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2 posts from July 2014

07/24/2014

UK High Court of Justice says unlawful to extradite mentally ill man facing mandatory death penalty in Ghana

Our guest blogger is Zoe Bedford, Casework Lawyer at Reprieve.  Julian Knowles QC (Matrix Chambers) along with Rachel Barnes (Three Raymond Buildings) acted for Mr Gambrah, with the support of the Death Penalty Project and Reprieve.

Lord Justice Moses, sitting in the High Court in London, has ruled that the extradition of a mentally ill 34 year-old British father would breach his rights under Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment, regardless of whether a moratorium is in place or not. Frank Gambrah, who spent over two years in prison awaiting the outcome of the extradition proceedings, was granted immediate release on 16 May 2014, when the judgment was handed down.

In August 2007, Mr. Gambrah, a British national, was accused of a murder outside a nightclub in Ghana’s capital Accra.  Unaware of the charges against him, Mr. Gambrah returned to the UK later in the year and was only arrested in 2009, when he arrived at Kotoka International Airport to visit his son, who was unwell. He was released on bail in February 2010 and returned to the UK.  In February 2012, five years after the murder took place, the Ghanaian Government requested the UK Government extradite Mr. Gambrah to Ghana to face trial for the alleged offence.

Ghana has not carried out any executions since 1990 but the death sentence remains mandatory for murder. The Ghanaian government offered various assurances that the death penalty would not be carried out, but in light of the mandatory nature of the death penalty, was unable to offer assurances that Mr. Gambrah would not be sentenced to death. It was also unable to explain when, how or by whom Mr. Gambrah’s sentence would be officially commuted. Mr. Gambrah was suffering from post-traumatic stress disorder, and the Court agreed that there were serious doubts as to the ability of the Ghanaian prison system to provide adequate mental health treatment for Mr. Gambrah.

The key question for the Court, therefore, was whether the circumstances of Mr. Gambrah’s imprisonment in Ghana would constitute inhuman and degrading treatment contrary to article 3, given that, if convicted, he would be sentenced to death, even with the assurances he had that he would not be executed and the de facto moratorium in Ghana.

Ultimately the Court found that it would be inhuman and degrading to expose someone with Mr. Gambrah’s mental health problems to the legal limbo of being sentenced to death without knowing when, whether or how his sentence would ever be commuted.

Lord Justice Moses went on to express grave doubts as to whether an extradition should go ahead in any case where the nature of a person’s sentence is so uncertain, as to do so would also amount to inhuman and degrading treatment. In his view, sentencing a person to death without taking into account the particular facts of the offence or his own personal circumstances and leaving him to rely only on the mercy of the president, was also in breach of the right to a fair trial, and should itself present a further barrier to extradition.

In addition, under section 91 of the Extradition Act 2003 the Court considered it to be unjust and oppressive to extradite Mr. Gambrah in light of his poor mental health and the lack of adequate psychiatric treatment in Ghanaian prisons.

The requesting state need only prove a prima facie case against an individual according to UK extradition laws, an extremely easy standard to satisfy and requiring little analysis of the case against the accused. However, there is compelling evidence that Mr. Gambrah was innocent of the murder, with alibi witnesses coming forward and the key prosecution witnesses since admitting under oath that they had been tortured and coerced into providing false statements to the police. Mr. Gambrah himself was beaten around the head so badly that his eardrum burst and he has suffered lasting hearing damage. Under such circumstances, it is hard to imagine that Mr. Gambrah would ever have been given a fair trial had he been extradited to Ghana, and it is surprising that his extradition could ever have been contemplated.

Under English law, the Secretary of State may approve the extradition of a suspect to face the death penalty on the most superficial evidence if he receives assurances that he will not actually be executed. It is to the credit of the Courts that such a potential miscarriage of justice which would have led to inhuman suffering of a mentally ill man has been averted in this case. But extradition laws in the UK still fall short of offering the level of protection against the death penalty that one would expect from a state claiming to promote worldwide abolition of the death penalty.

There are over 130 prisoners under sentence of death in Ghana, a number of whom have been there for ten years or more. There is a virtually world-wide consensus against the use of the mandatory death penalty, even in countries where the death penalty is in use, yet Ghana stands as one of a tiny number of countries to have retained the mandatory death penalty for murder. It is essential that abolitionist states do not unintentionally legitimise the death penalty by allowing extradition to retentionist states under any circumstances.

