The Necessity and Compatibility of Capital Punishment Withhuman Right Laws With Particular Reference To Ethiopia

THE COMPATIBLITY OF CAPITAL PUNISHMENT WITH
HUMAN RIGHT PROVISIONS; WITH PARTICULAR

REFERENCE TO ETHIOPIA
SUBMITTED BY:
Tarekegn Alemayehu
ADVISOR:
Tewodros Alefe
Submitted in Partial Fulfillment of The Requirements For the

Degree of Bachelor of Laws (LLB) At the Faculty of Law,
Mekelle University
June 2009
1
Mekelle,
Ethiopia
TABLE OF CONTENTS
Page
ACKNOLEDGEMNT---------------------------------------------------------------------
INTRODUCTION-------------------------------------------------------------------------
CHAPTER ONE---------------------------------------------------------------------------
GENERAL IDEA OF PUNISHMENT AND CAPITAL PUNISHMENT--------
PUNISHMENT IN GENERAL---------------------------------------------------------
Justification of Punishment--------------------------------------------------------------
Theory of Punishment--------------------------------------------------------------------
CAPITAL PUNISHMENT--------------------------------------------------------------
Definition of Capital punishment-------------------------------------------------------
History of Capital Punishment----------------------------------------------------------
Methods and Modes of executing Capital Punishment------------------------------
Arguments on Capital Punishment-----------------------------------------------------
Religious Views Towards Capital Punishment---------------------------------------
CHAPTER TWO-------------------------------------------------------------------------
INTERNATIONAL MOVEMENTS OF ABOLISHING CAPITAL
PUNISHMENT---------------------------------------------------------------------------
The United Nations-----------------------------------------------------------------------
European Union---------------------------------------------------------------------------
Inter-American State Organization Movement---------------------------------------
The Abolition Movement in Africa----------------------------------------------------
Abolition Movement in Ethiopia-------------------------------------------------------
Capital Punishment in Ethiopian Context---------------------------------------------
The Period Before Fetha Negest--------------------------------------------------------
The period from Fetha Negest to 1930 Ethiopian penal code-----------------------
Death Penalty under the 1930 Penal Code of Ethiopia-------------------------------
The period from 1957 to the period of 1974-------------------------------------------
2
The period from 1974 to the period of 2004-------------------------------------------
The period after the FDRE criminal code---------------------------------------------
CHAPTER THREE----------------------------------------------------------------------
THE COMATIBILITY OF DEATH PENALTY WITH HUMAN RIGHTS
AND ETHIOPIAN CRIMINAL JUSTICE------------------------------------------
Human Right and Power of State to Punish-----------------------------------------
Death Penalty and Human Rights-----------------------------------------------------
Right to Life and Death Penalty-------------------------------------------------------
Freedom of Torture and Death Penalty-----------------------------------------------
The Deterrent Effect of Capital Punishment-----------------------------------------
Problems of Executing Capital Punishment------------------------------------------
Conclusion--------------------------------------------------------------------------------
Recommendation------------------------------------------------------------------------
Bibliography-------------------------------------------------------------------------------------
3
CHAPTER ONE
GENERAL IDEA OF PUNISHMENT AND CAPITAL

PUNISHMENT
1.1Punishment In General
Punishment is necessary to protect peace and security of the society. When there is a
crime there is also a punishment. In order to protect the peace and security of the
community, every society has its own institution of punishment. Punishment
distinguishes criminal law from all other types of law. It is a shield that protects society
from the harm within itself.
Punishment may effective in reducing or eliminating undesirable behavior. Punishment

is the reaction of society against the person who breaches the social order. 1Every right
has a limit. The social contract provides individuals with freedom of action with a
certain limit. When one act beyond the provided limit, that is prohibited by law and
hence made criminal. The possessor of the right should act within a limit of his right.
Otherwise when the possessor of the right act beyond the limit set in his favor he begins
to threaten others right and that may cause full of chaos. 2 In order to guarantee these
rules are respected and to keep the security of society the state applies punishment to
those persons who transgress the limit and commit criminal acts. Different scholars
forwarded different definition for punishment.
1
Encyclopedia Britannica, 1986, 802
2
. Ibid
4
H.L.A. Hart (1968) proposed that a punishment must include the
following:3
1. It must involve pain or other consequences normally
considered unpleasant.
2. It must be for an offense against legal rule.
3. It must be of an actual or supposed offender for his
offense
4. Human beings other than the offender must intentionally
administer it.
5. It must be imposed and administered by an authority
constituted by a legal system against which the offence is
committed.
Many definitions of punishment forwarded by different scholars or legal writer’s center

on these characteristics provided above by H.L.A. Hart. Therefore, to attain the status of
legal punishment, a penalty must satisfy all these elements cumulatively. If it does not
have one of these features, it ceases to be a legal punishment.
Punishment is one species of large family of measures involving intentional

deprivations of persons normally recognized rights by official institutions using
coercive means if necessary.4Apart from punishment there is also more rudimentary rule
regulated practices with in the groups such as family, school, or customary society,
which apply sanctions in case of breach of rules. These practices, however, not fulfill
the standard of a silent feature of law; legislations, organized sanctions, courts, etc. that
H.L.A. Hart proposed as a standardized definition of punishment.
Not long ago, corporal punishment was widely approved. Parents and teachers were told
“to spare the road is to spoil the child”5. Both educational and legal systems depended
upon punishment. Punishment now has fallen into some disfavor. For example physical
3
Thomas W.Simon, Law and Philosophy: An Introduction With Readings, 2001, 451
4
Supra note 1, 809
5
Encyclopedia of Psychology, 1984, vol.3, 193
5
punishment is seldom used in schools, or with family. But what one approved as
punishment may be considered as “a child abuse” or “spouse abuse”.6 The ultimate
punishment, capital punishment, is one part of punishment and today it is extremely
rare. But due to public attitude towards disfavor regarding some types of potential
punishment it is still pervasive in the world today.
1.1.1 Justification of Punishment
Regarding justification of punishment scholars are not of the same opinion. They
provide different reasons why we use punishment. There are many possible reasons that
might be given to justify or explain why someone ought to be punished. Depending on
its cultural, moral, and religious attitudes different societies have different outlook as to
why criminals must be punished. Based on these differences, people have different
purposes for punishing criminals.
1. Retributive Theory
According to this theory punishment is interested in correcting past wrongs. It looks

backward to the crime and asks what justice requires correcting the past wrong.7It looks
towards the original offense and seeks to punish the offender proportionately. This
theory which, is the most stringent and harsh of all other theories, believes to end the
crime itself. This type of justification for punishment is the oldest of others.
The Golden Rule states “Do unto others as you would have others do unto you”. Law
enforcement seems to have its own version on the Golden Rule, which translated as
“Do unto others as they have not done to you”.8 According to retributive theory
punishment applied simply in proportion to the seriousness of the offense. When a
judge sentences for the purposes of retribution, punishment is simply applied in
proportion to the seriousness of the offense. The “eye for an eye” system of justice
6
ibid
7
Supra note 3
8
Ibid
6
described in the Old Testament is an early form of retribution.9 It maintains that
punishment is justified because it gives wrongdoers what they deserve. The suffering of
wrongdoer is seen as good in itself, even if it has no other benefit.
According to the retributivist theory, the more serious the crime the more serious the
punishment should be. It underlies the idea of vengeance and revenge rather than that of
social welfare and security. Therefore, the retributive theory is an objective of
sentencing has no effort to change the offender and provide nothing to the society
except a form of revenge. Since those men have done a wrong they must suffer for it.
The proponents of this theory say that our sense of moral rightness demands
punishment.10
A retributive theory basically relies on principle of fairness, justice, and equity and it
refrains from being discriminatory or vindictive in its sentencing approach.11That means
generally, although sentences might be severe and more frequent, the retributive theory
suggests that they would be fairer and would impose punishment on those who deserve
it.
Retributive theory implies punishment on offences irrespective of its deterring effect on

others. That means punishment should be imposed on the criminals not only to deter
others from committing same crime but it should be imposed because the offenders
deserve it. However, some argued that this is a “zero sum game” that such acts of street
justice blood revenge are not removed from society, but responsibility for carrying them
out is merely transferred to the state.12
Generally, retribution sets an important standard of punishment on the offender. The

transgressor must get what he deserves, but no more. Therefore, a thief put to death is
not retribution, because it is more than the act of the wrongdoer; but a murder to put
9
Ibid
10
Patric R. Anderson and Donald J. Newman, Introduction to Criminal justice, 5th ed (1993), 286
11
Joseph J. Senna, Larry J. Siegel, Introduction to Criminal Justice, 4th ed (1987) 402
12
Justification for capital punishments,
http://www.justiceblind.com/death/dpsupport.html
7
death is.13 Those all leads us to conclude the principle of “an eye for an eye, a tooth for
a tooth …a life for a life” has a deterrent effect.
2. Deterrence Theory
This theory aims to prevent crime through the example of offenders being punished.
That is, it looks forward to the prevention of future crimes. It is to act as a measure of
prevention of future crimes. It is to act as a measure of prevention to those who are
contemplating criminal activity.14 According to these theories; punishment should not be
designed to exact retribution on convicted offenders but to deter the commission of the
future offences.
In the ancient history of punishment all things was deterrent, and the chief end of the
law of crime was to make the evil-doer example and a warning to all that like minded
with him.15 The argument is that persons seeing and knowing that others are punished
for committing crimes will be deterred from committing such offences by themselves.
Deterrent theorists distinguish the effect of punishment as a general deterrent and its
effect is a special deterrent. Punishment acts as a general deterrent insofar as the threat
of punishment deters potential offenders in the general community and it acts as a
specific deterrent insofar as the infliction of the punishment on convicted defendants
leaves them less likely to engage in the crime.16 General deterrence is directed at
preventing crime among general population, while special deterrence is aimed at
13
Ibid
14
. Jay S. Albanese, Criminal Justice, 2001, 315
15
. Stephen A. Saltisburg, John L. Diamond, Kit Kinports, Thomas H. Moravets, Criminal
Law: Cases and Materials, 1994, 110
16
. Sanford H. Kadish, Stephen J. Schulhoter, Criminal Law and Its Process, (6ed, 1995),
115
8
preventing future crimes by particular offender.17 The basic reasoning behind general
deterrence is impeccable. One can easily understand that persons are deterred from
actions likely to have painful consequences. Generally the basic idea of deterrence is to
deter both offenders and others from committing a similar offense.
3. Incapacitation and Special Deterrence
Incapacitation refers to the believe that dangerous criminal offenders should be locked
away for a long period of time but special deterrence refers to the concept that the pains
of their imprisonment should be so severe that on release convicted offenders will not
dare to repeat their criminal act.18 This theory believes on the absence of dangerous
peoples to minimize or totally void crime. At the heart of both incapacitation and the
special deterrent the concept is the believe that a small number of people commit a great
number of criminal offenses and that if they put out of circulation, their absence will
have a significant role on the crime rate.19However, there are various researches that
invalidate the above logic.
Generally if people who have directly experienced punishment for something they did
in the past refrain from future criminal activity because of the fear of being punished
again, that is specific deterrence and if people who have not experienced punishment
themselves but are deterred from crime by the fear that they might get the same
punishment experienced by others it is known as general deterrence. When the judge
hands down a sentence and tells the offender, “this ought to make you think twice next
time,” the judge is thinking of a penalty as a specific deterrent; and if the judge says, “I
intend to make an example of you,” the penalty’s general deterrent value is being
emphasized.20
4. Rehabilitation and Reformation Theory
17
. Supra note 18, 316
18
Supra note 16, 58
19
Ibid
20
Hugo D. Barlow, David Kauzlarich, Introduction to Criminology, 8th ed, 2002, 215
9
Traditionally rehabilitation and reformation were used interchangeably to express the
same thing but it is not correct. Reform is direct consequence of punishment, whereas
rehabilitation is an alteration of an offender’s behavior by non-punitive means so that
he/she no longer violates laws.21It is generally expected that the criminal justice process
will somehow reform or rehabilitate those caught up in it, or at least will not make them
worse. It is recognized that virtually all persons who are processed, even those
convicted and sentenced to life imprisonment, will eventually return to the community.22
This theory is the leading and the dominant feature in the most modern legal
punishment. The theory rests upon the believe that human behavior is the product of
antecedent causes, that these causes can be identified and that on the basis of therapeutic
measures can be employed to effect changes in the behavior of persons treated.
This approach sees criminal behavior as a consequence of social order or psychological

shortcomings. The purpose of sentence, then, is to correct or threat these shortcomings
in order to prevent future crimes.23It is impossible to divorce individual from the
community. Because individual is also one part of the community. This theory is the
most recent and most humane theory, of all theories raised above. It is based its
foundation on the principle of reforming legal offenders through individual treatment.
This theory presumes that it is proper to sentence an offender based on the likelihood of
reform in the future rather than in the criminal conduct already committed. 24It held to
make the offender good to rehabilitate or to change the mind of the offender through
counseling, education and training.
The rehabilitation philosophy holds that people are at the mercy of social, economic,
and interpersonal conditions and interactions. Criminals themselves are the victim of
21
. Ibid 214
22
. La Fave Wayne R and Austin W. Scttim, Criminal Law, 1982, 12
23
. Supra note 14, 36
24
. Ibid
10
racism, poverty, family disorganization, and other social problems. Therefore, it is the
societies duty to help them compensate for their societal produced personal problems.25
There is a view, hold most prominently, but by no means exclusively by persons in
psychiatry, that we ought never punish persons who break the law and that we ought
instead to do something much more like what we do when we treat someone who has a
disease. According to this view, what we ought to do to all such persons is to do our best
to bring it about that they can and will function in a satisfactory way with in society.
The society has an obligation to show the criminal that he/she is not rejected or detested
by the community that he/she is not considered as the enemy of the community and the
community understands his misfortune that derives him to this evil. The functional
equivalent to the treatment of a disease is the rehabilitation of an offender, and it is
rehabilitative system, not punishment system.26
Rehabilitation theory is the philosophy that society is best served when wrongdoers are
not simply punished, but provided the resources needed to eliminate (avoid) criminality
from their behavioral patterns.27It suggests that criminals can be treated and possibly
even cured of their proclivities or tendency toward a crime.
Since the root of a crime is embedded in a complex array of phenomena, economic,

