Constitutional Reform and the Abolition of the Mandatory Death Penalty in Kenya

Beginning of article

The death penalty is rapidly receding in the former British colonies of common-law Africa. (2) Although proposals to institute or retain the death penalty for a wide assortment of crimes are not uncommon, actual judicial executions have grown extremely rare south of the Sahara Desert. (3) The death penalty has fallen into disuse in most of common-law Africa, and many of these countries are now considered de facto abolitionist. (4) As in other parts of the retentionist world, death-penalty abolition is an incremental process, nurtured more by small steps--stays of execution, grants of clemency, judicial clarification--than by dramatic ones, the most important of which for the continent of Africa was the 1995 decision of the Constitutional Court of South Africa, deeming the death penalty unconstitutional. (5) Upon independence, former British colonies inherited nearly identical constitutions drafted at Lancaster House in London, each of which specifically saved the death penalty from constitutional challenge. (6) Although common-law African constitutions have been written and rewritten since independence during the eras of one-party rule in the 1970s, of economic adjustment in the 1980s, and democratization in the 1990s, most former British colonies retain similar constitutional and legal structures, including retention of the death penalty in national penal codes. (7) The mandatory death penalty, a relic of nineteenth century Britain, is the most constitutionally vulnerable aspect of African death-penalty regimes, and is facing sustained challenge in a number of countries. (8)

On July 30, 2010, the Kenyan Court of Appeal invalidated the mandatory death penalty for murder, becoming the third national court in common-law Africa to do so. (9) The mandatory death penalty provided an automatic death sentence for any person convicted of murder, without judicial discretion to substitute a lesser sentence. (10) The penalty was transplanted from Great Britain to the colonies without any benefit from the major criminal-justice reforms, including death-penalty abolition, passed by the British Parliament in the 1950s and 1960s. (11) Since the 1977 decision of the United States Supreme Court in Woodson v. North Carolina, which invalidated the mandatory sentence in favor of a discretionary regime, the mandatory death penalty has been on the sharp and rapid retreat worldwide. (12) Kenya joins a long line of former British colonies in finding the mandatory death penalty incompatible with global human-rights norms. (13) The courts of each of these former colonies, relying on similar constitutional texts originally drawn up by departing British officials, cite each others' case law and form a body of global "common law" death-penalty jurisprudence. (14)

This Article first addresses the retreat of the mandatory death penalty worldwide and constitutional challenges brought against the penalty on four continents. The Kenyan Court of Appeal's decision in Mutiso v. Republic is placed in both this global context, and a historical and cultural one, through a detailed analysis of the history of the death penalty and its use in colonial and independent Kenya. The Article then compares the Court's decision in Mutiso with the case law from other common-law countries, particularly the recent decisions arising out of the Supreme Court of Uganda and the Supreme Court of Appeal of Malawi. (15) Finally, this Article will discuss the contribution of the three decisions--in particular, Mutiso--to the global corpus of death-penalty jurisprudence and their expected impact on similar challenges percolating in other African common-law nations.

Like Malawi and Uganda, the death-penalty regime in Kenya is largely a foreign import that has fallen into disuse after abuses during the colonial era and periods of authoritarian one-party rule after independence. Unlike Malawi and Uganda, which constructed entirely new and progressive constitutions during the transition to multiparty democracy in the 1990s, Kenya continued to operate under an amended version of its independence constitution, which had certain flaws as to the structure of government and protection of fundamental rights. (16) On August 4, 2010, less than a week after the Court of Appeal's decision in Mutiso, Kenyan voters went to the polls to overwhelmingly approve a new constitution, the second since Kenya's independence on December 12, 1963. (17) As one of the most legally mature countries in Commonwealth Africa, the fall of the mandatory death penalty in Kenya may have far-reaching implications for other African countries working under a similar constitutional framework. The new Kenyan Constitution will eventually lead to the establishment of a Kenyan Supreme Court, as an additional layer of appellate review above the Court of Appeal. (18) Should Kenya's 2010 Constitution usher in an era of stability and peace, particularly after the failure of the 2005 constitutional referendum and the 2007 election crisis, the stature of the Kenyan judiciary may increase even further.

