Death Penalty in Uganda

A RESEARCH DISSERTATION ON DEATH PENALTY AND ITS IMPLICATIONS ON
THE RIGHT TO LIFE IN UGANDA.
BY
MPANGAIVAN
LLB/37782/151/DU
A RESEARCH DISSERTATION TO BE SUBMITTED TO THE SCHOOL OF LAW IN

PARTIAL FULFILMENT OF BACHELORS DEGREE IN LAW OF KAMPALA
INTERNATIONAL UNIVERSITY.
JUNE 2019
Declaration
I, Mpanga Ivan do hereby declare that the work presented in this dissertation arises out of my
own research; I certify that it has never been submitted or examined in any university as an
academic requirement for any award.
Sign Date
.. ... ~~~············· ········· ..... ?:.~ .~~- 1~-~~-Y.. f.~ I 1

MPANGAIVAN
Approval
This dissertation has been submitted with the approval of my Supervisor
~
Name ww~ M·
ii
Dedication
This research is dedicated to the Almighty God, my dear beloved parents. I also dedicate this
work to the people who have been so close to me and also not forgetting all my classmates whom
we have endeavored to accomplish this journey together.
Thank you All!
iii
Acknowledgement
First and foremost I am most grateful to my parents Mr. Kimanje James and my mother Mrs.
Kayaga Juliet for their overwhelming support. Thank you very much for all your blessings and
efforts rendered.
I am deeply indebted to my supervisor Mr. Chima for his overwhelming suppmi and supervision
in the compilation of this research; you have not only been a supervisor to me but also a role
model.
I also deeply acknowledge my brothers Mr. Sengendo Isaac and Mr. Muwanga Hudson and all
my friends for their overwhelming and grateful help that they have endorsed in me throughout
my curricular activities.
Lastly but not least, I would love to acknowledge all my former classmates and everyone who
has been of great impoliance to the conclusion of this research.
iv
LIST OF CASES
I) Attorney General V Susan Kigula & 417 Others Constitutional Appeal No. 03 Of2006
2) Draft V A.G.(I994) 2 A. C. I
3) Gregg V Georgia
4) Jabor V Public Prosecutor (1995) I SLR 167
5) Katuramu And Ors V Uganda (Unrepmted)
6) Kyamanywa Simon V Uganda Constitutional Reference No. Of2000
7) Onuoha Kalu V The State (1998) 13 NWLR; Suit No. SC. 24/ 1996
8) R V Expmte Bugdaycay (1987) AC 514 @P.531
9) S V Mitlongo (1990) 10 S.A.C.R 584 @P587
I 0) The State V Makwanyane & Anor (1995)1 LRC 269
11) The People V Anderson (1972) 6 Cal. 3d 638
12) Uganda Law Society & Anor V A.G Constitutional Application No.7/2003 P.l And 14
v
LIST OF ACRONYMS
AC Appeal cases
AELR All England Law Repm1s
CID Criminal Investigations Department
CJ Chief Justice
Cap Chapter (Of Law)
Crim App Criminal Appeal
Crim Cause Miscellaneous Criminal Cause
Dpp Director of Public Prosecutions
H.C.B High Court Bulletin
EALR East African Law Reports
TIA Trial on Indictments Act
ULR Uganda Law Repo11s
vi
STATUTES
The Constitution of Uganda, 1995.
The Constitution of the Federal Republic of Nigeria J 999
The Constitution of Kenya, 20 I 0
The Constitution of the Republic of South Africa No. I 08 of 1996
The penal code Act, Cap. 120, (Uganda)
The Trial on Indictment Act, Cap.
The Magistrate courts Act
The Judicature Act
The Anti tenorism Act
vii
INTERNATIONAL LEGAL INSTRUMENTS
The international covenant on civil and political rights(ICCPR) 1966
The first optional protocol to the covenant
Convention on the rights of the child
Convention against tmture and other erne!, inhuman or degrading treatment/ punishment.
Statute of the international c
Universal Declaration of Human Rights 1948
Universal National General Assembly Resolution 39/46 I Oth December 1984
viii
ABSTRACT
The study is aimed at reviewing Death penalty and its implications on the right to life in Uganda.
The researcher used questionnaires, interviews, books, statutes, international instruments news
papers and Wikipedia. The study has been favored by a number of factors and the main
objectives being :
I. To establish whether Death penalty violates the right to life

