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AFRICAN HUMAN RIGHTS LAW JOURNAL

The death row phenomenon and

the prohibition against torture

and cruel, inhuman or degrading

treatment*

Kealeboga N Bojosi

†

Lecturer, Department of Law, University of Botswana

Summary

The article discusses how two main approaches to the death row

phenomenon can be distinguished in the jurisprudence of national courts

and international human rights mechanisms. The progressive approach

sees a prolonged delay in the execution of the death penalty as a violation of

the prohibition against inhuman or degrading treatment. The conservative

approach requires further circumstances, such as the conditions on death

row and that the delay in execution is not caused by the condemned prisoner

himself. The author argues that the two approaches should be easier to

reconcile if courts clearly defined what they mean by torture and cruel,

inhuman or degrading treatment.

1 Introduction

The death penalty is by no means of modern origin.

It has been

suggested that the death penalty is the oldest of all punishments and has

303

* This article is largely based on a dissertation submitted in partial fulfilment of the LLM in

Human Rights and Democratisation in Africa, University of Pretoria. I would like to

thank the Centre for Human Rights, University of Pretoria, for the financial grant that

enabled me to attend the course and produce this paper.

† LLB (Botswana), LLM (Pretoria), LLM (Cambridge); [email protected]

It has been noted that the earliest recorded public debate on the desirability of the

death penalty in Greece was in 427 BC; GE Devinish The application of the death penalty

in South Africa (1990) 1; see also Amnesty International When the state kills...Thedeath

penalty: A human rights issue (1989) 72.

its genesis in the dawn of history.

However, its antiquity has failed to

crystallise into universal acceptance. Indeed, at least at international law,

there is a gradual but firm movement towards its abolition.

Further-

more, statistics in relation to state practice indicate a trend towards

abolition. For example, in 1978 only 16 countries had abolished the

death penalty. In 2004, however, the figure has risen to 79, whereas a

total of 117 states have not carried out executions in the previous 10

years.

The above notwithstanding, a majority of states still maintain the

death penalty.

Furthermore, whilst there have been suggestions that

the death penalty is prohibited at international law,

such assertions are

not sustainable. The Universal Declaration of Human Rights (Universal

Declaration) refers to the right to life in article 3, but does not provide for

explicit exceptions.

It is also silent on the issue of the death penalty.

The International Covenant on Civil and Political Rights (CCPR) has a

more detailed articulation of the right to life contained in article 6. Article

6 provides that ‘no one shall be arbitrarily deprived of his life’. CCPR does

not define the term ‘arbitrarily’, but it has been suggested that it was

intended to mean both ‘illegally’ and ‘unjustly’.

The article proceeds to

expressly address the death penalty. However, CCPR expressly allows for

the use of the death penalty. Indeed, this has provided the impetus for

the view that the death penalty per se cannot be deemed to be torture

or cruel, inhuman or degrading treatment, precisely because it is

304 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

Amnesty International (n 1 above) 239.

WA Schabas ‘Justice, democracy and impunity in post-genocide Rwanda: Searching for

solutions to impossible problems’ (1996) 7 (3) Criminal Law Forum 553.

See R Skilbeck ‘The death penalty in international law: Tools for abolition’ unpublished

paper presented at the Conference on the Application of the Death Penalty in

Commonwealth Africa, Entebbe, Uganda, 10–11 May 2004. See also Amnesty

International ‘The death penalty worldwide: Developments in 2003’ ACT

50/007/2004.

In 2003, a total of 1 146 executions were carried out in 28 countries worldwide. See

Skilbeck and Amnesty International (n 4 above). In Africa, by the end of 2003 only

11 countries had abolished the death penalty. For a discussion on the various reasons

why the death penalty will remain in force in most African countries, see L Chenwi

‘Capital trials in the light of international and regional fair trial standards’, unpublished

paper presented at the Conference on the Application of the Death Penalty in

Commonwealth Africa, Entebbe, Uganda, 10–11 May 2004.

Eg, the Secretary-General of Amnesty International has posited that deliberately killing

someone violates the most basic of all human rights — the right to life, and has no

place in today’s world. See Amnesty International News Release Towards a world

without executions 16 June 1999. The statement has been construed as considering the

death penalty as a violation of international law. See also R Rich ‘Death penalty: An

abolitionist perspective’ 12th Commonwealth Law Conference Papers Vol 1 27.

For an analysis of the Universal Declaration, see LE Launderever ‘Capital punishment as

a human rights issue before the United Nations’ (1971) 4 Harvard Law Journal 511.

NS Rodley The treatment of prisoners under international law (1999) 220.

authorised as an exception to the right to life.

This has also found

expression at the domestic level to repel attacks on the death penalty on

the premise that the various constitutions recognise the death penalty as

a limitation on or exception to the right to life.

The above judicial orthodoxy has forced proponents of abolition to

devise alternative attacks to the death penalty. This has led to the

emergence of a relatively new legal doctrine, the so-called death row

phenomenon, which has been defined as ‘the inhumane treatment

resulting from special conditions on death row and often prolonged wait

for executions, or where the execution itself is carried out in a way that

inflicts gratuitous suffering’.

Legal scholars, psychologists and judges appear to be unanimous

about the existence of the death row phenomenon. However, the

jurisprudence of national courts and international courts and/or

tribunals is sharply divided about its precise contours. On the one hand,

there is a view that prolonged detention on its own is a sufficient

supervening event which may render the carrying out of the death

penalty illegal or unjust. On the other hand, there is another view, which

posits that over and above the prolonged detention, there must be

demonstrated the existence of other circumstances.

The paper has four main aims. Firstly, it examines various judicial and

academic views expressed on the precise nature of the death row

phenomenon. Secondly, it examines a few selected decisions of national

courts and international courts and/or tribunals to find out the

approaches to the death row phenomenon in different jurisdictions. The

national court decisions are from Zimbabwe, South Africa, Botswana,

The West Indies, India, Singapore and the United States. International

courts’ and tribunals’ decisions are those of the Judicial Committee of

the Privy Council (Privy Council), the Human Rights Committee

(Committee) and the European Court of Human Rights (European

Court). It is by no means suggested that these are the only courts that

THE DEATH ROW PHENOMENON 305

See the General Comment of the Human Rights Committee 20(44) UN Doc

CCPR/C/21/Rev/1/Add 3. See also Chaskalson P in S v Makwanyane & Another 1995 3

SA 39 (CC) para 36, where he says that ‘[c]apital punishment is not prohibited by

public international law, and this is a factor that has to be taken into account in

deciding whether it is cruel, inhuman or degrading punishment within the meaning

of section 11(2) [of the interim Constitution of South Africa]’. It has been said that

the statement would have been more accurate if it was framed in the negative,

namely that capital punishment is now prohibited by conventional norms that

have been ratified by nearly 50 states, and that this suggests an evolution of

standards towards it being considered cruel, inhuman or degrading treatment.

See WA Schabas ‘International legal aspects’ in P Hodgkinson & A Rutherford (eds)

Capital punishment: Global issues and prospects (1996) 35.

See eg the Botswana case of State v Ntesang [1995] 4 BCLR 426 or [1995] 2 LRC 338;

the Tanzanian case of Mbushu (alias Dominique Mnyaroje) & Another v Republic [1995]

1 LRC 216.

WA Schabas The abolition of the death penalty in international law (1993) 127.

have so far dealt with the issue. However, it is submitted that the

decisions are representative of the divergent views on the death row

phenomenon. Thirdly, the paper examines the above decisions to

determine the definition, if any, that has been given to the various

components of the prohibition against torture and cruel, inhuman or

degrading treatment. The aim here would further be to determine

whether it is necessary to define the various components of the

prohibition. Lastly, the paper attempts to reconcile the divergent views

that emerge from the different jurisdictions.

2 Judicial and academic acceptance of the death row

phenomenon

Literature is replete with authority describing the suffering endured by

condemned prisoners. This section examines the various views

expressed by jurists and other professionals about the death row

phenomenon as an inevitable consequence of the imposition of the

death penalty.

2.1 Delay on death row

It has been said that the death penalty inevitably causes cruelty by the

delay in carrying it out.

The reasons for delays on death row are diverse

and differ from one country to another.

However, it is generally

accepted that it is human nature to seek to prolong one’s life by all

means at one’s disposal.

Thus, in most cases, as will be seen in the

section that follows, the delay is partly due to the condemned prisoner

availing himself of appeal procedures.

Indeed, as will also be seen in

the next section, this is one of the major reasons for the controversy

surrounding the death row phenomenon.