    -- Zoe Bedford

 For further information, see Death Penalty Worldwide’s report  on capital punishment in Ghana here

07/14/2014

Uganda Conducts Resentencing Hearings in the Wake of the Kigula Decision

Our guest blogger, Tanya Murshed, is the Uganda Project Director for the Centre of Capital Punishment Studies and is a practicing barrister at 1 Mitre Court Buildings in London. 

In April 2013, I left my practice in London for eight months to volunteer for the Centre for Capital Punishment Studies’ (CCPS) Capital Mitigation Project in Kampala. CCPS is based at the University of Westminster in London and undertakes numerous pioneering activities within the field of the death penalty and penal research.

The CCPS Uganda Capital Mitigation Project was started in 2011, in the aftermath of the landmark Supreme Court Judgment of Attorney General v Susan Kigula and 417 others, which abolished the mandatory death penalty. The Supreme Court decided two main points of law. Firstly, for all those who had been sentenced under the mandatory death sentence regime, their death sentences were to be commuted to life imprisonment without remission if they had waited three years or more for the executive to process their petition of mercy, following confirmation of their conviction by the Supreme Court. Secondly, those individuals who were still in the process of appealing their capital conviction would have their cases remitted back to the High Court for re-sentencing. The individuals affected by this aspect of the ruling are known as the “Kigula beneficiaries.” Accordingly, sentencing judges were given the discretion to impose the death penalty or some other form of punishment on the basis of mitigation put forward by, or on behalf of the defendant.  

When I arrived in Uganda, approximately 60 individuals had gone back for mitigation since the judgment in 2009, in a somewhat haphazard way. The re-sentencing process had proved more difficult than anticipated, as many of the files were in different courts around the country and some of the judges who presided over the original trials had since retired or died. The Project was able to assist in a number of those initial cases, leading to the release of some inmates, and fixed term sentences for others. However, some of the sentences passed attracted much criticism for leniency and inconsistency. A Kigula Task force, formed in 2012, decided to adopt a more systematic approach to the re-sentencing process for the remaining beneficiaries by introducing special mitigation sessions where judges would apply formal Sentencing Guidelines. 

It was clear from visits to Luzira Prison in Kampala, where all of the Kigula beneficiaries were located, that we were the only project trying to assist the remaining beneficiaries who had been held in the condemned section without a sentence for many years.   

Having forged a new partnership with the Uganda Law Society and Justice Centres Uganda, we approached the Kigula Task Force to see how we could assist.  A special session was planned for all Kigula cases whose files had been sent back to the High Court. Ten judges, ten defense advocates and ten prosecutors were selected to participate in the mitigation and sentencing of 136 beneficiaries. Our project was heavily involved in this process and we were identified as a key stakeholder by the Kigula Task Force.

We provided assistance in a number of ways, including obtaining secretarial support from the Office of the High Commissioner for Human Rights (OHCHR) so that case files could be photocopied for all parties and acting as a liaison between the prisons and the courts.  We provided training to lawyers and judges in the principles of mitigation and international sentencing practice, and collected mitigating evidence through our student interns at Makerere Law School on behalf of the inmates.  

We also acted as amicus curiae by providing written representations on the legal issues affecting the sentencing of Kigula beneficiaries. The re-sentencing exercise was clearly a complicated one and a number of issues arose for consideration. One contentious matter was the relevance of post-conviction mitigation. Some of the prisoners had languished on death row for as long as 20 years and were inevitably different from the people they were on the day they were convicted, having undertaken several rehabilitative courses in prison.  We also assisted the judges with the definition of the ‘rarest of the rare’ case; the relevance of mental health problems (both pre and post-conviction); the sentencing of offenders who were minors at the time of the offense; whether the beneficiaries should be considered still on remand for the purposes of sentencing and the approach to sentencing victims of domestic violence who had murdered their spouses. These issues were novel to many judges and assistance was vital to ensuring the fairness of proceedings.

Notably, we piloted a scheme of Pre-sentence and Social Inquiry Reports and mental health assessments for every inmate appearing for re-sentencing.