2. To establish whether there are other means of punishment other than death penalty
3. To establish whether or not death penalty as a capital punishment when given can prevent
other criminals from committing crime
Due to the above so many arguments for and against death penalty have come up. Some of the
arguments for, with the threat of death penalty, the rate of murder decreases, crime rate increases
with the abolition of death penalty, since most people fear death, they will think before they act,
death penalty saves lives that is repeat murders are eliminated, others believe in an eye for an eye
and a tooth for a tooth and those against it have this to say that death penalty are a violation of
human rights because the victim is tortured, death penalty is an instrument of political repression,
its irreversible, the defenseless and poor are victims.
Recommendations:
I) The government emulate the international countries in abolishing death penalty

2) To turn the convicts into economic assets through serious work and not waste resources
in buying heavy and expensive machinery.
3) The state to sensitize the public where it feels the death penalty is of proper interest like it
has done with contraceptives and immunization
4) Increase the level of literacy for the ignorant to be able to read materials on abolition
theory
In conclusion there's urgent need to look through the issue of death penalty being a punishment
for one that has committed a crime or even the innocent as the case has always been. thus the
need to make life imprisonment the mandatory punishment replacing death penalty which will
give the criminals a chance to change.
ix
Table of Contents
Declaration ....................................................................................................................................... i
Approval .......................................................................................................................................... ii
Dedication ....................................................................................................................................... iii
Acknowledgement .......................................................................................................................... iv
LIST OF CASES .............................................................................................................................. v
LIST OF ACRONYMS .................................................................................................................. vi
STATUTES .................................................................................................................................... vii
INTERNATIONAL LEGAL INSTRUMENTS ........................................................................... viii
ABSTRACT .................................................................................................................................... ix
CHAPTER ONE ............................................................................................................................. 1
1.1 INTRODUCTION AND HISTORICAL BACKGROUND OF THE DEATH PENALTY IN

UGANDA ....................................................................................................................................... l
1.2 STATEMENT OF THE PROBLEM ........................................................................................ 2
1.3 AIMS AND OBJECTIVES ...................................................................................................... 2
1.4 HYPOTHESIS .......................................................................................................................... 3
1.5 JUSTIFICATION OF THE STUDY ........................................................................................ 3
1.6 LITERATURE REVIEW ......................................................................................................... 4
CHAPTER TWO ............................................................................................................................ 6
ANALYSIS OF THE LAW GOVERNING THE DEATH PENALTY IN UGANDA ................. 6
2.11NTRODUCTION .................................................................................................................... 6
2.2 THE PENAL CODE ................................................................................................................. 7
2.3 THE ROLE OF THE STATE ................................................................................................... 8
2.4 THE NATIONAL RESISTANCE ARMY STATUTE 1992 ................................................... 9
X
2.5 FORMS IN WHICH DEATH PENALTY IS ADMINISTERED IN UGANDA .................. 10
CHAPTER THREE ...................................................................................................................... 11
DEATH PENALTY: TO BE OR NOT TO BE? .......................................................................... 11
3.1 INTRODUCTION .................................................................................................................. 11
3.2 ARGUMENTS FOR DEATH PENALTY ............................................................................. 11
3.3 DEATH PENALTY IS AN UNJUSTIFIED RETRIBUTION ............................................... 15
3.4 CAPITAL PUNISHMENT IS NOT A DETERRENT ........................................................... 18
3.5 DEATH PENALTY AS A VIOLATION OF THE PROHIBITION AGAINST TORTURE,

CRUEL, DEGRADING AND INHUMAN OF PUNISHMENT ................................................. 21
3.6 DEATH PENALTY IS A BARBARIC PRACTICE .............................................................. 23
3.7 THE DEATH SENTENCE IS IRREVERSIBLE ................................................................... 25
3.8 DEATH PENALTY IS AN INSTRUMENT OF POLITICAL REPRESSION ..................... 26
3.9 THE POOR AND THE DEFENCELESS ARE THE WORST VICTIMS OF THE DEATH
PENALTY .................................................................................................................................... 28
3.10 THE CHANGE OF HEART OF A PRISONER .................................................................. 31
3.11 CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION ........................... 35
CHAPTER FOUR ......................................................................................................................... 36
DEATH PENALTY IN LIGHT OF RIGHT TO LIFE UNDER ARTICLE 22(1) OF THE

