DEATH PENALTY

The Convicted as Victims?
even where the death penalty is mandatory, this does not mean that
it will be regularly enforced by executions. For example, the deputy
prime minister of Malaysia announced at the end of March 2016 that
829 persons had been sentenced to death between 2010 and March
2016 but only 12 executions had taken place in this period. 6
In addition, another 13 countries currently retain the mandatory
death penalty but are regarded by the United Nations as “abolitionist
de facto”, having not executed anyone for at least 10 years. 7 It is
important to recognise that in these countries the imposition of the
mandatory death penalty still has many negative consequences for
those on whom it is imposed, in particular their confinement in separate
and inferior penal conditions, uncertain as to the future policy
of government regarding their fate. 8
Challenges to the mandatory death penalty:
domestic and international litigation
The United States Supreme Court, the Indian Supreme Court, the
Judicial Committee of the Privy Council, the Supreme Court of
Bangladesh and the Supreme Courts of Uganda and Malawi, as well
as the Inter-American Court of Human Rights, the Inter-American
Commission on Human Rights and the United Nations Human
Rights Committee have all reached the same conclusion: the death
penalty cannot be imposed without judicial discretion to consider
the gravity of the offence and any mitigating circumstances relating
to the circumstances of its commission and the characteristics of the
convicted person. Therefore, the prohibition of the mandatory imposition
of the death penalty is becoming ever closer to attaining the
status of a jus cogens norm of international human rights law. What
follows is a brief review of these decisions.
6 Reported in Hands Off Cain eNewsletter, 15, 61, March 31, 2016.
7 These countries are: Barbados, Brunei (sharia), Guinea, Qatar (sharia), Myanmar, Ghana, Kenya
(upheld for armed robbery), Maldives, Niger, Sri Lanka, Tanzania, Kenya, and Trinidad and Tobago.
8 In Kenya, there have been two recent conflicting decisions of the Court of Appeal on the mandatory
death penalty (Mutiso v. Republic [2011] 1 E.A.L.R; and Mwaura v R, Crim. App. 5/2008
[October 2008, 2013]). In March 2016, the Supreme Court of Kenya heard arguments on the
constitutionality of the mandatory death penalty in Muruatetu and Mwangi v. Republic (Petitions
Nos. 15 and 16 of 2015) and this case will resolve the conflict/split among the different Court
of Appeal panels. The outcome will have implications for more than 2,500 condemned prisoners
who were all subjected to the mandatory death penalty and have exhausted their appeals.
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