New Vision (Kampala)

21 January 2009

Uganda: Supreme Court Retains Death Penalty

Kampala — The Supreme Court has refused to outlaw the death penalty. However, the court said once the death sentence is confirmed, the condemned person should either be executed within three years or his sentence commuted to life.

The court ruled that the death sentence was not inconsistent with the Constitution of Uganda.

It confirmed the 2005 Constitutional Court ruling that the death sentence should not be mandatory but discretionary.

The coram comprised of Chief Justice Benjamin Odoki and justices J.W. Tsekooko, Joseph Mulenga, George Kanyeihamba, Bart Katureebe, Christine Kitumba and Egonda Ntende.

Citing one of the capital offences, the judges ruled that not all murders are committed in the same circumstances and that not all murderers are of the same character.

"One may be a first offender, and the murder may have been committed in circumstances that the accused person deeply regrets and is very remorseful. We see no reason why these factors should not be put before the court before it passes the ultimate sentence," they ruled.

"We, therefore, agree with the Constitutional Court that those laws on the Statute book in Uganda which provide for a mandatory death sentence are inconsistent with the Constitution and, therefore, are void to the extent of that inconsistency," it ruled.

The State appealed to the Supreme Court in 2006 following the Constitutional Court ruling that made the death sentence not mandatory and the delay in execution beyond three years unlawful.

The ruling came after 418 prisoners on death row, led by Susan Kigula, petitioned against the death sentence as unconstitutional. Kigula, who was sentenced to death for murdering her husband, was in the courtroom when the ruling was being passed. As soon as the court upheld the death penalty, Kigula started sobbing.

Chris Rwakasisi, who was released from death row on the presidential prerogative of mercy only the day before, was also in the courtroom.

On the delay in the execution of the death sentence, the court ruled that the sentence should not be carried out in a hurry. The judges said the condemned person should be allowed time to exhaust the appeal processes and the executive pardon.

In the meantime, the condemned should not be held in demeaning conditions.

They said the condemned person should not be indefinitely kept on death row. "This in effect makes them serve a long period of imprisonment to which they were not sentenced in the first place. Evidence was given of persons who have spent as long as 18 years on death row without decisions by the Executive as to their fate," the judges noted.

"As soon as the highest court has confirmed sentence, the Advisory Committee on the Prerogative of Mercy and the Prisons authorities should commence to process the applications so that the President is advised without unreasonable delay.

"At the end of a period of three years after the highest appellate court confirmed the sentence, and if the President shall not have exercised his prerogative one way or the other, the death sentence shall be deemed commuted to life imprisonment without remission," the judges stated.

The court also ruled that the petitioners who hinged their appeal on the death sentence being mandatory and had cases awaiting ruling in an appeal court, their cases should be sent to the High Court to be heard only on mitigation of sentence.

By a majority of six to one, the court also ruled that no sufficient evidence was brought to show that being hanged caused more pain and suffering to the person being executed than any other manner of execution.

The dissenting judge, Egonda Ntende, said there was evidence that death does not occur instantly when a person is hanged.

He said the person's wrists and ankles are tied before execution, which restrains him from reacting to pain, distress or suffocation.

"The person hanged often sweats, drools, the eyes bulge and he urinates and defecates," the judge explained before stressing that the exercise was, therefore, dehumanising and should stop.

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