Whatever the reasons for the delay, it is clear that delays on death row

are on an increase. In the United States, for example, an average length

of time spent on death row has risen from around 13 months in 1976 to

over seven years by the 1990s.

A prisoner in Utah was executed after

306 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

D Pannick Judicial review of the death penalty (1982) 162; in the case of Riley & Others

v Attorney General of Jamaica & Another [1982] 3 All ER 469 (PC), the Privy Council

held at 473 that ‘period of anguish and suffering is an inevitable consequence of

sentence of death’.

For an exhaustive discussion of the various causes of delay, see P Hudson ‘Does the

death row phenomenon violate a prisoner’s rights under international law?’ (2000)

11 European Journal of International Law 833 834–835.

In the Riley case (n 12 above), it was said at 479 that ‘[i]t is no answer to say that a man

will struggle to stay alive’.

In the Catholic Commission case (n 40 below), the Supreme Court of Zimbabwe noted

at 334 that the state has nothing to gain by delaying execution.

R Hood The death penalty: A world-wide perspective (1996) 136.

spending 18 years on death row since the age of 19.

In Arkansas, a

man’s death sentence was commuted to life imprisonment after

languishing on death row for 19 years.

Generally, it takes an average of

ten years to execute a death row inmate in the United States.

Delays on death row are a global problem and are not peculiar to the

United States. In Japan, for example, by the end of 2002 most of the over

100 people on death row had been in solitary confinement for over a

decade.

In 2001 there were at least 30 condemned prisoners in Zambia who

had been on death row for periods ranging from eight years to 25

years.

Thus, delays on death row, for various reasons, have become the

norm rather than an exception.

2.2 Academic acceptance of the death row phenomenon

A criminologist conducted a study and interviewed 35 condemned

prisoners in Alabama, United States. He found that most of the inmates

were preoccupied with the length of time spent on death row.

He also

found out that the isolated conditions under which death row inmates

were confined on death row produced widespread feelings of

abandonment, leading to what he styled ‘death of personality’.

The

symptoms of the condition, according to the study, were depression,

capacity, loss of sense of reality and physical and mental deterioration.

He described the condemned prisoners:

. . . massive deprivation of personal autonomy and command over resources

critical to psychological survival; tomblike setting, marked by indifference to

basic human needs and desires; and their enforced isolation from the living,

with the resulting emotional emptiness and death.

All in all, the various studies describe the exquisite psychological torture

resulting from confinement on death row. The result of such torture is

often deterioration and severe personality distortions, as well as denial of

reality.

THE DEATH ROW PHENOMENON 307

The Guardian (1992-07-31) quoted in Hood (n 16 above) 137.

AI United States of America: Developments on the death penalty during 1994 17. AI

Index: AMR 51/01/95.

Hudson (n 13 above) 835.

Amnesty International Report 2003: Japan http://web.amnesty.org/reprt/Jpn-

summary-eng (accessed 22 July 2004).

AI Zambia: Time to abolish the death penalty 9. AI Index: AFR 63/004/2001.

R Johnson Condemned to die: Life under sentence of death (1981) 4.

As above.

n 23 above, 110.

For a thorough exposition of this issue, see R Johnson ‘Under the sentence of death:

The psychology of death row confinement’ (1979) 5 Law and Psychology Review 141;

R Johnson & JL Carroll ‘Litigating death row conditions: The case for reform’ in

IP Robbins (ed) Prisons and the Law (1985).

2.3 Judicial cognisance of the death row phenomenon

There are perhaps a few issues that have cultivated mutual and universal

cognisance by diverse professions such as the death row phenomenon.

Various judicial bodies have echoed the sentiments expressed above in

relation to the psychological trauma that a condemned prisoner is

subjected to whilst on death row. In the United States case of Ex parte

Medley,

Justice Miller observed as follows in relation to condemned

prisoners:

When a prisoner sentenced to death by a court is confined in the penitentiary

awaiting the execution of the sentence, one of the most horrible feelings to

which he can be subjected during that time is the uncertainty during the

whole of it . . . as to the precise time when his execution shall take place.

In the same year, the United States Supreme Court in Re Kemmler

noted that, although the death penalty might not be cruel per se,it

becomes cruel when it involves a lingering death, which is beyond the

mere extinction of life.

The Supreme Court of India has also made reference to the suffering

that a condemned prisoner is subjected to on death row. In Ediga

Anamma v State of Andhra Pradesh,

Justice Krishna Iyer observed that

[t]he excruciation of a long pendancy of the death sentence, with the

prisoner languishing in near solitary confinement suffering all the time may

make the death sentence unconstitutionally cruel and agonising.

In yet another case decided by the Supreme Court of India,

Chandrachud CJ observed that

[t]he prolonged anguish of alternating hope and despair, the agony of

uncertainty, the consequences of such suffering on the mental, emotional

and physical integrity and health of the individual can render the decision to

execute the sentence of death an inhuman or degrading punishment in

circumstances of a given case.

2.4 Causes of the death row phenomenon

The above exposé reveals the undisputed existence of the death row

phenomenon. What may not be clear from the above is the exact cause

of the phenomenon. That is, it is not clear whether the phenomenon

results from mere confinement or whether it results from a combination

of confinement coupled with the treatment that death row inmates

are subjected to. Thus, it is imperative to determine whether the

308 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

134 US 160 (1890).

n 26 above, 172.

136 US 436 (1890).

[1974] 3 SCR 329.

n 29 above, 335.

Sher Singh & Others v State of Punjab [1983] 2 SCR 583.

n 31 above, 591.

phenomenon is suffered as a result of mere confinement on death row,

or whether there need to be other circumstances like conditions on

death row and the treatment that death row inmates are subjected to.

Most studies have described the psychological trauma that

condemned prisoners are subjected to. The trauma has largely been

ascribed to the uncertainty in relation to the date of execution coupled

with conditions on death row.

Whereas the reactions of prisoners on

death row have been likened to those of terminally ill hospital patients, it

has been noted that their situation is exacerbated by other factors like

isolation and deprivation of recreational and other facilities.

The conditions on death row have been crisply described as ‘an

austere world in which condemned prisoners are treated as bodies kept

alive to be killed’.

Similarly, Vogelman

has noted that ‘living in the

death row factory is a traumatic experience, whether or not it results in

execution. While the condemned are there, they are the living dead.’

What can be filtered from the above is that emphasis is laid on the

psychological trauma that is an inevitable consequence of the

imposition of the death penalty. The mental trauma and suffering results

from various factors associated with the death penalty. These factors

include uncertainty of the exact date of the impending death,

alternating hope and despair and the feeling of isolation. Thus, although

the traditionally rough conditions on death row exacerbate the

suffering, it would appear that they need not exist for a condemned

prisoner to be subjected to the death row phenomenon. However, as

will be noted shortly, the other view is to the effect that prolonged

detention on death row would not suffice on its own for purposes of

relying on the death row phenomenon to quash a sentence of death.

3 The jurisprudence of the death row phenomenon:

A global perspective

The death row phenomenon has occupied the highest judicial echelons

of many countries and international tribunals. This section will

endeavour to provide a global perspective of the jurisprudence of the

death row phenomenon. The aim of this section is to examine the

divergent approaches emerging from the jurisprudence and to show

that, as yet, there is no consensus as to the exact parameters of the death

row phenomenon.

THE DEATH ROW PHENOMENON 309

Hood (n 16 above) 137.

As above.

Johnson & Carroll (n 25 above) 15.

L Vogelman ‘The living dead: Living on death row’ (1989) 5(2) South African Journal

on Human Rights 183.

n 36 above, 195.

3.1 The jurisprudence of national courts

3.1.1 The Supreme Court of Zimbabwe

The earliest reported case on the death row phenomenon in Zimbabwe

is that of Dhlamini and Others v Carter NO and Others.

The appellants

sought to interdict the first respondent from carrying out the sentences

of death. They argued, among other things, that the delay between the

imposition of their sentences and their confirmation was so inordinate

as to constitute inhuman or degrading punishment in violation of sec-

tion 60(1) of the Constitution of the then Rhodesia. The argument was

rejected on the basis that, once a lawful sentence has been meted out, it

could not be rendered unlawful by subsequent events that may be

termed inhuman or degrading.

The Supreme Court was seized with a similar matter in the Catholic

Commission for Justice and Peace in Zimbabwe v Attorney General and

Others case.