CONSTITUTION ......................................................................................................................... 36
4.1 INTRODUCTION .................................................................................................................. 36
4.2 THE GENESIS OF THE LAW OF DEATH PENALTY ...................................................... 37
4.3 THE CONSTITUTIONALITY OF DEATH PENALTY ....................................................... 39
4.4 COMPARATIVE OF DEATH PENALTY IN SOUTH AFRICA. NIGERIA AND KENYA

TO THAT OF UGANDA ............................................................................................................. 47
CHAPTER FIVE .......................................................................................................................... 55
xi
CONCLUSION AND RECOMMENDATIONS ......................................................................... 55
5.1. INTRODUCTION ................................................................................................................. 55
5.2 CONCLUSION ....................................................................................................................... 55
5.2 RECOMMENDATIONS ........................................................................................................ 56
BIBLIOGRAPHY ......................................................................................................................... 57
BOOKS ......................................................................................................................................... 57
xii
I
CHAPTER ONE
1.1 INTRODUCTION AND HISTORICAL BACKGROUND OF THE DEATH PENALTY

IN UGANDA
The philosophy of death penalty also known as capital punishment in Uganda can be traced from
the development of criminal law in England. Just like other laws, criminal law in Uganda was
put in place during the colonial period with the reception clause of 1902. 1
In regard to criminal law and death penalty, a fundamental depmiure was made in 1902 after the
adoption of the Indian penal code of 1862 and chapter 106 of the consolidated amendments. We
see that in 1980 despite the opposition by the Uganda laws, a long argument with the British
commissioners who later considered that the punishment was fine to be applied in East Africa,
death penalty was put in place in 1960's together with the abrogation of the 1962 constitution.
Then in 1966 the decree later replaced it during the reign of the dictator and field marshal Iddi
Dada Amin. During this period, it was the foundation of the British colonial rule in Uganda, as
seen in the book by Ibingira, the forging of an African nation and the political and constitutional
evolution of Uganda from the colonial rule to independence that there was a lot of violation of
right to life in that, many political opponents disappeared without discovering their whereabouts
and others were executed through firing squad. Then in 1973 and 1976, many people were killed
by still firing squad with no reasons as to why they were executed thus violating human rights
and also ignoring the natural justice principle that states that an accused person has a right to be
heard.
During the government of Amin. the death penalty as a form of capital punishment was given for
offences like over charging, hoarding, smuggling, corruption, fraud and illegal currency sales.
This led to many people executed and these killings also left many psychologically traumatized,
abandoned, lonely, and insecure and others having a permanent sense of fear. Between the
periods of 1980-85 of Milton Obote. due to differences and a clash of parties mainly UPC and
DP led the arbitral killings of the time resulting to many people loosing their lives.
1
For the foundation of the British colonial rule in Uganda, see generally 6.5k lbingira the forging of an African e
political and constitutional evolution of Uganda from colonial rule to independence.
1
Under the National resistance movement (NRM) government, death penalty as a capital
punishment was killed. During this period there were a lot of extra judicial execution by the
military. Men who kill innocent people and the state at that time didn't exert enough to protect
these people that were innocently executed. On 20th April 1999 28 prisoners on death row, in
2009 they were 637 on death row, in 2006 566 in mates on death row as per the Uganda Prisons
spokesman at the Luzira prisons. This shows that there was violation 2 of rights as per Article 22
(1) of the constitution which provides that "no person shall be deprived of life intentionally
except in execution of a sentence passed in a fair trial by a court. .. " In Uganda the 1995
constitution of Uganda and the penal code still provide for the death penalty as a punishment.
This calls for the total abolition of death penalty because of its violation of the fundamental right
to life meaning that even the state has no right to take the life of a person.
1.2 STATEMENT OF THE PROBLEM

Article 28 of the 1995 constitution of Uganda provides that "no person shall be subjected to any
form of cruel, in human or degrading treatment or punishment" this goes to show that Death
penalty is a violation of the constitutional law and also that of fundamental right to life.
Retribution is the main reason why death penalty is advocated for and also doesn't serve its
purpose. At the moralistic or religious views death penalty isn't the solution. Death penalty as a
capital punishment can't prevent the society from committing the crime because none of us know
the heart of another. Death penalty is a method used in silencing political opponents as far as
treason is concerned and yet we claim to be in a democratic society. Then also the poor and
defenseless people are innocently victimized-thus suffering as a result of death penalty the
reason being they cant afford to hire lawyers who could make the punishment less for example
life imprisonment. This kind of punishment gives a criminal the chance to change but the death
penalty doesn't give that chance.
1.3 AIMS AND OBJECTIVES