Pre-sentence reports are used in other jurisdictions and indeed are mandatory in some countries for the most serious offenses. It was clear from observations at the Kampala High Court that judges were not being provided with sufficient background information about a defendant prior to sentencing Even after the launch of the first official Sentencing Guidelines in June 2013, which imposed a duty on the defense and prosecution to provide background information about an offender, detailed information was not being presented by either advocate. Importantly, any information put forward was of limited value to the court, as it was not sufficiently independent.

In conjunction with the Uganda Law Society, we obtained funding for social workers from the Democratic Governance Facility for the Ministry of Gender, Labour and Social development to complete these reports. There were two groups of workers: the first group conducted interviews with the inmate and produced a pre-sentence report. These interviews focussed on obtaining information from the offender regarding his/her background; his/her progress in prison and the reasons for his/her offending behavior.  They also consulted various official documents such as medical reports and prison reports in order to address medical issues, progress and behavior in prison. The social workers conducted an independent assessment of the offender’s thinking, behavior and capacity to reform which was contained in the report.

The second stage of the exercise involved district social workers, also from the Ministry of Gender, who made inquiries in the offenders’ home villages, in order to gain further information about their background and to ascertain whether the offenders could be re-integrated into the community or re-located if released. These social workers provided Social Inquiry Reports.  

With respect to the mental health reports, we felt that these were of considerable importance for various reasons. International law prohibits the imposition of the death penalty on anyone suffering from mental illness or learning disability at the time of conviction, sentence, or execution. Furthermore, a person cannot be deemed incapable of reform without a psychiatric report.  Most inmates had not been examined by a psychiatrist on entry to prison and any previous assessments were completely out of date. We were also concerned that many of the beneficiaries were suffering from death row syndrome, having been in the condemned sections for years. These assessments were carried out by a consultant psychiatrist whose reports addressed not only mental health issues and learning difficulties, but medical problems as well.

Out of the 136 people that went for re-sentencing, 15 individuals were released, nine were given death sentences; one was given a Minister’s Order due to minority status; four were referred to a Psychiatric facility, 22 were given life sentences and 85 were given fixed terms of imprisonment.  

The session was a success in many ways. Apart from the 9 individuals who had their death sentences confirmed (which have since been appealed), 127 individuals finally left the condemned section of Luzira prison and some were released unconditionally back into the outside world after many years. It was a joyous occasion for a considerable number of the beneficiaries. However, it was clear from the hearings and subsequent judgments that judges applied an inconsistent approach to sentencing and that there were a number of issues that still had not been resolved. Some judges took irrelevant matters into account; there was a failure by some to understand the relevance of mental health issues at the sentencing stage; there was an inconsistent approach to post-conviction mitigation, a lack of understanding of the ‘rarest of the rare’ standard and a number of age-related issues. The pre-sentence reports received a mixed reception, with one judge describing them as ‘very very useful’ and some disregarding them altogether. With respect to the lawyers we trained, most of them welcomed our guidance and support but there were one or two who outright rejected it to the dismay of the many of the inmates. 

The second special session involving 93 individuals is due to start today. In order to improve upon the last session and ensure greater consistency, we held a workshop with judges, lawyers and other stakeholders to discuss the issues that arose in the last session as well as the importance of pre-sentence reports and mental health assessments. Further training has been provided for the social workers to improve upon the quality of pre-sentence and social inquiry reports on this occasion, which we hope will become an integral part of capital sentencing practice.

We hope that we will be able to continue to make progress and assist the judiciary and advocates in Uganda into the future, building capacity.  Although it took many years to start the re-sentencing process for most of the Kigula beneficiaries, that process has now begun and different parts of the judicial system are working together in ways not previously seen.  This will be of benefit not only to the Kigula beneficiaries, but to the Ugandan justice system as a whole. We have certainly been in a privileged position, able to assist not only the inmates but also advocates and the judiciary who have welcomed our support.  Looking to the future, we are hopeful that we will be able to continue to build capacity and contribute further to issues surrounding access to justice and law reform. 

 

-- Tanya Murshed

 

For further background, Death Penalty Worldwide’s research on capital punishment in Uganda is available here.