THE CONTRACTION OF THE MANDATORY DEATH PENALTY WORLDWIDE

The mandatory death penalty, which passed from Britain to the world via the British imperial project, has faced a sustained retreat worldwide since the abolition of the death sentence in Great Britain in 1965. (19) The penalty first fell in the major retentionist common-law powers, the United States and India, and then spread to smaller retentionist legal systems in the developing world. (20) Beginning in the late 1990s, a new wave of abolition swept through thirteen countries of the Commonwealth Caribbean and, in the first decade of the twenty-first century, common-law Africa as well. From its inception, this wave of abolition was intentional and coordinated. (21) As the mandatory death penalty retreats, death-penalty regimes will continue to be harmonized across borders and better reflect international norms of human rights in criminal-sentencing regimes.

WOODSON V. NORTH CAROLINA AND ITS PROGENY

In 1976, the United States Supreme Court struck down the mandatory death penalty for murder in Woodson v. North Carolina (22) Mandatory capital-punishment statutes had never been popular in the United States and had generally died out by the early twentieth century, but they faced a brief revival after the Supreme Court struck down Georgia's death penalty in 1972. (23) Once the Supreme Court declared a standardless discretionary sentence unconstitutional, thirteen states adopted a Model Penal Code regime with sentencing guidelines and weighing of aggravating and mitigating circumstances, and twenty-two states reverted to the common-law, nondiscretionary capital-sentencing regime. (24) Accepting appeals against the North Carolina and Louisiana statutes, (25) a 5-4 Supreme Court held that the statutes providing for a mandatory death sentence violated the Eighth and Fourteenth Amendments. (26)

The Court identified several fundamental flaws with a mandatory capital-punishment regime, which have been widely cited by death-penalty reformers and later courts. First, a mandatory sentence "simply papered over the problem of unguided and unchecked jury discretion," because it exacerbated the problem of jury nullification: juries acquit at higher rates in mandatory death-penalty regimes. (27) As the Court noted, such a scheme actually exacerbates the Furman problem of unfettered discretion. (28) In essence, because a jury was deciding guilt and sentence simultaneously, they risked merging the two decisions. In addition, a mandatory sentence failed to individualize an appropriate sentence to the relevant aspects of the character and record of each defendant and consider appropriate mitigating factors. (29) The sentence treats individuals "as a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." (30) While individualization is not necessarily required for all criminal sentencing, death is different; the Court noted that the "fundamental respect for humanity" underlying the Eighth Amendment required consideration of the person of the offender and the circumstances of the crime. (31)

The mandatory death sentence for murder had been on the decline in the Commonwealth for decades by the time Woodson was decided. Although the sentence was not abolished in the United Kingdom until 1965, the death sentence was not really mandatory in actual practice; the Home Office reviewed every death sentence and granted clemency in nearly half of cases. (32) "Executive clemency exists in most, if not all American states, but its incorporation into the machinery of capital punishment is not as complete as that of the Home Office in Britain." (33) Even in South Africa, where the machinery of judicial execution saw frequent use, the mandatory death-penalty regime allowed consideration of extenuating circumstances after 1935. (34) Prior to the consideration of individualized circumstances in sentencing in South Africa, the Governor-General commuted sentences in the overwhelming majority of cases, emphasizing the Woodson Court's criticism that the mandatory death penalty simply swept too broadly. (35)

Since 1976, Woodson v. North Carolina has gone global. Woodson is a seminal case in what Professor Carozza refers to as the global common law of the death penalty, one cited by courts across the common-law world in decisions invalidating the mandatory death penalty. (36) In 1983, the Supreme Court of India decided Mithu v. State of Punjab, which tracked Woodson closely. (37) Chief Justice Yeshwant Vishnu Chandrachud's opinion carried echoes of the elegant decision by Justice Potter Stewart in Woodson:

   A provision of law which deprives the court of the use of its wise
   and beneficent discretion in a matter of life and death, without
   regard to the circumstances in which the offence was committee and,
   therefore without regard to the gravity of the offence, cannot but
   be regarded as harsh, unjust and unfair. The legislature cannot
   make relevant circumstances irrelevant, deprive the courts of their
   legitimate jurisdiction to exercise their discretion not to impose
   the death sentence in appropriate cases, compel them to shut their
   eyes to mitigating circumstances and inflict upon them the dubious
   and unconscionable duty of imposing a pre-ordained sentence of
   death. (38)

With Woodson and Mithu, the mandatory death penalty receded from the major retentionist common-law powers, and a new front opened in the post-colonial developing world. Here, too, challengers had precedent: after the European Court of Human Rights in 1989 found that delay and the conditions of death row could make a permissible death sentence unconstitutional, international death-penalty attorneys, relying on that case, brought successful challenges in Canada, the Caribbean, and Zimbabwe. (39) Challenges to the mandatory death penalty followed a similar pattern ten years later, using human-rights case law from international tribunals in domestic courts in the developing world. While it is too soon to tell, challenges to hanging as a cruel and degrading method of execution appear to be gaining traction; they may be the next incremental challenge. (40)

The mandatory death penalty is peculiarly vulnerable to these incremental challenges because of two fundamental assumptions about post-colonial common-law countries. First, because the mandatory death penalty exists in similar form in almost all former British colonies, it possesses common characteristics across borders and is generally a colonial relic in the criminal justice systems in which it exists. Second, most former British colonies share common constitutional frameworks and adhere to most international human-rights covenants. Consequently, like a row of dominoes, legal challenges in one jurisdiction have implications for neighboring countries with similar bills of rights. As the next section shows, where these two assumptions are true, as in the Commonwealth Caribbean and the African countries of Malawi, Uganda, and Kenya, the mandatory death penalty has fallen. Where these assumptions are modified, as in Malaysia and Singapore, the penalty, at least temporarily, has survived challenge.

COMMONWEALTH CARIBBEAN

The mandatory death penalty has been repealed or found unconstitutional in almost every Commonwealth country in the Caribbean region since the year 2000. (41) The near-extinction of the penalty is the result of a coordinated series of challenges brought initially by a core of international pro bono lawyers and legal consultants before international tribunals, such as the United Nations Human Rights Committee and the Inter-American Human Rights System. (42) Using the reasoning of these early precedents, the lawyers brought challenges in binding national and supranational courts such as the national high courts, the Eastern Caribbean Court of Appeal, the Privy Council in London, and, later, the Privy Council's partial successor, the Caribbean Court of Justice. (43) As the jurisdiction of the Privy Council continues to contract due to the maturation of national and regional court systems in the Commonwealth Caribbean, the Caribbean Court of Justice--once characterized by critics as a "hanging court"--looks poised to make its own contribution to regional death-penalty jurisprudence, one that does not stray far from the path set by the Privy Council. (44)

The interplay of common constitutional clauses within English-speaking Caribbean constitutions provided a window to challenge the mandatory death penalty, assisted by an evolving jurisprudence that made the Privy Council more receptive to the change. The first of these clauses was a right-to-life provision, which contained a death-penalty exception, or savings clause. (45) The second provision was the prohibition on cruel, inhuman, and degrading treatment or punishment, which exists in each of the fourteen Commonwealth Caribbean constitutions. (46) These clauses closely resemble international human-rights treaties, also in force in much of the Caribbean, which allow appeal to the United Nations Human Rights Committee or to the Inter-American Human Rights System. (47) These clauses also provided an opportunity to bring the first incremental challenge to the death penalty in the Caribbean in the early 1990s, against the "death row syndrome," or the theory that prolonged delay and conditions of death row could render a constitutional death sentence unconstitutional. (48) The first court to recognize the death-row syndrome and strike down a death sentence was the European Court of Human Rights in the 1989 case Soering v. United Kingdom (49) In 1993, the Privy Council in London followed these decisions in an appeal arising from Jamaica, and, that same year, the Supreme Court of Zimbabwe imported the doctrine to the African continent. (50) By the time the mandatory-death challenges arose in the late 1990s, several other incremental challenges had produced settled law in the Caribbean. (51)

