Guest Post: The ACHPR’s New General Comment on the Right to Life–A Missed Opportunity for the Prohibition of the Death Penalty?

[Nader Diab is an Associate Legal Adviser at the International Commission of Jurists. LL.M Geneva Academy of International Humanitarian Law and Human Rights. Twitter : @NaderiskDiab]

In the GC the ACHPR reiterated its call for the abolition or imposition of a moratorium on the death penalty (for previous similar calls see two resolutions of the ACHPR on this issue here and here). It did not provide for a legal basis for such a call neither in the GC nor in the resolutions.

Despite the call for abolition in the GC the ACHRP does not seem to view the imposition of the death penalty, per se, as a breach of article 4, which protects the Right to Life under the African Charter. The GC, echoing the UN Human Rights Committee, stated that the imposition of the death penalty would violate article 4 of the African Charter if it is not used for the most serious crimes and the proceedings did fully comply with the right to a fair trial (para. 24). Similar conditions had been set out for example in its 2008 resolution on the moratorium on the death penalty, which states:

“1. Exhorts State Parties to the African Charter on Human and Peoples’ Rights that still retain the death penalty to:

• Fully comply with their obligations under this treaty; and

• Guarantee that every person accused of crimes for which capital punishment is applicable, benefits from all the guarantees of a fair trial included in the African Charter and in other relevant regional and international norms and treaties.”

This might seem the unwavering the position of the ACHPR’s stance on the issue. However, recent developments and previous statements suggest that the outcome of the GC regarding the death penalty could have been different, and could have gone so far as to prohibit the death penalty as a violation of article of the African Charter protecting the right to life.

The African Charter, unlike the ICCPR, does not address the issue of the death penalty. The ICCPR does not necessary exclude recourse to of the death penalty when it is imposed pursuant to a final judgment rendered by a competent court only for the most serious crimes in accordance with the law in force at the time of the commission of the crime. (The death penalty is, however, prohibited for those States that are party to the second Optional Protocol of the ICCPR). Therefore, unlike the Human Rights Committee, the ACHPR is not restricted by a provision in its founding treaty that narrows the scope of interpretation of the right to life provisions of the treaty as concerning the death penalty. (It should be noted that the ICCPR was adopted in 1966, when only a relatively small minority of States were retentionist. The adoption of Optional Protocol two was seen as a means of progressively reducing the number of States two, which the death penalty provisions would apply).

Furthermore, the General Comment was adopted the same year the ACHPR achieved a big step towards the abolition of the death penalty with the adoption of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa. A year earlier the ACHPR convened a continental conference on the abolition of the death penalty in Africa. The Cotonou Declaration that came out of the conference ‘recalls’ and ‘bears in mind’ in its preamble in several instances the right to life in abstracto in international treaties and declarations, seemingly implying that the right to life and the death penalty in all circumstances are inherently contradictory. It would have been expected that the culmination of this process, i.e the general comment on the right to life, would have taken a different position on the issue.

At the global political level, the trend is inexorably towards abolition. The periodic resolutions of by the UN General Assembly since 2008 calling for all retentionist States to implement a moratorium on the death penalty with a view to full abolition have been adopted with increasing majorities. In December 2014 (69/186), the resolution passed with 117-37 (34 abstentions). The vast majority of AU member States supported or at least abstained from the resolution. While the GA resolutions do not expressly identify all instances of the death penalty as violations of the right to life, it does situate the moratorium within “the progressive development of human rights”. This GA resolutions, because of their universal reach, could therefore also have been relied on as evidence of an emerging international opinion that the use of the death penalty is incompatible with general human rights principles.

Finally, as previously mentioned the ACHPR’s position has not been consistent, and in some instances it has considered that the imposition of the death penalty amounts to a violation of the right to life regardless of any other circumstances. In May 21 2015, it issued a press release condemning the execution of six individuals in Egypt. It stated in communiqué: “its opposition to the imposition of the death penalty as it constitutes a violation of Article 4 of the African Charter on Human and Peoples’ Rights (the Charter), which specifically prohibits the arbitrary deprivation of the right to life and enshrines the integrity of persons. Article 5 of the Charter also prohibits cruel, inhuman or degrading punishment and treatment.” In the communiqué the ACHPR did not raise any issues regarding the fairness of the trial or the gravity of the crime (which it did previously a year earlier, see here). This indicates that the ACHPR has viewed the imposition of the death penalty as a violation of the right to life in all circumstances, and not just when imposed when the conditions laid out in its GC are not met (a position that happens to be shared by its Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary killings in Africa.)