 Abba Paulos Tzaudu, supra note 135, Chapter XLVI sec II142 ibid Chapter XLVI sec III p. 287143 ibid 289

46

must be thrown into the fire”, and also servants who heard the cries of their master

while he was being killed, or knew and certainly aware of what was happening to him,

but didn’t render any help are punished by death.144 In the Fetha Negest criminal

majority for homicide was set at the age of seven, which is lower than the present

criminal majority age.

Death also provided for those who shelter murderers and generally capital punishment

was imposed for the above crimes under the Fetha Negest on the principles of both

deterrence and retributive theory. This can be inferred from the fact that punishment

was meant, “to serve a lesson to others who desire to be involved in this deed, and so

that relatives of persons murdered through their treachery may be pleased.145

Generally, like in ancient Europe, in Fetha Negest, many crimes that are today

considered as petty offenses like incest, kidnapping, a betrothered girl, a slave who

dares to carryout his mistress, theft, arson, and others were punishable by death. The

modes of execution were rather many and cruel. Stoning, throwing in fire alive, and

others were done for horrifying and degrading human dignity. Fetha Negest and

customary laws remained the basis of criminal procedure until 1930.146

2.6.3. Death Penalty under the 1930 Penal Code of Ethiopia

The 1930 penal code of Ethiopia, which is the milestone in the Ethiopian legal history,

was the first in its kind in trying to comprehensively covering crime and their

punishment. This penal code, which was primitive in its application, was strove for

modernity in its application.147 It is reckoned as part of old laws because it is a legal

code drown up before the constitution of 1931, and it reflects the norms and values of

the old absolutist monarchy.148

144 ibid 295145 ibid146 supra note 137147 ibid148 Aberra Jembere, supra note 135, p.195

47

One main characteristic that distinguishes the 1930 penal code as compared to Fetha

Negest is, capital punishment was centralized. To impose the death penalty the Emperor

should first confirm it.149This code didn’t specify the capital punishment was to be

carried out. The 1930 penal code defines death penalty as follows;

The sentence of death means having punished by punishment of death by the

instrument, and at the place prepared for this purpose, after the passing of the

sentence of death, either for taking life or some other crime. This sentence of

shall not be passed by any other court but the kings court.150

The above provision doesn’t specify explicitly what sort of instruments to employ in

order to execute the condemned man. It seems that, the above provision gives

discretionary power to the people concerned to carry out the judgment. But it is

believed that most cruel method of punishment, which was exercised during Fetha

Negest, like stoning to death, throwing the condemned person into burning fire, or to

employ the sword in executing the convict at public were common.

Death sentence was introduced in 1930 penal code of Ethiopia in situations like:

Homicide151

Giving false evidence (if the taker of life is sentenced to death and put to

death because of false evidence given against him, the man who caused his death by

giving false evidence shall be sentenced to death.152

Crime committed against the Emperor and the Royal family and the

government.153

Criminals who start war in the country and cause it to be disturbed and

ravages.154

149 Penal code of the Empire of Ethiopia, 1930150 ibid151 ibid, Art 404, 405, 410, 411152 ibid, Art 366153 ibid, Art 171-172154 ibid, 175, 177, 179

48

There are also other offenses/crimes that cause the death penalty other than mentioned

above in the 1930 penal code.

The code didn’t make homicide the state affair. Rather it was left to the victims’ family

to determine the death of the offender. As it was clearly stipulated in Article 408 of the

1930 penal code, the state didn’t bother to prosecute the offender if the families of the

victim agree to take blood money from that of the murderer or his family. This can be

done even after sentences of death has been passed but before execution takes place.155

Generally, comparing with Fetha Negest, method of executing the offender in this penal

code is somehow humane. Those burning alive, stoning to death or use of sword was

not exercised after the coming of this code. The new code abolished mutilation but

retained death penalty and permitted flogging.156

2.6.4.The period from 1957 to the period of 1974

The 1957 penal code of Ethiopia also come up with the capital punishment. It provided

various punishments for various crimes. Having retained capital punishment, it goes on

to provide specific instructions. The punishment is to be executed by hanging, or on a

member of the armed forces, by shooting. However, executions are to be carried out

without any cruelty, mutilation or other physical sufferings.

Jean Graven, the drafter of 1957 penal code of Ethiopia, provide the reason why

Ethiopia retained death penalty and its necessity for homicide and write as follows;

“In Ethiopian context it would be in particular have been an inconceivable

mistake, and even an impossibility, to abolish the death penalty at the present

time. It is not only necessary for social protection, but is based on thevery

deepest feeling of the Ethiopian people for justice and for atonement. The

destruction of life, the highest achievement of the creator, can only be paid for

by the sacrifice of the life of the guilty person. As in the Christian European

system of the Middle Ages, death is always the necessary condition for the

155 ibid, 408156 supra note 137

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pardon and salvation of the sinner, and also for the expiation for the evil which

he has committed, it is accepted and approved by all, and in the first place by

the criminal who has deserved it, and is carried out in a dignified atmosphere

quite different from that of our former executions with the ax or guillotine.”157

Under the penal code of 1957, many crimes that cause death penalty like, murder

(Art.522), robbery (671), crimes against the emperor and others. In 1957 penal code,

even criminal attempts may cause the death sentence. For example outrages against the

Emperor of the Imperial family (248), outrages against the dynasty (Art.249), outrages

against the constitution and constitutional authorities (Art.238) and uprising and civil

war (240) are attempts that may cause death sentence in 1957 penal code of Ethiopia.

Generally, in 1957 penal code death penalty was maintained but with all necessary

protection as to the instance of application and the condition of administration. It

applies in case of grave offense, such as homicide, genocide, treason, armed robbery

and so on.

