Thank you Yero for forwarding Halifa's response to Uwaa. I still maintain that the G-N (as you nicely put it) press release was and is genius. That is regardless if the executions occurred or not. The fact that Halifa is miles ahead of Uwaa in intellect should not inure Halifa any loss or diminution of respect.
 

 Haruna.

 

-----Original Message-----
From: Y Jallow <[log in to unmask]>
To: GAMBIA-L <[log in to unmask]>
Sent: Fri, Sep 21, 2012 7:13 pm
Subject: Re: [G_L] [>-<] HALIFA RESPONDS TO WAA JUWARA



Bro Malik,
 
I think part of my friend’s (Halifa) problem is petting these elements like in-house pets. These are not in-house pets, rather wild animals.  I fully understand his intellectual nature and the way that he chooses to handle matters, and I just wanted to seriously caution him that these elements don’t speak his language and their rodent nature so destructive. Matter of fact, they know the truth and determined to ignore the truth at all cost. That is why Mai’s response after the G-N press release, (where “N” represents the number of political parties that really signed for the press release, because until now, I personally do not know how many people signed for it) was spot on.  
 
Waa, whose torture is known to all, is fully uniformed in Jammeh’s garments. The Dankunku “Mbarodi” has now eaten grass to belly full. Apparently, his grazing field is so green that he is blinded to see light. 
 
Anyway, Mbalem jamm!! Thanks for sharing and I always enjoy reading Halifa’s take on pertinent issues like these. 
 
Best regards,
Yero



There is no god but Allah (SWT) and Muhammad (SAW) is His messenger. Fear and Worship only Allah alone!

 



From: [log in to unmask]
To: [log in to unmask]
Subject: [>-<] HALIFA RESPONDS TO WAA JUWARA
Date: Fri, 21 Sep 2012 21:36:55 +0100


Burning Issues



HALIFA WRITES TO WAA JUWARA

Published on Friday, 21 September 2012 16:51 | Written by Ousman Njie

It was indeed interesting to hear you as leader of NDAM to direct derogatory remarks against me for simply calling for a debate to shed more light on the death penalty and the executions which magnetized worldwide attention, condemnation and appeal for clemency.

