African Court rejects death penalty challenge on technical grounds

The African Court of Human and People’s Rights has rejected a challenge to the mandatory death penalty in Ghana on a narrow technical argument, namely that the issue had already been considered by the UN Human Rights Committee.

The application was brought by Dexter Johnson, who was given a mandatory death sentence for murder in 2008. Mr Johnson argued in the Court of Appeal and Supreme Court of Ghana that the mandatory imposition of his death sentence amounted to inhuman punishment and an unlawful restriction on the right to life. On that basis it was incompatible with the Constitution of Ghana. This was because a mandatory death penalty prevents any mitigation by reference to the circumstances of the offence or the offender and is therefore cruel and arbitrary. The courts in Ghana rejected that argument, so Mr Johnson brought a communication the UN Human Rights Committee, which held in 2014 that Ghana was in breach of its obligations under the International Covenant on Civil and Political Rights, in particular the protection of the right to life.

Unfortunately, Ghana has ignored the Human Rights Committee’s findings, which are not binding, so Mr Johnson sought a binding ruling on the issues from the African Court of Human and People’s Rights. In particular, he argued that the mandatory death penalty in his case violated the right to life and the protection against inhuman punishment under the African Charter on Human and People’s Rights. The Court has now rejected the application on the narrow basis that the matter has already been considered by another international body.

Mr Johnson was represented pro bono before the African Court by Joe Middleton, Amal Clooney and Oliver Windridge, instructed by Saul Lehrfreund at the Death Penalty Project. Joe Middleton also assisted Mr Johnson in his proceedings in the Court of Appeal and Supreme Court of Ghana and in his communication to the UN Human Rights Committee.

Commenting on the African Court’s decision, Joe Middleton said: “We regret this missed opportunity. There were good arguments for the African Court to consider the application despite the previous involvement of the Human Rights Committee, but we obviously respect the decision of the Court. We will look for other ways to pursue this important point in other cases and to challenge Ghana’s failure to comply with its obligations in international law.”