Each Caribbean constitution contains another clause of relevance to constitutional death-penalty challenges that forbids challenge to forms of judicial punishment in existence at the time of independence from Great Britain, on the grounds that those punishments were cruel, inhuman, or degrading. These clauses were of two types. Of the fourteen Commonwealth Caribbean countries, eleven possessed a "partial" savings clause, limited solely to judicial punishments, and three possessed "general" savings clauses, protecting any law in force at the time of independence, including judicial punishments, from challenge. (52) The latter three constitutions produced an added layer of complexity. While the Privy Council could hold that the mandatory nature of the death penalty was not a "punishment," but rather only a sentencing method and consequently not saved, under the Privy Council's logic, the mandatory nature of the death penalty would be saved under a clause saving all laws. (53)

The first wave of challenges appeared before international and regional tribunals and involved not constitutional violations, but rather human-rights treaty violations. In 2000, the United Nations Human Rights Committee, which has jurisdiction over those countries that have ratified the First Optional Protocol to the International Covenant on Civil and Political Rights, found the mandatory death penalty to violate the Covenant in a challenge to the mandatory death penalty of St. Vincent and the Grenadines. (54) In a split decision, the Committee found that the mandatory death penalty violated the right to life because it was not individually tailored to fit the crime. (55) In two subsequent cases involving more controversial death sentences based on felony murder and accomplice liability, instead of intentional murder, the Committee unanimously found violations of the Covenant. (56) In each case, arising from Trinidad and Tobago and Guyana, respectively, the accused person was not able to present evidence that he lacked actual intent to kill. (57) According to the Committee, felony murder was not a "most serious crime" as required for imposition of the death penalty in Article 6.2. (58)

Soon after, the Inter-American Commission on Human Rights determined that the mandatory death penalty violated the 1969 American Convention on Human Rights. (59) In a pair of cases arising from Grenada and Jamaica, the Commission found that the mandatory death sentence violated Article 4, the right to life; Article 5, the right to humane treatment or punishment; and Article 8, the right to a fair trial. (60) A year later, the Commission extended this holding to the Bahamas, which was not a party to the Convention but did ratify the 1948 American Declaration on the Rights and Duties of Man. (61) Unlike the Convention, which permits the death penalty but restricts it to the "most serious offenses," the Declaration provides for an unqualified right to life. (62) In Edwards v. Bahamas, the Commission found that the mandatory death penalty violated the right-to-life and the due-process provisions of the Declaration. (63) In 2002, the Inter-American Court of Human Rights followed the Commission's jurisprudence in cases arising from Barbados and Trinidad and Tobago. (64) According to the Court, it was no defense to violating international obligations under a duly ratified treaty that the death penalty had not yet been found unconstitutional in a respective domestic legal system. (65)

This early, nonbinding jurisprudence of international tribunals developed a body of persuasive law available to national and supranational constitutional courts. Of the eleven countries with partial savings clauses, one had unique provision, an expiration date: the constitution of Belize, the last to be written when Belize belatedly received independence in 1981, contained a partial savings clause that expired five years after independence, in 1986. (66) By the time of Belize's independence, general and partial savings clauses were seen as anachronisms, constraints on developing human-rights jurisprudence in postcolonial nations. (67) For this reason, Belize was particularly vulnerable to a mandatory death-penalty challenge.

In early 2000, the Judicial Committee of the Privy Council in London, then the court of final resort for most of the Commonwealth Caribbean, accepted a petition from the Belize Court of Appeal and combined it with cases arising from the Eastern Caribbean Court of Appeal, appealed from the national courts of Saint Kitts and Nevis, Saint Vincent and the Grenadines, and Saint Lucia. (68) Unlike Belize, the three island states had constitutions possessing extant partial savings clauses. (69) Nonetheless, the Eastern Caribbean Court of Appeal had invalidated the mandatory death sentence in the three island countries as unconstitutional; the Belize Court of Appeal had not. (70) The Privy Council did not distinguish the countries; it found all of the mandatory death sentences unconstitutional. The Council found that the mandatory nature of the death sentence was not constitutionally saved and that it was cruel, inhuman, and degrading because it did not permit mitigating evidence and, consequently, produced disproportionately harsh results. (71) In addition, the Council found that executive clemency discretion could not save a mandatory death sentence, as trial judges were in a better position to consider mitigating circumstances transparently. (72) In 2006, the Privy Council extended this holding to the Bahamas. (73)

