UNequal Nations: Why The West Isn't About To Get Rid Of Its Nuclear Arsenal

Last week, when the potentates of the world gathered for the UN’s General Assembly in New York to talk about global issues, they might have paid heed to the words of Swiss philosopher, diplomat, and legal expert, Emmerich de Vattel, who in his 1758 opus The Law of Nations or the Principles of Natural Law declared that “nature has established a perfect equality of independent nations.” It is not a principle that has always gone down well with the rich and powerful countries. 

At the 1919 Paris Peace Conference, which sought to craft a new world order out of the ruins of the 1st World War, Japan introduced the following clause on racial equality to be written into the covenant of the League of Nations:

“The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to accord, as soon as possible, to all alien nationals of States members of the League equal and just treatment in every respect, making no distinction, either in law or in fact, on account of their race or nationality.”

The West was aghast. Australian Prime Minister Billy Hughes was mortified about the future of “White Australia” if the clause was accepted. The British Foreign Secretary Lord Balfour declared that while he found the notion that all men were created equal an interesting one, he did not believe it. “You could scarcely say that a man in Central Africa was equal to a European.” 

US President Woodrow Wilson was worried that, even with a watered down version of the clause (that simply asked for “the principle of equality of nations and just treatment of their nationals,”) the League of Nations Covenant would not get the support of US senators from the western states if it included the racial equality provision and, when majority of the delegates voted for the Japanese amendment, announced that the amendment could not carry because there were strong objections to it. In any event, the US Senate never ratified the League of Nations Covenant, thus dealing the first attempt to form a global society of nations a fatal blow.

What does this have to do with the General Assembly? Well many of the issues discussed had a great bearing on the principle of equality. Addressing the gathering US President Barack Obama declared that “no world order which elevates one nation above others” could succeed in tackling global issues. Speaking immediately after him, Libyan leader Muammar Gaddafi, in a long (he spoke for over 90 minutes instead of the allotted 15 minutes), rambling, and sometimes incoherent address, put Obama’s remarks in stark relief. Clutching a copy of the UN Charter he moaned: “It says nations are equal whether they are big or small –are we equal in the permanent seats? … Do we have the rights of the veto?” Answering his own questions he said: “No, we are not equal.”

Now, whatever one may make of the man, that statement is undeniably true. We are not equal. And not just in the current UN power structure. Take the challenge of nuclear proliferation, one of “four pillars” outlined by US President which encapsulate the challenges facing the world. The global effort towards a nuclear-free world continues to be characterized by rampant discrimination and inequality between the nuclear haves and have-nots. For example, the Nuclear Non-Proliferation Treaty, which the US loves to quote in relation to the nuclear activities of North Korea and Iran also states in Article VI:

"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control."

On Thursday, Obama chaired a meeting of the UN Security Council as part of the process of drawing up a replacement for the NPT and designed to stop countries developing these weapons. In a unanimous vote, the UNSC adopted a resolution calling for the full implementation of Article VI but with emphasis on the “negotiations in good faith” part. There was absolutely no mention of a deadline by which the nuclear weapon states would disarm and the resolution is also silent on the continuing development of new nukes as well as delivery systems by these states. 

Give an that Obama has already declared that disarmament will not happen in his lifetime, the fact that the UK has already ruled out giving up its nukes (a statement on Tuesday from Downing Street made it clear that the UK's nuclear deterrent was "non-negotiable"), and that Russia and China have both announced upgrades to their nuclear arsenals, it is obvious that the UN resolution is just an attempt to pull the wool over our eyes. It is not the first time this has happened.

When, in the closing years of the last century, India called attention to the requirement for complete nuclear disarmament by all under this provision, the Clinton Administration said its implementation was "unrealistic" though the collapse of the Soviet Union a decade earlier had ended the nuclear arms race. The US (and all other nuclear powers) therefore is also in breach of its "international obligations" in this regard and has little moral authority to demand that others comply with the NPT. Sadly, this is far from an isolated incidence of non-compliance. The NPT has been repeatedly violated by the nuclear states in pursuit of narrow political interests.