2.6.5.The period from 1974 to the period of 2004

This is a time when the 1957 penal code was amended by special penal code of the

1974(proclamation no.8/1974) by increasing the sanction of certain types of crime. A

November 1974 decree introduced martial law, which set up a system of military

tribunals empowered to impose the death penalty or long prison terms for a wide range

of political offenses. The decree applied the law retroactively to the old regimes

officials who had been accused of responsibility of famine deaths, corruption, and

misadministration and who had been held without formal charges since earlier in the

year.158

157 Fasil Nahom, “Punishment and Society: A development approach”, Journal of

Ethiopian Law; vol.12 (1982) p. 129

158 supra note 137

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In July 1976, the then government amended the penal code to impose the death penalty

for “anti-revolutionary activities” and economic crimes like hoarding, overcharging,

and interfering with consumer commodities.159

In 1981 the amended special penal code replaced the special penal code. This penal

code included offenses against the government and the head of state, such as crimes

against the states’ independence and territorial integrity, armed uprising, and

commission of “counter-revolutionary” acts, which is also available in the earlier

special penal code, breach of trust by public officials and economic offenses which

result the death penalty.160

The military penal code was applied until the Transitional Government come to power

and returned back the 1957 penal code in 1988 E.C. Under the FDRE government

Ethiopia regulated the society mostly by the 1957 penal code until the coming of the

2004 Federal Democratic Republic of Ethiopian criminal code.

2.6.6.The period after the FDRE criminal code

The FDRE criminal code, which is enacted in 2004, has replaced the 1957 penal code.

The new code tries to properly address crimes born in advances of technology and the

complexity of modern life. The 1957 penal code was needed for amended because of its

failure to properly address new crimes like hijacking of aircraft, computer crimes and

money laundering. The 1957 penal code of Ethiopia give little attention as to crimes

related to corruption and drugs. In order to cover all these backlogs the FDRE come up

with the new modern criminal code.

Like the 1957 penal code, the FDRE criminal code retained death penalty for crimes

that have grave nature and if they have serious danger to the public health and life.

159 ibid160 ibid

51

Under the FDRE criminal code, there are over thirty-two situations under which one

may possibly be subjected to capital punishment. These crimes are scattered in the code,

mainly in four book of the FDRE criminal code. Twenty six of the provisions under

which one possibly punished by death are found under book three,161 two under book

four,162one under book five,163 and the rest three under book six.164

Book three is all about offenses against the state or against national or international

interests. Book four deals about crimes against public interest or the community. Book

five is about crimes against the individuals and the family, and book six is against the

property. Each book is divided into several titles, chapters, sections, paragraphs and

articles.

The following are articles that entail death penalty under the Federal Democratic

Republic of Ethiopian criminal code. Under book three of the code there are 26 articles

entailing death penalty these are

1. Art.238 outrages against the constitution or constitutional order

2. Art.240 Armed Rising of Civil war

3. Art. 241 Attack on the political or territorial integrity of the state

4. Art.246 Attack on the independence of the state

5. Art.247 Impairment the Defensive power of the state

6. Art.248 High Treason

7. Art.251 Collaboration with the enemy

8. Art.252 Espionage

9. Art.258 Aggravation to the crime

10. Art.269 Genocide

11. Art.270 war crimes against civilian population

161 Federal Criminal Code of Ethiopia, criminal code, Arts 238, 240, 241, 246, 247, 248,

251, 252, 258, 269, 270, 271, 272, 273, 275, 276, 278, 288, 298, 299, 303, 311, 312, 313,

316, and 317

162 ibid, Arts 512 and 514163 ibid Art 539164ibid Arts 671, 672, and 673

52

12. Art.271 war crimes against wounded, sick or shipwrecked persons or medical

services

13. Art.272 war crimes against the prisoners and interned persons

14. Art.273 pillage, piracy, and looting

15. Art.275 Dereliction of duty towards the enemy

16. Art. 276 Use of illegal means of combat

17. Art. 278 Franc Tireurs

18. Art. 288 Desertion

19. Art. 298 Insubordination

20. Art. 299 Mutiny

21. Art. 303 Breaches of Guard duty

22. Art. 311 Demoralization of the defense force

23. Art. 312 Cowardice

24. Art. 313 Capitulation

25. Art. 316 Abandonment of a wounded or killed member

26. Art. 327 Sabotage

Under book four of the code the following two provisions entail death penalty.

1. Art 512 Grave cases of crimes against freedom and security of

communication

2. Art 514 spreading human disease

Under book five Article 539, which talks about aggravated homicide, entail death

sentence, and

Under book six the following offenses are punishable by death,

1. Art 671 Aggravated robbery

2. Art 672 looting

3. Art 673 piracy

Generally, there are around thirty-two provisions that can impose death penalty for

specified crimes in the FDRE criminal code. This all shows us that the general

perception of international human right is not taken into consideration. Despite the

53

growing international human rights in general and standards on the abolition or

limitation of death penalty in particular, having this much provision entailing death

penalty shows us our misperception of international human rights.

CHAPTER THREE

THE COMATIBILITY OF DEATH PENALTY WITH

HUMAN RIGHTS AND ETHIOPIAN CRIMINAL JUSTICE

This is the final part of the thesis and under this chapter the compatibility and necessity

of death penalty with human right laws is briefly discussed in detail and again its

necessity and compatibility with the objective of Ethiopian criminal justice is generally

analyzed. At the end the writer wounds up with the conclusion whether or not the

principle of capital punishment contradicts with human rights and with the purpose of

criminal justice.

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3.1 Human Right and Power of State to Punish

Human rights are rights that are belong to an individual as a consequence of being

human. They refer to a wide continuum of values that are universal in character and in

some sense equally claimed for all human beings.165Human person possesses rights

because of the very fact that he is a person, a whole, a master of himself and his acts,

and which consequently is not merely a means to an end, but an end, which must be

treated as such. The state and the law exist for individual living in a society. The state

and the law protect the individual against being treated as a mere means, and support

the establishment of the conditions for his /her comprehensive development.166

Human rights are natural rights. This right do not emanate from the government will or

from individual convention. Human rights are protections to which all human beings are

entitled because of their humanity and not because of their status or individual merit.