For countries that possessed savings clauses preventing constitutional challenge of any law in existence at the time of independence--Barbados, Jamaica, and Trinidad and Tobago--the question was closer. In 2003, a Privy Council panel ruled 3-2 that because the mandatory death penalty violated Trinidad and Tobago's international obligations under treaties that the country had ratified, the death-penalty statute should be interpreted as discretionary, not mandatory. (74) The full Council, however, reversed that decision the following year in a case arising from Barbados, finding the mandatory death penalty to be saved by the general savings clause. (75) More controversially, the full Privy Council followed these decisions by upholding the mandatory death penalty for felony murder, reversing a second panel decision striking it down. (76) However, because Jamaica's death-penalty statute was enacted after independence, even though the change was to narrow the law's application rather than to broaden it, Jamaica's mandatory death penalty fell. (77) The mandatory death-penalty statutes of Barbados and Trinidad and Tobago, upheld by the Privy Council and Guyana, outside the Council's jurisdiction, continued to survive. However, Guyana abolished the mandatory death penalty by statute in 2010; Barbados committed to doing so a year earlier, although it has not done so yet. (78) In total, thirteen Commonwealth Caribbean nations have abolished the mandatory death sentence for murder, while only Barbados and Trinidad and Tobago retain it. (79)

COMMON-LAW AFRICA

The Constitutional Court of Malawi invalidated the mandatory death penalty in 2007, and the Supreme Court of Uganda followed suit in 2009.80 Constitutional challenges have been filed against the mandatory death penalty in most other common-law African countries, including Ghana, Nigeria, Sierra Leone, Tanzania, Zambia, and Zimbabwe. (81) In Southern Africa, the doctrine of extenuating circumstances has softened the mandatory death penalty by allowing a person convicted of murder to present evidence in mitigation, but the defendant has the burden of showing extenuating circumstances beyond a fair preponderance of the evidence. (82) The doctrine of extenuating circumstances was adopted by the legislature of apartheid South Africa in 1935, of Southern Rhodesia (now Zimbabwe) in 1949, and of Zambia in 1990. (83) By operation of common law, the doctrine also applies in capital cases in Botswana and Lesotho, as well as Swaziland until the 2005 constitution abolished the mandatory death penalty. (84) The challenges against the old common-law mandatory death penalty are helping harmonize the criminal justice regimes of common-law Africa.

The mandatory death penalty was always inappropriate for the young legal systems of postcolonial common-law Africa. First, by sentencing every prisoner to death, regardless of the circumstances of the crime, African countries developed enormous death rows, which continue to grow even as the number of actual executions dwindles. (85) Second, as each common-law African constitution contains a provision for executive clemency, the mandatory death penalty has the effect of expanding the power of the head of state. (86) Third, a long-standing criticism, regardless of the legal jurisdiction, is that the mandatory death sentence confuses a guilt inquiry with a sentencing one, producing inconsistent results because a judge may avoid the death sentence by acquitting a guilty defendant. (87) Replacing the mandatory death-penalty regime with an American- or Indian-style discretionary regime, weighing aggravating and mitigating circumstances, would ultimately be more transparent and more in line with human-rights norms. (88)

Apartheid South Africa had the broadest and harshest death-penalty regime on the African continent. (89) In 1990, however, a host of political and legal reforms led to the replacement of South Africa's modified mandatory-death statute with an American-style discretionary one. (90) A moratorium on executions, a precondition to negotiations with the African National Congress led by Nelson Mandela, was put in place, and no executions were carried out before the abolition of the death penalty in 1995 with the Constitutional Court's decision in State v. Makwanyane and Mchunu. (91) In Makwanyane, one of the most sweeping and far-reaching death-penalty decisions ever handed down by a court of final appeal, the Constitutional Court extensively analyzed foreign and international case law, interpreted public opinion and cultural attitudes, and cited the abuses of the apartheid regime in its decision to forever close the door on capital punishment. (92) The decision, despite its symbolic importance, did not lead to direct challenges elsewhere in Sub-Saharan Africa due to South Africa's different constitutional structure, which did not explicitly save the death penalty, as was the case in other common-law countries. (93)

