Flogging

Cat-o-nine tails:  While we are dealing with torture and cruel and inhuman punishment, we might look at floggings.  There was an interesting case in St Vincent that occurred about ten years ago.  A man was in prison serving time on conviction of a very serious offence.  His son was serving time as well, in the same prison.  One day, the convict father saw a warder beating his convict son.  He lost his temper and struck the warder with a piece of two-by-four wood.  The warder was knocked unconscious. 

Now, that was a serious offence.  The Superintendent of Prisons could have brought the matter to the attention of the police and had charges brought against the prisoner.  The magistrate would have dealt with the prisoner.  Or, he could have brought charges himself before the Visiting Justices.  They could have ordered a number of penalties against the convict.  These included ordering strokes with the cat-o-nine tails.  The cat-o-nine is a cruel whip.  It has nine lengths of leather studded at the ends with pieces of metal.  It is designed to cut into the skin and cause bleeding besides just pain. At this time, it was available only as a punishment to be ordered by the Visiting Justices against particularly violent prisoner.

The Superintendent in this case did not bother to report the matter to the police.  He did not bother to report it to the Visiting Justices.  He decided to try the case himself.  He had no power under the law to do.  He heard the evidence.  Then he convicted the prisoner.  Then he sentenced him to receive several lashes with the cat-o-nine tails.  The sentence was carried out the same day.  The prisoner was then locked in solitary confinement for over a year.  He was shackled all the time.  He was only allowed out of his cell for one hour every day during that year. 

When he was released finally from solitary confinement, the scars on his back were quite noticeable, as you will imagine.  He made a complaint to Victor Cuffee, a lawyer who was the head of the Human Rights Committee of St Vincent and the Grenadines.  Mr Cuffee brought a case for the convict before the High Court.  He asked the court to find that the flogging with the cat-o-nine tails had been unconstitutional. 

Of course, the Prison Superintendent never had any power to sentence a prisoner to be flogged.  That power was only given to the Visiting Justices.  The High Court declared that the use of the cat-o-nine tails in this case had been unconstitutional.  The court found that a flogging with a cat-o-nine tails, even when authorised by the Prison Act, would be in breach of the fundamental human right not to be subjected to inhuman treatment. 

So, the cat-o-nine tails whip was abolished in St Vincent and the Grenadines, and is not in use any more. 

The High Court and the Court of Appeal awarded damages against the government for the unlawful flogging of the convict.

Torture

Freedom from inhuman treatment:  We are looking at our fundamental rights under the 1982 Anguilla Constitution.  The fifth of these rights is the right to be protected from inhuman treatment.

You may well think that this is a pretty obvious human right.  No one in the West Indies today can be put to the rack for their religion or to collect a confession.  It is generally accepted today that torture is an unreliable means of obtaining useful information.  However, torture has throughout history been used as a means of terrorising populations or specific communities.  

 Franz Fanon, in “Les Damnees de la Terre”, reports that the French in Algeria used ‘preventative torture’ on entirely innocent people to stop them doing anything in the future.  Although claiming to use torture in order to save lives, the French colonial regime killed between 1-1.5 million Algerians in the process.   

The Red Cross has estimated that 80% of detainees held by US Army forces at Abu Ghraib in Iraq were the ‘wrong people’.  Yet, the US Army in recent years with approval from the highest levels has approved torture of these detainees in support of the ‘war on terror’.

Besides these obvious examples of illegal torture, there are some West Indian nuances that you may find interesting.  A few years ago, two murderers in Jamaica, Pratt and Morgan, took the government to court.  They had been convicted and sentenced to death by hanging.  They had appealed their sentence to the Jamaican Court of Appeal, and lost.  They appealed to the Privy Council and lost.  They now appealed to the Inter-American Court of Human Rights.  Jamaica was a signatory to the Inter-American Court of Human Rights Agreement.  The prisoners had meanwhile spent nearly fourteen years on death row, waiting to be executed.  Of course, they had been filing appeal after appeal, which had resulted in the long delay in the carrying out of the sentence. 

They filed a case in the High Court claiming that the delay in government hanging them had subjected them to many years of dread and fear that amounted to cruel and inhuman punishment.  Note, they were not saying that the death penalty was cruel and inhuman punishment.  Their claim was that the long delay in carrying out the sentence, the long wait on death row, was what was cruel and inhuman. 

The High Court in Jamaica laughed at the convicts and threw out the case.  They appealed to the Court of Appeal, and lost.  The case reached right up to the Privy Council in London.  They succeeded in having the Privy Council hold that their sentence amounted to cruel and inhuman punishment.  The Privy Council ruled that if the government cannot for any reason execute a murderer within five years of his conviction, then the sentence must be commuted to life imprisonment.  This ruling applies to all Commonwealth countries in the West Indies and elsewhere.  To keep someone on death row for longer than that period of time, the court ruled, will constitute cruel and inhuman treatment.  That is now the law throughout the West Indies.  It is not very relevant to us in Anguilla, since the penalty of hanging for murder in Anguilla was long ago abolished.  The only penalty for murder now in Anguilla is life imprisonment. 

Still, you may agree that it is useful to have a Supreme Court looking out for instances of cruel and inhuman treatment.