For 24 death-row inmates, legal red tape has proven a dubious reprieve.
August will be ten years since the last capital punishment execution. Since then, seven death-row inmates who had their death warrants read to them have effectively deferred their executions by mounting legal challenges.
At the end of the election campaign last year, President Bharrat Jagdeo restated his support of the death penalty, while noting that the state could not carry out executions as a result of the pending challenges before the courts. In fact, there is nothing preventing the reading of death warrants to prisoners who do not have petitions pending before the still-to-be-constituted Advisory Council on the Prerogative of Mercy.
Attorney Anil Nandlall believes that the failure to read death warrants to the remaining prisoners on death row has been an omission on the part of the relevant authorities. He notes that the courts have found that the death penalty is constitutional and that the delays resulting from the litigation initiated by the death row appellants do not amount to cruel and inhumane treatment. As a result, he believes that the law should be applied where legal processes have been exhausted. "[The death penalty] is part of the laws and the legislature has seen it," he says, while adding, "the executive has seen it fit to keep it and the law must be applied swiftly and strictly."
Previously Attorney-General Doodnauth Singh told Stabroek News that until the legal issues are settled any prisoner to whom the death warrant is read could approach the court on the same ground as the others with existing suits. As a result, no death warrants have been read recently.
The oldest challenge is the constitutional motion by Noel Thomas and Abdool Yasseen (Yasseen died in prison five years ago), contesting the appointment of the appellate court justices, on the ground that it was contrary to recommendations of the Judicial Service Commission. Thomas has been on death row since 1988, when he and Abdool Yasseen were sentenced for the murder of Yasseen's brother. Thomas has waged a legal fight for almost 20 years in a bid to commute the sentence to life imprisonment. At one point, the duo had successfully appealed to the UN Human Rights Committee, which recommended their immediate release from prison; Guyana subsequently withdrew from the UN Optional Protocol on Civil and Political Rights, then re-subscribed with a reservation preventing convicted murderers from appealing to the body.
Also pending are the motions brought by Oral Hendricks, Lawrence Chan, Ravindra Deo, Ganga Deolall and Raymond Persaud, who have challenged the constitutionality of their executions. Among the grounds they have cited are that the death penalty is unconstitutional, and the length of time that they have been on death row constitutes cruel and inhumane treatment prohibited by the Constitu-tion.
What has yet to be tested is the provision in Article 39 (2) (introduced in 2001) of the Constitution, which stipulates that in the interpretation of the fundamental rights provisions in the Constitution a court is to pay due regard to international law, international conventions, covenants and charters bearing on human rights.
Some lawyers believe that the existing laws must now be interpreted in order to avoid inconsistency with the relevant international conventions and covenants governing the upholding and enforcement of human rights. At the very least, persuasive precedent exists in the case of the State v. T. Makwanyane and M. McHunce (1995), where the constitutional court of South Africa declared capital punishment to be unconstitutional because of republic's subscription to international conventions. Since Article 39 is modelled on the Consti-tution of South Africa, it is believed that Guyana is similarly enjoined to pay due regard to international law in relation to the retention of capital punishment.
But Nandlall says that despite the ruling in South Africa, the proviso simply requires the state and the courts to take into account the international conventions in the application of the laws. He explains that it does not mean that it can authorise the breach of the municipal law, which prescribes capital punishment.
It is his view that Article 39 is really applicable in situations where there is an anomaly or lacuna in the country's domestic laws that require a court to resort to international conventions in order to find a resolution. Moreover, he points out that the government's actions in relation to the UN Optional Protocol on Civil and Political Rights demonstrates the clear intention of the state.
Meanwhile, the Advisory Council on the Prerogative of Mercy, which expired in 2005, is still to be reconstituted.
The constitutional body is required to get a written report of the case from the trial judge, together with any other information derived from the record of the case or elsewhere as may be required to be taken into consideration at a meeting of the council. After obtaining the advice of the council, a designated minister is to express his own deliberate opinion to the President as to whether he should exercise any of his power in relation to the person. The body was last set up in 2002, under the chairmanship of then minister within the Ministry of Local Government Clinton Collymmore. During its tenure, there were no recommendations on the implementation of the death penalty.
The last executions at the Georgetown Prisons were on August 25, 1997, when Michael Archer and Peter Adams were hanged for the 1986 murder during a robbery in Berbice. Ayube Khan and Rocliffe Ross were hanged four months apart in the previous year.
Although Guyana has adopted the Caribbean Court of Justice (CCJ) as its highest appellate court, the situation in the region is still no closer to being settled. In November last year, the CCJ dismissed an appeal by the Barbados government challenging the commuted sentences given to two convicts on death row. But the decision in the first capital punishment case for the regional appellate court was a default ruling, since the re-imposition of the sentences would have breached the five-year limit for the prisoner's execution, established by the UK Privy Council precedent set by Pratt and Morgan. The court also acknowledged the protection offered by 2001's Neville Lewis v. Attorney General of Jamaica, which allows for the right to petition an international human rights body before execution in territories where such treaties have been ratified.
At least four of the seven judges sitting on the CCJ agreed that the two cases have created a legal "dilemma" for countries in the region. In a joint judgement, President of the Court, Justice Michael de la Bastide, and Justice Adrian Saunders said that states that constitutionally sanction the death penalty might be unable carry it out because of the co-joint effect of Pratt and Morgan and Lewis.
At the Georgetown Prison, the inmates on death row are housed in a separate cellblock, which can accommodate a maximum capacity of 30. Each inmate is housed in a separate cell and is isolated from the general prison population under the strictest security regime at the facility.
Among the inmates are Muntaz Ally, Terrence Sahadeo and Shireen Khan, who have been in prison for almost 22 years for 1985 murder of Roshanana Kassim. After their appeal was heard, the Guyana Court of Appeal affirmed their sentences and dismissed their appeal in 1996. They approached United Nations Human Rights Committee that same year and it recommended that Sahadeo's sentence be commuted to life imprisonment, but the government has not acted. Khan is one of the two female inmates on death row.
Lallman and Bharatraj Mulai have been on death row since July, 1994, when they were sentenced to hang for the 1992 murder of Doodnauth Seeram. The Court of Appeal set aside the death sentence and ordered a retrial in 1995, but the Mulais were convicted and sentenced to death a year later. The Court of Appeal confirmed the sentence on appeal. After several requests to the government for information on the case in April 1998, December, 1998, December, 2000, August, 2001 and March, 2003 went unanswered, the United Nations Human Rights Committee concluded in August 2004 that the brothers' trial had been unfair and recommended "an effective remedy, including commutation of their death sentences."
More recently, in 2002 Joseph Craig was sentenced to death for the murder of Nellis Hope, a female security guard in February, 1998.
Shawn St. Hillaire was sentenced to death in April 2004 after he was found guilty of murdering his aunt, Norma Sandiford in 2002.
In the same month Odinga Green was sentenced to death after a jury unanimously found him guilty of the murder of Sandra Harvey at Wisroc, Linden in December 1999.
In November 2005, Niranjan Rattan, also known as 'Engine,' was sentenced to death for the 2003 stabbing murder of Lalbahadur Singh also called 'Petromax.'
In July 2006, Brian Vandeyar was sentenced to hang after a jury found him guilty of the murder of Haimnauth Ramnarine in 2003. Vandeyar stabbed Haimnauth several times to his body at Governor Light, Mahaicony River.
In September the same year Devanand Tilaknauth, called `Fine Boy', was found guilty by a jury for the 2004 murder of his wife, Chandrawattie Ramnarine, at Hampshire Village Coren-tyne, Berbice.