Court name
Supreme Court of Uganda
Judgment date
21 January 2009

Attorney General v Susan Kigula & 417 Ors (Constitutional Appeal-2006/3) [2009] UGSC 6 (21 January 2009);

Cite this case
[2009] UGSC 6

THE REPUBLIC OF UGANDA

 

IN THE SUPREME COURT OF UGANDA

AT MENGO

 

CONSTITUTIONAL APPEAL NO. 03 OF 2006

 

(CORAM:      ODOKI, C.J, TSEKOOKO, MULENGA, KANYEIHAMBA,

KATUREEBE, , JJ.SC; KITUMBA,  EGONDA NTENDE AG. JJ.SC).

BETWEEN

 

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::      APPELLANT

 

AND

 

SUSAN KIGULA & 417 OTHERS:::::::::::::::::::::::::::::::::::      RESPONDENT.

 

(Appeal, and cross-appeal from decision of the Constitutional Court at Kampala

(Okello,Twinomujuni, Mpagi-Behigeine, Byamugisha, Kavuma, JJA) in Constitutional Petition, No. 6 of 2003, dated 10th June 2005 .

 

JUDGMENT OF THE COURT.

The Respondents/Cross Appellants, (the respondents) filed  their Petition in the Constitutional Court under Article 237(3) of the Constitution challenging the Constitutionality of the death penalty under the Constitution of Uganda.

 

The Respondents were all persons who at different times had been convicted of diverse capital offences under the Penal Code Act and had been sentenced to death as provided for under the laws of Uganda.  They contended that the imposition on them of the death sentence was inconsistent with Articles 24 and 44 of the Constitution.  To the Respondents the various provisions of the laws of Uganda which prescribe the death sentence are inconsistent with Articles 24 and 44.  The Respondents also further petitioned in the alternative as follows:

First, that the various provisions of the laws of Uganda which provide for a mandatory death sentence are unconstitutional because they are inconsistent with Articles 20, 21, 22, 24, 28 and 44(a) of the Constitution.  They contended that the provisions contravene the Constitution because they deny the convicted person the right to appeal against sentence, thereby  denying them the right of equality before the law and the right to fair hearing as provided for in the Constitution.

 

Second, that the long delay between the pronouncement by Court of the death sentence and the actual execution, allows for the death row syndrome to set in.  Therefore the carrying out of the death sentence after such a long delay constitutes cruel, inhuman and degrading treatment contrary to Articles 24 and 44(a) of the Constitution.

 

Third, that section 99(1) of the Trial on Indictments Act which provides for hanging as the legal mode of carrying out the death sentence, is cruel, inhuman and degrading contrary to Articles 24 and 44 of the Constitution.

 

 

Accordingly they sought various reliefs, orders and declarations.

The Attorney General (the Appellant) opposed the Petition in its entirety, contending that the death penalty was provided for in the Constitution of Uganda and its imposition, whether as a mandatory sentence or as a maximum sentence was Constitutional.  Both parties filed affidavits in support of their respective cases.

 

The Constitutional Court heard the petition and decided as follows:-

 

1.                 The imposition of the death penalty does not constitute cruel, inhuman or degrading punishment in terms of articles 24 and 44 of the Constitution, and therefore the various provisions of the laws of Uganda prescribing the death sentence are not  inconsistent with or in contravention of Articles 24, and 44 or any provisions of the Constitution

.

2.                 The various provisions of the laws of Uganda which prescribe a mandatory death sentence are inconsistent with Articles 21, 22(1), 24, 28, 44(a) and 44(c) of the Constitution and, therefore, are unconstitutional.

 

3.                 Implementing the carrying out of the death sentence by hanging is constitutional as it operationalizes Article 22(1) of the Constitution.  Therefore Section 99(1) of the Trial on Indictments Act is not unconstitutional or inconsistent with Articles 24 and 44(a) of the Constitution

.

4.                 A delay beyond three years after a death sentence has been confirmed by the highest appellate court is an inordinate delay.  Therefore for those condemned prisoners who have been on death row for three years and above after their sentences had been confirmed by the highest appellate court, it would be unconstitutional to carry out the death sentence as it would be inconsistent with Articles 24 and 44(a) of the Constitution.

 

Consequently, the court made the following orders:

 

1.                 For those Petitioners whose appeal process is completed and their sentence of death has been  confirmed by the Supreme 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)  therefore, in respect of those whose sentence of death will be confirmed, the discretion under Article 121 should be exercised within three years.

 

The Attorney General was not wholly satisfied by the above decision and orders, hence this appeal.  The Respondents were also dissatisfied with parts of the decision of the Constitutional Court, hence the cross-appeal.

 

In this Court the Attorney General filed, 8 grounds of appeal as follows:-

1.                 The Learned Justices of the Constitutional Court erred in law in holding that the various provisions of the law that prescribe mandatory death sentences are inconsistent with article 21, 22(1), 24, 28, 44(a) and 44(c) of the Constitution.

 

2.                 The Learned Justices of the Constitutional Court erred in law in holding that Section 132 of the Trial on Indictments Act (Cap 23) is inconsistent with article 21, 22(1), 24, 28, 44(a) and 44(c) of the Constitution.