social, and cultural in nature the concern should be in identifying the problem and
afford the appropriate treatment. A man may be restrained from particular act of crime
on a particular occasion but the criminal nature in him is not touched, the criminal
instincts are extirpated and they will bloom again in some other deed of crime. Truly,
unless the punishment has the effect on character, unless education is regarded as an
essential concomitant of punishment, the can be no hope of making punishment useful.
We must realize that it is the criminality of human being not the humanity that must be
uprooted.
25
. Supra note 11, 13
26
. Supra note 3, 468
27
. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice In Action, 2006, 259
11
It is far cheaper and more efficient and humane to help young offenders become
established in the community than to punish them with a prison sentence and lock them
in to a life of crime.28 Rehabilitation theory emphasized on the criminal offender and
focused on correcting them.
These mentioned above are only few among strongest justifications of punishment.
There also other justifications like education and incapacitation. But it is worth
considering here that none of them exclude the others completely, rather they
interrelated to each other. And the most effective punishment is the one that holds most
of these justifications harmoniously.
1.1.2 Theory of punishment
The term punishment connotes a moral dimension of responsibility and blame. It is not
like responding to one force of nature by creating a counter-force. Such a simple
mechanistic will not do. It needs beyond such mechanism. Punishing a person is not like
a disciplining dog for tailing to heel-rather, punishment sends two important messages:
that the society holds the actor responsible and blame worthy for her conduct, and that
moral condemnation by the community, with whatever stigma is attached, is
appropriate.29
Punishment and offences share some common denominator in that both involve the
infliction of pain or suffering to the victim. However there is a big difference between
the two. Jeremy Bentham describes these dissimilarities as follows.30
The catalog of punishment is the same with that of offences. The same
evil done by the authority of law, will constitute a punishment or an
offense. This offense is the enemy of all and punishment is the common
protector. Offense for the individual of a single person produces a
28
. Supra note 11, 13
29
. Supra note, 12, 99
30
. Richard C. Monk, Taking Sides, Crime and Punishment, 5th ed (1998), 216
12
universal evil, punishment by suffering of individual produces a general
good….
Having this nature, in order to achieve its pursuit, punishment should be effective. An
effective punishment is guaranteed when the punishment is just and equitable.
Therefore, punishment, as much as possible seeks to bring the complete public
protection at the same time avoiding the infliction of needless suffering on the offender.
When I say just and equitable punishment, I want to say attention should be paid not
only to the interest and need of the collectivity but also the offender and the victim as
well.
1.2. CAPITAL PUNISHMENT
“The death penalty is our harshest punishment. It is irrevocable; it ends the

existence of those punished, instead of temporarily imprisoning them. Further,
although not intended to cause physical pain, execution is the only corporal
punishment still applied to adults. These singular characteristics contribute to
the perennial, impassioned controversy about punishment.”31
1.2.1 Definition of Capital Punishment
It has been a tradition for a lawyer to start dealing with a subject after defining the
scope their subjects in order to avoid various interpretations of the subject itself. As the
saying goes “a well started problem is a half solved problem” I am going to use capital
punishment as a meaning “killing of a person by a judicial process or the lawful
infliction of death as a punishment.” Death penalty is used to punish wrongdoers for
certain crimes. In this paper capital punishment, death penalty, and ultimate punishment
are used to express the same thing.
31
. Ibid
13
1.2.2 History of Capital punishment
The exact date of origin of capital punishment is not known. But there is a view that the
authorized taking of human life must be as old as mankind. In the form of human
sacrifice, this taking reflects a believe in the sanction of life; in the form of punishment,
it forces us to confront our baser selves.32
It has been found very difficult, or more accurately impossible for scholars and students
of law interested in the history of capital punishment as to how, when, where, upon
whom and by whom it exactly inflicted at first. There is no clear evidence as to the first
use of capital punishment. As to Holy Bible, as it is clearly expressed in Genesis Art.4,
the first murderer ‘Cain’ was not sentenced to death. From the close reading of the verse
of this Bible, Abel’s death at the hands of his brother Cain, didn’t gave raise to capital
punishment. This is because Cain’s punishment was banishment instead of death. But
although Cain was not sentenced to death for murder, the Old Testament makes
reference stating that “whosoever sheds the blood of man, by man shall his blood be
shed.”33 But one thing is true that the Old Testament was ineffective when Cain
committed a murder. The Law of Moses comes be effective sometimes after the death of
Abel.
The first recognized death penalty laws date back to the eighteenth century B.C. and can
be found in the code of king Hammurabi of Babylon in which death penalty was
prescribed for over twenty different offenses.34 This is very similar with the ordinance of
Bible mentioned above, in which both demands “an eye-for-eye” punishment.
32
Peter Newman, The New Palgrave Dictionary of Economics and Law, 1998, vol.1, 201.
33
. Holy Bible, Genesis 9:6
34
http://criminal.findlaw.com/crimes/more-criminal=topics-punishment/history-of- death penalty-laws.html
14
Death penalty is also part of Hittite code in the fourteenth century B.C. The Draconian
code of Athens, in the seventeenth century BC, made death the lone punishment for all
crimes.35In the fifteenth century BC, the Roman law of Twelve Tables also contained the
death penalty. Generally the ancient civilization and Middle East had the death penalty
in their codes. Historically many different crimes were deemed to be capital offences by
civil and religious authorities of the day. Offences like murder, treason, arson and rape
were widely employed in ancient Greece by the death punishment under the laws of
Draco (fl.7th century BC) and the Romans used it for a wide range of offenses.36
Capital punishment has been prescribed for many crimes not involving loss of life,
including adultery, and blasphemy and the ancient legal principle Lex talionis (talion)-
“an eye for an eye, a tooth for a tooth, a life for a life”, which appeared in the
Babylonian code of Hammurabi, was invoked in some societies to ensure that capital
punishment was not properly applied.37
Execution of criminals and political opponents has been used by nearly all
societies. In most places the practice of capital punishment was reserved for
murder, espionage, treason, or as part of military justice. In some countries,
sexual crimes, such as rape, adultery, incest and sodomy, carry the death
penalty, as do so religious crimes such as apostasy (the formal renunciation of
state religion) were inflicted to death.38
In many countries of the world drug trafficking is also capital offense. In countries like
China human trafficking and serious corruption are capital offences punished by death.
Capital punishment in the ancient times was often avoided by the alternative of
banishment and sometimes by payment of compensation. And also, for instance, from
the eighth century to the mid-eleventh century in Japan, it was customary for the
35
Ibid
36
The New Encyclopedia of Britannica, 2005, vol.2, 831
37
. Ibid
38
http://oon.bsu.edu.ru/docs/SPCH.doc.
15
emperor to commute every death sentence and replaces it with a deportation to a remote
area.39It replaces the capital punishment to other punishment, which is less severe or to
which is not severe as before.
In the history of capital punishment, until the existence of code of Hammurabi, there
was no unified system of justice, which formalized the relation between classes. Code
of Hammurabi was the first to set a different punishment and compensation according to
different classes/group of victims and perpetrators. The Torah (Jewish law), also known
as Pentateuch (the first five book of the Christian old testament), lays down the death
penalty for offences like murder, kidnapping, magic, violation of Sabbath, blasphemy,
and a wide range of sexual crimes, although evidence suggests that actual executions
were rare.40
Capital punishment is condoned or accepted in Islam. In the Medieval Islamic world,

there were a handful or small number of Sheikhs, who were opposed to killing as
punishment and also in the ‘One thousand and One Night’, which is also known as
‘Arabian Night’, a fictional storyteller Sheherazade is portrayed as being the ‘Voice
sanity and Mercy’, generally opposed the death punishment.41
The Qur’an prescribes the death penalty for several hadd (fixed) crimes-including
adultery and apostasy of Islam. But murder was not among them. In Islam murder is
treated as civil crime and is covered by the law of qisas (retaliation), whereby the
relatives of the victim decide whether the offender is punished to death by authorities or
made to pay diyah (wergild) as compensation.42
Generally, capital punishment is historically controversial issue both nationally and

internationally. It is believed that it exists before society’s organized.
The historical significance of capital punishment is not only related to punishment but
also to the social control. Capital punishment by its nature was often administered upon
39
Supra note 36
40
Supra note 38
41
Ibid
42
Supra note 36
16
those who identified as members of social problem populations.43In such cases where it
was believed that these populations did not respect the established authority or where it
is believed that these populations were viewed as dangerous to the established authority,
capital punishment is administered.
1.2.3 Methods and Modes of Executing Capital punishment
Before the age of Enlightenment, that is 18th century, in Europe as well as in every
corner of the globe, execution of capital punishment was characterized by torture and
slow brutality. Executions were carried before an assembly of crowd. One of the most
defining characteristics of European Enlightenment was a call for moderation in
existing punishments.44In the history of capital punishment different modes of execution
are exercised. Among these beheading, boiling in oil, burning alive, burning,
crucifixion, disembowelment, drawing, flying alive, hanging, impalement, stoning,
strangling, being thrown to wild animals, and quartering (being torn apart) were highly
exercised.45 Those all were practiced as modes of punishment in the ancient times.
In Britain, hanging became the usual method of execution in the tenth century AD. As
many as 72,000 people were executed in the sixteenth century during the reign of Henry
VIII by common execution methods including boiling, burning at the stake, hanging,
beheading, and drawing and quartering.46
In America, when the young United States adopted the practice of capital punishment
from England, it also adopted the methods of the mother country. The methods like
quartering and boiling the convict alive are the methods adopted by the United States
from Britain.47 In nineteenth century the practice of hanging replaced these techniques
on the ground that they were too “barbaric”.
43
Roslyn Muraskin, IT’S A CRIME: Women and Justice, (3rd ed2003), 290
44
Supra note 30
45
Supra note 38
46
. Ibid
47
17
In the history of capital punishment America tried (attempted) to make the mode of
execution more humane. The 1890s saw the introduction of electrocution as less painful
method of execution than hanging. Nevada introduced lethal gas as the more humane
method of executing capital punishment in 1924, but the “chair” was the primary form
of execution until 1980s.48 Different states of United States use different methods of
execution of capital punishment. Today the most common method of execution in
United States are lethal injection (sixteen states), electrocution (fifteen states), lethal gas
(eight states), hanging (four states), and firing squad (two states).49
In United States, of the 143 executions carried out between 1977 and 1991, 54 were by
lethal injection, 83 by electrocution, 5 by gas chamber, and 1 by firing squad.50 Among
the states of America eight states provide for more than one method of execution and
grant the condemned person a choice, usually between lethal injection and other
methods.51 Generally lethal injection is considered as more humane than others and it
was first used by Texas in 1982 and today this method dominates executions in United
States.52 According to its proponents the main advantage of this method is that it’s
painless.
1.2.4 Arguments on Capital Punishment
As I have mentioned earlier capital punishment has been one of the most controversial
aspects of justice system in the world. Different scholars or thinkers have offered
various arguments to support and reject of capital punishment.
In the history of capital punishment different law enforcement agencies, criminologists,

philosophers, religious figures, and general public have argued about capital
punishment from many different perspectives. Still it is subject to controversy that states
48
Ibid
49
Supra note 11, 334
50
Ibid
51
. Ibid
52
Supra note 27, 271
18
are not agreed on the necessity of capital punishment. Some believe that capital
punishment would deter criminals, while others contend that persons should be
punished based on the doctrine of retribution.
A judge’s most awesome sentencing alternative for those convicted of capital crime is
the imposition of death sentence. It is the only sentence that once executed it is
irreversible and final. It deprives the convicted person of an ultimate appeal.53
As the 18th century saw the coming of new ideas and thoughts the argument that capital
punishment must be abolished get the inertia to counter-act the contrary view. Casare
Beccaria was an outstanding person to condemn the use of capital punishment on its
publication on ‘Crimes and Punishment’.54 This contained a general condemnation of
the use of death penalty and its tendency to corrupt people rather than to prevent crime.
People in different countries divided between two competing ideas having their own
symbolic cause either to abolish or retain capital punishment. The argument of both
emanate from different aspects of human knowledge.
The abolitionists are claiming gradual victory from year to year; while the retentionists
hold the view that abolitionists didn’t in fact secure victory, since the victory
abolitionist claim is based on the number of risks.
Supporters of capital punishment believe that those who commit a murder have
forfeited their right to life. In addition, they believe that capital punishment is just form
of retribution that expresses and re-enforces the moral indignation of law-abiding
citizens.55That means any individual who kills human being must pay for the crime.
53
. Freda Adler, Gerhard O.W. Mueller, Williams S. Laufer, CRIMINOLOGY, 2nd ed
(1995), 446
54
. Eugner Mc Laughlin and John Muncie, Controlling Crime, 2001, p.168
55
Supra note 36
19
They believe that capital punishment is morally fitting on the ground that a person who
does wrong should suffer in proportion to his wrongdoing. However, the opponents
(abolitionists) of capital punishment argue that, by legitimizing the very behavior that
the law seeks to repress-killing-, capital punishment is counter productive for the moral
message it conveys. Furthermore, they urge, when death penalty is used for petty
offences, it is immoral because it is wholly disproportionate to the harm done.56
Again scholars argue whether or not death penalty is more deterrent. Supporters of
capital punishment claim that death penalty is uniquely potent deterrent effect on
potentially violent persons for whom the treat of imprisonment is not sufficient
restraint.57According to some thinkers such as Kant, punishment should not only be
equal but also be similar to the offence. This is based on the reason that most people
will not commit a crime (act of homicide or other crime punishable by death) if they
know the consequence of their act, that is, they may be executed as a result.
Accordingly, if you steal from him, you steal from yourself; if you kill him, you kill
yourself. The point is only law of retribution can determine exactly the kind and degree
of punishment but such determination must be made by court of justice not by private
individual judgment.58
According to those who favor death penalty, the prospect of capital punishment even
perceived from the distance frightens the killer and stops him from committing crime
because there are peoples who are more deterred by horror of punishment than the
punishment itself. They hold the view that the fear of loosing once life will stop people
from taking others life.59That means they abstain from it by regarding it with horror.
Death penalty, even in its common sense, is the most feared punishment than other
subsidiary punishments. Due to this reason the supporters of capital punishment say
56
Ibid
57
Ibid
58
Supra note, 3, 256
59
Supra note 30, 218
20
that, it is easier for professional criminals to accept imprisonment whatever the duration
may be than being hanged or shooted.60
On the other hand the abolitionists hold the view that capital punishment is not a
deterrent to capital offences. They argue that the research generally has demonstrated
that, the death penalty is not more effective deterrent than life or long term
imprisonment.61 They further believe that such terrible but relatively immediate
punishment of execution does not deter criminals, instead they hold a long and painful
punishment, that is, long and life imprisonment. This punishment is better depriving
once freedom of action and also helps to deter others from such act by taking that
example. They rise that in the history, capital punishment was used even for petty
crimes and non-deterrence of it. According to their argument, if the capital punishment,
in the ancient civilization, did not deter even petty offences like pick pockets or did not
keep men from stealing horses or others, how it would keep men from committing
murder? 62 They believe that capital punishment cannot deter criminals from committing
such act, even there was a case when a man witnessed the execution of death penalty yet
commits murder.63 Therefore, the abolitionists hold the view that because of all
mentioned above and many other similar facts capital punishment has no deterrent
effect. And they offer a substitution of capital punishment, which is life imprisonment.
There is also a dispute whether capital punishment can be administered in a manner

