SUSAN KIGULA & 416 OTHERS::::::::::::::::::::::::::PETITIONERS
THE ATTORNEY GENERAL:::::::::::::::::::::::::::::::RESPONDENT (The Legality of the Death Penalty)
JUDGMENT OF G.M. OKELLO, JA.
This petition was brought under article 137(3) of the Constitution of the Republic of Uganda challenging the Constitutional validity of the death sentence. The 417 petitioners were, at the time of filing the petition, on death row, having been convicted of offences under the laws of Uganda and were sentenced to death, the sentence provided for under the laws of Uganda.
Briefly, the petitioners contend that the imposition of the death sentence on them was unconstitutional because it is inconsistent with articles 24 and 44 of the Constitution which prohibit cruel, inhuman or degrading punishment or treatment. According to them, the various provisions of the laws of Uganda which prescribe death penalty are themselves inconsistent with the said articles 24 and 44 of the Constitution. The petitioners contend in the first alternative that the various provisions of the laws of Uganda which provide for mandatory death sentence are inconsistent with articles 20, 21, 22, 24, 28 and 44 of the Constitution. According to them, though the Constitution guarantees protection of the rights and freedoms such as, equal treatment before the law, right to a fair hearing etc, the provisions which provide for mandatory death sentence contravene those Constitutional provisions: a convict who is sentenced under such a mandatory provision is denied the right to appeal against sentence only.
In the second alternative, the petitioners contend that a long delay between the pronouncement of the death sentence and the carrying out of the sentence, allows for a death row syndrome to set in. Carrying out of the death sentence after such a long delay constitutes a cruel, inhuman and degrading treatment prohibited by articles 24 and 44 of the Constitution.
In the third alternative, the petitioners contend that section 99(1) of the Trial on Indictments Act (Cap 23 Laws of Uganda) which provides for hanging as the legal mode of carrying out death sentence, was cruel, inhuman and degrading as it contravenes articles 24 and 44 of the Constitution. They accordingly sought the following reliefs:-
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.
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;
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;
section 99(1) of the Trial on Indictments Act (Cap 23) and the relevant sections of and provisions made under the Prisons Act and referred to therein, are inconsistent with articles 24 and 44(a) of the Constitution;
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;
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;
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;
that Section 132 of the Trial on Indictments Act to the extent that it restricts the right of appeal against the sentencing component where mandatory death sentences are imposed is inconsistent with articles 20, 21, 22(1), 24, 28, 44(a), 44(c) and 45 of the Constitution
that your humble petitioners’ cases be remitted to the High Court to investigate and determine appropriate sentences under article 137(4) of the Constitution;
that your humble petitioners be granted such other reliefs as the court may feel appropriate.
The petition was supported by a number of affidavits sworn by some of the petitioners and a diverse categories of other deponents.
The respondent filed in his answers in which he denied all the allegations contained in the petition. He also supported his answers by some affidavits.
After the pleadings were concluded, counsel for both parties held a scheduling conference before the Registrar of this court on 5/5/2004. At the conference, the parties agreed on some facts and the issues to be determined by this court. Some of the facts they agreed on were:-
that death penalty is a cruel form of punishment or treatment.
that the petitioners who are convicted of offences which carry mandatory death sentences did not have a right to appeal against their sentences.
However, on 11/11/2004 counsel for the respondent in writing notified his learned friends for the petitioners that he intended to renege on the above agreed facts. When we met counsel for both parties in Chambers in the morning of 19/01/2005 before we entered court to start the hearing of this petition, learned counsel for the respondent reiterated their decision to renege on those facts. In their submission, they in fact treated the above two facts as being in issue and needed to be proved by the petitioners.
In their reply, counsel for the petitioners strongly opposed that conduct and urged court not to allow counsel for the respondent to renege on the facts which they had agreed on during the scheduling conference. That would be prejudicial to the petitioners’ case and would set a very dangerous precedent to the lower courts.
