Beyond lex talionis

May be I need to make myself understandable here. Lex talionis, is a latin term, referring to “Law of Retaliation (in English) otherwise “an eye for an eye” as it is referred by scriptures. In a simpler term, he who kills must be killed or punishment be equal to crime. And given that The Gambia extends death penalty to drugs and human trafficking, Kissy-Kissy Mansa argues that this amounts to excessive vengeance.  

"They are going to kill them for crimes they did not commit,” families of the eight treason convicts, including former defense chief, bemoan after justice Amadi declared: “I hereby sentence you to death…”

Three months on, former defense chief Lang Tombong Tamba and co are still breathing  (according to reliable source) but in jail, thanks to their defense team who appealed against the conviction before president Yahya Jammeh fulfils the executioner’s dream.

It is the same fate hanging over Sulayman Bah, who was convicted for killing a housemate over $457 and a Senegalese woman, Tabara Samba, convicted for killing her husband by pouring boiling oil over him after she grew suspicious the man was going to take a second wife.

As these valuable souls await the president to append his signature for them to be asked of their final words, The Gambian parliament recently amended Drug Control Act 2003 and Trafficking of Persons Act 2007, substituting the penalties with death sentence for would-be offenders.

Human rights activists and some Gambians have greeted this move with disapproval, which is seen as the latest move to curb these heinous crimes that are rising at a worrying rate in the country; for it both contradicts the constitutional provision on death penalty, and hefty by all standards.

 “Although one cannot measure the destruction 250g of cocaine could cause, but life is too precious for it. Infact the world is abolishing death penalty,” says Hon. Babanding Daffeh, an opposition National Assembly member.

“In my opinion, in as much as we want to curb drug trade and human trafficking, we should not impose death penalty, but rather emphasize on preventing it and re-integrating criminals into the society.”

The constitution states very clearly that no court in The Gambia shall be competent to impose a sentence of death for any offence unless the sentence is prescribed by law and the offence involves violence or the administration of any toxic substance, resulting in the Death of another person.

“As lawyers or any other person, we never supported any drug trafficking or drug trafficking activities by any syndicate. But, the issue whereby there would be death penalty for anybody, we do not support the death penalty to be part of the penalties for such,” human rights lawyer Assan Martins told VOA recently.

Martins said the penalty for any drug offenses could be “for life imprisonment if he is caught” instead of the death penalty that the person will face under the new measure introduced by the government.

The Gambia, the tiniest country in Africa with an estimated human population of 1.5m, is among the first African countries to abolish death penalty – in 1981 – during the first republic.

Since independence in 1965, death penalty has been executed only once, on Mustapha Danso for killing the then commander of the Field Force, Ekou Mahoney.

However after the military take over in 1994, the junta re-instituted it by decree in 1995, and it was later incorporated into the 1997 Constitution. This resulted in the commuting of the life imprison of one Lamin Darboe to death sentence after he was accused of being the ring leader of hunger striking prisoners. Death sentence initially applies to murder and treason, but now extends to drug and human trafficking, pending President Jammeh’s assent.

According to the new amendment on Drug Control Act, any person found guilty of being in possession of over 250g of cocaine or heroine shall be sentenced to death, while human trafficking has been extended from life imprisonment to death sentence.  

“The menace of drug trafficking and the activities of major drug lords have started to rear their ugly heads in this jurisdiction in recent times,” justice minister Edu Gomez told lawmakers. “Therefore this bill seeks to nip the negative developments in the bud by providing sentences which will serve as deterrent to anyone wishing to use this country either as a transit or destination point for hard drugs.”

On human trafficking, he says, “Both the strategic location of The Gambia as a gateway to the western world as well as our liberal immigration policy has attracted the attention of unscrupulous persons in using the country as a transit route for trafficking in persons.

“Therefore this bill seeks to enhance the penalties in order to protect vulnerable persons.”

This move came hard on the heels of an upsurge in both illicit drug trade and human trafficking in the country, with a view to curbing the menace.

Indeed, The Gambia has in recent times witnessed a sharp rise of trade in illicit drugs, to a magnitude Kissy-Kissy describes as “a Mexico state”.

June this year, security agents seized about two tones of cocaine with an estimated value of $1billion bound for Europe, a discovery that shocks the nation.

Former chief of anti-drug agency and four of his staff are facing trial over drugs. Separately, the former police chief and two top military officers are also alleged to have lied against the president that he gave them illicit drugs to sell. The trio is facing trial at the High Court in the capital, Banjul.

In the fight against drugs, the president has issued several stern warnings. During celebrations marking 16 years of his rule – military-turned civilian – he vowed to clamp down on the practice.
“I would rather die than allow some misguided elements to use The Gambia as a drug zone,” Jammeh was quoted as saying.

This was followed by dashing-out of 9 brand new four-wheel drive vehicles to the National Drug Enforcement Agency, following which, hardly a week goes by, without seizure of either cocaine or cannabis.

The introduction of death penalty is seen as the latest move towards the “all-out-war against drugs. Can it be justifiable?

Martins and Badinding may not even know about each other, but they echo the same concern; there is a possibility that innocent people could be executed for crimes they have not committed.
“We need to rehabilitate our criminals” Daffeh says and Martins buttressed: “The fear is that an innocent person may also suffer or may end up being a victim. We don’t support anything of collective punishment of both the innocent and the guilty”.

It is worthy of mentioning that modern penal systems are designed to be correctional or rehabilitative and not primarily punitive in nature, for the fact that once a criminal could not always be criminal.

In Islam for instance, the Quran permits exact and equivalent retribution, but softens the law of an eye for an eye by urging mankind to accept less compensation than that inflicted upon him or her or to forgive altogether.

"You have heard that it was said, 'An eye for an eye and a tooth for a tooth'. But I say to you, do not resist an evildoer. If anyone strikes you on the right cheek, turn to him the other also" says Jesus Christ.

After all, the whole world agrees with an Indian civil rights leader, Mahatma Gandhi that: “the law of an eye for an eye makes the whole world blind.”