consistent with justice. The supporters of capital punishment believe that it is possible
to fashion laws and other procedures that ensure that only those who deserve death are
executed. In contrast, the opponents of capital punishment maintain that the historical
application of capital punishment shows at any attempt to single out certain kinds of
crime as deserving of death will inevitably be arbitrary and discriminatory.64 Due to this
reason they hold the view that it is impossible to fashion laws that execute only those
60
Supra note 2
61
Ibid
62
Supra note 43, 284
63
Ibid
64
Supra note 36
21
deserving death. They also propose that, even in a well run of criminal justice system,
some peoples will be executed for crimes they did not commit. 65 Due to all these
reasons abolitionists oppose the application of death penalty.
Proponents of capital punishment always argue that, execution serve as a strong

deterrent for serious crimes and produce the only real assurance that brutal criminals
can never jeopardize the society. For these persons putting dangerous persons to death
also conforms the desert perspectives requirement that punishment must be in
proportion to the seriousness of the crime.66They believe that most capital offences must
be punished by most severe punishment or capital punishment. For the very serious
crime it is better to use serious punishment. For this argument they propose, “Before the
brutality the death penalty is considered the brutality the offender showed the victim
must not be forgotten.”67
However, the abolitionist criticized the death penalty, pointing to its consequences, like
its finality, brutality of the act and mistakenly executing of innocent person. Death
penalty by its nature has a final consequence. Once one is deadly punished everything
become final. He has no any chance to survive again. This makes its brutality higher
than other punishments. Again also mistake is unavoidable task in our life. Once we
engaged in work there are so many possibilities to commit a mistake or fault. Since
mistake can and have been made in its imposition, the innocent have been executed, and
of course, that there is no remedy for any such mistake. Due to such reasons
abolitionists condemn the applicability of death penalty.
To put all in a nutshell, capital punishment is as controversial as any issue in criminal

justice. According to the proponents of death penalty its use is justified in terms of just-
deserts; taking of the life of one who has taken another’s life is the only just retribution.
65
Ibid
66
67
Ibid
22
They support their argument by the Biblical prescriptions of the eye-for-eye …life-for-
life.68
Supporters also argue that, death penalty is necessary to deter others from committing
murder and other terrible offences and that without it there would be little reasons for
criminals to refrain from killing.69 According to those peoples, if the death penalty is not
allowed a person who commits certain crimes will leave without loosing anything.
They also argue that, capital punishment is the only way for assurance of a criminal not
to commit a murder or other crimes again. Once a person is deadly executed he/she has
no chance to commit another crime. This saves the community from crime. But in case
of life imprisonment criminals (prisoners) may commit a crime in a prison or outside
the prison. Therefore, they conclude their argument killing criminals is considered as
assuring person or community from terrible made by such individuals and it is
considered as assuring person or community from terrible made by such individuals and
it is considered as the best way to protect the peace and security of the community at
large.
The proponents again hold the view that the death penalty is an essential social symbol,
expressing the boundary of our cultural standards of decency and humanity. It is better
to set outer limits beyond which unnecessary behavior cannot be tolerated. According to
those persons, death penalty is clear and firm statement of our outrage at and repulsion
for murderer’s acts.70
The opponents of death penalty highly criticized the necessity of death penalty. They
maintain that historical evidence indicates that there is a diminution in capital crimes,
even when death penalty was rapidly and publicly used.71As I have mentioned earlier
capital punishment is the oldest method of punishing criminals, but the simple fact is
the frequency of application seems to have no relevance to the crime rate. Those groups
68
Supra note 10, 336
69
Ibid
70
Ibid
71
Ibid 337
23
of people say that if deterrence theory worked, theoretically there should be a decrease
in serious crime when death penalty is used and increase when it is forbidden.
The opponents also insist that a person sentenced to death suffers more than his victim
suffered. This excess suffering is not proper according to rule of retaliation (lex talions).
Of course, one cannot know whether the murderer on death row suffers more than his
victim suffered; however, unlike the murderer the victim deserved none of the suffering
inflicted. Becarria argued that, by killing of a murderer, we encourage, endorse, or
legitimize unlawful killing.72 According to him the physical similarities of punishment
to the crime are irrelevant.
Opponents also maintain that the publicity surrounding an execution may attract
unbalanced people to commit capital crimes rather than deter potential murderers, as the
seek the attention given to a person being executed and therefore commit crimes in
order to be on center stage themselves.73These all are some among many arguments
raised by different scholars towards capital punishment favoring and opposing its
application.
1.2.5. Religious Views towards Capital Punishment
Although death has prescribed in many sacred religious documents and historically was
practiced widely with the support of religious hierarchies, today there is no agreement
among religious fathers, or among denominations or sects with in them, on the morality
and necessity of capital punishment. During the last half of twentieth century, increasing
number of religious leaders campaigned against the death penalty. For example, Pope
John Paul II condemned capital punishment as cruel and unnecessary punishment.74
72
Supra note 30, 219
73
Supra note 10
74
Supra note 36
24
Bible centered persuasion
The issue of capital punishment is related to morality. Morality is part of society’s

belief. Society’s belief may emanate from their religion, custom, history, and some other
factors attached to cultural values.
The retentionist holds the view that the most drastic form of crime, the taking away of
human life, must deserve the most drastic form of punishment. They forwarded the
Biblical teaching that “He that smith a man, so that he die, shall be surely put to
death”.75 They also hold principle of ‘lex talianism’ as propounded clearly by the
saying “life to life” is a justification for capital punishment. Let us see the status of
capital punishment in different religious institutions.
1. Buddhism
Buddhism is a religion and philosophy founded by Siddhartha Gautama in the North

East India, during the period from the late 6th century to the early 4th century BC. 76
There is a disagreement among the followers of this religion as to whether or not
Buddhism forbids death penalty.
Chapter ten of the Dhammapada states:77
“Every one fears punishment; everyone fears death, just as you do.
Therefore, do not kill or cause to kill. Everyone fears punishment;
everyone loves life, as you do. Therefore, do not kill or cause to kill.”
The final chapter of the Dhammapada, states, “Him I call Brahmin who has put aside
weapon and renounced violence towards all creatures. He neither kills nor helps other to
kill.78Many Buddhists interpret these sentences as an injunction against supporting any
75
Bible, Exodus 21:12
76
Supra note 36
77
http://www.buddhanet.net/e-learning/buddhism/dp10.htm, retrieved on June 5, 2009
78
Ibid
25
legal measure, which might lead to the capital punishment. However, since
interpretation is personal, there is a dispute on this matter.
Historically, most states where the official religion is Buddhism have imposed death
penalty for some offences. Again also some has abolished capital punishment. For
example, Bhutan has abolished death penalty, but Thailand still retains it, although
Buddhism is the official religion of both countries.79 Therefore, I can conclude that in
Buddhism it is not clear whether death penalty is allowed or not.
2. Islam
As I discussed earlier capital punishment is allowed in Islam. The Qur’an prescribes the
death penalty for several offences/crimes including robbery, adultery, and apostasy of
Islam. Scholars of Islam hold it to be permissible but the victim or the family of the
victim has the right to pardon. That means they can determine whether the offender is to
be punished by death or not. In Islamic jurisprudence, to forbid what is not forbidden is
forbidden. Consequently, it is impossible to make a case for abolition of death penalty.80
For these peoples, abolishing death penalty is considered as violating the rules of
Qur’an.
Even though capital punishment is condoned in Islamic law or Shari’a law, there is a
great variation with in Islamic nations as to actual capital punishment.
3. Judaism
Judaism is the religion of Jews. The official teaching of Judaism approve the death
penalty in principle but the standard of proof required for the application of death
penalty is extremely stringent, and in practice, it has been abolished by various
79
Ibid
80
Supra note 77
26
Talmudic decisions, making the situation in which death sentence could be passed
effectively impossible and hypothetical.81
“It is better and more satisfactory to acquit a thousand guilty person than to put a
single innocent one to death”.82 This famous quotation, which every law student and
scholars use, is taken from the 12th century legal scholars , Maimonides. This person
argued that executing a defendant on anything less than absolute certainty would lead to
slippery slope of decreasing burden of proof. Generally, in Judaism religion capital
punishment exists in principle but the standard of proof required for its execution makes
it difficult for its existence and application. It needs absolutely certain standards of
proof.
4. Christianity
Christian position on the necessity of capital punishment is not of the same. Although
some interpret that Jesus’ teachings condemn the death penalty in Gospel of Luke and
Gospel of Matthew regarding turning the other cheek, and John 8:7 of the Bible, others
consider Romans13:3-4 to support it. There are so many branch of Christian religion
(denomination) and their position regarding capital punishment varies from one another.
a. Roman catholic church
The Roman Catholic Church traditionally accept capital punishment as per the theology
of Thomas Aquinas (who accept the death penalty as necessary deterrent and prevention
method, but not as a means of vengeance.83 In the history of Catholic Church, Pope
John II, condemned the death penalty and the Catholic Church holds that capital
punishment should be avoided unless it is the only way to defend society from the
offender in question.84 The catechism of the Catholic Church states:85
81
Ibid
82
Ibid
83
Ibid
84
Supra note 77
85
. Ibid
27
Assuming the guilty parties identity and responsibility have been fully
determined, the traditional teaching of the church, does not exclude
recourse to the death penalty, if this is the only possible way of
effectively defending human lives against unjust aggressor. If, however,
none lethal means are sufficient to defend and protect people’s safety
from aggressor, authority will limit itself to such means, as these are
more in keeping with the concrete conditions of common good and are
more inconformity to the dignity of human person. Today, in fact, as a
consequence of possibilities which the state has for effectively preventing
crime, the rendering one who has committed an offense incapable of
doing harm-without definitely taking away from him the possibility of
redeeming himself-the causes in which the execution of the offender is an
absolute necessity are very rare, if not practically non existent.
Generally, in this church, capital punishment is traditionally accepted but scholars of

this religion hold the view that if it is possible to deter criminals by means other than
capital punishment, it is better to abolish.
b. Eastern Orthodox Church
Eastern Orthodox Church is against the death penalty, believing that killing is wrong in
any circumstance.86 This denomination hold the position that killing is immoral and they
sited the Christ’s teaching to love their enemies.
c. Protestants
There are so many Protestants and they also take different position regarding capital
punishment. Several key leaders early in the protestant reformation, including Martin
Luther and John Calvin, followed the traditional reasoning in favor of capital
86
Ibid
28
punishment, and the Lutheran Church’s Augsburg Confession explicitly defend it. Some
protestant groups have cited Genesis 9:5-6, Romans 13:3-4, and Levictus 20:1-27 as the
basis for permitting the capital punishment. Those groups base their argument
provisions of the Gospel “Think not that I am come to destroy the law, or the prophets; I
am not come to destroy, but to fulfill”87 People in this category of thought believe that
the new testament is not by any means lenient to let the wrong-doer go unpunished.
Instead they claim that the church leave the matter of justice to the government in
power.
Mennonites Church of the Brethren and friends have opposed the death penalty since
their finding, and continue to be strongly opposed to it today.88 These groups, along with
other Christians condemned the use of capital punishment, and they cited Christ’s
Sermon on the Mount (Matthew 5:7) and sermon on the plain (Luke 6:17-49).89 In
These provisions Christ tells his followers to turn the other cheek and love their
enemies. This generally, which these groups believe mandates, nonviolence, including
to the death penalty.
Generally, the issue of capital punishment is subject to controversy even among

religious followers. The supporter holds the view that one must be punished by the
supreme punishment, as he has violated the supreme law, that is, the highest sacredness
of life. But those who opposes of this view hold Christ’s teaching to his followers to
turn the other cheek and love their enemies. Therefore, still capital punishment is
subject to argument.
87
Holy Bible, Matthew 5:17
88
Supra note 77
89
Ibid
29
CHAPTER TWO
INTERNATIONAL MOVEMENTS OF ABOLISHING CAPITAL

