Successful Capital Litigation in Uganda: A Counterintuitive Approach?

Chapter 14
Successful Capital Litigation in Uganda: A Counterintuitive Approach?

Graeme L. Hall


Over the past quarter of a century, the global fight against capital punishment has gained enormous ground. In the latest UN resolution, a record 109 countries voted in favour of progressively restricting the use of the death penalty while simultaneously calling for a moratorium with a view to securing total abolition.1 The number of countries voting against a moratorium on the death penalty has in turn fallen from 54 in 20072 to 41 in 2010. As Hood and Hoyle (2009) note, this ‘new era’ generally reflects a shift in the fight’s focus from the political and criminal justice arenas to one wrestling firmly with human rights considerations.

Ostensibly, at both the international and national levels, Uganda is a stalwart defender of capital punishment. Under Amnesty International’s criteria (AI, 2012, 58), Uganda remains a retentionist state, not a de facto abolitionist state, as Uganda has executed citizens within the last ten years,3 and remains steadfastly supportive of the death penalty. During 2011, at least five people were sentenced to death, although patchy reporting means the number is likely to be higher (AI, 2012, 7). Uganda has consistently voted against UN resolutions calling for a moratorium on the use of the death penalty, and Uganda continues to receive much international criticism over tabled legislation to introduce the death penalty for certain homosexual acts. It could therefore be assumed that the fight against capital punishment in Uganda is one which is not worth pursuing in the political and criminal justice arenas. However, total retreat from these fronts would be premature.

While acknowledging that human rights arguments have been increasingly pivotal in capital punishment litigation in Uganda, including the 2009 decision of the Supreme Court of Uganda abolishing the mandatory death penalty,4 it is far from clear that an effective abolition strategy should continue in this manner. This chapter will suggest that abolitionists need to re-focus: concentrating on abolition litigation loses sight of the more fundamental problems within the criminal justice system which need to be addressed in order to foster an environment in which abolition is more likely. To achieve this, we will first explore the legal landscape in which the fight against abolition is currently fought in Uganda. We will then assess the abolition litigation to date, highlighting the unintended, although foreseeable, negative consequences of Ugandan capital punishment litigation. Finally, the chapter will put capital punishment in context by examining capital offence charges, including pre-trial practices, the trial regime, and then prisons in Uganda. The intended conclusion is that if we build from the ground up, it is more likely that abolition will flow from a criminal justice system which does not pay lip service to the rights of those it detains: sometimes it’s better to kneel down, get our hands dirty, and begin the painstaking graft of working from the bottom upward, rather than aiming too high, over-reaching, collapsing, and damaging what little progress has been made on the ground.

Legal Landscape

It is beneficial to outline at the outset of this section the main legal documents and institutions which serve as the landscape in which the abolition battle is fought. The most important is the Ugandan Constitution, which was adopted in 1995.5 This bold legal instrument contains a number of rights to which reference will be made through the course of discussion. Most notably for current purposes, the Constitution contains the right to life (Art. 22), the right to respect for human dignity and protection from inhuman treatment (Art. 24), and the right to a fair hearing (Art. 28). The right to life is not absolute, although the right to freedom from torture, cruel inhuman or degrading treatment or punishment is non-derogable (Art. 44). The provisions of the Constitution are binding on all authorities and persons within Uganda (Art. 2), and the Supreme Court of Uganda is the final arbiter of the Constitution’s meaning (Art. 132).

Uganda also has a number of legal responsibilities at the regional level. For example, Uganda has ratified the African Charter on Human and Peoples’ Rights (the Charter),6 an impressive document containing both rights and duties for the peoples of the African Union (AU).7 It includes a qualified right to life (Art. 4), an absolute prohibition on inhuman and degrading treatment and punishment (Art. 5), and a right to a fair trial (Art. 7). Article 30 of the Charter establishes the African Commission on Human and Peoples’ Rights (African Commission) whose principal functions include assessing communications which allege violations of the Charter, examining reports by member states on their compliance with the Charter, as well as promoting the values of the Charter (Art. 45). The Commission’s role is seen as similar to the UN Human Rights Committee (Mutua, 1999, 345–6). The Commission has a number of working groups, including one on the death penalty, and it has produced a considerable amount of guidance to assist with the interpretation of the Charter.8 Importantly, it has also issued resolutions calling on states to observe a moratorium on executions with a view to abolition, the most recent being in 2008.9