According to a report by John Burroughs, Executive Director Lawyers' Committee on Nuclear Policy, the 2000 NPT Review Conference came up with an "unequivocal undertaking by the nuclear-weapons States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament, to which all states are committed under Article VI." Don't hold your breath though. The report states that "during the Conference, diplomatic talking points released by The Bulletin of the Atomic Scientists revealed that US negotiators advised Russia that keeping its nuclear forces on alert is a good idea". Why? "Under 'any possible future arms control agreement,' the talking points say, Russia, could maintain on 'constant' alert a 'large, diversified, viable arsenal', sufficient to mount an 'annihilating counterattack' in response to a US first strike, regardless of any 'limited' US national missile defense system." Of course, the US could then use the same argument to justify its arsenal's continued existence. We thus have here the nuclear powers colluding to eliminate the possibility of their ever having to comply with their "unequivocal undertaking". In fact, in a speech in Prague earlier in the year, Obama declared that the US would never give up its arsenal so long as nuclear weapons were held by other countries.

In his speech to the General Assembly, British Prime Minister Gordon Brown proposed a "grand global bargain between nuclear weapon and non nuclear weapons states” in which “all nuclear weapons states must reciprocally play their part in reducing nuclear weapons as part of an agreement by non nuclear states to renounce them.” This, he declared was “exactly what the Non-Proliferation Treaty intended”. Then came the rope-a-dope. “In line with maintaining our nuclear deterrent I have asked our national security committee to report to me on the potential future reduction of our nuclear weapon submarines from four to three.” What Brown is asking us to believe is that by reducing their nuclear arsenals, the nuclear weapon states are disarming as required by Article VI. This, of course, is nonsense. When the Kenyan government is asked to disarm militias, the clear suggestion is not that the militias be allowed to keep some of their machetes.

According Professor Ron Smith, a defence economist at Birkbeck College, going from four to three nuclear submarines would probably have little effect on Britain's nuclear capability. This is because the fourth sub is essentially a spare. Similarly, the Moscow Treaty between the US and Russia, which sets a goal of reducing deployed nuclear weapons to between 1700-2200 by 2012, only covers weapons that are “deployed,” meaning those that are in missile silos, in submarines, or ready to be loaded onto Air Force bombers. The treaty does not cover weapons held in reserve by either country. In fact, there is no intention among nuclear weapons powers to disarm, Obama’s rosy rhetoric notwithstanding.

Under Article I of the NPT "each nuclear-weapon State also undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices."

Thursday’s UNSC resolution is however not so unambiguous. It declares that the Security Council, which will determine if any particular situation of non-compliance “constitutes a threat to international peace and security.” So some instances of non-compliance, it seems, are acceptable and others are not. Why would the UNSC introduce such ambiguity in the resolution’s wording? Perhaps it is an attempt to retroactively cover their collective behinds.

In 1976, a US Senate committee uncovered secret US heavy water exports to India which paved the way for India's nuclear weapons programme. In March 2006 The UK's Foreign Office admitted that in the 1950s and 1960s, Britain made hundreds of secret shipments of restricted materials- including samples of fissile material (uranium-235 in 1959 and plutonium in 1966) as well as highly enriched lithium-6 which is used to boost fission bombs and fuel hydrogen bombs- to Israel. A BBC Newsnight investigation also showed that Britain shipped 20 tons of heavy water directly to Israel in 1959 and 1960 to start up the Dimona reactor, constructed with French help in 1956.

Under the NATO concept of “Nuclear Sharing”, the US still deploys up to 200 nuclear weapons in non-nuclear Belgium, Germany, Italy, the Netherlands and Turkey. A significant proportion of these weapons are intended for delivery on aircraft belonging to non-nuclear NATO members in the event of war. This is in direct violation of the obligation “not to transfer to any recipient whatsoever nuclear weapons” and another telling example of Nuclear Power deception.

The key document on the US interpretation of Articles I and II of the NPT is entitled Questions on the Draft Non-Proliferation Treaty asked by US Allies together with Answers given by the United States. In it the US declares that once a general war has begun, it would no longer feel bound by the NPT creating a loophole by which it could withdraw from the Treaty without the three month notice period required by NPT article X. It further states that the NPT does not deal with arrangements for deployment of nuclear weapons within allied territory as these do not involve any transfer of nuclear weapons or control over them. 

This interpretation was made public on 9 July 1968, eight days after the NPT signing ceremony at which the first 56 nations had signed the Treaty. Research by the Berlin Information-centre for TransAtlantic Security (BITS) concluded that many countries were unaware of the NATO countries’ unilateral interpretation of the NPT and its meaning when they signed the Treaty; that there was no evidence that the details of NATO nuclear sharing arrangements or the interpretation had been made available to all NPT parties prior to joining the Treaty; and that neither the US nor NATO ever lived up to then US Secretary of Defense Robert McNamara’s 1966 promise "to make every effort to explain both our non-proliferation and our NATO nuclear sharing policies and to demonstrate beyond any reasonable doubt, that there is no conflict between them." 

