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Supreme Court of Kenya Declares Nation's Mandatory Death Sentences Unconstitutional

The Supreme Court of Kenya has declared the nation’s mandatory death sentencing procedures unconstitutional. In a December 14, 2017 ruling that could affect 7,000 death-row prisoners, the high court overturned Section 204 of Kenya's Penal Code, which required that judges impose death sentences upon conviction of murder or armed robbery. The decision resolves conflicting rulings by the country's lower courts of appeal, and grants new sentencing hearings to those currently sentenced to death. Death-row prisoners Francis Karioko Muruatetu and Wilson Thirimbu Mwangi had challenged Kenya's mandatory death penalty, arguing that compulsory imposition of the death penalty violated the independence of the judiciary by requiring judges to impose a sentence that was pre-determined by the legislature. According to Fred Ngatia, one of the pair's lawyers, the practice “fouls the doctrine of separation of powers” by preventing judges from weighing mitigating factors. The defendants also argued that depriving judges of discretion over whether to impose a death sentence violated the right to a fair trial and constituted an arbitrary deprivation of life. The court’s justices agreed and directed the Attorney-General, the Director of Public Prosecutions, and other government agencies to speedily review all capital cases of murder and armed robbery. In 2010, Kenya’s Court of Appeal ruled in favor of death row prisoner Geoffrey Ngotho Mutiso, who had challenged the mandatory death sentence provision on the grounds that it denied judges the opportunity to consider mitigating circumstances that could spare a defendant's life. Three years later, a different panel of the appeals court restored the controversial provision. Oluwatosin Popoola, Amnesty International’s Adviser on the Death Penalty, said the Supreme Court's ruling is a step towards abolishing the “cruel and inhumane” punishment. “It’s now time for the Kenyan authorities to take the required legal steps to abolish the death penalty fully and join the 105 countries that have completely consigned the punishment to history,” he said. Kenya has not executed anyone since 1987 when Hezekiah Ochuka was convicted of treason and hanged for participating in an attempted coup. In 2009, President Mwai Kibaki commuted the sentences of more than 4,000 death prisoners to life. In 2016, President Uhuru Kenyatta commuted the death sentences of 2,747 death-row prisoners to life. The Death Penalty Project, an international non-governmental organization that works to promote and protect the human rights of those facing the death penalty in British Commonwealth countries, Africa, Southeast Asia, and the Caribbean, has been litigating this issue in Kenya for more than a decade. Kenya is the thirteenth country in which it has successfully challenged mandatory death sentences. Parvais Jabbar, the Project's Co-Executive Director called the court's ruling a "momentous decision ... [that] will have a huge impact," even beyond the thousands of prisoners currently on Kenya's death row. "[W]e hope it will also pave the way for further reform of the death penalty within Kenya and the Africa region more widely,” Jabbar said.


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Senior U.N. Official Assails Death-Penalty Secrecy As Obstruction of Human Rights

A senior United Nations human rights official has criticized the secrecy with which countries carry out the death penalty and called for greater transparency by countries that still employ capital punishment. "There is far too much secrecy," United Nations Assistant Secretary-General for Human Rights Andrew Gilmour (pictured) said in an interview released November 21 by the U.N. News Centre, "and it’s quite indicative the fact that although many countries are giving up the practice, those that retain it nevertheless feel that they have something to hide." 170 nations have either abolished the death penalty—which U.N. Secretary-General António Guterres has described as a “barbaric practice” that “has no place in the 21st century”—or have not carried out an execution in more than a decade. Many of the governments that continue to execute prisoners have shrouded their death-penalty practices in secrecy, hiding who is on death row and why, how executions are carried out, and—in some countries—how the government has disposed of the executed prisoner's body. Guterres said the practice manifests “a lack of respect” for the human rights of those sentenced to death and "obstructs efforts to safeguard the right to life.” In December 2016, the General Assembly added an anti-secrecy provision to its regular resolution calling for a moratorium on executions, saying that transparency was essential to assess whether countries were administering their death penalty laws in compliance with international human rights standards. In September 2017, the death-penalty moratorium resolution adopted by the U.N. Committee on Human Rights again emphasized the link between transparency and respect for human rights. At an October 2017 event at U.N. Headquarters in New York commemorating World Day Against the Death Penalty, the Secretary-General said "[f]ull and accurate data is vital to policy-makers, civil society and the general public. It is fundamental to the debate around the death penalty and its impact.” Execution secrecy, he said, "undermines that debate." Secrecy has been implicated in recent execution botches and questionable execution practices across the United States, In May 2016, an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies,” contributing to the botched execution of Clayton Lockett, the execution of Charles Warner with an unauthorized execution drug, and the aborted attempt to execute Richard Glossip. In Missouri, prosecutors affirmatively used the state's secrecy provisions to prevent prisoners from obtaining evidence that the out-of-state compounding pharmacy from which the state was illegally obtaining drugs had committed 1,892 violations of pharmacy health and safety regulations. Gilmour singled out for criticism Arkansas’s rush to execute eight prisoners in an eleven-day span in April before its supply of the drug midazolam expired. “I’ve heard various arguments, absurd arguments for executing and some rather obscene arguments for executing,” Gilmour said, “but I don’t really think I’ve heard many more obscene ones or absurd ones than the fact that the drugs for executing had reached their sell-by date.” As part of an international human rights efforts to end the secret trade in lethal-injection drugs, the U.N. Office of the High Commissioner for Human Rights has supported a multi-national initiative called the Alliance for Torture-Free Trade. "I think it’d be a step forward in civilization to block this trade, and luckily there are some major drug companies who are refusing to allow their drugs to be used in instances of execution,” Gilmour said.