Scheduling conference is not provided for in the Modifications To The Fundamental Rights and Freedoms (Enforcement Procedure) Rules 1992Directions, 1996. (Legal Notice No 4 of 1996). It is invoked in the proceedings before this court by virtue of the rule 13 of Legal Notice No 4 of 1996. This rule empowers this court to apply with the necessary modifications, the practice and procedure in accordance with the Civil Procedure Act and the Rules made under the Act relating to the trial of a suit in the High Court. Scheduling Conference is provided for in Order XB of the Civil Procedure Rules as amended by Statutory Instrument No 26 of 1998. The purpose of Scheduling Conference is to save time of the court by sorting out points of agreement and disagreement so as to expedite disposal of cases. Like any other rules of procedures, this is an handmaid of justice. It is not intended to be an obstacle in the path of justice.
Counsel for the respondent informed us from the bar that when they admitted those facts during the Scheduling Conference, they had not yet fully studied the case and the relevant authorities. They did not, therefore, appreciate the implications of their admission. When they later studied the case and the relevant authorities more fully, they decided to renege on their admission. That was why they wrote the letter to counsel for the petitioners indicating their intention to renege on their admission.
Article 126(2)(e) of the Constitution of this country enjoins courts to administer substantive justice without undue regard to technicalities. I think that counsel for the respondent gave to counsel for the petitioners reasonable notice of their intention to renege on their admission. This is the spirit of fair play. That notice gave counsel for the petitioners ample time to assemble the necessary evidence to prove the facts whose admission the respondent wanted to renege on. I am satisfied in the circumstances of this case, that the change of mind by counsel for the respondent on the admission of the facts did not occasion a miscarriage of justice to the petitioners. On the contrary, to insist that the respondent sticks to the admission, would be contrary to the spirit of article 126(2) (e) above.
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;
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;
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;
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;
whether your petitioners are entitled to the remedies prayed for.”
The task which this court is faced with in this petition is, therefore, to interpret the relevant provisions of the Constitution to answer the questions posed above. It is, I think, appropriate at this stage, to point out briefly, the principles of constitutional interpretation that will guide me in the task at hand.
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)
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.)
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.)
A Constitution and in particular that part of it which protects and entrenches Fundamental Rights and Freedoms are to be given a generous and purposive interpretation to realise the full benefit of the right guaranteed.
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 and with the values, norms and aspirations of the people (emphasis added.)
It is not surprising that article 126(1) of the Constitution of this country enjoins courts to have regards to the values, norms and aspirations of the people when exercising judicial powers. The reason can be discerned from the preamble of the Constitution. The preamble laments the history of this country that was characterised by political and Constitutional instability. Through their Constitution, the people resolved to break from their past in order to build a better future based on the principles of unity, peace, equality, democracy, freedom, social justice and progress. With the above principles in mind, I shall now proceed to consider the above issues.
Issues Nos 1 and 2
I shall consider these two issues together for convenience. The gist of the petitioners’ case in these issues is that death penalty is inconsistent with articles 24 and 44(a) of the Constitution. They contend that these two articles read together, show that death penalty can not be imposed on any person under the Constitution of this country because it is cruel, inhuman and or degrading. The laws which prescribe death penalty are therefore, they submitted, unconstitutional and should be struck down for being inconsistent with those two articles.
Mr. 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 JSC in 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 of Mbushu and Anor vs Republic (1995) 1LRC, 216 and in the South African case of State vs Makwanyane (1995) 1LRC 269, the respective courts have held that death penalty is inherently cruel without any evidence.
In the instant case, however, learned counsel submitted, that the petitioners have adduced affidavits evidence for example, that of Anthony Okwonga (affidavit No 2 Vol 1), Ben Ogwang (affidavit no 3 Vol 1) etc to show that death penalty is inherently a very cruel, inhuman and degrading punishment.
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 in Simon Kyamanywa vs Uganda, Constitutional Reference No 10 of 2000 that Corporal punishment was a cruel, inhuman and degrading punishment. He argued that since banishment and Corporal punishment were found to be cruel, inhuman or degrading form of punishment or treatment, this court should find no difficulty finding that death penalty is a cruel, inhuman and degrading punishment.
Learned counsel contended that death penalty is not only cruel but it is also inhuman. He cited cases to show that deliberate putting to death of a human being, that human being ceases to be a human. His humanity is taken away.
That death penalty is degrading in that it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the State.
In 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 of Mbushu (supra), despite the fact that death penalty was found to be inherently cruel, inhuman and degrading, it was not declared unconstitutional. This was because it was saved by article 30(2) of their Constitution.