PUNISHMENT
Historically capital punishment is criticized by different writers and scholars and also
different states tried to limit the scope of application of capital punishment or abolish it
generally. Historically, criminal punishment is associated with barbaric sanctions,
including various forms of torture and mutilation. In the Middle Ages, convicted
criminals were often drawn and quartered as part of carrying out a sentence of death.
30
They might be hung up in a public place and left to die a slow and agonizing death from
starvation and exposure.90
As societies become more civilized or advanced, they eliminate many of these practices.
One of the reforms of French Revolution was a universal application of a rapid and
apparently painless form of execution.91 It was in the later part of 18th century that there
began a movement to limit the scope of capital punishment. Until that time very wide
range of offences, including common theft, were punishable by death.92
In 1784, the USA states of Pennsylvania became the first jurisdiction to restrict the
death penalty to first degree-murder. In addition, in 1846 Michigan abolished capital
punishment for all murder and other common crimes. In 1983, Venezuela became the
first country to abolish death penalty for all crimes. Portugal was the first European
country to abolish death penalty, doing so in 1867; by the early 20th century, several
other countries, including The Netherlands, Norway, Denmark, and Italy, had followed
the suit.93
However, the path to abolition in these countries was not always straight. Various
authoritarian regimes reinstated and expanded capital punishment during the 20th
century in both Europe and South America. For example, death penalty was
reintroduced in Italy by Mussolini’s Fascist regime in 1927 and in Germany was
expanded beyond all recognition by the Nazi’s, where it was ‘to be translated from an
instrument of penal policy into a tool of racial and political engineering.94
By the mid of 1960s some 25 countries have abolished the death penalty for murder,
though only half of them also had abolished it for offenses against the state or military
90
William A. Schabas, ‘Life, The Right To: The Death Penalty’, in Rhona K.M. Smith and Christian Van
den Anker,(eds), the essential of ---human rights (2 005) p. 239
91
Ibid 240
92
The New Encyclopedia Britannica (15th ed., 2005), vol.2 p.831
93
Ibid
94
Roger Hood, The Death Penalty: A World Wide Perspective, (3rd ed., 2002) p.10
31
code. Britain, for example, abolished capital punishment for murder in 1965, but
treason, piracy, and military crimes maintained capital offenses until 1998.95
During the last third of 20th centuries, the number countries abolished death penalty
increased more than threefold. These countries together with those “de facto”
abolitionists, that is, those in which capital punishment is legal but not exercised-now
represent more than half of the countries of the world.96 There are now several
international human right conventions that abolish capital punishment altogether. The
council of Europe adopted the first, in 1983 and approximately 70 states have ratified
these treaties. Another 80 states have ratified the more general international human
rights treaties, such as the International Covenant on Civil and Political rights.97 Of
course these instruments do not totally prohibit the death penalty but they impose strict
limitations.
In 1970s the United Nations General Assembly passed a resolution that called for the
restricting the number of offenses for which the death penalty could be imposed with a
view toward abolishing it altogether. Optional protocols to the European convention on
Human Rights (1989) have been established, under which countries party to the
convention and the covenant undertake not to carryout execution.98
In 1980s, the International abolition movement gained momentum and treaties proclaim
abolition were drafted and ratified. Protocol no.6 of European convention on Human
Rights and its successors, the Inter-American Additional protocol to the American
Convention on Human Rights to abolish the Death Penalty, and the United Nations
Optional protocol to the International Covenant on Civil and Political Rights Aiming at
the Abolition of Capital punishment on international norm come to existence.99
95
Supra note 102
96
Ibid
97
William A. Schabas, supra note 90, p.240
98
Supra note 92
99
History of Death Penalty; available on
www.deathpenaltyinfo.org/part-ii-history-death-penalty.html, Retrieved on 6/4/2007
32
The council of Europe (1994) and European Union (1998) established as a precondition
of membership in their organizations the requirement that prospective member countries
suspend execution and commit themselves to abolition. This decision prompted several
countries of the Central and Eastern Europe to abolish capital punishment. 100 For
example; European countries like Czech Republic, Hungary, Romania, Slovenia, and
Ukraine have now halted the capital punishment and have been admitted to the council.
There are also few professionals in the field of criminology attempt to justify capital on
scientific grounds. In the 1960s, studies commissioned by the council of Europe and the
United Nations rejected the idea that the death penalty had a valid deterrent effect. They
provide that deterrence is a difficult thing to analyze because of the difficulty in
identifying people who have been in fact been deterred by the threat of punishment.101
The international law now universally condemns the execution of capital punishment
for crimes committed while under the age of eighteen. Again several international
tribunals and constitutional courts condemn the mandatory death penalty in different
times.102
In Africa also some countries abolish the death penalty especially in 1990s, though most
of them retained. Generally, there has been movement of abolishing capital punishment
by different individuals, organizations, unions and NGOs.
2.1 The United Nations
The United Nations, which is the largest organization in the world, plays an enormous
role in abolishing and minimizing capital punishment from the world community. The
United Nations adopted the International Covenant on Civil and Political Rights
100
Supra note 92
101
102
Ibid
33
(ICCPR) in 1966, affirmed in Article 6(1) that ‘every human being has the inherent right
to life’, and provides prohibition of arbitrary deprivation of life. However, this did not
bar capital punishment. Nevertheless, the human right committee which monitors the
compliance with the covenant and provides for its authoritative interpretation, consider
that the general prohibition in Article 6(1) on arbitrary deprivation of the right to life
means that countries where capital punishment has already abolished cannot participate
in it, even indirectly, by for example, extraditing someone to another country where it
might be imposed.103
Article 6(2) of the convention provides a condition under which life may be suspended
by state for most serious crimes. It says that ‘…sentence of death may be imposed only
for the most serious crimes’. That means the United Nations under the ICCPR allows
the death sentence with some restrictions. But it encourages states to abolish the death
sentence. At this time, that is, during the enactment of the ICCPR convention,
international abolition of death penalty was not yet a realistic goal of United Nations.
The United Nations shifts its focus to limiting the scope of death penalty to protect
juveniles, pregnant women and the elderly. It was in 1971(Resolution 2857) and again
1977(Resolution 3216) the United Nations took the first step towards declaring
abolition of death penalty as a universal goal when it is called for ‘the progressive
restriction of the number of offenses for which the death sentence might be imposed,
with a view to its abolition.’104
In December 1989, the UN General Assembly also adopted the second optional protocol
to the ICCPR. Article 1 of this protocol states that, “no one with the jurisdiction of the
state party to the present optional protocol shall be executed”. Clause 2 of this Article
establishes the important principle that ‘the death penalty shall not be re-established in
states that have abolished it.’105 This protocol provides total abolition of death penalty
103
Ibid
104
Roger Hood, supra note 94, p.15
105
Second Optional Protocol to the International Covenant on Civil and Political Rights
of 19966, 1989
34
but like sixth protocol of the European Convention on Human Rights (ECHR), allows
states parties to retain the death penalty in time of the war if they make a reservation.
However, unlike the sixth protocol of the ECHR, the reservation can only be made at
the time of ratification or accession.106 Any state, which is a party to the International
Covenant on Civil and Political Right, can become a party to the protocol. Today (in
2009), 66 of the 161 states in a position to do so (i.e. states party to the ICCPR) have
ratified the second optional protocol to the International covenant on Civil and Political
Rights.107
In 1997, the UN High Commission for Human Rights approved a resolution stating that
the “abolition of death penalty contributes to the enhancement of human dignity and to
the progressive development of human rights”. This resolution was strengthened in
subsequent resolutions by a call for restriction of offenses for which the death penalty
can be imposed and for a moratorium on all executions, leading eventually to
abolition.108Because of the tendency to de facto abolition, there has been strong call with
in international organizations for a moratorium on capital punishment in states where it
has not been abolished. This is because in most countries, de facto abolition or
imposition of a moratorium is the first step in an evitable and irreversible process
towards total abolition.109
Challenging the death penalty is not seen solely as an internal matter among nations.
The United Nations office of the High Commissioner for Human Rights requests states
that have received a request for extradition on a capital charge to reserve explicitly the
106
. Roger Hood, supra note 94, p.15
107
.http://www.fiacat.org/en/IMG/pdf/FIACAT_News_May_2009_Supplement_VAnglais
_1.pdf, Retrieved on 6/4/2007
108
. Vaibhav Goel, Capital punishment: A human right examination case study and
jurisprudence,
F:/capital punishment/ capital punishment A human right examination
case study and jurisprudence.htm, (retrieved on Feb 4, 2009)
109
. William A. Schabas, supra note 90 , p.241
35
right to refuse extradition on the absence of effective assurances from relevant
authorities of the requesting state that the death penalty will not be carried out and calls
upon states to provide such effective assurances if requested to do so, and to respect
them.110 This generally provided on Article 10 of Human Right Resolution 2005/59. The
Charter of Fundamental Rights of European Union, which is adopted in December
2000, also declared that it violates fundamental rights to extradite an individual to a
country where capital punishment is threatened.111
Today many European countries, along with Canada, Mexico and South Africa resisted
extraditing persons to countries like USA or other retentionists (may be Ethiopia) unless
there is assurances that death penalty will not be sought.112
In April 1999, the United Nations Commissions passed the resolution supporting
worldwide Moratorium on Execution. The resolution calls on countries, which have not
abolished the death penalty to restrict its use of death sentence, including not imposing
on juvenile offenders and limiting the number of offences for which it can be imposed.
Ten countries, including US, China, Pakis tan, Rwanda, and Sudan, voted against the
resolution.113 Since the 1997, the United Nations Commission on Human Rights has
passed the resolutions calling on countries that have not abolished the death penalty to
establish a moratorium on execution annually.114
The United Nation introduced a resolution during the General Assembly’s 62nd session
in 2007 calling for a universal ban. The approval of a draft resolution by the Assembly’s
Third Committee, which deals with human right issues, voted 99 to 52, with 33
abstentions, in favor of the resolutions on November 15, 2007 and was put to a vote in
110
. Office of the Human Right Commissioner for Human Rights: Human Right
Resolution 2005/95
111
112
Vaibhav Goel, supra note 108
113
Supra note 99
114
Ibid
36
the Assembly on December 18.115Again in2008, a large majority of states from all
regions adopted a second resolution calling for a moratorium on the use of death penalty
in the UN General Assembly (Third Committee) on November 20. 105 countries voted
in favor of the draft resolution, 48 voted against and 31 abstained.116
2.2 European Movement
European Union and European Council also play a great role in abolishing capital
punishment. The European Union has made abolition of capital punishment a
precondition for membership, and in 1998 it embarked on a diplomatic policy to
persuade other nations of Guidelines to European Union policy Towards Third
Countries on the Death Penalty. This document stated that the objective of European
Union is to ‘work towards the abolition of death penalty as a strongly held policy view
agreed by all EU member states.117
The parliamentary Assembly of the Council of Europe opposed the death penalty in its
resolution 1044 of 1994, and recommendation 1246 of 1994, which is re affirmed by
resolution 1097(1996) and again by resolution 1187(1999) on Europe, A Death Penalty
Free Continent. The parliamentary Assembly called up on all parliaments in the world,
which have not yet abolished the death penalty to do so promptly, following the
example of the majority of the Council of Europe states.118
The Parliamentary Assembly has strongly declared that the death penalty has no
legitimate place in the penal systems of modern civilized societies. In addition, to that
its application may well be compared with torture and be seen as inhuman and
115
http://www.acronym.org.uk/dd/dd87/87unfc.htm, Retrieved on 6/4/2007
116
ibid
117
Council of European Union Guidelines to EU policy towards Third Countries on the Death Penalty,
Brussels, 3June 1998
118
37
degrading punishment with in the meaning of Art.3 of the ECHR.119 Due to this reason
in 1994 the Assembly made it a precondition that any country that wished to become a
member of the Council of Europe to comply with sixth protocol to the ECHR, that is, to
abolish the death sentence. Non-admission of the retentionist country to the Council of
Europe has a significant role in the abolition of capital punishment, especially in
Western Europe. This policy had an enormous impact on the countries of the former
Soviet bloc in Eastern Europe, all of which wished to join the Council of Europe, as
well as on several states of the former Soviet Union, including Ukraine and the Russian
Federation.120
While aiming for the universal ban (abolition) of the death penalty the EU seeks, a
moratorium in all countries, which retain capital punishment, as first step towards this
end.121 The EU and Council of Europe are willing to accept a moratorium as an interim
measure. Thus, while Russia is a member of council of Europe, and practices the death
penalty in law, it not made public use of it since becoming a member of the council.
Other states, while having abolished de jure, the death penalty in times of peace; and de
facto, in all circumstances, have not ratified protocol no.13 yet and therefore have no
international obligation to refrain from using the death penalty in time of war or
imminent threat of war.122
Today, Europe is a continent free of death penalty in practice, all states but Russia,
which has entered a moratorium, having ratified the sixth protocol to the European
Convention on Human Rights, with the sole exception of Belarus, which is not still a
member of Europe. Belarus is the last country in Europe and the former Soviet Union
that still carrying out the execution.123 In addition to all these, as I have already
mentioned, the EU has also banned detainee transfers in cases where the receiving party
may seek the death penalty.
119
ibid
120
ibid 106
121
F:/statement of the European Union on the Death Penalty.htm
122
Supra note 115
123
ibid
38
Recently the EU, in its meeting of permanent council held in 19 April 2007, reiterates
its long standing and active opposition to the death penalty in all circumstances. As
declared on many occasions and recently on the Third World Congress against the
Death Penalty in Paris in February 2007 and at the 4th session of the Human Right
Council in March 2007, consider that the abolition of death penalty contributes to the
enhancement of human dignity and progressive development of human rights.124
The EU is generally aware of the suffering of the victims of violent crime and their
families; they strongly believe that capital punishment tends to further a casual attitude
to the right to life. According to EU death penalty does not serve as effective deterrent,
and miscarriage of justice, which is inevitable in any legal system, would be
irreversible.125 In countries where death penalty has not been abolished the EU seeks
execution to be in accordance with those generally accepted safeguards.126 These all are
the movements European Union to make free death penalty continent globe.
2.3 Inter-American State Organization Movement
The Inter-American system for protection of Human Rights followed the abolitionist
vanguard and organization of American states-of which US is a member-adopted in
1990. Protocol to the American convention on Human Rights to abolish the death
Penalty, adopted by the General Assembly of the organization of America in 1990,
provide for the total abolition of the death penalty. However, allows states parties to
retain the death penalty in wartime if they make a reservation to that effect at the time of
ratifying or acceding the protocol. Any state party to the American convention on
Human Rights can become a party to protocol.
Currently eight states have ratified this protocol.127 Article one of this protocol calls
upon states to abolish from the use of death penalty, but does not impose obligation to
124
Supra note 121
125
ibid
126
ibid
127
Vaibhav Goel, supra note 108
39
erase it from the statute book. Thus, de facto abolitionist countries may also ratify the
protocol.It provide under Article 4(3) of the convention that those countries that have
already abolished the death penalty may not reinstate it.
2.4 The Abolition Movement in Africa
Comparing with other continents, like Europe and America the movement of abolishing
capital punishment in Africa is a recent issue. Many problems hinder the movement of
capital punishment in Africa. For instance international human rights standards have
had only a limited impact on most African states particularly because of the general
perception of international law in African states as a threat to sovereignty.
Again also the discrepancies between international law and domestic law with regard to
the death penalty are very apparent and disturbing in some African countries. For
example in Sierra Leone those charged with the most heinous crimes by national courts
can be sentenced to death while in similar cases the charged persons cannot be
sentenced to death under Special Court of Sierra Leone (SCSL) are limited to
imprisonment.128 however the national court of this country can impose death penalty, as
it is retained in their respective penal statute.
Furthermore, the death penalty debate in another regions fuelled by the use of new
technologies, particularly DNA testing, to show that innocent persons are undeniably
sentenced to death. But these new technologies are new to Africa. These all mentioned
above hiders the abolition movement in Africa.
The African commission position on the death penalty remains unclear. The commission
has not pronounced itself on the death penalty as such. This could mainly be attributed
128
Lilian Manka Chenwi, Towards Abolishment of the Death Penalty in Africa, available
on, http://upetd.up.ac.za/thesis/available/etd-10062005-151306/unrestricted/00front.pdf,
retrieved on 6/4/2009
40
to the fact that it has not been presented with a direct challenge to the death penalty.
However there are some commissioner openly stated their opposition to death penalty,
or that they favor abolition. For instance the late commissioner Beye personally
opposed the death penalty at the commissioner’s 12th session (1992).129 Recently also,
during the commission’s 36th ordinary session (2004), the death penalty, appearing for
the first time on the commissions agenda. Commission Chirwa initiated debate about
abolition of death penalty in Africa, and urged the commission to take a clear position
on the subject. Accordingly, the death penalty has been included on the commission’s
agenda for subsequent sessions. 130
Furthermore the African commission, in recent decision Interights et al (on behalf of