The states are subordinated to protection of human rights and this may be realized only

in the limits of respect for fundamental rights and freedoms. With the introduction of

this model, in spite of the fact that human rights law was created, among other things, to

protect individual from the power of state, the state increasingly becomes regarded as a

guardian of human rights.167 The protection and promotion of human right is directly

related to the power and duties of the state/government. The promotion of human right

precedes the protection of human rights. If some of the declaration (UDHR) embodied

in the national constitution, it is classified as promotion of human rights. On the other

hand, acceding, ratifying and enforcing the rights convention like ICCPR, ICESCR and

others equivalent to protection of the rights.168

165 The New Encyclopedia Britannica, (15th ed., 2005), vol.6, p.137

166 Solomon Abadi, Materials for the Study of Constitutional Law II (Human Right Focus), 2002, unpublished Mekelle University Library167 Marek Piechowiak, ‘What are Human Rights,’ (1997) p.9, 168 ibid

55

The states have a duty to protect human rights. G. Tunkin, wrote on his book ‘Theory of

International Law’ that;169

1. All states have the duty to respect the fundamental rights and freedoms of all

persons with in their territory;

2. States have the duty not to permit the discrimination by reasons of sex, race,

religion or language and;

3. States have a duty to promote universal respect for human rights and to

cooperate with each other to achieve this objective.

In democracy a government does not grant rights and freedoms but is created to protect

those rights and freedoms that every individual possesses by virtue of their existence.

According to John Locke the power of state is limited and people may legitimately

overthrow a government when it has breached its trust. The government has a duty to

respect, preserve, fulfill and educate human rights. Here this paper only emphasize in

respecting and preserving of human rights. A government has a duty to take a legal

action on individuals or groups or institutions that violate or abuse of human rights.

According to the believe of the 17th and 18th centuries political philosophers like Locke,

the individual human being is the most precious value in human society. The moral

justification for the existence of government is to liberate the individual from the

economic, political, religious and moral restrictions. This is possible by instituting

government whose power is limited.170 A government that has come to power this way

is only an agent, a mere instrument for implementing peoples will, having no

independent and inherent power. The principle is that human being does not exist for

the benefit of the state, but the state exists for the benefit of the human beings.

Therefore, the state is there only to serve the best interest of the people because the

people for the people bring it there. Government is important for the protection of

human rights. Human rights cannot be preserved without the government but the

problem arises when the government itself is inherently hostile to those rights.

169Makolm N.Shaw, International Law (5th ed., 2006) p.250 170 supra note 167, pp.9-10

56

As mentioned above states have rights and duties. In order to perform its duties

efficiently the government (the state) backed by enormous discretion. However, the

rights and duties of the state as regards to the overall protection of the community

clearly conflicts in many instances with the individual rights of citizens. This is the

reason why limiting the power of state is needed.

The state has the power and duty to punish criminals. All forms of the punishment

applied by the government with one purpose or another deprive the individual some

right. Nevertheless, it is still the will of the people themselves that criminals must be

punished because they have endangered public security. Not punishing such individuals

may develop the stage of barbarism.

The right of individual is most vulnerable to violations when the person is accused of

crime. The mere fact that a person is prosecuted doesn’t mean that nature has

withdrawn all the rights that has bestowed on him. Experience over a long period of

time in different places evidenced that one of the situation in which human right

violation is at its peak starts at the moment, the suspect is arrested. Responding to this

problem right of accused was introduced, i.e., the right to be presumed innocent until

proven guilty. As a successor of the rights of the accused the most fundamental human

right the right not to be subjected to inhuman and degrading punishment comes. The

Federal Democratic Republic Of Ethiopian constitution, like Universal Declaration of

Human rights and other human right instruments provides prohibition of inhuman

treatment and inhuman punishment.

The infliction of punishment should be made primarily with the affirmation of man and

his freedom, namely, his value as man. It has to be made on the presumption that unlike

animals man has to take responsibility for his deeds therefore he has to take punishment

that his wrongful act incurs. Punishment is only applied on human beings because they

can take a lesson from suffering the pain. However, no matter punishment must never

be so cruel as to cause suffering more than necessary to cause the reformation of the

criminal and the method of punishment should be selected taking into account the

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human feeling of the criminals. The method should not be so degrading as to treat the

criminal as object.171 Many international human right documents to this situation for this

has been striking importance. Article 7 the ICCPR, and Article 5 of UDHR, Article 5 of

African Charter on Peoples Rights (ACHPR) are few among them to mention.

The inherent dignity and of the equal and inalienable rights of all member of the family

is the foundation of freedom, justice, and peace in the world.172 Therefore, any

individual or organized institution should not violate inalienable human rights.

However, in times of public emergency that threats the life of the nation and the

existence of the states which is officially proclaimed, states may have temporarily limits

human rights save some few rights which are inalienable all times like the right lo life,

protection against inhuman and cruel punishment, etc.

Generally, states have a legal responsibility to prevent human rights violations and to

use the means at their disposal to investigate and punish such violations. Where this did

not happen, the state concerned had failed in its duty to ensure the full and free exercise

of these rights these rights with in its jurisdiction.173 But the issue is how to find

reasonable balance between the duty of state to provide security for its citizens and the

right of individuals to be protected from the oppression by states.

3.2.Death Penalty and Human Rights

Under this topic I am going to discuss whether or not imposition of death penalty on an

individual for committing certain particularly heinous crimes against society violates

that individual’s human right. All major international human rights declarations,

conventions and covenants stipulate that every one has the right to life, liberty and

security of person. The debate about death penalty does not usually employ the

171 Cliff Roberson, Criminal Procedure Today: Issues and cases, (2nd ed., 2003) p.440

172 Preamble of Universal Declaration of Human Rights, Dec. 10, 1948173 supra note 169 p.362

58

terminology of human rights. Nevertheless, the use of death penalty intersects with

international law and is challenged by it.174

The reasons why countries abolished death penalty in increasing number vary from one

country to other. For one state, it was broader understanding of human rights. For

instance, Spain abandoned the last vestige of death penalty in 1995 stating that “… the

death penalty has no place in the general penal system of an advanced civilized

society…”. Similarly, Switzerland abolished death penalty because it constituted “a

flagrant violation of right to life and dignity”.175 Of course, those countries who retained

the death penalty in their national laws have their own justification and their

justification also vary from one state to other state. In places like Soviet Union it might

be preventing embezzlement, in Singapore it might be preventing drug traffic, in

Nigeria it might be preventing armed robbery, in United States it might be deterring

murder, in Guatemala it might be preventing revolution and in countries like Ethiopia it

might be preventing counter-revolution.176 Generally, those countries that have retained

and abolished capital punishment has their own justifications.

