DURING my visit [to Papua New Guinea], I was informed about the legislative amendments certified in September last year to the Criminal Code on the death penalty, which inter alia expands its application by two, allowing it in respect of a total five criminal offences, including aggravated rape and killings related to sorcery accusations.
There are various allegations in the country about the Government’s intention to start executing the capital punishment as a response to the high level of violence in the country. As far as I am informed, 13 individuals are on death row.
While I acknowledge the magnitude of the challenge that the Government faces when addressing the high levels of killings and violence in the country, I am of the opinion that the death penalty is not the adequate answer to this situation.
It provides a false sense of security and diverts attention from the real long term solutions such as better policing, development and education.
At present, Papua New Guinea is considered a de facto abolitionist State at international level with regard to the imposition of the death penalty. The last execution in the country occurred in 1954. As a consequence, Papua New Guinea stands among the majority of countries worldwide who do not resort to the use of capital punishment.
I strongly encourage the Government to maintain this international positioning of Papua New Guinea, and refrain from any use of the death penalty. There is a sustained global trend to move away from the death penalty because its weaknesses are now widely recognised.
From the point of view of international law on the imposition of the death penalty in countries which have not yet abolished it, I am concerned that the current content of the legal provisions in Papua New Guinea, as amended last year, and their implementation would lead to numerous violations of international standards in this regard, in case the death penalty is executed.
In this regard, international law requires that the death penalty may be imposed only in a context of a stringent functioning of the law and order system, so as to ensure the highest respect of due process and fair trial guarantees for the defendants, at least equal to those provided in article 14 of the International Covenant on Civil and Political Rights.
During my visit, I was informed about numerous shortcomings persisting in this field in Papua New Guinea, such as extraction of confessions under duress, ill-treatment of persons in custody, lengthy proceedings, or high levels of corruption among various authorities. The imposition of the death penalty in such conditions would be violating international law.
Furthermore, the right to appeal is a crucial right that needs to be applied to all defendants. According to the information I received, at least one of the 13 individuals who is currently on death row received a death sentence on appeal before the Supreme Court.
I was informed that the decisions of the Supreme Court in Papua New Guinea cannot be appealed. If this is the case, the execution of those who were sentenced to death at the level of the Supreme Court only, would be in violation of international law, if their right to appeal the death sentence is not ensured.
International law also requires that the death penalty is imposed only for the most serious crimes, which is interpreted to include only the crime of intentional killing. The current domestic provisions providing for the death penalty for the offences of aggravated rape, piracy or treason, are thus contrary to international standards, unless they result in intentional killing.
The legal framework regarding the death penalty in Papua New Guinea apparently also lacks provisions that would prohibit the imposition of the death penalty against juvenile offenders, pregnant women, new mothers, and persons with psycho-social disabilities, thus opening the avenue for another violation of international standards in case such individuals are imposed the death penalty.
Furthermore, the current text of the Criminal Code Amendment Act, providing for the death penalty in cases of wilful murder, killings related to sorcery accusations and aggravated rape may be interpreted as imposing the capital punishment in a mandatory way. The mandatory imposition of the death penalty is contrary to international standards.
Furthermore, with regard to the argument that the death penalty would deter the society from further violence, I remain unconvinced of such possible effects.
In addition to studies at international level which prove that the death penalty is not necessarily an effective deterrent of crime, several interlocutors shared with me the opinion that the death penalty actually might entail in Papua New Guinea further killings, given the spread of the so-called “pay-back” culture requiring an individual to return to other persons the same level of treatment that he or she received.
While I condemn the existence of the “pay-back” culture in all its forms, I acknowledge that its scale in Papua New Guinea might lead to further killings in case the death penalty is executed. I heard also from some members of the judiciary that they would be very cautious in imposing the death penalty, due to fear of lethal reprisal against them of their families.
From ‘Preliminary Observations on the official visit to Papua New Guinea by Mr Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, 3-14 March 2014’
Christof Heyns is a Professor of Human Rights Law, Co-director of the Institute for International and Comparative Law in Africa at the University of Pretoria and United Nations Special Rapporteur