One may suppose that an unintended consequence of the US position is that in the event of a military strike against Iranian nuclear facilities, Iran could immediately withdraw from the NPT citing the Questions and Answers. However, even in this, discrimination reigns. The US tries to preclude this possibility by stating that it would withdraw only in times of "general war" and that "the other extreme would be a limited, local conflict, not involving a nuclear weapon-state. In this case the treaty would remain in force".

The conduct of the nuclear powers simply proves that the NPT is a byword for global domination; a scheme to keep such weapons, and the political power they convey, in their hands and in the hands of their friends. They never intended it to "facilitate the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons." The UK Foreign Secretary David Miliband last week noted that Obama’s vision of a nuclear-free world which he announced in Prague, “is a very long-term goal which may outlive his children, not just himself.” He added that the nuclear powers "reject unilateral nuclear disarmament … precisely because the world cannot end up in a situation where responsible powers get rid of their weapons, but the danger of nuclear proliferation by other powers remains." But, one might very well ask, who determines which countries are “responsible powers”?

The NPT, just like many other relics of the post-WW2 and Cold War era, has outlived its usefulness. These were agreements designed to keep the peace in an age dominated by big military powers, when just the threat of war was sufficient to intimidate most into towing the line. Today, when 19 men with box-cutters can strike terror into a nation of 300 million and 10,000 Hizbullah guerillas can fight the largest and best equipped military in the Middle East to a standstill, such agreements seem obsolete. Created, in Paul Leventhal's words "for a world of thousands of nuclear power plants and of multi-billion-dollar deals" the NPT- with its seamless arrangement of assured nuclear supply built upon pledges from the non-weapon states not to produce nuclear weapons and from the weapon states to negotiate in good faith to get rid of theirs -was supposed to take care of all problems. That world has not materialised.

However nuclear weapons cannot be disinvented and are here to stay. The world needs a new treaty that acknowledges this reality and one that avoids a situation where a few countries are allowed to continue to develop, possess and threaten the rest with these weapons. Any new treaty must take the following realities into account.

First, state-held nuclear weapons do not necessarily threaten the peace. As Newsweek’s Jonathan Tepperman notes, nuclear weapons were largely responsible for the fact that the Cold War never heated up; they made the idea of war between the US and the USSR unthinkable. In fact, not only did they militate against nuclear holocaust, but they also prevented conventional war between nuclear states. The latest skirmishes between India and Pakistan did not degenerate in full blown war largely due to the fact that both countries were nuclear powers. Far from destabilizing the region, an Iranian bomb (and, I hasten to add, no one has demonstrated that they want one) might actually bring some semblance of normalcy to Lebanon by obviating the need for Iran to arm Hizbullah as a deterrent to a feared US or Israeli military assault on Iran. Just as the prospect of mutual nuclear annihilation has mellowed the attitudes on the Indian sub-continent, so it may pour some much needed cold water on the famously hot tempers of the Middle East.

Which brings me to my second point. That the nuclear umbrella effectively protects the citizens of nuclear weapon states goes without saying. The rest of us, however, are not so lucky. While Thursday’s resolution “recalls the statements by each of the five nuclear-weapon States…in which they give security assurances against the use of nuclear weapons to nonnuclear-weapon State Parties to the NPT”, it is obvious that such assurances are of little meaning considering the US position that it would not be bound by the treaty in the event of a “general war”. Also, during the Cold War, Third world countries became the arena where big power rivalries were settled, their citizens bearing the terrible consequences. And, of course, nuclear weapons did not mellow the behavior of big powers towards their less endowed neighbours. The Soviets invaded and occupied Eastern Europe and Afghanistan; the Americans beat up on a host of countries including Vietnam, Grenada, Panama and, more recently, Iraq and Afghanistan. Any treaty on non-proliferation needs to temper big power belligerence as well as ensure that non-nuclear countries have the same protection from both nuclear and conventional warfare.

