Attorney General v. Susan Kigula, et al.

K and 417 others were all persons convicted of diverse capital offences under the Penal Codes Act and had been sentenced to death as provided for by the laws of Uganda. They filed a petition in the Constitutional Court under Article 137(3)[1] of the Constitution, challenging the constitutionality of the death penalty. In particular, they petitioned that the imposition of the death penalty was inconsistent with Articles 24[2] and 44[3] of the Constitution.

In the alternative they petitioned that (a) the various provisions of the laws of Uganda which provide for a mandatory death sentence are unconstitutional, (b) the long delay between sentence and the actual execution constitutes cruel, inhuman or degrading treatment or punishment contrary to Articles 24 and 44 of the Constitution and (c) hanging, as the legal mode of carrying out the death sentence, is contrary to Articles 24 and 44 of the Constitution.

The Constitutional Court decided that Articles 24 and 44 were not meant to apply to Article 22(1)[4] and therefore did not prohibit the death penalty. However, the Constitutional Court also held that the mandatory death sentence was inconsistent with Articles 22(1), 24, 28(1)[5] and 44 of the Constitution and that a delay of three years or more in the death sentence being carried out (starting from when the death sentence had been confirmed by the highest appellate court) is an inordinate delay constituting cruel, inhuman or degrading treatment or punishment and as such was inconsistent with Articles 22 and 44(a) of the Constitution. The Constitutional Court also held that carrying out the death penalty through hanging, while cruel, was not unconstitutional as it operationalized Article 22(1).

In light of this decision the Constitutional Court made a number of orders. The Attorney General appealed on eight grounds of erred law and fact, arguing that neither a mandatory death penalty nor a delay in sentence being carried out was unconstitutional. K cross-appealed on three grounds of erred law, arguing that the death penalty was prohibited by the Constitution and, in the alternative, that even if the death penalty was not prohibited as a cruel, inhuman or degrading treatment or punishment, then hanging, as the method of execution, was prohibited under Articles 24 and 44 of the Constitution.

[1] Article 137(3) provided: ‘A person who alleges that—(a) an Act of Parliament or any other law or anything in or done under the authority of any law; or (b) any act or omission by any person or authority, is inconsistent with or in contravention of a provision of this Constitution, may petition the
constitutional court for a declaration to that effect, and for redress where appropriate.’
[2] Article 24 provided: ‘No person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.’
[3] Article 44 provided: ‘Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms—(a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; (c) the right to fair hearing; (d) the right to an order of habeas corpus.
[4] Article 22(1) provided: ‘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.’
[5] Article 28(1) provided: ‘In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.’

[Adapted from INTERIGHTS summary, with permission]

In confirming the decision of the Constitutional Court and dismissing both the appeals and the cross-appeals, the Supreme Court held that:

(1) The right to life and the freedom from cruel, inhuman or degrading treatment or punishment were treated separately and independently in Articles 3[6] and 5[7] of the Universal Declaration of Human Rights. It therefore could not be argued that by these provisions in either the Universal Declaration or the equivalent terms in the Constitution the prohibition on cruel, inhuman or degrading treatment or punishment had the automatic effect of abolishing the death penalty. Furthermore, the wording in the Universal Declaration, particularly the use of ‘arbitrarily’, was significant as it recognized that under certain circumstances a person may lawfully be deprived of his life. Article 6[8] of the International Covenant on Civil and Political Rights should also be considered.

(2) There was no conflict between Article 22(1) and Articles 24 and 44(a), as these were not meant to apply to Article 22(1) provided the sentence of death was passed by a competent court after a fair trial and confirmed by the highest appellate court. Therefore, the Constitution did not prohibit the death penalty. Indeed, there were deliberate provisions in the Constitution which could only point to the view that the framers of the Constitution purposefully provided for the death penalty in the Constitution of Uganda.

(3) The right to life, and its exceptions, were such an important part of the Constitution that the abolition of the death penalty requires specific progressive measures by the State in order to effect such abolition (State v Makwanyane [1995] 1 LRC 289 and Mbushuu & Anor v Republic (1995) 1 LRC considered).

(4) The right to a fair hearing included in Article 28(1) did not stop when a person was convicted but included also the process of sentencing a person. The provision of a mandatory death penalty was inconsistent with the rights contained in Article 28 as it prevented the judiciary from taking into account the circumstances of the offence or the character of the guilty party. In addition, it offended the separation of powers between the executive, the legislature and the judiciary provided for in the Constitution. Having laws passed by Parliament which had the effect of tying the hands of the judiciary in executing its function to administer justice (including the passing of sentence) was inconsistent with the Constitution.

(5) All laws on the statute book in Uganda which provided for a mandatory death penalty were therefore inconsistent with the Constitution and void to the extent of that inconsistency. Such mandatory sentence could only be regarded as a maximum sentence.

(6) The Constitutional Court addressed correctly the issue of delay relating to the death sentence. A balance must be achieved to ensure that a person had the opportunity to exhaust all available avenues of appeal under the law before being executed, while not being kept in prison unduly, with its corresponding cruel conditions.

(7) In the absence of a time limit within which the President may exercise the prerogative of mercy, the provisions of the Interpretation Act should be read into the Constitution and require that these powers be exercised without unreasonable delay.

(8) To hold a person beyond three years after the confirmation of sentence by the highest appellate court was an inordinate delay. At the end of the period of three years, if the President had not exercised his prerogative one way or the other, or if the sentence had not been carried out, then the death sentence should be deemed to be commuted to life imprisonment without remission.

(9) When considering the method of execution, the important point was not whether a particular method caused instant death but whether it caused minimum possible pain and suffering (Safeguards Guaranteeing Of The Protection Of The Rights Of Those Facing The Death Penalty, United Nations Economic and Social Council Resolution 1984/50, 25th May 1984 considered).

(10) As a decision of fact, hanging in most cases led to the rapid onset of unconsciousness and caused death within a couple of minutes. As such it did not cause excessive pain and suffering and was not prohibited under Articles 24 and 44 of the Constitution.

Per Egonda-Ntende AG JJSC (dissenting):

(1) The Constitution should be interpreted wherever possible as a single document, whose provisions should be read together, in harmony. Article 44 contained a clearly worded prohibition on derogation from the freedom from torture or cruel, inhuman or degrading treatment or punishment, notwithstanding anything else in the Constitution. As such there was no justification for the view that Articles 24 and 44 did not apply to Article 22(1).

(2) Capital punishment was clearly authorized by Article 22(1) but to give effect to Articles 24 and 44 of the Constitution such capital punishment as was authorized by law must not infringe Articles 24 and 44.

(3) While the death penalty per se was not inconsistent with Articles 22 or 24, hanging as a method of execution as it was carried out in Uganda was a cruel, inhuman and degrading treatment and punishment and as such was prohibited by Articles 24 and 44 of the Constitution. Parliament should legislate for a new method by which the death penalty could be carried out.

[6] Article 3 provided: ‘Everyone has the right to life, liberty and security of person.’
[7] Article 5 provided: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’
[8] Article 6 provided: ‘1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases. 5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.’

[Adapted from INTERIGHTS summary, with permission]