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Texas Set to Execute Mexican National Despite Treaty Violations, Innocence Claim

Texas plans to execute a Mexican national on November 8, despite claims that he is innocent and that Texas violated U.S. international treaty obligations by denying him access to legal assistance from his government. Senior Mexican diplomats called the death sentence imposed on Ruben Ramírez Cárdenas (pictured) "illegal" and a violation of due process. In a news conference in Mexico City on November 6, Carlos Sada, Mexico’s deputy foreign minister for North America, said “From the start, there has been a failure, and from our perspective, this is an illegal act.” Cárdenas was convicted and sentenced to death in Hidalgo County in 1998 for the kidnapping, rape, and murder of his 15-year-old cousin. No physical evidence links him to the crime, and his lawyers say there is no forensic evidence of sexual intercourse or any sexual assault. In a pleading filed with Texas Court of Criminal Appeals, his lawyer, Maurie Levin, has sought a stay of execution to obtain DNA testing of scrapings taken from under the victim’s fingernails, arguing that that Cárdenas’s “conviction and death sentence bear all the indicia of a wrongful conviction.” Those indicators, she writes, include “questionable eyewitness testimony, coerced, uncounseled confessions, and unreliable forensic evidence." Prosecutors have opposed permitting the DNA testing. Despite U.S. treaty obligations under the Vienna Convention on Consular Relations requiring law enforcement to notify foreign citizens of their right to assistance from their nation’s consulate, police failed to notify Mexico of Cárdenas’s arrest or Cárdenas of his right to speak with officials from his government. Levin said that Cárdenas repeatedly asked for a lawyer, but that the state did not appoint counsel for 11 days, during which time he was subject to interrogation and gave a series of inconsistent statements, including a coerced confession that was inconsistent with the physical evidence. Eyewitnesses to the abduction—including the victim’s sister, who knew Cárdenas—either did not identify Cárdenas in statements they gave to police or gave descriptions of the assailant that did not match Cárdenas. Mexico did not learn of Cárdenas’s arrest for five months, and has been attempting to assist him since that time. In 2004, the International Court of Justice ruled that the United States had violated the Vienna Convention rights of 51 Mexican nationals sentenced to death in the United States, including Cárdenas, and ordered that foreign nationals whose consular rights are violated must be provided judicial review to determine whether that violation influenced the outcome of their cases. Cárdenas has sought review of his case in the Inter-American Commission on Human Rights, which has granted "precautionary measures"—a form of injunction—against his execution until the treaty violation is adjudicated. However, in 2008, in a case in which Texas failed to provide such a hearing to Jose Ernesto Medellin, the U.S. Supreme Court ruled that although the world court decision “constitutes an international law obligation” on the United States, it is nevertheless unenforceable against the states unless and until Congress passes legislation, which Congress has yet to do. Since then, a number of foreign nationals have been executed in the U.S. in violation of international treaty obligations without judicial review of their treaty claims. Gregory Kuykendall, a lawyer who represents Mexico, said "It's a significant treaty violation. ... What separates us from anarchy is our commitment to due process and that's the processes of the laws that are in effect in both the United States as well as internationally." Cárdenas has never been granted review of his treaty claim in the U.S. courts.