Finally, the real threat of nuclear proliferation is that it increases the risk of WMD falling into the hands of terrorists. A global nuclear arms race is a terrorist's dream come true. At the moment, it is exceedingly difficult and expensive to manufacture a nuclear weapon, even a crude one. Many terrorist groups thus look to nuclear weapon states to provide them with the necessary material and technology. The more the nuclear states, the higher the chances of that happening. A frightening example of what could happen was provided by the father of Pakistan’s bomb, Dr. Prof. Abdul Qadeer Khan. In early February 2004, the Government of Pakistan announced that Khan had signed a confession indicating that he had provided Iran, Libya, and North Korea with designs and technology to aid in nuclear weapons programs in return for millions of dollars. It is not a great leap from that to selling the technology to terrorists.

The head of the International Atomic Energy Agency (IAEA), Mohamed El Baradei, recently warned that more than 30 countries could soon have the technological know-how to produce nuclear weapons. It seems that going nuclear is becoming fashionable on the international stage. Many states are developing nuclear technology that is designed for peaceful energy production. The problem is that these programs could quickly and easily be modified to develop nuclear weapons. Iran and Brazil are actively working on uranium enrichment capability, and other countries, including Australia, Argentina, and South Africa are seriously considering programs of their own. Thirteen more states either have the ability to produce weapons grade uranium, could build the technology to do so, or could use nuclear waste for weapons: Japan, South Korea, Canada, Germany, Sweden, Belgium, Switzerland, Taiwan, Spain, Hungary, the Czech Republic, Slovakia, and Lithuania. Algeria, Egypt, Morocco, and Saudi Arabia recently announced they were initiating nuclear programs. Tunisia, the United Arab Emirates, Bangladesh, Ghana, Indonesia, Jordan, Namibia, Moldova, Nigeria, Poland, Thailand, Turkey, Vietnam, and Yemen have expressed an interest in doing so, either for energy production or in response to regional realities. The potential for global nuclear proliferation has never been greater, and the possibility of weapons of mass destruction falling into the hands of radicals determined to employ them has never been more real. Any new treaty has to deal with it.

On June 26, 1946, Pandit Jawaharlal Nehru, soon to be India's first Prime Minister, declared: "As long as the world is constituted as it is, every country will have to devise and use the latest devices for its protection." The challenge before the UN is how to re-constitute the world and to breathe meaning into the language of equality so all nations can have a share in the advantages and responsibilities of technological progress. This is necessary if we are to achieve the goal of securing the globe for the sake of its current and future residents. It is, as Obama put it, “the bargain that makes this work.”

The Insults of the Earth

“I call on all Ministers and Assistant Ministers and every other person to sing like parrots. During Mzee Kenyatta’s period, I persistently sang the Kenyatta tune. [When] people said ‘This fellow has nothing to say except sing for Kenyatta,’ I said I did not have ideas of my own. Who was I to have my own ideas? I was in Kenyatta’s shoes and therefore I had to sing whatever Kenyatta wanted. If I had sung another song, do you think Kenyatta would have left me alone? Therefore you ought to sing the song I sing. If I put a full stop, you should put a full stop. This is how the country will move forward. The day you become a big person, you will have the liberty to sing your own song and everybody will sing it”.

Thus spake the then Kenyan President, Daniel Arap Moi, in what has to be the most eloquent exposition of the intent of sedition law ever uttered.

Historically, sedition is the crime of speaking words against the state. Its basic premise, that it is wrong to criticise the leadership, fundamentally flies in the face of the tenets of democracy which demand the ability to criticise leaders as a sina qua non for informed choice. In its modern meaning, the charge of sedition first appeared in the Elizabethan Era (c. 1590) as the "notion of inciting by words or writings disaffection towards the state or constituted authority". According to Curtis C. Breight, author of Surveillance, Militarism and Drama in the Elizabethan Era, sedition complemented treason and martial law: while treason controlled primarily the privileged and ecclesiastical opponents, and martial law frightened commoners, sedition was meant to cow intellectuals. Under English common law, a statement is seditious if it "brings into hatred or contempt" the Queen or her heirs, or the government and constitution, or either House of Parliament, or the administration of justice, or if it incites people to attempt to change any matter of Church or State established by law (except by lawful means), or if it promotes discontent among or hostility between British subjects. A person is only guilty of the offence if they intend any of the above outcomes and, interestingly, proving that the statement is true is not a defence. It is punishable with life imprisonment.