Bosch) V Botswana, acknowledges the development of international law and the trend
towards the abolition of death penalty. The commission further conceded its support of
this trend by its adoption of 1999 Resolution, and encouraged all states party to the
African charter on Humans and Peoples’ Rights (African Charter) to take all measures
to refrain from exercising death penalty.131
In 1987, the then Justice of Zimbabwe told an International Conference on the death
penalty that all African countries retain the death penalty, except two small countries
Seychelles (for ordinary crimes only, 1979) and Cape Verde (1981)- which had done
away with capital punishment and only five abolitionist de facto.132 However up to the
end of 2007 a remarkable transformation towards the abolitionist position among
African countries comes to be seen.
Africa is one of the death penalty regions in the world, as most African states still retain
the death penalty in their statutes. According to Amnesty Internationals report in 2007,
14 countries in Africa are abolitionist for all crimes while 18 are abolitionist in practice.
Out of 60 countries ratified the optional protocol to the International Covenant on Civil
129
ibid
130
ibid
131
ibid
132
41
and Political Rights (ICCPR) seven are African countries.133These all shows us that
Africa is recently moving to abolition of capital punishment.
2.5 Abolition Movement in Ethiopia
Capital punishment exists in Ethiopian laws even before the Fetha Negest. Our 1957
penal code also encompasses many provisions that inflict death penalty. When the
military government of Derg come to power additional laws also promulgated to impose
death sentence for certain criminal offenses in addition to that of 1957. The new FDRE
criminal code also encompasses over thirty-two provisions entailing death penalty. This
shows us that a reluctant movement of government to abolish capital punishment.
To the best of writers’ research there is no organized public or private movement of

abolishing capital punishment In Ethiopia. Death penalty, which in itself can only
arguably scape the accusation of abolitionists of being “cruel, inhuman and degrading”
and contrary to the right to life” did not receive a lot of attention among legal scholars or
human rights activists in Ethiopia so far. However this doesn’t mean that in the long run
innovative human right lawyers don’t challenge its status in Ethiopia.
However, even though the federal and regional competent courts of jurisdictions
pronounce the death penalty for serious offenses, its actual application is not common
these days compared to the previous times of our history. Even though death penalty is
imposed on many peoples in Ethiopia, its actual execution is rare. As provided on the
FDRE combined report to the African Commission on Human and
Peoples’ Rights on implementation of the African Charter on human
and peoples rights, during the last 15 years, only three death penalties
have actually been carried out within the State.134 This situation is due
to the strict and numerous preconditions set for the imposition of the
133
http://www.fiacat.org/en/IMG/pdf/FIACAT_News_May_2009_Supplement_VAnglais_1.pdf.
134
http://www.achpr.org/english/state_reports/Ethiopia/Initial%20Report%20_Ethiopia.pdf, retrieved on
June 10, 2009
42
penalty and the extreme reluctance of courts to impose such a penalty
as well as the reluctance of the government to carryout the same.
This is very few comparing to actual execution in previous governments. This
situation is due to the strict and numerous preconditions set for the
imposition of the penalty and the extreme reluctance of courts to
impose such a penalty as well as the reluctance of the government to
carryout the same. We can take this as a movement of abolition capital
punishment.
Again also when we look Art 116 of 1957 penal code it provides
shooting and hanging publicly as mode executing capital punishment,
which is considered as cruel and inhuman treatment or punishment.
But when we look the recent FDRE criminal code it abolishes such
inhuman and cruel mode of punishment. We can take this also as one
movement.
However, one thing we should not forget is capital punishment will be replaced by a
more humane type of punishment in our country no matter how long it takes. Therefore,
to put all in a nutshell though there no organized movement of abolition of capital
punishment the few number of actual execution the reformation of cruel and inhuman
modes of execution may be considered as a movement to abolish capital punishment in
Ethiopia.
2.6Capital Punishment in Ethiopian Context
43
Capital punishment is a subject to be studied, commented and examined in different
perspectives. Capital punishment has been practiced in Ethiopia for quite a longtime.
One may say that, it is as old as our legal history. Capital punishment has been in
Ethiopian legal tradition without facing any challenge. Until the very recently it has
been an accepted form of punishment by the Ethiopian society. In the Ethiopian legal
history, capital punishment is not this much studied, criticized, evaluated and given
remarks. There are also no enough written materials on the Ethiopian capital
punishment.
Legal literatures in the Ethiopian situation are not abundantly available. As opposed to
European and American states, one is not in a position to go much if he/she wants to
explore the historical sources of capital punishment in Ethiopia. This is due to the
known reason that judgments were not systematically recorded and even if we find
scanty records they are not available in the modern libraries of higher education centers.
They may be available in museums, historical churches and other historical places.
Generally speaking, it is very difficult to trace the historical genesis of capital

punishment accurately in the Ethiopian context. But for the purpose of this paper I will
try to see capital punishment in retrospect by dividing Ethiopian penological history
into six periods. These periods may be divided as follows.
1. The period before Fetha Negest
2. The period from Fetha Negest to the enactment of the Ethiopian first modern penal
code of 1930
3. The period from 1930 to the 1957 in which the other more sophisticated penal code
appeared
4. The period from 1957 to the period of 1974
5. The period from 1974 to the period of 2004
6. The period after the New Federal Democratic Republic of Ethiopian criminal code of
2004 to present.
44
Each of these period as characterized by different laws maintains quite unique positions
as regards to capital punishment and capital offenses. Let as try to see each of them
separately.
2.6.1The period before Fetha Negest
This period is known by its absence of written and organized laws. The absence of
ample material before the Fetha Negest makes difficulty to study more about the capital
punishment before that time. I do not have the believe that capital punishment
originated after Fetha Negest. This can be inferred from the statement “The long and
grant history of our country demonstrates that our people have always both
administered and lived according to the law. Our people were first ruled by Mosaic
Law.”135 Mosaic Law was used for instruction in Ethiopian Church before Fetha Negest
and even after that.136 Mosaic law provides capital punishment for various crimes,
which indicates the principle of ‘an eye for an eye’ as I have mentioned earlier in
chapter one. But one is not certain whether Mosaic Law ruled the whole Ethiopian,
because the previous Ethiopia was not exactly situated at the present one. The
jurisdictional boundary of present Ethiopia is determined later. These all make
difficulty to study capital punishment in Ethiopia before 15th century.
2.6.2 The period from Fetha Negest to 1930 Ethiopian penal code
Fetha Negest, the first integrated legal code, was translated from Arabic in the Mid-
fifteenth century.137 It is a very interesting legal compilation. Although, there is a
135
Abba Paulos Tzaudu, The Fetha Negest, 1968, p.5
136
Aberra Jembere, An Introduction to Legal History of Ethiopia:1434-1974, (1999), p.
38
137
Ethiopia Crime and Punishment: available on
www.photius.com/countries/ethiopia/national_security/ethiopia-
national_security_crime_andpunishment.htm
45
popular believe that Fetha Negest was introduced in Ethiopia in the Mid-fifteenth
century during the, reign of Zar’a Ya’qob, the exact date when Fetha Negest become an
integral part of Ethiopian legal system is not yet definitely established, or the time when
it started to be cited as an authority in the process of adjudication of cases by courts was
not yet certainly known138. This is due to lack of recorded evidence on courts decisions
and judgments.
The Fetha Negest provides the death penalty for various criminal offenses and it applied
on different groups of peoples who violate the Law of Fetha Negest. The Ethiopian
historians cited a case in which Emperor Zar’a Ya’qob himself pass a death sentence in
accordance with the provisions of the Fetha Negest on his own son, who had been found
to have killed one of his servants and his daughter for anti-Christian practices prohibited
by the Fetha Negest.139
Fetha Negest was applied only to Christians, Muslims who become subject to Ethiopian
rule through conquest continued to be judged in their own courts according to shari’a
law.140 Fetha Negest was very much influenced by the religious or nearer to the fact by
the teaching of Christian ethics as propounded in the Old and New Testament. For these
main reasons it seems Fetha Negest provides death sentence for various violations of
religious ethics.
There are so many provisions of Fetha Negest that can provide the death penalty for
violations or religious ethics. For example, Chapter XLVI section II of the Fetha Negest
states that a prophet who preaches against the divine Lord must be slain. Again, in the
same provision it provides death penalty for a person who gives sacrifice to what were
termed as “strange gods”. One who blasphemes God was also punishable to death; even
one that has eating pagan sacrifices and honoring ‘idols’ was liable to capital
138
Aberra Jembere, supra note 135, p.194
139
ibid
140
supra note 137
46
punishment.141 Either man or woman who is found to be magician or a wizard is subject
to death sentence. They shall be stoned, since they are impious.142
Homicide is also capital offense impose death sentence on the offender. Chapter XLVII
of the Fetha Negest retained the nature of homicide as a capital crime deserving capital
punishment. The mode of punishment suffered for committing homicide was carried out
by killing the body and [thus] separating the soul [from the body] by the means of
corporal punishment carried out by the temporal judge, so that the temporal law may be
fulfilled.143
In the Fetha Negest, occasionally attempted murder was capital offense punished by
death. This shown by the provision that; “the servant who attempted to kill their master
must be thrown into the fire”, and also servants who heard the cries of their master
while he was being killed, or knew and certainly aware of what was happening to him,
but didn’t render any help are punished by death.144 In the Fetha Negest criminal
majority for homicide was set at the age of seven, which is lower than the present
criminal majority age.
Death also provided for those who shelter murderers and generally capital punishment
was imposed for the above crimes under the Fetha Negest on the principles of both
deterrence and retributive theory. This can be inferred from the fact that punishment was
meant, “to serve a lesson to others who desire to be involved in this deed, and so that
relatives of persons murdered through their treachery may be pleased.145
Generally, like in ancient Europe, in Fetha Negest, many crimes that are today
considered as petty offenses like incest, kidnapping, a betrothered girl, a slave who
dares to carryout his mistress, theft, arson, and others were punishable by death. The
modes of execution were rather many and cruel. Stoning, throwing in fire alive, and
141
Abba Paulos Tzaudu, supra note 135, Chapter XLVI sec II
142
ibid Chapter XLVI sec III p. 287
143
ibid 289
144
ibid 295
145
ibid
47
others were done for horrifying and degrading human dignity. Fetha Negest and
customary laws remained the basis of criminal procedure until 1930.146
2.6.3. Death Penalty under the 1930 Penal Code of Ethiopia
The 1930 penal code of Ethiopia, which is the milestone in the Ethiopian legal history,
was the first in its kind in trying to comprehensively covering crime and their
punishment. This penal code, which was primitive in its application, was strove for
modernity in its application.147 It is reckoned as part of old laws because it is a legal
code drown up before the constitution of 1931, and it reflects the norms and values of
the old absolutist monarchy.148
One main characteristic that distinguishes the 1930 penal code as compared to Fetha
Negest is, capital punishment was centralized. To impose the death penalty the Emperor
should first confirm it.149This code didn’t specify the capital punishment was to be
carried out. The 1930 penal code defines death penalty as follows;
The sentence of death means having punished by punishment of death by the

instrument, and at the place prepared for this purpose, after the passing of the
sentence of death, either for taking life or some other crime. This sentence of
shall not be passed by any other court but the kings court.150
The above provision doesn’t specify explicitly what sort of instruments to employ in
order to execute the condemned man. It seems that, the above provision gives
discretionary power to the people concerned to carry out the judgment. But it is
believed that most cruel method of punishment, which was exercised during Fetha
Negest, like stoning to death, throwing the condemned person into burning fire, or to
employ the sword in executing the convict at public were common.
146
supra note 137
147
ibid
148
Aberra Jembere, supra note 135, p.195
149
Penal code of the Empire of Ethiopia, 1930
150
ibid
48
Death sentence was introduced in 1930 penal code of Ethiopia in situations like:
 Homicide151
 Giving false evidence (if the taker of life is sentenced to death and put to
death because of false evidence given against him, the man who caused his
death by giving false evidence shall be sentenced to death.152
 Crime committed against the Emperor and the Royal family and the
government.153
 Criminals who start war in the country and cause it to be disturbed and
ravages.154
There are also other offenses/crimes that cause the death penalty other than mentioned
above in the 1930 penal code.
The code didn’t make homicide the state affair. Rather it was left to the victims’ family
to determine the death of the offender. As it was clearly stipulated in Article 408 of the
1930 penal code, the state didn’t bother to prosecute the offender if the families of the
victim agree to take blood money from that of the murderer or his family. This can be
done even after sentences of death has been passed but before execution takes place.155
Generally, comparing with Fetha Negest, method of executing the offender in this penal
code is somehow humane. Those burning alive, stoning to death or use of sword was
not exercised after the coming of this code. The new code abolished mutilation but
retained death penalty and permitted flogging.156
2.6.4.The period from 1957 to the period of 1974
151
ibid, Art 404, 405, 410, 411
152
ibid, Art 366
153
ibid, Art 171-172
154
ibid, 175, 177, 179
155
ibid, 408
156
supra note 137
49
The 1957 penal code of Ethiopia also come up with the capital punishment. It provided
various punishments for various crimes. Having retained capital punishment, it goes on
to provide specific instructions. The punishment is to be executed by hanging, or on a
member of the armed forces, by shooting. However, executions are to be carried out
without any cruelty, mutilation or other physical sufferings.
Jean Graven, the drafter of 1957 penal code of Ethiopia, provide the reason why
Ethiopia retained death penalty and its necessity for homicide and write as follows;
“In Ethiopian context it would be in particular have been an inconceivable
mistake, and even an impossibility, to abolish the death penalty at the present
time. It is not only necessary for social protection, but is based on thevery
deepest feeling of the Ethiopian people for justice and for atonement. The
destruction of life, the highest achievement of the creator, can only be paid for
by the sacrifice of the life of the guilty person. As in the Christian European
system of the Middle Ages, death is always the necessary condition for the
pardon and salvation of the sinner, and also for the expiation for the evil which
he has committed, it is accepted and approved by all, and in the first place by
the criminal who has deserved it, and is carried out in a dignified atmosphere
quite different from that of our former executions with the ax or guillotine.”157
Under the penal code of 1957, many crimes that cause death penalty like, murder
(Art.522), robbery (671), crimes against the emperor and others. In 1957 penal code,
even criminal attempts may cause the death sentence. For example outrages against the
Emperor of the Imperial family (248), outrages against the dynasty (Art.249), outrages
against the constitution and constitutional authorities (Art.238) and uprising and civil
war (240) are attempts that may cause death sentence in 1957 penal code of Ethiopia.
157
Fasil Nahom, “Punishment and Society: A development approach”, Journal of
Ethiopian Law; vol.12 (1982) p. 129
50
Generally, in 1957 penal code death penalty was maintained but with all necessary
protection as to the instance of application and the condition of administration. It
applies in case of grave offense, such as homicide, genocide, treason, armed robbery
and so on.
2.6.5.The period from 1974 to the period of 2004
This is a time when the 1957 penal code was amended by special penal code of the
1974(proclamation no.8/1974) by increasing the sanction of certain types of crime. A
November 1974 decree introduced martial law, which set up a system of military
tribunals empowered to impose the death penalty or long prison terms for a wide range
of political offenses. The decree applied the law retroactively to the old regimes
officials who had been accused of responsibility of famine deaths, corruption, and
misadministration and who had been held without formal charges since earlier in the
year.158
In July 1976, the then government amended the penal code to impose the death penalty
for “anti-revolutionary activities” and economic crimes like hoarding, overcharging, and
interfering with consumer commodities.159
In 1981 the amended special penal code replaced the special penal code. This penal
code included offenses against the government and the head of state, such as crimes
against the states’ independence and territorial integrity, armed uprising, and
commission of “counter-revolutionary” acts, which is also available in the earlier
special penal code, breach of trust by public officials and economic offenses which
result the death penalty.160
The military penal code was applied until the Transitional Government come to power
and returned back the 1957 penal code in 1988 E.C. Under the FDRE government
158
supra note 137
159
ibid
160
ibid
51
Ethiopia regulated the society mostly by the 1957 penal code until the coming of the
2004 Federal Democratic Republic of Ethiopian criminal code.
2.6.6.The period after the FDRE criminal code
The FDRE criminal code, which is enacted in 2004, has replaced the 1957 penal code.
The new code tries to properly address crimes born in advances of technology and the
complexity of modern life. The 1957 penal code was needed for amended because of its
failure to properly address new crimes like hijacking of aircraft, computer crimes and
money laundering. The 1957 penal code of Ethiopia give little attention as to crimes
related to corruption and drugs. In order to cover all these backlogs the FDRE come up
with the new modern criminal code.
Like the 1957 penal code, the FDRE criminal code retained death penalty for crimes
that have grave nature and if they have serious danger to the public health and life.
Under the FDRE criminal code, there are over thirty-two situations under which one
may possibly be subjected to capital punishment. These crimes are scattered in the code,
mainly in four book of the FDRE criminal code. Twenty six of the provisions under
which one possibly punished by death are found under book three,161 two under book
four,162one under book five,163 and the rest three under book six.164
Book three is all about offenses against the state or against national or international
interests. Book four deals about crimes against public interest or the community. Book
five is about crimes against the individuals and the family, and book six is against the
161
Federal Criminal Code of Ethiopia, criminal code, Arts 238, 240, 241, 246, 247, 248,
251, 252, 258, 269, 270, 271, 272, 273, 275, 276, 278, 288, 298, 299, 303, 311, 312, 313,
316, and 317
162
ibid, Arts 512 and 514
163
ibid Art 539
164
ibid Arts 671, 672, and 673
52
property. Each book is divided into several titles, chapters, sections, paragraphs and
articles.
The following are articles that entail death penalty under the Federal Democratic
Republic of Ethiopian criminal code. Under book three of the code there are 26 articles
entailing death penalty these are
1.Art.238 outrages against the constitution or constitutional order
2.Art.240 Armed Rising of Civil war
3.Art. 241 Attack on the political or territorial integrity of the state
4.Art.246 Attack on the independence of the state
5.Art.247 Impairment the Defensive power of the state
6.Art.248 High Treason
7.Art.251 Collaboration with the enemy
8.Art.252 Espionage
9.Art.258 Aggravation to the crime
10. Art.269 Genocide
11. Art.270 war crimes against civilian population
12. Art.271 war crimes against wounded, sick or shipwrecked persons or medical
services
13. Art.272 war crimes against the prisoners and interned persons
14. Art.273 pillage, piracy, and looting
15. Art.275 Dereliction of duty towards the enemy
16. Art. 276 Use of illegal means of combat
17. Art. 278 Franc Tireurs
18. Art. 288 Desertion
19. Art. 298 Insubordination
20. Art. 299 Mutiny
21. Art. 303 Breaches of Guard duty
22. Art. 311 Demoralization of the defense force
23. Art. 312 Cowardice
24. Art. 313 Capitulation
53
25. Art. 316 Abandonment of a wounded or killed member
26. Art. 327 Sabotage
Under book four of the code the following two provisions entail death penalty.
1.Art 512 Grave cases of crimes against freedom and security of communication
2.Art 514 spreading human disease
Under book five Article 539, which talks about aggravated homicide, entail death
sentence, and
Under book six the following offenses are punishable by death,
1.Art 671 Aggravated robbery
2.Art 672 looting
3.Art 673 piracy
Generally, there are around thirty-two provisions that can impose death penalty for
specified crimes in the FDRE criminal code. This all shows us that the general
perception of international human right is not taken into consideration. Despite the
growing international human rights in general and standards on the abolition or
limitation of death penalty in particular, having this much provision entailing death
penalty shows us our misperception of international human rights.
54
CHAPTER THREE
THE COMATIBILITY OF DEATH PENALTY WITH HUMAN