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U.N. Secretary-General, European Union Ambassador Call for Abolition of “Barbaric” Death Penalty

In separate statements issued in connection with the 15th World and European Day against the Death Penalty on October 10, United Nations Secretary-General António Guterres and European Union U.S. Ambassador David O’Sullivan have called upon all nations to halt scheduled executions and abolish the death penalty. In his first ever statement on capital punishment since becoming Secretary-General on January 1, 2017, Guterres described capital punishment as a “barbaric practice” that, he said, “has no place in the 21st century.” He said the death penalty does little to deter crimes or serve victims and asked those countries that still have the death penalty to “[p]lease stop the executions.” In an article published on the internet site Medium, Ambassador O’Sullivan—echoing the language of an October 9 Joint Declaration by the EU High Representative for Foreign Affairs and Security Policy and the Secretary General of the Council of Europe—wrote that the death penalty “is inhuman and degrading, does not have a proven deterrent effect, and allows judicial errors to become fatal.” He said the EU “care[s] about the plight of American death row inmates” because “[a]s Europeans we believe fundamentally that the death penalty is incompatible with human dignity.” Guterres’s remarks came at a U.N. event on Transparency and the Death Penalty. “Some governments conceal executions and enforce an elaborate system of secrecy to hide who is on death row, and why,” the Secretary-General said. The lack of transparency, he said, shows disrespect for human rights norms and damages the fair administration of justice. A resolution adopted by the U.N. Committee on Human Rights September 29 also emphasized that a “lack of transparency in the use of the death penalty has direct consequences for the human rights of the persons sentenced to death,” and called upon countries “that have not yet abolished the death penalty to make available relevant information,” including “information on any scheduled execution.” Execution secrecy has been an ongoing issue in recent executions across the United States, and an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies.”


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US Votes Against UN Resolution Condemning Death Penalty for Religious Speech, Sexual Orientation

The United States has voted against an historic resolution passed by the United Nations Human Rights Council condemning the criminalization of and use of the death penalty for apostasy, blasphemy, adultery, and consensual same-sex relations and calling on nations in which the death penalty is legal to ensure that it is not imposed “arbitrarily or in a discriminatory manner.” The resolution also called for an end to the discriminatory use of the death penalty "against persons belonging to racial and ethnic minorities ... and its use against individuals with mental or intellectual disabilities,” those under age 18, and pregnant women. In Geneva, Switzerland, the Human Rights Council on September 29 adopted the resolution by a vote of 27-13, with the U.S. joining Botswana, Burundi, Egypt, Ethiopia, Bangladesh, China, India, Iraq, Japan, Qatar, Saudi Arabia, and the United Arab Emirates in opposition. No other Western democracy opposed the resolution. Renato Sabbadini, Executive Director of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), called the resolution's passage a “monumental moment” signifying recognition by the international community that certain “horrific laws” must end. “It is unconscionable to think that there are hundreds of millions of people living in States where somebody may be executed simply because of whom they love,” he said in a statement.  Ty Cobb, director of Human Rights Campaign Global, the global branch of the U.S.'s largest LGBT rights organization, condemned the U.S. vote against the resolution as "beyond disgraceful." In a statement, he said U.S. representatives had "failed the LGBTQ community by not standing up against the barbaric use of the death penalty to punish individuals in same-sex relationships.” A State Department spokesperson responded to criticism of the U.S.'s vote saying “The United States unequivocally condemns the application of the death penalty for homosexuality, blasphemy, adultery and apostasy." Heather Nauert said that the U.S. was "disappointed" to vote against the resolution, but did so, “[a]s in years past, ... because of broader concerns with the resolution’s approach to condemning the death penalty in all circumstances.” In 2014, the Obama administration abstained from voting on a death penalty resolution, issuing a statement urging “all governments that employ the death penalty to do so in conformity with their international human rights obligations.” The United States ranked seventh in the world in confirmed executions in 2016, according to Amnesty International, behind China, Iran, Saudi Arabia, Iraq, Pakistan, and Egypt.


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At United Nations Session, The Gambia and Madagascar Take Major Steps to Abolish the Death Penalty

