The End of the End: Understanding the Paradox of Capital Sentencing in Liberia1
When Modesko Nyandeh was sentenced to death by hanging in July 2012 in Gbarnga, Bong County, he was the fourth individual to receive such a sentence in Liberia in just five months.2 On 11 April 2012, Bob Seekie and Attina Wieh were similarly sentenced for the murder of Captain Boye-Blue Dweh (Walker, 2012). On 21 March 2012, at Monrovia’s Temple of Justice, George W. Dweh was sentenced by Justice Zotaa to be publicly hanged from 6 a.m. until 6 p.m., having been convicted of murdering his fiancée – a sentence which was initially misreported as ‘hacking’ by the local press (Parley, 2012). Two years previously, in May 2010, nine men were sentenced to death for the murder of Keith Jubah (Toby, 2010); one of them, Benjamin Toe, was aged 16 at the time of the offence (Amnesty International [AI], 2011b). Earlier that year, on 19 March, Hans Williams and Mardea Paykue were sentenced to be hanged five days later. An appeal filed by their lawyers stayed the executions.3 According to figures from the Ministry for Corrections and Rehabilitation, as of June 2012 15 men and one woman were under death sentences, all of them housed at Monrovia Central Prison.4
Yet on 16 September 2005, Liberia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), committing the country to the abolition of the death penalty (United Nations Treaty Collection, 2012a). Amnesty International describes Liberia as abolitionist in practice (AI, 2012, 64), and the last peacetime executions were prior to the civil war, which began in 1989 (AI, 2003; World Coalition Against the Death Penalty [World Coalition], 2012). None the less, on 22 July 2008, in spite of fierce international criticism, President Ellen Johnson Sirleaf signed into force an amendment to the 1976 Penal Code allowing for capital sentences in cases where death was caused in the course of armed robbery.5 Later that year, she affirmed to representatives of the World Coalition Against the Death Penalty that she did not intend to sign any warrants of execution (World Coalition, 2008), and stakeholders in the justice system agree that executions are unlikely in the current climate.6
Liberia’s relationship to the death penalty is a complex one: whilst Amnesty International describes a sustained abolitionist trend across the African continent, Liberia has taken the extraordinary move of apparently reintroducing the death penalty contrary to its international legal commitments (AI, 2011b). It consequently offers a unique window on the kinds of social and political pressures that demand the availability of the death penalty as a sentencing option, and those that allow for its permanent abolition, and a case study for the interaction of international and domestic law.
Though Liberia’s post-conflict environment is unique, understanding Liberia’s paradoxical relationship with the death penalty sheds light on the role of capital sentencing in other contexts. In the first section, I examine the legality of the 2008 amendment to the Penal Code, and the continued distribution of capital sentences. I conclude that rumours of the abolition of the death penalty in Liberia have been greatly exaggerated. In domestic law and sentencing practice, the death penalty has never been successfully abolished, nor was there a hiatus in capital sentencing after the 2005 accession to the Second Optional Protocol. The country is, however, enjoying a stable de facto moratorium on executions.
In the following section, I describe the context in which Liberia extended the reach of capital sentencing in 2008 in spite of the stability of that moratorium. The amendment to the Penal Code was a symptom of a profoundly dysfunctional justice system, damaged by fourteen years of civil war and the accompanying social disintegration. In the final section, I look at international efforts to promote the rule of law in Liberia, and the paradoxical ways in which this, too, may contribute to pressure to retain the death penalty as a sentencing option.
The case of Liberia indicates that capital punishment is not an isolated extrusion from the legal landscape, but an intrinsic part of it. Only when we view it in this way can we make sense of Liberia’s complex legal relationship with it. An attempt at de jure abolition via international law that failed to treat it as such was ineffective. Moments of political transition, whilst offering opportunities for legal reform, may not offer the legal and social infrastructure necessary for its successful implementation.
The Legal Status of the Death Penalty in Liberia
On 16 September 2005, Liberia acceded to the Second Optional Protocol to the International Covenant on Civil and Political Rights, committing the country to cease executions and “take all necessary measures to abolish the death penalty within its jurisdiction’ (United Nations Treaty Collection, 2012a, Arts 1(1) and (2)). On the same day, Liberia ratified or acceded to 102 other international instruments. A statement released on behalf of the UN Secretary-General described the day as ‘a landmark in Liberia’s journey away from a difficult past and towards a more tenable future grounded in the rule of law, respect for human rights and good democratic governance’ (United Nations, 2005).
