The Tribune

EDITOR, The Tribune.

My fellow Bahamians, many of you are clamouring for the use of the death penalty as you’re aghast at the proliferation of crime, senseless murders being committed on our streets.

It’s appalling and it’s a very sad indictment on the state of our nation.

Politicians and clergy and sectors of the general public thus want solutions and are calling upon the government to enforce the law.

The law is not what most perceive it to be.

When persons call for the death sentence to be imposed they are of the view that the legal position is a convicted person is subject to a mandatory death sentence.

That is no longer the case and hasn’t been for a number of years since the Privy Council decision in Forrester Bowe (Junior) and Trono Davis, v The Queen, [2006] UKPC 10 [2002] 2 AC 235, [2006] 1 WLR 1623

Very briefly, it was held that it was unconstitutional in the Bahamas for capital punishment to be the mandatory sentence for murder. The JCPC held that because the Constitution of the Bahamas contains a qualified right to life and prohibits “inhuman or degrading punishment”, following a murder conviction, a trial judge must have discretion to impose a lesser penalty than death by hanging; capital punishment may be applied only in those cases that contain aggravating factors as compared to other murder cases.

As a result of that decision, the Bahamian Government during the third Ingraham Administration changed the law, in the Penal Code Amendment Bill 2011 to be in compliance with the law as defined by Her Majesty’s Privy Council in their decision.

Accordingly, the death penalty or life imprisonment must be specifically sought by the prosecution and can only be sought and thus it is only mandatory in very few instances which are defined and stated in section 290 of The Penal Code.

So for the death penalty or term of life imprisonment the person must be charged under section 291A of the Penal Code.

A term of life imprisonment is also available under section 291B(i) which is a term of imprisonment for the remainder of the convict’s natural life.

In my opinion, a life sentence as defined by section 291(6) of the Penal Code is a sentence for the remainder of a person’s natural life and is in all the circumstances analogous to a death sentence.

Of the 130 plus murders that we appear to be averaging on an annual basis, very few persons are charged under 291A as it’s reserved for defined circumstances such as killing of police or judicial officers or those person imbued with the authority to act in that capacity, where two or more people are killed and or witnesses in the criminal proceedings matters, to name a few.

The list is more exhaustive than that which I’ve listed so I’ll encourage you to look at it for yourself.

Who is charged under section 291B(i) is unclear and not defined and there is little or no case law developed with respect to this.

So as in times like we are experiencing where crime, especially murder, is spiraling out of control it must be borne in mind exactly what the state of the law is.

It behooves the government and the politicians to allow the ambiguity to exist as they are then not forced to make a public declaration as to what their position is on the death penalty.

The unsuspecting public is thus under a serious misconception as to the facts.

In order to change this position, we will have to amend the constitution and the law and for that we will require a national referendum.

Honestly, I don’t see that happening any time soon or at all.

Further, the available evidence through studies presented in scholarly papers are mostly of the opinion that the death penalty does not provide a deterrent to crime.

In fairness, the view from Singapore and The Philippines is different as it contends the death penalty is a deterrent.

The United Kingdom and its judicial system considers the mandatory death penalty to be barbaric and inhumane.

This view is shared by organisations such as Amnesty International and the UN General Assembly has also issued a report on the death penalty issue.

Again, however, much of the English speaking Caribbean supports the death penalty although many of these nations have now had their positions defined by the Privy Council.

Craig F Butler Esq

Nassau

January 18, 2024