Thin-skinned African despots have recurrently deployed sedition legislation that derives from their UK and French colonial heritage to deal with dissent and to contain bothersome journalists. According to the World Association of Newspapers (WAN) , laws on insulting leaders are in force in 48 out of 53 African countries, and are "the greatest scourge" of press freedom on the continent. In the first five months of 2007, "insult" laws led to the harassment, arrest or imprisonment of 103 journalists in 26 African countries.

Last week’s brutal abduction and torture of Uganda's Radio One talk show host and The East African contributor Robert Kalundi Serumaga, and his release on bail after being charged with six counts of sedition, is only the latest incident. Serumaga who spent four days in police custody was accused by the state of “intention to bring into hatred, contempt and to excite disaffection against the person of the President” during a television show on September 11. Less than a month ago, 3 executives on the Ugandan bimonthly magazine The Independent were interrogated by police for four hours because they published an allegedly seditious cartoon that was critical of the president, Yoweri Museveni. One of three, managing editor Andrew Mwenda, is already facing a sedition charge from 2005, one of 21 criminal counts that he is fighting in the courts.

In 2005, Mwenda was arrested and charged with “sedition” and his employer, KFM Radio, was briefly banned after he commented on a possible Ugandan government role in the death of southern Sudanese leader John Garang while hosting a phone-in radio show. Among other things, Mwenda blamed President Yoweri Museveni and the Ugandan government for the mismanagement of Garang’s security after he died in a helicopter crash.

In Kenya, sedition laws (Section 56, 57 and 58 of the Penal Code) were repealed by the IPPG reforms of 1997. Prior to that, they were used to curtail any form of discontent, their enforcement sometimes verging on the ridiculous. For example, in 1990 Rev. Lawford Ndege Imunde was sentenced to 6 years imprisonment for “printing and possessing seditious publications exciting disaffection against the President or the Government of Kenya” after he noted in his desk diary that Robert Ouko was murdered with the connivance of the government.

Though Article 18 of the Tanzanian Constitution guarantees every Tanzanian the right to freedom of opinion and expression, the Newspaper Act of 1976 allows authorities within the government—including the president—the power to prohibit publications that might be deemed to not be in the nation's best interest. It defines an act, speech or publication as seditious if it aims to bring lawful authority into hatred or contempt, or excites disaffection against the same, or promotes feelings of ill-will and hostility between different categories of the population. Anyone printing or publishing a newspaper which contravenes these provisions is liable to face a fine or a maximum sentence of 3 years. In October 2008, the radical tabloid, Mwanahalisi, was banned for 3 months for allegedly publishing seditious articles. Information Minister George Mkuchika explained the rationale behind the ban thus: "The newspaper is fond of publishing articles that ridicule senior government leaders including president Jakaya Kikwete and the ruling Chama Cha Mapinduzi (CCM)."

Matters are not much better in the Democratic Republic of the Congo, where Nsimba Embete Ponte, editor of the biweekly L'Interprète, was last year handed a 10-month prison sentence for "insulting" President Joseph Kabila by referring to rumours about Kabila’s health in a series of articles. Arrested on 7 March 2008 in Kinshasa by members of the National Intelligence Agency (ANR), Ponte was held incommunicado for three months before being transferred to the main Kinshasa penitentiary.

In Burundi, Anaias Havyarimana and Honoré Misago were arrested in September 2008 on charges of insulting President Pierre Nkurunziza after they were overheard criticizing his education policy in a private conversation. They were both remanded in custody until their acquittal in December. In November , well-known former radio journalist and political activist, Alexis Sinduhije, was charged with “insulting the President,” based on a document found in his possession following an illegal police search during which a search warrant for different premises altogether was delivered two hours late, referring to a judicial file that did not yet exist. The recovered document purpotedly stated that “the responsibility for the corruption scandals and the assassinations ordered by the party CNDD-FDD lie with the man who passes his time in prayer meetings,” and, according to the prosecution, referred to and insulted President Nkurunziza, a born-again Christian.

Gambian law intimidates independent press through prison terms for reporters found guilty of sedition - broadly defined - or libel, and a requirement that newspaper proprietors must sign a US$16,600 bond (with their houses as guarantees) to be allowed to publish. In 2008 UK missionaries David and Fiona Fulton were sentenced to a year's hard labour over "seditious" email to friends in London in which they describe the Gambian President, Yahya Jammeh, a man who believes he can cure AIDS on Thursdays using herbs and bananas, as a “madman”. They were also fined £6,250 each. They pleaded guilty to charges of "printing, publishing or reproducing publications with intent to bring hatred or contempt or to excite disaffection against the president or the government".