Although the South African decision did not lead to a wave of challenges in the countries to the north, the mandatory death-penalty decisions in the Caribbean provided an opportunity to bring suit in African courts. In 2007, the Constitutional Court of Malawi struck down the mandatory death sentence for murder in a targeted challenge, finding that the penalty was cruel and inhuman punishment and violated the right to a fair trial and the right of access to courts because it did not allow appellate review of guilt and sentencing separately. (94) In 2009, the Ugandan Supreme Court struck down the mandatory death sentence in an omnibus challenge arguing, in the alternative, that the death penalty was per se unconstitutional. (95) Although the Court found that the death penalty itself was permitted under the constitution, it held that the mandatory sentence was cruel and inhuman punishment, violated the right to a fair trial, and unconstitutionally delegated judicial sentencing discretion to the legislative branch. (96) The two decisions were different in form and style: the Ugandan decision, more than five times the length of the Malawian decision, focused heavily on textual interpretation and Ugandan precedent, while the Malawian decision relied entirely on foreign legal sources. (97)

When the Kenyan Court of Appeal faced a mandatory death-penalty challenge in 2010, the Court placed special emphasis on the Ugandan Supreme Court's decision in Kigula. As neighbors and, with Tanzania, components of British East Africa, Kenya and Uganda have a close relationship among their legal systems, which is generally unusual even among common-law African countries. Created before independence, the East African Court of Appeal was the court of last resort for all three countries until 1977; regional cooperation through the East African Law Society and sharing of judicial and legal education resources became a hallmark of the practice of law in all three countries beginning in the late 1990s. (98) Besides Malawi, Uganda, and now Kenya, mandatory death-penalty test cases are pending in the lower courts of perhaps a half dozen other common-law African countries. (99) As these challenges succeed, death-penalty regimes will be harmonized across borders and will operate closer to conformity with international human-rights norms.

BANGLADESH

After a decade and a half of litigating a sensational criminal trial, the Supreme Court of Bangladesh invalidated the mandatory death penalty as applied to an accused person who was fourteen years old when he raped and murdered a seven-year-old girl. (100) The May 2010 decision, Bangladesh Legal Aid and Services Trust (Shukur Ali) v. Bangladesh, reversed a 2001 death sentence that had been affirmed by the High Court Division in 2004 and the Appellate Division in 2005. (101) A constitutional challenge to the law was filed by the legal aid agency BLAST shortly after the conviction was affirmed, and the High Court Division found the mandatory death sentence for "rape and murder" committed by "any person" to be unconstitutional. (102) As Professor Hoque explains, it was unlikely that the legislature responsible for the statute could have meant "any person" to include children, and the Court did not go so far as to invalidate the death penalty for juveniles per se. (103) Although Hoque argues that the other places in the Bangladeshi penal code that authorize a mandatory death sentence are unaffected by the ruling, other observers have favored a more generous interpretation. (104) Bangladesh does not employ a mandatory death sentence for ordinary murder or treason. (105) However, the Court did cite the ICCPR and the Universal Declaration of Human Rights in its decision, and a window has appeared for a future challenge to the mandatory death penalty for other crimes on the model of those in the Caribbean and Africa. (106)

MALAYSIA AND SINGAPORE

Malaysia and Singapore stand out in the common-law world because the two countries, uniquely, have upheld their mandatory death-penalty schemes from constitutional challenge. (107) Both countries historically have had high execution rates, even for the region: in 2000, Singapore, with 5.2 executions per million, was second only to China in per capita executions; Malaysia, with 0.092 executions per million, was fifth. (108) As the decade wore on, however, the number of executions in both countries declined. By 2007, Singapore only had 0.45 executions per million; Malaysia had zero that year. (109) Singapore in particular had long been known as the "world execution capital" for having such a high execution rate; the statistics seem even more out of place because Singapore has the third highest per capita income in Asia, and wealth is generally correlated with abolition. (110) The explanation for this phenomenon lies in the political culture in both countries: a strong executive with relatively weak judicial power, a law-and-order ethos, and a general intolerance of political dissent. (111)

