30.07.2009 Feature Article

'He who kills must be killed'

'He who kills must be killed'
30.07.2009 LISTEN

A critical look at the death penalty or capital punishment

Electric chair, hanging, firing squad, lethal injection and stoning , choose your pick everywhere in the world these words bring to mind one of the most serious modes of punishment in criminal jurisprudence. There has been a lot of discussion nowadays in Ghana on whether or not Ghana should continue to apply it in Ghana.

Capital punishment also called death penalty is defined by the Encyclopædia Britannica as the” execution of an offender sentenced to death after conviction by a court of law of a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.”

This discussion seeks to add to the numerous discussion made about the topic made by the populace on the question of whether or not the death penalty should or should not be abolished in Ghana. I seek not to address all the views that may be put forward in the light of how sensitive thus particular topic happens to be and how important a topic it happens to be as we seek to move forward as a people in a democratic environment; moreover, as we think about how to rid our society from crime especially the more serious ones that are punishable by death.

Historical Background
Capital punishment is not a modern respond to the menace of crime but happens to be quite a historical move by society in general here in Ghana and all over the world. In the ancient Greece society crimes such as rape, treason and arson under the laws of Draco (fl. 17th century BC) were punishable by death. The Romans also employed the death penalty for certain crimes. One of the most ancient legal maxims (Lex talionis) interpreted into-“an eye-for-an-eye, a tooth-for-a-tooth, a life-for-a-life”, the Babylonian Code of Hammurabi (which allowed death punishment for 25 crimes), has been applied for time immemorial to ensure that capital punishment was used for only serious crimes.

It is also important to note that in ancient times, the actual execution was carried out through extremely barbaric, cruel and inhumane methods. Some of these methods include; crucifixion in ancient Israel, sawing of the victim into two in ancient china, flaying him whiles he was still alive, burning in oil as happened to John the disciple, burning at the stake at was done in Harlem “witches”, others included; decapitation by the guillotine in France or by an axe, hanging, drawing and quartering, and drowning amongst others. Severe historical penalties include breaking wheel, boiling to death, slow slicing, disembowelment, impalement, crushing (including crushing by elephant), stoning, and execution by burning, dismemberment.

Religious perspective
The two main religions in Ghana/world will be looked at to know how they view the capital punishment.

Christian perspective
Some Christians argue that the Old Testament passage “Whosoever sheddeth man's blood, by man shall his blood be shed” (Genesis 9:6). The sixth commandment, (Fifth in the Roman Catholic and Lutheran churches) is preached as 'Thou shalt not kill' by some denominations and as 'Thou shalt not murder' by others. As none of the denominations have a hard-line stance on the subject, Christians are free to make a personal decision. Although some interpret that John 8:7 Mathew Chapter 5–7 and Luke 6:17–49 of the Bible condemns the death penalty. Others consider Romans 13:3-4, Genesis 9:5–6, and Leviticus 20:1–27 to support it.

Muslim perspective
Some scholars of Islam are of the opinion that it is permissible only in the event that the victim or the family of the victim has the right to pardon the guilty person. However, there is no difficulty in reaching the conclusion that under Islamic jurisprudence (Fiqh), capital punishment is permitted.

Sharia law or Islamic law may require capital punishment but there is a lot of variation amongst Islamic nations as to actual punishment. In the Qur'an, death punishment is prescribed for various had 'fixed crimes' including rape. Though it will be interesting to know that murder is not part of such crimes, it is treated as a civil crime and is regulated by the law of qisas (retaliation) leaving to whether or not the person will be punished by death or whether the person will be made to pay a fee is left to the victim's family.

International reaction to death punishment
In the united states of the America, some states have already abolished this form of punishment (the first being Michigan as far back as 1846), though some states also continue to actively use it.

A study done in 2005 found that the following countries did the most executions: in the following order ,China, Iran Saudi Arabia, United States, Pakistan, Yemen, Vietnam, Jordan, Mongolia, Singapore and turkey.

A Gallup International poll from 2000 claimed, "Worldwide support was expressed in favour of the death penalty, with just more than half (52%) indicating that they were in favour of this form of punishment." A number of other polls and studies have been done in recent years with various results. The author in his bid to establish opinion polls on the subject consulted thirty-two polls and surveys conducted all over the world. Though the pollsters and the surveyors had various intents for the polls one thing clearly was established, majority were in favour of the death penalty.

International organisations
During the General Assembly's 62nd session in 2007, a bill was introduced calling for a universal ban. The approval of a draft resolution by the Assembly's third committee, which deals with human rights issues, voted 99 to 52, with 33 abstentions, in favour of the resolution on November 15, 2007 and was put to a vote in the General Assembly on December 18. It passed a non-binding resolution (by a 104 to 54 vote, with 29 abstentions) by asking its member states for "a moratorium on executions with a view to abolishing the death penalty".

Article 2 of the charter of the fundamental rights of the European Union affirms the prohibition on capital punishment in the EU.

International convention on civil and political right, like several other treaties, has an optional protocol prohibiting capital punishment and promoting its wider abolition.

Among non-governmental organisations (NGOs), Amnesty International and Human rights watch are noted for their opposition to capital punishment. A number of such NGOs, as well as trade unions, local councils and bar associations formed a world coalition against the death penalty in 2002.

