Stephen Vasciannie UNDER THE headline, 'Dad sentenced to death by stoning for incest', The Gleaner of January 15, on page D7, carried a Reuters report from Lagos about a Nigerian father of three who recently has been sentenced to death by an Islamic court. Specifically, an Islamic sharia court in Alkaleri, in northeast Bauchi state, convicted a 45-year-old man of incest the rape of his 15-year-old stepdaughter and pronounced the sentence of death on December 29.
According to the report, the man had confessed to the court that he raped the girl. The report further indicated that the girl is now six months pregnant as a result of the rape, and that she was sentenced to 100 strokes of the cane.
From the human rights perspective, this disturbing story raises several questions. Two that immediately come to mind are: whether it will be justifiable to execute the man for rape; and whether it could ever be justifiable to punish the victim of the rape in the manner reported.
As to the first question, I presume that sharia law allows execution for rape in at least some circumstances, so the issue is not whether execution for rape is permitted under the prevailing law in the northeast Bauchi state. Rather, it is whether, having regard to international human rights standards, a rape conviction may justifiably prompt execution, by stoning or otherwise.
INTERNATIONAL LAW
Generally speaking, international human rights law does not prohibit the death penalty. The Universal Declaration of Human Rights, United Nations General Assembly Resolution 217A (III) of 1948 indicates, in Article 3, that "everyone has the right to life, liberty and security of person", and in Article 5, that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment". Beyond these broad propositions, however, the Declaration does not address the question of capital punishment.
Also, because the Universal Declaration is a resolution of the General Assembly, its strictures are not automatically binding as law. Thus, in the years following 1948, various States sought to give binding form to the standards set out in the Declaration. One result was the International Covenant on Civil and Political Rights of 1966, a binding treaty to which Nigeria is a party.
Article 6(2) of the International Covenant on Civil and Political Rights stipulates that: "In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime". Article 6 also indicates, inter alia, that its terms cannot be used to delay or prevent the abolition of capital punishment.
Article 7 of the International Covenant on Civil and Political Rights may also be relevant for the present purposes; this provision stipulates in part that: "No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment."
So then, the main legal issue that arises with respect to the 45-year-old man is whether his act of rape falls within the category of "the most serious crimes". Notice that the form of words used in Article 6(2) does not clarify whether the most serious crimes must be among the most serious as recognised by local law (i.e. sharia law in this case) or among the most serious as recognised by international law. In this specific case, however, the imprecision inherent in Article 6(2) is not likely to be significant, as it is fair to argue that under either local or international law, rape is among the most serious crimes.
It appears, therefore, that the 45-year-old man could legitimately be executed for rape. But this conclusion must remain subject to at least three considerations that prompt restraint. First, it should be recalled that Article 7 of the International Covenant on Civil and Political Rights prohibits cruel, inhuman or degrading treatment or punishment. The practice of stoning to death may well have been sanctioned in Biblical times, but at least to Western eyes it is cruel and inhuman. This prompts the wider question whether, in a world of diverse cultures, there can ever be objective standards for concepts such as cruelty and inhumanity a question which will necessarily have to be deferred to another time.
PROPORTIONALITY
Secondly, even on the assumption that lithocide is not cruel and inhuman, issues of proportionality must arise. Before the post-World War II development of human rights, courts were usually mandated to ensure that the punishment should fit the crime; and this approach has gained even greater force with the emphasis on proportionality in various aspects of modern human rights law. Is execution a proportionate response to rape? The response to this question will turn on a wide variety of situations, but in the Caribbean legal environment the answer offered is no. Again, therefore, cultural considerations are likely to be important in determining the fate of the 45-year-old rapist.
Thirdly, many human rights advocates will oppose the execution of the rapist on the basis that the death penalty is always and everywhere impermissible, contrary to human rights law, barbaric and uncivilised. Although this position has considerable moral force, and has convinced many lawmakers throughout the Western world, it is not (yet) entirely correct as a statement of international human rights law: see the provisions of Article 6 of the International Covenant on Civil and Political Rights noted above. Where a State has ratified the Second Optional Protocol to the Covenant, the death penalty would be against the law, but Nigeria is not a party to that instrument.
VICTIM PUNISHMENT!
Finally, the second question noted above - whether it could ever be justifiable to punish the victim of the rape - may be given short shrift in both morality and law. Any legal system that sanctions the punishment of a rape victim needs to be drastically revised. The punishment of a rape victim is arbitrary, cruel, akin to torture, and contrary to the basic principle that one needs to commit a crime before punishment may be imposed.
It seems that the court in question is profoundly confused. If the 15-year-old girl had given consent to illicit sex, and in the view of the court should somehow be punished for this, then her stepfather ought not to be convicted of rape. And if the 15-year-old girl did not consent to sex, then any attempt to punish her should be condemned by the international community. Regardless of our divergent cultural perspectives, punishing the victim of rape is beyond the pale.
Stephen Vasciannie is Professor of International Law and Head, Dept. of Government, UWI. He is also consultant in the Attorney General's Chambers