In 2007, 5 journalists and a teacher were convicted of insulting Mali President Amadou Toumani Toure, and given suspended sentences over a school essay. Teacher Bassirou Kassim Minta had asked his final-year secondary school class to write a humorous essay about the mistress of a fictional African leader. He was arrested, along with Seydina Oumar Diarra, a journalist who wrote an article in the Info-Matin newspaper criticising the teacher for assignment. Following the detentions, the article was reprinted in other newspapers, leading to the arrest of the other journalists.

Côte d'Ivoire journalist Nanankoua Gnamanteh was brought before an Abidjan court in March this year on a charge of insulting President Laurent Gbagbo in an article that appeared in Le Repère under the headline "Ali Baba and his 40 thieves" together with a photo of the president and several of his close associates and referring to Gbagbo's period as president as "nine years of political fraud... outright theft, embezzlement and kleptomania at the summit of the state." The prosecutor requested a two-year prison sentence and asked the court to suspend Le Repère for eight months and to fine its publisher, Eddy Péhé, 10 million CFA francs (15,200 euros), despite the fact, as noted by Reporters Without Borders, that the country had decriminalized press offences. Gnamanteh and Péhé were fined 20 millions CFA francs (30,000 euros) each, and the newspaper was suspended for eight weeks.

Though Egyptian President Hosni Mubarak has pledged to amend the 1996 Press Law and abolish prison sentences for press offenses, that did not save Ibrahim Issa and Sahar Zaki, editor and journalist, respectively, of the opposition weekly Al-Dustur, who were each sentenced to one year in prison in June 2006 for "insulting the President" and "spreading false or tendentious rumours." The charges were brought by the so-called "ordinary people of al-Warrak," who were reportedly offended by an April 2005 article which reported on a lawsuit brought by a man from the village who accused President Mubarak of unconstitutional conduct and ‘wasting foreign aid’ during the privatisation of state-owned companies.

In Zimbabwe, even musicians have not been spared. Happison Mabika, and Patience Takaona, have been in hiding since last year when they failed to attend a court to answer charges of singing songs ‘too sensitive and insulting’ President Robert Mugabe. Their lawyer Charles Kwaramba later claimed that the duo were in fear for their lives. Although the country now has a coalition government, Dread Reckless and Sister Fearless, as they are better known by their fans, have not emerged. If convicted, the two face a two-year stint in jail.

In many jurisdictions across the globe, sedition is either formally or effectively a dead letter. Recognising that criminal sanctions for criticism of leaders should never be imposed, the British government has not charged anyone with sedition in over 30 years and has announced its intention to repeal the law. It is time African governments cottoned on to this. For too long, governments on the continent have used these laws "ruthlessly, to prevent critical appraisal of their performance and to deprive the public from information about their misdemeanours", as WAN put it. Ugandan journalist Andrew Mwenda succinctly captured the irony of the situation, explaining that “in a country that is a democracy (or pretends to be) and not a monarchy, it is my right to cause public disaffection against the person of the President or the government so that at the next election people can vote against both.”

Commuting Justice? Why We Need The Death Penalty

In what Prof. William A. Schabas of the Irish Centre for Human Rights described as “very likely the largest commutation of death sentences in modern history”, the President of Kenya in early August announced that all death row inmates would not be executed and that their sentences would be commuted to life imprisonment. This move elicited a rare cacophony of praise from both local and international commentators, organizations and governments. In his statement, Kibaki explained that he was acting to relieve the over 4000 inmates’ “mental anguish, suffering, psychological trauma, and anxiety”. Of course, nothing was said about the suffering that this, as well as other moves to abolish the death penalty, is likely to cause in the society as large.

While capital punishment has existed in almost all civilizations, across the world it is increasingly falling out of favour. According to the Kenya National Commission on Human Rights, Currently, more than half the world’s states have taken steps towards total or de facto abolition of the death penalty and apply life imprisonment for the most serious crimes. And less than half of the countries retaining the death penalty actually execute prisoners. In Africa, 11 countries, including Rwanda and South Africa have banned state sanctioned executions. And even those that haven’t are remarkably queasy about the whole affair. Tanzania has not executed anyone since 1994. Uganda, despite President Yoweri Museveni’s declaration that “we shall shoot anybody who kills a human being” has neither shot nor hanged anyone in a decade. In Kenya, while an average of 750 people are sentenced to death each year, none has been sent to the gallows since 1987.

