Saturday, 26 January 2008

Tochi in Singapore: "the burden thus shifted"

This post was originally written for the excellent historical blog Executed Today.

On this day one year ago, a promising young Nigerian soccer player was taken from his cell in Singapore's Changi Prison. It was dawn on a Friday morning, execution time in a country that has come to be known for its uncompromising use of the death penalty.

Iwuchukwu Amara Tochi, 21, and his co-accused Okele Nelson Malachy, 35, were hanged one after the other in the prison's death chamber. Tochi's lawyers had been informed he would die that morning, but it had not been announced that Malachy would also hang.

Later that day the Central Narcotics Bureau (CNB), Singapore's "primary drug enforcement agency", issued a 138 word statement. With the terse formality that is common to statements by Singapore's criminal justice authorities, it noted:

The appeals of both Tochi and Malachy to the Court of Appeal and to the President for clemency have been turned down. Their sentences were carried out this morning at Changi Prison.
Waiting for Mr Marshall
Tochi was arrested at Changi Airport on 28 November 2004, in possession of 100 capsules of diamorphine, or 727.02g of high grade heroin, which the CNB claimed was worth "about $1.5 million". He said in a later interview that he had arrived in the country expecting to be met by an African man named Mr Marshall.

He did not have enough money to clear immigration, and an airport hotel called the police when he attempted to take a room. Malachy was identified as his contact after flying in from Indonesia, although he strenuously denied any connection with the drugs.

Tochi claimed he was carrying the package for a man named Mr Smith, who had befriended him at Sunday services at St Andrew's Church in Islamabad, Pakistan. He had become stranded in Pakistan while attempting to travel to Dubai, where he hoped to play soccer professionally. As a boy, he represented Nigeria in soccer tournaments, travelling to Senegal when he was 14 to play in a West African youth Championship.

According to Tochi, Mr Smith asked him to take a package of herbs to a sick friend in Singapore, saying he could then apply to play for Singapore soccer clubs. He agreed, and was given a ticket and $200 in cash.

'No direct evidence': none needed
Many sites on the web have quoted the trial judge's acknowledgement that there was no proof that Tochi knew he was carrying heroin:

There was no direct evidence that he knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found that out on his own.
The trial judge was clearly suspicious of Tochi's knowledge. Nevertheless, he found the defendant had "wilfully turned a blind eye on the contents of the capsules because he was tempted" by what police claimed was an offer of US$2000 in payment.

But the prosecution didn't have to prove Tochi knew; it was up to him to prove that he didn't know what was in the capsules. If he couldn't prove his ignorance of that fact -- a challenging philosophical notion in itself -- then the law would presume he knew, and therefore convict him of drug trafficking. Under section 18(2) of Singapore's Misuse of Drugs Act:

Any person who is proved or presumed to have had a controlled drug in hispossession shall, until the contrary is proved, be presumed to have known the nature of that drug.
An Act of reversal
The Misuse of Drugs Act reverses many principles that are taken as central to a fair trial, including the burden of proof and the idea that a court should consider the facts of the case before deciding a penalty.

Amnesty International reports that the Act contains a series of presumptions that:

shift the burden of proof from the prosecution to the accused. This conflicts with the universally guaranteed right to be presumed innocent until proven guilty. Amnesty International is gravely concerned that such presumptions erode the right to a fair trial, increasing the risk that an innocent person may be executed...
The Act applies a mandatory death penalty for a wide range of drug offences, including for importing more than 15 grams of diamorphine or pure heroin.

Possession of relatively small amounts of drugs -- by the standards of many countries -- is classed as "trafficking" in that drug. Trafficking in that drug carries a mandatory death penalty. Courts have no power to consider the individual circumstances of the case.

Death for drugs
Famously described as "Disneyland with the death penalty" by novelist William Gibson, Singapore brings together a record of social order and strict political control, and an unwavering use of the death penalty, particularly for drug-related offences.

No surprises then that Tochi was convicted of drug trafficking and sentenced to death in December 2005. His appeal was rejected in March 2006, with the judge pausing only to note that the accused had to prove he didn't know what was in the bag:

Under s 18(2) of the Act, the first appellant was presumed to know the nature of the drugs in his possession. The burden thus shifted to him to persuade the court on a balance of probabilities that he did not know that he was carrying drugs or that what he was carrying were drugs.
The appeal court judge acknowledged Tochi's claim that he didn’t know, but agreed that he hadn't proven his ignorance.

Seven months before Tochi's execution, his brother Uzonna told a reporter from IPS News he had not told their parents that their son, who once supported the family, was now on death row.

"My poor parents will die if they hear that a child who has worked so hard to sustain them is facing a death sentence," he said.

Tochi was hanged in the face of widespread international protest: legal efforts and a presidential appeal in Nigeria, urgent global appeals from Amnesty International activists, intervention from a United Nations human rights expert, and discreet but unequivocal opposition from a small group of human rights activists within Singapore itself.

Reflecting the colonial origins of the country's modern death penalty, Tochi was "hanged by the neck till he [was] dead", in the words of Singapore's Criminal Procedure Code. The same British legal phrase was taken with the empire to, among other countries, the United States, India, Pakistan, Brunei and Malaysia.

Mr Smith has not been found.

Sunday, 6 January 2008

'Only Australians' should be spared execution

Australia's acting prime minister has confirmed the government will only appeal for Australians to be spared the death penalty.

