The Constitutionality/Constitutionalisation of the Death Penalty in Cameroon and Ghana: An Appraisal on the Right to Life

  • Eric Che MUMA Justus Liebig University Giessen

Abstract

Since the introduction of democratic reforms by states, the practice of death penalty is perceived by many, especially the developing states as a means to fight criminality and to minimise the number of crimes committed in the society. This sanction imposed by states seems to contradict most constitutional principles and the rights promised within it. The right to life, like any other fundamental right is most precious from which all other rights derived their validity. This right is promised by almost all states to their nationals within their respective constitutional order. The entrenchment of the right to life within the constitution, and the ratification of international human rights treaties, imposes a direct obligation on state parties to respect and to protect all its nationals during the process of implementation. However, this right promised by the states to all its citizens, alongside those found guilty of committing crimes, has been subjected to serious violations following the incorporation and practice of the death penalty within national laws. The pressing question arising at this juncture is whether the said penalty is constitutional and in favour of the right to life enshrined in the Constitution. This paper aims to unravel the contentious debate surrounding the constitutionality/constitutionalisation of the death penalty as an appraisal on the right to life with lessons from Cameroon and Ghana, in contrast with other states like the United States. It reveals that despite the obligations imposed on states to take effective and necessary steps, in accordance with their constitutional processes, the right to life is still under threat without effective constitutional protection. The paper also argues that despite several recommendations on the abolition of the death penalty around the globe, particularly in Africa, the practice is still ongoing, posing a great challenge on its constitutionality status.

References

ACHR American Convention on Human Rights, adopted on November 222, 1969, an entered into force July 18, 1978, O.A.S.T. No. 1144 U.N.T.S.123.
Ban Ki-Moon. 2014. “Death Penalty Has no Place in the 21st Century.” UN News. accessed 03 September 2018.
Bedau Hugo, A. (ed) 1997. The Death Penalty in America: Current Controversies. Oxford: Oxford University Press.
Carl, W. 2016. Constitutional Rights-What They Are and What They Ought to Be. Springer. Camargo v Columbia, Communication No.45/1979 (1985).
Death Penalty Information Center 2011-2014. Limiting the Death Penalty. https://deathpenaltyinfo.org/part-ii-history-death-penalty. Accessed 06 September 2018.
Decree No. 2005/182 and No.2005/183 of 31 May 2005 signed by the Head of State to commute death Sentences pronounced against certain persons to life imprisonment.
ECHR European Convention on Human Rights adopted on November 4, 1950 and entered into force on September 3, 1953.
Eswari, B. 2005. “Roper v Simmons.” American University Journal of Gender, Social Policy and the Law 13(3): 707–715.
EU Guidelines on the Death Penalty, adopted by Council of the European Union 2 April 2013, entered into force 12 April 2013.
Fombad, Charles, M. 2012. Constitutional Law in Cameroon. The Netherlands: Kluwer Law International.
Francis Coralie Mullin v The Administrator, Union Territory of Delhi and Others case ((1981) SCR (2) 516.
Jayawickrama, N. 2002. The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge: Cambridge University Press.
John H. 1995. “Constitutionality of the Death Penalty and Penal Policy.” Journal of African Law 39(2): 192–197.
Joseph, B. 2016. “The Death Penalty and the Fifth Amendment.” Northwestern University Law Review 111(1): 275-293.
Law No. 2014/028 of 23 December 2014 on the Suppression of Acts of Terrorism in Cameroon.
Law No. 2016/007 of 12 July 2016 Governing the Cameroon Penal Code.
Michael, R. 2012. Dignity: Its History and Meaning. Cambridge, MA: Harvard University Press.
Nowak, M. 2005. U.N. Covenant on Civil and Political Rights: CCPR Commentary: 2nd rev. ed, N. P. Engel Publisher.
OAU African Charter on Human and Peoples Rights, adopted on June 27, 1981 and entered into force 21 October 1986 CAB/LEG/67/3rev.52II.L.M.58 (1982) available at: http://www.refworld.org/docid/3ae6b3630.html, African Convention on Human Rights, 1981.
Oluwatosin, P. “Africa Must Move away from the Death Penalty Practice.” Amnesty International 2017. accessed 31 August 2018.
Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty adopted in 1983.
Schabase William, A. 2014. The European Convention on Human Rights: A Commentary, 1st ed. Oxford: Oxford University Press.
Second Optional Protocol to the ICCPR adopted 15 December 1989, entered into force 11 July 1991: 999 U.N.T.S. 414
S v Makwanyane, South African Supreme Court Case No.CCT/3/94 (1995).
Tankebe, J. et al., 2015. Public Opinion on the Death Penalty in Ghana. Accra: Centre for Criminology and Criminal Justice and University of Cambridge Institute for Criminology.
Tomuschat, C. 2014. Human Rights between Idealism and Realism, 3rd ed. Oxford: Oxford University Press.
UN Convention on the Rights of the Child, adopted on November 20, 1989, and entered into force, on September 02, 1990): 1577 UNTS 7, available at: http://www.refworld.org/docid/3ae6b38f0.html.
UN International Covenant on Civil and Political Rights adopted 16 December 1966, entered into force 23 March 1976: 999 U.N.T.S. 171.
UN Human Rights Committee (HRC) General Comment No. 6: Article 6 (Rights to Life) adopted 30 April 1982.
Universal Declaration of Human Rights, adopted on 10 December 1948 by United Nations General Assembly Res: 217 A (III).
Published
2018-11-25