This case involved four men who had been sentenced to

death. In March 1993, the four men were served with warrants for their

execution. They argued that the execution would be unconstitutional

due to the prolonged delay,

coupled with the harsh conditions on

the death row section of the Harare Central Prison. They relied on sec-

tion 15(1) of the Constitution of Zimbabwe.

The issue before the Court was whether, even though the death

sentences were the only fitting and proper punishments to have been

imposed, supervening events amounting to inhuman or degrading

treatment could be used to set aside the death sentences. The Court

commenced by observing that prisoners are not denuded of their rights

by mere conviction. The Court then held that a lawfully imposed

sentence, including the death penalty, could be set aside by reason of

subsequent events. The Court held that in the circumstances of the case

the death sentences, if carried out, would amount to inhuman or

degrading treatment.

Even though the Court discussed the various decisions of national and

international courts, it failed to reconcile the divergent views emerging

from the decisions. Similarly, no attempt was made to motivate the

preference for the view adopted by the Court over the views adopted by

other courts. For example, in relation to the decision of the Committee

310 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

(1) 1968 RLR 136.

n 38 above, 155.

1993 4 SA 239 (ZSC).

Zacharia Marichi had spent six years and 21 days, Timothy Mhlanga had spent fours

years and four months while Martin Bakaka and Luke Chiliko had spent four years and

three months each.

in Barrett and Sutcliffe,

the Court contented itself with saying that the

dissenting opinion of Ms Chanet was more ‘compelling’.

The Court held that the delay would be taken into account even if

occasioned consequent upon the condemned persons taking

advantage of the appeal mechanisms at their disposal. Lastly, although

the Court held that prolonged delay before carrying out the death

sentences could on its own violate section 15(1) of the Constitution, the

decision has been criticised for putting too much emphasis on the

appalling conditions on death row in Zimbabwe. It has been contended

that another court in another country might rely on this in an endeavour

to distinguish its scope.

Indeed, as it will be noted below, that is what

happened in a decision of the Botswana Court of Appeal.

3.1.2 The Constitutional Court of South Africa

One of the first constitutional issues that the South African

Constitutional Court had to grapple with was the death penalty in the

case of S v Makwanyane and Another.

In that case, the accused persons

had been convicted, among other things, on four counts of murder.

Their appeal to the Appellate Division was dismissed. However, as a

result of the issue of the validity of the death penalty, the case was

referred to the Constitutional Court.

The Constitutional Court held that the death penalty per se

constituted cruel, inhuman or degrading punishment within the

meaning of section 11(2) of the then interim Constitution. Although the

Court referred to decisions on the death row phenomenon, it did not

directly deal with the issue.

However, the Court observed, obiter

dictum, that if long delays are not considered in themselves cruel,

inhuman, or degrading punishment, then this would entail gratuitous

suffering which is inevitable in any system which retains the death

penalty. So the case appears to endorse jurisprudence to the effect that

inordinate delays in themselves constitute cruel, inhuman or degrading

punishment.

THE DEATH ROW PHENOMENON 311

Communications 270/1988 & 271/1988, Barrett & Sutcliffe v Jamaica CCPR/C/44/

D/271/1988, 6 April 1992.

n 40 above, 333.

WA Schabas The death penalty as cruel treatment and torture (1996) 147.

The Constitutional Court is the only body with the power to rule on the

constitutionality of any Act of Parliament; sec 167 of the Constitution of the Republic

of South Africa.

n 9 above.

For an exhaustive discussion of the case, see WA Schabas ‘South Africa’s new

Constitutional Court abolishes the death penalty’ (1995) 16 Human Rights Law

Journal 133–148 and PM Maduna ‘The death penalty and human rights’ (1996) 12

South African Journal on Human Rights 193.

In his concurring judgment, Kentridge AJ added that:

The mental agony of the criminal, in its alteration of fear, hope and despair

must be present even when the time between sentence and execution is

measured in months or weeks rather than years.

This statement ought to be construed and understood cautiously and

against the backdrop of the Court’s holding that the death penalty is

arbitrary and inhuman and not as laying down a general rule on the

death row phenomenon.

3.1.3 The Court of Appeal of Botswana

The Court of Appeal of Botswana had occasion to address the death row

phenomenon in Lehlohonolo Bernard Kobedi v The State.

The appellant

was a citizen of Lesotho who was convicted by the High Court of murder,

among other things, and sentenced to death on 14 October 1998. The

Court of Appeal dismissed his appeal against both conviction and

sentence on 22 January 1999. The appellant spent some ten months on

death row before launching a notice of motion in the High Court on 9

November 1999. He contended, among other things, that the execu-

tion of the death sentence would be unfair and unreasonable by reason

of delay. The application was dismissed and he appealed to the Court of

Appeal.

The Botswana Court of Appeal was referred to the Catholic

Commission case and decisions of the Privy Council prior to Pratt and

Morgan v Attorney General of Jamaica.

The Court then had to decide

whether to follow the Zimbabwean case or the Privy Council decisions.

In so deciding, the Court said that it was necessary to make certain

observations. Firstly, it noted that the death penalty and the method of

carrying it out by hanging have been sanctioned by the Constitution of

Botswana and therefore its imposition cannot be regarded as inhuman

or degrading. It appears from the judgment that the Court relied on

section 4(1) of the Constitution,

which reads as follows:

A person shall not be deprived of his life intentionally save in execution of the

sentence of a court in respect of a criminal offence under any law of which he

has been convicted.

It was, however, argued that although the death penalty appears to be

contemplated by the Constitution, nevertheless its method of execution

was inhuman and degrading. In response, the Court relied on its

earlier

decision and held that the argument overlooked the provisions

312 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

Makwanyane (n 9 above) para 136.

Court of Appeal Criminal Appeal No 25 of 2001 (unreported).

(1993) 14 Human Rights Law Journal 338.

See eg 33 per Tebbutt JP.

Ntesang v The State 1995 Botswana Law Reports 151.

of section 7(2) of the Constitution, which saved any law which

‘authorises the infliction of any description of punishment that was

lawful in the country immediately before the coming into operation of

this Constitution’.

It will be observed from the Pratt and Morgan case

that section 17(2) of the Constitution of Jamaica is similar to section 7(2)

of the Botswana Constitution. However, in the Pratt and Morgan case,

the Privy Council held that, while the death penalty by hanging may

have been lawful and therefore not subject to constitutional attack, a

prolonged wait for it was not and could never be protected by the

provision. It is submitted that the same reasoning ought to apply in the

interpretation of section 7(2) of the Constitution of Botswana.

Unfortunately, it appears that the Court of Appeal was not referred to

the Pratt and Morgan case. As a result, it relied heavily on Abbott v

Attorney General of Trinidad and Tobago and Others

and Riley and

Others v Attorney General of Jamaica and Another,

which have since

been overturned by the Pratt and Morgan decision.

The second observation that the Botswana Court of Appeal made was

that some form of mental strain and suffering was inherent in the death

penalty.

The Court relied on the dissenting opinions of Lords Scarman

and Brighton in the Riley case. Yet, what the Law Lords simply meant in

that case was that, since mental strain and suffering are an inevitable

consequence of the death penalty, it should not matter who caused the

delay on death row. They did not mean, as the Court of Appeal appears

to hold, that since the suffering is an inevitable consequence of the death

penalty, one cannot rely on the suffering to quash the execution.

The third observation that the Court made was that a person

sentenced to death will almost invariably pursue his right of appeal and

as a result prolong his mental stress and anguish.

The Court held then

that it could not agree with Gubbay CJ in the Catholic Commission case

that the period involved in pursuing his right of appeal, or other judicial

process available, should not be excluded from the consideration of

whether there has been an inordinate delay in the carrying out of the

death sentence from the time of its imposition.

This approach has been

criticised for, among other things, penalising the claiming of the right to

appeal by holding that the exercise of that right prevents the defendant

from contending that his treatment violates the prohibition against

torture and inhuman or degrading treatment.

Furthermore, the Court

THE DEATH ROW PHENOMENON 313

Per Tebbutt JP 33.

[1979] 1 WLR 1342 (PC).

n 12 above.

n 49 above, 54.

As above.

n 49 above, 56.

Pannick (n 12 above) 85.

relied religiously on the Abbott and Riley cases which, as noted, have

since been overturned. The Court also relied on the United States cases

of Chessman v Dickson

and Richmond v Lewis.

What the Court failed to

appreciate is that the United States is sharply divided on the issue, as

there is yet to be a decisive Supreme Court decision. Further, as one

commentator observed, it should always be remembered that United

States decisions mostly deal with applications for habeas corpus and not

appeals per se, and that it would be ‘extravagant to punish an accused

person for exercising his constitutional rights’.