Issues arising
Capital punishment has long engendered considerable debate about both its morality and its effect on criminal behaviour. Contemporary arguments for and against capital punishment fall under three general headings: moral, utilitarian, and practical.

Arguments for capital punishment
Retributive: Supporters advance the argument of the retributive theory of punishment, which is punishing the offender as a form of revenge for the crime committed. That is it provides a means for the state to revenge for herself and for the victim and or the family the revenge against the offender. Thus the state should revenge for serious crimes with death to satisfy the society's thirst for revenge.

Deterrence: Others also believe that it is more effective as a deterrent for serious offence and that it deters criminals more than life imprisonment. They argue when someone murders are killed, then a would–be murderer would also think twice before engaging in such an act. Thus if a person commits serious crime and is killed by the state, it will deter other would perpetrators. For example as here in Ghana treason is punishable by death, people will think twice before they try to commit such a crime.

Affirms the right to life: Some also argue that death penalty affirms the right to life as it punishes violations of it in the strictest form. When someone is punished in any jurisprudence, it is to affirm the fact that the person's crime is frowned upon by the state. Pro-death penalty activist thus argues that when a murderer or someone who has committed a serious crime is killed, it show in no uncertain terms how the state values the life of its citizens and want to prove to people who take the lives of its citizens that such a behaviour is not condoned by the state.

Public safety: Once a convicted murderer is executed, there is no chance that he will break out of jail and kill or injure some. The state is thus protected from such unwanted elements not temporarily but forever.

Incapacitation: some of those in favour of the death penalty also claim that the best if not the only way to make sure that someone who has committed an extremely serious offense do not do it again is to take the life of such a person. They argue that even if the person is jailed for life the person can be pardoned or can even escape and in such a situation may commit the crime again so the criminal should be killed.

Arguments against capital punishment
Opponents on the other hand argue that it has led to the death of innocent people. The death penalty is irrevocable. "In case of a mistake, the executed prisoner cannot be given another chance. Justice can miscarry and there has been countless situations where people have been found guilty of crimes only to be found not guilty later on, after new evidence have been shown or after the event of scientific advancement like currently the DNA, which unfortunately is not available in Ghana, have proved otherwise.

They also believe that life imprisonment is an effective and less expensive substitute. The life of a person is inexpensive and can never ever be calculated in monetary terms so the money or resources which will be used to maintain the prisoner will never come anywhere near the resource that the state will lose should the person be killed.

Furthermore, others claim that it is discriminatory against minorities and the poor in the society and that it violates the criminal's right to life. It is easier for a 'nobody' or a man of straw to be convicted of a serious crime than for a rich person who can hire the best legal services available to the limits of our legal system. In Ghana it is so clear not many people can have the services of good lawyers, thus such people are easily found guilty when MAY BE they are innocent.

Some claim life imprisonment is a Chance for convict to "pay-back" society Leslie Cantu writes: Abolitionists believe that the offender should be required to compensate the victim's family with the offender's own income from employment or community service. There is no doubt that someone can do more alive than dead. By working, the criminal inadvertently "pays back" society and also their victim and/or the victim's family. There is no reason for the criminal to receive any compensation for his work. Money is of no value in jail. One of the most well known examples of the criminal contributing to the betterment of society is the case of Leopold and Loeb. Leopold and Loeb were nineteen years old when they committed "The Crime of the Century." In 1924, they kidnapped and murdered a fourteen-year-old boy just to see what it was like. They were both spared the death penalty and sentenced to life imprisonment. Together, their accomplishments include working at hospitals, teaching illiterates to read, creating a correspondence school, making significant developments in the World War II Malaria Project and writing a grammar book. "An inestimable amount of people were directly helped by Leopold and Loeb; both of them making a conscious commitment to atone by serving others”.

Too many opponents, capital punishment is a euphemism for legally killing people and no one, not even the State, has the authority to play God. Thus if the state is allowed to kill then she is usurping the authority and power of God. As it is “God who gives and God who taketh” and not the state.

Some also argue that the death penalty does not act as a deterrent to crime. "Expert after expert and study after study have emphasized and emphasized the lack of correlation between the threat of the death penalty and the occurrence of violent crime". Isaac Ehrlich's study on the deterrent effect of capital punishment in America reveals this. It spans twenty-five years, 1957-1982, and shows that in the first year the study was conducted there were 8,060 murders in 1957 and 65 executions. However, in the last year of the study, there were 22,520 murders committed and 1 execution performed. The absence of deterrence is clearly shown.

Uselessness: Killing a murderer does not bring his victim back to life. It achieves nothing but the death of still another person. No matter what is done to the criminal, there is still a loss to the victim's family and to the state in a whole. So why kill them in the first place.

As I said in the beginning, this piece does not try to exhaust all the issue concerning the death penalty (capital punishment). All stakeholders would have to come together and debate for us to know what will be the best step for us to take as a nation to tackle crime but to do so with the accompanying respect for human rights. I will use this opportunity to say thumbs up to the security forces for their good job done and to wish them all the best in the future to come.

Credit: Joseph Konadu
[Email: [email protected]]

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