Ever since it came to power, the Kibaki administration has sought to abolish the death penalty is spite of the overwhelming public support for it. In January 2003, two weeks into Kibaki’s first term, then Justice and Constitutional Affairs Minister, Kiraitu Murungi, revealed plans to abolish capital punishment in the country by the middle of the year. A month later his boss ordered the freeing of 28 prisoners on death row and commuted the sentences of 195 others. Presiding over their release, then Vice President, Moody Awori, announced his intention to introduce a Bill in Parliament to abolish the death penalty, prompting the then Commissioner of Prisons, Abraham Kamakil, to declare his longing “for the day Parliament will remove the death penalty from our Constitution.”The sentence was still in the books when, in June 2005, Kiraitu again declared that the government was “committed to abolishing the death penalty”. It is a position which enjoys considerable cross-party support. The ODM’s William Ruto, has called the death penalty a "vengeful" sentence that served no helpful purpose and party secretary Prof. Anyang’ Nyongo has declared that "the death penalty is not a deterrent and should be abolished." Despite this seeming consensus, in August 2007 Parliament defeated a Motion, moved by Kasipul-Kabondo MP, Mr Paddy Ahenda, seeking to do exactly that.

In its Position Paper on the Abolition of the Death Penalty, the KNCHR lists its objections to capital punishment: the death penalty is the ultimate violation of human rights. It is a violation of the fundamental right to life, which the Government has pledged to protect under the Constitution and other international human rights instruments that it has ratified. Similarly, the death penalty amounts to cruel, inhuman and degrading treatment, which contravenes provisions of section 74(1) of the Constitution, the Convention Against Torture and the International Covenant on Civil and Political Rights.

To support its position, the Commission advances several arguments. However, most of them dissolve when applied to other forms of punishment. For example, it declares that “the hallmark of a civilised society is arguably the acknowledgement of human worth and dignity at the core of which is the principle of the sanctity of life, which should be most protected under all circumstances.” The suggestion here is that those who favor the death penalty have a less than total regard for value of human life. Nothing could be further from the truth. More than 130 years ago, the eminent philosopher John Stuart Mill spoke eloquently on the issue before the English Parliament: "Does fining a criminal show want of respect for property or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself."

Arguing against “the retributive eye-for-an-eye delivery of justice”, the KNCHR avers that “The use of (the) death penalty only lowers the standards of government to the mentality of the murderer itself; it only demonstrates that the government is not different from the murderer. We do not punish rape with rape, or burn down the house of an arsonist. We should not, therefore, punish the murderer with death.” If this argument were to be taken to its logical conclusion, then all forms of sanction would be declared immoral as all involve the denial of some fundamental right (life, liberty and property) which some criminal has previously denied to his victims. Prison terms, fines and community service require that we curtail the enjoyment of fundamental freedoms. Surely, abolishing all forms of punishment would be unlikely to deliver a society safe from crime. Secondly, to state that we cannot demand an-eye-for-an-eye recompense is to put the criminal himself in the position of determining what can or cannot be done to him. Since we do not wish to be like thieves, then society cannot take for itself a thief's hard earned property through a system of fines. The very act of thieving would thus deprive society of resort to this kind of punishment and kidnapping would automatically outlaw jail sentences. The criminals would be the new legislators.

The KHCHR believes that the death penalty does not address the victim’s pain and the suffering endured by the victim’s family since “whoever was murdered has no way of knowing and appreciating the punishment meted upon the offender.” This is a curious position to take considering that in the aftermath of the 2008 post-election violence and in answer to call for a general amnesty, the very same Commission declared its firm belief that “accountability for those accused of committing serious human rights violations…is a fundamental aspect of victims' rights to justice.” So which is which? Does the KNCHR believe that the dead have no right to justice?

The KNCHR’s objections to the application of the death sentence are similarly flawed. Take, for example, the sophistic argument that “enforcement of the death penalty amounts to cruel, inhuman and degrading treatment and punishment of the condemned person... In a de facto abolitionist state like Kenya, a person always lives in anxiety with the reality of death hanging over his or her head from the moment of sentencing.” What the Commission is really saying is that it is the failure to carry out death sentences that results in the prisoners’ (to quote Kibaki) “mental anguish, suffering, psychological trauma, and anxiety.”