The Court concluded that the delay had been largely caused by the

appellant’s own actions. It further held that no evidence had been

placed before it to show the conditions on death row in Botswana. In

fact, the Court used this as an attempt to distinguish the present case

from the Catholic Commission case. However, as noted above, the actual

conditions on death row were not decisive in that case.

3.1.4 The Supreme Court of India

Although the Constitution of India does not proscribe torture or

inhuman or degrading treatment or punishment, the Supreme Court of

India has since filled the lacuna. It has interpreted article 21, which

guarantees the right to live with basic human dignity, as embodying the

right not to be subjected to torture, inhuman or degrading treatment or

punishment.

That decision provided the impetus for considering the question of

delay in carrying out the death penalty in the case of Vatheeswaran v

State of Tamil Nadu.

In that case, the Court considered the issue

whether it was open to the Court to take cognisance of endless delay

before execution and give relief where necessary. The Court quoted

extensively from the minority opinion in the Riley case, and found that to

take the appellants’ lives after a delay of eight years would be a gross

violation of the fundamental right guaranteed by article 21 of the

Constitution.

While the Court conceded that anguish and suffering were inevitable

consequences of the sentence of death, it held that ‘a prolongation of it

beyond the time necessary for appeal and consideration is not’.

From

this statement, one gets the impression that any anguish and suffering

during the period of appeal were acceptable as inevitable. However, the

Court went on to say that ‘it is no answer to say that a man will struggle

314 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

275 F 2d 604 (1960).

948 F 2d 1473 (1991).

Schabas (n 44 above) 142.

Francis Cotalie Mullin v The Administrator, Union Territory of Delhi AIR 1983 SC 746.

AIR 1983 361.

n 64 above, 363.

to stay alive. In truth, it is this ineradicable human desire which makes

prolongation inhuman and degrading.’

The appeal was allowed and

the death sentences were set aside and substituted by life imprisonment.

The Court went on to say, obiter dictum, that the delay of two years

should be sufficient to invoke the application of article 21.

The obiter dictum in the Vatheeswaran case was overturned in Sher

Singh and Others v The State of Punjab,

in which case the Court held

that it was normal for appellate proceedings to exceed two years and

that it would be inconceivable if a condemned person could delay

execution to such an extent by, for instance, filing frivolous proceedings

so that it had to be commuted to life under such a rule. Nevertheless, the

Court endorsed the ratio decidendi in the Vatheeswaran case and held

that a condemned person who had been subjected to agony and

torment was entitled to rely on article 21. The Court said that it was a

logical extension of the principle that supervening events may render

the execution of a justly imposed death sentence harsh, unjust or

unfair.

3.1.5 The Court of Appeal of Singapore

The Court of Appeal of Singapore dealt with the question of delay on

death row in Jabar v Public Prosecutor.

In that case it was argued that it

would be cruel and inhuman punishment to carry out execution in view

of the prolonged delay of more than five years since the date of

conviction. Reliance was placed on the Indian cases discussed above and

the Privy Council case of Pratt and Morgan. The Court of Appeal drew a

rather dubious distinction between the case at hand and the Indian

decisions. The Court noted that the death penalty was not mandatory in

India and as such the courts would readily consider any delay in the

judicial process and make an order of the commutation of the sentence

to life imprisonment. This was because the intention of the legislature in

India was to make life imprisonment the general rule and the death

sentence an exception to be resorted to for special reasons. The Court

concluded that the situation in Singapore was markedly different

because there the death penalty was mandatory. Interestingly, the Privy

Council has recently held that a mandatory death sentence would be in

violation of the prohibition against torture and cruel, inhuman or

degrading treatment or punishment.

THE DEATH ROW PHENOMENON 315

As above.

n 64 above, 367.

(1983) 2 SCR 583.

n 68 above, 593.

[1995] 1 SLR 617.

See eg Patrick Reyes v The Queen (2002) AC 235.

It is submitted that the Court overlooked the fact that the unambigu-

ous finding by the Indian Supreme Court was that supervening events

might render a lawfully and justifiably imposed death sentence unlawful.

The fact that the sentence may be mandatory does not detract from the

mental anguish and torment that a condemned prisoner suffers as a

result of inordinate delay and harsh conditions on death row.

The Court went on to hold that, once it had disposed of the appeal

against conviction and confirmed the sentence of death, it was functus

officio as far as the execution of the sentence was concerned. With

respect, the Court overlooked the fact that a challenge based on the

death row phenomenon is not a challenge to the judicial sentence of

death per se, but rather to its execution after an inordinate delay. This is

an issue which at the appeal stage is not canvassed and therefore on

which a court cannot at a later stage purport to be functus officio.

3.1.6 The Judicial Committee of the Privy Council

The Privy Council

has dealt with a plethora of cases bearing on the

death row phenomenon. The first case that the Privy Council dealt with

was Freitas v Benny.

In that case it was held that the appellant could not

complain about the delay totalling three years preceding his petition for

clemency caused by his own action in appealing against his conviction.

This case was followed by the Abbott case,

in which the Privy

Council dismissed as untenable a contention that a delay of eight

months was so inordinate as to invoke a contravention of the appellant’s

constitutional rights. The Privy Council held that the delay caused by the

prisoner’s use of various judicial reviews could never be invoked as

evidence of inhumanity. As a result, three years of appeal and two years

of pardon application were excluded. Interestingly, the Privy Council

observed, obiter dictum, that:

It is possible to imagine cases in which time allowed by the authorities to

elapse between the pronouncement of a death sentence and a notification to

the condemned man that is was to be carried out was so prolonged as to

arouse in him a reasonable belief that his sentence must have been

commuted to a sentence of life imprisonment.

However, the Privy Council observed that delay in such a case would be

measured in years and not months.

316 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

The Privy Council is an advisory body of the British sovereign. The Judicial Committee

of the Privy Council acts, inter alia, as an appellate court of the Commonwealth.

However, the Judicial Committee only has jurisdiction to entertain appeals from

courts in independent Commonwealth countries where such right has not been

terminated. Most countries in the West Indies have not terminated this right of

appeal. As such, the cases discussed here will be from the West Indies.

1976 AC 239 (PC).

n 54 above.

n 54 above, 1348B–D.

The Privy Council then addressed the issue in the case of Riley,

which the Privy Council concluded that, whatever the reasons for the

delay in the execution of a death sentence lawfully imposed, such a

delay could not invoke a violation of section 17(1) of the Constitution of

Jamaica, which prohibits cruel, inhuman or degrading punishment. The

Privy Council relied on section 17(2) of the Constitution of Jamaica and

held that, since at the time immediately before the Constitution came

into effect, execution would have been punishment of a description

which was lawful, notwithstanding any delay between its passing and

the passing of the death warrant, execution of the death penalty would

be ‘to the extent’ that the law allowed.

The Privy Council further

emphasised that any delay necessarily occasioned by the appellate

procedures pursued was to be excluded.

The Riley case was overturned in the Pratt and Morgan case.

In that

case, a period of about 14 years had lapsed between the time the death

sentence was meted out and the time the applicants petitioned the Privy

Council to have the sentence of death commuted to life imprisonment.

Although the Privy Council found that some of the responsibility for the

serious delay was attributable to the respondents, it held that the

responsibility had no bearing on whether or not the overall length of

detention on death row can be described as cruel and unusual

punishment under section 17(1) of the Constitution of Jamaica. It held

that a state wishing to retain the death penalty must ensure speedy

execution after allowing a reasonable time for appeal and consideration

of reprieve. It held that section 17(2) was confined to authorising

descriptions of punishment for which the court may pass judgment, but

did not prevent the appellant from arguing that the circumstances in

which the executive intends to carry out a sentence are in breach of

section 17(1).

The Privy Council then almost fell into the trap that the Supreme

Court of India

fell in by adding that:

In any case in which execution is to take place more than five years after

sentence there will be strong grounds for believing that the delay is such as to

constitute inhuman or degrading punishment or other treatment.

It would appear that the Privy Council realised the potential danger in

setting a rigid time frame, and therefore endeavoured to qualify its

statement in the next case involving Trinidad and Tobago. This case was

THE DEATH ROW PHENOMENON 317

n 12 above.

n 12 above, 473.

n 12 above, 471.

n 50 above.

n 50 above, 343.

Vatheeswaran (n 64 above).

n 50 above, 346.

Guerra v Baptiste,

in which the appellant had been served with a

warrant for his execution more than four years and ten months after his

conviction. The Privy Council observed that:

The five-year period [enunciated in Pratt and Morgan] was not intended to

provide a limit, or a yardstick, by reference to which individual cases should

be considered in constitutional proceedings.