Two African nations—The Gambia and Madagascar—acting in connection with the 72nd Session of the United Nations General Assembly in New York, have taken major steps committing themselves to the irreversible abolition of the death penalty. On Thursday, September 21, shortly after making his first address to the United Nations, The Gambia's President Adama Barrow signed the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty at the 72nd General Assembly of the United Nations, committing his nation to death penalty abolition. For The Gambia, this is the first step in abolishing the death penalty. The small West African nation last carried out an execution in 2012, when nine prisoners were executed by firing squad. Those executions, the first in 31 years, had been widely criticized. President Barrow said that The Gambia's acceptance of the treaty shows the nation’s commitment to promote democracy and “protect lives of political activists.” Also on September 21, at a General Assembly event devoted to the treaty, Madagascar completed the ratification process by depositing the instruments of ratification with the United Nations’ General Secretary. The Gambia and Madagascar bring the total number of signed parties to 85. Madagascar, an island nation off the Southeast coast of the African continent, signed the Second Optional Protocol at the 67th U.N. General Assembly in September 2012 and abolished the death penalty by law in January 2015. The nation of 20 million has not executed anyone since 1958. The United Nations General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights in 1966 as part of the International Bill of Human Rights, which also includes the Universal Declaration of Human Rights (adopted in 1948). The ICCPR has two optional protocols that nations may join. The First Optional Protocol, which 116 parties have signed, created an international tribunal—the U.N. Human Rights Committee—to adjudicate complaints about human rights violations. The Second Optional Protocol, adopted in 1989, obligates its signatories to abolish the death penalty, although countries are permitted to make reservations permitting use of the death penalty for certain war crimes. Brazil, with a population of more than 209 million, is the largest nation to sign the treaty, which it ratified in 2009. China, India, and the United States, the most populous nations in the world, have not signed the treaty.


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Human Rights Groups Urge U.S. Government To Sanction Officials Accused Of Torture, Executions Under New Law

A coalition of 23 human rights groups, including Human Rights First, Human Rights Watch, and Reprieve, has urged the United States government to issue sanctions against foreign government officials who they say have used the death penalty to repress political dissent by torturing peaceful protesters into confessing to capital offenses they did not commit. In a September 12, 2017 letter to Secretary of State Rex Tillerson and Treasury Secretary Steven Mnuchin, the non-governmental organizations ("NGOs")  asked the United States to invoke provisions of the Global Magnitsky Act, a new law that "authorizes the President to impose financial sanctions and visa restrictions on foreign persons in response to certain human rights violations and acts of significant corruption." The law, enacted in 2012 and expanded in 2016, was named after Sergei Magnitsky (pictured), a Russian lawyer and whistleblower who was beaten and died in a Moscow prison in 2009. The letter called the sanctions available under the act “a potentially revolutionary tool” to deter human rights abuses by "those that would use violence to silence dissent and maintain their grip on power." The NGOs requested that the State Department and U.S. Treasury investigate 15 cases "from every region of the world" that, they say, "involve horrific stories of torture, enforced disappearance, murder, sexual assault, extortion and bribery.” They ask the U.S. to investigate Bahrain's Chief of Public Prosecution, Ali bin Fadhul Al Buainain, for his alleged involvement in the torture of Shia political activist Ali al-Singace and two others, and their execution on January 15, 2017. The rights groups say Bahraini prosecutors "sought and obtained the harshest possible punishment, the death sentence, with full awareness that the defendants claimed their confessions had been coerced and that the case had been marred from the start by this and other grave violations of due process." They also seek investigation of judges on Saudia Arabia's Specialized Criminal Court, who "repeatedly rel[ied] on confessions allegedly obtained through torture" in convicting members of religious minorities for participating in pro-democracy protests in 2011. The NGOs say the judges also "sentenced several of the defendants to death for conduct allegedly undertaken while they were minors," in violation of international law and the International Convention on the Rights of the Child. Reprieve's Director, Maya Foa, who oversees the organization's strategic initiatives on the death penalty and extreme human rights abuses, called the use of torture to force confessions, executing children, and using the death penalty to suppress free speech "grotesque rights abuses that fly in the face of American values." She said the U.S. should use the powers of the Global Magnitsky Act "to hold to account the individuals responsible for gross human rights abuses, and to save the lives of innocent young [protesters]." Senator John McCain, one of the authors of the Global Magnitsky Act and its amendments, said the involvement of non-governmental human rights organizations is crucial to the success of the Act. In a statement to Reuters, he said he "will continue working to ensure the administration enforces the law and utilizes this powerful tool to advance freedom and justice around the world.” Rob Berchinski, Senior Vice President of Policy at Human Rights First, said “[o]ur process is designed to assist the government.... Now the question is simply one of political will.” The Act requires the White House to report to Congress by December 10 on sanctions it has imposed under the law.


