In a recent meeting, the representatives of East African judges rejected calls from the international organisations to formally abolish death penalty. Other judges within Kenya found themselves divided on whether to maintain or abolish death penalty. Those in favour of keeping the capital punishment are posing the question “whose right to life is to be defended; that of the already killed victim or of the live aggressor?
The United Nations is in favour of a moratorium on the death penalty whereby the executions are suspended in view of total abolition. Although most of the countries in the world have not officially abolished the law, they no longer practice death sentence or if it is done very rarely (cf. Evangelium Vitae n. 56). Although the Catholic church does not exclude the possibility of the extreme way of punishing capital offences if this is the only way to defend other lives against the aggressor, it has nevertheless defended the right to life of every person and advocated for non lethal means to punish capital offences, which are more in conformity with human dignity and in line with the conditions of common good (cf. Catechism of the Catholic Church n. 2266-2267).
A non governmental Organization in Italy called “Hands off Cain” (in Italian Nessuno Tocchi Caino), initiated in the early 90’ the movement of suspension of death sentence and war against torture in general. The name of this association originates from the Biblical verse in the book of Genesis 4:15, whereby God put a mark on Cain so that nobody would kill him. Cain who killed his brother Abel out of jealousy was well aware that his burden was greater than he could bear and that people would be looking for his blood. However, God decided to protect the murderer saying that whoever kills Cain will suffer a sevenfold vengeance.
Is this not a clear indication that nobody really deserves death penalty, not because the crime committed is not capital, but simply because there is nothing or no punishment which can equal the crime of death of another person. I think a life lost in crime like murder can only be paid not by eliminating another life through death sentence, but by maintaining another life so that throughout his or her life one can repay through penance and other forms of punishment.
Those advocating for the death penalty instead seem to follow the law of an eye for an eye. Although they don’t quote the bible it can be traced in Genesis 9:6, where God speaks to Noah and tells him that he who sheds blood of man, shall by man his blood be shed. By this statement God however wants to stress how important and valuable human life is. This can be seen in the prohibitions (do not kill) found not only in Deuteronomy 5:17 and Exodus 20:13, but also in Mathew 5:21, among other biblical texts.
Article 26 § 1 of the Kenyan constitution states that every person has right to life. Although § 3 of the same article says that except to the extend authorised by the same constitution or any other law, it does not mean that such a law that might permit killing is a just law. We need to look at the objectives of punishment. It is meant to expiate one’s offences, to preserve public order and safety and as medicinal scope to correct the offender. It is obvious that when the person’s life is eliminated, some of the goals mentioned above won’t be effected. Preservation of public order and safety may be maintained by the aggressor’s death, but it is not guaranteed that such other persons capable of committing similar crimes are not still at large. And it might be impossible to eliminate each and every one who threatens public order and offends fundamental human rights. The circle will be too vicious if we have to apply an eye for an eye or a tooth for a tooth rule to every capital offence. Even when the universal declaration of human rights (UDHR) defends the right of every person, it states in article 1 that all human beings are equal in dignity and rights. This implies that even the person who murders another has the same right to life, regardless of the offence committed. While article 3 of the same UDHR defends security of every person, article 5 prohibits acts torture, cruel, inhumane, or degrading treatment and punishment. With death penalty we can no longer talk of punishment, but revenge.
This is what precisely God meant by saying that whoever kills Cain will have sevenfold vengeance. Whoever then executes another person because he has committed a capital offence will also have to face the same charge. He is also going against the right to life of the other person (a murderer). As I pointed out, the vicious circle will be endless and the injustice great. Nowadays there are new technological ways of administering death penalty unlike the traditional head chopping or hangman. Nevertheless this does not lessen the gravity of the offence. All those involved in administering such punishment in countries whereby this is still practised, have a right to objection of conscious. This means they can pronounce against the act of killing someone if this goes against their inner voice: not simply as a personal matter, but against natural law of preservation of life, which is also prohibited by divine law.
Looking at the world records between 2010 up to at least July 2011, there is a positive evolution towards abolition of capital punishment. The number of countries/states practising it has gone down compared to the past years. In Africa, death penalty was executed by 6 countries in 2010 namely; Libya, Somalia, Sudan, Egypt, Equatorial Guinea and Botswana. Recently it has been eliminated in Burundi, Rwanda, Cȏte d’Ivoire, Senegal etc. Asia remains the continent with the highest number of executions. In 2009 president Mwai Kibaki announced that the Kenyan government was commuting all death sentences to life in prison, a move which was seen to reduce by a fifth the total number of prisoners in the world facing the execution. What the East African judges are proposing now is a setback.
Kenya should be looking forward to officially eliminate death sentence after it took the move not to carry out the sentence, which in effect has not been done since 1983. Kenya should focus more on justice as pertains to non capital offences than putting into action the already dormant law of death punishment. It should actualize the moratorium favoured by majority of the nations because it is in line with the dignity the human person and in defence of his rights.
Death penalty can’t be termed as such like legitimate defence which needs to be an actual defence in the here and now action. When the officers in charge of security come across such concrete cases where the public need to be defended, unintentional killing may be viewed as legitimate self defence, if that was the only option to disarm the aggressor. However, when death penalty is executed it is not as a means to punish someone, but it becomes an end on its own. The end of capital punishment is the elimination of the culprit (killing). This does not neither guarantee that the crime committed will end nor give a chance to the person to amend his life. Life imprisonment seems to make sense as the society is free from the aggressors, yet at the same time the prisoners have time to reflect on their past life. Not all of them repent as seen by those who still organize other crimes while in prison or those who escape from prison. But at least the fact that they are imprisoned for life is almost equivalent to being sentenced to death, without being killed by anybody. One just waits for the natural death as he or she continues to study, work, reconcile with the creator and those he offended.
BY FR PASCAL MWAMBI MWAKIO
Master’s degree student at the Faculty of Bioethics
REGINA APOSTOLORUM UNIVERSITY, ROME.
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