The case of Mr. Ping is one example among many others in Botswana and is illustrative of the secrecy climate that has been surrounding the execution of death row prisoners in the country. Pursuant to section 18 of the Prisons Act, the condemned prisoner is given notice of his execution at least 24 hours before the hanging. In practice, the secrecy of the post-conviction procedure does not allow for any public knowledge of the exact date of this notice to the prisoner. It is generally assumed that the death warrant is transmitted to the condemned prisoner only a few hours before his execution, and that this information is not provided to his/her lawyer or family. Complete opaqueness and arbitrariness also surrounds the clemency procedure, which remains a discretionary power of the Executive and is not subject to a judicial review process.
When replacing the situation in Botswana in the broader context of the use and application of the death penalty on the African continent, it becomes clear that the problematic related to transparency and death penalty is first and foremost politically motivated.
More than 70% of African countries have abolished the death penalty in law or in practice, with 10 out of the 55 member states of the African Union executing within the past decade. Congo and Madagascar abolished the death penalty in 2015 and Guinea was the last African State to join the list of abolitionist countries last year. Compared to the rest of the world, Africa has one of the lowest execution rates per capita. Yet, the debate around transparency remains key and highly contentious and, again, usually based on political considerations.
In Sudan for instance, the threat of death penalty serves as a tool to intimidate or silence political opponents, activists, armed groups. Authorities regularly use charges of ’crimes against the State’, ’waging war against the state’, ’undermining the constitutional system’, to neutralize their opponents. This threat does not suffer from any lack of transparency. On the contrary, it is claimed as such, widely disseminated and used as an affirmation of the State’s power over its real or perceived opponents. In the Gambia, when, in August 2012, the former President, Yahya Jammeh, announced on television that, by mid-September, all prisoners on death row would be executed, it was also seen as a deliberate way for him to publicly assert his authority, under the guise of compliance with national legal procedures. Less than a week following his statement, 9 death row prisoners were executed hastily and in complete secrecy.
In most African countries, including in those that do not carry executions, a huge information gap exists on the number of persons sentenced to death, the number of death sentences reversed or commuted on appeal, the number of instances in which clemency was granted, the number of executions actually carried out, and judicial decisions regarding death sentences are, in some countries, rarely available. Even in countries that have engaged through the abolition process, public awareness on the same is limited (cf. Guinea, Central African Republic).
In countries that continue to carry executions, including South Sudan or Somalia, the challenges related to secrecy have to be analysed within the broader context of shortcomings of the administration of justice in those countries where the respect for the rights of the defence and the right to fair trial are regularly violated.
Generally, the opaqueness surrounding the application and use of the death penalty in Africa :
Reveals authorities’ lack of willingness to create space for an informed public debate on the death penalty ;
Allows States to own the death penalty process to the exclusion of everyone else, including prisoner’s relatives, legal representatives, but also the general public ;
In some instances, it prevents States from admitting their discriminatory application of the death penalty (against the poorest or against a certain community/minority group).
Fostering constructive debates on death penalty remains key, although it has proven to constitute a serious challenge, including in countries that are currently experiencing armed conflicts (South Sudan, Libya) ; countries that have seen a rise of extremists groups like Boko Haram (Nigeria, Chad) or Al Shabbab (Somalia) ; countries that tolerate limited forms of critical debate and regularly infringe fundamental rights and freedoms (Sudan) ; or in countries that rely on an alleged support of public opinion in favour of death penalty (Botswana).
Civil society organisations on the continent attempt to overcome these challenges and play an essential role in breaking the silence. In Botswana, organisations like DITSWHANELO have been mobilising to generate public debate on the issue and provide support to death row prisoners. In Sudan, despite being in exile, the African Center for Justice and Peace Studies (ACJPS) regularly takes serious risks to gather and disseminate information related to the status of death row prisoners. In the Gambia, where the new authorities are engaged on the path towards abolition, civil society organisations are mobilising to fuel the public debate.
These actions, limited and, in some instances, risky, require to be supported further. Regular and thorough researches are key to engage informed and constructive debates with States and the general public ; strategic litigation on behalf of death row prisoners and/or their families, may contribute to the strengthening of the administration of justice ; using regional and international platforms to push the debate outside national frontiers may facilitate the strengthening of strategic alliances.
Questions:
Deterrence v. secrecy : Why would retentionist states be non transparent ? In particular African countries that continue to carry executions ?
What are the avenues for detainees and/or their families to challenge secrecy ? Could litigation actions be of any support ? [Cf. Ping case brought by DITSHWANELO before the ACHPR].
How could civil society organisations and regional mechanisms contribute to increasing awareness on the need for more transparency ?
ACHPR’s decision on Ping’s execution in Botswana : “On the secrecy of the execution and refusal to hand over body for burial, the Commission notes that the lack of transparency concerning the refusal of petition of mercy and the serving of an execution warrant, combined with the denial of access to his lawyer and family during the intervening period between the serving of the warrant and the execution (in secret) constitutes a potential violation of Article 5 of the Charter […].
The Commission holds the view that prisoners on death row must be promptly informed and be given adequate notice of their execution. The mere fact that a particular procedure has been stipulated in the rules is not enough to justify it, but rather, that procedure has to pass the further test of being fair, just and reasonable. In the present case, even the procedure set out in the State Parties own laws regarding the procedure for executing death row prisoners and established through its own practice was ignored. The Commission maintains that despite the outcome of the clemency procedure, the victim ought to be informed in advance of an impending execution […].
In Communication 240/01 Interights et al. (on behalf of Bosch) v. Botswana, observed that a justice system must have a human face in matters of execution of death sentences by affording a condemned person an opportunity to arrange his affairs, to be visited by members of his intimate family before he dies, and to receive spiritual advice and comfort to enable him to compose himself, as best as he can, to face his ultimate ordeal. In that regard, the Commission holds that the failure by the prison authorities of the Respondent State to inform the family and the lawyers of Mr Ping, of the date, the hour, the place of the execution as well as the exact place of the burial, violates article 5 of the African Charter, and by their conduct, have failed to respect the human dignity of both the family and the prisoner, which further violates Article 5”.