This article was originally published on the Commonwealth Lawyers Association (CLA), written by John McKendrick KC, CLA Executive Committee, May 2023.
Commonwealth lawyers work together because they share values. Across our Commonwealth legal family there are more shared values than those that divide us. One area where we do disagree is on the death penalty. Most Commonwealth states have abolished it but a very significant minority have retained it. Some are de facto abolitionist because they have not executed prisoners for a long time and others do routinely executive those convicted.
That does not mean the CLA has not taken a stand. In 2009 a policy was passed in these terms:
“Whilst acknowledging the sovereignty of all governments, the CLA is committed to advocate for the abolition of the death penalty in Commonwealth jurisdictions wherever it remains as an available sentence.
The CLA is committed to working with its members, local, regional and international legal and human rights organisations and governmental entities to abolish the death penalty for capital and all other offences.”
Whilst always treading carefully to respect the sovereign positions of our member nations and territories, the CLA wholeheartedly continues to work towards the proper universal protection of human rights which demands abolition of the death penalty in our 56 jurisdictions. To that end the CLA was asked by the Death Penalty Project to support abolition of the death penalty in Ghana. Saul Lehrfreund MBE, DPP’s articulate and passionate director, has led the advocacy alongside academics and most importantly representatives from Ghana.
Abolition of the death penalty in Ghana was recommended by Ghana’s Constitution Review Commission in 2010 and supported by the Ghanaian government in 2012, subjecting the recommendation to approval by a national referendum. Despite taking this step towards abolition, the recommendation failed to bring about change due to challenges in Ghana’s constitutional amendment process. However, even without a constitutional amendment, abolition is still possible by removing provisions in the Criminal Code that provide for the death penalty. The proposed private members Bills – the Armed Forces (Amendment) Bill, 2022, and Criminal Offence (Amendment) Bill, 2022 (“Amendments”) seek this change through the leadership of Parliament. Ghana’s political leaders have already signalled their willingness to move towards abolition and public opinion regarding the removal of capital punishment would follow this principled leadership.
ExCo was asked to support this approach and in January 2022 passed a resolution stating: “The Commonwealth Lawyers Association publicly supports the Death Penalty Project’s ‘Memorandum on Abolition of the Death Penalty in Ghana’.” To that end, CLA Exco member, John McKendrick KC visited Ghana with Saul and his team in December 2022 where many meeting took place at Ghana’s Parliament, with NGOs and with interested High Commissions and Embassies. A real highlight was the meeting with the leaders of the Ghana Bar Association and the interesting discussion that took place followed by kind refreshments. It was a successful visit and a productive collaboration. It led to the MP was has sponsored the private members Bills being invited to speak in Goa at our conference. Francis-Xavier Sosu MP spoke passionately with Saul and others on why abolition is necessary. Meanwhile in London, the CLA has continued to engage to support the Ghana abolition movement. Secretary General Brigid Watson and others met with the Honourable Attorney General of Ghana in London in March 2023 and Sir James Dingemans and John McKendrick attended a dinner with the Honourable Speaker of the Ghana Parliament in April 2023.
The DPP will continue to lead efforts in Accra in May 2023. Execution should play no proper role in the sentencing disposal options of a humane court. Public protection, deterrence and retribution can all find true expression in lengthy incarceration. The miscarriages of justice and the challenges of the finality of execution are well known to practising criminal lawyers in non-abolition jurisdictions. Ultimately it is the role of a Commonwealth state to protect life, not to destroy it. The CLA will continue to collaborate with the DPP in Ghana, where Ghana leadership recognises the Commonwealth values that drive the advocacy for abolition. Our shared values of humanity, dignity, compassion and fairness guide our work and are what bring us together. They underpin the CLA’s advocacy for abolition of the death penalty in Ghana and in all Commonwealth jurisdictions.
John McKendrick KC
CLA Executive Committee