Acting Prime Minister Julia Gillard was responding to calls from the Catholic Church for Australia to oppose the death penalty in all countries and under all circumstances.

According to The Age newspaper, Gillard said Australia would not intervene in death sentences for foreigners.

"Our position is perfectly clear. We support global moves against the death penalty [but] we only use our diplomatic resources on behalf of Australian nationals who are at risk of the death penalty overseas," she said.

"I think that that's entirely appropriate. Obviously our obligations are on behalf of our citizens and nationals. We intervene on their behalf."

Electing not to act
Shortly before last year's election campaign, Labor leader Kevin Rudd - now Australia's prime minister - said he would not make diplomatic moves to argue for clemency in terrorist cases, but would oppose the death penalty through multilateral channels at the United Nations.

"When it comes to the question of the death penalty, no diplomatic intervention will ever be made by any government that I lead in support of any individual terrorist life," Rudd said.

"We have only indicated in the past, and will maintain a policy in the future, of intervening diplomatically in support of Australian nationals who face capital sentences abroad."

The previous conservative government was criticised for only speaking out against the execution of Australian citizens, although former Prime Minister John Howard and other senior ministers had also signalled their approval when particular death sentences were handed down.

Related stories:
No Australian government will oppose terrorist executions -- 10 October, 2007
Australia: Rudd would oppose death penalty -- 24 June, 2007
Australia 'should act against death penalty' -- 03 August, 2006

Saturday, 5 January 2008

AI condemns China's expanded lethal injection

Amnesty International (AI) has "strongly condemned" this week's announcement that China was expanding the use of lethal injection, calling on the country instead to move towards abolishing the death penalty.

Jiang Xingchang, vice-president of the Supreme People's Court (SPC), told China Daily that lethal injection would eventually replace shooting in all executions ordered by intermediate courts.

"It is considered more humane and will eventually be used in all intermediate people's courts," Jiang said.

He said half of the country's 404 intermediate people's courts, which carry out most executions, currently use lethal injections.

Human rights organisations estimate China executes more people each year than the rest of the world combined.

Jiang told China Daily that the SPC would assist local courts by distributing the toxin used in lethal injections, rather than requiring court officials to come to Beijing to collect it.

"The SPC will help equip intermediate courts with all required facilities and train more professionals, particularly in the central and western regions," he said.

AI said rather than changing the method of injection, China should be abolishing undignified and inhumane state killings, particularly in the leadup to this year's Olympic Games.

Catherine Baber, Director of AI's Asia-Pacific programme, said: "This move goes against the spirit of the Olympic Charter for the Beijing Olympics, which places the preservation of human dignity at the heart of the Olympic movement.

"There is nothing dignified or humane in the state killing of individuals by whatever means."

The organisation also noted the announcement came only weeks after the UN General Assembly adopted a resolution calling for a worldwide moratorium on executions.

Arbitrary, inhumane
In its statement, AI challenged Jiang to explain how lethal injection was more humane as a method of execution than shooting.

"The extension of the lethal injection programme flies in the face of the clear international trend away from using the death penalty and ignores the problems inherent in this punishment," Baber said.

"Arbitrary application, miscarriages of justice including execution of the innocent, and the cruel and inhumane nature of the death penalty cannot be solved by changing the method of execution."

AI said the "particular concerns" involved with lethal injection included:
  • diverting attention from the suffering inherent in the death penalty by suggesting that death by lethal injection is humane. Evidence showed that it can cause convulsions and a prolonged and painful death.
  • the potential to cause physical and mental suffering through botched implementation.
  • the involvement of health personnel in executions. Virtually all codes of professional ethics that considered the death penalty opposed participation by medical or nursing personnel.
Ending 'China's world record'
The organisation said it had welcomed the SPC's review of all death sentences passed in China, which came into effect in January 2007, saying the change was expected to result in a reduction in the number of executions.

But it condemned "the lack of transparency" in China which would make it "impossible to assess or verify any change in the number of executions being carried out".

Baber said: "The Chinese authorities must take concrete steps towards the abolition of death penalty.

"As a first step, China must make public the actual numbers of people executed and radically cut the number of capital offences.

"A positive legacy for the Beijing Olympics can only be achieved when China's world record of executions comes to an end."

Consider "ground realities"
In an interview with China Daily, Chief Justice Xiao Yang acknowledged the global trend towards limiting and abolishing the death penalty, and said "China is also working toward that direction".

But he stressed the goal could not be achieved overnight.

"We cannot talk about abolishing or controlling the use of death sentences in the abstract without considering ground realities and social security conditions," he said.

With the strong public belief in the "an eye for an eye and a life for a life", he said it was also unrealistic for China to abolish the death penalty in the short-term, even for non-violent criminals.

Related stories:
Party claims economic penalty 'prudent' -- 4 August, 2007
China: Courts claim fewer executions -- 31 July, 2007
China executes drug regulator -- 12 July, 2007
China call for cautious death penalty - again -- 8 April, 2007
China: Judges try to limit death penalty -- 14 November, 2006
China reforms good, but not enough -- 8 November, 2006
China: Supreme Court review from January -- 1 November, 2006
Political questions over China's new appeal judges -- 2 July, 2006
China to retain death penalty, with reforms -- 13 March 2006