1. To establish whether death penalty violates the right to life.
11. To establish whether there are other means of punishment other than death penalty.
2
Rev. Fr Tarcisio Agostoni, May the State Kill provides the challenges of the death penalty.
2
111. To find out whether or not the death penalty is retributive. In that one is punished for
what he/she did.
1v. To establish whether or not death penalty as a capital punishment when given can prevent
other criminals from committing the same offence
1.4 HYPOTHESIS
1. Death penalty as a punishment is not deterrent at all.
u. The poor and defenseless people are those that suffer most as a result of the death penalty
as a capital punishment.
111. The death penalty violates Article 28 of the 1995 constitution in which provides that" "
1v. The punishment isn't retributive at all: it is against or violates the fundamental right to
life.
v. The death penalty is a primitive form of punishment by the state and entrenches a culture
of violence in the society.
vi. A punishment is given to change a criminal's life but the death penalty deprives him or
her of the change.
vu. The best punishment would be life imprisonment and hard labor to protect the society
The right of life is fundamental, non-deniable and can only be deprived but the creator,
not the state
vm. Killing of the innocent people may occur since there could be a possibility that comis of
law are not infallible and courts can also a judicial error.
1.5 JUSTIFICATION OF THE STUDY

There's urgent need to amend the constitution since A1iicle 22. 28( e). give the possibility of the
death penalty to be awarded and it contravenes Article 44 of the constitution3 There's need for
the abolition of death penalty thus life imprisonment being the best alternative because it would
help the criminal to reform. This can be seen in the recent release of some of the prisoners that
3
Article 44a provides for the prohibition of Derogation from particular human rights and freedoms ... Like freedom
from torture and cruel inhumane or degrading treatment or punishment.
(b)The right to a fair hearing.
3
were on death row in luzira. Due to their change in behavior, and reform. Some of them wore
released on probation, had they been sentenced: to death this positive change-, and result will not
Have been found thus the need for abolition of death penalty.
1.6 LITERATURE REVIEW

Penalty reform project of the foundation of human rights initiative volume 6 issued on the 2nd of
July/ December 2000 continues till today to campaign for the abolition of the death penalty as a
punishment in Uganda. This gives out the pros and cons of death penalty and several strategies to
be used in the campaign for its abolition. This shows us that there's need to amend the 1995
constitution oi" Uganda and the penal code Act to abolish death penalty.
In the book A challenge to the death penalty4 gives the pros and cons of death penalty, which
advocates for its abolition and gives the Ugandan situation of prisoners on the death row, this
helps us to show that the death penalty leads to torture, inhuman and degrading punishment.
Amnesty international Report 1999 publication. An effort to humanity/amnesty international