As a Minister who originated from the ranks of the opposition, I had assumed that you would be an example in promoting and upholding the best standards of political decency for the sake of posterity. It was my conviction that you would be able to defend the policies of the Government you choose to serve with high grade profundity, while assimilating profound ideas emanating from the ranks of the opposition.
Insults, subterfuges and tirades cannot be substituted for sound arguments. Insults like bullets cannot he recalled when discharged. Newspaper reports remain for centuries to be read by upcoming generations. This is why every comment a political leader makes should be an embodiment of facts and not fiction. No leader could safeguard one's integrity by trading insults.
Instead of reciprocating in equal measure by hauling insults at you, I would like to deal with the fundamental issues which have been disregarded by you and your colleagues in your discussion on the executions and the death penalty.
The issue of Deterrence to the growth of crime
One of the arguments you put in the public space is that the execution of the death penalty serves the purpose of deterring others from committing murder and other serious crime.
There is a link between crime punishment and deterrence. The severity of punishment should be linked to the seriousness of the crime committed. Two forms of punishment have been utilized as a penalty for murder, namely, life imprisonment and death penalty.
Prior to 1993, the severest punishment for murder was the death penalty. In 1993, when the death penalty was abolished, the severest punishment for murder became life imprisonment. In 1995, when the AFPRC restored the death penalty, the severest punishment for murder became the death penalty. The task before all Gambians is to determine which punishment, life imprisonment or death penalty, is the most suitable punishment for murder?
I have argued in no uncertain terms that to execute the death penalty in any state would require the employment of people who would derive income to feed their families by killing human beings. I am sure one could scan the length and breadth of the country without finding any single Gambian who would prefer to be a killer of human beings as one's source of income. This is why the death penalty should be abolished and life imprisonment be relied on as the severest punishment to deter murder and isolate unrepentant murderers. This stands in accordance with the best dictates of jurisprudence.
The Constitution and the Death Penalty
You have been very vocal in emphasizing that those who voted for the 1997 Constitution voted for the death penalty and should not oppose its execution. You made special mention of a Party that travelled the length and breadth of the country to give support to the constitution and considered it as double standard for expressing opposition to the death penalty. If you are truly convinced that your views are correct you should not shy away from a face to face debate. Now that I have decided to put my views on paper I hope you will reciprocate to enable the public to get a more enlightened view on the Constitution and the death penalty.
It is my candid view that you are either not fully abreast of the circumstances which gave birth to the 1997 constitution and its content or that you prefer to turn your back at the facts to embrace fiction. Gambians must bear in mind that it was on 31st March 1995 that the Constitutional Review Commission Decree was enacted. The work of the Commission was not dictated by any political party since all were banned. My colleagues and I were active only as a result of defiance to the ban. That is however beside the point. What we did was to help as many Gambian people as possible to understand their role in formulating the constitution of the Second Republic since that of the First Republic had not gone through a referendum.
Those who truly understood the mandate of the Constitutional Review Commission would understand why Section 18 of the Constitution was carefully written to the concerns of the AFPRC who restored the death penalty in 1995 without any consultation with the people and abolitionists like us who are of the view that life imprisonment should be severest punishment for murder. The mandate of the Constitutional Review Commission was as follows:
a) to formulate proposals for a Draft Constitution for The Gambia taking into account:
(i) the Constitution of the Republic of The Gambia, 1970 for purposes of determining its adequacy or otherwise for the good governance of The Gambia;
(ii) Laws passed after the enactment of the Constitution of 1970 whose provisions or part thereof merit inclusion in the draft Constitution;
(iii) Views and comments of members of the general public including professional and other bodies and associations;
(iv) Matters which in the opinion of the Commission are
reasonably related to this Section;
(v) Such matters as may be referred to it by the Council;
(b) Submit to the Council a draft Constitution which shall form the basis of a new Constitution for The Gambia; and
(c) To present a report of their activities which shall contain recommendations and such other matters that merit consideration by the Council.
Hence it is clear that the Constitutional Review Commission had to take onboard some provisions of the 1970 Constitution, the laws prevailing at the time, the views of the AFPRC and that of the general public. Let me now show how the Commission balanced all the interests to formulate Section 18 of the Constitution.
Let me state right away that Section 18 was not put in the constitution to make it obligatory for the President to execute death row prisoners as implied by you. The 1997 Constitution, like the 1970 Constitution, does not make it obligatory to execute or not to execute the death penalty. Both constitutions left it to the prerogative of the President to execute or not to execute death row prisoners. The difference between the two constitutions is that the parliament of the first Republic enacted the Death Penalty Abolition Act to abolish the death penalty in 1993. The 1997 Constitution made it a constitutional provision to enable the National Assembly members to abolish the death penalty if they support its abolition. Section 18(3) reads: "The National Assembly shall within ten years from the date of the coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia." 
Hence up to 2007 the death penalty could have been abolished under Section 18(3) of the Constitution by enacting an Act of the National Assembly, after parliamentary review. This is the first point to note which you either did not know or prefer to ignore when you alleged that those who voted for the constitution voted for the death penalty.
