AG joins criminal appeal challenging constitutionality of death penalty

Attorney General Anil Nandlall, SC, has filed a motion at the Guyana Court of Appeal asking to be joined as an interested party in an appeal filed by three former Guyana Defence Force (GDF) Coast Guards who were sentenced to death by hanging in 2013 for murder.
The murder convicts – Sherwyne Harte, Devon Gordon, and Deon Greenidge – were found guilty of the August 20, 2009 murder of Bartica gold miner, Dwieve Kant Ramdass. The death sentence was imposed on each of them by High Court Judge Franklin Holder.
In asking the Court of Appeal to set aside their conviction and sentence, the convicted killers, among other things, argued that the death penalty is unlawful as it is contrary to the Constitution of Guyana. They also argued that the death penalty is unconstitutional as it is contrary to the constitutional right under Article (1) and Article 40 (1) of the Constitution.

Through their lawyers Nigel Hughes and Latchmie Rahamat, the convicts submitted that Article 40 (1) of the Constitution provides a free-standing right to life and human dignity which prohibits the imposition of the death penalty “and which is separately enforceable and out-with the scope of the general savings clause in Article 152 of the Constitution.”
According to the lawyers, the imposition of the death penalty is a breach of the constitutional prohibition against inhuman and degrading punishments or other treatment within Article 141 of the Constitution because the capital punishment offends against the evolving standings of humanity as demonstrated by domestic and international State practice.
“The execution of the death penalty following a lengthy de-facto moratorium would be contrary to Guyana’s binding international law obligations under the International Covenant on Civil and Political Rights (ICCPR). The imposition of a penalty which cannot be lawfully effected is itself cruel and unusual in breach of Article 141 of the Constitution.”

Public interest
In a Notice of Motion requesting to be joined as an interested party in the criminal appeal, Nandlall said that the matter raises novel and important constitutional issues which go to the core of Guyana’s constitutional ethos and addresses the vexed question of the legality of the death penalty.
“The Attorney General is seeking to intervene as a party to the appeal to assist the court with written and oral submissions to aid the court in putting all cases and relevant authorities before the court,” Legal Officer Ocelisa Marks said in an affidavit.
Marks said that the Attorney General is the principal legal advisor to the Government of Guyana and has a public duty to protect the public’s interest and is the keeper of the public’s conscience.
Against this backdrop, she deposed, “The adding of the Attorney General will certainly assist the court and further the development of the law and jurisprudence relating to the death penalty.”
According to Marks, the nature of the appeal makes it a public interest matter because it is a challenge to the constitutionality of the death penalty for its complete removal from the laws of Guyana which is a matter of high constitutional law.
“The court has both a power and a duty to modify relevant legislation to ensure it is rendered consistent with fundamental rights and principles of the Constitution,” Marks noted in the affidavit.

Fresh evidence
At a Case Management Conference (CMC) in the substantive matter, Hughes informed the court that he will be leading fresh evidence on the lawfulness of the death penalty and will be calling two witnesses – a professor at the Middlesex University and a Professor from the Columbia Law School.
Assistant Director of Public Prosecutions (DPP), Dionne McCammon will lead the case for the State. Meanwhile, the Notice of Motion will come up for hearing on April 30, 2021, at the Court of Appeal. It will be conducted via Zoom. In the meantime, the Appeal Court has fixed strict timelines by when the respective parties are to layover submissions and affidavits ahead of the hearing.
It was reported that on the day in question, at Caiman Hole in the Essequibo River, the former GDF ranks forced Ramdass into their boat and relieved him of $17 million, which he was carrying in a box for his employer. They then dumped Ramdass overboard.
During the three-month-long trial, the prosecution called 16 witnesses. The court also admitted caution statements given by the former GDF Coast Guards following a voir dire.