London. This gives how much effort to humanity and also advocates for and accounts for why
death penalty should be abolished. And as of march 27 2012 amnesty provides that over 141
countries have abolished and their law doesn't advocate for death penalty as a punishment for
any cnme.
The FHRI in coalition with other human rights conference in muyenga on 2 July/December 2000
prisons update volume 6 number 4 August 2000. It also calls upon churches to play an important
role in abolishing capital punishments. This publication is vital in our analysis.
PAUL SIGH ART: the international law of human rights published in the U.S.A. 1981 gives an
international update on prisons and the right to life and its interpretation. The debate on its
abolition is still ongoing but still gives hope to know that life is inherent right and no one can
take it away through death penalty unless God who gives and takes away life.
Harrison legal philosophy on the death penalty as published in 1984 in London this analyses the
fact utilitarian are against the death penalty because there is an unsatisfied evidence of deterrent
.And this helps Ugandans to make up their minds whether to continue with the death penalty or
4
to find another alternative like other countries have done for example cote divorce, Gabon, south
Africa to mention but a few.
In the book by WINSTO known as the philosophy of human rights states that a country can
advocate for its own rights if it considers them vital thus giving encouragement for the abolition
of death penalty.
In the book may the state kill 4 • It analyses the hand of the govemment as regards the issue of
death penalty. The question then arises as vj whether they have the right to take away) the life,
how fair are they, are they justified, thus is it reformative? This makes me to conclude that not
even the state can take away life by putting up laws because it's an inherent right which is
fundamental.
THE CONSTITUTIONALITY OF THE DEATH PENALTY IN UGANDA 5
This journal brings out the constitutionality of the death penalty Vis a vis the right to life and the
prohibition against torture, cruel, inhuman and degrading treatment which is in accordance to the
1995 constitution of Uganda_Article 28. It outlines and criticizes the main arguments of
supporting death penalty. It contemplates and offers reforms leading to abolition of the death
penalty n Uganda but it is certain that it isn't limited to the abolition of the death penalty via
COUliS.
This has helped me to advance my arguments as regards the reasons as to why the death penalty
should be abolished completely and if not the courts should give a limit the death penalty by
being a bit more partial, thus the need for society to have good lawyers who can defend criminals
so that a lesser punishment is given.
4
Rev. fr Tarcisio Agostoni, May the State kill, Pauline Publications Africa 2002
5
Makubuya Apol'o, The Constitutionality of the Death Penalty, An East African Journal of peace and Human
Rights, volume 6 issue 2 (2000)
5
CHAPTER TWO
ANALYSIS OF THE LAW GOVERNING THE DEATH PENALTY IN UGANDA
2.1 INTRODUCTION
The right to live n Uganda is qualified to the extent that it might be taken away in execution of a
sentence passed by a fair trial by a court of competent jurisdiction. 6
"Passed i a fair trial by a court of competent jurisdiction in respect of a criminal offence under
the laws of Uganda and the conviction and the sentence having been confirmed by the highest
appellate comi"
The phrase in the constitution establishes the right for a competent court to impose the death
penalty. The penalty as a punishment contradicts itself with Article 44 of the 1995 constitution
which provides that; notwithstanding anything in this constitution there shall be no derogation
from the enjoyment of the following rights and freedom that is freedom of torture, cruel,
inhuman or degrading treatment or punishment etc.
The above is a contradiction and thus shows the need for the amendment in our constitution. And
looking at death penalty, it amounts to t01iure, cruelty, inhuman and degrading treatment
especially those on death row. And as one critique for the death sentence once lamented.
"One rehearses his death in the death house, dying a little every day, dying a little more every
niaht" 7
"
In the case of THE PEOPLE VS ANDERSON 8 it was illustrated in justice Wright's holding
which held that capital punishment is impermissible because it degrades and dehumanizes all
who participate in its processes. It is therefore necessary that any legitimate goal of the state and
is compatible with the dignity of humankind and the judicial process.
6
The 19951 Constitution of Uganda Article 22(1).
7
Prisons update volume Issue No. 1 January- June, 1999 1972: 6
'californian case 1972:6 cal. 3d 628
6
2.2 THE PENAL CODE
The penal code provides death penalty as a mandatory punishment for the following offences,
murder, armed robbery, treason. It has been noted however by the critiques of treason that
politicians or state use it as a weapon for the silence of political opponents. The fom1er D.P.
president Paul Ssemogerere remarked I quote" permanent silence of political opponents and to
eliminate troublesome individuals". 9
AI times «t is thought that by killing the opponents silence is achieved but instead it goes to show
how dictatorial the state is. We claim to be democratic yet people are denied freedom of choice
of which pmiy to belong or be apati and also if we are democratic why then is capital
punisnrnent still a punishment for a crime such as treason?
The moralists insist that the state doesn't put out eyes of a person who has blinded another in
vicious assault or does it punish a rapist by castrating and submitting him to the utmost
humiliation in goal. This goes to show that the state doesn't have to engage it self in the cold and
calculating killings of murderers in order to express morals outrage at their conduct. A very long
prison sentence is also a way of expressing outrage a11d resisting retribution upon criminals. The
abolition of the law of retaliation comes from Jesus himself as per the religious aspect.
"You have heard as it was said that an eye for an eye and a tooth for a tooth; I tell you not to
stand against and evil person but whoever slaps you on the right cheek, turn the other also to
him. 10 This nuts across a message of NO to violence either physical or moral. It is to be
interpreted as a command to prevent all violence because violence generates violence and also
shows how ignorant society is; we have to move towards abolishing such thinking in our society.
As far as abolition is concerned this calls for the urgent need to try and make a change for at least
as regards the offence of treason, which is a political offence giving an alternative punishment
like life imprisonment and more so fight against the extra judicial killings taking place around
the country.
9
National building Through One Thousand Years
10
Matthew 5:28-31 (NIV)
7
Offences as regards to rape and defilement were put in place to protect persons from the HIV
infection but it's not a guarantee that those who rape and defile have AIDS and this hasn't
prevented criminals from committing the offence. And according to justice P.Chaskalon I quote
"punishment must to some extent be commensurate with the offence but there is no requirement
that it be equivalent or identical"
2.3 THE ROLE OF THE STATE