RIGHTS AND ETHIOPIAN CRIMINAL JUSTICE
This is the final part of the thesis and under this chapter the compatibility and necessity
of death penalty with human right laws is briefly discussed in detail and again its
necessity and compatibility with the objective of Ethiopian criminal justice is generally
analyzed. At the end the writer wounds up with the conclusion whether or not the
principle of capital punishment contradicts with human rights and with the purpose of
criminal justice.
3.1 Human Right and Power of State to Punish
Human rights are rights that are belong to an individual as a consequence of being
human. They refer to a wide continuum of values that are universal in character and in
some sense equally claimed for all human beings.165Human person possesses rights
because of the very fact that he is a person, a whole, a master of himself and his acts,
and which consequently is not merely a means to an end, but an end, which must be
treated as such. The state and the law exist for individual living in a society. The state
and the law protect the individual against being treated as a mere means, and support
the establishment of the conditions for his /her comprehensive development.166
165
The New Encyclopedia Britannica, (15th ed., 2005), vol.6, p.137
166
Solomon Abadi, Materials for the Study of Constitutional Law II (Human Right Focus), 2002,
unpublished Mekelle University Library
55
Human rights are natural rights. This right do not emanate from the government will or
from individual convention. Human rights are protections to which all human beings are
entitled because of their humanity and not because of their status or individual merit.
The states are subordinated to protection of human rights and this may be realized only
in the limits of respect for fundamental rights and freedoms. With the introduction of
this model, in spite of the fact that human rights law was created, among other things, to
protect individual from the power of state, the state increasingly becomes regarded as a
guardian of human rights.167 The protection and promotion of human right is directly
related to the power and duties of the state/government. The promotion of human right
precedes the protection of human rights. If some of the declaration (UDHR) embodied
in the national constitution, it is classified as promotion of human rights. On the other
hand, acceding, ratifying and enforcing the rights convention like ICCPR, ICESCR and
others equivalent to protection of the rights.168
The states have a duty to protect human rights. G. Tunkin, wrote on his book ‘Theory of
International Law’ that;169
1. All states have the duty to respect the fundamental rights and freedoms of all
persons with in their territory;
2. States have the duty not to permit the discrimination by reasons of sex, race,
religion or language and;
3. States have a duty to promote universal respect for human rights and to
cooperate with each other to achieve this objective.
In democracy a government does not grant rights and freedoms but is created to protect
those rights and freedoms that every individual possesses by virtue of their existence.
According to John Locke the power of state is limited and people may legitimately
overthrow a government when it has breached its trust. The government has a duty to
respect, preserve, fulfill and educate human rights. Here this paper only emphasize in
167
Marek Piechowiak, ‘What are Human Rights,’ (1997) p.9,
168
ibid
169
Makolm N.Shaw, International Law (5th ed., 2006) p.250
56
respecting and preserving of human rights. A government has a duty to take a legal
action on individuals or groups or institutions that violate or abuse of human rights.
According to the believe of the 17th and 18th centuries political philosophers like Locke,
the individual human being is the most precious value in human society. The moral
justification for the existence of government is to liberate the individual from the
economic, political, religious and moral restrictions. This is possible by instituting
government whose power is limited.170 A government that has come to power this way is
only an agent, a mere instrument for implementing peoples will, having no independent
and inherent power. The principle is that human being does not exist for the benefit of
the state, but the state exists for the benefit of the human beings. Therefore, the state is
there only to serve the best interest of the people because the people for the people bring
it there. Government is important for the protection of human rights. Human rights
cannot be preserved without the government but the problem arises when the
government itself is inherently hostile to those rights.
As mentioned above states have rights and duties. In order to perform its duties
efficiently the government (the state) backed by enormous discretion. However, the
rights and duties of the state as regards to the overall protection of the community
clearly conflicts in many instances with the individual rights of citizens. This is the
reason why limiting the power of state is needed.
The state has the power and duty to punish criminals. All forms of the punishment
applied by the government with one purpose or another deprive the individual some
right. Nevertheless, it is still the will of the people themselves that criminals must be
punished because they have endangered public security. Not punishing such individuals
may develop the stage of barbarism.
The right of individual is most vulnerable to violations when the person is accused of
crime. The mere fact that a person is prosecuted doesn’t mean that nature has withdrawn
170
supra note 167, pp.9-10
57
all the rights that has bestowed on him. Experience over a long period of time in
different places evidenced that one of the situation in which human right violation is at
its peak starts at the moment, the suspect is arrested. Responding to this problem right
of accused was introduced, i.e., the right to be presumed innocent until proven guilty. As
a successor of the rights of the accused the most fundamental human right the right not
to be subjected to inhuman and degrading punishment comes. The Federal Democratic
Republic Of Ethiopian constitution, like Universal Declaration of Human rights and
other human right instruments provides prohibition of inhuman treatment and inhuman
punishment.
The infliction of punishment should be made primarily with the affirmation of man and
his freedom, namely, his value as man. It has to be made on the presumption that unlike
animals man has to take responsibility for his deeds therefore he has to take punishment
that his wrongful act incurs. Punishment is only applied on human beings because they
can take a lesson from suffering the pain. However, no matter punishment must never
be so cruel as to cause suffering more than necessary to cause the reformation of the
criminal and the method of punishment should be selected taking into account the
human feeling of the criminals. The method should not be so degrading as to treat the
criminal as object.171 Many international human right documents to this situation for this
has been striking importance. Article 7 the ICCPR, and Article 5 of UDHR, Article 5 of
African Charter on Peoples Rights (ACHPR) are few among them to mention.
The inherent dignity and of the equal and inalienable rights of all member of the family
is the foundation of freedom, justice, and peace in the world.172 Therefore, any
individual or organized institution should not violate inalienable human rights.
However, in times of public emergency that threats the life of the nation and the
existence of the states which is officially proclaimed, states may have temporarily limits
human rights save some few rights which are inalienable all times like the right lo life,
protection against inhuman and cruel punishment, etc.
171
Cliff Roberson, Criminal Procedure Today: Issues and cases, (2nd ed., 2003) p.440
172
Preamble of Universal Declaration of Human Rights, Dec. 10, 1948
58
Generally, states have a legal responsibility to prevent human rights violations and to
use the means at their disposal to investigate and punish such violations. Where this did
not happen, the state concerned had failed in its duty to ensure the full and free exercise
of these rights these rights with in its jurisdiction. 173 But the issue is how to find
reasonable balance between the duty of state to provide security for its citizens and the
right of individuals to be protected from the oppression by states.
3.2.Death Penalty and Human Rights
Under this topic I am going to discuss whether or not imposition of death penalty on an
individual for committing certain particularly heinous crimes against society violates
that individual’s human right. All major international human rights declarations,
conventions and covenants stipulate that every one has the right to life, liberty and
security of person. The debate about death penalty does not usually employ the
terminology of human rights. Nevertheless, the use of death penalty intersects with
international law and is challenged by it.174
The reasons why countries abolished death penalty in increasing number vary from one
country to other. For one state, it was broader understanding of human rights. For
instance, Spain abandoned the last vestige of death penalty in 1995 stating that “… the
death penalty has no place in the general penal system of an advanced civilized
society…”. Similarly, Switzerland abolished death penalty because it constituted “a
flagrant violation of right to life and dignity”.175 Of course, those countries who retained
the death penalty in their national laws have their own justification and their
justification also vary from one state to other state. In places like Soviet Union it might
be preventing embezzlement, in Singapore it might be preventing drug traffic, in
Nigeria it might be preventing armed robbery, in United States it might be deterring
173
supra note 169 p.362
174
supra note 108
175
ibid
59
murder, in Guatemala it might be preventing revolution and in countries like Ethiopia it
might be preventing counter-revolution.176 Generally, those countries that have retained
and abolished capital punishment has their own justifications.
Defining the death penalty as human rights issue is a critical first step, but one may
resist by countries that aggressively use the death penalty. When the General Assembly
considered a resolution in1994 to restrict the death penalty and encourage moratorium
on executions, Singapore asserted, “capital punishment is not a human right issue”. In
the end, 74 countries abstained from voting on the resolution and it failed.177 But for an
increasing number of countries the death penalty is a critical human right issue. In 1997,
the United Nation High Commission for Human Rights approved a resolution stating
that “the abolition of death penalty contributes to the enhancement of human dignity
and to the progressive development of human rights.178 This resolution is strengthened
in subsequent resolutions by a call for a restriction of offenses for which the capital
punishment can be imposed and for a moratorium of all executions, leading eventually
to abolition.
Generally, under this chapter whether the imposition of death penalty contradict with
human right laws or not will be discussed clearly and briefly. In order to come up with
the conclusion the writer will try to see the death penalty with some fundamental human
rights provided under the FDRE constitution and other international human rights.
176
http://www.aubreyharris.com/docs/The_Death_Penalty,
%20A%Question_of_Human_Right.pdf
177
supra note 174
178
United Nations High Commission for Human Right Resolution, April 13, 1997
60
3.2.1.Right to Life and Death Penalty
Just like birth, death is the supreme mystery of our lives, and no violence must be
interfere with this natural process; we come into this world and leave it according to
rules that were created before man.179
The FDRE constitution provides under Article 15 that “Every person has the right to
life. No person may be denied of his life except as a punishment for a serious criminal
offense determined by law.”180 In doing so, this provision creates the basis for the death
sentence as the ultimate punishment for grave crimes. The question raised here is
whether the state should take away something it cannot give.
When we come to Article 10 of the FDRE constitution, which declares “human rights
and freedoms emanating from nature of mankind are inviolable and inalienable”.181
Right to life is one among rights emanating from nature of mankind. The above article
unequivocally declares that humans by virtue of their nature possess human rights and
freedoms and they are inviolable and inalienable. This is because of the fact that they
flow from and protect human nature, which could be endangered if these rights are
taken away. Right to life is not a privilege granted by the state to the individual but it is
inherent in the human being by the very fact that he/she is a person. There is no external
granting authority such as state or society. If we were granted natural rights by the state,
for instance, then there is no sense of speaking about natural rights because the would
be the same as civil rights and legal rights.182
179
Aleytina Kozina, Death Penalty: Human Rights and Capital Punishment: Available on
http://human right/Death Penalty Human rights and Capital Punishment.htm
180
Article 15, Federal Democratic Republic of Ethiopian Constitution
181
ibid, Art.10
182
supra note 179
61
Blackstone has placed the human life at the apex: “life is the immediate gift of God, a
right inherent by nature in every individual… of such high value…”183. It is recognized
that the right to life is the most fundamental and basic human rights. Indeed, the right to
life is the fountain from which all the other human rights spring and it therefore
deserves the greatest respect. The UN commission on Human Rights affirms the
significance attached to the right to life in its saying ‘for the people in the world today
there is no important question than those of preserving peace and ensuring the cardinal
right of every human being namely the right to life.’184 Therefore, it is possible to
conclude that all rights derive their authority from the right to life.
Like the FDRE constitution, some international laws provide death sentence with the
right to life. All major international human right declarations, conventions and
covenants stipulate that everyone has the right to life, liberty and security of person. The
official position of UN General Assembly is that it is desirable to abolish the death
penalty in all countries and that the crime to which it applies should be progressively
reduced. Death penalty is the ultimate denial of the right to life.
Death penalty is a criminal punishment imposed on individual for committing certain

