Court name
Constitutional Court of Uganda
Judgment date
10 June 2005

Susan Kigula & 416 Ors v Attorney General (Constitutional Petition-2003/) [2005] UGCC 8 (10 June 2005);

Cite this case
[2005] UGCC 8
Short summary:

HR, Independent judiciary

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

         HON MR. JUSTICE S. B.K KAVUMA, JA

CONSTITUTIONAL PETITION NO 6 OF 2003

 

BETWEEN

 

SUSAN KIGULA & 416 OTHERS::::::::::::::::::::::::::PETITIONERS

AND

THE ATTORNEY GENERAL:::::::::::::::::::::::::::::::RESPONDENT

(The Legality of the Death Penalty)

JUDGMENT OF G.M. OKELLO, JA.

(a)   Declaratory Orders

(i)    that the death penalty in its nature, and in the manner, process and mode in which it is or can be implemented is a torture, a cruel, inhuman or degrading form of punishment prohibited under articles 24 and 44 (a) of the Constitution.

(ii)   the imposition of the death penalty is a violation of the right to life protected under articles 22(1), 20 and 45 of the Constitution;

(iii)  sections 23(1), 23(2), 23(3), 23(4), 124, 129(1) 134(5) 189, 286(2), 319(2) and 243(1) of the Penal Code Act (Cap 120 of Laws of Uganda) and Sections 7(1) (a), 7(1)(b), 8, 9(1), and 9(2) of the Anti Terrorism Act (Act No 14 of 2002) and any other laws that prescribe a death penalty in Uganda are inconsistent with and in contravention of articles 20, 21, 22(1), 24, 28, 44(a) 44(c) and 45 of the Constitution to the extent that they permit or prescribe the imposition of death sentences;

(iv)    

(v)     

that Section 9 of the Magistrates Court (Amendment) Statue (N0 6 of 1990) in so far as it repeals Part XV of the Magistrates Court Act of 1970, is inconsistent with Articles 28 and 44 of the Constitution;

(vi)    

that the carrying out of a death sentence is inconsistent with articles 20, 21, 22(1), 24, 28, 44(a), 44(c) and 45 of the Constitution;

(vii)   

that the time limitation of 30 introduced under Rule 4(1) of the Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992, Directions 1996 is in contravention of Article 137 of the Constitution;

(viii)  

That in the alternative, Sections 23(1), 23(2), 189, 286(2), 319(2) of the Penal Code Act Cap 120 of the Laws of Uganda and Section 7(1)(a), the Anti Terrorism Act (Act No 14 of 2002) and any other laws that prescribe mandatory death sentences are inconsistent with articles 20, 21, 22(1), 24, 28, 44(a), 44(c) and 45 of the Constitution to the extent that they provide for the imposition of a mandatory death sentences;

(ix)    

(b)     

The following redresses(i)     

that the death sentences imposed on your humble petitioners be set aside;

(ii)    

that your humble petitioners’ cases be remitted to the High Court to investigate and determine appropriate sentences under article 137(4) of the Constitution;

(iii)   

that your humble petitioners be granted such other reliefs as the court may feel appropriate.

(1)     

that death penalty is a cruel form of punishment or treatment.

(2)     

that the petitioners who are convicted of offences which carry mandatory death sentences did not have a right to appeal against their sentences.

Scheduling conference is not provided for in theModifications To The Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992Directions, 1996.The issues that were agreed upon by the parties at the Scheduling Conference for determination of the court were as follows:-

”(1)      whether the death penalty prescribed by various laws of Uganda constitutes inhuman or degrading treatment or punishment, contrary to article 24 of the Constitution.

 

(2)      whether the various laws of Uganda that prescribe the deathpenalty upon conviction are inconsistent with or in contravention of articles 24 and 44(a) or any other provisions of the Constitution;

(3)     

whether the various laws of Uganda that prescribe mandatory sentences of death upon conviction are inconsistent with or in contravention of articles 21, 22, 24, 44 or any other provisions of the Constitution;

(4)     

whether section 99(1) of the Trial on Indictments Act which prescribes hanging as the legal method of implementing the death penalty is inconsistent with and in contravention of articles 24 and 44 and any other provisions of the Constitution;

(5)     

whether the execution of the petitioners who have been on death row for a long period of time is inconsistent with and in contravention of articles 24 and 44,or any other provisions of the constitution;

(6)     

whether your petitioners are entitled to the remedies prayed for.”

(1)     

It is now widely accepted that the principles which govern the construction of statutes also apply to the interpretation of constitutional provisions. The widest construction possible, in its context, should be given according to the ordinary meaning of the words used.(The Republic vs EL manu (1969) EA 357)

(2)     

The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other(Paul K. Ssemogerere and 2 others vs A.G Const. Appeal No 1 of 2002.)

(3)     

All provisions bearing on a particular issue should be considered together to give effect to the purpose of the instrument(South Dakota vs North Carolina, 192, US 268 (1940) LED 448.)

(4)     

(5)     

In determining constitutionality both purpose and effect are relevant[Attorney General vs Salvatori Abuki, Constitutional Appeal No 1 of 1998]

 

(6)      Article 126(1) of the Constitution of the Republic of Uganda enjoins courts in this country to exercise judicial power in conformity with law andwith the values, norms and aspirations of the people(emphasis added.)

Issues Nos 1 and 2Mr. John W. Katende argued these issues for the petitioners. He contended that the words in article 24 were to be read disjunctively and given their ordinary plain meaning. He cited the judgment of Oder JSCin Attorney General Vs Salvatori Abuki, Constitutional Appeal No 1 of 1998. He stated that the disjunctive approach meant that the petitioners would need to prove only one of the mutations stated in article 24 to succeed. Further, that once the court adopted that ordinary plain meaning approach, it would come to an irresistible finding that death penalty is a cruel, inhuman and degrading form of punishment. He pointed out that in the Tanzanian case ofMbushu and Anor vs Republic (1995)1LRC, 216 and in the South African case ofState vs Makwanyane (1995)He pointed out that the Supreme Court had found in Abuki’s case (supra) that banishment was a cruel, inhuman and degrading punishment. Further, that this court had also found inSimon Kyamanywa vs Uganda, Constitutional Reference No 10 of 2000In counsel’s view, article 22(1) did not save death penalty, nor did it qualify or provide exception to article 24. If the legislature wanted that to be the position, it would have stated so expressly. There is however, he argued, an apparent conflict between articles 22(1) and 24, which this court has jurisdiction to harmonise. Once it is held that death penalty is cruel, inhuman and degrading and that article 24 outlaws such a punishment, then article 22(1) must give way. He pointed out that in the Tanzanian case ofMbushuHe stated that, that scenario was not applicable to Uganda because of article 44(a). Article 44(a) was a Ugandan unique innovation in the 1995 Constitution. It was not present in the 1967 Constitution. The purpose was in view of our chequered history, to protect at any cost, those important and sacred fundamental pillars contained therein. The language of the article is clear. He stated that the Supreme Court had held inAbuki’s case (supra) that there was no conceivable circumstances or grave facts by which the rights protected in article 44 can ever be altered to the disadvantage of anyone even if he or she was charged or convicted of a serious offence. He referred us toZachery Olum vs Attorney General (case No 7)On resolving the apparent conflict between articles 22(1) and 24, Mr. Katende contended that the holding in the Nigerian case ofKalu vs State, should not be followed because its approach conflicts which the plain ordinary meaning approach adopted by our Supreme Court inAbuki’s caseMr. Benjamin Wamambe submitted for the respondent on these issues. He contended that death penalty and the various provisions of the laws of Uganda which prescribe death penalty are not unconstitutional. Article 24 must be construed in the context of the Uganda Constitution, applying a dynamic and progressive principle of constitutional interpretation, keeping in mind the historical background of this country and the aspirations of the Ugandan people. He stated that once that approach is adopted, death penalty will not be found to be cruel, inhuman and degrading. He rejected the“plain ordinary meaning”approach stated inAbuki’s case (supra). According to him, bothAbuki’s case and Kyamanywa Simon (supra) were distinguishable from the instant case. InAbuki and Kyamanywa, courts were interpreting Statutory provisions against a constitutional provision. In the instant case, the court is faced with the task of interpreting one constitutional provision against another. InAbuki and Kyamanywa,(a)     

adequate safeguard against arbitrary decision;

(b)     

effective control against abuse by those in authority when using the law and

(c)     

complies with the principle of proportionality. The limitation imposed on the fundamental right to life is no more than reasonably necessary to achieve the legitimate object of the various laws of Uganda, which prescribe death penalty. The laws only net the targeted members of the society. He relied onMbushu & Anor vs Republic case No 9 Vol 1 of Petitioners list of Authorities.

According to Mr. Wamambe, when interpreting article 24, the court should bear in mind article 126(1) which lays emphasis on the norms and aspirations of the people of Uganda. He pointed out that Justice Odoki’s Constitutional Commission Report, 1992 and Professor Sempebwa’s Constitutional Review Commission Report, 2003 both show that the majority of Ugandans still favour retention of death penalty. Because of this, death penalty is not yet viewed in Uganda as a cruel, inhuman and degrading punishment. He relied on the second limb of the decision inMbushu’s caseHe stated that the South African case ofState vs Makwanyane & Anor(1995) ILRC 269 was not relevant to the instant case because under the South African Constitution, the right to life is unqualified. Under the Uganda Constitution, the right to life is qualified. Death penalty is, therefore, validated as an exception to article 24. He also rejected the decision in the Tanzanian case ofMbushu and AnorAccording to him, the relevant authority is the Nigerian decision inKalu vsthe State (1998) 13 NIUL R54 because the constitutional provisions it considered are in pari materia with our articles 22(1) and 24 of the Constitution. He also relied onBacan Singh vs State of Punjab (1983) (2) SCR 583Article 22(1) provides:

“         No person shall be deprived of life intentionally, except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.44:      Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-(a)     

freedom from torture, cruel, inhuman or degrading treatment or punishment;

(b)     

freedom from slavery or servitude;

(c)     

the right to fair hearing;

(d)     

the right to an order of habers corpus.”

Mr. John Katende urged us to apply the“ordinary plain meaning”principle of interpretation when interpreting article 24 because this was decided so by the Supreme Court of this country inAbuki’s case (supra). In that case, the passage cited was from the judgment of Oder JSC. They were considering article 24 of the Constitution and he said:-

“         It seems clear that the words italicised have to be read disjunctively -----. The treatment or punishment prescribed

by article 24 of the Constitution are not defined therein. They must, therefore, be given their ordinary and plain meaning.”

Clearly, according to the above passage from the decision of the Supreme Court, which is binding on this court, the words in article 24 are to be read disjunctively and given their ordinary and plain meaning. What did the learned Justice of the Supreme Court mean when he said“given their ordinary and plain meaning? ”It was stated inJaga vs Donges No 1950 USA 653,a case cited in Makwanyanes’ case (supra) thus:-

“         The often repeated statement that words and expressions used in a statute must be interpreted according to theirordinary meaning is the statement that they must be interpreted in the light of their context. (emphasis added). ”

It is clear from the above passage that what the learned Justice of the Supreme Court meant when he said that the words in article 24 be given theirordinaryand plain meaningA similar question had earlier been considered in other jurisdictions. Their approach to the question, though only persuasive, may offer us some guidance, more so, when these decisions are from the common law jurisdictions, like us. InMakwanyane’sInMbushu’s caseIn the Catholic Commission For Justice And Peace vs Attorney General(1993) 2LRC 279,The Nigerian case ofKalu vs the State (1998) 13NWR 531 is of particular interest to me here because the provisions of the Nigerian Constitution considered therein by their Supreme Court are in pari materia with our articles 22(1) and 24 now in question. Section 30(1) of the Nigerian Constitution provides:-

“         Every person has a right to life and no one shall be deprived intentionally of his life save in execution of a sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria. ”

That provision is in pari materia with our article 22(1) which provides that:-

“ No person shall be deprived of life intentionally, except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Ugandaand the conviction and sentence have been confirmedby the highest appellate court.”

Section 31(1) of the Nigerian Constitution provides thus:-

“        Every individual is entitled to respect for dignity of his person and accordingly:-(a)     

no person shall be subjected to torture or to inhuman or degrading treatment.”

Section 31 (1)(a) of the Nigeria Constitution is in peri materia with our article 24 which provides thus;-

“         No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment. ”

It is clear from the above provisions that the right to life under the Nigerian Constitution, like under our own Constitution, is qualified. The Supreme Court of Nigeria had no difficulty finding that death penalty which is expressly recognised in Section 30(1) of their Constitution is constitutional. If the legislature had intended to take away by section 31(1)(a) the right it recognised in section 30(1) of the Constitution, it would have done so by clear terms and not by implication. The supreme Court of Nigeria followed the Jamaican decisions inNoel Riley and other vs Attorney General for Jamaica and Anor (191983)1 AC 719(PC). Earl Pratt and Anor vs Attorney General for Jamaica and Another (1994)2 ACI(PC).I endorse the approach adopted inKalu’s case.(1)     

the judgment was carelessly written.

(2)     

decided when the judiciary in Nigeria was not independent

(3)     

it did not apply ordinary and plain meaning principle of interpretation

(4)     

Nigeria Constitution does not have the equivalent of our article 44 and

(5)     

it cited and discussed an American case as a Hungarian case.

This now leads me to issue No. 3 which is couched as follows:-

“ Whether the various laws of Uganda that prescribe mandatory sentences of death upon conviction are inconsistent with or in contravention of articles 21, 22, 24, 44 or any other provisions of the Constitution.”

1.      

mandatory sentence gives different treatment to a convict under that section from that given to a convict under a non-mandatory section in contravention of article 21 which guarantees equality before and under the law,

2.      

3.      

it violates the principle of separation of powers provided in article 126(1).

(a)     

a convict be accorded opportunity to present to court any mitigating circumstances and any special facts relating to the offence when it was committed, to distinguish it from the other offences in the same category in order to persuade the court in those circumstances that death penalty is not the appropriate sentence in his case:

(b)     

the convict would exercise a right of appeal against sentence only;

(c)     

the trial court would exercise discretion to determine the appropriate sentence in each case;

(d)     

the appellate court would also exercise discretion to confirm or not to confirm the sentence.

He submitted that all the above are denied the petitioners convicted under a mandatory sentence. They are not given opportunity to show cause why death sentence is not the appropriate sentence in their individual cases. These denial render the hearing on sentence unfair and unconstitutional as it contravenes articles 22(1), 28(1) and 44 . To emphasise this point, Professor Sempabwa cited the Indian case ofMithu vs State of Punjab. (1983 Sol Case No 26).He further submitted that the trial court is also not given the chance under a mandatory death sentence provision, to exercise its discretion to determine an exact appropriate sentence based on the circumstances of each case and each offender. Even the highest appellate court, in case of those petitioners who have exhausted their right of appeal, did not have the chance to exercise its discretion whether or not to confirm the sentence. It will not also have that chance in the case of those petitioners who are yet to exhaust their right of appeal. In effect, there is no rational decision on sentence under a mandatory sentence provision. He submitted that failure to give the court opportunity to consider the circumstances of each case and offender to determine the appropriate sentence, but merely to impose a sentence on a class of crime renders the hearing on sentence unfair and the imposition of sentence arbitrary. He cited the case ofMithu vs State of Punjab (supra) Reyes vs The Queen (2002) 2AC 235 (Case No 15 vol 2.)1.      

Mithu vs State of Punjab (supra)

2.      

RV Hugh case No (17) vol 23.      

Downer Tracey vs Jamaican (case No 15 vol 2

4.      

Robert vs Luciano case No 20 vol 2

5.      

Lockie vs State of Ohio (case No 21 vol 2.

Fair hearing1.      

whether or not a case has been proved to the required standard;

2.      

to take into account all available defences whether raised or not by the accused;

3.      

to acquit or convict on lesser offence where the evidence so proves and

4.      

to call upon a person found guilty to show cause why the sentence should not be passed on him or her according to law. (S. 98 of the Trial on Indictments Act Cap 23).

(a)     

the sentence must be passed in a fair trial.

(b)     

in respect of offence under the laws of Uganda and

 

(c)     

the conviction and sentence have been confirmed by the highest appellate court.

