London-based NGO to challenge lawfulness of Guyana’s death penalty at CCJ
…retention of punishment represents intention of Parliament – AG’s Chambers
A London-based non-governmental organization (NGO) has said it is preparing to challenge the constitutionality of Guyana’s death penalty at the Caribbean Court of Justice (CCJ), after the local appellate court had refused its request to strike down the capital punishment as being unconstitutional.
In June 2021, The Death Penalty Project, which has for over three decades been providing free legal representation to those facing the death penalty, reported that it had facilitated the submission of expert reports from leading academics for the case of three former Guyana Defence Force (GDF) Coast Guards.
The trio of Devon Gordon, Deon Greenidge and Sherwyn Harte had, back in 2013, been found guilty of the robbery and murder of gold miner Dweive Kant Ramdass, 24, and had been sentenced to death by trial Judge Franklin Holder.
Ramdass was, in August 2019, on his way to drop off $17M for his boss when Coast Guard ranks lured him into their boat and relieved him of the large sum of cash before tossing him overboard and splitting the money equally among themselves.
The three men appealed to the Court of Appeal of Guyana, arguing, among other things, that the death penalty should be outlawed because it is unconstitutional; it is arbitrary, irrational, disproportionate; and is contrary to the principles of the rule of law.
They had particularly averred that the death sentence contravened the fundamental rights provisions of the Constitution of Guyana, among them being Articles 40, 141 and 149. While the Court of Appeal, in its December 21 ruling, had declined to strike down the death penalty as unconstitutional, the three death sentences were overturned and replaced with life sentences.
The Appeal Court Bench of acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud ordered that Harte, who according to the evidence was the mastermind behind the attack, must serve 25 years of his sentence before being eligible for parole, while his two co-convicts have each to spend 18 years incarcerated before being eligible for parole. Each of them was credited for time already served.
The Death Penalty Project offered assistance to the trio, and supported their legal team in Guyana. In the course of their appeal, the NGO provided evidence from leading academics.
In a statement issued on Thursday, The Death Penalty Project described the case as a “landmark challenge” to capital punishment. According to the organisation, “The evidence showed that capital punishment does not act as a greater deterrent to crime than lesser forms of punishment, and that there is a growing consensus that capital punishment is inherently inconsistent with respect for the rule of law.”
Supported by The Death Penalty Project and barristers from Doughty Street Chambers, the men’s legal team argued that the death penalty was unconstitutional; being arbitrary, irrational, disproportionate, and contrary to the constitutional principle of the rule of law.
“The Court of Appeal has not accepted these arguments, and has declined to declare capital punishment unconstitutional in Guyana. The Court of Appeal overturned the appellants’ sentences of death on the basis that it was unconstitutional for the trial court to hand down the death penalty automatically, without affording the appellants individualised sentencing hearings. The failure to do so was a breach of their constitutional rights,” the NGO noted.
The Death Penalty Project pointed out that the Court of Appeal should have declared all death sentences unconstitutional, and that given the court’s position on the issue, it would explore a further appeal to the Trinidad-based CCJ — Guyana’s apex court.
Reacting to the appellate court’s ruling, Co-Executive Director of the Death Penalty Project, Saul Lehrfreund, said: “Whilst we are pleased to see the three appellants removed from Death Row, the Court of Appeal’s approach to the constitutionality of the death penalty itself is extremely disappointing.
“The death penalty is inherently arbitrary, and contrary to the constitutional rights of those whom it affects. We remain resolved to abolish the death penalty in Guyana, and will work with the legal team in this case to mount an onward appeal to the Caribbean Court of Justice.
“Guyana remains the only country in South America to retain the death penalty, and we call on the country’s leaders to take the necessary steps to abolish the punishment.”
Intention of Parliament
Meanwhile, the Attorney General’s Chambers on Thursday said that, on the subject of the constitutionality of the death sentence, as currently provided for, the Appeal Court did not indicate that the death penalty, as a sentencing option, as opposed to the only option in certain cases, is unconstitutional.
It therefore noted that the death penalty remains a viable sentence option for courts in Guyana, and represents the intention of the Parliament. According to the AG’s Chambers, the statement by the Death Penalty Project “disregards the reasoning of the [Court of Appeal], and the intentional express text of the Constitution of Guyana, and therefore constitutes an affront to that very Constitution and the rule of law.” It has been said that “one cannot seek to allegedly uphold the Constitution by breaching an express provision thereof.”
While quashing the capital punishment, the Appeal Court held that although the ex-soldiers were convicted of murder under the old Criminal Law (Offences) Act, and were liable to the mandatory death sentence, the imposition of the death penalty had not been appropriate in this case, since amendments to the Act had taken a modern approach to sentence.
As the law which was amended in 2010 stands, a Judge now has the discretion to impose the death sentence, imprisonment for life, or such other term he/she considers appropriate. In their ruling, the Judges stayed clear of making any declarations on the constitutionality of capital punishment.
In the proceedings before the Court of Appeal, the killers were represented by Senior Counsel Douglas Mendes from Trinidad and Attorneys-at-Law Nigel Hughes and Latchmie Rahamat.
In response to their lawyers’ contention that the death penalty was unconstitutional, Attorney General Anil Nandlall, SC had, among other things, said that its retention as part of Guyana’s sentencing regime is a manifestation of the will of the Guyanese people exercising their sovereignty.
“The death penalty is neither inconsistent with Guyana’s municipal law nor its international law obligations…the death penalty has been engrained in Guyana’s constitutional framework from time immemorial, and has been deliberately retained,” the Attorney General had said. This, he had pointed out, is evidenced by its survival despite numerous constitutional and legislative amendments. “The retention of the death penalty as part of Guyana’s sentencing regime is a manifestation of the will of the Guyanese people exercising their sovereignty.”
According to The Death Penalty Project, it is driven by the belief that the death penalty is cruel, and often discriminates against the poorest and most disadvantaged members of society.
As such, it pointed out that it works strategically to safeguard the rights of those facing the death penalty and other vulnerable prisoners; adding that its work has saved thousands of prisoners and transformed the legal landscape in over 30 countries in which it operates.