It held that the period should be judged by referring to the requirement

that execution should follow as swiftly as practicable after sentence, after

allowing a reasonable time for appeal and reprieve.

It is clear from the above that the present position of the Privy Council

is that resort to legitimate appellate procedures should not be a bar to a

contention that a delay on death row has violated the prohibition

against torture and inhuman or degrading treatment.

3.1.7 The position in the United States

Various courts in the United States have dealt with the issue in various

ways. In the Chessman case,

the Court of Appeal for the North Circuit

declined to stay execution because the delay of 12 years was largely due

to the skilful manner in which the prisoner’s lawyer had managed to

exhaust all available avenues. Interestingly, the Court put a lot of

emphasis on the prisoner’s disposition and personality, to conclude that

he could not have suffered mental agony that an ordinary man would

have.

The same reasoning was employed in various courts to deny

relief to applicants who had been on death row for over 13 years

and

16 years.

However, the Supreme Court of California adopted a different

approach in People v Anderson.

In that case, the Court was concerned

with the question whether the death sentence violated article 6 of the

state’s constitutional prohibition against cruel or unusual punishment.

The Court held that it did, and particularly underlined the cruelty of the

delay in carrying out the death penalty. It went further to hold that an

appellant’s insistence on receiving the benefits that accrue to judicial

review does not render the lengthy period of impending death any less

torturous.

Similarly, in District Attorney for Suffolk District v Watson

Mass,

the Supreme Judicial Court of Massachusetts held the death

318 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

[1996] 1 AC 397.

n 83 above, 39.

As above.

n 60 above.

n 60 above, 607–608.

Potts v State (1989) Supreme Court of the state of Georgia.

n 61 above.

493 P 2d 88 (1972).

n 90 above, 89.

411 NE 2d 1274 (1980).

penalty to be violative of the state’s Constitution, which prohibited cruel

punishment. The Court noted, per Justice Hennessey, that:

The fact that the delay may be due to the defendant’s insistence on exercising

his appellate rights does not mitigate the severity of the impact on the

condemned individual, and the right to pursue due process of the law must

not be set-off against the right to be free from inhuman treatment.

In the same terms as in the Anderson case, the Court held that delay as a

result of the defendant’s insistence on exercising his appellate rights

does not mitigate the severity of the impact on him.

3.2 The jurisprudence of international jurisdictions

3.2.1 The United Nations Human Rights Committee

The Human Rights Committee is a body of 18 independent experts,

which has the power to determine individual complaints on alleged

human rights violations in countries that are state parties to the Optional

Protocol to CCPR.

In terms of article 5(4) of the Optional Protocol, its

decisions on the merits, which are called views, are not binding on

states. However, its views may be a source of international law as highly

authoritative decisions. Member states are expected to implement the

decisions.

In Earl Pratt and Ivan Morgan v Jamaica,

the complainants had been

on death row for a period of about seven years. The Committee found

that prolonged judicial proceedings do not per se constitute cruel,

inhuman or degrading treatment, even if they can be a source of mental

anguish to the convicted prisoners. It, however, noted that in the case of

capital punishment, different circumstances might obtain, requiring an

assessment of the circumstances of each case. In the case at hand, the

Committee found that the authors had not sufficiently motivated their

claim that delays in judicial proceedings had turned their detention on

death row into cruel, inhuman or degrading treatment. The Committee

said that it is incumbent upon the author who alleges such violation to

allege and prove facts over and above prolonged detention that render

such detention cruel, inhuman or degrading.

In Barrett and Sutcliffe v Jamaica,

the authors, who had been on

death row for a period of over 13 years, claimed that the duration of their

confinement to death row was contrary to article to 7 of CCPR. The

Committee reiterated the sentiments it expressed in Pratt and Morgan,

THE DEATH ROW PHENOMENON 319

n 92 above, 1283.

M Schmidt ‘The Human Rights Committee: Process and progress’ (1995) 5 Human

Rights Forum 31–49.

As above.

Communications 210/1986 & 225/1987, Earl Pratt & Ivan Morgan v Jamaica

CCPR/C/35/D/210/1986; CCPR/C/35/D/225/1987, 7 April 1989.

n 42 above, 388–390.

that prolonged judicial proceedings do not per se constitute cruel,

inhuman or degrading treatment, even though they may be a source of

mental strain and anguish for the detained persons.

So, although it found the delay between the dismissal of their appeal

by the Court of Appeal of Jamaica and the judgment of the Privy Council

to be ‘disturbingly long’, it concluded that it was largely attributable to

the authors themselves. This was not a unanimous decision. For

example, Ms Chanet of France was of the view that a state party is not

exonerated from its obligations under article 7 of CCPR, even if the long

delay may be partially due to the failure of the condemned prisoner to

exercise a remedy.

In Joseph Kindler v Canada,

the Committee was faced with a Com-

munication in which the author complained that his extradition to

Pennsylvania, United States, would be a violation of article 7.

Interestingly, the communication did not deal with an actual violation.

The Committee considered the decision of the European Court in

Soering v United Kingdom,

100

and concluded that it was distinguishable.

In particular, the Committee noted that no specific facts had been

placed before it in relation to prison conditions in Pennsylvania, or about

the possibility or effects of prolonged delay in the execution of the death

sentence. It was for the same reasons that the communication of Errol

Simms v Jamaica

101

was dismissed.

The jurisprudence of the Committee therefore shows an insistence on

the requirement of the existence of further compelling circumstances.

What is not clear from the jurisprudence is what would suffice to satisfy

this requirement.

3.2.2 The European Court of Human Rights

The European Court had occasion to address the issue of the death row

phenomenon in the watershed case of Soering.

102

Soering, a German

citizen, was sought by the United States to face two charges of murder in

the state of Virginia under the 1972 Extradition Treaty with the United

Kingdom.

A United Kingdom judge held that Soering could be extradited.

Appeals having been dismissed, Soering sought relief from the European

Commission on Human Rights. He argued that his extradition would

320 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

n 97 above, 390 (Appendix I to the views of the Human Rights Committee).

Communication 470/1991, Joseph Kindler v Canada, CCPR/C/48/D/470/1991,

18 November 1993.

100

Judgment of 7 July 1989, Publications of the European Court of Human Rights, Series

A No 161. This case will be discussed in detail below.

101

Communication 541/1993, Errol Simms v Jamaica, CCPR/C/53/D/541/1993, 3 April

1995.

102

n 100 above.

amount to a violation of article 3 of the European Convention on Human

Rights (European Convention).

103

This was because the conditions of

detention at Mecklenburg State Prison, where he would be incarcerated

if sentenced to death in Virginia, were particularly harsh and thus

inhuman and degrading. The Commission found against him, but

referred the case to the European Court.

The European Court found that there was a real risk that Soering

would be sentenced to death and that, if extradited, article 3 of the

European Convention would be violated. The Court assessed the

conditions of detention at Mecklenburg State Prison. It also posed the

question whether a delay in the appellate process in the United States

could be attributable to the condemned person. The Court held that

although the delay might be attributable to the condemned person and

regardless of the good intentions of the state of Virginia for providing

complex post-sentencing procedures, that did not detract from the

mental anguish and suffering by the condemned prisoner.

104

The Court

concluded therefore that taking into consideration the long time that

would be spent on death row in extreme conditions and the personal

circumstances of the applicant, including his age (18 years) and his

mental state at the time the crime was committed, his extradition would

be in violation of article 3.

3.3 The approaches emerging from the jurisprudence

Few issues have succeeded in cultivating mutual cognisance of the

jurisprudence of national courts and international judicial bodies like the

death row phenomenon. However, judicial cognisance has not trans-

lated into judicial consensus on the issue. What follows is a discussion of

the two approaches that have been filtered from the above juris-

prudential excursion.

3.3.1 The progressive approach

One approach to the death row phenomenon is what will herein be

called the progressive approach. This approach has been adopted by the

Supreme Court of Zimbabwe, the Supreme Court of India, the Privy

Council and the South African Constitutional Court. Gubbay CJ in the

Catholic Commission case referred to the approach he adopted as more

‘progressive’ and ‘compassionate’.

105

This approach is basically to the

effect that the execution of a death sentence after a prolonged delay is a

violation of the prohibition against inhuman or degrading treatment.

THE DEATH ROW PHENOMENON 321

103

Art 3 is the equivalent of art 7 of CCPR. They only differ in that the European

Convention does not make reference to cruel treatment.