The term“fair trial or hearing”or tribunal established by law.(2)     

Nothing in clause (1) of this article shall prevent the court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or National security, as may be necessary in a free and democratic society

(3)     

every person who is charged with a criminal offence shall:-

 

(b) be informed immediately, in a language that the person

understands of the nature of the offence;of his or her offence;

(d) be permitted to appear before the court in person or, at that

person’s own expense, by a lawyer of his or her choice;(e)     

in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to a legal representation at the expense of the State:

(f)     

be afforded, without payment by that person, the assistance of an interpreter if that person can not understand the language used at the trial.(g)     

be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.

(4)     

Nothing done under the authority of any law shall be held to be inconsistent with:-

(a)     

paragraph (a) of clause (3) of this article, to the extent that the law in question imposes upon any person charged with a criminal offence, the burden of proving particular facts.

(b)     

paragraph(g) of clause 3 of this article, to the extent that the law imposes conditions that must be satisfied ifwitnesses called to testify on behalf of an accused are to be paid their expenses out of public funds.

(5)     

Except with his or her consent, the trial of any persons shall not take place in the absence of that person, unless that person so conducts himself or herself as to render the continuance of the proceedings in the presence of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in the absence of that person.

(6)     

A person tried for any criminal offence, or any person authorised by him or her, shall, after the judgment in respect of that offence, be entitled to a copy of the proceedings upon payment of a fee prescribed by law.

(7)     

No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence.

(8)     

No penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed.

(9)     

A person who shows that he or she has been tried by a competent court for a criminal offence and convicted oracquitted of that offence, shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(10)    

No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence.

(11)    

Where a person is being tried for a criminal offence, neither that person, nor the spouse of that person shall be compelled to give evidence against that person.(12)    

Except for contempt of court, no person shall be convicted of a criminal offence, unless the offence is defined and the penalty for it prescribed by law.”

 

(1)     

it does not provide a fair hearing because it does not permit the convict to be heard in mitigation before sentence.

(2)     

it violates the principle of separation of power, as it does not give the court opportunity to exercise its discretion to determine the appropriateness of the sentence to pass. The court passes the sentence because the law compels it to do so.

Mithu vs State of Punjab (supra)is a case in point. In that case, the Constitutionality of section 303 of the Penal Code of India was challenged. It was alleged that the section was inconsistent with article 21 of the Constitution of India which provides:-

“ No person shall be deprived of his life or personal liberty, except according to fair, just and reasonable procedure established by valid law. ”

Accepting the above argument, the Supreme Court of India observed thus:-

“ it is a travesty of justice not only to sentence a person to death, but to tell him that he shall not be heard why he should not be sentenced to death.”

The Supreme Court further said:-

“ If the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels court to impose that sentence. ”

(1)     

it did not permit the life-convict to be heard in mitigation before sentence was passed on him

(2)     

it also did not give the court opportunity to exercise its discretion to determine the appropriateness of the sentence it passed. The court passed the sentence of death because the law compels it to impose it.

(3)     

denying the court to exercise its judicial discretion to determine the appropriateness of the sentence was an intrusion into the realm of the judiciary and thus, a violation of the principle of separation of power.

In Soering vs UK (1989) EHRR 439,In Uganda, section 98 of the Trial on Indictments Act provides the procedure to be followed by court after entering a conviction and before sentence. The procedure permits the court to make inquiries before passing sentence to inform itself on the appropriateness of the sentence to pass. The section provides, as far as is relevant, as follows:-

“ The court, before passing any sentenceother than a sentence ofdeath, may make such inquiries as it thinks fit in order to inform itself as to the proper sentence to be passed and may inquire into the character and antecedents of the accused person-------. ”(emphasis added).

That procedure which denies the court opportunity to inform itself on any mitigating factors regarding sentence of death, deprives the court the chance to exercise its discretion to determine the appropriateness of the sentence. It compels the court to impose the sentence of death merely because the law directs it to do so. This is an intrusion by the legislature into the realm of the Judiciary. Our Constitution has spelt out the powers of the three organs of the State; namely, the Executive, the Legislature and the Judiciary. It gives the Judiciary the power to adjudicate. Therefore, for the legislature to define the offence and prescribe theonly sentence which the court must impose on conviction without affording the court opportunity to exercise it discretion to determine the appropriateness of the sentence, is clearly a violation of the principle of separation of power. A similar conclusion was arrived at by the Supreme Court of India inMithu vs State of Punjab(b) an accused person may, with leave of the Court of Appeal, appeal to the Court of Appeal against the sentence alone imposed by the High Court, other than a sentence fixed by law…..”I now turn to issue No 4 which reads thus:-

“ Whether section 99(1) of the Trial on Indictments Act which prescribes hanging as the legal method of implementing the death penalty is inconsistent with and in contravention of articles 24, 44 and any other provisions of the Constitution. ”

Mr. Sim Katende argued this issue for the petitioners. He stated that this issue too was being argued in alternative to issues 1 and 2. He contended that the manner of carrying out death penalty by hanging was inconsistent with the Constitution. The law that prescribes the mode of carrying out death sentence by hanging was inconsistent with articles 24 and 44(a). The method of execution by hanging is cruel, inhuman and degrading and, therefore, inconsistent with articles 24 and 44(a). These two articles, he stated, read together, bar cruel, inhuman and degrading punishment or treatment. He adopted the argument made for the petitioners on issues 1 and 2 about the definition of the terms cruel, inhuman and degrading and approach to their interpretation. That the words in article 24 be read distinctively and given their ordinary plain meaning as was decided inAbuki’s case (supra). He citedRepublic vs Mbushu & Another (1994) 2LRC 335; Mbushu & Another vs Republic (1995) 1LRC 216;State vs Makwanyane (1995) 1LRC 269; Campell vs Wood (18 F. 3rd 662 – US 9thCircuit Court of Appeals)He also cited the affidavits ofDr. Albert Hunt, affidavit No 5 (vol 10) and ofDr. Herold Hilman, affidavit No 4 (vol 10)He discardedAbuki’s case (supra) as well asKyamanywa’s caseHe also discarded the decisions from foreign jurisdictions cited to us as being irrelevant. ForMbushu’s case (supra) he stated that the Tanzanian Constitution does not contain an equivalent of our article 126(1). He discarded the ration decidendi inMukwanyane’s caseA close study of the Jamaican case ofEarl Pratt and Another vs Attorney General for Jamaica and AnotherOur Constitution, however, does not contain the equivalent of section 17(2) of the Jamaican Constitution which provides thus:-

“ Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day.”

The next to consider is issue No 5 which is couched as follows:-

“ Whether the execution of the petitioners who have been on death row for a long period of time is inconsistent with articles 24, 44 or any other provisions of the Constitution. “

He stated that the aspect of evidence adduced paints grim picture of the conditions in the death row. They are characterised by anguished expectation of death at any time at the hand of the State. That reduces the petitioners into“living dead”Learned counsel submitted that even if the court were to find that death sentence was recognised under article 22(1) and therefore, lawful, the petitioners still had a right not to be subjected to cruel, inhuman or degrading treatment resulting from death row syndrome. He pointed out that death row phenomenon was recognised worldwide. Even our own Supreme Court had recognised it in Abuki’s case (supra). He relied on the case of theCatholic Commission for Justice and Peace in Zimbabwe vs Attorney General and Others (1993) 2LRC 279)Learned counsel also citedEarl Pratt and Morgan vs Attorney General of Jamaica and others (case No 27 vol 3) No 210 of 1986 and 225 of 1987.Mr. Wamambe did not see anything in articles 24 and 44 (a) of our Constitution which outlaws delay on the death row for a long time. He submitted that no time limit had been prescribed either in the Constitution or in any statute within which a death sentence has to be executed. The term“a very long time”was subjective.He stated that theCatholic Commission for Justice and Peace in Zimbabwe(supra) andPratt and MorganHe invited us to decline to rule on this issue as the Supreme Court of Nigeria did inKalu’s caseThe imposing question that arises from the arguments of counsel of both parties is –Do condemned prisoners have any fundamental rights and freedoms left to be protected before they are executed? This question was answered in theCatholic Commission for Justice and Peace in Zimbabwe (supra) in this way:-

“ Prisoners did not lose all their constitutional rights upon conviction, only those rights inevitably removed from them by law either expressly or by implication. Accordingly a prisoner who was sentenced to death still enjoyed the protection of section 15(1) of the Constitution of Zimbabwe in respect of his treatment during confinement. ”

It was submitted for the petitioners that the intervening long delay on the death row, coupled with the harsh and difficult conditions in the death row, sets in what is known as“death row phenomenon”In other jurisdictions, for example, Zimbabwe in theCatholic Commissioner for Justice and Peace in Zimbabwe(supra), and inJamaica in Earl Pratt and Morgan (supra), that question was answered that prolonged delay on the death row had adverse effect on the condemned prisoners’s physical and mental state as a result of what is known as“death rowsyndrome.”Ben Ogwang, the 3rd petitioner herein, deponed that he had lived in the Condemned Section of Luzira Prison since 1983. He has been transferred to Kirinya prison – Jinja in April 2003. He still remains the longest surviving prisoner on the death row having lived there for 20 years. He deponed of the conditions in the condemned section (death row) of Luzira Prison, as follows:-

“ The living conditions are extremely depressing. When I was first brought to the condemned section, I and my fellow death row inmates were only allowed 48 (forty eight) minutes a day out of our cells. 24 (twenty four) minutes of this in the morning and the remainder in the evening. This time was normally used for us to empty and clean our chamber pots/buckets. I and my fellow deathrow inmates spent over 23 (twenty three) hours a day in our cells. In 1991, after Mr. Joseph Etima became Commissioner of Prisons, the period we were allowed out of our cells was increased and inmates in Luzira are now confined for approximately only 16 – 18 (sixteen to eighteen) hours each day in our cells. Inmates in Kirinya Jinja Prison are only allowed 2 (two) hours of exercise each day, 1(one) hour in the morning and 1 (one) hour in the evening.The lights in the cells are left on all nights, making it difficult for us to sleep properly. This normally leaves us in a permanent state of tiredness, lethargy leading to lack of concentration, insomnia and virtually makes us walking zombies.

 

The cells are very cold at night. There are no provisions to keep out mosquitoes and I and my fellow death row inmates very often suffer frommalaria, from which some die.

 

I and my fellow death row inmates do not have night clothes. Since in most cases I and my fellow death row inmates only have 1 (one) set of sometimes threadbare and tattered uniform, most of us are forced to sleep naked. This compounds our degradation and humiliation.

 

When I and my fellow death row inmates lie in our overcrowded cells, there is barely enough room to move around. This makes it easy for contagiousdiseases like tuberculosis, common cough, colds and other infections in prison to become chronic epidemics.

 

Sometimes, when prisoners on death row get sick, the hospital staff are reluctant to give us proper medicines and medical attention. The medical staff sometimes tell us that since I and my fellow death row inmates are going to be hanged anyway, they do not need to waste the scarce drugs on us. This increases the depression among prisoners on death row.

 

The cells in Luzira have no toilet facilities. Because I and my fellow death row inmates spend most of the day inside these cells, our urination and defecation happen in open chamber pots. It is very degrading to human dignity for a human being to be forced to defecate or urinate in the presence of others. This is even more humiliating when one is suffering from diarrhea and has to use the chamber pots frequently.

 

The resentment of our cellmates when they see us urinating and defecating in the chamber pots, frequently makes our living conditions intolerable, especially if the pots accidentally spill or fill up. There is no toilet paper provided by the prison authrorities.

 

In addition to the indignity of using the chamber pots with others watching, is the additional indignity of having to watch othersdefecate or urinate in your presence. This is extremely revolting and shocking to ones senses, and difficult to explain to people who do not live with it every day of their lives. Sometimes, this takes place when I and my fellow death row inmates are eating. Then I and my fellow death row inmates have to sleep with an open bucket full of faeces and urine next to us. This is extremely inhuman and degrading treatment. Human beings were not meant to be confined in such circumstances.The meals are often inadequate and poorly prepared. Many prisoners’ stomach can not cope with them. The timing of meals is extremely erratic. Sometimes the last meals of the day is served in the morning hours and I and my fellow death row inmates have to cope until the next morning. The quality and quantity of the meals is extremely bad. I and my fellow death row inmates normally have one lump or posho and a few beans a day, sometimes served together, and at other times served separately in an erratic, random order.

 

Life in the condemned section revolves around talking about our impending fate. The gallows are never far from our minds, and horrific stories around in both the prison community and from the guards about previous executions. This adds to the terror I and my fellow death row inmates are forced to confront on a daily basis.

 

l and my fellow death row inmates are under surveillance at all times and I and my fellow death row inmates are subject to impromtu spot checks.

 

While I have been in the condemned section, very many inmates have died of diseases related to physical and metal anguish, physical hardship, poor feeding, depression and many other causes. Very many death row prisoners have died within the condemned section in such circumstances, before their executions were carried out. A list of some of those inmates who died is hereto attached and marked as annexture ‘A’.

 

The presence of the gallows in the condemned section serves as a constant reminder that I and my fellow death row inmates are in prison to be executed.

 

I have been an inmate of the condemned section of Luzira prison for the past 20 (twenty) years and hence, I was present when the 1989, 1991, 1993, 1996 and 1999 executions were respectively carried out.”

He deponed to the conditions in the condemned prison a week before and immediately after the execution process as follows:-

“ When there is going to be an execution, I and my fellow death row inmates suffer a living hell on earth. I can describe the circumstances as best as I can below:-While I and my fellow death row inmates are on death row, I and my fellow death row inmates are never informed of when an execution is due to take place or who is going to be executed. At all times, I and my fellow death row inmates, therefore, do not know when they are coming for us. This practice of being left in suspense adds to our constant daily fear, mental anguish and torture.In the past 20 years, every time an execution was going to take place, I and my death row inmates were left guessing and worried. The signs that indicate to us that an execution is going to take place are any unusual activity. For example, if I and my fellow death row inmates are locked in our cells beyond the usual time, or every time new guards or strange faces emerge, I and my fellow death row inmates immediately break in to a panic thinking that an execution isgoing to take place. There is no other way I and my fellow death row inmates can know when an execution is going to take place or who is to be executed. So I and my fellow death row inmates live in constant fear to any unusual activity. This means that the slightest thing that is different from our normal routine causes us all to become sick and scared. I and my fellow death row inmates face this for several years. This state of fear is based on the condemned prisoners experience just before each previous executions.Sometimes, while I and my fellow death row inmates are outside exercising, the guards suddenly call for lock up before the usual time. After I and my fellow death row inmates have been locked up in our cells, the guards come and call out names at random. This is an extremely terrifying event, and a person needs to live it to believe it. At times, I and my fellow death row inmates are all very scared and are praying hard that they do not call our names. If a guard comes and stops outside a condemned prisoner’s cell door, the said prisoner usually immediately feels his bowels opening up and ends up soilinghimself. In such circumstance, the prisoner is so scared that they have come to arrest him for execution. This experience is like going through death yourself. I have endured this excruciating experience very many times and I still have recurring nightmares about it.Those who are marked for death and called out of their cells in the above circumstances are literally dragged out of their cells. Many are taken while they are wailing, kicking and screaming and this adds to our total fear, shock and horror. They are hand cuffed and legs irons are put on their legs. At that time I and my fellow death row inmates see them for the last time and I and my fellow death row inmates know that they are being led to their death. This is very tormenting on our souls as I and my death row inmates watch in horrific specter. They are then led upstairs to the death chambers. I and my fellow death row inmates then hear them crying, wailing and singing hymns.Immediately, a funeral atmosphere engulfs in the entire condemnedThe execution process normally takes up to 3(three) days and during these days I and my fellow death row inmates are not allowed out ofDuring this period of forced confinement, I and my fellow death row inmates can hardly move. I and my fellow death row inmates areforced to live, sleep and eat in the same confined a conditions, with human excrement overflowing, and there is virtually no appetite for food. One can not sleep or even converse with cellmates. There is normally a dead silence and each of us is forced to silently contemplate our impending death and grapple with our upcoming fate privately. This is cruelty beyond description. ”

In Uganda, article 121 of the Constitution sets up an Advisory Committee to advise the President on the exercise of his discretion on prerogative of mercy. The Committee is under the Chairmanship of the Attorney General. That article is operationalised by section 102 of theTrial on Indictments Act and section 34 ofthe Prisons ActThe spirit of our Constitution is that whatever is to be done under it affecting the Fundamental Rights and Freedoms must be done without unreasonable delay. Section 34 (2) of the Interpretation Act (Cap 3) Laws of Uganda, provides that“where no time is prescribed or allowed within which anything shall be done, that thing shall be done without unreasonable delay.”Finally, I now turn to issue No 6, namely,whether the petitioners are entitledto the remedies sought.Clause 4 of Article 137 of the Constitution of Uganda provides as follows:-

“ Where upon determination of the petition under clause (3) of this article, the Constitutional Court considers that there is need for redress in addition to the declaration sought, the Constitutional court may:-

(a)     

grant an order of redress; or

(b)     

refer the matter to the High Court to investigate and determine the appropriate redress.”

