By Ian Mutibwa
Two Ugandans have recently been executed in the People’s Republic of China for offences relating to drug trafficking. My condolences go out to the families of the deceased.
In Uganda there has been a public outcry on whether this was right and what our Government in particular ministry of foreign affairs can do to save the other Ugandans on death row and those incarcerated in Chinese Prisons.
Whereas I do not condone the death penalty because it is inhuman and degrading and other personal sentiments, I pray we look at the issue objectively and in light of international law principles.
The International Convention on Civil and Political Rights (“ICCPR”) to which Uganda and China are a party, spells out the principles in International law that member states adhere to. I will highlight two principles that are the subject of my discussion.
The first is the principle of sovereignty of states. This is a far and wide principle but it includes the fact that a country is free to do what is lawful in its territorial jurisdiction without interference from the outside world. Territorial sovereignty is particularly enshrined under article 1 of the Convention which states “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
This issue is married to Article 2(1) of the ICCPR which provides that Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
This means that as long as you cross into the boundaries of the State, the laws of that State are applicable to you regardless of sex, nationality or other status.
The Chinese people have exercised this right of self-determination and have gone ahead to provide in their laws for punishments such as death for economic crimes such as drug trafficking, embezzlement and bribery. That is their law and when caught at the other end of the law, the consequences although inhumane according to some scholars, they are lawful according to the Chinese people and legislation.
The Second Principle is that of the inherent right to life. In this respect, the ICCPR has provided for the right to life and the death penalty has not survived mention in the ICCPR. Article 6(1) and (2) provide that
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Clause 2 of the same article 6 provides that in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime (emphasis mine) and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
This literally means that whereas the right to life is inherent, it can be taken away lawfully by the state. The ICCPR recognizes that some states may not completely do away with the death penalty and emphasizes that if it MUST be carried out, it should be done lawfully and after final judgement rendered by a competent court.
I have taken some time to look at the judicial system in China and how these executions are finally carried out. It is not as draconian as the ordinary man is made to think. The Republic of China actually confirms the death penalty through the highest court of the land which is the Supreme Court and no one is executed until the Supreme Court affirms this sentence. It is also a mechanism in the Chinese laws that an appeal all the way upto the Supreme Court is automatic even if the convict is unwilling to appeal. It is a system of double appeals that is a MUST.
In addition there is usually a two year probation after the confirmation of the sentence where ones sentence may be converted to life imprisonment.
With the principle of state sovereignty and the right to life, China has exercised this right and drafted laws that call for execution where one is convicted of a crime such as drug trafficking and where this is lawfully carried out, the Republic is not to blame and ordinarily other states should not interfere with such a decision.
The writer is a tax and legal consultant