THE DEATH PENALTY, ITS HISTORY AND ITS ROLE IN STATE FORMATION IN THE CASE OF SOUTH SUDAN

BY DANIEL JUOL NHOMNGEK, KAMPALA, UGANDA

Dec 30th, 2017(Nyamilepedia) —– The establishment of modern states is not something easier. What complicate the whole matter are their settings. They have been forged through bringing different communities with varied interests that were thrashed into one people historically during the colonial period. Consequently, to form one nation-state out of these various but tribal communities with contrasting interests is not something easier and in most cases requiring tough but fair approach.

Why I have stated above that forming state that different communities with contrasting interests co-exist together peacefully requires fair but tough approach is because sometime the leaders may use tough but unfair approach in attempting to forge a modern state but the consequences of such approach are always disastrous as it can trigger war of succession as was seen in Nigeria, Sudan and the Democratic Republic of Congo (DRC) as well as unending civil wars as seen in different parts of the world.

However, where leaders adopt tough but fair approach in state formation the citizens can even corporate to ensure that the policy succeeds in long-run. This was seen in the USA, the UK by Norman, France, Canada, China, Cuba and etc. One striking example the countries I have referred to here that they have in common is the adoption of death penalty in their process of state formation as state policy of reformation of their citizens.

It should be noted that when we talk of death Penalty we simply mean an execution of a person who is accused of having committed a crime and sentenced to death after he or she has been tried by a competent court and proved guilty beyond reasonable doubt by the State. In other words, death penalty is a government sanctioned practice whereby a person is put to death by the state as a punishment for a crime that she or she has committed. It is used by the state as a tool for control in order to ensure that the security and state stability are achieved.

What most of the people who campaign for the abolition of death penalty have not understood is that death penalty is a very effective mechanism for controlling citizens at initial state formation. At this stage, citizens are still at primordial stage and they need tough approach on crime.

As they develop mentally, their conscience changes and which means that they type of justice they need change also, and eventually, the effectiveness of death penalty diminishes and this calls for its abolition. This does not even need the campaign from external parties to abolish death penalty as citizens are matured psychologically and morally and therefore know what the appropriate justice to be adopted.  .

In relation to the above, the fact that needs to be emphasized is that death penalty is the state policy in combating crimes in the country and any citizens that kill without being sanctioned by law can be charged with murder and even executed if proved guilty to the required standard.

It therefore implies that in order to have stable security in a country, the criminal justice must provide an appropriate punishment based on the psychology of the citizens. Besides, a strong court system so that citizens are able to have access to criminal justice system, which means that there must be strong justice system based on social context of the people. Basing on the social context argument, it implies that justice and punishment should vary from community to community, which further means that what is just in a given community may be unjust in other communities, hence, making justice subjective. This subjectivity of justice makes the issue of death penalty very contentious worldwide.

Thus, there are currently groups of individuals or organizations who persuasively argue that death penalty does not serve the purpose of justice as it prevents state from adopting other alternative justices. The argument of this kind is baseless for a simple reason. The reason is that criminal justice is not what the external parties feel as it should be the appropriate justice but it is what those affected by crime feel should be, should be the criminal justice applicable.

Without that law will never be effective in combating the crimes. It is only where citizens are psychologically satisfied that justice is done, that is when moral certainty is achieved and citizens begin respecting and obeying the law. Citizens therefore do not obey the law because of punishment but they obey the law because punishment imposed by the State satisfies them morally and physically.   

It goes to say that whether other people or organizations who have formed themselves into advocate for the abolition of death penalty do not like death penalty or not, death penalty is inherent part of state power of controlling citizens and crimes. It has been part of state formation policy throughout the history of humankind. Therefore, almost all the most developed countries we see today as have rule of law and have developed, have developed to a greater extent because of their understanding the important role the death penalty plays in state formation.

It means that death penalty is a core of criminal justice system as it runs as a thread through the history of various countries to the present. To clearly support the assertion in favour of death penalty in this paragraph, let’s briefly look at the history of death penalty in state formation and developments of different countries in different parts of the world.  

The first book that tells us about the use of death penalty as a tool in reformation of the people in the formation of the State is the Holy Bible in relation to the state of Israel. In Exodus 21, Moses introduces the concept of retributive justice as explained various verses in that Chapter.  In Exodus 21: 12 Moses introduces a law which provides that whoever strikes a man a mortal blow must be put to death. In Exodus 21: 14 Moses further introduces the aspect of malice aforethought which is part of our criminal law today by providing that a man who kills another after maliciously scheming to do so, even if he is in the House before the altar of Moses, he has to be taken away and put to death.  

In Exodus 21: 15 Moses goes on to provide a rule prohibiting any person against striking his father or mother and if the person violates this rule then he ought to be put to death.  In Exodus 21:16, Moses outlawed kidnapping of a person whether the person sells the person kidnapped as a slave or he still has him. Such a kidnapper is supposed to be put to death once caught. In Exodus 21: 17, Moses goes as far as providing punishment with death those who verbally curse their fathers or mothers. Then, Moses in Exodus 21: 24 Moses sums up criminal justice in form of retributive justice in which he sets down the general rule governing Israelites which is eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound and stripe for stripe.  