Others have been less enthusiastic. One scholar has described the event as ‘a case study of quantity over quality in treaty ratification’ (Durham, 2009:189). This scepticism seems justified by Liberia’s 2008 amendment to its Penal Code, providing that ‘In the event death occurs during the commission of a crime of Armed Robbery, Terrorism or Hijacking the accused convicted under Section 14.54, 15.32 and 15.33 of this Act shall be sentenced to death by hanging or imprisonment for life without possibility of parole’.7
International human rights campaigners and scholars were quick to describe this amendment as a reintroduction of the death penalty. The European Union expressed ‘its deepest concern following the promulgation in Liberia of a law reintroducing the death penalty for certain crimes’ (European Union, 2008). This characterization of the law was also adopted by Dr Jamil Mujuzi (2009) and Amnesty International (AI, 2011b). On his blog, Dr William Schabas (2008) described the move as an attempted reinstatement.
In this respect, there is a gulf between the view of the international community and that of the Liberian judiciary and Parliament. The Justice Minister at the time of the amendment was Philip Banks, now an Associate Justice of the Supreme Court and previously chair of the Law Reform Commission. In response to international criticism, he produced an opinion arguing that Liberia was not bound by the Second Optional Protocol.8 Under Liberia’s Constitution of 1986, the legislature has the power to approve international instruments (Article 34(f)). Liberia’s 2005 accession was performed by the then leader of the Interim Government, Charles Gyude Bryant. Although there was a National Transitional Legislative Assembly in place at the time, the instruments enacted by Liberia on 16 September were not presented to it. On this basis, Banks claimed that the accession was not valid.9 From this point of view, the 2008 amendment to the Penal Code did not constitute a reintroduction of the death penalty because the death penalty had never been abolished.
This claim is unlikely to exempt Liberia from its obligations under the Second Optional Protocol. Liberia is a signatory to the Vienna Convention on the Law of Treaties (United Nations Treaty Collection, 2012b). Banks’s argument amounts to a claim of invalidity under Article 46 which describes conditions under which a state can claim its accession to a treaty is invalid on the basis of provisions of internal law governing competence to conclude treaties:
1. A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith.
The International Court of Justice (ICJ) has been reluctant to accept that a treaty is invalid on those grounds. Aust outlines the principle that ‘States are entitled to regard other states as having acted in good faith when its representatives express their consent to be bound’ (Aust, 2000, 253). Shaw (2007, 940) observes that the International Court dealt with this question in Cameroon v. Nigeria (2002). Nigeria had argued that the Maroua Declaration of 1975 between the two states was not valid because its constitutional rules had not been complied with. There, the court pronounced that:
a limitation of a Head of State’s capacity in this respect is not manifest in the sense of Article 46, paragraph 2, unless at least properly publicized. This is particularly so because Heads of States belong to the group of persons who, in accordance with Article 7, paragraph 2, of the Convention … are considered as representing the State.10
The rationale behind this approach is brought out in Southern Pacific Properties (Middle East) Ltd v. Arab Republic of Egypt, where the court reasoned concerning acts that exceeded the authority of the officials performing them:
If such unauthorized or ultra vires acts could not be ascribed to the State, all State responsibility would be rendered illusory. For this reason … the practice of states has conclusively established the international responsibility for unlawful acts of state organs, even if accomplished outside the limits of their competence and contrary to domestic law.11
In line with this, an accession by Liberia’s head of state is likely to be regarded as having successfully bound the country to the instrument in question.
Whilst international law may well regard Liberia as bound by the Second Optional Protocol, domestically at least, the death penalty has never been removed from the statute books. This is unsurprising given the optimistic flurry of international instruments under which the protocol was hidden. Liberian judges are still sentencing in line with the 1976 Penal Code, which allows for death sentences in the case of first-degree murder.12
Consequently, although the 2008 amendment was described in some quarters as a ‘reintroduction’, there was no cessation in death sentences following the 2005 ratification. On 15 April 2008, the Daily Observer reported that that a man convicted of murder had been sentenced to death by hanging (Menkor, 2008), whilst the New Democrat reported on 18 June 2008 that two men whose rape victim had later died from her injuries had been sentenced to be hanged (Turley, 2008a). Both those reports pre-date the amendment to the Penal Code which passed the House of Representatives on 6 May 2008, the Senate on 15 July 2008, and was signed by the President on 22 July.13 The impression that the death penalty was reintroduced is due to the fact the international community was unaware that such sentences were being handed down until after the 2008 amendment.