An African Court on Human and Peoples’ Rights (the African Court) has also been established to complement and reinforce the African Commission.10 This is because the Commission’s quasi-judicial role, particularly in the realm of individual petition, has lacked definition and muscle to enforce its decisions:

[M]ost state parties have disregarded these [the Commission’s] recommendations with no attendant consequences. Hence, the African Commission’s finding of a violation on the part of a state party does not necessarily afford a remedy to the victim, and despite wide ratifications of the African Charter, many states continue in the wanton violation of rights. This state of affairs has earned the Commission numerous criticisms as a toothless outfit operating at the will and whim of its political master, the AU Assembly. (Wachira and Ayinla, 2006, 470)

Although Uganda has ratified the Protocol establishing the African Court, it has not yet made a declaration, as required by Article 34 of the Protocol, accepting the court’s competence to consider individual petitions. However, this does not mean that Uganda’s human rights record will not fall within the court’s purview, as the Commission can refer cases of non-compliance by states which have ratified, but not declared, the Protocol to the Court (Wachira and Ayinla, 2006, 488). The lack of individual petition notwithstanding, Uganda is generally seen as complying with the Commission and its reporting obligations (Biegon and Killander, 2010, 216; Republic of Uganda, 2011).

The African Court became operational in 2009, since which time it has rendered 12 judgments.11 It therefore remains to be seen whether the court will improve adherence to human rights in the AU, or merely fall victim to the same criticisms as the Commission. There are further plans to merge the court with the Court of Justice of the African Union, thereby creating the African Court of Justice and Human Rights, which will become the main judicial organ of the AU (Biegon and Killander, 2009, 306–7). However, such rationalization or unification will doubtless take a long time to become fully operational. Of interest, the East African Court of Justice, charged with interpreting the provisions of the 1999 Treaty of the East African Community, comprising Uganda, Tanzania, Kenya, Burundi and Rwanda, has recently stated that it will entertain claims of violations based on the Charter.12 This relatively new development will not be discussed here as it has thus far had limited impact on the death penalty debate. However, its inclusion is instructive for the reader to form a more complete view of the legal landscape in which Uganda operates, and further discussion can be found in Eborah (2011).

At the international level, Uganda has signed up to a number of legal instruments by which it is bound, including the Universal Declaration of Human Rights13 and the International Covenant on Civil and Political Rights (ICCPR) 1966.14 Uganda is therefore obliged to uphold the legal principles contained within these documents. In particular, Uganda became a party to the First Optional Protocol to the ICCPR, meaning that it has recognized the competence of the UN Human Rights Committee (the UN Committee) to receive complaints by individuals against Uganda.15 Uganda must submit reports on its compliance with the ICCPR on a regular basis to the UN Committee and consider any recommendations made. In essence, the obligations within the ICCPR system are akin to those under the African Commission. Uganda has not ratified the Second Optional Protocol to the ICCPR calling for the abolition of the death penalty. Indeed, as stated earlier, Uganda has consistently voted against any resolutions calling for the abolition of the death penalty, the most recent instance being the 2010 UN General Assembly Resolution, ‘Moratorium on the Use of the Death Penalty’.16

Uganda’s overt political disinclination to adopt resolutions calling for the abolition of the death penalty is, of course, disappointing. None the less, in the legal arena, litigation has attempted to abolish the death penalty. While some results appear on paper to be positive, scratching the surface shows that the effects of such litigation continue to be detrimental at worst, or to have created further uncertainty at best.

Abolition of the Mandatory Death Penalty: Kigula17

Attorney General v. Susan Kigula and 417 Others is the leading Ugandan case challenging the death penalty, which involved lengthy legal proceedings, seeking declarations to the effect that capital punishment was unconstitutional. Novak (2009, 62) describes the case as: ‘an omnibus challenge, targeting the constitutionality of the death sentence per se, and, in the alternative, the constitutionality of hanging as a method of execution, the mandatory nature of the death penalty, and the constitutionality of unduly delayed death sentences and poor prison conditions.’

