Interview • Maya Sahli Fadel
What is the purpose of the African Commission on Human and Peoples Rights?
The Working Group of the African Commission, set up in 2005 and composed of Commissioners and independent experts, started by looking at the death penalty in Africa. […] A study adopted in 2011 is currently being revised to take into account several emerging issues including the death penalty in the context of the fight against terrorism and the important question of vulnerable groups, including women, foreigners on death row, etc. We have also taken a number of advocacy and awarenessraising actions, adopted many resolutions on abolition, supported the UN moratoriums, and called on States to adopt moratoriums in practice or take steps to establish moratoriums in law.
The situation in Africa has evolved for the better, notably in francophone Africa, which has shown a real willingness to abolish the death penalty. Numerous States have already abolished capital punishment or are abolitionist in practice. It is important to focus on East Africa which has been hesitant to commit to abolition or a moratorium. It was encouraging this year to see that the last moratorium resolution adopted by the UN General Assembly was supported by several more African States. We continue on the ground to make African States aware that human dignity and the right to life are fundamental rights. We also visit countries, and when we are in a country that continues to practise the death penalty, we call on that State to at least move to a moratorium in practice. [If it does] we then ask it to take another step towards abolition by revising its laws on capital punishment, and eventually to protect the right to life by abolishing the death penalty constitutionally.
We continue on the ground to make African States aware that human dignity and the right to life are fundamental rights.
The presentation of periodic State reports to the African Commission is a second important area. When these reports are presented, we prepare questions in advance. When a State is not an abolitionist State, we call on it to explain why it continues executions and in the concluding resolutions invite it to move towards a moratorium or abolition. So we have several tools and instruments that enable us to advocate with African States. What I stress is that we are on a path towards abolition: I often say that the next continent to become abolitionist is likely to be Africa.
Looking ahead more broadly, what challenges remain to be resolved, and what opportunities can Africa seize?
There are many challenges. First of all, there is the political will of certain States to move towards abolition. One of the challenges for the African continent will be to open a discussion in our regional institutions. I say that because the African Commission has prepared a draft Protocol to the African Charter on abolition of the death penalty. […] Unfortunately, some States that retain the death penalty blocked the proposal in the African Union because they do not want to open a debate on the matter. This is a major challenge and our strategy now is to open a discussion with these States on the need for a participatory and inclusive dialogue in the African Union. To do this, we are counting on States we are calling ‘champions’, in other words abolitionist States such as Benin, which held a major international conference on the death penalty in 2014 that established a consensus in favour of moving towards abolishing the death penalty. We will talk to these lead States and ask them to be spokespersons for abolitionist States in Africa in discussions with retentionist States.
Second challenge: the arguments presented by retentionist States are political – the fight against terrorism, or religious and cultural traditions. Here too, work needs to be done to foster inter-religious dialogue involving religious leaders, notably Muslim leaders and also leaders of Christian churches in countries where the death penalty exists. It is important to have such an inter-faith dialogue because I think we lack fora in which to debate the relation between religion and the death penalty. Currently, those with conservative points of view dominate discussion of the death penalty. Although in the Muslim context we are seeing new openings and interpretations, I would say we need the emergence of new thinkers, who can provide a new reading of what the Koran says on the subject of the death penalty. When you read the Koran, the sacredness of life is mentioned 17 times. Life must be protected because it was created by God and only God may take life away. By contrast, I believe – though I am not an expert – that only two verses refer to the death penalty. At all events, I think that, when weighing the two approaches, consideration must be given to the sacredness of life, which is clearly recognized. We need this opening to religious thinking about the death penalty, involving the three religions, underlining human dignity and the sacredness of life. This is a challenge which could also lead us to the universal character of abolition. In Africa, this is a major issue. As I have said, the absence of abolition is due sometimes to religious, sometimes to cultural, and sometimes to political factors. We must work in all three dimensions to advance progressively towards eventual complete abolition in Africa.
How important are the issues of terrorism and the drug trade?
These are emerging issues. To begin with […], if the death penalty is retained, it must be imposed for the most grave crimes, but in certain countries drug trafficking carries the death penalty. In certain countries, economic crimes were subject to the death penalty, or adultery. With respect to terrorism, a number of countries that had a moratorium on the death penalty have had problems of insecurity […]. Take the example of Chad: it adopted a law to fight terrorism that re-introduced the death penalty for acts of terrorism. Tunisia did the same. […] We must keep our eye on this fragility, because we have seen that on terrorism States can go backwards from one day to the next. With respect to other crimes, the key issue remaisn that States that retain the death penalty may only do so for the most grave crimes. The issue there is that the interpretation of ‘most grave crimes’ is discretionary. What one State says is a most grave crime, another says is not. On crimes other than the death penalty, there has been a debate about decriminalizing certain offences, for example, begging. Within the Commission, a Commissioner responsible for this issue has put together guidance on the decriminalization of a certain number of offences which do not justify depriving a person of their liberty. With respect to the death penalty, the Commission considers that intentional homicide remains a ‘grave crime’, likewise abduction, and the assassination of a child. By contrast, an economic crime, even human trafficking, should not lead to the death penalty.
For us what is important is that the draft Protocol on the death penalty should be discussed in the African Union. That’s the next stage for 2019, because, if it is discussed and adopted […], we know that some 15 States are abolitionist and that this Protocol could enter into force if 15 States ratify it. Other States will then follow.