104

n 100 above, para 106.

105

n 40 above, 333.

This is so regardless of the fact that the delay might have been at the

instance of the condemned prisoner himself.

3.3.2 The conservative approach

The Committee has consistently held that long detention per se does not

amount to a violation of the prohibition against cruel, inhuman or

degrading treatment. It has maintained that there has to be an existence

of ‘further and compelling circumstances’.

106

This approach has been

termed less progressive by the Supreme Court of Zimbabwe.

The European Court has, on the other hand, noted that:

107

For any prisoner condemned to death, some element of delay between

imposition and execution of the sentence and the experience of severe stress

in conditions necessary for strict incarceration are inevitable.

The severe stress was said to be inevitable despite the fact the delay

might have been due to the exploitation of appeal safeguards by the

condemned prisoner. Yet, ultimately what influenced the Court were the

peculiar circumstances of the applicant.

108

It is difficult to conclude that

the European Court would have reached the same conclusion if the

circumstances of the applicant had been different.

109

Some commenta-

tors have maintained that neither the age nor the mental state of Soering

influenced the court.

110

It is submitted that the emphasis the Court laid

on Soering’s circumstances leads one to the inevitable conclusion that,

but for these circumstances, the Court’s conclusion would have been

different. It is for this reason that the decision is put under the conserva-

tive approach. The Court of Appeal of Botswana and the Court of Appeal

of Singapore fall within this category.

Jurisprudence on the death row phenomenon reveals the different

approaches that have been adopted by different courts around the

globe. Although this discussion is not exhaustive, it is submitted that,

geographically, it sufficiently covers a wide spectrum of the globe as it

deals with decisions from different continents. What can be observed

from the above is that there are two approaches to the death row

phenomenon, which are based on diverse and incommensurable

convictions. These approaches have led to different decisions on similar

cases.

322 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

106

See para 3.2.1 above.

107

n 100 above, para 111.

108

See eg GJ Naldi ‘The death row phenomenon held inhuman treatment’ The Review

(International Commission of Jurists) December 1989 61–62; Schabas (n 11 above)

225–226.

109

RB Lillich ‘The Soering case’ (1991) 85 American Journal of International Law 145.

110

See eg M Shea ‘Expanding judicial scrutiny of human rights in extradition cases after

Soering’ (1992) 17 Yale Journal of International Law 110.

4 The meaning of torture and cruel, inhuman or

degrading treatment or punishment

What emerged from the previous section is that, although there is no

consensus as to the exact parameters of the death row phenomenon,

there is general acceptance that it might invoke the violation of the

prohibition against torture and cruel, inhuman ad degrading treatment

or punishment. It must be noted that various treaties and constitutions

employ different terminology. For example, whereas the Constitution of

Botswana protects against ‘torture and inhuman or degrading

treatment’, the Constitution of the United States protects against ‘cruel

and unusual punishment’. It has been suggested that, whilst the

terminology is different, the underlying concept is the same in that the

aim is to protect persons from unnecessary and undue suffering.

111

Perhaps this explains why less emphasis has been placed on the

definition of these terms. However, it is submitted that defining these

terms is relevant for, inter alia, arriving at a consensus of the exact

parameters of the death row phenomenon. Only when there is

consensus on how these terms are understood, can the gap between the

approaches discussed in the previous section be bridged. This section

embarks on a brief evaluation of the jurisprudence on the prohibition

against torture and cruel, inhuman or degrading treatment or

punishment. It also discusses the various approaches emerging from the

jurisprudence.

4.1 The jurisprudence on torture and cruel, inhuman or

degrading treatment or punishment

4.1.1 The global approach

112

In the Catholic Commission case, the Supreme Court of Zimbabwe relied

on section 15(1) of the Constitution of Zimbabwe.

113

However, all the

Court said in relation to the section was that it was ‘nothing less than the

dignity of a man, it is a provision that embodies broad and idealistic

notions of dignity, humanity and treatment’.

114

The Court seemed to

overlook the fact that the section referred to various kinds of conducts or

acts to which no individual ought to be subjected. Thus, for its

exhaustive and industrious comparative analysis of the jurisprudence of

THE DEATH ROW PHENOMENON 323

111

See Hudson (n 13 above) 837.

112

This approach has been referred to as ‘global’ in that it makes no distinction between

the components of the prohibition. See NS Rodley The treatment of prisoners under

international law (1987) 71.

113

The section reads as follows: ‘No person shall be subjected to torture or to inhuman

or degrading punishment or other such treatment.’

114

Catholic Commission case (n 40 above) 326.

the death row phenomenon, the case is less helpful in defining the pro-

hibition that it held had been violated. It is submitted that the Court

ought to have defined the various terms and said which of the acts the

applicants had been subjected to.

Similarly, the Constitutional Court of South Africa in the Makwanyane

case did not attempt to define the various concepts embodied in sec-

tion 11(2) of the Constitution. Perhaps this was because the question of

cruel, inhuman or degrading treatment or punishment was not the sole

issue. In that case the death sentence was challenged on the basis of

sections 8,

115

116

and 10,

117

in addition to section 11(2). According to

the Court, these rights were treated as components of the inquiry as to

whether the death penalty was cruel, inhuman or degrading.

The Constitutional Court also had occasion to examine this

prohibition in S v Williams.

118

In that case the issue was whether judicial

corporal punishment violated the Constitution. However, as in the

Makwanyane case, the question of cruel, inhuman or degrading

treatment or punishment was not the only issue.

119

In concluding that

section 11(2) had been violated, the Constitutional Court declined to

draw a distinction between the various components of the prohibition.

The Court concluded that:

120

Whether one looks at the adjectives disjunctively or regards the phrase as a

compendious expression of a norm, it is my view that at this time, so close to

the dawn of the twenty first century, juvenile whipping is cruel, it is inhuman

and it is degrading.

Similarly, the Privy Council has been criticised for providing no real

guidance to the interpretation of the norm.

121

It has been observed that

it sheds no light on whether the death row phenomenon constitutes

torture or whether it is inhuman or degrading.

122

The Committee has also not laid emphasis on defining the various

components of article 7 of CCPR. It has merely found that article 7 had

been violated. In some cases the Committee has expressly found that

torture alone had been committed, but failed to authoritatively say

which of a series of acts constituted torture.

123

In other cases it has

324 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

115

Sec 8 provided for the right to equality and is now replaced by sec 9 of the 1996

Constitution.

116

Sec 9 provided for the right to life which is now embodied in sec 11 of the 1996

Constitution.

117

Sec 10 provided for the right to respect for and protection of dignity and remains the

same.

118

1995 2 SA 632 (CC).

119

It was argued that in addition to constituting cruel, inhuman or degrading

punishment, corporal punishment also violated secs 5, 9 & 10.

120

Per Langa J para 91.

121

Schabas (n 44 above) 123

122

B Phillips ‘Pratt and Morgan v Attorney General for Jamaica’ (1994) 88 American

Journal of International Law 775.

123

Eg see Sendic (Setelic) v Uruguay (Communication No R14/63).

specifically found that certain acts amount to inhuman treatment

without defining the term.

124

The above does not mean, however, that the Committee does not

acknowledge that there are distinctions between the categories. In its

General Comment on article 7 of CCPR, the Committee observed that

the distinctions between the categories depends on the purpose, nature

and the severity of the treatment. It nevertheless concluded that:

125

The Covenant does not contain any definition of the concepts covered by

article 7, nor does the Committee consider it necessary to draw up a list of

prohibited acts or to establish sharp distinctions between the different kinds

of punishment or treatment.

The need to draw a distinction between the categories will be discussed

below.

4.1.2 The disjunctive approach

The global approach can be juxtaposed against an approach which will

herein be called the disjunctive approach. This has notably been

adopted by European bodies and the approach endeavours to draw

distinctions between the array of prohibited acts. The European

Commission in the Greek case

126

observed that torture encompasses

inhuman or degrading treatment and that inhuman treatment

embodies degrading treatment.

127

Thus the European Commission not

only defined the prohibitions, but it also ranked them in order of

severity.

128

Similarly, the European Court has held in Ireland v United Kingdom

129

that the distinctions between the various prohibitions lay in the intensity

of the suffering inflicted. Although the Court was unanimous as to the

difference between the various prohibitions, it was split as to the

category in which the impugned acts fell. In the case of Tyrer v United

Kingdom,

130

that involved a determination as to whether corporal

THE DEATH ROW PHENOMENON 325

124

Communication 37/1978, Bouton v Uruguay, CCPR/C/12/D/37/1978, 27 March

1981.