Defining the death penalty as human rights issue is a critical first step, but one may

resist by countries that aggressively use the death penalty. When the General Assembly

considered a resolution in1994 to restrict the death penalty and encourage moratorium

on executions, Singapore asserted, “capital punishment is not a human right issue”. In

the end, 74 countries abstained from voting on the resolution and it failed.177 But for an

increasing number of countries the death penalty is a critical human right issue. In 1997,

the United Nation High Commission for Human Rights approved a resolution stating

that “the abolition of death penalty contributes to the enhancement of human dignity

174 supra note 108

175 ibid176http://www.aubreyharris.com/docs/The_Death_Penalty, %20A

%Question_of_Human_Right.pdf

177 supra note 174

59

and to the progressive development of human rights.178 This resolution is strengthened

in subsequent resolutions by a call for a restriction of offenses for which the capital

punishment can be imposed and for a moratorium of all executions, leading eventually

to abolition.

Generally, under this chapter whether the imposition of death penalty contradict with

human right laws or not will be discussed clearly and briefly. In order to come up with

the conclusion the writer will try to see the death penalty with some fundamental human

rights provided under the FDRE constitution and other international human rights.

3.2.1.Right to Life and Death Penalty

Just like birth, death is the supreme mystery of our lives, and no violence must be

interfere with this natural process; we come into this world and leave it according to

rules that were created before man.179

The FDRE constitution provides under Article 15 that “Every person has the right to

life. No person may be denied of his life except as a punishment for a serious criminal

offense determined by law.”180 In doing so, this provision creates the basis for the death

178 United Nations High Commission for Human Right Resolution, April 13, 1997179 Aleytina Kozina, Death Penalty: Human Rights and Capital Punishment: Available on

http://human right/Death Penalty Human rights and Capital Punishment.htm

180 Article 15, Federal Democratic Republic of Ethiopian Constitution

60

sentence as the ultimate punishment for grave crimes. The question raised here is

whether the state should take away something it cannot give.

When we come to Article 10 of the FDRE constitution, which declares “human rights

and freedoms emanating from nature of mankind are inviolable and inalienable”.181

Right to life is one among rights emanating from nature of mankind. The above article

unequivocally declares that humans by virtue of their nature possess human rights and

freedoms and they are inviolable and inalienable. This is because of the fact that they

flow from and protect human nature, which could be endangered if these rights are

taken away. Right to life is not a privilege granted by the state to the individual but it is

inherent in the human being by the very fact that he/she is a person. There is no external

granting authority such as state or society. If we were granted natural rights by the state,

for instance, then there is no sense of speaking about natural rights because the would

be the same as civil rights and legal rights.182

Blackstone has placed the human life at the apex: “life is the immediate gift of God, a

right inherent by nature in every individual… of such high value…”183. It is recognized

that the right to life is the most fundamental and basic human rights. Indeed, the right to

life is the fountain from which all the other human rights spring and it therefore

deserves the greatest respect. The UN commission on Human Rights affirms the

significance attached to the right to life in its saying ‘for the people in the world today

there is no important question than those of preserving peace and ensuring the cardinal

right of every human being namely the right to life.’184 Therefore, it is possible to

conclude that all rights derive their authority from the right to life.

Like the FDRE constitution, some international laws provide death sentence with the

right to life. All major international human right declarations, conventions and

covenants stipulate that everyone has the right to life, liberty and security of person. The 181 ibid, Art.10182 supra note 179183 Dr. Durga Das Basu, Human Rights in Constitutional Law, (2nded., 2003) p.392184 B.G Ramcharan, The Right To Life In International Law, 1995, p.5

61

official position of UN General Assembly is that it is desirable to abolish the death

penalty in all countries and that the crime to which it applies should be progressively

reduced. Death penalty is the ultimate denial of the right to life.

Death penalty is a criminal punishment imposed on individual for committing certain

serious offenses. Different types of punishments are designed to serve their goals by

depriving the criminal the enjoyment of certain rights. For example imprisonment

restricts the individual’s freedom of movement. There are also other forms of criminal

sanctions, which limit the criminal’s choice of action. Likewise death penalty militates

against the individual’s right to life. Death penalty is a system of punishment by which

the state takes away the life of individual criminal for the evil he has committed.

However unlike other punishments, once a person is punished by death he/she loose

his/her right to life and it cannot be re-exercised. This makes death sentence more

serious than others.

When we look the FDRE constitution it recognized the inviolability and inalienability

of natural rights, and Article 14 specifically recognized inalienability of right to life.

According to our constitution we do have not only natural rights but also these are

“inalienable” rights. What does the word inalienable right mean? Black’s Law

Dictionary defines inalienable right as “rights, which are not capable of being

surrendered or transferred without the consent of the one possessing such rights”.185

This means that inalienable right is right that cannot be taken away or cannot be

transferred.

There are rights like constitutional, civil and legal rights. These rights are alienable

rights. Since they are alienable the granting authority can take them away, which is the

source of the rights in the first place. However, our constitution provides a special term

that inalienability of right to life, security and property of person under Article 14.

However, this paper only rely on the right to life.

185 Deluxe, Black’s Law Dictionary, (6th ed., 1990)

62

As mentioned earlier right to life is a natural right that fall under Article 10 of the

FDRE constitution. Again also according to both Article 10 and 14 of the FDRE

constitution, right to life is inalienable right, which is not granted by state or society but

from nature. Therefore, it cannot be forfeited or transferred. The question raised here is

if we accept the idea of inalienable right to life as declared in the FDRE constitution

Article 10 and 14, how we advocate capital punishment?

If the right to life is truly “inalienable right” the state cannot take it away and no person

may transfer it or forfeit it. That is the very meaning of inalienable right. The writer of

this paper believe that the right to life is inalienable right granted by our constitution

and once we subscribe the notion of inalienable right to life, we can’t advocate death

penalty at the same time. Since our constitution clearly provides the inalienability of

right to life this right cannot be taken away or given up. It is part of the nature of the

person as human being. The writer of this paper argued that death penalty is

unconstitutional because it violates the inviolable human right, right to life,

constitutionally guaranteed as per Article 14 of the FDRE constitution. This is because

the fact that capital punishment takes away more than the right to life, for it takes life

itself.