 

3.                 The Learned Justices of the Constitutional Court erred in law and fact in holding that 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.

 

4.                 The Learned Justices of the Constitutional Court erred in law and in fact in holding that a delay in carrying out a death sentence beyond 3 years after the highest court has confirmed the death sentence is inordinate.

 

5.                 The Learned Justices of the Constitutional Court erred in law and in fact in ordering that the petitioners whose death sentence has been confirmed by the Supreme Court shall have their redress put on halt for two years to enable the Executive to exercise its  discretion under Article 121 of the Constitution.

 

6.                 The Learned Justices of the Constitutional Court . erred in law and in fact in ordering that for the petitioners whose appeals are still pending before an appellate court they shall be heard in mitigation on sentence.

 

7.                 The Learned Justices of the Constitution Court erred in law in ordering that the appellate courts shall exercise discretion whether or not to confirm the death sentence.

 

8.                 The Learned Justices of the Constitutional Court erred in law and in fact in ordering that where the death sentence has been confirmed the discretion under Article 121 of the Constitution should be exercised within three years.

 

The appellant seeks orders to allow the appeal, overrule the Judgment of the Constitutional Court and costs of the appeal. 

 

On the other hand, the respondents cross-appealed on the following grounds:-

 

1. “That the Learned Justices of the Constitutional Court erred in law when they held that Articles 24, and 44(a) of the Constitution of the Republic of Uganda 1995 as amended (hereafter referred to as “The Constitution”) which prohibit any forms of torture, cruel, inhuman and degrading treatment or punishment were not meant to apply to Article 22(i) of the Constitution.

 

2. “That the Learned Judges of the Constitutional Court erred in law  when they held that the death penalty was not inconsistent with Articles 20, 21, 22(1), 24, 28, 44(a) and 45 of the Constitution”.

 

3.  “That in the Alternative but without prejudice to the above, that the Learned Justices of the Constitutional Court erred in law when they found as a question of fact and law that hanging was a cruel, inhuman and degrading treatment or punishment but held that it was a permissible form of punishment because the death penalty was permitted by the Constitution.

 

The respondents seek orders and declarations as follows:-

1.       Declarations to the  effect that:-

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

 

(b)     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;

 

(c)   Section 25(1), 25(2), 25(3), 25(4), 118, 123(1), 129(5), 184, 273(2), 301 B(2) and 235(1) of the Penal Code Act (Cap. 120) 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;

 

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

 

(e)      the method of carrying out a death sentence by hanging is cruel, inhuman and degrading and inconsistent with the provisions of Article 20, 21, 22(1), 24, 44(a), and 45 of the Constitution.

Orders:

(a)  that the death sentences imposed on the respondents be set aside;

 

(b) that the orders of the Constitutional Court granting the cross-appellants’ Petition be affirmed and those refusing the cross-appellants’ Petition be set aside and substituted with orders prayed for in the Petition in the Constitutional Court.

 

(c)  That the court exercise its jurisdiction to grant such other orders, redress or relief to the respondents / cross appellants, as are appropriate in the circumstances of the case and in the interests of justice;

 

(d) That the respondents / cross appellants be granted costs of the cross-appeal.

Both parties filed what they termed “summary submissions” but also made oral submissions in support of their respective cases.

 

The appellant was represented by Angela Kiryabwire Kanyima, Ag. Commissioner  for Civil Litigation, assisted by Margaret Nabakooza, Senior State Attorney and Rashid  Kibuuka, State Attorney.  The respondents were represented by John Katende together with Prof. Frederick Sempebwa, Soozi Katende, and Sim Katende.

 

The appellant’s counsel argued grounds 1, 2, 6 and 7 together, and then grounds 3, 4, 5 and 8 also together.  On the other hand, counsel for the respondents argued that ground 1of the cross appeal should be argued first as it was the main issue of contention, the others being argued in the alternative.  In their view, if the court upholds this ground it would be unnecessary to adjudicate on the other grounds.  They therefore argued that ground alone, and argued the others also separately.

 

We agree with counsel for the respondents that the first ground of the cross appeal is the main issue in this case, and that logically it should be argued first.  The alternative issues can then be considered after the disposal of that ground.

 

The first issue for determination arising out of the cross-appeal is whether the death penalty is inconsistent with Articles 20, 21, 22(i), 24, 28, 44(a) and 45 of the Constitution.

 

The Constitutional Court found that the death penalty was not inconsistent with the above provisions of the Constitution and that Articles 24 and 44 of the Constitution did not apply to article 22(1) of the Constitution.  The respondents disagree.

 

Counsel for the respondents argued that the death penalty by itself is a cruel, inhuman and degrading punishment and therefore violates Article 24 of the Constitution.  Counsel relies on the decision of this court in SALVATORE ABUKI – Vs- ATTORNEY GENERAL (2001) 1 LRC 63 in interpreting what amounts to “cruel, inhuman and degrading punishment” Counsel argued that if the case of banishment were found to be such punishment,  then death penalty which is much severer must also be judged cruel, inhuman and degrading.  Counsel also relies on the Tanzania Case of