125

General Comment No 20/44 (April 1992).

126

Opinion of 5 November 1969, YB XX11 186. Extracts from the opinion of the

European Commission are reproduced in the Digest of Strasbourg Case Law Relating

to the European Convention on Human Rights Vol 1 (Articles 1–5) 100–101.

127

The European Commission also described torture as an aggravated form of inhuman

treatment and inhuman treatment as being that which deliberately causes severe

suffering, mental or physical, which is unjustifiable.

128

For more on the jurisprudence, see eg MW Janis, RS Kay & AW Bradley European

human rights law. Text and materials (1995); R Keightley ‘Torture and cruel, inhuman

and degrading treatment or punishment in the UN Convention Against Torture and

other instruments of international law: Recent developments in South Africa’ (1995)

11 South African Journal of International Law 379.

129

Judgment of 18 January 1977 (No 25) 2 EHRR 25.

130

Judgment of 25 April 1978, Series A vol 26.

punishment of a juvenile contravened article 3 of the European

Convention, the Court held that the assessment of into which category

the acts complained of fell is relative.

131

The European Court’s interpretation involves a two-phased inquiry.

The first phase of the inquiry is whether the physical or mental treatment

complained of has achieved a minimum level of severity. If the answer to

the first inquiry is in the affirmative, then the degree is used as a yardstick

for determining the category in which to place the treatment

complained of.

4.1.3 The need for defining the various prohibitions

One might question the wisdom and the need for defining the various

prohibitions discussed above. In relation to article 7 of CCPR, for

example, if it is found that it has been violated, does it really matter

whether it is the prohibition against torture or inhuman or degrading

treatment or punishment that has been violated? It is submitted that the

answer is in the affirmative. This is more so in relation to the death row

phenomenon where there is controversy as to its parameters. The

discussion that follows elucidates this submission.

A plethora of international human rights instruments prohibit torture

or cruel, inhuman or degrading treatment or punishment.

132

This

prohibition is also found in numerous domestic constitutions.

133

This

blanket prohibition envisages that the various concepts therein are

distinct. One major factor that points to the difference between these

prohibitions is that at international law, the prohibition against torture is

regarded as having crystallised into a norm of customary international

law while other prohibitions are not.

134

The significance of this is that, at

international law, even states that have not ratified the instruments

prohibiting torture are nevertheless bound by the prohibition. Needless

to say, in relation to other prohibitions that are not part of customary

international law, no obligations will attach unless a state has ratified a

treaty in question.

4.1.4 The prohibition against torture

Most of the international instruments cited above merely prohibit

torture, but they do not define torture.

135

However, the United Nations

326 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

131

n 130 above, para 30.

132

Eg the Universal Declaration under art 5; CCPR under art 7; the African Charter on

Human and Peoples’ Rights under art 5 and the Convention Against Torture.

133

Eg sec 7 of the Constitution of Botswana; sec 15 of the Constitution of Zimbabwe

and sec 12 of the Constitution of South Africa.

134

See the United States case of Filartiga v Pena-Irala 630F 2ed 874 (1980).

135

The Inter-American Convention to Prevent and Punish Torture (the Inter-American

Convention on Torture) is an exception.

Convention Against Torture (Torture Convention) defines torture.

136

From the definition, the following elements can be deduced:

●

Severe physical or mental pain.

●

The pain or suffering must have been intentionally inflicted.

137

In the

death row phenomenon debate, this requirement is of utmost

importance, as it will go a long way in determining whether or not

this prohibition is violated even where the delay in execution has been

at the instance of the condemned prisoner. This will be discussed in

more detail in the next section.

●

The intentional infliction of pain must be directed at a particular

purpose.

138

It has been suggested that the list is not exhaustive or

finite.

139

●

The final element in the definition of torture is that it expressly

excludes pain or suffering arising only from, inherent in or incidental

to lawful sanctions.

140

This element is also crucial in the context of the

death row phenomenon. In the cases discussed in the previous

section, there was consensus that a certain amount of mental anguish

or suffering is incidental to the imposition of the death penalty. If this

is accepted and it is also accepted that the death penalty can be a

lawful punishment, then it might be difficult to insist that the

inevitable confinement to death row may invoke a violation of the

prohibition against torture. It is submitted that, as the prohibition

against torture is regarded as a norm of customary international law

and the Torture Convention is merely a codification of that norm,

then the definition adopted in the Torture Convention should be and

is of universal application.

4.1.5 The prohibition against cruel, inhuman or degrading treat-

ment or punishment

This prohibition is not defined in any of the international instruments

referred to or in any of the constitutions that the courts relied on in the

cases discussed above. However, both the European Commission and

the European Court have drawn distinctions between the various

components of this prohibition.

THE DEATH ROW PHENOMENON 327

136

See art 1(1).

137

The European Court has also assimilated this requirement into the European

Convention. See Ireland v United Kingdom.

138

These purposes are listed as the obtaining of information or of a confession,

punishment; intimidation; coercion or discrimination. See also the Greek case, where

the European Commission expressed the same sentiment.

139

See D Blatt ‘Recognising rape as a method of torture’ (1992) 19 New York Review of

Law and Social Change 857–858.

140

It has been said that when the same provision was included in the UN Declaration on

Protection From Torture, the intention was to ensure that corporal punishment

would not be covered by the prohibition. See Keightley (n 128 above) 384.

It is worth noting that, in its definition of inhuman treatment, the

European Commission refers to the intention to cause severe

suffering.

141

This definition might make nonsense of the progressive

approach because it specifically requires that there has to be a deliberate

intention to inflict pain or suffering. Thus, where a delay in execution has

been occasioned because of the condemned person’s exploitation of

appeal mechanisms, one might find it difficult to establish a deliberate

infliction on the part of the state. Lastly, in defining degrading

treatment or punishment, there does not appear to be a requirement of

intention.

142

The discussion was intended to highlight the approaches that have

been adopted in relation to the prohibition against torture and cruel,

inhuman or degrading treatment or punishment. It was also sought to

demonstrate that the distinctions between the categories are not a

matter of semantics. It is important to draw distinctions between the

different categories of prohibited treatments, particularly when dealing

with the death row phenomenon.

5 Reconciling the divergent approaches

5.1 The question whether the actual effect of the delay is to be

shown

A major issue that has created the rift between the two approaches to the

death row phenomenon is whether the actual effect of delay on the

condemned prisoner must be alleged and proved. The progressive

approach is to the effect that long delays are in themselves cruel,

inhuman or degrading treatment. The conservative approach requires

the condemned prisoner to allege and prove the existence of

circumstances over and above prolonged delay.

The stance adopted by the progressive approach is difficult to support

when one adopts the disjunctive approach, as it will here be

recommended, in dealing with the prohibition against torture and cruel,

inhuman or degrading treatment. If the disjunctive approach is

adopted, then each component of the prohibition has to be defined and

there must be a clear finding as to which component of the prohibition

has been violated.

The definition of torture, as we have seen, has four distinct elements,

three of which would not be satisfied if the disjunctive approach were

adopted. One would be in difficulty to prove that pain and suffering

resulting from prolonged detention is intentionally inflicted. This is more

so when the delay is at the instance of the condemned prisoner.

328 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

141

n 129 above.

142

As above. Interestingly, the European Convention does not refer to the term ‘cruel’.

Similarly, it would be impossible to prove that pain and suffering is

directed at a particular purpose. Finally, any pain and suffering arising

from, inherent in or incidental to lawful sanctions cannot amount to

torture. It will be recalled that in all the cases that have been discussed in

the study, the courts echoed the sentiment that a certain amount of

suffering and delay on death row is incidental to the imposition of the

death penalty. If this is accepted, and it is also accepted that the death

penalty can be a lawful form of punishment, then it is difficult to support

the view that long delays in themselves may invoke the violation of the

prohibition against torture.

The same may be said about the prohibition against inhuman

treatment, which requires that there must be an intention to cause

severe suffering. Although the definition of degrading treatment does

not specifically require intention to cause pain and suffering, it has been

held that inhuman treatment encompasses degrading treatment.

Therefore it may be argued that, by implication, it must be proved that

the pain and suffering was inflicted intentionally. The only distinction

between inhuman or degrading treatment lies in the severity of

treatment. The end result is that, where there is a delay at the instance of

the condemned prisoner which is not accompanied by any aggravating

circumstances, like ill-treatment and unfavourable conditions, it would

be very difficult to prove that there has been a violation of the

prohibition against torture and cruel, inhuman or degrading treatment.