serious offenses. Different types of punishments are designed to serve their goals by
depriving the criminal the enjoyment of certain rights. For example imprisonment
restricts the individual’s freedom of movement. There are also other forms of criminal
sanctions, which limit the criminal’s choice of action. Likewise death penalty militates
against the individual’s right to life. Death penalty is a system of punishment by which
the state takes away the life of individual criminal for the evil he has committed.
However unlike other punishments, once a person is punished by death he/she loose
his/her right to life and it cannot be re-exercised. This makes death sentence more
serious than others.
183
Dr. Durga Das Basu, Human Rights in Constitutional Law, (2nded., 2003) p.392
184
B.G Ramcharan, The Right To Life In International Law, 1995, p.5
62
When we look the FDRE constitution it recognized the inviolability and inalienability
of natural rights, and Article 14 specifically recognized inalienability of right to life.
According to our constitution we do have not only natural rights but also these are
“inalienable” rights. What does the word inalienable right mean? Black’s Law
Dictionary defines inalienable right as “rights, which are not capable of being
surrendered or transferred without the consent of the one possessing such rights”.185
This means that inalienable right is right that cannot be taken away or cannot be
transferred.
There are rights like constitutional, civil and legal rights. These rights are alienable
rights. Since they are alienable the granting authority can take them away, which is the
source of the rights in the first place. However, our constitution provides a special term
that inalienability of right to life, security and property of person under Article 14.
However, this paper only rely on the right to life.
As mentioned earlier right to life is a natural right that fall under Article 10 of the FDRE
constitution. Again also according to both Article 10 and 14 of the FDRE constitution,
right to life is inalienable right, which is not granted by state or society but from nature.
Therefore, it cannot be forfeited or transferred. The question raised here is if we accept
the idea of inalienable right to life as declared in the FDRE constitution Article 10 and
14, how we advocate capital punishment?
If the right to life is truly “inalienable right” the state cannot take it away and no person
may transfer it or forfeit it. That is the very meaning of inalienable right. The writer of
this paper believe that the right to life is inalienable right granted by our constitution
and once we subscribe the notion of inalienable right to life, we can’t advocate death
penalty at the same time. Since our constitution clearly provides the inalienability of
right to life this right cannot be taken away or given up. It is part of the nature of the
person as human being. The writer of this paper argued that death penalty is
unconstitutional because it violates the inviolable human right, right to life,
185
Deluxe, Black’s Law Dictionary, (6th ed., 1990)
63
constitutionally guaranteed as per Article 14 of the FDRE constitution. This is because
the fact that capital punishment takes away more than the right to life, for it takes life
itself.
In the recent decades, United Nations, under UN Resolution 2857 of Dec. 1971, The
Second Optional Protocol to the International Covenant on Civil and Political Rights
(1989) and the Commission on Human Rights, Resolution 8, (1998), tries to abolish
death penalty or limit the offenses for which the death penalty may imposed.
Again also European Additional protocols and Protocol to the American Convention on
Human Rights To Abolish the Death Penalty (1990) recognized the incompatibility of
death penalty with the right to life and other human rights and abolished the death
penalty.
Traditionally, capital punishment was accepted punishment for the serious criminal and
it was not deemed contradicts with the right to life. However, today the attitude modern
societies have towards death penalty is changed. International tribunals recognized that
human right norms must be interpreted in an evaluative dynamic manner. Even if death
penalty was not deemed contradict with the right to life in 1948, 1957, or 1969, it may
well be today or at some future date.
The writer of this paper believes that the highest possible punishment should not be
death penalty because a state that respects life being sacrosanct should not lawfully
murder. Today, when the world is moving towards abolishing death penalty from the
globe, when UN is encouraging the abolition of death penalty for enhancement of
human rights, when death penalty is considered as non-civilization, Ethiopia still
remained the death penalty in the New FDRE criminal code of 2004. As I have stated in
chapter two of this paper, there are many provisions entail death penalty in FDRE
criminal law of 2004.
64
Therefore, the writer of this paper conclude his idea that it is not wise to retain death
penalty in Ethiopia at present time, when the death penalty contradicts the inalienable
right to life provided under the constitution, and when awareness of people towards
human right is more developed and when so many countries of the globe adopt and
ratify protocols explaining the inhumanity of death penalty and abolish it.
3.2.2.Freedom of Torture and Death Penalty
The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment of the 1984 defines torture as “any cruel act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on person for such
purposes….” The FDRE constitution provides prohibition against inhuman treatment in
Article 18. It says in full “Everyone has the right to protection against cruel, inhuman,
degrading treatment or punishment”.186 What kinds of punishment are categorized as
cruel and inhuman treatment? There may be a number of possibilities to categorize
certain punishment as cruel or inhuman. It might be suggested that, for example,
punishment that are painful and infrequently administered. The interpretation of cruel
and inhuman punishment is subject to problems. One may reasonably argue that the
meaning of “cruel and inhuman” punishment reflects the consensus of public opinion at
any one time.
Article 5 of the Universal Declaration of Human Rights states that no one, for any
reason, under any circumstances, even in national emergencies should be subject to
cruel, inhuman or degrading punishment. When we look Article 6(2) of the ICCPR, it
retains the death sentence for “the most serious offenses”. Again Article 6(6) of the
same covenant declares that ‘Nothing in this article [Article 6] shall be invoked to delay
or to prevent the abolition of capital punishment by any state party to the present
covenant. Furthermore, when we read Article 7of the covenant declares, “No one shall
be subject to torture or to cruel, inhuman or degrading treatment or punishment.”187
186
Federal Democratic Republic of Ethiopian Constitution, Art.18
187
International Convention on Civil and Political Right, 1966, Art.7
65
There are a human right lawyers who could argued that, notwithstanding Article 6(2) of
ICCPR, a dynamic interpretation of Article 7 of the same covenant (“no one shall be
subjected to torture or to cruel, inhuman, degrading treatment or punishment”), ought to
be interpreted to denounce any imposition of capital punishment.188 Usually even those
who impose it do not deny the cruelty of death penalty. This is because it is impossible
to punish a person by death without torturing or inflicting some pain to the offender.
However the cruelty of death penalty is justified. It is justified in the same way that
those who carry out them justify all violations of human rights. It is justified in the same
way that when authorities tried to justify Dean Tshenuweni Simon Farisani’s treatment
and the treatment of others in south Africa, when they told him, as you will recall, it is
better for one man to be killed than the whole society to be troubled; it is better for few
people to be tortured the whole society to be troubled.189 They justify torturing
individuals as for the protection of the whole society. That means it is better to sacrifice
the individual for some higher cause.
Death penalty by its nature is “cruel and unusual” or “cruel, inhuman, or degrading.”
The constitutional court of South Africa that the state’s death penalty statutes in1995,
under a clause of its interim constitution forbidding “cruel, inhuman or degrading
treatment or punishment.”190 Again also European court of Human Rights and some
national courts have held that, even if capital punishment is not prohibited, the period of
waiting prior to execution may itself produce a form of inhuman and degrading
treatment or punishment.191 According to the definition of torture, in Convention
Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of
1984, it is not only physical suffering that can be considered as torture and cruel
punishment but also mental suffering. When we come to our country, Ethiopia there is
many people sentenced to death waiting execution. Executions were rarely happened to
those sentenced to death. Therefore, to conclude the idea a person sentenced to death is
not free from mental or psychological torture until the execution is carried out.
188
189
supra note 176
190
ibid
191
ibid
66
The death penalty defies the right of citizens to be protected from such cruel, inhuman
or degrading treatment or punishment. Both inhuman treatment and punishment is
prohibited. But what constitute inhuman and cruel under Article 18 of FDRE
constitution is subject to controversy. It needs interpretation to what constitutes cruel,
inhuman, and degrading treatment or punishment. And the interpretation of this
provision seems the defendant is the beneficiary of the doubt.
Torture cannot be separated from the death penalty. Death penalty may be just
punishment for certain heinous crimes but no injustice is done if we refrain from
imposing death penalty. Even the government that practices it universally condemns
torture. Usually supporters of the death penalty justify that they are going to kill these
people because they deserve to die. They deserve to die because they committed acts,
which put them outside of the human race. They say that it is foolish to talk about their
having human right-they can’t have human rights. The government applied death
sentence always tells that it is not that they are torturing, disappearing or locking up
people; but torturing, disappearing or locking up “terrorist” or “communist” or “counter
revolutionaries” or others because of their acts should no longer treated as part of
human race.192 The author of this paper think that such governments do not like to be
reminded that the very meaning of human rights that they are inalienable. Such rights
are not awards given by government for good behavior. It is difficult to kill or torture
people if you regard them as being human.
To conclude the idea under this topic, death penalty can be categorized under the
inhuman, cruel and degrading treatment or punishment and it contradicts with the rights
provided under Article 18 of the FDRE constitution. The writer further believes that in
refraining from imposing death penalty the state contributes to reducing our tolerance
for cruelty and thereby fosters the advance of human civilization. Article 25 of the
FDRE constitution provides the right to equality and equal protection of the law of all
people. All person whether criminal or not has the right to equal protection of law.
However the cruel and inhuman punishment inflicted on person while execution of
192
supra note 184
67
death penalty also violates the equal protection of the law provided under Article 25 of
the FDRE constitution. Due all these aforementioned reasons one can possibly say
death penalty is unconstitutional and violates fundamental human right laws.
3.3.The Deterrent Effect of Capital Punishment
Under this topic the writer will raise whether the death penalty is more deterrent than
others. If the death penalty is needed to deter future murderers, that would be strong
reason in favor of using death penalty, since otherwise we could be sacrificing the future
victims of potential murderers whom we could have deterred.193 Most abolitionists
believe that death penalty does not deter more than other penalties.
The death penalty poses a set of distinct question of philosophical, political and
criminological nature.194 Although different states abolish capital punishment for
different reasons they share common grounds that of the inhuman, unnecessary and
irreversible character of capital punishment, no matter how cruel the crime committed
by the offender. Besides, the international communities as the whole, in so far as both
the Rome Statute of The International Criminal Court and the United Nations security
council Resolution establishing the International Criminals Tribunals for the former
Yugoslavia and for Rwanda do not provide the death penalty among the range of
sanctions, even when the most serious crimes, including genocide, crime against
humanity, and war crimes are to be tried.
193
Jeffrey Reiman, ‘Against Death Penalty’, in Paul Leighton and Jeffrey Reiman(eds),
Criminal Justice Ethics (2001), p.425
194
. http:/www. EUROPEAN UNION MEMORANDUM ON THE DEATH
PENALTY.htm
68
As discussed earlier in the first chapter of this paper deterrence can be categorized into
specific and general. Here we will try to discuss whether capital punishment deters the
crimes more than other penalties in Ethiopian context.
1. Specific Deterrence
The FDRE criminal law has incorporated capital punishment to prevent wrong doers
from committing further crimes or another crime.195 This is the specific deterrence
character of our criminal justice. This is revenging the offender for his/her wrong. We
are going to kill the offender, but frightening, unpleasant, or fear are nothing for the
offender who is going to die. Since once a person died has no chance to leave again
frightening, unpleasant, or fear of the offender have nothing to do not to commit further
crime. This contradicts with the objective of Ethiopian criminal law. Modern criminal
laws do not take revenging the offender as their objective. Capital punishment is the
most severe and inevasible punishment that is considered as a fitting to the crime
committed. It indicates that killing a person who has killed another person.
Our previous government used death sentence as revenge. This is today characterized as
the act of undemocratic states that only wants to satisfy their interests not public
interest. When we kill the offender to deter him, we are calling another commission of
crime from the side of the offender’s family and imposing a pain on the family and
relatives of the offender. This may cause another problem. For example, when the
offender is killed the relatives of the offender may incite for revenge against the victims
family. Due to this reason, punishing the offender by death may result with a long
bloody conflict and hostility among society. This may contradict with the very purpose
of Ethiopian criminal law as expressed in the FDRE criminal code as to ensure order,
peace and the security of the state, peoples, and inhabitants for public good.
195
The Federal Democratic Republic of Ethiopian Criminal Code, 2005, Art.1
69
People may commit crime by the influence of different reasons. It may be when they
need to possess certain things, because of mental factors such as emotionality and
anger; economic problem such as poverty or lack of opportunities and other problems.
However, capital punishment does not consider these situations as stipulated under the
FDRE criminal code. The writer of this paper believes that killing someone never
solved any problem never benefit the whole society. The society may be benefited from
the rehabilitation of the offender.
Again also the very purpose of our criminal justice is not to create pain to one part of
society and to create happiness to the other part of society. Rather it is generally for the
societal happiness and protection. However, when death penalty is applied, we are
imposing psychological pain on the victim’s relatives and society. We are putting the
family of the offender without any assistance. These all makes capital punishment non-
deterrent.
2. General Deterrence
This is the assumption of criminal law that punishing criminals discourages other
potential offenders from committing crime.196 It is difficult to measure the effectiveness
of the fear of punishment on prospective wrongdoers, except as to certain widespread
statutory violations, such as petty motor vehicle offenses, black marketing etc. 197 The
theory of general deterrence as discussed in chapter one believes that the threat of
punishment deters prospective offenders in the general community. It is based on the
assumption that criminal behavior can be prevented if people are afraid of penalties.
The FDRE criminal law provides this term in the article one of the codes. It reads as “…
to make them [the offenders] a lesson to others”. 198 However there are many reasons
that make ineffective capital punishment as general deterrence. The following are some
among many;
196
Barry Latzer, Death Penalty Cases, 2nd ed., 2002 p.13
197
Steven Lowenistein, Materials for the Study of the Penal of Ethiopia, 1967 p.24
198
supra note 195
70
Some offenders who are engaging committing capital crime want to achieve their goals.
They know the probability of response or attack from the victims or other persons
during the commission, probability of loosing their life, and probability of punishment
by death. Knowing these all when a person engaged in committing capital crimes, death
penalty fail to deter such persons.
As discussed in chapter two of this paper the FDRE criminal law encompasses over
thirty-two articles that may entail death penalty. One may comment that we have the
“bloodiest code” the twenty first century witnessed, when the ‘eye for an eye’ mentality
should be part of history we frown up on. But the history of punishment shows that
there is no necessary correlation between the severity of punishment and the incidence
of the crime.199 This is understandable when the fact of the complexity of the causation
is born in mind. This may also shows the non-deterrent effect of capital punishment.
Article 117(3) of the FDRE criminal code says in full: “death sentence shall not be
carried out in public by hanging or any other inhuman means.” However, it did not
clearly express the mode of executing death sentence. The execution body only knows
the means of execution. According to the writers view it is difficult to deter prospective
offenders and educate the people without observing and knowing the means of
execution. This is because the death of the offender and place of execution may impose
on the prospective offenders the threat of fear. Therefore, non-disclosing the means of
executing capital punishment by itself put in question the deterring effect of death
penalty.
Generally, capital punishment cannot deter prospective offenders or its deterring effect
is not this much important. Humanistic values, ethical points of view and human rights
reasons weighed in favor death penalty. For our criminal justice the writer personally
opt for more humane, but also more effective, criminal justice system paved the way for
considering appropriate alternative criminal sanctions to the death penalty. The writer
199
supra note 178
71
further assume non-lethal penalties such as long term or life imprisonment instead of
death. Based on all these mentioned above life imprisonment is more deterrent than
death penalty.
3.4.Problems of Executing Capital Punishment
Miscarriage of Justice: when we apply death penalty there is a probability of

