The common law mandatory death penalty for murder, in which a death sentence is automatic upon conviction, is increasingly out of sync with prevailing human rights norms. By failing to consider individualised circumstances of an offence or an offender, the penalty overpunishes, encompassing mercy killing with sadistic killing and murders in cold blood with those in the heat of passion. Although most former British colonies inherited a process for executive mercy in which the governor-general and later an independent head of state could dispense clemency in troubling cases, the unreviewable power of the pardon does not remove all risk of arbitrariness or mistake. As a consequence, international tribunals such as the Inter-American Commission on Human Rights and the United Nations (UN) Human Rights Committee have determined that a mandatory sentence of death is a cruel and degrading form of punishment because it could be too harsh, and not limited to the ‘most serious crimes’ as required
In the common law world, the harshness of an automatic sentence of death has gradually given way to judicial sentencing discretion in capital cases. In practice, judicial sentencing discretion has taken two forms. The first is to require a trial judge to articulate an aggravating factor that placed a crime into a special category of seriousness meriting the unusual penalty of death; the trial judge is able to review the evidence and pass a sentence specifically tailored to the criminal offence and offender. This was the regime that originated in the United States after the death penalty was reinstated in Greggv Georgia in 1976, and in India after capital punishment was reserved for the
of neighbouring Southern African countries in the following decades, where it was known as the ‘doctrine of extenuating circumstances’.3
Over the past four decades, the first option, the American or Indian- style discretionary death penalty, has emerged as the consensus in the
1 See art 6(2) International Covenant on Civil and Political Rights UN Doc A/6316 (1966), 999 UNTS 171 (23 March 1976); art 4(2) American Convention on Human Rights; ThompsonvStVincentComm 806/1998, UN Doc CCPR/C/70/D/
2 GreggvGeorgia428 US 153 (1976); BachanSinghvStateofPunjab1980 (2) SCC
3 Sec 61 Criminal Procedure and Evidence (Amendment) Act 46 of 1935 (SA).
common law world, including in the Commonwealth Caribbean and common law East Africa.4
By contrast, the doctrine of extenuating circumstances, which requires a judge to find a mitigating factor in order to determine that a punishment does not merit the death sentence, conflicts with the overwhelming international trend to limit the death penalty only to the ‘most serious crimes’ by establishing a presumption against
death.5 The doctrine lacks the analytical rationality of a pure
Apartheid South Africa had one of the most active death penalties in the Western world during the twentieth century, and an enormous body of intricate case law developed on the doctrine that was highly influential in the Southern African region. The white legislature of Rhodesia adopted the doctrine in 1949, as did the drafters of the revised penal codes of Botswana, Lesotho and Swaziland prior to
original doctrine that removes the most objectionable aspects of the doctrine.7Only Zambia retains the original doctrine, though the constitutional drafting process currently underway offers an
opportunity to reform the capital sentencing process in a manner consistent with international human rights and due process norms.8
Where the doctrine survives, it is an anachronism, and its abolition contributes to the narrowing of the scope of the death penalty in the common law world.
4 See eg ReyesvTheQueen 2 AC 259 (PC) (appeal taken from Belize); The QueenvHughes 2 AC 259 (PC) (appeal taken from St. Lucia); FoxvThe Queen AC 284 (PC) (appeal taken from St Kitts & Nevis); Kafantayeniv Attorney-General  MWHC 1 (Malawi HC); Attorney-General vKigula UGSC 6 (Uganda SC); MutisovRepublicCrim App 17 of 2008 (30 July 2010) (Kenya CA).
5 See art 6(2) International Covenant on Civil and Political Rights.
6 A Novak ‘Abuse of state power: The mandatory death penalty for political crimes in Southern Rhodesia, 1964-1970’ (2013) 19 Fundamina28.
7 See Kelaletswe vS BLR 100 (Botswana CA); LetukavRex1997-1998 LLR-LB
8 C Musonda & L Nyondo ‘Constitution to stand test of time: Zambia still waits’ Zambia Daily Mail 7 July 2013) http://www.daily-mail.co.zm/features/14909 (accessed 31 January 2014).
2 International human rights and the doctrine of extenuating circumstances
The doctrine of extenuating circumstances is less compliant with prevailing human rights norms than a pure discretionary death penalty for three primary reasons. First, the doctrine requires two separate discretionary acts instead of one, which increases the potential for arbitrariness or error, by requiring a judge to consider all mitigating factors in determining whether extenuating circumstances exist, and then, separately, to weigh mitigating factors against