(i)     

(ii)    

that the imposition of the death penalty is a violation of the right to life protected under articles 22(1) of the constitution,

(iii)   

that the various provisions of the laws of Uganda that prescribe death penalty are inconsistent with and in contravention of Articles 21, 22(i), 24, 28, 44(a), 44(c) of the Constitution.

(iv)    

That section 99(1) of the Trial on Indictments Act (Cap 23 of Laws of Uganda) and the relevant sections of and provisions made under the Prisons Act, that prescribe hanging as the legal method of carrying out the death sentences are inconsistent with Articles 24 and 44(a) of the Constitution.

(a)     

the various provisions of the laws of Uganda that prescribemandatorydeath sentences are inconsistent with Articles 21, 22(1), 24, 28, 44(a) and 44(c) of the Constitution. The affected provisions are sections 23(1), 23(2), 189, 286(2), 319(2) of the Penal Code Act (Cap 120 of Laws of Uganda) and section 7(1)(a) of the Anti Terrorism Act No 14 of 2002 and any other laws that prescribemandatory death sentences.

(b)     

Section 132 of the Trial on Indictments Act (Cap 23) that restricts the right of appeal against sentence where mandatory sentences are imposed is inconsistent with article 21, 22(1), 24, 28, 44(a) and 44(c) of the Constitution.

(c)     

that inordinate delay in carrying out the death sentence after it has been confirmed by the highest appellate court is inconsistent with Articles 24 and 44(a) of the Constitution. A delay beyond 3 years after the highest appellate court has confirmed the sentence is considered inordinate.

Orders:(1)     

For the petitioners whose appeal process is completed and their sentence of death has been confirmed by the Supreme Court, the highest appellate court, their redress will be put on halt for two years to enable the Executive to exercise its discretion under article 121 of the Constitution. They may return to court for redress after the expiration of that period.

(2)     

For the petitioners whose appeals are still pending before an appellate court:-

(a)     

shall be afforded a hearing in mitigation on sentence,

(b)     

the court shall exercise its discretion whether or not to confirm the sentence,

(c)     

thereafter, in respect of those whose sentence of death will be confirmed, the discretion under article 121 should be exercised within three years,

(d)     

each party would bear his own costs as this petition was taken as a matter of public interest.

Dated at Kampala this ………………….. Day of …………………..2005.

JUSTICE OF APPEAL

 

 

 

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

         HON MR. JUSTICE S. B.K KAVUMA, JA

CONSTITUTIONAL PETITION NO 6 OF 2003

 

BETWEEN

 

SUSAN KIGULA & 416 OTHERS::::::::::::::::::::::::::PETITIONERS

AND

 

THE ATTORNEY GENERAL:::::::::::::::::::::::::::::::RESPONDENT

 

JUDGMENT OF TWINOMUJUNI, JA1.      

INTRODUCTION

 

This petition has been brought on behalf of 417 prison inmates all of whom have been sentenced to death by the Courts of Judicature in Uganda. It seeks to challenge the constitutionality of the death penalty, to which they have been condemned, after conviction under various provisions of the Penal Code Act. In particular, the petition makes the following averments:-

(a)     

(b)     

(i)     

A mandatory death sentence which was imposed on 99% of the petitioners is unconstitutional to the extent that it denies them the right to appeal against and to have their sentences confirmed by the Highest appellate court which is contrary to articles 21, 22, 24, 28 and 44 of the Constitution.

(ii)Death by hanging which is the legally prescribed method of implementing the death sentence is inconsistent and contravenes articles 24 and 44(a) of the Constitution.

(iii) The lengthy intervening period between conviction and execution which has been endured by most of the petitioners makes what might have previously and otherwise been a lawful punishment, now exceedingly cruel, degrading and inhuman contrary to articles 24 and 44(a) of the Constitution.

 

(a)     

(b)      That all the named provisions of the law which prescribe a death sentence and for the method of hanging should be declared unconstitutional as they contravene articles 24 and 44 (a) of the Constitution.

1)      

2)      

Prof. Frederick E. Ssempebwa.

1)      

2)      

3)      

4)      

5)      

6)      

7)      

8)      

9)      

10)     

11)     

Sandra Kibenge.

1)      

2)      

3)      

4)      

5)      

Freda Kabatsi, State Attorney.

2.      

THE SCOPE OF THE PETITION

(a)     

(i)     

(ii)    

(vi)    

(viii)  

(ix)    

(xii)   

Section 99(1) of the Trial on Indictment Act.

3.      

THE ISSUES

 

Consideration and determination of this petition will be limited to the following six issues which were agreed upon by both parties at the beginning of the trial:-(1)     

(6)     

Are the petitioners entitled to any remedies?

4.      

 

GENERAL PRINCIPLES OF CONTITUTIONAL INTERPRETATION

 

 

(i)     

Tinyefuza vs. Attorney General, Constitutional Petition No.1 of 1996.

(iii)    Abuki vs. Attorney General, Constitutional Case No.2 of 1997.

(iv)     Attorney General vs. Abuki [2001] 1 LRC 63.(v)     

P.K. Ssemogerere and Another vs. Attorney General, Constitutional Petition No.3 of 2000.

(a)     

(k)      Both purpose and effect are relevant to the determination of constitutional validity of a legislative or constitutional provision.

This summary is not exhaustive but contains the most important principles of constitutional interpretation that must guide this court in the task at hand.

(j)     

DETERMINATION OF ISSUES

(A)     

ISSUES NO 1 AND 2

 

I find it very convenient to deal with these two issues together because they are interrelated, they are:-

No1:    “Whether the death penalty prescribed by various laws of Uganda constitutes cruel, inhuman or degrading treatment or punishment contrary to article 24 of the Constitution.”

 

No2:    “Whether the various law of Uganda that prescribe death upon conviction are consistent with or in contravention of articles 24 and 44 or any other provision of the Constitution.”

 

-       

-       

If so, does our Constitution permit it?

 

We are being called upon to interpret the validity of a death sentence in light of articles 22(1), 24 and 44(a) of the Constitution. The three articles provide:-

 

Article 22:“PROTECTION OF RIGHT TO LIFE(1)     

No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.”

 

Article 24:     “No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.”Article 44:     “Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-(a)     

freedom from torture, cruel, inhuman or degrading treatment or punishment;”

 

Mr. John Katende, learned counsel for he petitioners submitted that a death penalty was cruel, inhuman and degrading punishment. He submitted that since article 24 of the Constitution did not provide a definition of those words, the court had to interpret the words in their natural English Dictionary meaning. He referred us to the Supreme Court decision ofAttorney General vs. Abuki (supra) especially the judgment of Hon. Justice Oder, JSC in which he stated that the words had to be interpreted in accordance with their Dictionary meaning. In theAbuki case,the Supreme Court held that banishing a person from his home area for an offence of practicing witchcraft was cruel, inhuman and degrading punishment within the meaning of article 24 of the Constitution. Mr. Katende also relied on the case ofKyamanywa vs. Attorney General Constitutional Ref. No. 10 of 2000, in which this court held that corporal punishment was cruel, inhuman and degrading punishment within the meaning of article 24 of the Constitution. In his view, if banishment and corporal punishment could be declared unconstitutional, then the death sentence which is more sordid and barbaric should be declared to contravene article 24 of the Constitution and to be null and void. He relied on two other authorities, one from the Republic of Tanzania and another from the Republic of South Africa. In the Tanzanian cases ofRepublic vs. Mbushuu and Another [1994]2LRC 335 andMbushuu and Another vs. Republic [1995]1LRC 217,both the High Court of Tanzania and the Court of Appeal of that country held that a death sentence was inherently cruel, inhuman and degrading punishment. In the case ofState vs. Makwanyane and Another [1995]1 LRC 279, The Constitutional Court of the Republic of South Africa also held, after reviewing several common law jurisdiction decisions on the matter, that a death sentence was cruel, inhuman and degrading punishment. Mr. Katende submitted that since these foreign decisions had been followed with approval by the Supreme Court of Uganda in the case of The Attorney General vs. Abuki (supra), then the cases together with theKyamanywa case were binding on us. He invited us to hold that a death sentence in Uganda was inconsistent with article 24 of the Constitution because it is cruel, inhuman and degrading.

 

On the whether the Constitution of Uganda permitted such a punishment, Mr. Katende invited us to answer the question in the negative. He submitted that on reading article 22(1) of the Constitution, one first gets the impression that a death penalty is permitted by the Consitition. He argued, however, that article 44(a) of the Constitution left no doubt whatsoever that no derogation could be permitted on the provisions of article 24 of the Constitution. He especially invited us to note that article 44 began with words the underlined words as follows:-

“Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-(a)     

freedom from torture, cruel, inhuman or degrading treatment or punishment.”[Emphasis added]

 

In his view, this meant that the freedom from torture, cruel, inhuman or degrading treatment or punishment was absolute, no matter what anything else in the Constitution, including article 22(1) of the Constitution, provided. He again cited theAbuki caseFinally on this issue, Mr. Katende invited us not to rely on public opinion when deciding whether a death penalty is cruel, inhuman or degrading punishment. He submitted that up to date, there are no accurate figures as to where the people of Uganda stand with regard to the issue of death sentence. There is no reliable poll that has been taken on the matter. Even the two reports of the Constitutional Review Commissions by Chief Justice Odoki and Professor F. Sempebwa do not present an accurate picture on the matter because the sample of the population which was interviewed on the matter is too small to reflect an accurate picture of what the population wants.

 

Mr. Katende submitted that the legal position with regard to the role of public opinion on the issue of the death sentence was that public opinion is irrelevant. According to him, the duty of the court was to decide in accordance with the Constitution and the court should not be reduced to that of an election returning officer. It would set a very dangerous precedent if every time a Constitutional Court had to decide on a constitutional provision it had to canvass and seek public opinion so that it decides in accordance with it. That would make the role of the Constitution and the Constitutional Court useless and meaningless. Mr. Katended heavily relied on the South African case ofState vs. Makwanyane (supra) in which the Constitutional Court of South Africa held that public opinion was irrelevant to the issue of the death penalty and in any case, he quoted,

“No where was the death penalty ever abolished with the public cheering.”

 

(i)     

(ii)    

(iv)     The conviction and sentence have been confirmed by the highest appellate court.

 

In his view, the question for this court to decide was not whether the death penalty was cruel, inhuman or degrading punishment in the ordinary sense of those words but whether the death penalty is torture, cruel, inhuman or degrading within the meaning of article 24 of the Constitution. He submitted that article 24 was never intended to apply to a death sentence. He contended that articles 22 and 23 are exceptions to article 24. The framers of the Constitution could not have forgotten those provisions when they drafted article 24. If they had intended to take away the right recognized by article 22(1), they would have stated so in very clear terms without ambiguity. In his view, the combined effect of articles 22, 23 and 24 was to redress the bad history of our country which was characaterised by extra judicial killings, unlawful detentions and torture of detained people. Article 24 was intended to apply to torture, cruel, inhuman or degrading treatment or punishment outside the judicial process, like the heinous crimes which were committed by the petitioners.

 

Addressing his mind to the cases ofAbuki andKyamanywa (supra)Thirdly, in bothAbukiandKyamanywaMr. Wamambe also submitted that the South African case ofMakwanyane (supra)On the implications of article 44(a) which began with the words“Notwithstanding anything in this Constitution.”On the role of public opinion in the determination of whether a death penalty was cruel, inhuman or degrading treatment or punishment, Mr. Wamambe submitted that in Uganda public opinion was a relevant factor because of our unique article 126 of the Constitution which requires courts to exercise judicial power in the name of the people and in conformity with law and with the values, norms and aspiration of the people. He submitted that the holding in theMakwanyane case-       

-       

If so, is it authorized by the Constitution?

 

I have read all affidavits filed on behalf of both parties to this petition. They portray the death sentence as sordid, barbaric and extremely harrowing experience. I have also carefully studied all the authorities, local and foreign, together with the relevant legislative and constitutional provisions. I have also studied all the International Conventions on the death penalty. I have no hesitation whatsoever in stating categorically that a death sentence is cruel, inhuman and degrading punishment within the meaning attributed to those words inAttorney General vs. Abuki, Kyamanywa vs. Uganda, Republic vs. Mbushuu, State vs. Makwanyane, (All supra), Kalu vs. The State (1998) 13 NWL R54and several others cited form USA, the Caribbean countries, India and Bangladesh. However, that is not the issue which falls for determination now. The issues is:Is the death penalty in Uganda cruel, inhuman or degrading punishment or treatment within the meaning of article 24 of the Constitution of Uganda?Article 22(1) of our Constitution provides:-

“No person shall be deprived of life intentionallyexcept in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court."[Emphasis added]

 

In short, the right to life is guaranteedexceptNext, is article 24. It states:-

“No person shall be subjected toany formof torture, cruel, inhuman or degrading treatment or punishment.”

 

We must remember that unlike inAbuki andKyamanywaThis holding indirectly answers the second question, namely whether the death sentence is authorised by the Constitution. I have found that article 22(1) authorises a death sentence carried out in execution of a lawful court order. It is an exception to and is not affected by article 24. It is also not affected by article 44(a) of the Constitution which states:-

“Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-(a)     

freedom from torture, cruel, inhuman or degrading treatment or punishment (article 24),(b)     

freedom from slavery or servitude (article 25(a)),(c)      the right to a fair hearing (article 28),(d)      the right to an order of habeas corpus.”

 

In Uganda, the death penalty is so clearly spelt out and authorized by the Constitution that it is not necessary to resort to public opinion in order to determine whether it is cruel, inhuman or degrading treatment or punishment or whether it is authorised by the Constitution. However, I do not agree that public opinion is an irrelevant factor. It is a very relevant factor because of article 126(1) of the Constitution which states:-

“Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people.”

 

In the interpretation of this Constitution and indeed any other law, the views of the people, wherever they can be reasonably accurately ascertained, must be taken into account. This is a command which no court can ignore. There is no equivalent provision in the Constitutions of Tanzania or the Republic of South Africa. Their authorities on this matter are not very helpful to Uganda.

(B)     

ISSUE NO.3

        

The issue here is whether various laws of Uganda that prescribemandatory death sentencesupon conviction, and bar appeals from these sentences, are inconsistent with or in contravention of articles 20, 21, 22, 24, 28 44 or any other provision of the Constitution.

The following four provisions of our laws provide for mandatory sentences:-

(a)     

(b)     

(c)     

(d)     

Section 7(1)(a) of the Anti Terrorism Act 14 of 2002, (punishment for acts of terrorism leading to the death of a person).

 

(i)     

(ii)    

(iii)   

(iv)    

(v)     

(vi)    

Article 21(1) by denying them of the right to equality before the law.

Articles: 22(1), 28 and 44(c)On the infringements to the right to a fair hearing and a fair trial, Prof. Sempebwa submitted that no trial for a serious crime attracting a death penalty could be said to be a fair trial when the accused persons is denied the right to be heard on the question of sentence in the trial court and appellate courts up to the highest court. He argued that each individual case has got special circumstances that should be heard by the court after conviction but before sentence. No two offences are committed in exactly the same way or under similar circumstances. In his view, a law which provides that all persons convicted of similar crimes under the law must automatically suffer death, violates the right to a fair trial and a fair hearing guaranteed under articles 22(1), 28 and made no-derogable by article 44(c) of the Constitution. All such provisions of the law which denied an accused person of a right to a fair trial or fair hearing should be declared unconstitutional, and therefore null and void. He relied on the case ofRayes vs. The Queen (2002) 2AC 235 andMithu vs. State of Punjab (1983 SOL Case No.026)Article 22(1) Confirmation of SentenceProf. Sempebwa argued that in order for a sentence passed under article 22(1) to be lawful, it had to be confirmed by the highest appellate court. According to him, this meant that the court had a discretion to confirm or not to confirm the sentence. Where the death penalty is mandatory, that discretion is removed from the highest appellate court in violation of article 22 of the Constitution. This reduces the highest appellate court into a rubber stamp of sentences pre-ordained by the legislature which is unconstitutional. He cited the case ofSpencer vs. The Queen andHughes vs. The Queen both cited with approval inRayes vs. The Queen (supra) in which it was held that a court must have the discretion to take into account circumstances of an individual offender and offence in determining whether death penalty should be imposed.

