Innocent until proven guilty ? Access to counsel crucial for those facing capital punishment

09/10/2020
OP-ED
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On this World Day Against the Death Penalty, Alice Mogwe, President of the International Federation for Human Rights (FIDH), insists that the deadly institution should be abolished across the board, while underscoring that those facing execution today must be afforded effective legal representation. Ms Mogwe, who founded and directs DITSHWANELO – The Botswana Centre for Human Rights – has advocated and written widely against capital punishment.

Around the world, the tide is turning. In most places, executions are on the decline – more and more countries are abandoning capital punishment by law or in practice. Yet, 657 executions were recorded last year. That’s 657 too many, and we must double down on efforts to abolish this despicable form of punishment.

At the same time, it is crucial that those accused of capital crimes today have access to quality legal representation. In many places, people facing charges that could lead to execution are deprived of this essential right. Some spend days in detention without access to legal counsel, only to finally be assigned a lawyer who is juggling dozens of other cases. Others may meet their lawyer for the first time in the courtroom, at the start of the trial. Some attorneys do not have the knowledge or capacity to defend a capital case, or may be too scared to actively defend their clients, fearing repercussions for defending a client facing certain charges.

Vincent Soligbo’s clients were lucky. This capital defence attorney has represented people facing the death sentence in Nigeria pro bono. He has interacted with people on death row since 2013, discovering that most of them – at the time of prosecution, and even after conviction – were never afforded the constitutional right to proper legal representation. Many could simply not afford the services of a lawyer to appeal their conviction, and were subsequently executed by hanging, by the state.

This lack of adequate legal representation led to more people ending up on death row, often based solely on confessions obtained by torture. “I often reflect on what would have become of my clients had they not benefitted from diligent and proper representation,” mused the attorney, who was able to successfully defend several individuals.

What Vincent Soligbo observed is, unfortunately, not an isolated phenomenon. In many countries, people are arrested, detained, and in some cases even tortured until they confess to crimes and face legal proceedings that could lead to a death sentence – all without a lawyer by their side. This violates what is arguably the most basic tenet of our criminal justice systems: that the accused are innocent until proven guilty.

Unless we believe that convictions based on confessions extracted through torture are acceptable, that it is normal for the accused to meet their lawyers for the first time in court, that defendants’ financial resources should determine their access to a competent lawyer, we cannot tolerate the status quo. Effective and trained defence lawyers are necessary to ensure fair trials; the right to adequate legal representation is not and should never be viewed as a luxury.

This means you should be able to count on expert legal counsel from the moment you are accused of a crime. This means having a lawyer who is qualified to take up your case, who has access to relevant information regarding your case, and who can consult with you when needed. This means that your lawyer is adequately compensated and has access to the resources needed to defend you.

State-sponsored killings are an affront to human dignity. They amount to cruel, inhuman and degrading punishment, and must be abolished across the board – from Iran to Belarus, from Vietnam to the United States. As long as this deadly punishment exists, however, it is crucial that each and every person charged with a capital offence has adequate and appropriate legal representation.

FIDH is a founding member of the World Coalition Against the Death Penalty, which has dedicated the 18th World Day Against the Death Penalty to the critical role legal representation plays in capital cases.

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