mistaken killings. Of course the probability of innocent execution is rare, but do occur.
Over a long enough time they lead to execution of some innocents. If we allow death
penalty innocent people will also continue to be executed. This is not morally right
because life cannot be restored once taken.
Capital punishment by its nature is irrevocable. Here the point is that the innocent are
sometimes wrongfully convicted and if they receive the death penalty there is no way to
correct the wrong done to them. If someone is executed and later found to have been
innocent, there is no way to give him back the life that has been taken because life
cannot be restored once taken.
In a recent survey of professor Hugo Adam Beada and Michael Radelet found that 7000
persons were executed in the USA between 1900 and 1985 and that 35 were innocent of
capital crimes.200 Again also the German refugee scholar and lawyer Max Hirschberg, in
his study of wrongful convictions rightly observed, “Innocent people wrongfully
convicted are countless.”201 These all shows us that through a long run the innocent
person may be executed. Taking all these into consideration the author believes that the
possibility that innocent person could be executed is sufficient in itself to warrant an
end of capital punishment.
200
http://www.123helpme.com/preview.asp?id=11170, retrieved on May 11, 2009
201
Thomas W. Simon, supra note 92, p.482
72
When we come to the FDRE criminal law it is designed to contribute towards the
promotion of a fair judicial system in the country. However, the author believes that
capital punishment can hinder the promotion of fair justice system. In proving whether a
person is a guilty of a crime or not there is a general principle that “proof beyond
reasonable doubt” required. The writer of this paper think that a higher burden of prove
is required when the sentence may be death. Before the government deprive a
defendant’s life, it must prove the defendant’s guilt by a standard more vigorous than
“beyond reasonable doubt”.
The term “beyond reasonable doubt” does not mean ‘beyond all possible doubt’. From
the term reasonable doubt we understand that there is a doubt but that doubt should be
required reasonable. In our criminal justice we don’t have any special procedure for
proving capital punishment. The writer think that prove beyond reasonable doubt for a
crime of capital punishment causes injustice. This is because even in countries like
USA, which have well skilled legal professional and well-organized legal system,
mistake in criminal justice is obvious as mentioned above. For instance, between 1973
and 2005, 123 people in United States were released from death row when the new
evidence of their innocence emerged.202 Therefore, based on the above premises one can
imagine how many people may convicted and executed by mistake in developing
countries. Based on the above reason the writer think that prove beyond reasonable
doubt is not enough for proving the guilty of capital offense entailing death penalty. In
order to make a person guilty of capital punishment prove of guilty should be “beyond
all possible doubt”. After the judge finds a defendant guilty beyond reasonable doubt it
should not proceed to the penalty phase unless it also certifies it has found the defendant
guilty beyond all possible doubt.
In countries like Ethiopia the probability of miscarriage of justice is high comparing

countries like United States and other developed countries. In our country many people
202
Facts and Figures on death penalty, available on:
http://www.dereches.org/deathpenalty, visited on, February 4, 2009
73
are living in a poor condition and the numbers of such peoples are high especially by
those who commit capital crimes. Most probably they are poor peoples that engaged in
committing capital offenses. After committing a crime when they brought to the court
they may receive poor legal representative. Usually the quality legal representation is a
better predictor of whether or not someone will be sentenced for death than the facts of
the crime. Generally, those who are poor in economy cannot afford better legal counsel.
Even if state assign for him/her, the assignee cannot fully protect him/her because of
less satisfactory of fees or fear of the person if set free. Therefore, due to all the above
reasons the use death sentence in our country can possibly cause injustice to the
convicted person.
Usually the famous crime inflicted death sentence in Ethiopia is murder. When we look
reasons why people commit murder the living conditions of individuals have its own
contribution or impact. Those who are economically poor and uneducated people are
most likely engaged in such capital offenses. The murderer may kill individual to get a
money or food. It is the writers’ opinion that causing a death of the offender by denying
basic needs of him is not fair. If we provide him food, job opportunity, and good living
condition he may not engaged in such activities. The writer of this paper believes that
capital punishment bias against the economically and socially weaker sections and this
contradicts with the principle of fair justice system.
The FDRE criminal law says, “Death sentence shall not be carried out unless confirmed
by the head of the state. It shall not be executed before ascertainment of its non-
remission or non-commutation by the pardon or amnesty.”203 Those condemned to death
have the right to appeal to higher court and to petition for presidential clemency. The
president is empowered to commute capital sentence to life imprisonment. 204 The
problem arises when the president of the country fail to confirm or commute the death
sentenced by the court. According to the FDRE criminal code it is impossible to execute
death sentence without confirmation of the president of the country. The criminal code
and the constitution of FDRE provide nothing under which condition can the president
203
The Federal Democratic Republic of Ethiopian Criminal Code, 2005, Art. 117(2)
204
The Federal Democratic Republic of Ethiopian Constitution, 1994, Art.28
74
confirm or not death sentence. It only gives the president discretionary power to judge
over the offenders life. Again the time limit under which the president can confirm or
commute the sentence of death is not clearly determined in both the criminal code and
the constitution. Therefore, the confirmation or commutation of the president may take
a long period of time. The long period of putting a person sentenced to death without
execution or commutation can possibly cause mental torture over the offender. This
violates the human rights of the offender.
Generally, these all are reasons why I oppose capital punishment for Ethiopian criminal
justice system
Conclusion
As it is clear from the discussion punishment is the reaction of society against a person
who breaches the social order. In order to protect the rules and the society the state
applies punishment to those who transgress beyond their rights. The purpose of the
criminal law is to prevent the commission of crime against the public at large by
providing punishments as a major means to deter offenders and potential offenders and
to rehabilitate offenders as well as to enforce the social and public morality.
75
So far I have tried to show historical evolution of capital punishment in abroad and
Ethiopia. There are a number of possible arguments for both sides of the coin. In an
attempt to be fair, I have touched up on the main arguments for and against capital
punishment.
Capital punishment is one among different punishments applied for guilty of crime. It is
a punishment made by killing an offender who commits a specified crime in a judicial
system. Historically minor offenses were punishable by death. Different arguments have
been offered in support of capital punishment and against capital punishment by modern
thinkers and others. The opponents argued on the ground of deterrence, retribution,
community protection and so on. On the other hand the opponents argued on the ground
of non-deterrence, vengeance, human right violations and so on. Even the religious
followers hold different view as to the necessity of capital punishment. Historically
different modes of execution of capital punishment, which were considered as cruel and
inhuman, were applied.
The other thing is international movement of abolishing capital punishment. There are
organizations like United Nations, European Union, and Inter-American states
organizations that play a role in abolishing a capital punishment. There are also human
right defenders like Amnesty International and Human Rights Watch that argued for the
abolition of capital punishment in order to protect human rights. To day almost 2/3 of
the world countries in the world abolished the death penalty in practice and by law.
Ethiopia is one among countries retained death penalty in the world. The FDRE
constitution and criminal law allows the death penalty for serious criminal offenses. The
new FDRE criminal law contains over 32 provisions entailing or causing the death
sentence. The purpose and objective of the FDRE criminal law are to preserve the
peace, order, and security of the state and to protect the society at large by preventing
the commission of the crime. That is generally there are deterrence, rehabilitation, and
education purpose in our criminal law. Again, the FDRE criminal law provided to
76
promote fair judicial system, protection of human rights and to bring economic progress
in the country.
However, capital punishment contradicts with the human right provisions like right to
life, freedom of torture and others provided under the FDRE constitution and other
international human rights. In addition the existence of capital punishment can create a
problem of hindrance of the objective of the FDRE criminal law such as, revenge rather
than deterrence, prevent the chance of offender to rehabilitate, miscarriage of justice
will occur, violates the rights of the offenders, create unpleasant pain on the community,
avoid the economic benefit of the society and the state which can get during after
rehabilitation. Generally, capital punishment is not compatible with human rights and
modern criminal laws. Abolition of capital punishment is a better alternative to avoid
such problems.
77
Recommendation
The writer of this paper believes that capital punishment is not as deterrent as life or
long-term imprisonment. This is proved by the studies made in different countries. If we
punish a person by death small person witnessed such execution may be deterred from
capital offenses. But in case of long and life imprisonment there is a probability that
many person witnessed his punishment and those persons may be deterred from capital
offenses. In addition to this capital punishment has a retrospective affect. That is, it
comes after society is attacked, and the peace, order and security of the state are already
disturbed. It is better to use imprisonment (long term or life) instead of capital
punishment. In case life or long-term imprisonment there is probability of academicals
78
and vocational trainings in prison and through this way prison administration has an
important to prevention further crime. This all benefits the society at large.
Rehabilitation is one among purposes of punishment. That means when we punish

individual it has a message for him not to commit further crime. Capital punishment
does not consider the chance to rehabilitate. Once capital punishment is applied it is
impossible to apply rehabilitation theory or to learn from his bad act. This is because
once a person is punished by death his chance to leave again is unthinkable and his
rehabilitation too. Therefore rehabilitation is more effectively possible by other form of
punishment like imprisonment, fine, etc.
Severity of the punishment is not the solution to the capital crimes. If severity of
punishment is the solution to capital offenses then the world could have used capital
punishment for every offence and then the world be free from crimes. However, using
violent punishments can never halt crime. When I say this I don’t mean that punishment
should be abandoned. But punishment should be in such away that it is capable of
deterring and rehabilitating criminals. Many factors contribute to the growth of crimes.
We should go to the roots crimes and then try to find solution to them. For example,
those people who engaged in criminal activities are especially those who have no job,
food and other materials needed for their life.
Mistake is unavoidable task in execution capital punishment. Human judgment is not

perfect; nor human wisdom is infallible. In execution of capital punishment miscarriage
of justice are possibly occurred for different reasons. It must be conceded that the
drastic and irrevocable punishment should be banned forever. If we abolished capital
punishment miscarriage of justice also shall be disappeared.
Capital punishment discriminates against the poor. Because of capital punishment

unequal application of the law takes place due to the poorness of those convicted
person. The poor do not have the means to hire lawyers. One may say that the
constitution gives the right for the accused to have a lawyer at the expense of the
79
government if he is unable to have one. But practically such lawyers do not show the
interest to defend their clients. Hence in most cases the poor are subjected to capital
punishment, not because they are criminal but because they cannot be afford to have
lawyers. This problem is worse especially in poor countries like Ethiopia.
There is no repayment for the destruction of something irrevocable. The only practical
alternative to killing the worst the criminals we have is keeping them locked up for life.
By doing so offenders will come good people. If death penalty is applied it can create
unpleasant pain top the community, avoid economic benefit of the offender and the
state, which can get during and after rehabilitation.
Death penalty is retained in our laws. But the FDRE criminal law fails to identify the
modes of execution of capital punishment. Even though the 1957 penal code provides
two modes execution, hanging and shooting, the new FDRE criminal law is not clear as
to the mode of execution of capital punishment. The mode of execution is not publicly
known. This is the secret only known by the executing organ. The author of this paper
believes that non-disclosing the mode of execution of capital punishment shows non-
transparency of government as to this matter. If death penalty is mandatory to be
retained in Ethiopia it is better to specify the mode of its execution. Again also proof of
guilty should not only beyond reasonable doubt rather it should be beyond all possible
doubt.
Death penalty violate fundamental human rights like the inalienable right to life,
freedom of torture and cruel punishment, which is constitutionally guaranteed. Since
those of life and torture cannot be separated from capital punishment it is better to
abolish it forever.
Using the experience of those country which abolished death penalty and has lower
crime rates it is better to take in to consideration our capital punishment. Generally, for
all mentioned above the writer conclude that it is good if we abolish death penalty from
our laws.
80
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84
85

The Necessity and Compatibility of Capital Punishment Withhuman Right Laws With Particular Reference To Ethiopia

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The Necessity and Compatibility of Capital Punishment Withhuman Right Laws With Particular Reference To Ethiopia

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THE COMPATIBLITY OF CAPITAL PUNISHMENT WITH

HUMAN RIGHT PROVISIONS; WITH PARTICULAR

Submitted in Partial Fulfillment of The Requirements For the

GENERAL IDEA OF PUNISHMENT AND CAPITAL

Punishment may effective in reducing or eliminating undesirable behavior. Punishment

Many definitions of punishment forwarded by different scholars or legal writer’s center

Punishment is one species of large family of measures involving intentional

1.1.1 Justification of Punishment

According to this theory punishment is interested in correcting past wrongs. It looks

Retributive theory implies punishment on offences irrespective of its deterring effect on

Generally, retribution sets an important standard of punishment on the offender. The

3. Incapacitation and Special Deterrence

4. Rehabilitation and Reformation Theory

This approach sees criminal behavior as a consequence of social order or psychological

Since the root of a crime is embedded in a complex array of phenomena, economic,

1.1.2 Theory of punishment

1.2. CAPITAL PUNISHMENT

“The death penalty is our harshest punishment. It is irrevocable; it ends the

1.2.1 Definition of Capital Punishment

Capital punishment is condoned or accepted in Islam. In the Medieval Islamic world,

Generally, capital punishment is historically controversial issue both nationally and

1.2.3 Methods and Modes of Executing Capital punishment

1.2.4 Arguments on Capital Punishment

In the history of capital punishment different law enforcement agencies, criminologists,

There is also a dispute whether capital punishment can be administered in a manner

Proponents of capital punishment always argue that, execution serve as a strong

To put all in a nutshell, capital punishment is as controversial as any issue in criminal

1.2.5. Religious Views towards Capital Punishment

The issue of capital punishment is related to morality. Morality is part of society’s

Buddhism is a religion and philosophy founded by Siddhartha Gautama in the North

a. Roman catholic church

Generally, in this church, capital punishment is traditionally accepted but scholars of

b. Eastern Orthodox Church

Generally, the issue of capital punishment is subject to controversy even among

INTERNATIONAL MOVEMENTS OF ABOLISHING CAPITAL

2.1 The United Nations

2.2 European Movement

2.3 Inter-American State Organization Movement

2.4 The Abolition Movement in Africa

Furthermore the African commission, in recent decision Interights et al (on behalf of

2.5 Abolition Movement in Ethiopia

To the best of writers’ research there is no organized public or private movement of

2.6Capital Punishment in Ethiopian Context

Generally speaking, it is very difficult to trace the historical genesis of capital

2.6.1The period before Fetha Negest

2.6.3. Death Penalty under the 1930 Penal Code of Ethiopia

The sentence of death means having punished by punishment of death by the

2.6.4.The period from 1957 to the period of 1974

2.6.5.The period from 1974 to the period of 2004

2.6.6.The period after the FDRE criminal code

THE COMATIBILITY OF DEATH PENALTY WITH HUMAN

3.1 Human Right and Power of State to Punish

3.2.Death Penalty and Human Rights

Death penalty is a criminal punishment imposed on individual for committing certain

3.2.2.Freedom of Torture and Death Penalty

3.3.The Deterrent Effect of Capital Punishment

3.4.Problems of Executing Capital Punishment

Miscarriage of Justice: when we apply death penalty there is a probability of

In countries like Ethiopia the probability of miscarriage of justice is high comparing

Rehabilitation is one among purposes of punishment. That means when we punish

Mistake is unavoidable task in execution capital punishment. Human judgment is not

Capital punishment discriminates against the poor. Because of capital punishment

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