Section 18 Subsection (1) has often been quoted to make claims that the Gambian people had made it mandatory for the President to execute the death penalty. This is not backed by the constitutional provisions. The focus of section 18 is to enlarge the right to life and not to enlarge the right of the state to kill.
Section 18(1) is part of Chapter Four of the Constitution entitled "Protection of Fundamental Rights and Freedom". It is primarily designed to protect the right to life. It orders that "No person shall be deprived of his or her life intentionally... In short, no person's life should be taken with impunity. The question now arises: How did the death penalty emerge under Section 18? It emerged as an extension of Section 18(1) to exclude the execution of a person who has been sentenced to death by a court from being classified as a violation of his or her right to life. The whole of Section 18 (1) reads:"No person shall be deprived of his or her life intentionally except in the execution of a sentence of death imposed by a court of competent jurisdiction in respect of a criminal offence for which the penalty is death under the laws of The Gambia as they have effect in accordance with subsection (2) and of which he or she has been lawfully convicted."
In summation, Section 18 aimed to provide protection for the right to life. In doing so it incorporated limitations imposed by the existing law enacted by a decree to restore the death penalty while enlarging the right to life by restricting the right of the state to kill.
In short, Section 18 has provisions aimed at satisfying the AFPRC members who were in support of the death penalty, on one hand and on the other hand, it also aimed to satisfy those who were in support of the abolition of the death penalty as had been done in 1993. Let me offer prove that Section 18 was carefully written by the drafters to satisfy all sides.
Section 18(1) catered for the restoration of the death penalty in 1995 by the AFPRC under the Death penalty Restoration Decree which was the law at the time of the drafting of the 1997 Constitution. However, Section 18(2) proceeded to limit the death sentence from being applied in any case that is not linked to the use of violence or toxic substances to cause death. Section 18(3) created the prospects for the abolition of the death penalty. Those who quote Section 18 should be honest enough to make this clear.
Let me proceed to prove that the President is not under any obligation to order the execution of death row prisoners and is infract endowed with prerogatives to avert executions.
Execution of the death penalty ( law and practice)
SIGNING OF A DEATH WARRANT IS THE SOLE PREROGATIVE OF THE PRESIDENT
I challenged the whole Cabinet to a debate precisely because of the attempt to indoctrinate the people to accept that they are responsible for the action of the President to execute the death penalty because of their endorsement of the Constitution. You chose to ignore the law enacted to indicate the procedure that must he followed once the court sentences a person to death. It is incontrovertible that there is no provision in the Constitution or any law ordering the President to execute a person who is sentenced to death. The courts have no powers to order the president to execute a person who is sentenced to death. The signing of a death warrant is the sole prerogative of the President. The bold attempt to twist the facts to get the public to embrace fiction was too much for me to swallow. The only way the chaff could be separated from the grain is to invite you and your colleagues to a face to face debate on the executions.
EXECUTION OF THE DEATH PENALTY
(LAW AND PRACTICE)
After a person is sentenced to death by a court the first requirement of the law is for the trial judge of a death row prisoner to forward the copy of the findings and the sentence to the President and the Minister of Justice along with recommendations. The Minister has the obligation to review the findings and recommendations and advise the president.
The question now arises: Is the President required by the criminal procedure code to obey the order of a court for a person to be sentenced to death? The answer is in the negative.
Other than the general powers to exercise prerogative of mercy under Section 82 of the Constitution, Section 253 of the Criminal Procedure Code empowers the President to deal with death row prisoners in one of five ways. He or she could sign a death warrant, commute the death penalty to life, reduce the sentence further to any number of years, pardon the prisoner conditionally or pardon the prisoner unconditionally.
Suffice it to say that if the President chooses to sign a death warrant it must state the time and place where execution is to take place and where the body is to be buried. The state is demanded by law to make the execution a solemn affair free from any abuse.
Furthermore, the order of the President shall be sent to the trial judge who shall enter the order in the record of the court. These procedures make it impossible for the death sentence to be executed in secret.
Finally, I would like to state with all the emphasis at my command that that any order given by the President based on the law is a subsidiary legislation. According to Section 11 paragraph (d) of the Interpretation Act "subsidiary legislation shall be published in the gazette and shall have the force of law upon such publication thereof or from the date named therein....."
Gambians should therefore know that an order has been given by the president in connection with a death row prisoner through the Gazette and not through a Press Release from a Ministry.
In my own view, if execution is to be free from abuse and characterised by solemnity, the prisoner should have the right to discuss with religious leaders if they are Muslims and Christians and have their burial conducted according to their religious rites. The person should not be denied the opportunity to meet family members to have his/her last will and testament transmitted to them.
To conclude, I wish to remind you that any member of the opposition that joins the Government should not be seen to be sowing the seed of political decadence which engender insults; on the contrary, such a person should be a shining example in sowing and upholding the best standards of political decency for the sake of posterity.
While anticipating an enlightening response,
I remain,
Yours in the service of the Nation
Halifa Sallah

Gambia Banks to Strictly Comply to D200 Million Minimum Capital >



Category: Burning Issues















© 2012 by Foroyaa Newspaper, The Gambia




                                    
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