In the recent decades, United Nations, under UN Resolution 2857 of Dec. 1971, The

Second Optional Protocol to the International Covenant on Civil and Political Rights

(1989) and the Commission on Human Rights, Resolution 8, (1998), tries to abolish

death penalty or limit the offenses for which the death penalty may imposed.

Again also European Additional protocols and Protocol to the American Convention on

Human Rights To Abolish the Death Penalty (1990) recognized the incompatibility of

death penalty with the right to life and other human rights and abolished the death

penalty.

Traditionally, capital punishment was accepted punishment for the serious criminal and

it was not deemed contradicts with the right to life. However, today the attitude modern

63

societies have towards death penalty is changed. International tribunals recognized that

human right norms must be interpreted in an evaluative dynamic manner. Even if death

penalty was not deemed contradict with the right to life in 1948, 1957, or 1969, it may

well be today or at some future date.

The writer of this paper believes that the highest possible punishment should not be

death penalty because a state that respects life being sacrosanct should not lawfully

murder. Today, when the world is moving towards abolishing death penalty from the

globe, when UN is encouraging the abolition of death penalty for enhancement of

human rights, when death penalty is considered as non-civilization, Ethiopia still

remained the death penalty in the New FDRE criminal code of 2004. As I have stated in

chapter two of this paper, there are many provisions entail death penalty in FDRE

criminal law of 2004.

Therefore, the writer of this paper conclude his idea that it is not wise to retain death

penalty in Ethiopia at present time, when the death penalty contradicts the inalienable

right to life provided under the constitution, and when awareness of people towards

human right is more developed and when so many countries of the globe adopt and

ratify protocols explaining the inhumanity of death penalty and abolish it.

3.2.2.Freedom of Torture and Death Penalty

The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment of the 1984 defines torture as “any cruel act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on person for such

purposes….” The FDRE constitution provides prohibition against inhuman treatment in

Article 18. It says in full “Everyone has the right to protection against cruel, inhuman,

degrading treatment or punishment”.186 What kinds of punishment are categorized as

cruel and inhuman treatment? There may be a number of possibilities to categorize

certain punishment as cruel or inhuman. It might be suggested that, for example,

186 Federal Democratic Republic of Ethiopian Constitution, Art.18

64

punishment that are painful and infrequently administered. The interpretation of cruel

and inhuman punishment is subject to problems. One may reasonably argue that the

meaning of “cruel and inhuman” punishment reflects the consensus of public opinion at

any one time.

Article 5 of the Universal Declaration of Human Rights states that no one, for any

reason, under any circumstances, even in national emergencies should be subject to

cruel, inhuman or degrading punishment. When we look Article 6(2) of the ICCPR, it

retains the death sentence for “the most serious offenses”. Again Article 6(6) of the

same covenant declares that ‘Nothing in this article [Article 6] shall be invoked to delay

or to prevent the abolition of capital punishment by any state party to the present

covenant. Furthermore, when we read Article 7of the covenant declares, “No one shall

be subject to torture or to cruel, inhuman or degrading treatment or punishment.”187

There are a human right lawyers who could argued that, notwithstanding Article 6(2) of

ICCPR, a dynamic interpretation of Article 7 of the same covenant (“no one shall be

subjected to torture or to cruel, inhuman, degrading treatment or punishment”), ought to

be interpreted to denounce any imposition of capital punishment.188 Usually even those

who impose it do not deny the cruelty of death penalty. This is because it is impossible

to punish a person by death without torturing or inflicting some pain to the offender.

However the cruelty of death penalty is justified. It is justified in the same way that

those who carry out them justify all violations of human rights. It is justified in the same

way that when authorities tried to justify Dean Tshenuweni Simon Farisani’s treatment

and the treatment of others in south Africa, when they told him, as you will recall, it is

better for one man to be killed than the whole society to be troubled; it is better for few

people to be tortured the whole society to be troubled.189 They justify torturing

individuals as for the protection of the whole society. That means it is better to sacrifice

the individual for some higher cause.

187 International Convention on Civil and Political Right, 1966, Art.7188 Roger Hood, supra note 94, p.20189 supra note 176

65

Death penalty by its nature is “cruel and unusual” or “cruel, inhuman, or degrading.”

The constitutional court of South Africa that the state’s death penalty statutes in1995,

under a clause of its interim constitution forbidding “cruel, inhuman or degrading

treatment or punishment.”190 Again also European court of Human Rights and some

national courts have held that, even if capital punishment is not prohibited, the period of

waiting prior to execution may itself produce a form of inhuman and degrading

treatment or punishment.191 According to the definition of torture, in Convention

Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of

1984, it is not only physical suffering that can be considered as torture and cruel

punishment but also mental suffering. When we come to our country, Ethiopia there is

many people sentenced to death waiting execution. Executions were rarely happened to

those sentenced to death. Therefore, to conclude the idea a person sentenced to death is

not free from mental or psychological torture until the execution is carried out.

The death penalty defies the right of citizens to be protected from such cruel, inhuman

or degrading treatment or punishment. Both inhuman treatment and punishment is

prohibited. But what constitute inhuman and cruel under Article 18 of FDRE

constitution is subject to controversy. It needs interpretation to what constitutes cruel,

inhuman, and degrading treatment or punishment. And the interpretation of this

provision seems the defendant is the beneficiary of the doubt.

Torture cannot be separated from the death penalty. Death penalty may be just

punishment for certain heinous crimes but no injustice is done if we refrain from

imposing death penalty. Even the government that practices it universally condemns

torture. Usually supporters of the death penalty justify that they are going to kill these

people because they deserve to die. They deserve to die because they committed acts,

which put them outside of the human race. They say that it is foolish to talk about their

having human right-they can’t have human rights. The government applied death

sentence always tells that it is not that they are torturing, disappearing or locking up

people; but torturing, disappearing or locking up “terrorist” or “communist” or “counter

190 ibid191 ibid

66

revolutionaries” or others because of their acts should no longer treated as part of

human race.192 The author of this paper think that such governments do not like to be

reminded that the very meaning of human rights that they are inalienable. Such rights

are not awards given by government for good behavior. It is difficult to kill or torture

people if you regard them as being human.