 

Infringement of Article 126: Separation of Powers.Prof. Sempebwa also argued that the mandatory death sentence offended the basic separation of powers between the legislature and the judiciary. According to counsel, the role of the Legislature was to prescribe sentences but it was the duty of the Judiciary to decide on the appropriate sentence for each individual accused persons within the parameters set by the legislature. When the legislature prescribes a mandatory death sentence on all persons committing a given offence, irrespective of individual mitigating factors, it usurps the role of Judiciary. For this proposition he relied on the case ofViolation of Article 24-       

-       

-       

-       

The United Nations Human Rights Committee,

(a)     

(b)     

A mandatory death penalty does not contravene article 21 of the Constitution. This article guarantees equal treatment before the law. Article 21(5), however, provides that:

"Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Constitution."

(c)     

(d)     

(e)     

(i)     

(ii)    

(iii)   

(iv)    

(v)     

In Uganda, all that is required is a strict observance of article 28 of the Constitution. Once that is done, you cannot talk of unfair hearing in criminal proceedings.

 

I now turn to the merits of the third issue of this petition. I have held on the 1st and 2nd issues that the death sentence prescribed by article 22(1) of the Constitution is an exception to the prohibitions contained in article 24 and therefore the sentence is not cruel, inhuman or degrading treatment or punishment. I have also held that the death sentence is authorised by the Constitution. It is now time to examine whether the Constitution gives Parliament the power to prescribe a mandatory death sentence or to prescribe a death sentence for any criminal offence as it wishes. Article 22(1) of the Constitution provides:-

"No person shall be deprived of life intentionally except in execution of a sentence passed ina fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and theconvictionandsentencehave beenconfirmedby the highest appellate court." [Emphasis added]

 

(a)     

In execution of a sentence passed ina fair trial(b)     

(c)     

The conviction and sentence have beenconfirmedby thehighest appellate court.

 

The case for the petitioners is that a mandatory death penalty deprives the person convicted of a capital offence of his inherent right to be heard in mitigation before the sentence is imposed. To refuse to hear an accused person on any aspect of his/her trial affecting his conviction or sentence would be denial of his right to a fair hearing guaranteed under article 28 of the Constitution. Article 22 also requires that anyconvictionandsentencepassed upon the conviction must beconfirmedI think there is no doubt that in Uganda, once a person is convicted of an offence on which the law prescribes a mandatory death sentence, he is not given an opportunity to say anything in mitigation before a death sentence is pronounced against him. Section 98 of the Trial of Indictments Act provides:-

"The Court,before passing any sentence other than a sentence of death,may make such inquires as it thinks fit in order to inform itself as to the proper sentence to be passes, and may inquire into the character and antecedents of the accused person either at the request of the prosecution or the accused person and may take into consideration in assessing the proper sentence to be passed such character and antecedents including any other offences committed by the accused person whether or not he or she has been convicted of those offences:" [Emphasis added]

In 1983 the case ofMithu vs. State of Punjab (supra) posed such a challenge to the Supreme Court of India. Section 303 of the Indian Penal Code provided:-

"Punishment for murder by life convict - whoever, being under a sentence of Imprisonment for life, commits murder, shall be punished with death."

 

The issue before the court was whether this section infringed Article 21 of the Indian Constitution which provided:-

"No person shall be deprived of his life or personal liberty except according to procedure established by law."

 

It was argued for the petitioner that section 303 was wholly unreasonable and arbitrary and violated article 21 of the Constitution to the extent that it authorised deprivation of life unjustly and unfairly and is therefore unconstitutional. The Supreme Court of India concurred. The court found that:-

"If the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question of sentence and it becomes superfluous to state the reasons for imposing the sentence of death. Theblatant reason for imposing the sentence of death in such a case is that the law compels the court to impose that sentence." [Emphasis added]

 

The Supreme Court of India asked some pertinent questions in theMithu case:-

"Is a law which provides for the sentence of death for the offence of murder, without affording to the accused an opportunity to show cause why that sentence should not be imposed, just and fair?

 

Secondly, is such a law just and fair if, in the very nature of things, it does not require the court to state the reasons why the Supreme penalty of law is called for? Is it not arbitrary to provide that whatever may be the circumstances in which the offence of murder was committed, the sentence of death shall be imposed upon the accused?"

The Supreme Court of India went on to discuss the folly of the mandatory sentence in these terms:-

"…..a provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. It has to be remembered that the measure of punishment for an offence is not afforded by the label which that offence bears, as for example 'Theft,' 'Breach of Trust' or 'Murder'. The gravity of the offence furnishes the guideline for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, its motivation and its repercussions.The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. Equity and good conscience are the hallmarks of justice. The mandatory sentence of death prescribed by section 303, with no discretion left to the court to have regard to the circumstances which led to the commission of the crime, is a relic of ancient history. In the times in which we live, that is the lawless law of military regimes. We, the people of India, are pledged to a different set of values.For us, law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by decreeing that no matter what the circumstances of the crime, the criminal shall be hanged by the neck until he is dead." [Emphasis added]

 

The Indian Court concluded:-

"A standardised mandatory sentence, and that too in the form of a sentence of death, fails to take into account the facts and circumstances of each particular case. It is those facts and circumstances which constitute a safe guideline for determining the question of sentence in each individual case. ……sec.303 excludes judicial discretion.The scales of justice are removed from the hands of the judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irresistible is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must be stigmatised as arbitrary and oppressive. Sec.303 is such a law and it must go the way all-bad laws go. Section 303 of the Indian Penal Code must be struck down as unconstitutional." [Emphasis added]

 

The decision of the Indian Supreme Court inMithu is not an isolated decision. It was cited with approval in the recent decision of the Privy Council inReyes vs. Queen (2002) UK PC II .In this case, the Privy Council was considering an appeal from the Court of Appeal of Balize in which the defendant Reyes was given a mandatory sentence of death for murder. The Privy Council reviewed most of the cases decided in the Commonwealth and the United States on the subject for mandatory death sentence, including theMithu case (supra). The summary of the issue which lay of determination and the courts conclusion are to be found on page 255 of the report as follows:-

"8.2 Counsel has claimed that the mandatory nature of the death sentence and its application in the author's case, constitute a violation of articles 6(1), 7 and 26 of the Covenant. The state party has replied that the death sentence is only mandatory for murder, which is the most serious crime under the law, and that this in itself means that it is a proportionate sentence. The committee notes that the mandatory imposition of the death penalty under the laws of the state is based solely upon the category of crime for which the offender is found guilty, without regard to the defendant's personal circumstances or the circumstances of the particular offence. The death penalty is mandatory in all cases of 'murder' (intentionalacts of violence resulting in the death of a person).The committee considers that such a system of mandatory capital punishment would deprive the author of the most fundamental of rights, the rights of life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case. The existence of a right to seek pardon or commutation as required by article 6, paragraph 4, of the Covenant, does not secure adequate protection to the right of life, as these discretionary measures by the executive are subject to a wide range of other considerations compared to appropriate judicial review of all aspects of a criminal case.The committee finds that the carrying out of the death penalty in the author's case would constitute an arbitrary deprivation of his life in violation of article 6, paragraph 1, of the Covenant." [Emphasis added]

 

In the case of Uganda, the laws which authorise such mandatory sentence violate articles 22(1) 28 and 44(c), the non-derogable right to a fair trial and a fair hearing. Such laws cannot be justifiable under article 43 of the Constitution or any other law since article 44(c) of the Constitution is supreme and non- derogable on the right to a fair hearing. The laws must be declared unconstitutional and null and void. This is irrespective of the right of an accused to seek pardon or commutation under article 121 of the Constitution. The Privy Council inReyes vs. The Queen (supra) observed that:-

"The existence of a right to seek pardon or commutation as required by article 6, paragraph 4 of the Covenant, does not secure adequate protection to the right to life, as these discretionary measures by the executive are subject to a wide range of other considerations compared to the appropriate judicial review of all aspects of a criminal case."

There is also another aspect of this issue as to whether a mandatory death sentence permits the death sentence to be confirmed by the highest appellate court as required by article 22(1) of the Constitution. There is no dispute that the highest appellate court in Uganda is the Supreme Court. It is a very well known fact that when it confirms conviction of a person charged of an offence punishable by amandatory death sentenceIt should be obvious from my findings in the first and second issues of this petition, that for a death sentence authorised under article 22(1) to qualify as an exception to the prohibitions in article 24 of the Constitution, it must have been passed in afair trial andconfirmed by the highest appellate court. I have also held that a mandatory death penalty neither permits a fair trial nor confirmation of the sentence by the highest appellate court. Therefore amandatory death sentenceDoes a mandatory death sentence contravene article 21(1) of the constitution? The article states:-

All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law."

 

The respondent's defence is that article 21(5) provides:-

"Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of the Constitution."

 

The respondent argued that since article 22(1) permits a death sentence, the sentence is lawful even if it is made mandatory. With respect, I do not agree. Article 22(1) only authorises a death sentence passed in afair trial andconfirmedThis argument raises a very important matter of principle that needs to be settled in the interest of the administration of justice in this country. Whose duty is it to pass an appropriate sentence on a person convicted of crime? Is sentencing an exercise of legislative function or is it an exercise of the judicial function? Does Parliament have the power under the 1995 Constitution to compel judges and justices of the Courts of Judicature to blindly impose mandatory death sentences on citizens of this country who are rendered statutory mutes shortly before the death sentence is pronounced on them? Does our Constitution provide any guidance on this matter?

 

In the words of CHANDRACUND, CJ inMithu vs. State of Punjab (supra):

"The gravity of offences furnishes the guidelines for punishment and one cannot determine how grave the offence is without having regard to the circumstances in which it was committed, its motivation and its repercussions.The Legislature cannot make relevant circumstances, irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty to impose a preordained sentence of death. Equity and good conscience are the hallmarks of justice." [Emphasis added]

 

Is Uganda any different from India in this regard? Does the Parliament of Uganda have the power to order courts to blindly hand out death sentences pre-ordained by itself when it never had the opportunity of seeing or hearing the circumstances of each offence and each offender? Where in the Constitution does it derive that power? The respondent has categorically submitted that such power is conferred on the legislature by article 79(1) of the Constitution. That article states:-

"Subject to the provisions of this Constitution,Parliament shall have power to make laws on any matter for peace, order, development and good governance of Uganda."

The Constitution itself does not direct courts to pass blind sentences on convicted persons. The courts mandate to exercise judicial power are contained in article 126 of the Constitution. It states:-

"Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in accordance with thelawand with the values, norms and the aspirations of the people."

 

The first requirement of this article is that the exercise of judicial power must be in conformity with the Law. Is a "law" which provides for arbitrary, discriminating, unfair and unjust treatment of citizens a law within the meaning of this article? Can a "law" which derogates on the rights of citizen's quaranteed under article 22, 24, 28 and 44 be called a law within the meaning of article 126 of the Constitution? A law must always be right, just, fair, not arbitrary, fanciful or oppressive. If a law is not all these, it is no law at all and our courts are not called upon to exercise judicial power in conformity with such a"law".It should be clear from the above discussion that sentencing is a judicial function and not a legislative function. The legislature has all the powers to make laws including prescribing sentences. But it is the duty of the courts to ensure that the sentences so prescribed are imposed in accordance with the Constitution. Most of the laws which prescribe a mandatory death sentence were enacted before the promulgation of the 1995 Constitution. They are now inconsistent with it and to the extent of the inconsistency, they are null and void. If the 1967 Constitution did not define judicial power and led the legislature not to trust the judges' sense of responsibility to pass death sentences in deserving cases, the 1995 Constitution in article 126 prescribes the only limits to the exercise of judicial power and the legislature must now learn to trust that judges have enough sense of responsibility to bear in mind article 126 when considering whether to impose a death sentence or not. In other common law jurisdictions, judges do impose the death sentence in deserving cases even when it is not specifically made mandatory, as long as the legislature indicates that it is desirable. The legislature should be free to legislate but the judiciary should also be left free to adjudicate.

 

I wish to conclude by saying that Parliament has no power to enact a law which is arbitrary, unfair, unjust, fanciful or oppressive. The provisions of sections 189, 286(2) and 23(1) and (2) of the Penal Code Act, section 7(1)(a) of the Anti-Terrorism Act and section 98 of the Trial on Indictments Act are unjust, unfair, arbitrary and contrary to articles 21, 22, 24, 28, 44 and 126 of the Constitution. I would answer issue No.3 of this petition in the affirmative.

(C)     

ISSUE NO.4

 

Whether section 99 of the Trial on Indictments Act, which prescribes hanging as a legal method of implementing the death penalty, is inconsistent with and in contravention of articles 24, 44 and any other article of the Constitution. I have just held in issue No.3 that the various Uganda laws which prescribe amandatory death sentenceSection 99 provides:-

"99(1) Sentence of death shall be carried out by hanging in accordance with the provisions of the Prisons Act.(2)     

When a person is sentenced to death, the sentence shall direct that he or she shall suffer death in the manner authorised bylaw." [Emphasis mine]

 

The learned counsel for the petitioners who argued this ground submitted that a death sentence, even if it was found to be constitutional in Uganda, offends article 24 and 44(a) of the Constitution by virtue of the hanging method of implementation of the sentence. Counsel read affidavit evidence of Anthony Okwanga, a former prisons officer now on death row, Ben Ogwang, who has attended several executions by hanging at Luzira Prisons, and the expert evidence of Dr. Hunt and Dr. Hillman. Some of the affidavits contain graphic descriptions of barbaric, horrific and bizarre scenes that take place immediately before, during and after execution by hanging in Uganda and elsewhere. Counsel invited us to interpret the words"torture, cruel, inhuman"-       

Abuki vs. Uganda (supra)-       

Uganda vs. Abuki (supra)-       

Republic vs. Mbushuu (supra)-       

Mbushuu vs. Republic (supra)-       

State vs. Makwanyane (supra).