In conversation with the author, members of the Liberian judiciary expressed the view that the death penalty was never abolished. Justice Banks explained that:
the death penalty has been on our statute books for many many decades, and so the amendment that was made in 2008 really did not reintroduce it, all that the amendment of 2008 did was to take the crime which previously was not listed as a capital offence to expose perpetrators to the death penalty.14
Justice Zotaa, who sits in Criminal Court A at the Temple of Justice, and who claims to have handed down in the region of twenty death sentences during his work there, agreed that ‘it has never been repealed, it has always been here’.15
Whether or not Liberia is bound by the Second Optional Protocol, the death penalty has never been successfully removed from the domestic statutes of the country, nor placed out of bounds as a sentencing option. The enthusiasm of the international community to accept Liberia’s adoption of so many international instruments in September 2005 deterred it from scrutinizing whether Liberia was in a position to follow through on those legal commitments and amend its domestic legislation as necessary. Accepting Liberia’s apparent accession to the Second Optional Protocol allowed Liberia to form another data point in an apparent movement towards abolition across the African continent, but obscured the fact that nothing had changed on the ground.
The 2008 Amendment to the Penal Code
Despite continuing to hand down death sentences, Liberia has enjoyed a moratorium on peacetime executions since before the civil war.16 Whether or not the 2008 amendment ‘reintroduced’ the death penalty, it certainly extended its possible application. It is peculiar that a country should wish to extend the reach of capital punishment on the one hand, whilst disavowing any intention to carry out executions on the other. Indeed, Philip Banks’s legal opinion encourages the continuation of the moratorium on executions:
there has been an unwritten moratorium on the death penalty in Liberia as, in spite of death sentences imposed by the courts, Presidents of more recent times, even during the war, have not signed unto death warrants. The present President could continue such moratorium, and we favour such continuation, until the legislature sees fit to act upon the Protocol and pass it into law, as required by the Liberian Constitution.17
President Ellen Johnson Sirleaf has affirmed to representatives of the World Coalition Against the Death Penalty her intention to refrain from signing any such warrants (World Coalition, 2008). Yet the 2008 amendment demonstrates that capital punishment is not seen as an irrelevancy in the Liberian justice system. What role, then, is it playing in the country? One way to approach this question is to look more closely at the pressures that prompted that amendment.
The preamble to the 2008 Act explains it is a response to the upsurge in armed robbery that had affected the country:
there has been an unprecedented increase in recent time in the wave, gravity, magnitude and viciousness of Armed robbery, Terrorism, Hijacking and related offenses in Liberia …. Alarmed by method(s) deployed by the perpetrators/culprits is/are heinous, frightening, and fearful, to the citizenry and have resulted in numerous deaths, rapes, permanent disabilities, destruction of properties, and other types of extreme victimization of our citizens, especially women and children, and foreign residents within our borders [sic].18
That upsurge in turn was an indicator of the difficult post-conflict transition Liberia was making.
In 2003, five years before the passage of the amendment, Liberia had emerged from fourteen years of intermittent civil conflict that resulted in the destruction of much of the country’s infrastructure, the death of an estimated 250,000 people and the displacement of at least 800,000 out of a population of only three million (United Nations, 2003, 6, 7). The criminal justice system was no exception to the widespread destruction. In a 2003 report, the UN Secretary General found that ‘Judicial institutions throughout Liberia have suffered an almost complete breakdown as a result of years of violent conflict and the disregard of the Taylor Government for the rule of law’, before going on to note that ‘Most courts are not functioning and much of the infrastructure has been destroyed or looted. It also appears that various prisons throughout the country are empty and dilapidated, and that former prisoners are on the loose’ (United Nations, 2003, 6).
Successful disarmament after so long a period of conflict presented an enormous challenge. The same report estimated that ‘Liberia has some 27,000 to 38,000 combatants, many of whom are children’ (United Nations, 2003, 11). Many newly disbanded ex-combatants were without jobs. In 2009, the United Nations Mission in Liberia (UNMIL) reported that ‘the high number of unemployed or underemployed youth remains a particular challenge, since they constitute a volatile group that could be used by spoilers seeking to undermine stability’ (UNMIL, 2009, 3). With peace came large numbers of returning refugees to Monrovia in particular. In a speech in July 2008, President Sirleaf explained that ‘In addition, we have … people that have been taken from jails in the United States and other places being deported here; and so it just makes it so difficult to combat [the high crime rate]’.19
Additional security concerns were raised by the frequent prison breaks that took place in the period preceding the 2008 amendment. UNMIL’s February 2009 report recorded 31 separate incidents during the six-month reporting period. The largest break-out, in December 2008, saw 163 prisoners escape from Monrovia Central Prison; 85 were still at large when the report was written (UNMIL, 2009, 8).