(Aug. 30, 2012) Amnesty International (AI) reported on August 24, 2012, that it had “received credible reports” of nine persons having been executed in The Gambia on the previous night and that more persons might be executed in the near future. President Yahya Jammeh had announced in a television address to the nation the previous weekend that by mid-September “all existing death sentences would be 'carried out to the letter.'” (Press Release, Amnesty International, Executions in The Gambia Giant Leap Backwards (Aug. 24, 2012); Matthew Pomy, Gambia Executes Death Row Inmates: Amnesty, PAPER CHASE NEWSBURST (Aug. 26, 2012).)
According to AI Deputy Director Paule Rigaud, the last (confirmed) execution in The Gambia occurred in 1985, and AI had classified the country as abolitionist in practice; therefore the decision by Jammeh to execute the prisoners “would be a giant leap backwards.” Rigaud called upon Jammeh to “establish an immediate moratorium on the death penalty, in line with resolutions of the UN General Assembly and the African Commission on Human and Peoples' Rights.” (AI, supra.)
Christof Heyns, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, echoing Rigaud's remarks, urged the Gambian government “to refrain from executing a further 39 individuals reported to be on death row.” He also expressed concern “that death sentences were imposed in violation of major international standards, including the most serious crimes provisions. According to available evidence the trials did not meet due process safeguards,” adding that “[t]he executions were carried out in secrecy, away from the public and from the families, and do not meet the requirements of transparency.” (Death Row/Gambia: 'Stop Arbitrary Stream of Executions,' Says UN Expert, Office of the High Commissioner for Human Rights website (Aug. 28, 2012).) [Note: AI cites Gambian government figures on persons facing the death penalty in 2011-2012 as having totaled 47 before the executions, leaving 38 persons still on death row. (AI, supra.)]
The Gambian Ministry of Justice, in a statement issued on August 24, 2012, defended Jammeh's announcement about implementation of the death penalty. It cited section 18(1) of the Constitution and noted that “in due compliance” with the constitutional provisions “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.” (Gov't on Death Penalty Pronouncement, THE POINT (Aug. 27, 2012).)
Background on the Application of the Death Penalty in The Gambia
In regard to official executions in The Gambia, opposition leader Halifa Sallah stated that “the death penalty was only applied once since 1965 in the case of Mustapha Danso after the 1981 coup d'etat,” and was abolished with the enactment of the Death Penalty Abolition Act of 1993, resulting in all those who had been sentenced to death having their sentences commuted to life imprisonment. (Gambian Opposition Leader Writes to President Jammeh, JOLLOFNEWS (Aug. 27, 2012).) On April 25, 1995, however, the Armed Forces Ruling Council restored the death penalty, and soon thereafter, on August 10, 1995, the Death Penalty Restoration Decree 1995 (Decree 52) took effect. Since that time, according to Sallah, no death warrant has been issued, and with the adoption of the 1997 Criminal Code many provisions that had called for imposition of the death sentence for non-violent offenses resulting in the death of another person were removed. (Id.)
On the other hand, an AFP correspondent in the Gambian capital Banjul was quoted as saying that executions have continued to take place unofficially in Gambia, most recently in 2007. (Gambia Says Nine Prisoners Executed by Firing Squad, AFP (Aug. 27, 2012).)
Sallah, in an open letter to the President, published on August 27, 2012, points out that certain legal provisions should guide the government in applying the death penalty:
First and foremost, it is not the language of the law for persons sentenced to death to be summarily executed in secret. Once the sentence is confirmed the trial judge is required to forward a copy of the finding and sentence to the president and the minister of Justice.
The minister of Justice is required to give his advice to the president. The president has the prerogative to issue a death warrant or an order for the sentence of death to be commuted or a pardon. The order of the president should carry the public seal. The minister is required to send a copy of the president's order to the judge to be entered in the court record.
Suffice it to say that if the president orders for the sentence of death to be carried out, the warrant shall state the place where and the time when the execution is to take place and where the body is to be buried. This order becomes lawful when it is published in the gazette.
This is the procedure that is required by law. (Gambian Opposition Leader Writes to President Jammeh, supra.)
The Death Penalty Under Gambian Law
The legal basis for the death penalty in The Gambia is the Constitution, which stipulates in part in article 18, on the right to life:
(1) 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 effect in accordance with subsection (2) and of which he or she has been lawfully convicted.
(2) As from the coming into force of this Constitution, no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence, or the administration of any toxic substance, resulting in the death of another person.
(3) 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. (The Constitution of the Republic of The Gambia, 1997 (reprinted 2002), REFWORLD (last visited Aug. 28, 2012).)
The Constitution was approved on August 8, 1996, by a national referendum, and entered in force on January 16, 1997. It was amended by the Constitution of the Republic of The Gambia, 1997 (Amendment) Act, 2000. (Id.)
Sallah contends, “[c]urrently, there are many people on death row who had not actually taken a weapon to kill anyone. Such people should have their sentences commuted to life imprisonment or be granted pardon. This is the language of the Constitution.” (Gambian Opposition Leader Writes to President Jammeh, supra.) Noting that the review of the death penalty has not yet occurred even though the ten years have elapsed, Sallah called for section 18(3) “to be amended to provide more time to enable the National Assembly to conduct the review,” an amendment that would have to be made through a referendum. (Id.)
Under Gambia's Criminal Code of 1933, the death penalty can be imposed for treason or murder. Three of the persons reported executed in August 2012 had been convicted of treason, according to AI. (AI, supra.) Treason and murder are covered under sections 35 and 188, respectively, of the Code. (Criminal Code, Cap. 10:01 LAWS OF THE GAMBIA (2009); see also Andrew Novak, The Abolition of the Death Penalty for Drug Offenses in The Gambia, 38:1 COMMONWEALTH LAW BULLETIN 35 (Mar. 2012).)
Under a provision that had been in place since October 2010, the death penalty could also be imposed for drug-related offenses, but the provision was abolished under an April 2011 amendment to the Criminal Code to make the Code conform to section 18 of the Constitution. (Hanibal Goitom, Gambia: Death Penalty for Drug Offenses Abolished, GLOBAL LEGAL MONITOR (Apr. 11, 2011), http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402619_text; Novak, supra; Gambia, in ANNUAL REPORT 2012: THE STATE OF THE WORLD'S HUMAN RIGHTS, Amnesty International website (last visited Aug. 28, 2012).)