The Supreme Court of Uganda, upholding the decision of the Constitutional Court,18 dismissed the majority of the challenges and held that the right to life is not a non-derogable right with the Constitution,19 and that hanging as a method of execution does not constitute torture or degrading or inhuman treatment or punishment (the prohibition against which is absolute in the Constitution).20 However, the Supreme Court accepted that the mandatory death sentence (that is, an automatic death sentence imposed once someone is found guilty of a particular crime) was unconstitutional. The Supreme Court stated that an automatic death sentence violated a person’s right to a fair trial:

A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence. This is clearly evident where the law provides for a maximum sentence. The court will truly have exercised its function as an impartial tribunal in trying and sentencing a person. But the Court is denied the exercise of this function where the sentence has already been pre-ordained by the Legislature, as in capital cases. In our view, this compromises the principle of fair trial. (Odoki CJ’s emphasis)21

Furthermore, prescribing a sentence which left the courts no discretion violated the principles of the separation of powers, as the Constitution states that ‘the administration of justice is a function of the judiciary’,22 and any law which has the effect of ‘tying the hands of the judiciary’ is thus inconsistent with the Constitution.23 The Supreme Court also considered the issue of inordinate delay in the execution of the death sentence, and the recognized associated detrimental impact on the mental health of the condemned. In particular, the court noted that some people had been on death row for 18–20 years after the confirmation of their conviction and sentence by the highest court.24 The condemned were waiting for the executive (made up of an Advisory Committee on the Prerogative of Mercy, chaired by the Attorney General, which makes recommendations to the President) to decide whether or not to exercise the prerogative of mercy. The court found that there was no excuse for delay at this point,25 and ruled that holding an individual beyond three years after the highest court has confirmed his or her death sentence constituted an inordinate delay, at which point the death sentence should be commuted to life imprisonment.26 The court subsequently ordered:

1. Death sentences to be commuted to life imprisonment without remission for applicants who had been sentenced to death under the mandatory regime, where they had waited three years or more for the executive to process their petition of mercy following confirmation of their conviction by the Supreme Court;

2. Applicants in the process of appealing their capital offence conviction and mandatory death sentence should have their cases remitted to the High Court for re-sentencing only.27

Although many view the Kigula judgment as a milestone, some have argued that the decision demonstrates a distinct lack of dynamism in its interpretation of the prohibition on cruel, inhuman or degrading treatment (for example, Sander, 2011). However, as Novak (2009, 83) rightly points out: ‘No court has ever invalidated a death penalty regime where the national constitution contains a clause specifically saving the death penalty.’ Despite this, it is true that a number of fairly damning criticisms of the judgment can be made. In Kigula, the Supreme Court essentially ruled that the applicants in the process of appealing their mandatory death penalty convictions and/or sentences were to have their cases remitted to the High Court for mitigation of sentence only (‘mandatory beneficiaries’). The Supreme Court also ordered that those who had waited three or more years after their death sentence was confirmed by the Supreme Court for their clemency petition to be considered by the executive were to have their death sentences commuted to life imprisonment without remission (‘inordinate delay beneficiaries’). In so doing, the court has disallowed the inordinate delay beneficiaries the opportunity to mitigate their sentences; they will serve a life sentence regardless of the circumstances of the offence and of the offender. The legitimacy of making such a distinction is highly questionable, as it strips the inordinate delay beneficiaries of a right which the mandatory beneficiaries receive without any justification: it constitutes an administrative distinction devoid of any legal merit. As Sander (2011, 272) remarks, such unjustifiable discrimination is tantamount to a failure to treat all individuals equally before the law.

