Following a recent wave of rapes and murders, mostly of minors, a section of the society is clam­oring for death penalty for the cul­prits. The public anger at state inac­tion is perhaps justified and it is not hard to empathize with those who would like to see the perpe­trators of this heinous crime given the ultimate punishment.

 

“Every person shall have the right to live with dignity,” says Article 16 of the new constitution. Rapes most certainly violate this fundamental right of each and every Nepali. But, again, the same Article also stipulates that “No law shall be made providing for the death penalty to any one”. This brings us to an important question: Is death penalty justified, both ethically and legally?

 

People who speak in the favor of capital punishment for rapists strongly believe in its capacity to act as a deterrent; the laws must be so strong that they instill a strong fear in the minds of poten­tial criminals. “When you know taking this poison will kill you, you will avoid it at all costs,” says Sabitri Subedi, a native of Bara district who has become perhaps the most vocal advocate of death penalty for rap­ists. “I do not see any other alterna­tive. A person committing a heinous crime like rape does not deserve the safety from public stigma and scruti­ny that a prison sentence provides.” Subedi says she has closely known countless rape victims and has inter­nalized their trauma. It was the rape and murder of six-year-old Puja Saha of Bara in 2015 that inspired her to take up their cause, she adds.

 

The other reason the advocates of death penalty cite is lack of trust in the existing justice-delivery sys­tem. Nepali Congress federal law­maker Uma Regmi has also been asking for capital punishment for murder after rape. She says traditionally anti-rape laws have been poorly implemented. A new law states that anyone found guilty of murdering an individual after rape will get life imprisonment, and even jail term for rapes has been increased from 15 years to 20 years. But implementation is again questionable. “If there was faith in the existing justice-delivery mech­anism, we would not be pushing for harsher punishment,” she says. “When the authorities cannot find the culprits, or they try to cover up for those in positions of power and deny justice to the victims, it is only natural that the demand for capital punishment gets stronger and stronger.”

 

The case against

 

Nepal is one of 106 countries that has abolished death penalty and one of 142 countries that have not sent anyone to death in the past 10 years. Today only a small num­ber of countries continue with the practice, and even some of them are now are working towards a moratorium on death penalty.

 

Moreover, a 2007 United Nations resolution on moratori­um on death penalty, of which Nepal is a signatory, calls upon all countries to put temporary prohibition on death penal­ty while working for its aboli­tion. It also urges states which have abolished death penal­ty not to reintroduce it. But like all the UN resolutions it is not binding.

 

Those against capital punish­ment in Nepal are also in favor of rule of law but, at the same time, they believe even more in every individual’s inalienable right to life. Manju Khatiwada, head of the ‘Gen­der and Inclusion’ division of the National Human Rights Commis­sion, says that instead of demanding capital punishment, existing laws should be implemented to bring justice to the victims.

 

There is no credible evidence that death penalty deters crime more effectively than a lengthy prison term, she adds. After working closely with the victims of rape in different parts of the country, she says sentencing the culprits to death will not bring any consolation to the victims’ family. “The focus should instead be on the victims’ social rehabilita­tion and reintegration”.

 

There are practical hurdles to the implementation of capital punish­ment as well. While asking for capi­tal punishment for rapists, lawmak­er Regmi said “right culprits” should be found and sentenced to death. But according to constitutional law­yer Bipin Adhikari, to arrive at the “right culprit” the prosecution must prove beyond reasonable doubt that the defendant is guilty. “But as our investigate system is flawed there are high chances that the provision of death sentence might be abused,” he cautions. Death penalty is irre­versible, adds Khatiwada, so if there is a mistake in identifying the cul­prit, someone else might have to pay for it with their life, as has happened in many other countries.

 

Adhikari and Khatiwada both agree that there are underlying reasons behind increasing cases of rapes which cannot be solved by sentencing culprits to death. They demand that the society look into these reasons and come up with solutions accordingly. There are for instance problems related to dis­crimination, the stigma associated with reporting these crimes, flawed justice system and corruption in investigation. The pro-death Subedi pointed out lack of proper toilets in the rural areas as a reason; Regmi, the lawmaker, cited the problem of alcoholism and drug abuse as also responsible for increasing rapes.

 

As Nandita Rao, an Indian law­yer, writes about the demand for death penalty for rapists in India: “It is not the severity of the pun­ishment but the certainty and uniformity of it which will reduce crime.” Perhaps fewer voices in Nepal would be in favor of death penalty if we could only imple­ment existing laws and reduce the stigma attached to rape victims coming out