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European Union Calls for Abolition of Capital Punishment as World Coalition Hosts International Death Penalty Conference

At an international death penalty conference in Washington, DC, hosted by the World Coalition Against the Death Penalty, the European Union strongly renewed its call for a global end to the use of capital punishment. In his opening remarks for the conference, David O'Sullivan, the European Union's Ambassador to the United States, expressed optimism about recent declines in the use of the death penalty in the United States and said "the abolition of capital punishment ... would put the U.S. on the right side of history." On June 22-24, 2017, government representatives, non-governmental organizations, abolitionists, and death-penalty experts from around the world gathered on the campus of Catholic University in Washington, DC for a conference on the state of the death penalty throughout the world and a celebration of the World Coalition's 15th anniversary. The 2017 conference looked in-depth at the relationship between poverty and capital punishment, with speakers from India, Nigeria, and the U.S. describing the pervasive impact of poverty on crime, death-penalty charging practices, and access to qualified defense counsel and the courts. Other sessions included a panel of seven U.S. death-row exonerees, who discussed their cases and the inherent risk of sentencing innocent people to death. In his remarks, Ambassador O'Sullivan described as an "inherent flaw of the death penalty ... that it is deeply rooted in social injustice. Everywhere the death penalty is applied globally, statistics show that it discriminates against the poor, the minorities and the marginalised citizens of a society." O'Sullivan said, "[a]s a union founded on democracy, human rights and the rule of law, it is natural for us to oppose [the death penalty]." He described capital punishment as "a dehumanizing practice" that disserves victims' families. "We are also convinced that it is an illusion to believe that the death penalty deters the most serious crimes," he said. "What we need, in the United States and in those countries where the death penalty continues to be legal, is a vibrant civil society working in conjunction with political leaders, who together with public support will work to repeal the death penalty, thus ending this blight on our common humanity."


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Former Governor Bill Richardson: Death Penalty Is Bad for Business, Out of Step With World's Views

In a Washington Post op-ed, former New Mexico Governor and United Nations Ambassador Bill Richardson (pictured)—who in 2009 signed a bill to abolish his state's death penalty—urged that capital punishment be abolished in the United States, saying "[t]he practice is wrong and I hope it isn’t long for this world." Richardson said he supported the death penalty for decades before "empirical evidence and common sense" convinced him that the practice should end. That evidence, he writes, included that that "the death penalty is an ineffective deterrent, is unfairly applied and has become increasingly costly for states." Richardson now serves as a commissioner on the International Commission Against the Death Penalty, advocating the worldwide abolition of capital punishment. He explains how the use of the death penalty, especially lethal injection, hurts state business interests by putting them at odds with the views of pharmaceutical companies. Using Arkansas' April 2017 flurry of executions as an example, he writes, "In their effort to push through these executions, state officials needlessly hastened the application of an unjust policy while senselessly placing Arkansas at odds with the private sector." McKesson, a pharmaceutical distributor, sued the state of Arkansas for using "false pretense, trickery, and bad faith" to obtain execution drugs. He also points to a recent vote by the Delaware House of Representatives to reinstate the death penalty, saying, "As a state that has worked successfully for decades to build an international brand as America’s leading incorporation venue, a major source of its revenue, Delaware could lose if the globally disfavored death penalty once again becomes law." Richardson also ties his international experience to the issue, writing, "States that continue to employ the death penalty will remain isolated from the growing international consensus." "To effectively represent the interests of citizens, and protect our nation’s role as a global leader," he concludes, "a new generation of policymakers and politicians must put the death penalty to rest once and for all."


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Amnesty International Report: U.S. Falls to 7th in Executions Amidst 37% Global Decline

Executions worldwide fell by 37% last year, according to the 2016 Amnesty International Global Report on Death Sentences and Executions, released on April 11. With 20 executions in 2016, the United States ranked seventh in the world among confirmed executions, the lowest it has ranked since at least 2005. For the 8th consecutive year, the U.S. was the only country in the Americas to conduct any executions, and the only Western democracy in the world to do so. Amnesty International confirmed that at least 1,032 people were executed worldwide in 2016, not including the estimated thousands executed in China, which classifies information on the death penalty as a state secret. Vietnamese media uncovered secret executions in that country, revealing that Vietnam had carried out 429 executions since August 2013, making it the world's third biggest executioner in that period, following China and Iran. The report found that 23 countries carried out executions in 2016, with 87% of the known executions occurring in just four countries (Iran, Saudi Arabia, Iraq, and Pakistan). Iran's 567 executions accounted for 55% of all documented executions worldwide. Death sentencing trends were mixed worldwide, with improved data collection documenting 3,117 death sentences in 2016—a record number for a single year—but those death sentences were concentrated in a smaller number of countries (55). Benin and Nauru abolished the death penalty for all crimes—bringing to 104 the number of countries to have done so—and Guinea abolished it for ordinary crimes. 141 countries worldwide, more than two-thirds, have now either abolished the death penalty in law or not executed anyone in more than a decade. Salil Shetty, secretary-general of Amnesty International, summarized the international trends in the death penalty, saying, “Just a handful of countries are still executing people on a large scale. The majority of states no longer condone the state taking human life. With just four countries responsible for 87 percent of all recorded executions – the death penalty is itself living on borrowed time.” (Click image to enlarge.)


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