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The Court of Appeal (CoA) of Guyana last Wednesday upheld the convictions of Devon Gordon, Sherwyn Harte, and Deon Greenidge, commuting their death sentences to life sentences, but found that Guyana’s death penalty provisions are in conformity with the modern approach.
The three men were charged with the gruesome murder of Dweive Kant Ramdass in 2009, and were convicted, and sentenced to death in 2013. Importantly, the men, on certain grounds, filed a Notice of Appeal on 12th July 2013, but then filed additional grounds of appeal on 28th November. The additional grounds of appeal raised the issue of the constitutionality of the death penalty, which were not raised during the men’s trial before the High Court.
Submissions of the Appellants before the CoA
In submissions to the CoA, Latchmie Rahamat, attorney-at-law for Devon Gordon argued that the mandatory death penalty was unconstitutional. On page 1 of her substantive submissions, Ms. Rahamat argued that “the mandatory sentence of death in Guyana violates and offends the appellants’ constitutional protection against inhuman and degrading punishment or other treatment that is guaranteed under Article 141 of the Constitution of Guyana.”
However, Douglas Mendes SC, of Trinidad and Tobago, and Nigel Hughes, attorneys-at-law for Deon Greenidge and Sherwin Hart, in their substantive submissions, argued that the death penalty, whether mandatory or discretionary, is unconstitutional. In para 1 of their submissions, the duo noted that “This is the first challenge to the constitutionality of the death penalty in the Commonwealth Caribbean”, and at para 2, they said that “It is the Appellants’ case that the death sentence violates certain Articles and core principles of the Constitution of the Co-operative Republic of Guyana…”
Submissions of the Attorney General of Guyana
The Attorney General made an application to intervene in this matter, and filed submissions in support of the Government of Guyana’s case. The Attorney General’s submissions, in essence, were two-fold:
a. The issue of the constitutionality of the death sentence cannot be raised for the first time in the CoA since the High Court, by virtue of Article 153 (2) of the Constitution of Guyana, has original jurisdiction to determine all questions as to the contravention of provisions of Articles 138-151; and
b. A comprehensive reading of all of the relevant provisions of the Constitution of Guyana clearly demonstrate that death sentences under an order of a court of competent jurisdiction, are expressly provided for in the Constitution of Guyana At para 9 of the submissions of the Attorney General, it was argued that “the framers of the Constitution gave express remit to the High Court to address these constitutional matters at first instance. The Court of Appeal cannot assume jurisdiction when these matters are being broached for the first time at the Appellate level.”
Further, at para 12, the Attorney General argued that “for the Court of Appeal to assume the original jurisdiction, in the face of an express directive by Guyana’s supreme law, would be to usurp the function of the High Court and would be a flagrant violation of the Constitution.”
On the issue of the constitutionality of the death penalty, the Attorney General, at para 3 of his submissions, said that “the framers of the Constitution of Guyana made the death penalty part of our constitutional ethos and gave it high primacy by inserting it in our constitutional norm and the entrenched provisions of the fundamental rights section of the Constitution.”
Importantly, at paras 44 and 45 of those submissions, the Attorney General noted that the death penalty featured in the 1966, the 1970, and the 1973 Constitutions, and that it remains a feature of the current 1980 Constitution, even after the reforms of 2003 which saw the extension, and strengthening of fundamental rights in the Constitution of Guyana.
Indeed, the Attorney General noted that the Criminal Law (Offences) Act, Chapter 8:01, is not, and cannot be found unconstitutional, since Article 138 (1) of the Constitution of Guyana, which recognises, and protects the right to life, intentionally, and expressly recognises that “no person shall be deprived of his or her life intentionally save in execution of the sentence of a court in respect of an offence under the law of Guyana of which he or she has been convicted.”
These legal and factual realities, the Attorney General argued, “pellucidly demonstrates that the death penalty has always been part of Guyana’s constitutional ethos, and has been given constitutional validity and status and has been deliberately retained as part of Guyana’s legal framework”.
Decision of the Court of Appeal
In its decision 21 December 2022, the CoA, considering all the grounds of appeal, upheld the three (3) men’s convictions.
However, the CoA, in light of various factors before it, set aside the death penalty in favour of life sentences also ordering that the First Appellant is not eligible for parole before serving 25 years and the Second and Third Appellants are not eligible for parole before serving 20 years.
Regarding the question of whether it had jurisdiction to hear the question of the constitutionality of the death penalty, that CoA found that it did in the circumstances of this case.
Further, and quite significantly, the Court noted relevant amendments to the Criminal Law (Offences) Act, Chapter 8:01, which had some bearing on the sentences handed down in 2013. Pre-2010, the Criminal Law (Offences) Act imposed a mandatory penalty of death for all persons found guilty of murder. However, the Criminal Law (Offences) Act was amended by the Criminal Law (Offences) Amendment Act (Act 10 of 2010), which gave courts a discretion to sentence persons found guilty of murder to death or life imprisonment. Act 10 of 2010 therefore abolished the mandatory death penalty in Guyana. This legal position, the CoA said, reflects the modern approach, and is in keeping with Guyana’s international obligations regarding sentencing.
Thus, finding that, among other things, the 2010 amendment permitted the High Court to sentence the men to death or life-imprisonment, the CoA commuted the death sentences to life imprisonment, and also ordered that time be deducted for time served.
On the subject of the constitutionality of the death sentence as currently provided for, the CoA did not indicate that the death penalty, as a sentencing option, as opposed to the only option in certain cases, is unconstitutional.
The death penalty thus remains a viable sentence option for courts in Guyana. This represents the intention of the Parliament of Guyana.
Importantly, the Government of Guyana has noticed a statement carried by at least one local news outlet, which is attributed to ‘The Death Penalty Project’, an international non-governmental organisation dedicated to the abolition of the death penalty. In that statement, Death Penalty Project allegedly said “We consider that the Court of Appeal should have declared all death sentences unconstitutional.”
This statement disregards the reasoning of the CoA of Guyana, and the intentional, express text of the Constitution of Guyana, and therefore constitutes an affront to that very Constitution, and the rule of law. One cannot seek to allegedly uphold the Constitution of Guyana by breaching an express provision thereof.
The Government of Guyana was represented by Mr. Mohabir Anil Nandlall SC MP, Attorney General and Minister of Legal Affairs, Mrs. Shalimar Ali-Hack SC, Director of Public Prosecutions, Mr. Nigel Hawke, Solicitor General, Ms. Dionne McCammon, Assistant Director of Public Prosecutions, Ms. Raeanna Clarke, Senior State Advisor, and Mr. Chevy Devonish, State Counsel.
