Statement of The Group Of Six Opposition Parties
Events of far reaching national significance are taking place. The members of the Group of Six Parties that came together to demand for electoral reform before the 29th March 2012 National Assembly elections have issued statements, letters or opinions touching on the announcement made by Amnesty International that 9 death row prisoners have been executed.
Different sectors of the Gambian community have heard it rumoured that the 9 persons had been moved from their cells but there was no confirmation that they had been executed. The statement issued by the Ministry of Justice gave hope to all Gambians in particular and the International Community at large that the position of the Amnesty International was wrong. It stated categorically that
“The Ministry of Justice of the Republic of The Gambia hereby informs the general public that contrary to the widespread rumours and speculations on the pronouncement made by His Excellency the President of the Republic on the implementation of the death penalty in The Gambia, it wishes to state for the records that such irresponsible spreading of information is wrong. The laws of the Gambia on the death penalty are very clear and provide: Section 18 (i) of the Constitution of The Republic of The Gambia states:
“No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the laws of the Gambia as they have effects in accordance with subsection (2) and of which he or she has been lawfully convicted.”
“In due compliance with the provisions of the law as above, It follows that all persons on the death row have been tried by the Gambian courts of competent jurisdiction and whereof convicted and sentenced to death in accordance with the law. They have exhausted all their legal rights of appeal as provided by law.
The general public is hereby warned that the peace and stability of our beloved nation as regards the protection of the lives, liberty and property of individuals must at all cost be preserved and jealously guarded.”
On the other hand, the statement of the Ministry of the Interior came as a shock. It confirmed the worse fears of every person who wishes the Gambia and her people well. To address this grave concern, we the leaders of the group of six have decided to meet and issue a joint statement on the state of affairs. In doing so we are bound by the consideration that the role of opposition parties is not just to contest elections but also to monitor the day to day governance of a country with a view to criticising, scrutinizing and restraining the existing government from doing actions that may not be in the National Interest.
Life imprisonment and death penalty
First and foremost the group of six is convinced that The Gambia is a secular state. The death penalty had once been abolished and those who had been sentenced to death had had their sentences commuted to life. Life Imprisonment is as severe and harsh a punishment as the death penalty. The only difference is that the state will not have blood on its hands and no one would be killed by mistake should new evidence prove that a convict was in fact innocent. This is why Section 18 subsection (3) of the Constitution of the Gambia states that
“The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.”
In our view, the Gambia Government, in practice, had imposed a moratorium on the death penalty. In our view, in the face of the abdication of responsibility by the requisite arms of the state to do what subsection (2) of section 18 instructs them to do, justice dictates that the moratorium on the death penalty be maintained and a constitutional amendment be sought to extend the time required by the Constitution for the review on the desirability of the total abolition or otherwise of the death penalty. We therefore call on the government to impose a moratorium on the death penalty with immediate effect and prepare a bill for the amendment of section 18 (2) which requires a referendum, since it is an entrenched clause, so that the mandatory review of the death penalty which should have taken place is put into effect. As far as the Group of Six is concerned we are convinced that life imprisonment should be the severest or harshest punishment available in our statute books for murder.
Unjustifiable recourse to the constitution for implementing the death penalty
The Group does acknowledge that section 18 (1) does permit the implementation of the death penalty, subject to the condition stipulated in subsection (2) that the accused person must be found to have utilised violence or toxic substances to actually inflict death on the victim. We are aware that under our statutes, certain crimes could incur the death penalty even though the person may not have used violence to kill any one. There are people sentenced to death who have not killed anyone. It would be unconstitutional to issue a death warrant against such people. This is why we are calling on the Government to impose a moratorium on the death penalty and pursue the review exercise with diligence so that all laws will be brought into conformity with the constitutional provisions.
In our view, Section 18 does not command the President to implement the death penalty in all cases. The president is given the powers to exercise prerogative of mercy under section 82 of the Constitution. He has power to pardon or commute sentences in general.
The Criminal Procedure Code goes further in giving specific discretionary powers to the president in matters dealing with the implementation of the death penalty. Section 253 subsection (5) of the Criminal Procedure Code categorically states that once the Minister of Justice renders his or her advice on the case of a convict who is sentenced to death “the president shall issue a death warrant or an order for the sentence of death to be commuted, or a pardon. The president has options and the best option is for the president to commute the death sentences to life or impose a moratorium until the review required by the Constitution is done.
Execution to be characterised by adherence to procedures and standards of best practice
Many family members claim that they were not aware of the execution of their family members but heard it from the news. They do not know when they were killed, how they were killed and where they are buried and whether they were buried according to Islamic rites. Some are wondering when to give their third day charity or seventh day charity after a person's death, according to their custom. The family does not know whether those executed have been prayed for before burial as required by their religion. The law has settled this matter but the practice of the state leaves everything in doubt as far as the execution of the 9 persons is concerned. Section 253 Subsection (5) of the Criminal Procedure Code adds that the death warrant signed by the President shall contain the place where, the time when the execution is to take place and how the body is to be buried. In short there are rules to be observed in executing the death penalty which should be in line with standards of best practice. In our view, families, religious leaders and others have duties to have last a word with a person before one's execution.
In view of all the issues we have raised we the members of the Group of Six call on the President of the Gambia to impose a moratorium on the death penalty. We call on the National Assembly and the Executive to prepare a bill that would facilitate the holding of a referendum to decide whether the death penalty will be abolished or not.
We also call on the international community to take the position of the Group of Six into consideration and play an interlocutory role to prevail on the president to impose a moratorium on the death penalty and give full explanation to the families of the death row prisoners when and how their family members were executed and where they are buried and indicate whether they are buried according to their religious rites and customs.
We call on all Gambians to discuss this issue in the spirit of solemnity that it deserves and move away from partisan politics and narrow nationalist sentiments. This is a National issue. Should life imprisonment be the severest punishment for murder or treason, or death? Should the state be a taker of life? This is the question.