To conclude the idea under this topic, death penalty can be categorized under the

inhuman, cruel and degrading treatment or punishment and it contradicts with the rights

provided under Article 18 of the FDRE constitution. The writer further believes that in

refraining from imposing death penalty the state contributes to reducing our tolerance

for cruelty and thereby fosters the advance of human civilization. Article 25 of the

FDRE constitution provides the right to equality and equal protection of the law of all

people. All person whether criminal or not has the right to equal protection of law.

However the cruel and inhuman punishment inflicted on person while execution of

death penalty also violates the equal protection of the law provided under Article 25 of

the FDRE constitution. Due all these aforementioned reasons one can possibly say

death penalty is unconstitutional and violates fundamental human right laws.

3.3.The Deterrent Effect of Capital Punishment

Under this topic the writer will raise whether the death penalty is more deterrent than

others. If the death penalty is needed to deter future murderers, that would be strong

reason in favor of using death penalty, since otherwise we could be sacrificing the

future victims of potential murderers whom we could have deterred.193 Most

abolitionists believe that death penalty does not deter more than other penalties.

192 supra note 184193 Jeffrey Reiman, ‘Against Death Penalty’, in Paul Leighton and Jeffrey Reiman(eds),

Criminal Justice Ethics (2001), p.425

67

The death penalty poses a set of distinct question of philosophical, political and

criminological nature.194 Although different states abolish capital punishment for

different reasons they share common grounds that of the inhuman, unnecessary and

irreversible character of capital punishment, no matter how cruel the crime committed

by the offender. Besides, the international communities as the whole, in so far as both

the Rome Statute of The International Criminal Court and the United Nations security

council Resolution establishing the International Criminals Tribunals for the former

Yugoslavia and for Rwanda do not provide the death penalty among the range of

sanctions, even when the most serious crimes, including genocide, crime against

humanity, and war crimes are to be tried.

As discussed earlier in the first chapter of this paper deterrence can be categorized into

specific and general. Here we will try to discuss whether capital punishment deters the

crimes more than other penalties in Ethiopian context.

1. Specific Deterrence

The FDRE criminal law has incorporated capital punishment to prevent wrong doers

from committing further crimes or another crime.195 This is the specific deterrence

character of our criminal justice. This is revenging the offender for his/her wrong. We

are going to kill the offender, but frightening, unpleasant, or fear are nothing for the

offender who is going to die. Since once a person died has no chance to leave again

frightening, unpleasant, or fear of the offender have nothing to do not to commit further

crime. This contradicts with the objective of Ethiopian criminal law. Modern criminal

laws do not take revenging the offender as their objective. Capital punishment is the

194. http:/www. EUROPEAN UNION MEMORANDUM ON THE DEATH

PENALTY.htm

195 The Federal Democratic Republic of Ethiopian Criminal Code, 2005, Art.1

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most severe and inevasible punishment that is considered as a fitting to the crime

committed. It indicates that killing a person who has killed another person.

Our previous government used death sentence as revenge. This is today characterized as

the act of undemocratic states that only wants to satisfy their interests not public

interest. When we kill the offender to deter him, we are calling another commission of

crime from the side of the offender’s family and imposing a pain on the family and

relatives of the offender. This may cause another problem. For example, when the

offender is killed the relatives of the offender may incite for revenge against the victims

family. Due to this reason, punishing the offender by death may result with a long

bloody conflict and hostility among society. This may contradict with the very purpose

of Ethiopian criminal law as expressed in the FDRE criminal code as to ensure order,

peace and the security of the state, peoples, and inhabitants for public good.

People may commit crime by the influence of different reasons. It may be when they

need to possess certain things, because of mental factors such as emotionality and

anger; economic problem such as poverty or lack of opportunities and other problems.

However, capital punishment does not consider these situations as stipulated under the

FDRE criminal code. The writer of this paper believes that killing someone never

solved any problem never benefit the whole society. The society may be benefited from

the rehabilitation of the offender.

Again also the very purpose of our criminal justice is not to create pain to one part of

society and to create happiness to the other part of society. Rather it is generally for the

societal happiness and protection. However, when death penalty is applied, we are

imposing psychological pain on the victim’s relatives and society. We are putting the

family of the offender without any assistance. These all makes capital punishment non-

deterrent.

2. General Deterrence

69

This is the assumption of criminal law that punishing criminals discourages other

potential offenders from committing crime.196 It is difficult to measure the effectiveness

of the fear of punishment on prospective wrongdoers, except as to certain widespread

statutory violations, such as petty motor vehicle offenses, black marketing etc.197 The

theory of general deterrence as discussed in chapter one believes that the threat of

punishment deters prospective offenders in the general community. It is based on the

assumption that criminal behavior can be prevented if people are afraid of penalties.

The FDRE criminal law provides this term in the article one of the codes. It reads as “…

to make them [the offenders] a lesson to others”.198 However there are many reasons

that make ineffective capital punishment as general deterrence. The following are some

among many;

Some offenders who are engaging committing capital crime want to achieve their goals.

They know the probability of response or attack from the victims or other persons

during the commission, probability of loosing their life, and probability of punishment

by death. Knowing these all when a person engaged in committing capital crimes, death

penalty fail to deter such persons.

As discussed in chapter two of this paper the FDRE criminal law encompasses over

thirty-two articles that may entail death penalty. One may comment that we have the

“bloodiest code” the twenty first century witnessed, when the ‘eye for an eye’ mentality

should be part of history we frown up on. But the history of punishment shows that

there is no necessary correlation between the severity of punishment and the incidence

of the crime.199 This is understandable when the fact of the complexity of the causation

is born in mind. This may also shows the non-deterrent effect of capital punishment.

Article 117(3) of the FDRE criminal code says in full: “death sentence shall not be

carried out in public by hanging or any other inhuman means.” However, it did not 196 Barry Latzer, Death Penalty Cases, 2nd ed., 2002 p.13197 Steven Lowenistein, Materials for the Study of the Penal of Ethiopia, 1967 p.24

198 supra note 195199 supra note 178

70

clearly express the mode of executing death sentence. The execution body only knows

the means of execution. According to the writers view it is difficult to deter prospective

offenders and educate the people without observing and knowing the means of

execution. This is because the death of the offender and place of execution may impose

on the prospective offenders the threat of fear. Therefore, non-disclosing the means of

executing capital punishment by itself put in question the deterring effect of death

penalty.

