HAKUNA MATATA

The recent hanging of Saddam Hussein and his associates has once again brought to the fore the endless debate on whether to retain or abolish the death.

This time however, Western governments who traditionally support the abolition of capital punishment were on the spot. They have for decades lectured the rest of the world on the merits of abolishing the ultimate sanction. But when the moment of their archenemy Saddam Hussein came, Western leaders made some very coy, almost sheepish pronouncements.

George Bush and Tony Blair hid behind the assertion that the sentence is the law of Iraq, which must be respected despite any contrary beliefs prevailing in the West. German Chancellor Angela Merkel expressed the guarded sentiment that the death sentence was not appropriate. France made similar mild comments. As for his associates, the US repeated the sentiment that their hanging was purely an Iraq affair.

In the Middle East, Arab leaders cleverly sought to sidestep the whole substantive question of the death sentence. Led by Egyptian President Hosni Mubarak, Arab leaders obsessed themselves with the procedural aspects of the death sentence. They argued that it should not have been carried out on the holy day of Idd. That the hanging should not have been shown to the public. That the guard who illegally took a mobile telephone photograph of the hanging did so without authority.

They also condemned the taunting of Saddam Hussein by his masked guards as inhuman.

IN SUM, without directly admitting it, Arab leaders were saying that but for the procedural lapses, the hanging was justified in substance.

It is the Western world as usual that resorted to its traditional game of political hypocrisy. Western leaders did not suddenly discover that the law of Iraq required the imposition of the death sentence upon a conviction for murder. This fact was known to all Western leaders from the moment Saddam Hussein was arrested and the decision was made to prosecute him in Iraq.

Critics have purveyed the notion that there was an option to prosecute Saddam at The Hague under international law. That is true only in a limited sense. Under international law, the state where a suspect of crimes against humanity, war crimes and genocide has been arrested has the first option to prosecute the suspect. It is only in cases where the state is found to be unwilling or unable to try the suspect or it voluntarily surrenders its jurisdiction that the UN through the International Criminal Court assumes the responsibility to do so.

In the case of Saddam Hussein, he was arrested in Iraq where the alleged crimes were committed. Iraq quickly asserted its right to prosecute him and it never showed any inability or unwillingness to do so. This effectively usurped the United Nation’s ability to intervene.

BUT THIS is strictly so only in the legal sense. The politics of Saddam Hussein’s arrest and trial are such that it is the United States that presumably called the shots. It is the dominant power in Iraq and it could have used its political muscle to compel Iraq to surrender its right to try Saddam Hussein and hand him over to the United Nations for trial at the International Criminal Court.

By failing to do so, it clearly signalled that it wished to have Saddam Hussein tried in Iraq where for his crimes the death sentence is mandatory and none-commutable.

The US cannot invoke the law of unintended consequences. These consequences were intended. The US must have intended that Saddam Hussein be tried under Iraq law and if found guilty be sentenced to death and be hanged.

However, it is unfair to criticise the US, Iraq and Western countries alone. Arab leaders, African leaders and the UN itself did not voice any objection to Saddam’s trial in Iraq, even though they must have clearly understood the consequences.

So Saddam Hussein is gone and the rest must be left to historians and academics to debate. As for the commercialised West, when the crocodile tears dry, blockbuster books will be written and multibillion dollar movies will be made on his prosecution and execution and it will be business as usual.

The greatest lesson is that we must spare each other moralistic lectures on the merits and demerits of the death sentence. Evidently, the world believes in the death sentence. The difference is that some pretend to abhor it while others openly embrace it. It is puzzling to see Westerners pour millions of dollars and thousands of soldiers into killing thousands of people in the name of wars to support democracy but to flinch and wrinkle their noses at the mere mention of the death sentence.

The British in particular seem never to have recovered from the shock of executing their own King Charles I in the 16th century. Their neighbours the French tasted blood when they executed their King Louis XVI and proceeded in the next 100 years to routinely guillotine their leaders.

The Italians had no compunction whatsoever at the execution of Benito Musolini. This reaction was not the result of barbarism. It was their natural reaction to grave injustices and atrocities visited upon them. We need to understand the proponents of the death sentence from this perspective.

There are some communities in the world who fervently believe that the only way to punish a death is through the death of the offender. This is not barbarism. It is not even meant to be a lesson to others. It is a deeply ingrained moralistic sense of justice. It may have its roots in the biblical “an eye for an eye” doctrine or it may be rooted in long held cultural traditions and beliefs. It is what the British, the French, the Italians and others believed for centuries, till just the other day.

EVENTUALLY, THEY became “civilized” through a process of slow evolution. We must allow others to similarly evolve without admonishing them and imposing enforced international conventions. The new UN Secretary General Ban Ki-moon supports this view when he asserts that the question of retaining or abolishing the death sentence is a matter for each state of the world to decide.

Perhaps instead the world and the anti death-penalty lobbyists should concentrate on the manner of the execution rather than the sentence itself.

Nzamba Kitonga, Nairobi

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