Malaysia and Singapore are factually distinguishable from the former British colonies in the Caribbean and Sub-Saharan Africa for several reasons. First, the constitutions of Malaysia and Singapore, unlike virtually all other former British colonies, do not prohibit cruel, inhuman, and degrading treatment or punishment. (112) Indeed, both countries have mandatory judicial caning. In Singapore, strokes of a cane are mandatory for convictions of rape, robbery, drug trafficking, and vandalism, except where the death penalty is imposed. (113) Second, the legal systems of Malaysia and Singapore do not recognize a right to a fair trial or a right to access the judicial system per se, either in the constitutional document itself or through acceptance of international customary law or ratification of treaties. (114) Finally, both constitutions allow broad derogations and the suspension of certain liberties if "necessary or expedient in the interest of the security" of the government. (115)

Most troubling about the mandatory death penalty in Malaysia and Singapore is the extensive application of the penalty to drug-related crimes. The execution rate in Singapore increased even as the homicide rate declined during the 1990s because of an increasingly aggressive drug-enforcement policy that punished possession with intent to distribute 15 grams of heroin, 30 grams of cocaine, 250 grams of methamphetamines, or 500 grams of cannabis. (116) The mandatory death penalty is disproportionately applied to drug-trafficking offenses in both countries, which may account for as many as 69% of judicial executions in Malaysia (117) and 76% of executions in Singapore. (118) These numbers, however, are not high in absolute terms. (119) As Harring writes with respect to Malaysia, the judicial and political branches have reached equilibrium with respect to the law's enforcement, resulting in few actual executions. (120) Malaysia extended the mandatory death penalty to drug trafficking in 1983, although trafficking had been a capital crime since 1975. (121) Originally a component of Malaysia's much-hailed war on drugs, about 300 persons had been sentenced to death by hanging for trafficking in the first fifteen years of the statute's existence, and about 100 were executed. (122)

Only a handful of other countries besides Singapore and Malaysia treat drug trafficking as a capital crime. (123) The mandatory death penalty for drug trafficking appears to fall most heavily on foreign nationals, in particular migrant workers, in Singapore and likely in Malaysia as well. (124) The 2005 execution in Singapore of a prominent athlete and civil servant, for possession of a kilogram of marijuana, prompted the first outpouring of dissent and even anti-death-penalty sentiment by civil society, despite media censorship. (125)

The weight of the international consensus generally treats mandatory capital punishment as disproportionate, and, consequently, cruel, inhuman, and degrading, for crimes in which death or a small number of other violent offenses do not ultimately occur. (126) At the very least, international customary law would certainly prohibit executing an innocent person, and even Singapore would likely consider this a violation of the right to life. (127) Neither Malaysia nor Singapore are signatory to the International Covenant on Civil and Political Rights, which states that a "sentence of death may be imposed only for the most serious crimes" in retentionist countries. (128) Neither Malaysia nor Singapore recognize the jurisprudence of the Covenant's enforcing judicial body, the United Nations Human Rights Committee, which has found that a death sentence for drug trafficking violates Article 6(2) of the Covenant. (129) In addition, mental health and addiction professionals have criticized the death penalty for drug trafficking because the penalty falls most heavily on drug runners and "mules" rather than on big-time traffickers, undermining the deterrence arguments in favor of the law. (130)