Dealing with a similar situation, the Uganda Supreme Court in January ordered that all death sentences be carried out within three years. However instead of recommending that we abandon the de facto moratorium on executions, the KNCHR prefers that death sentences are commuted to life imprisonment. Are they seriously asking us to believe that this a morally superior alternative? Amnesty International, in a report titled Prisons: Deaths due to torture and cruel, inhuman and degrading conditions, declared that “prison conditions in Kenya are worse than in other African countries.” And this is how Wikipedia describes the situation in Kamiti Maximum Prison:

There is still no reliable water supply, with over 200 prisoners hauling buckets of water around daily. The inmates working in the ‘industry’ section are paid only 10 cents (kenya shilling) per day, as per the outdated 1940s legislation which rules the organisation. Within the prison, condemned "G" block is famed for its particularly brutal lifestyle, characterised by predatory sodomy and mobile phone confidence tricksters. The prison was built for 1400 prisoners, and it now houses over 3600 in conditions of unbelievable squalor… The authorities have banned any supplemental food…and malnutrition and ulcers have become far more prevalent.

Imprisoning someone for life under such conditions is surely “cruel, inhuman and degrading treatment and punishment.” In fact, the Tanzanian Court of Appeal, when considering the constitutionality of capital punishment in the case Republic v Mbushuu, quoted Paul Sieghart’s 1983 article in The International Law of Human Rights: “As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it. But the international instruments do not infact accord it any formal primacy. International human rights law assigns a higher value to the quality of living as a process than to the existence of life as a state….the law tends to regard acute or prolonged suffering (at all events in cases where it is inflicted by others, and so it is potentially avoidable) as a greater evil than death, which is ultimately unavoidable for everyone.” From the human rights perspective, therefore, life imprisonment under the conditions prevailing in our prisons is a worse, not better, alternative to capital punishment.

The KNCHR paper also raises objections around the fallibility of our criminal justice systems and the irreversibility of death. The fear here is that we are bound to execute a few innocents. Again these objections dissolve when applied to other forms of punishment. If we insisted on an absolute measure of guilt (as opposed to the "beyond reasonable doubt" standard), then we would have no criminal justice system. And all punishments are inherently irreversible anyway. You cannot give back the years and opportunities that are denied someone who is wrongfully jailed or fined.

Concerning the deterrent value of capital punishment, the paper states: “There has been no proven correlation between the death penalty and deterrence of crimes and countries that still maintain the death penalty in their statutes have not seen a downturn in crime. A survey conducted by the UN in 1998 and later updated in 2002 found no correlation between the

death penalty and homicide rates. According to the study, the hypothesis that capital punishment deters crime to a greater extent than does the application of the supposedly lesser punishment of life imprisonment is flawed. In Kenya, for instance, the fact that death sentences are handed down has not deterred commission of crimes for which such sentences are implemented. The key to deterrence is not to apply the death penalty but to increase the likelihood of detection of crime, arrest and conviction.”

However, even here the KNCHR fails to see the wood for the trees. The fact is one would not expect studies to show a deterrent effect if executions are not carried out. The results of study conducted by Hashem Dezhbakhsh and Paul H. Rubin of Emory University and Joanna M. Shepherd of Clemson University suggested that capital punishment when actually employed has a strong deterrent effect; each execution prevents, on average, 18 murders. Another study by H. Naci Mocan of the University of Colorado at Denver and R. Kaj Gittings of Cornell University looked at all death sentences handed out in the United States between 1977 and 1997 and matched that with state-level criminal activity in the relevant time frame. Their results show that each additional execution decreases homicides by about five. More worryingly, each additional commutation increases homicides by the same amount, while an additional removal from death row generates one additional murder.

While the Kenya situation obviously differs from that in the US, we all have to be concerned about the possibility that by commuting the more 4000 death sentences to life imprisonment, President Kibaki may well have signed the death warrants of up to 20,000 innocents. As Cass R. Sunstein and Adrian Vermeule state in their paper Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs: “If the current evidence is even roughly correct, then a refusal to impose capital punishment will effectively condemn numerous innocent people to death. States that choose life imprisonment, when they might choose capital punishment, are ensuring the deaths of a large number of innocent people.” Surely, the first obligation of every government is the protection of its citizens. As John McAdams of Marquette University’s Department of Political Science puts it, "If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call."