Then, outside the Holy Bible, the first established death penalty laws date as far back as the eighteenth Century B.C. in the Code of King Hammurabi of Babylon, which codified the death penalty for twenty five (25) different crimes. This was followed by the Fifth Century B.C.’s Roman law of the Twelve Tablets in which death penalty was made a core of criminal justice system.  In that Roman law, death sentences were carried out by such means as crucifixion as was seen in the killing of Jesus on the cross, drowning, beating to death, burning alive as we saw in the punishment that was imposed on Ugandan Martyrs in Nineteenth Century A.D. and impalement

After the introduction of Roman law then there was introduction of the Fourteenth Century B.C.’s Draconian Code of Athens, which made death the only punishment for all crimes committed in Athens or Greece. After that in Tenth Century A.D., death penalty was imposed through hanging that became the usual method of execution as was seen in Britain. In fact, Britain by the 1700s A.D., 222 crimes included stealing, cutting down a tree, and robbing a rabbit warren were punishable by death.  In Austria and Tuscany death penalty was also part of criminal justice system until it was abolished later.

In the United States of America, death penalty was introduced by the European Settlers and the first recorded execution in the new colonies (as Americas by then was called), was that of Captain George Kendall in the Jamestown Colony of Virginia in 1608 A.D. Kendall was executed for being a spy for Spain. In 1612 A.D., Virginia Governor Sir Thomas Dale enacted the Divine, Moral and Martial laws, which provided the death penalty for even minor offences such as stealing grapes, killing chickens, and trading with Indians.

In Australia, the first execution was carried out under the European law in Western Australia in 1629 when Dutch authorities hanged the mutineers of Batavia. Since then, capital punishment has been part of the legal system of Australia. It should be noted that though the death penalty has officially been abolished in Australia, it has been part of its laws and helps in reforming the country to where it is today.  

In Canada, capital punishment existed in various forms until 1998 when the federal government completely abolished the death penalty. Thus, in pre-confederation Canada, hundreds of criminal offences were punishable by death. One of the earliest recorded executions in Canada came in 1749 in newly founded Haifax. In that case, a sailor named Peter Cartcel killed a man and as a result, he was tried before a general court composed of Haifax‘s governor and six councilors. He was quickly found guilty and hanged two days later.

In general, in Canada before the abolition of death penalty, some 230 offences including stealing turnips and being found disguised in a forest were punishable by death. It should be noted that though in Canada the death penalty was abolished in 1998, there are still some indications that citizens want the death penalty to be reinstated. This was found out in the poll that was conducted in 2013 in which 63% wanted the death penalty back into the law of Canada.

Coming to the current position of death penalty in the world, there are about fifty eight (58) countries that still have death penalty as part of state policies. However, even some of those countries that have signed up to abolish death penalty have shown the desire to reinstate death penalty as seen in the cases of Philippine and Turkey.

As seen in the foregoing discussion, death penalty is inherent part of criminal justice and its proper application can lead to the development and Cultural Revolution of the people as it is the case in China and Iran. In fact, these two countries are said to be leading in execution of criminals but also economically powerful, which proves the fact death penalty is relevant to economic development. In respect to South Sudan, the question is, is death penalty appropriate tool for control?

Without hesitation and with full support, I must state that there is a need for death penalty to be maintained in South Sudanese laws for some reasons. The first reason is that majority of South Sudanese are not educated and the implication of lack of education is that they do not know the difference between their rights and duties. This means that for them to know their duties there is a need for graver punishment so that they develop the sense of responsibility out of fear.

In addition, South Sudan is composed of different communities with different interests that are not easy to harmonize and if not handled properly these interests can be source of instabilities and insecurities as seen at the present. The role of death penalty is that the authorities will be able to effectively punish the criminals that makes the rest of South Sudanese communities psychologically satisfied that justice has been done. It is only when citizens are psychologically satisfied that justice is done that is when they obey the law.

Furthermore, the issue of death penalty should not be looked at the moral aspect as to whether it is good or bad but it should be viewed at the aspect of whether it can achieve the purpose of criminal justice which are  justice, peace and stability.  In fact, it was because of the imposition of death penalty the SPLA/M was able to manage the liberated areas as any breaking of their laws by civilians or soldiers was met with heavy penalties including death penalty. The clear example was that when current Advisor on Military Affairs, Hon. Daniel Awet Akot, who was a commander in Northern Bhar El Ghazal in the late 1980s, was able to control the rebels and citizens through the use of death penalty and because of that he is still being remembered him up to date in Aweil.  

In general, South Sudan needs death penalty as a matter of necessity. South Sudan should adopt approach of China in which death penalty is applied even in corruption cases. In real sense, cattle keepers can only be controlled through death penalty and no any other punishment that can suffice. If this advice is not heeded, there is a probable that South Sudan will never achieve stable security as there is misapplication of justice.  

The Author is a lawyer by profession; he graduated with honors in law from Makerere University, School of Law. He participated in various workshops and training in community law and community mobilization in awareness of their constitutional rights in Uganda. He is the member of Public Interest Law Clinic (PILAC) and NETPIL (Network of Public Interest Lawyers) at Makerere University; he is currently doing research with NETPIL on private prosecution; he is trained in Alternative Dispute Resolution (ADR); he participated in writing Street Law Handbook on Economic, Social and Cultural Rights in Uganda.He can be reached through juoldaniel2003@gmail.com or +256784806333.