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:-
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
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.
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
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:
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.
For the Petitioners whose appeals are still pending before an appellate court:-
shall be afforded a hearing in mitigation on sentence,
the court shall exercise its discretion whether or not to confirm the sentence,
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:-
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.
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.
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.
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.
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.
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.
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.
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.
that the death sentences imposed on the respondents be set aside;
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.
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;
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 63in 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 Repiblic–Vs-MBUSHU  2 LRC 335 where the death penalty was adjudged to be “cruel, inhuman and degrading.” He also relied on the South African case of STATE –Vs- MAKWANYANE  1 LRC 289 where the court considered provisions in the South African Constitution similar to article 24 of the Uganda Constitution and declared the death sentence to be cruel, inhuman and degrading and therefore unconstitutional in South Africa.
In arguing whether Articles 24 and 44 were meant to apply to article 21(1) of the Constitution, counsel argues that the freedom from cruel, inhuman and degrading punishment, as contained in Article 24, is absolute from which derogation is prohibited by Article 44(a). If the makers of the Constitution had intended that article 24 would not apply to article 22(1) they would have provided so expressly. Since Article 44(a) provides that “Notwithstanding anything in this constitution, there shall be no derogation from the enjoyment of the freedom from torture, and cruel, inhuman or degrading treatment or punishment,” it follows that any provision of the Constitution which provides for a punishment that is cruel, inhuman and degrading, like the death penalty, is inconsistent with Article 44(a) and would be unconstitutional. In counsel’s opinion, Article 22(1) was in conflict with Article 24 and the Court. Relying on PAUL SEMOGERERE–Vs- ATTORNEY GENERAL (Constitutional Appeal No. 1 of 2002)Courtcan proceed to interpret one article against the other to resolve the conflict. In counsel’s view, the conflict is resolved by Article 44(a). Counsel states in his written submission. “The purpose and wording of Article 44(a) was to resolve any anomaly in any part of the Constitution and it allows no exceptions or qualifications even those impliedly or expressly envisaged by Article 22(1). The death penalty is therefore not saved by Article 22(1).” Counsel urged this Court not to rely on case law from jurisdictions that did not have the equivalent of article 44(a) in their Constitutions. He particularly singled out the Nigerian case of KALU –Vs- THE STATE  13 NWL R54which had allowed the death sentence as Constitutional in Nigeria. Counsel contends that the Constitutional Court was wrong to follow that decision.
On the other hand, counsel for the appellant fully supported the decision of the Constitutional Court that articles 24 and 44 were not meant to apply to article 22(1) of the Constitution, and that the death penalty as provided for in article 22(1) was constitutional in Uganda.
In dealing with this matter we wish to start from what appears to be a common position, namely that the right to life is the most fundamental of all rights. The taking away of such a right is, therefore, a matter of great consequence deserving serious consideration by those who make constitutions as well as those who interpret those constitutions. One must also bear in mind that different Constitutions may provide for different things precisely because each Constitution is dealing with a philosophy and circumstances of a particular country. Nevertheless there are common standards of humanity that all constitutions set out to achieve. In discussing this matter we will make reference to international instruments on the subject.
The death penalty appears to have existed for as long as human beings have been on earth. Sometimes it was arbitrarily imposed and carried out in all sorts of manner as for example burning on the stake, crucifixion, beheading, shooting, etc. During World War II, the crimes committed by the Nazis in Germany whereby millions of people were put to death, clearly shocked the world. This was one of the reasons why the UNIVERSAL DELCARATION OF HUMAN RIGHTSwas adopted and proclaimed by the United Nations General Assembly on 10th December 1948. The preamble to that declaration provides in part;
“Whereas disregard and contemptfor human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.”…… Now, therefore, The General Assembly:
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for those rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselvesand among the peoples of territories under their jurisdiction.” (Emphasis added).
With the above background and objectives in mind, the Assembly proceeded to set out international standards to be achieved by all member states.
Article 3 states: “Everyone has the right to life, liberty and security of person.”
Article 5 states: “No one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment.”
It may be noted that the right to life is provided for separately, and the freedom from torture, cruel, inhuman or degrading punishment is also treated separately. It cannot be argued therefore that by these provisions, the Universal Declaration of Human Rights had thereby abolished the death penalty in the world. Indeed this could not have been so, for even as the Declaration was being proclaimed, death sentences passed by International Tribunals were being carried out against war criminals in Germany and Japan.
The next instrument is the International Covenant on Civil and Political Rights which was adopted and opened for signature, ratification and accession by the General Assembly on 16th December 1966, and came into force on 23rd March, 1976.
Article 6(1) thereof states:- “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” This article amplifies Article 2 of the Universal Declaration of Human Rights (supra) by adding on that the right to life must be protected by law and may not be arbitrarily taken away. In our view, the introduction of the word “arbitrarily” is significant because it recognizes that under certain acceptable circumstances a person may be lawfully deprived of his life. This is further acknowledged in Article 6(2) which states:-
“In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present covenant and to the convention on the Prevention and Punishment of the crime of Genocide. This penalty can only be carried out pursuant to a trial judgment rendered by a competent court.”
This provision recognised the reality that there were still countries that had not yet abolished capital punishment. It also seeks to set out safeguards that should be followed in the imposition of death sentences. Article 6(4) provides thus:-
“Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the death sentence may be granted in all cases.” These safeguards are not to be construed as intended to delay or prevent the abolition of capital punishment, but they have to be followed by those countries which, for one reason or other peculiar to their circumstances, have not yet abolished the death penalty.
It is also significant to note that having so comprehensively provided for the death penalty in Article 6, the convention proceeds to provide separate sections for torture, cruel, inhuman or degrading treatment or punishment. Thus Article 7 provides thus:-
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular no one shall be subjected without his free consent to medical or scientific experimentation.”
It is noteworthy that the above provisions of the Covenant are in pari materia with articles 22(1) and 24 of the Constitution of Uganda.
we do not see nor can we find any conflict between Articles 6 and 7 of this Covenant. This issue was considered by the Human Rights Committee of the United Nations in Ng –Vs- CANADA (COMMUNICATION NO. 469/1991, UNHRC) where the majority of the committee held that because the International Covenant contained provisions that permitted the imposition of capital punishment for the most serious crimes, but subject to certain qualifications, and notwithstanding the view of the committee that the execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the covenant, the extradition of a fugitive to a country which enforces the death sentence in accordance with the requirements of the International Covenant could not be regarded as a breach of the obligations of the extraditing country.
As Twinomujuni, JA, observed, in his judgment, executing a death sentence in Uganda may constitute a cruel punishment, but not in the context of Article 24 because the death penalty has been expressly provided for in Article 22(1). The International Covenant provides that nothing in its provisions should be construed as delaying or preventing the abolition of capital punishment. In Uganda, although the Constitution provides for the death sentence, there is nothing to stop Uganda as a member of the United Nations from introducing legislation to amend the Constitution and abolish the death sentence. Indeed, the Constitutional Review Commission showed by Odoki, JSC (as he then was, and referred to in this judgment (Annexture B) did recommend for a periodic review of the subject.
Internationally, the campaign and efforts to abolish the death penalty as such continue. On December 15 1989, the General Assembly adopted SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL ANDPOLITICAL RIGHTS, AIMING AT THE ABOLITION OF THE DEATH PENALTY. By this Protocol , each of the States Parties to it undertake to