By Atty. Urias Teh Pour
The upsurge of reported cases of rape, especially statutory rape has seen thunderous calls for the enforcement of the capital punishment. These calls continue to resonate from political leaders, civil society activists, religious leaders and the general public. The July 26 independence Day Orator, a respected clergyman, in his oration attended by cross section of government officials, civil society and members of the diplomatic community, referred to rape as a pandemic that has shattered the country and reduced women, especially girls and children, to second class citizens.
The President of Liberia in a rather rage mood over the alarming cases of rape has joined the chorus of national leaders denouncing rape and at the same time calling for stringent measures including capital punishment for perpetrators of rape. Civil society leaders including gender advocates are leaning in similar direction, with some suggesting that male rapists should be castrated in public.
The Chief of Staff of the Armed Forces of Liberia (AFL) in early August called for the reintroduction of death penalty to include the execution of those convicted of rape. Relatedly, a female presidential candidate in the 2017 elections, made similar calls for the Government to reintroduce capital punishment. During a special stakeholder meeting on the overview of the status of rape and other Sexual and Gender Based Violence cases in the country, the President of Liberia noted that the frequency of rape was becoming alarming. He described rape as ‘a depraved and demonic methods used by the perpetrators of this violent crime, including the defilement of young children – even infants.’ Stakeholders monitoring cases of domestic violence, especially sexual gender based violence, have reported that since January 2020, about 902 cases of rape mainly involving minors as old as 3 years have been reported. In some cases, the alleged perpetrators would escape leaving the victim without justice.
The appalling state of lawlessness against women, especially minors, has reached an unprecedented level in Liberia, a situation which reechoes the horrible sexual violence women experienced during the country’s fifteen years of civil war. These developments have ignited, and certainly so, have become a conduit for politicians and activists to call on the State to reintroduce capital punishment.
The cause of these sentiments expressed so far, can partly be found in Liberia’s weak and poorly-resourced criminal justice system. Bloated numbers of sexual violence cases on the dockets of courts, poor and unkempt records system, corruption and bribery are endemic and continue to undermine the system, in the police, judiciary, and corrections.
In this regards, the UN Committee on the Rights of the Child in its concluding observation on Liberia State Party report in 2012 observed that the low conviction rates for acts of sexual and gender-based violence were causes for the increase in rape cases in Liberia. The Committee intimated that victims were deterred from filling complaints or continuing proceedings against alleged perpetrators for variety of factors, such as social stigma, fear of reprisals and the lack of confidence in State institutions.
While acknowledging Liberia’s efforts in legislative and policy measures taken to combat violence against women and children, the African Commission on Human and Peoples’ Rights in its review of Liberia’s first report to the Commission in 2014, expressed concern over the frequency in cases of rape mostly committed against girls and children. The Commission enjoins Liberia to investigate effectively all cases of child sexual abuse and exploitation, including rape, in order to afford better protection for child victims and ensure that perpetrators are brought to justice and punished.
While these alarming situations negatively affect the image of the State in its protection mandate, the ongoing swelling populist calls to reintroduce capital punishment as a panacea to addressing sexual violence crimes such as rape; would only lead Liberia to further move away from its international legal obligations.
The Second Optional Protocol to the International Covenant on Civil and Political Rights has been ratified by 85 States including Liberia as of 15 June 2018. It remains the key international treaty prohibiting the use of the death penalty. The Second Optional Protocol contains no provisions for denunciation or withdrawal.
The second Optional Protocol and other human rights instruments, including jurisprudences of international human rights bodies and domestic courts’ decisions have heralded a growing global consensus on the need to support the abolition of death penalty. There is no criminological justification for the death penalty which would outweigh the human rights grounds for abolishing it. The argument that the death penalty is needed to deter crime has been largely discredited by the consistent lack of scientific evidence that it does so more effectively than other forms of punishment. The death penalty negates the internationally accepted penological goal of rehabilitating the offender.
To further demonstrate opposition towards capital punishment, The 1998 Rome Statute of the International Criminal court discarded the death penalty for crimes falling under its jurisdiction including heinous crimes such as genocide, crimes against humanity, and war crimes. In similar manner, the UN Security Council excluded the death penalty for grave crimes in 1993 and 1994 when it established the International Criminal Tribunals for former Yugoslavia and for Rwanda. All these developments further invalidate the well-established standard that death penalty should be used only for the most serious crimes in countries which have not abolished death penalty. If the use of the death penalty is excluded for the most serious international crimes, it can hardly be countenanced for other crimes.