 

On the interpretation of the words“cruel, inhuman or degrading”Mr. Chibita invited us not to give them their ordinary English interpretation as was done in cases likeAbuki andKyamanywaI have held in this judgment that a death sentence in Uganda is lawful and Constitutional ONLY if it is carried out in a manner which is consistent with article 22(1) of the Constitution. Any death sentence which is passed in a manner not consistent with article 22(1) is unlawful and unconstitutional. In this part of this judgment, reference to adeath sentence”only refers to such a sentence passed strictly in accordance with article 22(1) of the Constitution. The term“death sentence”I have already quoted the provisions of section 99 of the Trial on Indictment Act earlier in this judgment. It authorizes execution of the death sentence by hanging. The constitutionality of hanging authorized by section 99 of the Trial on Indictment Act has not been challenged in our courts of law. It has, however, been a subject of challenges in United States of America, South Africa and other common law jurisdictions. In the United States Supreme Court case ofCampbell vs. Wood (1994) 18F 3a 662 the court described hanging in the following terms:-

“Hanging is savage and barbaric method of terminating human life…… Hanging is a crude rough and wanton procedure, the purpose of which is to tear apart the spine.It is needlessly violent and intrusive, deliberately degrading and dehumanising, it causes grievous fear beyond that of death itself and the attendant consequences are often humiliating and disgusting. In a number of cases, one of these consequences is decapitation.” [Emphasis added]

        “There is absolutely no doubt that every hanging involves a risk that the prisoner will not die immediately, but will instead struggle or asphyxiate to death. This process, which may take several minutes, is extremely painful. Not only does the prisoner experience the pain felt by any strangulation victim, but he does so while dangling at the end of a rope, after a severe trauma has been inflicted on his neck and spine. Although such a slow and painful death will occur in only a comparatively small percentage of cases, every single hanging involves a significant risk that it will occur…… This conclusion is not surprising, because every jurisdiction that has ever used hanging as a method of execution has understood that the risk of painful and torturous death exists.”The court then concluded:-

“Hanging is a violent mutilative barbaric procedure that has been resoundingly rejected…… Even aside from the risks of decapitation and lingering painful death, hanging is simply inconsistent with 'the dignity of man' which is the basic concept underlying the English amendment…… Hanging is without the slightest doubt, 'cruel and unusual' - in layman's terms and in the constitutional sense.” [Emphasis added]

Though these quotes are from the minority decision of the United States Supreme Court, they were cited with approval inState vs. Makwanyane(supra) unanimous decision of the Constitutional Court of the Republic of South Africa. In the Tanzanian case ofMbushuu (supra) hanging was described as follows:-

“….the process of hanging is particularly gruesome. One leading doctor described the process as'slow, dirty, horrible, brutal, uncivilised and unspeakably barbaric'.The prisoner is dropped through a trap door eight to eight and a half feet with a rope around his neck. The intention is to break his neck so that he dies quickly. The length of the drop is determined on the basis of such factors as body weight and muscularity or fatness of the prisoner's neck. If the hangman gets it wrong and the prisoner is dropped too far, the prisoner's head can be decapitated or his face can be torn away. If the drop is too short, then the neck will not be broken but instead the prisoner will die of strangulation. There are many documented cases of botched hanging in various countries including Tanzania. There are a few cases in which hanging have been messed up and the prison guards have had to pull on the prisoner's legs to speed up his death or use a hammer to hit his head. The shock to system causes the prisoner to lose control over his bowels and he will soil himself."[Emphasis added]

Hanging has been in the use in Uganda since 1938. It is a very well known sentence as the treatment one gets for very serious offences, especially as a sentence for murder. In Runyankole/Rukiga language it is calledAkabaahoand in Luganda,Akalabba. The Luo people call itDecIt should also be noted that the case ofCampbell vs. Wood(supra) represents a minority decision at the time of the decision and has very little persuasive value on this court beyond the useful description of the hanging method. The decision inMakwanyane is also distinguishable because the right to life is absolute under the Constitution of South Africa. The decision inMbushuu is also distinguishable because the death sentence was not authorized by the Constitution of Tanzania itself but by an Act of Parliament. In Uganda the death penalty is expressly authorized by the Constitution clearly in the knowledge that it would be carried out by hanging. Long before articles 22(1) and 24 were enacted, the practice of hanging criminals in serious crimes had been in practice for almost 60 years. The Uganda cases ofAbuki vs. Uganda and Kyamanywa vs. UgandaFinally, I have stated in this judgment, that unlike in South Africa where people’s opinion may not be a relevant considerations in constitutional interpretation, in Uganda, the people’s views are very relevant because of article 126 of our Constitution. Whether you call hanging cruel, inhuman, degrading, sadistic, barbaric, primitive, out moded e.t.c, as long as the people of Uganda still think that it is the only suitable treatment or punishment to carry out a death sentence, their values norms and aspirations must be respected by the courts. I also think that it is trite that every sentence must involve pain and suffering if it is to achieve its purpose as a punishment. A death sentence is not merely designed to remove from this earth, blissfully and peacefully, those people who have committed heinous crimes like murder, genocide and crimes against humanity e.t.c. It is intended to punish them here on earth before they go. It is not a one way ticket to Sugar Candy Mountains ofGeorge Orwell’s ANIMAL FARM. Once it is accepted that the death sentence is authorized by the Constitution, it is an exception to article 24 and all Parliament has to do is to provide a balanced method of carrying it out, between blissful and peaceful methods of dispatch, like the lethal injection and the more barbaric methods like stoning or public beheading. In that context, hanging is a modest method of carrying out the death sentence and therefore, section 99 of Trial on Indictment Act does not offend articles 24 and 44(a) of the Constitution. I would answer this issue in the negative.

(D)     

ISSUE NO.5

This is whether Execution of Petitioners who has been on death row for a long period of time is inconsistent with and in contravention of articles 24, 44 or any other provision of the Constitution. Professor Sempebwa, the learned counsel who argued this issue on behalf of the petitioners submitted that should the Constitutional Court be inclined to find that the Death Penalty is a lawful form of punishment, then the length intervening between conviction and execution that has been endured by the majority of the petitioners on death row makes what might otherwise be a lawful punishment, cruel, degrading and inhuman, and consequently unconstitutional to implement.

Counsel was anxious to point out that the petitioners were not seeking for a quick execution, but merely pointing out that to carry out the execution now would amount to cruel, inhuman and degrading form of treatment. For the rationale of this issue, he cited the case ofCatholic Commission for Justice and Peace of Zimbabwe vs. Attorney General (1993) 2LRC 277 which was cited with approval inR vs. Mbushuu (supra) where the court in Tanzania stated:-

"When a prisoner who has been on death row for several years approaches the courts for relief,he is not seeking to be put to death expeditiously, but rather, he is saying that the long period he has spent on death row, coupled with the agony and anguish of death row endured for several years, plus the horrible conditions under which he is kept, is such as to render his execution at that particular time cruel and inhuman as to offend the constitutional prohibition against cruel and inhuman punishments……he would not be challenging the legality or appropriateness of the original sentence of death. He would be accepting the validity of that original sentence but merely arguing that the juxtaposition of the intervening delay, and prolonged anguish of death row, which has been appropriately described as the a 'living hell' is such as to render it particularly inhuman to execute him at that stage.” [Emphasis added]

He submitted that because of what has come to be known as the“Death Row Phenomenon”(i)     

Catholic Commission for Justice and Peace in Zimbabwe vs. Attorney General and others (supra).(ii)    

Attorney General vs. Abuki (supra).(iii)   R vs. Mbushuu (supra)(iv)    Mbushuu vs. R (supra)(v)     

Platt and Morgan vs. Attorney General of Jamaica [1994] 2AC 36.(vi)    

Sovereign vs. UK (1989) EHRR 439.

(i)     

(v)     

All the cases relied upon by the petitioners on this issue are not applicable to this case. First, In theCatholic Commission for Justice and Peace and Platt and Morgan,the petitions were originated after a real threat of execution. The petitioners death warrants in both cases had already been signed. In this case there is no such threat. The President has not signed any warrant for execution of anyone. The petitioners still have a chance to be pardoned. The Presidents hands should not be tied by time limits. Second, in both cases, their respective countries had set very high standards whereby executions were always carried out speedily within a short time, but in Uganda, executions take a very long time to occur. Third, InPlatt and Morgan the State was found to have failed to perform some obligations hence contributing to the delay. In Uganda the State has been diligent throughout. Finally, counsel for the respondent invited us to find that long delay on death row was not only prohibited but was actually justified under our Constitution. In his view, this issue should be answered in the negative.

 

(a)     

(b)      Does it exist in Uganda?

(c) Is it capable of turning an otherwise lawful death sentence into cruel, inhuman, degrading treatment or punishment within the meaning of article 24 of the Constitution?

The meaning of death row phenomenon:The issue at hand was extensively discussed in the Supreme Court of Zimbabwe inCatholic Commission for Justice and Peace in Zimbabwe vs. The Attorney General and Others (supra). The brief facts of that case appear on page 284 of the report as follows:-

“The applicant, the Catholic Commission for Justice and Peace in Zimbabwe, was a human rights organisation. In March 1993 it was reported in a national newspaper that four men, all of whom had previously been convicted of murder and sentenced to death, were soon to be hanged. At this time the four condemned prisoners had already spent between four and six years in the condemned section of Harare Central Prison i.e. on death row. The applicant immediately sought and obtained from the Supreme Court a provisional order interdicting the Attorney General, the sheriff of Zimbabwe and the Director of Prisons, the respondents, from carrying out the death sentences. The matter was referred to the Supreme Court to determine whether the delay in carrying out the death sentences breached section 15(1) of the Constitution of Zimbabwe and if so, whether the sentences should be permanently stayed."

It should be noted that section 15(1) of the Constitution of Zimbabwe is similar to article 24 of our Constitution. The Supreme Court investigated the physical condition endured daily by the four condemned persons and found the following:-

Visitations from family members of about ten minutes' duration, in the presence of prison officers, are permitted periodically.”

The court also investigated the mental conditions, the anguish the condemned persons had to endure while waiting for execution. They were deponed to by a condemned prisoner called Admire Mthombeki as follows:-

Many people could not cope with all this and become mentally disturbed. The warders treated these kind of people even worse than us. For instance, if a mentally disturbed prisoner soiled his cell the warders refused for days to have it cleaned up.”

(a)     

“When a prisoner sentence by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it…. As to the precise time when his execution shall take place.”

(b)     

“Punishments are cruel when they involve… a lingering death…something more than the mere extinguishment of life.”

(c)     

“It may validly be argued, so it seems to me, that death is as lingering if a person spends several years in a death cell awaiting execution, as if the mode of execution takes an unacceptably long time to kill him. The pain of mental lingering can be as intense as the agony of physical lingering.”

(d)     

“Death row is barren and uninviting. The death row inmate must contend with a segregated environment marked by immobility, reduced stimulation, and the prospect of harassment by staff. There is also the risk that visits from loved ones will become increasingly rare, for the man who is 'civilly dead' is often abandoned by the living. The condemned prisoner's ordeal is usually a lonely one and must be met largely through his own resources. The uncertainties of his case - pending appeals, unanswered bids for problems. A continuing and pressing concerns whether one will join the substantial minority who obtain a reprieve and will be counted among the to-be-dead. Uncertainty may make the dilemma of the death row inmate more complicated than simply choosing between maintaining hope or surrendering to despair. The condemned can afford neither alternative, but must nurture both a desire to live and an acceptance of imminent death. As revealed in the suffering of terminally ill patients, this is an extremely difficult task, one in which resources afforded by family or those within the institutional context may prove critical to the person's adjustment. The death row inmate must achieve equilibrium with few coping supports. In the process, he must somehow maintain his dignity and integrity.”

(e)     

“Some death row inmates, attuned to the bitter irony of their predicament, characterize their existence as a living death and themselves as the living dead. They are speaking symbolically, of course, but their imagery is an appropriate description of the human experience in a world where life is so obviously ruled by death. It takes into account the condemned prisoners' massive deprivation of personal autonomy and command over resources critical to psychological survival; tomblike setting, marked by indifference to basic human needs and desires; and their enforced isolation from the living, with the resulting emotional emptiness and death.”

Does it Exist in Uganda?I have read about the physical conditions existing in our prisons from the affidavits of former inmates: Edward Mary Mpagi and Tom Balimbya and current inmates: Ben Ogwang, Susan Kigula, Andrew Walusimbi and Prisons officials: Tom Ochan and Moses Kakungulu Wagabaza.

Does its Existence Violate article 24 of the Constitution?Article 24 of the Constitution of Uganda states:-

"No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment."

Section 15(1) of the Zimbabwe Constitution states:-

"No person shall be subjected to toruture or to inhuman or degrading punishment or other such treatment."

         Commenting on the construction of the Zimbabwe provision in the case ofNcube vs. State [1988] LRC 442 at 460,Gubbay CJ (as he then was) stated:

"I express the view that section 15(1) is nothing less than the dignity of man. It is a provision that embodies broad and idealistic motions of dignity, humanity and decency. It guarantees that punishment or treatment of the individual be exercised within the ambit of civilised standards. Any punishment or treatment incompatible with the evolving standards of decency that mark the progress of maturing society, or which involve the infliction of unnecessary suffering, is repulsive."

         In this petition, 417 petitioners are complaining that since they were sentenced to death, they have been subjected to death row phenomenon for so long that it would be cruel, inhuman and degrading to subject them to execution after so much suffering. There is evidence that they have been on death row for between 4 to 20 years at the time of filing this petition. The average period of waiting is reckoned to be about 10 years. Have they ceased to have the protection accorded by article 24 of the Constitution? It was stated in theCatholic Commission for Justice and Peace of Zimbabwe (supra) that:-

        "It cannot be doubted that prison walls do not keep out fundamental rights and protections. Prisoners are not, by mere reason of a conviction, denuded of all the rights they otherwise possess. No matter the magnitude of the crime, they are not reduced to non-persons. They retain all basic rights, save those inevitably removed from them by law, expressly or by implication. Thus, a prisoner who has been sentenced to death does not forfeit the protection afforded by section 15(1) of the Constitution in respect of his treatment while under confinement."

InRiley vs. Attorney General of Jamaica [1982] 3 All ER 469 at 479the court stated:-

"It is, of course, true that a period of anguish and suffering is an inevitable consequence of sentence of death. But a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not. And it is no answer to say that the man will struggle to stay alive. In truth, it is this ineradicable human desire which makes prolongation inhuman and degrading. The anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional and physical integrity and health of the individual are vividly described in the evidence of the effect of the delay in the circumstances of these five cases."

 

         Finally, the conclusion of all the authorities reviewed in theCatholic Commissioncase can be summarised by the holding inIndian case of Trivenben vs. State of Gujerat 1992 LRC 425as follows:-

        "It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture…. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict is finally set against the accused. If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to court requesting it to examine whether, it is just and fair to allow the sentence of death to be executed."

 

Before I return to the question, let me first deal with two other concerns of the respondent. The first was that foreign authorities, includingCatholic Commission for Justice and Peace andMbushuu, are irrelevant to the instant situation in Uganda because their laws and Constitutions contain different provisions from those in our Constitution. The above analysis of theCatholic case-       

Catholic Commission for Justice and Peace of Zimbabwe’s. The Attorney General.-       

Platt and Morgan vs. The Attorney General of Jamaica.-       

Soering vs. United Kingdom (supra).

 

All these courts have held that the period starts to run from the date when the accused is first sentenced to death because that is when the Death Row Phenomenon sets in. I do not agree with the courts in that aspect. In Uganda, the right of an accused to have his death sentence confirmed by the Supreme Court is guaranteed. The period the accused stays on death row after the sentence has been passed is lawful and cannot be blamed on the state or the accused. Here a case takes about 3 years to go through the appeal process. In my judgment, a period of three years from the day the Supreme Court disposes of the appeal should be reasonable time within which to complete whatever is necessary to do under article 121 of the Constitution. It would be unconstitutional and in contravention of article 24 and 44(a) to carry out the death sentence on a prisoner who has been subjected to the Death Row Phenomenon for more than three years from the date his appeal was disposed of in the Supreme Court of Uganda. I would answer this issue in the affirmative.

(E)     

ISSUE NO.6

 

This is whether the petitioners are entitled to remedies prayed for in the petition.

 

        The Background

The criminal justice system in Uganda, especially where capital punishment is concerned, is now in an acute crisis. We have in our prisons more than 400 death row inmates. Many of them have been waiting for execution for more than 10 years, a good number of them for more than 15 years. There are a few who have already spent 20 years waiting for the punishment which the law and the courts pronounced on them –death. Looking at the statistics of death row inmates supplied by the petitioners and attached to Mr. Samuel Serwanga Ssengendo’s affidavit, it is safe to state that the majority of them have had the appeal process completed in the highest court of the land and what separates them from death is the legal requirement that every execution must be accompanied with a death warrant personally signed by the President of this Republic. We did not receive any direct evidence from the petitioners or the respondent as to why the warrants take so long to process. All we know is that under article 121 of the Constitution, the President is given power to pardon, commute, substitute, or grant remission to any person convicted of an offence. An unfortunate situation has now developed whereby the sentencing process in capital offences has been totally removed from the hands of the courts and has been transferred into the hands of one office of the President. It is no longer a judicial process but it has entirely become an executive and legislative function. The Constitution does not give the President time limit within which to exercise this function. Given the numerous constitutional functions of his office, it is difficult to imagine that dealing with criminals on death row would be any of his priorities.

 

For as long as these people are still alive, they have the protection of the Constitution and the Constitution demands that justice should be done to all speedily in order to be meaningful. Justice delayed is justice denied. There is great need to reform the criminal justice system so that in capital offences, justice is done speedily for the convict, the victims and society as a whole.

 

Outdated Laws

(a)     

(d)      All the laws which prescribe a mandatory death sentence and the provisions of sections 98, and 102 of the Trial on Indictments Act and any other similar laws are not in conformity with articles 22(1), 24, 28 and 44(a) of the constitution. The Uganda Law Reform Commission and the Legislature should deal with them in accordance with article 273 of the Constitution.

 

REMEDIES(a)     

(i)     

(iii)    The hanging method prescribed for carrying the death penalty out is lawful.

(b)     

(i)     

(ii)     Delay in executing a death sentence contravenes and is inconsistent with articles 24 and 44(a) of the Constitution.