The distinction is doubly curious when one considers the circumstances in which it arises. One of the primary motivations driving the Supreme Court to conclude that the mandatory death sentence is unconstitutional was that it unjustifiably usurped judicial discretion in the sentencing part of the trial. The Supreme Court recognized that due process requires that fair trial rights extend to sentence and that by imposing a mandatory sentence, the legislature had overstepped its powers. However, by sentencing all of the inordinate delay beneficiaries to life imprisonment, the Supreme Court has hypocritically usurped their fair trial rights by imposing a blanket and indiscriminate sentence which equally does not permit of an assessment of either the offences committed or the offenders’ particularities.

Also, sentencing the mandatory beneficiaries to life imprisonment without remission is notable for two further reasons. First, it is by no means certain that the Supreme Court, or the judiciary in general, has the power to order that sentences be served without remission. The Prisons Act 2006 specifically attributes the power to calculate and administer remission to the prison authorities. As Eldad J (2010) states:

The final decision in the Kigula Case has also brought about a few other complications … (d) in view of Sections 84 and 85 of the Prisons Act 2006 it is doubtful whether our Courts have power to interfere with remission of sentences, which is purely administrative act [sic].

It is therefore strongly arguable that the Supreme Court’s decision is ultra vires (that is, the decision extends beyond its competence). Notwithstanding this argument, given that remission can only be attributed to a sentence of a determinate or, at the very least, determinable, number of years, the Supreme Court implies that a life sentence is, or can be, determinate. This implication goes against the Supreme Court’s later ruling in Tigo Stephen v. Uganda,28 in which the Supreme Court ruled that a life sentence is not a determinate or determinable number of years, but rather imprisonment for the rest of the offender’s natural life.

The Meaning of a Life Sentence: Tigo

In Tigo Stephen v. Uganda, the appellant was convicted of aggravated defilement and sentenced by the High Court to ‘life imprisonment (20 Years)’. An appeal was launched, during which the Supreme Court came to consider the meaning of life imprisonment. Statute defined life imprisonment in Section 47(6) of the Prisons Act 1958 (reproduced in Section 86(3) of the Prisons Act 2006). The provision states: ‘For the purpose of calculating remission of sentence, imprisonment for life shall be deemed to be twenty years.’ This is evidently the basis on which the trial judge had come to his determination that life imprisonment constitutes a 20-year sentence.

However, the Supreme Court thought otherwise. In a judgment the length of which arguably reflects its intellectual rigour, the Supreme Court ruled that although the Prisons Act was ‘meant to assist the Prison authorities in administering prisons and in particular sentences imposed by the courts’, the Act did not bind the courts29 – clearly an ultra vires decision. Thereafter, the court concluded: ‘We hold that life imprisonment means imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned.’30

In one sentence, the Supreme Court usurped the sovereignty of parliament by arrogating to itself the power to interpret the definition of a life sentence in direct contradiction to a valid Act of Parliament. The Supreme Court continued to state that it would be ‘absurd’ if the courts could pass fixed-term sentences which exceeded a life term.31 Yet the real absurdity lies in two intrinsically patent criticisms of this ratio. First, the Supreme Court defines a life sentence as imprisonment for the rest of an offender’s life unless, absurdly, the offender has earned remission – an impossible feat without a determinate or determinable sentence. Being sentenced to imprisonment for the rest of one’s natural life, itself an unpredictable and indefinable period, necessarily implies that remission cannot be calculated.

Secondly, the Ugandan courts, with increasing regularity, sentence offenders to fixed-term sentences which far exceed Ugandan life expectancy. Prior to the Tigo judgment, Mujuzi stated that it was fortunate that Ugandan courts have not sentenced individuals to excessive periods of imprisonment of 50 years or more, and that he remained optimistic that that the judiciary would not change this practice (Mujuzi, 2008, 173). Such optimism has proved misplaced. Ugandan courts have started to sentence offenders to periods of imprisonment far exceeding even the most developed country’s average lifespan. For instance, in April 2012, New Vision reported that a man who pleaded guilty to murder and various other offences was sentenced to 310 years’ imprisonment by a general court martial (Kwesiga, 2012). While some of the offences were grave, many of the crimes were of a minor nature which none the less attracted hefty sentences, and it would seem that all of the sentences were ordered to run consecutively rather than concurrently.