Clearly here there would be an absence of an intention to inflict pain and

suffering directed at a particular purpose.

It is submitted that the aspect of the progressive approach, which

does not require the existence of circumstances over and above mere

prolongation and pain and suffering, which are in any event incidental

to the lawful imposition of the death penalty, might produce results

that are not in consonance with the spirit of abolition. In Zimbabwe,

for example, after the decision in the Catholic Commission case,

section 15(5) of the Constitution was amended as follows:

Delay in the execution of sentence of death, imposed upon a person in

respect of a criminal offence of which he has been convicted, shall not be held

to be in contravention of subsection (1).

This amendment effectively overturned the Catholic Commission case.

Although the amendment cannot be supported and has been heavily

criticised,

143

it is not difficult to imagine its root cause. A government

whose constitution allows for the imposition of the death penalty as a

form of sentence is likely to have difficulties in accepting that inevitable

consequences of such a sentence may render its execution uncon-

stitutional. It is submitted that, where the carrying out of a sentence of

THE DEATH ROW PHENOMENON 329

143

See eg WN Chinamora ‘Towards a human rights jurisprudence: Zimbabwe since

independence’ unpublished LLM dissertation, University of Stellenbosch, 1994 37.

death is declared unconstitutional as a result of avoidable circumstances,

which are not inherent in such punishment, a state would be less

inclined to overturn the decision by constitutional amendments.

It is submitted that the aspect of the progressive approach that

requires only the condemned prisoner to prove mere prolongation of

proceedings cannot be supported for the above stated reasons. In this

regard, it is submitted that the conservative approach appears to be

more attractive to the extent that it requires allegations and proof of

circumstances over and above prolonged delay in detention. This is

simply because a certain amount of delay and pain and suffering is

inevitable in any system which retains the death penalty.

144

It is therefore submitted that the emphasis should not be on delay, but

rather on the actual effects of detention on death row on the

condemned prisoner as a result of factors like treatment, conditions on

death row and the prisoner’s personal circumstances.

145

One advantage

with placing less emphasis on delay is that it would end the controversy

as to what amounts to unreasonable delay. At the moment there is no

consensus as to what amounts to unreasonable delay. As seen from the

discussion above, different courts have had to deal with different cases in

which the applicants had been on death row for differing periods of

time. The five-year period set by the Privy Council in its decisions has

been heavily criticised because it resulted in countries speeding up

appeal procedures to meet the cut-off point.

146

5.2 The question whether the author of the delay is a material

factor

This is another issue which is a major source of controversy between the

progressive approach and the conservative approach. The progressive

approach is to the effect that the cause of the delay is immaterial when

the sentence is death. According to this approach, the fact that the

condemned prisoner himself might have caused the delay does not

detract from the dehumanising and degrading character of the delay.

According to this approach, all a condemned prisoner has to prove is

that there has been a long delay from the imposition of the death

sentence to the time when he is notified of the date of execution.

Accordingly, a condemned prisoner need not prove that he did not

330 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

144

See the Makwanyane case (n 9 above), the Soering case (n 100 above) and the

Catholic Commission case (n 40 above).

145

This seems to be in accord with the meaning of the phrase ‘death row’ which refers

to the area in a prison where inmates awaiting execution are housed. See Hudson

(n 13 above) 835.

146

See International Herald Tribune (1997-07-08) 7 cited in MG Schmidt ‘The death row

phenomenon: A comparative analysis’ in T Orlin et al (eds) The jurisprudence of

human rights law: A comparative interpretive approach (2000) 70.

cause the delay.

147

However, in the Catholic Commission case, it was held

that the state could show that the condemned prisoner ‘resorted to a

series of untenable and vexatious proceedings, which in consequence

had the effect of delaying the ends of justice’.

148

In such a case, the onus

would shift to him to show that he did not in fact do so. In the Soering

case, the European Court found that where the delay is due to a strategy

by a condemned prisoner to prolong proceedings, that factor would

not be to his detriment.

149

There is a very thin line between a strategy

to delay proceedings and an abuse of process by bringing vexatious

proceedings.

150

It is submitted that this might lead to another

controversy about the difference between frivolous proceedings, which

shifts the burden to the condemned prisoner, and a deliberate strategy

to delay proceedings, which does not.

The conservative approach is to the effect that where delay is at the

instance of the condemned prisoner by availing himself of appellate

remedies, then even prolonged periods of detention under severe

conditions will not invoke the violation of the prohibition against

torture, inhuman or degrading treatment.

151

It is difficult to accept this

aspect of the conservative approach. That is the major problem with

according significance to the delay rather than the actual effects of

detention on death row on the condemned prisoner. It is submitted that

once the actual effects of detention on death row have been proved, it

should be immaterial whether there is delay or not. It should equally be

immaterial, in the event there is delay, whether he contributed to it delay

or not.

According to the conservative approach, if a condemned prisoner

prolongs proceedings and is then permitted to benefit from such

conduct, states might be tempted to deprive condemned prisoners of

effective appellate remedies.

152

This appears to be an attractive

argument, but it remains attractive if emphasis is placed on the delay

itself. Where there is a requirement to prove the actual effects of

detention on death row on the condemned prisoner, then the argument

loses its cogency. In such a case, the challenge to execution would not be

that it is the delay, which would be at the instance of the condemned

prisoner, that has subjected him to the death row phenomenon. The

argument would be that certain special circumstances on death row

subjected him to the death row phenomenon. In such a case, the state

would have no reason to deprive him of appellate remedies.

THE DEATH ROW PHENOMENON 331

147

Chinamora (n 143 above) 34.

148

Catholic Commission case (n 40 above) 334.

149

As above.

150

L Madhuku ‘Delay before execution: More on it being inhuman and degrading’

(1994) 10 South African Journal on Human Rights 278.

151

Barrett & Sutcliffe (n 42 above) para 8.4.

152

Schmidt (n 146 above) 49.

It is submitted that the better approach is one that does not only

require proof of any delay. This does not mean that a condemned

prisoner would be precluded from proving that in his case, delay on its

own subjected him to the death row phenomenon. A condemned

prisoner should be able to prove that certain circumstances, which may

include delay, have subjected him to mental and/or physical suffering.

This approach, it is submitted, avoids the controversial issues inherent in

both the progressive approach and the conservative approach.

5.3 The question whether or not to define torture and cruel,

inhuman or degrading treatment

This aspect was discussed at length in section 4 above. It is therefore

unnecessary to belabour the issue. Suffice it to say that defining the

various components of the above prohibition will go a long way in

bridging the gap between the two approaches to the death row

phenomenon. In this regard, the disjunctive approach is preferred over

the global approach.

It was acknowledged above that the disjunctive approach might lead

to the problem of which criterion to adopt to categorise treatment.

However, it is submitted that that problem would merely be academic.

The problem that might arise in adopting the disjunctive approach does

not impact on the question whether there has been a violation of the

prohibition against torture, cruel, inhuman or degrading treatment. In

such a case, the only question would be whether a particular treatment is

inhuman or degrading, which, as was seen in the Ireland v United

Kingdom case, makes no practical difference.

6 Conclusion

It is a truism that the death row phenomenon is now firmly established as

a legal doctrine. The doctrine owes its existence to the realisation that

direct legal challenges to the death penalty will, for the foreseeable

future, largely be unsuccessful in countries that have entrenched the

death penalty in their constitutions. However, universal acceptance of

the existence of the doctrine has not ensured unanimity on its precise

nature. There is still controversy as to the circumstances under which a

condemned prisoner would be entitled to rely on the doctrine to evade

the penalty of death. In light of the importance of the doctrine, in that

it provides a ray of hope for those facing the penalty of death, it is

desirable to harmonise the divergent approaches on the doctrine. The

progressive approach has certain inherent weaknesses as demonstrated

above. It overlooks the fact that the prohibition against torture and

related acts requires proof of intention aimed at achieving a particular

result. The conservative approach, on the other hand, tends to penalise a

332 (2004) 4 AFRICAN HUMAN RIGHTS LAW JOURNAL

condemned prisoner for resorting to appellate procedures to avoid

execution. The one major cause of the rift between the two approaches

is the reluctance of the courts to define the prohibition against torture

and cruel, inhuman or degrading treatment. Once each component of

the prohibition is defined, as shown above, then the weaknesses in both

approaches become apparent. It then becomes easier to reconcile the

divergent approaches and to adopt one that places less emphasis on the

actual period of the delay, and does not seek to apportion blame.

THE DEATH ROW PHENOMENON 333