By K Quincy Parker
As nations in the region respond to the call by the human rights arm of the Organization of American States (OAS) to end the death penalty – or at least institute a moratorium on capital punishment – The Bahamas continues to confront the question at the highest levels.
Prime Minister Perry Christie on Tuesday responded to the OAS report, noting that throughout Europe, the manner in which the highest court of appeal has interpreted the law – defining those circumstances in which capital punishment would be applied by the court as the “worst of the worst” – has become evident.
In a landmark ruling striking down the mandatory application of the death sentence in The Bahamas, the Judicial Review Committee of the Privy Council – the highest court of appeal for Bahamian legal matters – said Maxo Tido’s killing of Donnell Connover was not “the worst of the worst” and therefore did not merit automatic and mandatory sentence of death.
Mr. Christie said the debate around capital punishment divides even his home.
“It divides the country. I’m for capital punishment; my wife is against capital punishment. Colleagues in government are for it, colleagues in government are against it. That reflects the division in the country. With respect to the OAS request, we obviously have to examine it, and as a government we have to respond to it.”
“The laws of The Bahamas provides for capital punishment,” he said. “The former government, our predecessors, actually passed a law to further define and strengthen and bring more certainty to the confusion that appeared to exist as to the circumstances in which capital punishment can be applied, or a sentence be given.”
The prime minister noted, however, that The Bahamas must realise that the entire world is moving in the direction of the sort of recommendation coming out of the OAS report.
As The Bahamas contemplates whether to retain the death penalty as the law of the land, a new Inter-American Commission on Human Rights (IACHR) report on the death penalty argues that restrictions imposed on governments by regional and international human rights instruments mean OAS Member States that have abolished the death penalty cannot reintroduce it.
The IACHR issued a report on the death penalty in the region.
The report ends with, among other things, a list of recommendations to states. That list begins with the recommendation that states impose a moratorium on executions as a step toward the gradual disappearance of this penalty.
The Commission also recommends that states ratify the Protocol to the American Convention on Human Rights to Abolish the Death Penalty.
The Convention – driven by the efforts of the IACHR and the Inter-American Court of Human Rights – was adopted in San José, Costa Rica, on 22 November 1969. It came into force on 18 July 1978.
The Protocol was adopted in Paraguay on 8 June 1990.
Article 4 of the Convention severely restricted states’ ability to impose the death penalty. For example, it is only applicable for the most serious crimes; cannot be reinstated once abolished; cannot to be used for political offences or common crimes; and cannot to be used against individuals under the age of 18 or over 70. Pregnant women are also exempt.
Signing the Protocol formalises a state’s commitment to refrain from using capital punishment in any peacetime circumstance. To date it has been ratified by 11 nations.
The Bahamas has ratified neither the Convention nor the Protocol, and it is not clear how much weight the OAS’ recommendations on this issue carry.
The Commission also recommends that states refrain from any measure that would expand the application of the death penalty or reintroduce it, and take “any measures necessary” to ensure compliance with the strictest standards of due process in capital cases.
As noted in its Charter for Governance, the PLP promised to initiate a special unit – presumably in the Office of the Attorney General – to fast-track death penalty appeals in preparation for execution of the ultimate penalty.
Finally, the IACHR recommends that states adopt any steps required to ensure that domestic legal standards conform to the heightened level of review applicable in death penalty cases; and ensure full compliance with decisions of the Inter‐American Commission and Court, and specifically with decisions concerning individual death penalty cases and precautionary and provisional measures.
The report makes the argument that restrictions imposed on governments by regional and international human rights instruments mean states that have abolished the death penalty cannot reintroduce it.
The Commission also argues that states that retain the death penalty – like The Bahamas – are bound to comply with restrictions and limitations established in the regional human rights instruments.
One such limitation is that states are in violation of their international human rights obligations:
when they apply the death penalty mandatorily without consideration of the specifics of a case;
when their domestic legal systems fail to limit the application of the death penalty to the “most serious” crimes, or impose it for political offenses or related common crimes;
if they expand the death penalty to other crimes;
if they execute persons who have been tried and sentenced for crimes committed when they were under 18-years-old;
if they execute persons pending requests for amnesty, pardon or commutation, or;
when they do not have an appropriate procedure in place for persons sentenced to death to seek pardon or clemency.
The Commission reiterated the need for states to comply strictly with the guarantees of due process and fair trial with respect to all persons in the context of proceedings potentially resulting in the death penalty.
