Joy Kafiko
10 November 2009
opinion
Kampala — The utility of the death penalty has, of recent, attracted a lot of debate, especially when the landmark constitutional court decision of the Attorney General vs Susan Kigula and others had just been passed early this year. The pro-death penalty group and the increasingly vibrant anti-death penalty group each put up strong arguments to support their sides.
Unfortunately, the decision never completely abolished the death penalty. However, the silver lining on that dark cloud is that the death penalty is no longer mandatory for capital offences.
This new development has, therefore, left the decision to impose the death penalty solely in the hands of the presiding judge. This implies that the judge has the powers to consider all the relevant circumstances surrounding a particular case and then decide on which sentence to pass.
It is on this premise that I make a plea for specific categories of persons who, basing on their physical and health status, need the sympathy of the law. The death penalty is the ultimate sentence and surely some groups deserve mercy despite their guilt. Any other sentence can do. The groups are; HIV-positive persons, the elderly, and persons with disabilities.
Even prior to the Kigula position, the law recognised the need to protect special categories of persons from the death penalty. Pregnant women could not be sentenced to death. Minors were also protected. This implies that my agitation is not unknown to the law. What is good for the goose must be good for the gander.
The most neglected of these groups is the HIV-positive convicts. They are sentenced to death regardless of their status, but is it not time for us to include these victims? The HIV/AIDS scourge has left the individual victims' lives devastated.
Uganda is one of the most hit countries in the world and so the likelihood of having HIV-positive convicts is high.This person is already, in a way, sentenced to death by the incurable disease and, therefore, it would only be humane to let such a person die a 'natural' death.
The question whether persons who intentionally infect others with HIV should be sentenced to death has also worked legal and non-legal brains alike.
However, despite the fact that there is clearly an intention to cause harm to an individual and perhaps even the intention to cause death, if such a person is convicted of murder, if the person has HIV/AIDS, that alone should be enough to grant him a lesser sentence than the death penalty.
If one looks beyond the malice that informed the offence, one can clearly see the frustration and the sense of hopelessness that an HIV-infected person suffers. The death sentence could influence such vengeful and malicious actions which affect the 'innocent' unfortunately.
My arguments should not erroneously be interpreted to mean that I condone capital crime. No. However, sometimes even capital offences are inadvertently committed and yet our criminal justice system is far from infallible. Also, even if the offence was actually committed, the disability and the special circumstances of the offender ought to mitigate the sentence. It is only one way through which society can recognise the vulnerability of these categories of minorities.
The death penalty is an evil that should be completely done away with, but since it is still lawful, then pro-active judges can use the provision for mitigation to save as many people as possible from the death penalty.
The writer works with the Foundation for Human Rights Initiative
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Is this primarily an argument against the law, now reported to be under consideration in Uganda, that would impose the death penalty for the crime of having gay sex while being HIV-positive?
As a Californian and a citizen of the U.S., I'm appalled to think that this is probably the consequence of our homicidally homophobic, de facto Ambassador, Reverend Rick Warren and his 40 days and 40 nights campaigns to make the whole world buy his stupid book, "The Purpose Driven Life." and practice abstinence only until heterosexual married monogamy for life.
l do not agree with your sentiments New Vision...if people with AIDS/HIV deserve the death sentence, l think they should get it. Consider people with cancer...why did you not include them there?? in fact, people with cancer would be more aggrieved because they did not choose to do anything to get the cancer unlike some bad choices by AIDS victims who got infected by someone else. I think HIV/AIDS patients should be treated like everyone else!!!