Friday, July 6, 2007



The right to life forms the bedrock of the concept of human rights, which is universally acclaimed as an inalienable and inherent right to all. However different legal regimes provide for and protect the right to life differently. In some jurisdictions such as South Africa the right to life is unqualified while in Uganda under our national constitution, its qualified. This means that the right to life under Uganda
' s legal regime is alienable (it can be taken away legally) if its in execution of a sentence passed in a fair trial by a court of competent jurisdiction.

As it has been pointed out previously in this column, our penal law imposes mandatory death sentences on what are refered to as capital offences, which include murder, treason and robbery with a deadly weapon. Those against the death penalty argue that the various laws of Uganda that prescribe mandatory sentences of death upon conviction are inconsistent with or in contravention of the constitution. The Constitutional Court in the case of Kigula earlier referred to in this column again comprehensively dealt with this contentious issue. It was argued before court that the mandatory death sentence treats a convict differently from that imposed under a non-mandatory section and that such treatment contravens of Article 21 of the constitution, which provides for equality before and under the law.

The other issue is whether the convict should exercise his right of appeal against the death sentence and not the conviction and that the appellate courts should have discretion to confirm or reverse the death penalty upon hearing mitigating factors. In this regard its argued that the convict is not given opportunity to show cause why the death sentence is not the appropriate sentence in their individual cases.

Then there is also the issue of separation of powers : the functions of the legislature and the judiciary. Those against the death penalty argue that the principle of separation of power allocates to the legislature the duty to define offences and prescribe possible sentences for each offence. For them the determination of the exact appropriate sentence and imposition is the duty of the judiciary under article 126(1) of constitution and therefore parliament should not have the power to impose mandatory sentences like the death penalty. Its argued that a statute which prescribes a mandatory sentence is an intrusion into the realm of the judiciary and as such violates the principle of separation of power.

It should be noted that the mandatory death sentence is acceptable and demonstrably justified in Uganda within the context of articles 21(4)( c) and 43 because the majority of Ugandans approve of it. The majority of Ugandans still view the death sentence as a fair penalty for heinous crimes. They accept it as a way of demonstrating their disapproval of such crimes.

However , in its pronoucement the Constitutional court held that the various provisions of the laws of Uganda which prescribe mandatory death sentence are unconstitutional. This means, that although it '> s the same court that upheld the death penalty as being constitutional, it as of the view that an accused person should be allowed an opportunity to plead mitigating factors for court to pass a fair sentence.

And this brings to another area of contention and that ' s the method to employed for carrying out the death sentence. Again in the Kigula case, the petitioners argued that death by hanging was cruely , inhuman and therefore unconstitutional . The petituioners also cited the case Ben Ogwang who has stayed on the death row for 20 years since his conviction and sentence.

They further argued that such convicts suffer from death row syndrome. That executions are carried out early morning and within the hearing of the other condemned inmates.A question is then posed : do condemned prisoners have any fundamental rights and freedoms left to be protected before they are executed. The Constitutional Court ruled in the affirmative.

Court held that prisoners did not lose all their constitutional rights upon conviction, only those rights inevitably removed from them by law either expressly or by implication. According to the court a prisoner who was sentenced to death still enjoyed the protection of Article 24 of the constitution and therefore cannot be subjected to cruel , inhuman or degrading treatment. The > ' death row syndrome ' the mental and physical state of the condemned prisoners who remain on the death row for a long periods, according to the court, amounts to cruel and inhuman treatment and thus unconstitutional.

Court stated that the spirit of our constitution is to the effect that whatever is to be done under it affecting the fundamental rights and freedoms must be done without unreasonable delay.Court observed that a delay beyond three years after a condemned prisoner> '> s sentence has been confirmed by the highest appellate court would tend towards inordinate (unreasonable delay.)

Following this land mark decision its clear that the death penalty is constitutional and the appropriate sentence for murderers. Again to avoid any issues of unfairness and reservability of the death penalty, the constitutional court has allowed courts to hear mitigating factors before passing the death sentence . This is a welcome development although this decision is yet to be tested in our courts. And those sentenced to death would not have any legal justification to protest the penalty. A convicted murderer should face death. The writer is a journalist and advocate.>>

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