(i)     

(ii)     The various laws of Uganda which prescribe for amandatory death sentence(iii)    Delay in carrying out a death sentence for three or more years from the date the case was disposed of in the Supreme Court turns an otherwise lawful death sentence unconstitutional for being in contravention of articles 24 and 44(a) of the Constitution.

 

REDRESS

Under article 137(3) and (4) of the Constitution, this court has the discretion to grant any redress that it considers appropriate in the circumstances of each case. See: The Supreme Court judgment in theAttorney General vs. Paul K. Ssemogerere and Zachary Olum,Constitutional Appeal No.3 of 2004. In the exercise of this discretion, the court must keep in mind the provisions of article 126(1) of the Constitution which enjoins this court to exercise judicial power

“in the name of the people and in conformity with law and with the values, norms and aspiration of the people.”

(i)     

Unlike in the cases ofCatholic Commission for Justice and Peace, the Makawayane, Platt and Morgan(iv)     The usurpation of the judicial discretion of sentencing by the Executive and Legislative Organs of State, in the innocent but mistaken belief that the people demanded it. Yet the people through the Constitution clearly subjected the exercise of judicial power only to the extent which article 126 of the Constitution stipulates.

(1)     

For all petitioners whose cases have been disposed of by the Supreme Court at the date of this judgment,redressis postponed for a period of two years from the same date to enable the President to exercise his Prerogative of Mercy under article 121 of the constitution. The petitioners will be at liberty at the expiry of thetwo years(2)      For the petitioners whose cases have not yet reached or been disposed of by the Supreme court, at the date of this judgment, the petitioners shall not be subjected to a mandatory death sentence and shall be entitled to be heard on the question of sentence before the death sentence or any other appropriate sentence is pronounced on them. This means that at whatever stage in the appellate courts the cases are, the petitioners shall be entitled to be heard in mitigation of sentence and the appellate courts will exercise their discretion to confirm both conviction and sentence. Thereafter, the exercise of the prerogation of mercy under article 121 should be completed within THREE years from the date the conviction and sentence are confirmed by the Supreme Court. It will be unconstitutional to execute them after that period.

(k)     

CONCLUSION

 

In that regard, I hold the view that section 47(6) of the Prisons Act (cap 304 Laws of Uganda), should be brought into conformity with the Constitution. It states:-

“For the purpose of calculating remission of a sentence, imprisonment for life shall be deemed to be twenty years imprisonment.”

To my understanding, this provision has the effect of fettering the discretion of courts to pass a sentence of imprisonment which is greater than 20 years! Suppose, during sentencing, the court does not use the term“life imprisonment”and for example simply imposes a sentence of 50 years, does this provision confer the discretion on the Prisons authorities to deem 20 years imprisonment as the maximum sentence imposed? Is this not another attempt by the legislature to pre-determined sentences without hearing the parties in order to determine an appropriate sentence? If a“life imprisonment”Finally, this judgment does not advocate for the abolition of a death sentence at all. That was not an issue in this petition. The only issue was whether it is constitutional or not. The answer is, YES, it is allowed by the Constitution. However, in all cases, it should ONLY be imposed after due compliance with article 22(1) of the Constitution. After the court has heard from the prosecution and the accused what they wish to say on the issue ofconviction andsentence and both conviction and sentence have been confirmed by the highestcourt in the land, there is no reason why the sentence should not be executed unless it is commuted by the Presidentwithin three years after the confirmation by the Supreme Court.

 

I would dismiss issues No.1 and 2 and 4 of this petition. I would allow the petition on issues No.3 and 5. Issue No.6 is partially successful as indicated. I would make no orders as to costs.

JUSTICE OF APPEAL

 

 

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

         HON MR. JUSTICE S. B.K KAVUMA, JA

CONSTITUTIONAL PETITION NO 6 OF 2003

BETWEEN

SUSAN KIGULA & 416 OTHERS::::::::::::::::::::::::::PETITIONERS

AND

 

THE ATTORNEY GENERAL:::::::::::::::::::::::::::::::RESPONDENTJUDGEMENT OF A.E. N. MPAGI-BAHIGEINE, JA.

 

 

 

Learned State Attorneys, Mr Mike Chibita, Mr Ben Wamember and Mr Sam Serwanga appeared for the respondent Attorney General.

 

 

(a)     

(b)     

(c)     

(d)     

That sections 23(1), 23 (2), 23(3) 23(4), 124, 129(1), 134(5), 189, 286(2), 319(2) and 243(1) of the Penal Code Act (Chapter 120 of the Laws of Uganda) and sections 71(1) (a), 7(1) (b), 8,9 (1) and 9 (2) of the Anti Terrorism Act (Act No, 14 of 2002) are inconsistent with Articles 21, 28 and 44(c) of the Constitution in so far as in practice, the police and criminal justice system, can lead to the conviction and execution of innocent persons and they do not provide equal protection of the law to disadvantaged people in our society.

(e)     

(i)     

(ii)    

Section 132 of the Trial on Indictments Act, Cap.23 to the extent that it restricts the right of a person convicted of any offence under sections 23 (1), 23(2), 189, 286 (2), 319 (2) of the Penal Code Act (Chapter 120 of the Laws of Uganda) and section 7 (1) (a) of the Anti Terrorism Act (Act No. 14 of 2002) to appeal to a higher court to vary the mandatory sentence imposed is inconsistent with Articles 20, 21, 22 (1), 24, 28, 44 (a), 44 (c) and 45 of the Constitution.

The following orders of redress were sought:

i)      

ii)     

iii)    

iv)     

That the petitioners be granted such other relief as the Court may feel appropriate.

 

A number of affidavits sworn by some of the petitioners were filed in support of the petition, regarding the cruelty and dehumanising nature of the death penalty.

 

The respondent denied all the allegations in the petition. The answer was supported by the affidavits of one Deborah Kobusingye, a relative (sister) to one of the victims of a violent crime (murder) regarding the trauma the relatives of the victims suffer and that of Angella Kiryabwire Kanyima, Principal State Attorney and former Commissioner on the Constitutional Review Commission, to the effect that the majority of Ugandans still favour retention of the death penalty.

 

The gist of the answer to the petition is that the death penalty is still relevant to Uganda’s circumstances, considering Uganda’s peculiar violent history. The fact that other countries including some European jurisdictions have abolished it is no ground for Uganda declaring it unconstitutional.

(1)     

(2)     

(3)     

(4)     

(5)     

(6)     

Whether the petitioners are entitled to the remedies prayed for.

 

 

 

The court must promote the spirit, purpose and objects of the constitution. The language of the provisions construed must not be strained by the Judge so as to accord with her/his own subjective moral values, otherwise the spirit of the constitution will be lost. All provisions bearing upon a particular subject are to be considered together and construed as a whole. This is the rule of harmonisation.

 

 

He argued that article 24 prohibits any form of torture, cruel, inhuman or degrading treatment of punishment while article 44 (a) forbids any derogation from the enjoyment of the freedom from torture, cruel, inhuman or degrading treatment or punishment. He submitted that reading these two articles together leads to the conclusion that the death penalty cannot be legally imposed because it is a cruel, inhuman and degrading sentence.

 

Mr Katende asserted that the various laws prescribing the death penalty for instance, the Penal Code Act (Chapter 120 of the Laws of Uganda), the Anti-Terrorism Act (Act No.14 of 2002), The Trial on Indictments Act (Chapter 23 of the Laws of Uganda, The Prisons Act (Chapter 304 of the Laws of Uganda) all contravenearticle 24 by prescribing inter alia a cruel punishment. He prayed that they should be struck down, and citedRepublic v Mbushuu (1994) 2 LRC 335;State v Mukwanyane (1995) IRRC 269; Attorney General v Salvatori Abuki (2001) ILRC 63 andKyamanywa Simon v Uganda, Constitutional Reference No. 10 of 2000He submitted that the words inarticle 24 should be read disjunctively because it is not necessary for a punishment to be simultaneously a torture, as well as a cruel and degrading sentence in order to offendarticle 24. Once a punishment offends any one of those conditions then it qualifies to be unconstitutional. He pointed out that although the death penalty is envisaged byarticle 22 (1), it is prohibited byarticles 24, 44 (a) and those prohibitions underarticles 24 and44 (a) are absolute. He concluded that the death penalty is cruel per se.

He pointed out that since the 26 affidavits of the petitioners were not challenged by the respondents, the court should believe them and hold that the death penalty is cruel, inhuman and a degrading punishment which contravenes article 24. It is not saved by article 22 (1). He argued that there is a clear conflict between articles 22 and 24 which has troubled many jurisdictions for instance Tanzania in Mbushuu’s case (supra) where the court of Appeal held that though the death penalty was inherently cruel and degrading, it was authorised by the Constitution and thus did not strike the death penalty down. Similarly other jurisdictions with provisions like article 22 did the same and refused to strike it down. He asserted that in our case article 44 is a new and unique provision; it is not found in other constitutions. It has an overriding effect over other provisions. There is a duty to observe it, therefore, as it applies to everybody. This article preserves the right to human dignity as unqualified. Therefore the death penalty cannot be allowed to stand in view of article 44 notwithstanding its apparent authorisation by article 22.

 

Referring to article 126 (1) Mr Katende pointed out that though judicial power should be exercised in conformity with the law and with the values, norms and aspirations of the people, the court is not to base itself on public opinion. Articles 126 (1) and 24 are all subject to the overriding effect of article 44 (a). He distinguished Mbushuu’s case in that there was no equivalent of article 44 (a), that is why the offending law was not struck down. Referring toKalu v The State (Nigeria) 1998 13 NWLR 531Mr. Katende prayed court to harmonize article 44 which outlaws the inhuman, cruel and the degrading death penalty with article 22 (1) which envisages death penalty as a lawful penalty and hold that article 44 clearly overrides all other provisions. It is the only article in the Constitution which starts with the word “notwithstanding . . . .” Therefore all laws prescribing the death penalty should be declared unconstitutional, and be struck down.

 

 

 

 

The respondent’s reply to issues 1 and 2

Mr Benjamin Wamembe, learned State Attorney responding to issues 1 and 2 stated that the proper approach relating to fundamental rights should be dynamic and liberal taking into account people’s social norms. He submitted that when these norms are applied toarticle 24, the death penalty does not constitute a degrading punishment. He argued that the words inarticle 24 should not be taken in their natural meaning but should be considered within the context ofarticle 24.Article 24 comes after article 22 which validates the death penalty andarticle 23 which lists cases when a person can be deprived of personal liberty. He pointed out that article 24 was debated and passed afterarticles 22 and23. Therefore the framers never intended that the court would take away what had been debated inarticles 22 and23. He referred to the rule of constitutional interpretation that to take away a right given by the constitution the legislature should do so in the clearest of terms. If the Constituent Assembly had intended to take away the right it recognized underarticle 22 (1) byarticle 24, it would have done this by clear terms and not by implication as learned counsel for the petitioners had suggested. Mr Wamembe submitted that the combined effect ofarticles 22, 23and 24 was intended to redress our bad history characterised by extra judicial killings and wanton detentions as the Preamble to the Constitution illustrates. He pointed out thatarticle 24He prayed court to considerarticle 126 (1) when interpretingarticle 24Regarding Issue No.2, Mr Wamembe acknowledged that it had been partly answered under Issue No.1 and pointed out thatarticle 22 (1) clearly validates all laws of Uganda prescribing the death penalty on conviction, whether such laws were enacted before or after the 1995 Constitution. Parliament is given power underarticle 79 to make laws including defining offences and imposing penalties. Parliament prescribes the death penalties under its mandate. The framers of the 1995 Constitution did not intendarticles 24 and44to apply to what was already authorised byarticle 22. He submitted that the death penalty is not a torture, a cruel or degrading punishment underarticles 24, 44He pointed out thatarticle 44 is relevant in relation to derogation of the specific human rights mentioned therein. The right to life is the most fundamental of all human rights and that all other rights mentioned inarticle 44 can only be enjoyed by a living person. Article 22 (1) is a derogation from the right to life but it is not listed as a non derogable right underarticle 44. Therefore the framers of the 1995 Constitution did not view a derogation from a right to life as cruel, inhuman or degrading punishment, otherwise they would have mentioned it underarticle 44. The death penalty is a derogation of the right to life but the right to life was not listed as non derogable becausearticle 22 (1) satisfied all essential requirements for a law derogating from basic rights. It provides adequate safeguards against arbitrary decisions and also provides effective controls against abuse by those in authority when using the law. It also satisfies the principle of proportionality in the sense that the limitation imposed on fundamental right to life is no more than reasonably necessary to achieve the legitimate object of the various laws of Uganda prescribing the death penalty as a sentence for the targeted members of society.Article 22 (1He further pointed out that the various laws prescribing the death penalty are underarticles 22 (1), 273, 43 and28. These laws are not arbitrary because the penalty is required to be imposed by a competent court after due process of law i.e. after a full trial in which the burden of proof is on the prosecution to prove the case beyond reasonable doubt with an automatic right of appeal to the highest appellate court, the Supreme Court. There are various defences recognized under our laws to mitigate the seriousness of the offences e.g. insanity, intoxication, provocation, self-defence, automatism, etc. which ensure that each case is decided on its peculiar facts and circumstances. This ensures that crimes committed on the spur of the moment are excluded and only the premeditated, deliberately planned ones requiring mensrea are punished. Free legal counsel is accessible underarticle 28 (3) (e) at the cost of the state, for any offence carrying the sentence of death or imprisonment for life. Underarticle 121, there is a provision for seeking a pardon from the President who can substitute a less severe punishment or remit the death penalty.Articles 28 and Parts7 and8 of the Trial On Indictments Act (Chapter 23) sets out elaborate provisions on proceedings at the trial, guaranteeing fair hearing and the right of appeal.

 

 

Mr Wamembe asserted that the death penalty therefore passes the proportionality test because it is in the public interest. It was debated and passed by over 200 Constituent Assembly delegates representing the entire population of Uganda as reflected in the Preamble. It is saved by Article 22. It is not unconstitutional. Issue No. 2 should also be answered in the negative.My findings on Issue 1 and 2.The relevant articles state:

 

 

 

 

“22. (1) No. person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.”

 

 

“24. No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.”

“44. Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms--(a)     

freedom from torture, cruel, inhuman or degrading treatment or punishment;(b)     

freedom from slavery or servitude;(c)     

the right to fair hearing;(d)     

the right to an order of habeas corpus.”

 

Chapter 4 of the Constitution which enshrines the fundamental and other human rights including the right to life commences witharticle 20 which commands that these rights are inherent in the human being and must be respected by everyone and all agencies without exception. However, be that as it may, the court is on the other hand faced with the duty to punish a criminal for his forbidden acts while bearing in mind society’s reasonable expectation of the court to administer justice and award an appropriate deterrent punishment commensurate or proportionate to the gravity of the offence and in line with the public abhorrence for the heinous crimes like those committed by the petitioners. The upshot of the foregoing is that the right to life is the basis for the enjoyment of all other human rights. However, the right to life is qualified underarticle 22 (1)I draw support fromKalu v State (1998) 13 NWR 531 where section 30 (1) of the Nigerian Constitution is similar toarticle 22 (1) of the Uganda 1995 Constitution, and where it was held that although section 30 (1) guarantees and protects the right to life it also permits deprivation of life pursuant to the execution of the sentence of a court of law in a criminal offence. Therefore where a Constitution makes a qualified provision in respect of the right to life, as is case with section 30 (1), the death penalty is permissible and valid. Where however, the constitutional right to life is unqualified, the death penalty is unconstitutional.-State v Makwanyare & Another (1995) ILRC 269As rightly pointed out by Mr Wamembe,article 24 which prescribes respect for human dignity and protection from inhuman treatment comes after article 22 making it only logical that inhuman and degrading treatment referred to inarticle 24I agree that the framers of the 1995 Constitution having so deliberately wordedarticle 22 could not have in the same vein intendedarticles 24 and44 to apply toarticle 22 without saying so expressly. It is trite that a right given by the legislature can only be taken away expressly by the same legislature. Thus where a Constitution makes a qualified provision in respect of the right to life as in the case witharticle 22The cases cited by Mr Katende in support of the petition can be commented on as followsMbushuu and Another v Republic (1995) 1 LRC 216,InState v Makwanyane and Another (1995) 1 LRC 269,InAttorney General v Salvatore Abuki and Another. The court was discussing the effect of a 10 year banishment order after a prison sentence under the Witchcraft Act. The context under whicharticle 44was being discussed was therefore different. Similarly inKyamanywa Simon v Uganda, Constitutional Reference No.10 of 2000, the court was discussing corporal punishment which it held to be a torture, cruel and degrading treatment withinarticle 44 (a).I, therefore, do agree with the learned State Attorney that as regards this petition the relevance ofarticle 44 should be confined to the freedoms and rights stipulated therein. I will be discussing the safeguards for the derogation underarticle 22(1)when analysing Issue No.3. It is however, clear that the death penalty as a derogation from the right to life was deliberately left out ofarticle 44However, be that as it may, the duty of this court is to interpret the constitution. It is not empowered to rewrite it or change its meaning. It is further important to note that the death penalty is still envisaged by International Instruments with similar safeguards as under article 22.The International Covenant on Civil and Political Rights,article 6 (1) and(2) provides:

 

“ . . . . any one sentenced to death shall have the right to seek pardon or commutation of the sentence.”

