And he has ordered a stay of any execution of prisoners who have been sentenced to death until their rights under the constitution are fully complied with.
The Court which commenced the proceedings on its own initiative, styled as an inquiry into human rights of prisoners sentenced to death, was to, identify which prisoners have been sentenced to death, identify what human rights they have and whether those rights are being afforded to them and examine the role of the Advisory Committee on the Power of Mercy.
Five respondents, who are senior office-holders in the criminal justice system, assisted the Court in its inquiry, they were the Principal Legal Adviser and Attorney-General, the Public Solicitor, the Public Prosecutor, the Commissioner of the Correctional Service and the Registrar of the National Court and Supreme Court.
Justice Cannings in his judgment discussed 10 questions which included the Courts jurisdiction to conduct the inquiry, the procedures used, What offences attract the death penalty? What is the method of execution of a person sentenced to death? Who has been sentenced to death? What human rights do prisoners sentenced to death have? What is the role of the Advisory Committee on the Power of Mercy? What is the present status of those on death row? Are the human rights of prisoners sentenced to death being afforded to them? and what declarations or orders should the court make?
The most serious concern raised in the judgment by Justice Cannings is the absence of the Advisory Committee on the Power of Mercy which the court found to have become defunct and accordingly made a declaration to that effect. “There has been a failure over an extended period on the part of the National Government, in particular the National Executive Council, to comply with the duty to facilitate appointments of members of the Advisory Committee on the Power of Mercy and to provide it with staff and facilities. The Committee has become defunct. This leaves all prisoners on death row with no effective opportunity to invoke their right to the full protection of the law by applying for the exercise of the power of mercy.”
“This has created a gap in the criminal justice system. It involves a breach of the Constitution and an infringement of human rights which must be remedied as a matter of priority.”
Other matters of concern raised are the apparent failure of the Correctional Service to ensure that prisoners sentenced to death are given special care and treatment in accordance with Section 105 of the Correctional Service Regulation and the lengthy delays in implementation of the death penalty.
The court ordered that the National Executive Council shall, by January 1, 2018, facilitate appointments of members of the Advisory Committee on the Power of Mercy and ensure that all arrangements are made, staff and facilities are provided and steps are taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of its functions and that there shall be no execution of any prisoner who has been sentenced to death, irrespective of whether his appeal and review rights have been exhausted.