He 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 in Abuki’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 to Zachery Olum vs Attorney General (case No 7) where this court (Twinomujuni, JA) had held that the language of article 44(a) admits of no other construction. It prohibits any derogation from the enjoyment of the rights set out therein regardless of anything else in the Constitution.
Mr. John W. Katende pointed out that though article 126(1) enjoins courts to exercise judicial power in conformity with law and aspirations of the people, that article does not override article 44. Clear language of the Constitution must prevail over opinion of the people.
On resolving the apparent conflict between articles 22(1) and 24, Mr. Katende contended that the holding in the Nigerian case of Kalu vs State, should not be followed because its approach conflicts which the plain ordinary meaning approach adopted by our Supreme Court in Abuki’s case (supra.) He finally submitted that once it is held that death penalty is a cruel, inhuman and degrading punishment, contrary to article 24, then on the authorities of the Supreme Court and this Constitutional Court cited above, death penalty is outlawed by article 44 and should be declared unconstitutional. The provisions of the various legislations specified in paragraph 1(a) of the petition which prescribe death penalty should also be declared unconstitutional.
Mr. 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 in Abuki’s case (supra). According to him, both Abuki’s case and Kyamanywa Simon (supra) were distinguishable from the instant case. In Abuki 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. In Abuki and Kyamanywa, banishment and Corporal punishment respectively were not provided for in the Constitution. Death penalty on the other hand, is provided for in article 22(1), which came before article 24. It is his contention that the framers of the Constitution could not have intended articles 24 and 44 to apply to death penalty. There is a well known rule of interpretation that to take away a right given by a statute, the legislature must do so in clear terms devoid of any ambiguity. He submitted that if the framers of the Constitution had intended to take away, by article 24, the right recognised in article 22(1), they would have done so in clear terms and not by implication. Article 24 was enacted when article 22(1) was still fresh in the minds of the framers
He submitted that death penalty is neither a torture, nor a cruel, inhuman or degrading punishment or treatment within the context of articles 24 and 44. Articles 24 and 44 were intended to address the bad history of this country, which was characterized by torture and arbitrary extra judicial killings. Now under article 22(1), death penalty is limited to specific situation. It follows a conviction in a fair trial by a court of competent jurisdiction in respect of a crime in Uganda, where both the conviction and sentence have been confirmed by the highest appellate court in Uganda. This provision satisfies all the essential requirements for a law derogating from basic rights because it provides:-
adequate safeguard against arbitrary decision;
effective control against abuse by those in authority when using the law and
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 on Mbushu & 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 in Mbushu’s case (supra) where the Tanzanian Court of Appeal observed that it was necessary to influence public opinion to abolish death penalty.
He contended that the various provisions of the laws of Uganda, which prescribe death penalty are not inconsistent with articles 24 and 44(a) of the Constitution. They are Constitutional under articles 22(1), 28, 43 and 273 of the Constitution. He rejected the argument that article 44 was a super article. In his view, this article is only super in respect of the rights mentioned therein. The right to life is not included in that article. The reason is that the framers did not view the right to life as non derogable
He stated that the South African case of State 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 of Mbushu and Anor (supra) that death penalty is inherently cruel, inhuman and degrading punishment as not applicable to Uganda because the Tanzanian Constitution does not have the equivalent of our article 22(1).
According to him, the relevant authority is the Nigerian decision in Kalu 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 on Bacan Singh vs State of Punjab (1983) (2) SCR 583 where article 21 of the Indian Constitution which is similar to our article 22(1) was considered and the Supreme Court of India held that the right to life under the Indian Constitution was qualified. In those circumstances, the death penalty was constitutionally valid.
He invited us to hold that death penalty under Uganda Constitution does not constitute cruel, inhuman or degrading punishment within the context of article 24 and that the various laws of Uganda that prescribe the death penalty are not inconsistent with and do not contravene articles 24 and 44 or any other provisions of the constitution.
I must emphasise that from the submissions of counsel on both sides on these issues, the point for determination by this court is the constitutionality of death penalty in Uganda and the Constitutionality of the various provisions of the laws of Uganda which prescribe death penalty. Determination of these questions hinges on the interpretation to be given to article 24. To better appreciate the arguments in this regard, it is necessary to reproduce the text of articles 22(1), 24 and 44 of the Constitution because they relate to the same issue.
Article 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.