The mandatory death sentence for drug trafficking has come under constitutional attack in both countries. In 1981, the Privy Council, then the highest court of appeal for cases arising from Singapore, ruled that the mandatory death penalty did not violate Articles 9(1), 12(1), and 93 of the Constitution, which provide for, respectively, the fundamental liberty of the person, equal protection of the law, and the separation of powers. (131) The case, Ong An Chuan v. Public Prosecutor, has formed the basis of Malaysian and Singaporean jurisprudence, even though the Privy Council decided this case before the Caribbean appeals in the early 2000s. (132) Ong An Chuan provided the basis for the Malaysian challenge upholding the mandatory death sentence for drug trafficking in Public Prosecutor v. Lau Kee Hoo and the Singaporean challenge in Nguyen Tuong Van v. Public Prosecutor. (133)

In the 2004 case Nguyen Tuong Van v. Public Prosecutor, the Singapore Court of Appeal upheld the mandatory death sentence against constitutional challenge by a twenty-four-year-old Australian national of Vietnamese origin, who had been sentenced to death for importing nearly 400 grams of diamorphine. (134) In addition to challenging his conviction on the basis of his status as a foreign national, a faulty confession, and possible evidence tampering, the appellant also challenged the mandatory death sentence on the grounds that: (a) the sentence prescribed under the Misuse of Drugs Act was not a mandatory one; and (b) if it were mandatory, the sentence would be constitutionally impermissible. (135) Considering the line of Privy Council decisions arising from the Caribbean, the Court determined that, for the Privy Council at least, Ong An Chuan was no longer good law. (136) According to the appellant, the mandatory death penalty was not "in accordance with law" and consequently not saved, because the constitutional foundation for upholding the law had since been reversed. (137) The Court found that the Act permitted only one sentence against a convicted defendant--the death sentence--and that the sentence was constitutional. (138)

The Court also found that customary international law did not import the prohibition of cruel, inhuman, or degrading punishment into Singaporean constitutional law, which did not contain such a prohibition. (139) "We agree with the trial judge's reasoning on the effect of a conflict between a customary international law rule and a domestic statute," the Court indicated. (140) "The trial judge held that even if there was a customary international law rule prohibiting execution by hanging, the domestic statute providing for such punishment, [i.e., the Misuse of Drugs Act], would prevail in the event of inconsistency." (141) The Court upheld the law on this basis and also foreclosed other constitutional arguments. Although the European Convention on Human Rights applied to Britain's colonies after 1953, ten years before Singapore received independence (and four years before colonial Malaya did), the Singapore Court of Appeal rejected the suggestion that the Convention was indicative of present international customary law. (142) In addition, the Court rejected the argument that the mandatory death penalty violates the constitutionally enshrined separation of powers because the legislature delegates judicial sentencing power to the executive branch. (143) These holdings were not necessarily inevitable, and they should be reassessed. (144)

An appeal in the case of Yong Vui Kong reached the Court of Appeal in 2010 and allowed the Court an even more detailed analysis of the constitutionality of the mandatory death penalty, under the Misuse of Drugs Act. (145) The appellant argued that the mandatory death penalty violates the right to life and was not "in accordance with law" because the mandatory death penalty was an inhuman form of punishment and conflicted with international customary law. (146) Singapore was, in fact, a persistent objector. In addition, the differentia laid out in the Misuse of Drugs Act among the amounts of drugs that triggered prescribed penalties, including death, were arbitrary and, consequently, violated Article 12 of the constitution, providing for the equal protection of law. (147) The Court interpreted Woodson, Mithu, and the Caribbean jurisprudence in great detail, distinguishing them on the basis of Singapore's different constitutional structure, and ultimately upheld the penalty. (148)

The appellant's argument in Yong Vui Kong never overcame a kind of circularity that would have allowed the conservative judges to invalidate the mandatory death penalty for reasons that are unique to the Singaporean context. The appellant argued that the mandatory death penalty was not saved because it constituted cruel, inhuman, and degrading punishment under customary international law, but failed to convince the judges of a mechanism by which the customary international law of the death penalty could be incorporated in Singapore's constitution, because Singapore had never recognized a prohibition on cruel, inhuman, or degrading punishment under its domestic law or international treaties. (149) The Court also failed to uphold the appellant's Article 12 challenge against unequal protection of the law because Parliament had constitutionally justifiable reasons for setting up a schedule of drug-trafficking penalties that could result in automatic death. (150) This argument was, essentially, …