Furthermore, most domestic as well as international legal framework have excluded death penalty for juvenile offenders under 18 years old at the time of the offense , pregnant women, new mothers, and people over 70 years old. These decisions are so widely accepted in law and practice that they are approaching the status of a norm of customary international law.
In other national jurisdictions, efforts have been made to strike death penalty from the penal laws. For example, on 24 October 1990 the Hungarian Constitutional Court declared that the death penalty violates the “inherent right to life and human dignity” as provided under Article 54 of the country’s constitution. The judgment had the effect of abolishing the death penalty for all crimes in Hungary. Similarly, on 6 June 1995 the South African Constitutional Court declared the death penalty to be incompatible with the prohibition of “cruel, inhuman or degrading treatment or punishment” under the country’s interim constitution. In addition, a trial court in Kentucky issued the first judicial ruling finding that the execution of offenders under 21 amounts to cruel and unusual punishment, in violation of the United States Constitution. In like manner, Kenya and many countries have declared mandatory nature of death penalty for murder unconstitutional. In Kenya for instance, the Supreme Court has tasked relevant authorities to set up a framework to deal with sentence rehearing cases.
In 2006 Liberia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights. By that accession, Liberia committed to abolishing capital punishment for all offenses. Unfortunately, in 2008 Liberia abdicated its pledge by amending Section 15.34 of the Penal Law of 1976, prescribing sentence to death by hanging in a public place designated by the trial court for the crimes of Armed Robbery, Terrorism and Hijacking. It is important to mention that for almost two decades the country has not proceeded to any execution. Since the passage of the Armed Robbery bill as well, and in spite of several convictions, no court has ordered the implementation of the death penalty.
Following the reintroduction of capital punishment, UN treaties bodies and the African Commission continue to express concern about Liberia refusal to domesticate the optional Protocol of the ICCPR by amending capital punishment for all offenses. The UN Human Rights Committee has reminded States to the Protocol not to transform an offense, which upon ratification of the Covenant, or at any time thereafter, did not entail the death penalty, into a capital offense, nor remove legal conditions from an existing offence with the result of permitting the imposition of the death penalty in circumstances in which it was not possible to impose it before. Essentially, the Committee asserted that State Parties are barred from reintroducing the death penalty.
In conclusion, the sentiments of both the UN treaty bodies and African Commission are worth reechoing. The Government of Liberia must effectively investigate all cases of violence against women and girls, bring the perpetrators to justice and, if found guilty, punish them with penalties commensurate with the gravity of the offences. In addition, provide necessary financial and human resources and strengthen the sexual crimes divisions created within the circuit courts of all counties. There is a need to continue carrying out nationwide awareness-raising initiatives and training activities for State officials, especially judges, prosecutors, police officers and medical personnel, to ensure that they respond effectively in all cases of gender-based violence. There is a compelling need to target the public at large and community leaders in particular, in collaboration with women’s groups and relevant civil society organizations, to address patriarchal attitudes and deep-rooted stereotypes that perpetuate the prevalence of violence against women and girls. And finally, strengthen measures to facilitate victims’ access to justice and to means of protection, including safe homes and shelters throughout the country.
It must be bore in mind that national debate on death penalty should not be conducted purely in national term. The international dimension must also be embraced. Being that we are in a global community, Liberia can learn from other countries’ experience. Abolition of death penalty requires courageous political leadership, a leadership which will be exercised in the defense of human rights. This means, that the requirement of respect for human rights has to include the abolition of death penalty. It is quite ironical for a Government to respect human rights and retain death penalty at the same time. We join the Parish Priest of the St. Kizito Catholic Church, in Paynesville City, Monrovia Rev. Father Ambrose Kroma to strongly oppose capital punishment, and instead ‘we must strengthen the relevant institutions in bringing justice to rape victims.’
Urias Teh Pour, LLM, Director Legislative Assistance, Treaty Matter and Law, Independent National Commission on Human Rights-NCHR.