The UN General Assembly Resolution 2857 (XXVI) of 20th December 1971 called for restriction of the number of offences for which capital punishment may be imposed. To date it has not called for its total abolition. However,Resolution No 1984/50 of 25th May 1994 adopted similar safeguards guaranteeing the protection of the rights of those facing the death penalty.The European Union Convention for the Protection of Human Rights and Fundamental Freedoms,article2 provides inter, alia, that“everyone has a right to life and that life can only be taken away in execution of a sentence of a court.”These International Instruments thus recognize the right of states to derogate from the right to life but only to the extent strictly required by the exigencies of the situation and provided such derogation is not inconsistent with the respective constitutions and international law. Therefore, Uganda is not isolated or alone in retaining the death penalty. It can thus be stated with certainty that the abolition of the death penalty is not a mark or indication of civilasation as remarked by Mr. Katende. In Uganda’s case it is retained as a result of historical circumstances as the Preamble to the constitution proclaims:

         “Recalling our history which has been characterised by political and constitutional instability….”I would thus answer Issue No. 1 and 2 in the negative.

 

 

I now turn to Issue No.3, whether the various laws that prescribe mandatory sentences of death upon conviction are inconsistent with or are in contravention ofarticles 21, 22, 24, 44 or any other provisions of the Constitution.

 

 

This issue was argued in the alternative depending on the outcome of Issues 1 and 2, in case the court found that the death penalty was not cruel or is saved by Constitution.

Arguing this ground, Professor Sempebwa submitted that if the death penalty was not recognized byarticle 22 then the various criminal statutes prescribing mandatory death penalty contravene various provisions of the Constitution. These include the Penal Code Act imposing mandatory death sentences for the following offences: under Section 189 for murder, Section 286 (2) for aggravated robbery and Section 23 (1) for treason. He pointed out that the Trial on Indictments Act, Section 99 (Chapter 23) removes the discretion from court in the case of murder where it is not permitted to inquire into mitigating factors before sentence.

He submitted that the above provisions of law contravenearticles 22 (1), 28,44 (c) and126 conferring judicial power to courts of law.Article 22 requires a fair trial and the sentence should be subjected to a fair trial to be confirmed by the highest appellate court. In his view this means that the petitioners should be accorded a chance to present to court mitigating circumstances and the facts relating to the offence as it was committed, to show court that the death penalty is not the correct sentence. Furthermore, a fair trial implies a right of appeal against sentence but this is not so with a mandatory death penalty as other convicts do in other cases under Section 98 (1) of the Trial on Indictments Act. He submitted that this is prejudicial to the petitioners. He citedMithu v State of Punjab 1983 SOL Case No.026 where the death penalty was challenged as violatingarticle 21He submitted that confirmation of sentence does not mean “rubber stamping,” rather it means that the petitioners should be entitled to be heard by the appellate court on sentence. Confirmation implies a discretion. He prayed court to strike down the mandatory aspect of sentencing which the petitioners are challenging. This right to fair hearing is doubly entrenched byarticle 44 (c)Referring toarticle 126, he argued that prescribing a sentence is a legislative function in a statute while imposing or applying that process is judicial power. In his view a statute imposing a mandatory death penalty is an intrusion in the exercise of judicial power underarticle 126 and under the principle of separation of judicial power. It is for the court to decide what sentence, under their discretionary power, to impose after weighing all circumstances of the commission of the offence. All cases carrying the same penalty are not of similar gravity. There should be a discretion. He relied onMithu v Punjab State (1983) SOL Case No.026 (supra).

He submitted that a mandatory death penalty does not allow for consideration of personal circumstances of the offender and the offence. This is thus cruel, inhuman and degrading. It violatesarticle 22 (1)prescribing a fair trial with no chance of having the sentence confirmed.

It also violatesarticle 28 as to the right to a fair hearing which is doubly entrenched byarticle 44 (c)For the respondent, Learned State Attorney, Benjamin Wamembe submitted that the mandatory death penalty is just like any other mandatory sentence under the laws of Uganda. Being mandatory does not make the death penalty unconstitutional. He pointed out that since the death penalty is allowed underarticle 22 (1) then the various laws of Uganda prescribing mandatory death penalty upon conviction are not inconsistent witharticle 21 of the Constitution. He referred toarticle 21 (4)providing that nothing inarticle 21 shall prevent Parliament from enacting laws that are necessary for (b) making such provisions that are required or authorised to be made under this Constitution or (c) providing for any matter acceptable and demonstrably justified in a free and democratic society. He submitted that a mandatory death penalty is a provision authorised to be made underarticle 22 (1) and thus the various laws prescribing mandatory death penalty upon conviction are not inconsistent with or in contravention ofarticle 21In the alternative and without prejudice to their submissions, he submitted that the mandatory death penalty is justifiable and demonstrably necessary in Uganda within the context ofarticle 21 (4) (c) andarticle 43 because the majority of Ugandans approve of the death penalty and in their view it is a just penalty for the most heinous of crime leading to loss of life and they also accept it as a way of demonstrating their disapproval of serious crimes. He asserted thatarticle 43 allows Parliament to derogate from various human rights and freedoms enshrined in the Constitution to protect lives of Ugandans. This duty is also imposed byarticle 12 of the Universal Declaration of Human Rights. Providing a mandatory death penalty falls squarely withinarticle 21 (1), (2)and(3).In prescribing a mandatory death penalty, the legislature ensures that they do not give different treatment to different persons convicted of the same offence as provided inarticle 21 (1) (2) and(3). Our criminal justice system does not prescribe degrees in murder and other offences as is the case in other jurisdictions, nor do those jurisdictions have the equivalent ofarticles 21 and126.

Article 79 vests Parliament with exclusive powers to make laws for the good governance of Uganda. Underarticle 28 (12) Parliament under its legislative mandate prescribes and defines offences and penalties. This is not the function of the judiciary. Under the same legislative power, Parliament does not prohibit imposition of the mandatory death penalty. Thus the various laws prescribing mandatory death penalty are not unconstitutional. Courts have absolute unqualified discretion to decide whether a case has been proved beyond reasonable doubt or not, taking into account all available defences even if they are not raised by the accused. Courts have power to acquit or discharge an accused, or to convict him or her for a minor cognate offence where facts proved reduce the offence or can even convict of an attempt. Courts have power to call upon the accused pleading guilty to say why the sentence should be passed on them according to law under Sections 87, 88, 94 of the Trial on Indictments Act (chapter 23). This is all as a result of fair hearing by which courts are able to determine that the evidence adduced by prosecution is not sufficient to prove the charges beyond reasonable doubt. The implication ofarticle 22 (1) is that the conviction and sentence must have been confirmed. This means that the conviction and sentence are open to automatic appeal to have it reviewed by the appellate court. Both the conviction and sentence are not separable otherwise framers of the Constitution should have used appropriate words like `or’ used inarticles 24, 25 (1), 44 etc.Article 22 (1) uses the word “and”. This article is supported by Section 11 Judicature Act (chapter 13) which provides that for purposes of an appeal, the appellate court has all the powers, authority and jurisdiction vested in the court of original jurisdiction. It re-evaluates the evidence afresh and draws own findings and conclusions. Appellate courts are thus not rubber stamps as alleged by the petitioners. Therefore the mandatory death penalty does not deprive the court of its discretion. Thus the various laws prescribing mandatory death penalty are not inconsistent witharticle 21, 22, 24, 28 and44 or any other laws.

 

He submitted that all the American cases cited by the petitioners were inapplicable in that they hold the death penalty under all circumstances to be cruel, inhuman and degrading punishment under the 8th Amendment, whereas in Uganda it is saved by the constitution. He prayed court to answer Issue No.3 in the negative.My findings on issue No. 3.On this issue, I do respectfully differ from the findings of the majority.

 

 

It is clear that our criminal justice system provides sufficient safeguards against any arbitrariness and abuse of authority for the proper application of the death penalty as follows. Under the impugned statutes that prescribe the death panlty these capital offences are triable and heard by the High Court. These are offences of exceptional gravity, involving a complexity of issues that render them unsuitable for summary trial. Underarticle 139 of the constitution the High Court is vested with unlimited original jurisdiction in all matters including exclusive jurisdiction over capital offences. Most importantly the accused is presumed innocent underarticle 28 (3) (a) of the constitution at the commencement of the hearing and it is incumbent upon the prosecution to prove him guilty beyond any reasonable doubt. The accused is availed access to legal counsel either of his own or if he cannot afford, he is entitled to legal representation at the expense of the State. During the trial, the Trial on Indictments Act, sections 3 and 67, makes provision for two assessors to assist the Judge. These are judges of facts and not of law. If more than one is absent the trial has to start afresh otherwise it is a nullity –Mohamed and Another v R (1973) EA 197.Even though the assessors opinion is not binding on the Judge, nonetheless he must give reasons for rejecting it.Washington S/O Odindo v R (1954) 21 EACA 393. The assessors’ role or knowledge regarding customs, and habits of people is significant, in determining the accused’s guilty. Their opinion is likened to the opinion evidence of a person especially skilled in foreign law, science or Art. They strengthen the Administration of Justice. The right of appeal to the Court of Appeal and the Supreme Court is automatic, so that the verdict can be tested to the minutest detail. Should the conviction be upheld, the convict can petition the Advisory Committee on the Presidental Prerogative of mercy underarticle 121 (1)Once Parliament is mandated by the Constitution to define and prescribe a penalty underarticle 28 (12)It is thus clear from the above safeguards that where a person is charged and found guilty of a capital offence, the death penalty is only imposed where the circumstances of the offence do warrant it, after exhaustive scrutiny. The court balances the mitigating circumstances by considering all available defenses available to the accused, e.g., insanity, intoxication, depending on the evidence and draws up a just balance between the aggravating and mitigating circumstances which might for instance reduce murder to manslaughter or aggravated robbery to simple robbery or sustain the original capital charge. His right to a fair hearing within the meaning of article 28 is thus complied with.

 

 

 

This therefore supports the contention and reflects the fact that the death penalty is qualitatively different from a sentence of imprisonment and must be and is subject to certain procedural requirements right from arraignment to conviction and sentence. It is thus not correct or logical to state that mitigating factors which are part of the penal system are availed only for non capital offences. Judicial discretion is thus exercised in a rational and non-arbitrary manner, throughout from arraignment to the last appellate court.

 

 

I do consider that the petitioners’ arguments would be applicable where Parliament prescribed or classified types or degrees of capital offences and set the sentencing policy accordingly. For the moment the law prescribes the same penalty for similar offences. There is therefore no discrimaination.

 

 

InSurja Ran v State of Rajanshan, A.I.R 1997 SC 18, it was held:

 

“Such murders and attempt to commit murders in a cool and calculated manner without provocation cannot but shock the conscience of society which must abhor such heinous crimes committed on hapless innocent persons. Punishment must also respondent to society’s cry for justice against the criminal. When considering the punishment to be given to the accused,the court should be alive not only to the right of the criminal to be awarded a just and fair punishment by administering justice tempered with such mercy as the criminal may justly deserve but also the rights of the victims of the crime to have the assailant appropriately punished and society’s reasonable expectation from the court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with public abhorrence for the heinous crime committed by the accused.” (emphasis added).

I respectfully adopt the above reasoning. A mandatory and otherwise lawful and proportionate sentence is not rendered unlawful merely due to lack of mitigation. The primary object of the death penalty is that it should deter and there is nothing unusual in such a penalty being mandatory. Ong Ah Chuan v Public Prosecutor (1981) AC 648.

I would thus conclude that the laws that prescribe mandatory sentences of death upon conviction are not inconsistent nor do they contravenearticles 21, 22, 24, 44 or any other provisions of the Constitution.

Issue No.3 would be answered in the negative too.

 

Issue No.4, was as to whether section 99 (1) of the Trial on Indictment Act, which prescribes hanging as the legal method of implementing the death penalty is inconsistent with and is in contravention ofarticles 24, 44 and any other provision of the Constitution. Mr Sim Katende addressing the court pointed out that the manner of hanging as a mode of carrying out the death penalty which was an agreed fact, is unconstitutional and thus null and void. He argued that it is exceedingly inhuman, cruel, degrading and torturous and thus in contravention ofarticles 24and 44 (a)He cited many cases where the death penalty had been adjudged to be cruel, and inhuman and asserted that it affects everybody connected with the process. I mean no disrespect by not reproducing them. They are not strictly relevant to my findings. He outlined the effects of the very act of hanging on the body/person of the convict prior to the actual passing away, and lamented the fact that the convict suffers an extreme death prior to his death. The method of hanging therefore violatesarticles 24, 44 (a)In reply Mr Wamembe pointed out that the Constitution having saved the death penalty underarticle 22 (1)Section 99 provides:

 

“(1)      Sentence of death shall be carried out by hanging in accordance with the provision of the Prisons Act.

(2)      When any person is sentenced to death, the sentence shall direct that he or she shall suffer death in the manner authorised by law.”

 

        

 

As regards issue No.5, whether execution of the petitioners who have been on death row for a long period of time is inconsistent with and in contravention ofarticles 24, 44 or any other provision of the Constitution, Professor Sempebwa submitted that though the petitioners are not seeking expeditious disposal, the intervening delay between sentencing and hanging turns a lawful penalty into one of a cruel and inhuman penalty. The other aspects to this matter are the conditions in prison, the anguish and the expectation of death any time which are cruel and amount to a torture. These conditions are agonizing, he said. Referring to Catholic Commission for Justice and Peace v Zimbabwe (1993) LRC 279In reply Mr Wamembe pointed out that there was no law to limit the time within which execution is to take place. It would therefore be unconstitutional for the court to impose a time limit. The framers would have prescribed it if they had so wished.

 

I would therefore dismiss the petition in toto with each party bearing its own costs, and I would so order.

Dated at Kampala this……10th …..day of……June………….2005.

 

 

A.E.N. Mpagi BahigieneJustice of Appeal.

 

 

 

 

JUDGMENT OF STEVEN B.K. KAVUMA, JA.Dated at Kampala this ……10th …..day of ……June……2005.

 

JUSTICE OF APPEAL.