Generally, capital punishment cannot deter prospective offenders or its deterring effect

is not this much important. Humanistic values, ethical points of view and human rights

reasons weighed in favor death penalty. For our criminal justice the writer personally

opt for more humane, but also more effective, criminal justice system paved the way for

considering appropriate alternative criminal sanctions to the death penalty. The writer

further assume non-lethal penalties such as long term or life imprisonment instead of

death. Based on all these mentioned above life imprisonment is more deterrent than

death penalty.

3.4.Problems of Executing Capital Punishment

Miscarriage of Justice: when we apply death penalty there is a probability of

mistaken killings. Of course the probability of innocent execution is rare, but do occur.

Over a long enough time they lead to execution of some innocents. If we allow death

penalty innocent people will also continue to be executed. This is not morally right

because life cannot be restored once taken.

Capital punishment by its nature is irrevocable. Here the point is that the innocent are

sometimes wrongfully convicted and if they receive the death penalty there is no way to

correct the wrong done to them. If someone is executed and later found to have been

innocent, there is no way to give him back the life that has been taken because life

cannot be restored once taken.

71

In a recent survey of professor Hugo Adam Beada and Michael Radelet found that 7000

persons were executed in the USA between 1900 and 1985 and that 35 were innocent of

capital crimes.200 Again also the German refugee scholar and lawyer Max Hirschberg, in

his study of wrongful convictions rightly observed, “Innocent people wrongfully

convicted are countless.”201 These all shows us that through a long run the innocent

person may be executed. Taking all these into consideration the author believes that the

possibility that innocent person could be executed is sufficient in itself to warrant an

end of capital punishment.

When we come to the FDRE criminal law it is designed to contribute towards the

promotion of a fair judicial system in the country. However, the author believes that

capital punishment can hinder the promotion of fair justice system. In proving whether a

person is a guilty of a crime or not there is a general principle that “proof beyond

reasonable doubt” required. The writer of this paper think that a higher burden of prove

is required when the sentence may be death. Before the government deprive a

defendant’s life, it must prove the defendant’s guilt by a standard more vigorous than

“beyond reasonable doubt”.

The term “beyond reasonable doubt” does not mean ‘beyond all possible doubt’. From

the term reasonable doubt we understand that there is a doubt but that doubt should be

required reasonable. In our criminal justice we don’t have any special procedure for

proving capital punishment. The writer think that prove beyond reasonable doubt for a

crime of capital punishment causes injustice. This is because even in countries like

USA, which have well skilled legal professional and well-organized legal system,

mistake in criminal justice is obvious as mentioned above. For instance, between 1973

and 2005, 123 people in United States were released from death row when the new

evidence of their innocence emerged.202 Therefore, based on the above premises one can

imagine how many people may convicted and executed by mistake in developing

200 http://www.123helpme.com/preview.asp?id=11170, retrieved on May 11, 2009201 Thomas W. Simon, supra note 92, p.482

72

countries. Based on the above reason the writer think that prove beyond reasonable

doubt is not enough for proving the guilty of capital offense entailing death penalty. In

order to make a person guilty of capital punishment prove of guilty should be “beyond

all possible doubt”. After the judge finds a defendant guilty beyond reasonable doubt it

should not proceed to the penalty phase unless it also certifies it has found the defendant

guilty beyond all possible doubt.

In countries like Ethiopia the probability of miscarriage of justice is high comparing

countries like United States and other developed countries. In our country many people

are living in a poor condition and the numbers of such peoples are high especially by

those who commit capital crimes. Most probably they are poor peoples that engaged in

committing capital offenses. After committing a crime when they brought to the court

they may receive poor legal representative. Usually the quality legal representation is a

better predictor of whether or not someone will be sentenced for death than the facts of

the crime. Generally, those who are poor in economy cannot afford better legal counsel.

Even if state assign for him/her, the assignee cannot fully protect him/her because of

less satisfactory of fees or fear of the person if set free. Therefore, due to all the above

reasons the use death sentence in our country can possibly cause injustice to the

convicted person.

Usually the famous crime inflicted death sentence in Ethiopia is murder. When we look

reasons why people commit murder the living conditions of individuals have its own

contribution or impact. Those who are economically poor and uneducated people are

most likely engaged in such capital offenses. The murderer may kill individual to get a

money or food. It is the writers’ opinion that causing a death of the offender by denying

basic needs of him is not fair. If we provide him food, job opportunity, and good living

condition he may not engaged in such activities. The writer of this paper believes that

202 Facts and Figures on death penalty, available on:

http://www.dereches.org/deathpenalty, visited on, February 4, 2009

73

capital punishment bias against the economically and socially weaker sections and this

contradicts with the principle of fair justice system.

The FDRE criminal law says, “Death sentence shall not be carried out unless confirmed

by the head of the state. It shall not be executed before ascertainment of its non-

remission or non-commutation by the pardon or amnesty.”203 Those condemned to death

have the right to appeal to higher court and to petition for presidential clemency. The

president is empowered to commute capital sentence to life imprisonment.204 The

problem arises when the president of the country fail to confirm or commute the death

sentenced by the court. According to the FDRE criminal code it is impossible to execute

death sentence without confirmation of the president of the country. The criminal code

and the constitution of FDRE provide nothing under which condition can the president

confirm or not death sentence. It only gives the president discretionary power to judge

over the offenders life. Again the time limit under which the president can confirm or

commute the sentence of death is not clearly determined in both the criminal code and

the constitution. Therefore, the confirmation or commutation of the president may take

a long period of time. The long period of putting a person sentenced to death without

execution or commutation can possibly cause mental torture over the offender. This

violates the human rights of the offender.

Generally, these all are reasons why I oppose capital punishment for Ethiopian criminal

justice system

203 The Federal Democratic Republic of Ethiopian Criminal Code, 2005, Art. 117(2)204 The Federal Democratic Republic of Ethiopian Constitution, 1994, Art.28

74

Conclusion

As it is clear from the discussion punishment is the reaction of society against a person

who breaches the social order. In order to protect the rules and the society the state

applies punishment to those who transgress beyond their rights. The purpose of the

criminal law is to prevent the commission of crime against the public at large by

providing punishments as a major means to deter offenders and potential offenders and

to rehabilitate offenders as well as to enforce the social and public morality.