JUDGEMENT OF BYAMUGISHA, JAThis petition was filed by 417 petitioners under the provisions ofarticle137(3) of the Constitution challenging the constitutionality of the death penalty/sentences that were imposed on each one of them under our criminal justice system. At the time of filing the petition on the 3rd1.       That sections23(1), 23(2), 23(3), 23(4), 124, 129(1), 134(5), 189,186(2), 319(2) and241(1) of the Penal Code Act and sections7(1)(a),7(1)(b), 8,9(1) and9(2) of the Anti- Terrorism Act to the extent that they permit the imposition of death sentences upon persons on conviction are inconsistent withArticles 20,21,22(1),24,28,44(a),44(c)and452.       Thatsection 99(1) of the Trial on Indictments Act and the relevant sections of and the provisions made under the Prisons Act are inconsistent withArticles 24and 44(a)3.       That the actual process, mode and manner of implementation of a sentence of death, from the time of conviction until the actual carrying out the sentence, in accordance withsection 99(1) of the Trial on Indictments Act are inconsistent withArticles 20,21,22(1),24,28,44(a)and454.       That sections23(1),23(2),23(3),23(4), 124, 129(1),134(5),189, 286(2),319(2) and243(1) of the Penal Code Act andsections 7(1)(a), 7(1)(b),8, 9(1) and 9(2) of the Anti Terrorism Act are inconsistent withArticles 21,28and44(c)i)       sections23(1), 23(2) 189,286(2), 319(2) of the Penal Code Act and section 7(1)(a) of the Anti Terrorism Act to the extent that they prescribe the imposition of mandatory death sentences upon persons on conviction are inconsistent withArticles 20,21,22(1) 24,28,44(c )and45ii)      section 132 of the Trial on Indictments Act to the extent that it restricts the right of a person convicted of an offence undersections 23(2) 189, 286(2) 319(2) of the Penal Code Act andsection 7(1)(a) of the Anti Terrorism Act to appeal to a higher court to vary the mandatory sentences imposed is inconsistent withArticles 20,21,22(1),24,28,44(a) 44(c)and451.       Whether the death penalty prescribed by the various laws of Uganda constitutes inhuman or degrading treatment or punishment contrary to article 24 of the Constitution?2.       Whether the various laws of Uganda that prescribe the death penalty upon conviction are inconsistent with or contravention of Articles 24 and 44 or any other provisions of the Constitution?3.       Whether the various laws of Uganda that prescribe mandatory sentences of death upon conviction are inconsistent with or in contravention of articles 21,22,24,44 or any other provisions of the Constitution?4.       Whether section 99(1) of the Trial on Indictments Act which prescribes hanging as the legal method of implementing the death penalty is inconsistent with and in contravention of articles 24,44 and any other provisions of the Constitution?5.       Whether the execution of petitioners who have been on death row for a long period of time is inconsistent with and in contravention of articles 24 44 or any other provision of the Constitution?6.       Whether the petitioners are entitled to the remedies prayed for?The third principle relevant to constitutional interpretation is that purpose and effect are relevant in the determination of the constitutional validity of any legislation. He referred to a passage in the judgment of Oder in the case ofAttorney- General V Salvatori Abuki &Another [2001]1LRC 63.In this appeal, the Supreme Court was considering the constitutionality of section 7 of the Witchcraft Act. The learned judge relied on a Canadian case ofRv Big M Drug Mart Ltd [1986]LRC (Const)332."The principle is that in determining the constitutionality of legislation,its purpose and effect must be taken into consideration. Both purpose and effect are relevant in determining constitutionality if either an unconstitutional purpose or unconstitutional effect is animated by an object the legislation intends to achieve. This object is realised through the impact produced by the operation and application of the legislation. Purpose and effect respectively in the sense of the legislation's object and ultimate impact, are clearly linked if not indivisble. Intended and actual effects have been looked to for guidance in assessing the legislation's object and thus validity".(i)      Tinyefuza v Attorney General, Constitutional Petition No.1/97.(ii)     Attorney General vTinyefuza, Constitutional Petition Appeal No.1/97.(iii)    Ssemogerere &Another v Attorney General, Constitutional Petition No. 3/2000.On the first issue, counsel argued submitted that it is seeking to establish whether or not the death penalty is a cruel, inhuman or degrading form of punishment contrary toArticle 24"No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment".Learned counsel submitted that the phrase in the article have been judicially considered in a number of authorities within and outside Uganda. The cited the following authorities namelyMbushu &Another v The Republic [1995] 1LRC 216; State v Mwakanyane [1995] 1 LRC 269 andAttorney- General vAbukiandKyamanya vUganda Constitutional Reference No. 10/2000.On the death penalty as a form of punishment, counsel contended that many jurisdictions have held that the penalty is inherently a cruel, degrading and inhuman form of punishment. In doing so, the courts did not rely on any evidence adduced. This approach was adopted in Tanzania and the Republic of South Africa in theMbushu(supra) and Mwakanyane(supra) cases respectively. Counsel argued that the standards set out in the above cases were followed by the Supreme Court of Uganda in theAbukiIn responding to the above submissions Mr Wambembe, began by restating the rules of constitutional interpretation as they were recently summarised by Twinomujuni JA inConstitutional Petition No.3/2000- Paul Ssemogerere &Another vAttorney-Generalwho relied on the decision of the Supreme Court in the case ofAttorney-General v Tinyefuza(supra) andSmith Dakota v North Carolina,192 US 268(1940).He pointed out that the proper approach to the interpretation of the fundamental rights and freedoms provisions is one that is dynamic, progressive, liberal and flexible, keeping in mind the views of the people and their socio-economic political and cultural values. He also stated that no article of the Constitution should be treated in isolation but must be read together. On the first issue, he submitted thatArticle 24(supra) was never intended by the framers of the Constitution, to apply to the death penalty. The reason for saying so was because the article was debated and passed afterArticles 22and 23. The former article validates the death penalty while the latter provided for instances where a person can be deprived of personal liberty and what happens when that is done. He claimed that the combined effect of the above articles was intended to redress the bad history of our Country that was characterised by extra judicial killings, unlawful detentions and torture of detained persons. He claimed that the article was intended to apply to torture, cruel, inhuman or degrading treatment or punishment outside the judicial process, like the heinous crimes committed by the petitioners. He argued that it is hypocritical for the petitioners to argue that every human being has a right to life and shall not be subjected to torture, cruel inhuman and degrading treatment or punishment, when they totally ignored those very rights to their victims. The learned State Attorney commented on the cases cited by Mr Katende such asAbuki(supra) which dealt with the banishment under the Witchcraft Act and was not concerned with the death penalty. OnMwakanyane(supra) he stated that it was not applicable to Uganda because under the Constitution of South Africa, the right to life was absolute whereas here it is qualified underArticle 22(1).The learned State Attorney cited to us the case ofKalu v the State (1998) 13 NILUL R54 a decision from Nigeria. The case was interpreting section 31(1) of the Nigerian Constitution which is similar to our articles 22(1) and 24. Another case that he cited wasBacan Singh v State of Punjab(1983)(2) SCRWhat we are being asked to do in the first issue is to interpret articles of the Constitution against each other. The rule of harmonisation would, therefore, be applicable. The provision ofArticle 24"No person shall be derived of life intentionally except in execution of a sentence passed in fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court".What the article states is to guarantee the right to life except where its deprivation is done under a sentence of death passed by a court of competent jurisdiction for an offence under the laws of Uganda. The above article clearly shows that the right to life is not absolute. There are instances in which the due process of law will deny a person his or her right to life or its protection. International instruments and conventions still recognise the death penalty after due process of law. Such instruments include but are not limited to theEuropean Human Rights Convention, International Covenant on Civil and Political Rights 1966, the African Charterand American Convention on Human Rights.I wish to comment briefly on the authorities cited to us by Mr Katende and which he urged us to follow. The case ofMbushuThe caseMwakanyaneThe case ofAbuki(In the matter before us, a number of affidavits sworn in support of the petition describe in graft details the experience and effect a death sentence has on the person who is convicted. I have no doubt in my mind that a death sentence is a horrid form of punishment. The question that has to be answered is whether the death penalty is a cruel inhuman and degrading form of punishment within the meaning of article 24(supra)?Article 22(1)"No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court".This article guarantees the right to life except where the deprivation is done under an execution of a death sentence passed in a trial conducted in accordance with the provisions ofArticle 28of the Constitution by a competent court. This article sets out the tenets of a fair trial although the words "fair trial" is not defined under the Constitution. To that extent I agree with the submissions of the learned State Attorney that the right to life is not absolute and it can be taken away after due process. I have also found the decision inKalucase persuasive despite the criticisms levelled against it by Mr Katende. It was interpreting articles similar to our articles 22(1) and 24. The framers of the Constitution were aware of the provisions of articles 24 and later 44 when they enactedarticle 22.(c ) section 286(2)- aggravated robberySection 7(1)(a)(a)      Articles 22(1) 28and44(c)(b)      Article 22(1)(c)      Article 21(1)(d)      Articles 24and44(a)On confirmation of sentence by the highest appellate court underarticle 22(1)learned counsel argued that in order for a sentence to be lawful, it had to be confirmed and in order for confirmation to take place, the highest appellate court must exercise discretion whether to confirm such a sentence. He contended that the highest appellate court has no discretion as far as the mandatory death penalty is concerned and all that it does is to rubber stamp a sentence that is pre-determined by the legislature. He cited two decisions for that proposition namelySpencer v The Queenand Hughes v The Queenthat were cited with approval inRayes v The Queen (2002) 2 AC 235.Another argument advanced by Professor Sempebwa is that the imposition of sentences pre-determined by the legislature infringes on the doctrine of separation of powers. He contended that the role of the legislature was to prescribe sentences and to leave the judiciary to determine the appropriate sentences within the parameters set by the legislature. He relied on the case ofMathu v State of Punjab(1983)SOL Case No.026In reply, Mr Wamambe, stated that the criminal justice system in Uganda has elaborate procedures that ensure a fair trial as envisaged underArticle 28.He pointed out that in cases which attract a death sentence, an accused person is accorded a fair trial in accordance with the provisions of theTrial on Indictments Act."Nothing shall be taken to be inconsistent with this article which is allowed to be done under the provisions of this Constitution".On the legislative powers of Parliament, he submitted thatArticle 79In order to determine whether a mandatory death sentence offends the various articles of the Constitution, regard must be had to the provisions ofarticle 28(3)Every person who is charged with a criminal offence shall:-(a)      be presumed to be innocent until proved guilty or untilthat person has pleaded guilty;(b)      be informed immediately, in a language that person understands of the nature of the offence;(c)      be given adequate time and facilities for the preparation of his or her defence;(d)      be permitted to appear before the court in person or, at that person's expense, by a lawyer of his or her choice;(e)      in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State;(f)      be afforded, without payment by that person, the assistance of an interpreter if that person cannot understand the language used at the trial;(g)      be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before court.(4)Nothing done under the authority of any law shall be held to be inconsistent with:-(a)      paragraph(a) of clause(3) of this article, to the extent that the law in question imposes upon any person charged with a criminal offence, the burden of proving particular facts.(b)      Paragraph(g) of clause 3 of this article, to the extent that the law imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused are to be paid their expenses out of public funds.(12) Except for contempt of court, no person shall be convicted of a criminal offence, unless the offence is defined and the penalty for it prescribed by law".The provisions of this article are silent about the sentencing process. Therefore during the sentencing process, the courts are guided by the relevant legislation as to the sentence to be imposed and the mitigating factors.Section 98of theTrial on Indictments Act"The court, before passing any sentence other than a sentence of death, may make such inquiries as it thinks fit in order to inform itself as to the proper sentence to be passed, and may inquire into the character and antecendents of the accused person either at the request of the prosecution or the accused person and may take into consideration in assessing the proper sentence to be passed such character and antecedents including any other offences committed by the accused person ……"The issue to be resolved is whether a mandatory death sentence that is imposed by the legislature offends the doctrine of the separation and whether it offends the tenets of a fair trial. It necessary at this stage to consider authorities from other jurisdictions that judicially considered this matter. Professor Sempebwa cited theMithu"It is a travesty of justice not only to sentence a person to death, but to tell him that he shall not be heard why he should not be sentenced to death.""If the court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question of sentence and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels court to impose that sentence."Another case relevant to the issue at hand is the recent decision of the Privy Council inReyes (supra). The case was filed to test the constitutionality of section 102 of the Belize Criminal Code that imposed a mandatory death sentence on conviction for murder. The relevant provisions of the Belize Constitution is worded inpari materiawith Uganda's Constitution-Articles 20,22,24 and28"The mandatory death penalty as applied, robs those against whom sentence is passed of any opportunity to have the court consider mitigating circumstances even as an irrevocable punishment is meted out to them. The dignity of human life is reduced by a law that compels a court to impose death by hanging indiscriminately upon all convicted of murder, granting to none an opportunity to have individual circumstances of his case considered by the court that is to pronounce the sentence. It has always been considered a vital precept of just penal laws that the punishment should fit the crime. If the death penalty is appropriate for the worst cases of homicide, then it must surely be excessive punishment for the offender convicted of murder whose case is far removed from the worst case."In a crime of this kind, there may well be matters relating to both the offence and the offender which ought properly to be considered before sentence is passed. To deny the offender the opportunity, before sentence is passed to seek to persuade the court that in all circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human should be treated and thus deny his basic humanity, the core of the right which section 7 exists to protect."Section 7 of the Belize constitution ispari materiaTurning to the issue now before us, I think it is clear from the authorities that were cited by counsel for the petitioners that a mandatory death sentence deprives both the person and the court an opportunity of considering mitigating factors. On the accused's part he or she denied a chance to persuade the trial court as to the sentence to be imposed. The court is also denied an opportunity to consider any factors in favour of the accused before passing any sentence. One of the factors that the court is required to take into consideration before passing sentence underarticle 23(8)Matters are compounded by the provisions ofsection 132(1)(b)of theTrial on Indictments Act(b)an accused person may, with leave of the Court of Appeal, appeal to the Court of Appeal against the sentence alone imposed by the High Court, other than a sentence fixed by law".The superimposition of the mandatory death penalty on the courts is old fashioned and backward in this age. Needless to say is the fact that offences like treason that attract the mandatory death sentence were a result of the ancient belief that the King is next to God and therefore to plan his death would be equivalent to wanting ones creator dead. This belief in my view has lost root in society and as such the mandatory death sentence is not tenable in modern society. There is of course another aspect to the mandatory death sentence. The Constitution reiterates inarticle 128(1)that courts " in the exercise of judicial power shall be independent and shall not be subject to the control or direction of any person or authority".The fourth issue concerned hanging. This issue was presented in the alternative. The law governing the mode of carrying out the death sentence issection 99of theTrial on Indictments Act."(1) Sentence of death shall be carried out by hanging in accordance with the provisions of the Prisons Act".(1)      Abuki((2)      Republic vMbushu&Another (1994) 2LRC 335(3)      Mbushu&Another((4)      State v Mwakanyane(5)      Campbell vWood (18 F. 3rd 662 US 9th Circuit Court of Appeals.Mr Katende submitted that the law which prescribes the mode of carrying out the death penalty by hanging was inconsistent witharticles 24and44(a)Commenting onAbuki'scase, counsel stated that it is distinguishable from the matter before us because the Supreme Court was not considering the death penalty or the provisions of the Trial on Indictments Act. On the case ofMbushu(supra), he stated that it is irrelevant because the constitution of Tanzania does not contain the equivalent of ourArticle 126(1).On the case ofMwakanyane(Mr Chibita dismissed the affidavits of the petitioners because they are not objective since they cannot praise the rope that is waiting for them. He also dismissed the affidavits of the two doctors. On Dr Hillman, counsel pointed out that the contents of his affidavit show that he has become a professional deponent with a mission, a crusader against the death penalty. On the affidavit of Dr Hunt, he argued that that the deponent's knowledge was based on the British experience of the 19thI have already found that the death penalty is constitutional. Therefore, it goes without saying that the mode of carrying it out cannot be said to be unconstitutional. Moreover the complaint being raised by the petitioners is based on the fact that they are opposed to the death sentence and as such any method of carrying out the said sentence would be considered cruel, degrading and inhuman. The Constitution having legalised the death penalty, it cannot be said that section 99(1) of theT.I.A contravenesArticles 24and44(a)The 4thIssue No.5 concerned delay in carrying out the death sentence and whether the delay contravenesarticle 24Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General &Others [1993] 2 LRC 279Pratt and Morgan v Attorney-General Jamaica [1994] AC 36.Sher Singh&othersv The state of Punjab (1985) 2 S.C.R.582andMbushu(Earl Pratt and MorganMr Wamambe also submitted that the authorities that were cited by counsel for the petitioners were inapplicable in the instant petition because no death warrants have been signed for the execution of any of the petitioners. Both the cases ofPrat&Morgan andCatholic Commission For Justice and PeaceIn the instant petition, the Constitution grants every accused person who is sentenced to death an automatic right of appeal. The sentence must be confirmed by the highest appellate court in the land. The appeal process might take a period of three years on average. After the appeal process is completed the condemned prisoner has a right to apply to the Committee on the Prerogative of Mercy which advises the President on the exercise of his powers under Article 121 of the Constitution.Section 102of theTrial on Indictments Act andSection 34of thePrisons ActAs for the remedies that were sought i.e setting aside the death sentences imposed on the petitioners and remitting the case to the High Court to investigate and determine appropriate sentence underarticle 137(4)Dated at Kampala this…10th ..day of…June…2005.

 

C.K.ByamugishaJustice of the Constitutional Court.