So far I have tried to show historical evolution of capital punishment in abroad and

Ethiopia. There are a number of possible arguments for both sides of the coin. In an

attempt to be fair, I have touched up on the main arguments for and against capital

punishment.

Capital punishment is one among different punishments applied for guilty of crime. It is

a punishment made by killing an offender who commits a specified crime in a judicial

system. Historically minor offenses were punishable by death. Different arguments have

been offered in support of capital punishment and against capital punishment by modern

thinkers and others. The opponents argued on the ground of deterrence, retribution,

75

community protection and so on. On the other hand the opponents argued on the ground

of non-deterrence, vengeance, human right violations and so on. Even the religious

followers hold different view as to the necessity of capital punishment. Historically

different modes of execution of capital punishment, which were considered as cruel and

inhuman, were applied.

The other thing is international movement of abolishing capital punishment. There are

organizations like United Nations, European Union, and Inter-American states

organizations that play a role in abolishing a capital punishment. There are also human

right defenders like Amnesty International and Human Rights Watch that argued for the

abolition of capital punishment in order to protect human rights. To day almost 2/3 of

the world countries in the world abolished the death penalty in practice and by law.

Ethiopia is one among countries retained death penalty in the world. The FDRE

constitution and criminal law allows the death penalty for serious criminal offenses. The

new FDRE criminal law contains over 32 provisions entailing or causing the death

sentence. The purpose and objective of the FDRE criminal law are to preserve the

peace, order, and security of the state and to protect the society at large by preventing

the commission of the crime. That is generally there are deterrence, rehabilitation, and

education purpose in our criminal law. Again, the FDRE criminal law provided to

promote fair judicial system, protection of human rights and to bring economic progress

in the country.

However, capital punishment contradicts with the human right provisions like right to

life, freedom of torture and others provided under the FDRE constitution and other

international human rights. In addition the existence of capital punishment can create a

problem of hindrance of the objective of the FDRE criminal law such as, revenge rather

than deterrence, prevent the chance of offender to rehabilitate, miscarriage of justice

will occur, violates the rights of the offenders, create unpleasant pain on the community,

avoid the economic benefit of the society and the state which can get during after

rehabilitation. Generally, capital punishment is not compatible with human rights and

76

modern criminal laws. Abolition of capital punishment is a better alternative to avoid

such problems.

77

Recommendation

The writer of this paper believes that capital punishment is not as deterrent as life or

long-term imprisonment. This is proved by the studies made in different countries. If we

punish a person by death small person witnessed such execution may be deterred from

capital offenses. But in case of long and life imprisonment there is a probability that

many person witnessed his punishment and those persons may be deterred from capital

offenses. In addition to this capital punishment has a retrospective affect. That is, it

comes after society is attacked, and the peace, order and security of the state are already

disturbed. It is better to use imprisonment (long term or life) instead of capital

punishment. In case life or long-term imprisonment there is probability of academicals

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and vocational trainings in prison and through this way prison administration has an

important to prevention further crime. This all benefits the society at large.

Rehabilitation is one among purposes of punishment. That means when we punish

individual it has a message for him not to commit further crime. Capital punishment

does not consider the chance to rehabilitate. Once capital punishment is applied it is

impossible to apply rehabilitation theory or to learn from his bad act. This is because

once a person is punished by death his chance to leave again is unthinkable and his

rehabilitation too. Therefore rehabilitation is more effectively possible by other form of

punishment like imprisonment, fine, etc.

Severity of the punishment is not the solution to the capital crimes. If severity of

punishment is the solution to capital offenses then the world could have used capital

punishment for every offence and then the world be free from crimes. However, using

violent punishments can never halt crime. When I say this I don’t mean that punishment

should be abandoned. But punishment should be in such away that it is capable of

deterring and rehabilitating criminals. Many factors contribute to the growth of crimes.

We should go to the roots crimes and then try to find solution to them. For example,

those people who engaged in criminal activities are especially those who have no job,

food and other materials needed for their life.

Mistake is unavoidable task in execution capital punishment. Human judgment is not

perfect; nor human wisdom is infallible. In execution of capital punishment miscarriage

of justice are possibly occurred for different reasons. It must be conceded that the

drastic and irrevocable punishment should be banned forever. If we abolished capital

punishment miscarriage of justice also shall be disappeared.

Capital punishment discriminates against the poor. Because of capital punishment

unequal application of the law takes place due to the poorness of those convicted

person. The poor do not have the means to hire lawyers. One may say that the

constitution gives the right for the accused to have a lawyer at the expense of the

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government if he is unable to have one. But practically such lawyers do not show the

interest to defend their clients. Hence in most cases the poor are subjected to capital

punishment, not because they are criminal but because they cannot be afford to have

lawyers. This problem is worse especially in poor countries like Ethiopia.

There is no repayment for the destruction of something irrevocable. The only practical

alternative to killing the worst the criminals we have is keeping them locked up for life.

By doing so offenders will come good people. If death penalty is applied it can create

unpleasant pain top the community, avoid economic benefit of the offender and the

state, which can get during and after rehabilitation.

Death penalty is retained in our laws. But the FDRE criminal law fails to identify the

modes of execution of capital punishment. Even though the 1957 penal code provides

two modes execution, hanging and shooting, the new FDRE criminal law is not clear as

to the mode of execution of capital punishment. The mode of execution is not publicly

known. This is the secret only known by the executing organ. The author of this paper

believes that non-disclosing the mode of execution of capital punishment shows non-

transparency of government as to this matter. If death penalty is mandatory to be

retained in Ethiopia it is better to specify the mode of its execution. Again also proof of

guilty should not only beyond reasonable doubt rather it should be beyond all possible

doubt.

Death penalty violate fundamental human rights like the inalienable right to life,

freedom of torture and cruel punishment, which is constitutionally guaranteed. Since

those of life and torture cannot be separated from capital punishment it is better to

abolish it forever.

Using the experience of those country which abolished death penalty and has lower

crime rates it is better to take in to consideration our capital punishment. Generally, for

all mentioned above the writer conclude that it is good if we abolish death penalty from

our laws.

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