The role of the president of Uganda as regards prerogative of mercy is relevant to assess. It is
stated that the only hope a person on death row by court i.e. the Supreme Court is the president
tlu·ough the prerogative of mercy as stated in the constitution, i.e. " the president may, on the
advice of the committee to grant any person convicted of any offence, pardon either free or
subject to the lawful conditions, grant to a person a respite either indefinite or for a specified
period from the execution of punishment imposed on him or her for an offence, substitute a less
severe form of punishment for a punishment imposed on a person for an offence, remit the whole
or pmi of a punishment imposed to a person or of a penalty or forfeiture otherwise due to
government on account of any offence" as per Article 12l(a).
In the case of Makwanyase case " the last hope for a prisoner sentence to death is clemency it
can be used to correct possible errors to mitigate the harshness of the punishment and
compensate for the rigidity of the criminal law by taking into account factors relevm1t to an
individual case for which the law males no allowance."" In regards to treason for sure a convict
has very little chance of being pardoned by the president he is opposing.
Having looked at this the prerogative of mercy lies in the hands of the president with the help of
the Committee whom he chooses of which the committee ay advice the president and it's up to
him to reject or not to since it isn't binding on him. This goes to show that one's life is dependent
on one person. Sometimes the president may allow releasing the prisoner or substituting the
death penalty with a less severe punishment like life imprisonment.
There could be a problem as regards lack of independence among the committee and the
president as regards the political opposition in that there could be nobody the government
8
2.4 THE NATIONAL RESISTANCE ARMY STATUTE 1992
The statue gives a guide to the behavior of a soldier which provides that the mandatory death
penalty as a punishment on treason, murder, rape, aggravated robbery and disobedience of lawful
orders leading to loss of life in a non operational area. While those in operational areas are at the
additional risk of being sentenced to death for cowardice, desertion from frontline and sleeping
while on duty. One here can identify the basis of the penal code as Article 22 (!)of the 1995
constitution of Uganda; the military regime death penalty has its foundation elsewhere as it
doesn't conform to Article 22( I) of the constitution of death penalty being confirmed by the
highest appellate court before execution is carried out.
Soldiers are human beings and they too need protection. If their pay and financial circumstances
is looked into we find that the above offences will be committed because of the ongoing
increment of the poverty level so they have to find means of survival. Uganda has been through a
lot of gross violation of human rights just like president Museveni said: "There was a violation of
the right to life during the 1981 -I 985 years. 11
This is true but not only during the 1981-1985 years but also during this regime so many people's
rights have been violated by use of death penalty for example 1998 28 prisoners,2009 637, were
put on death row. There's no difference from the regimes in the past on this matter. Thus the
need to make a change of our laws to avoid violation to the right to thoroughly abolish death
penalty. The lives of soldiers are always threatened in times of war and therefore they deserve a
better treatment since they also do a great job of protecting the citizens of this country. The army
bill was being debated on this issue was brought up but only to be rejected.
If critically looked into the procedure of the soldiers tried in the court mm1ial which though
competent loo doesn't at times follow the proper procedure especially on appeals. For example
the case of the two soldiers in Kotido March 2002, three soldiers were executed in Tororo on the
same day they had allegedly committed the rape 12 • This gives the risk of innocent people being
killed hence the need to institute mechanisms of safe guarding the innocent from repression and
the untold suffering where the right to appeal isn't given priority.
11 1
The International conference Museveni address to the nation, New Vision 7 h November 2001 page 7
12
On June 2nd 1991
9
2.5 FORMS IN WHICH DEATH PENALTY IS ADMINISTERED IN UGANDA
a) Shooting/ firing squad
This is a method used by military personnel mostly in this case an individual is tied up against a
tree or wall and shot at a fairly close range when the face is covered with a piece of cloth. These
are often public events and have been carried out in Uganda. For example in 1987, the two
thieves that allegedly raped an old woman and killed twelve people in the Omoro sub county
were killed under this method, in 2002 the one in karamoja popularly known as karamoja saga in
another example. Normally used on military personnel's.
b) Hanging
This is a method of punishment whereby the condemned person is killed by the neck usually
using a rope from a frame with a cross piece known as gallows. As a result it blocks the flow of
blood and destroys the nerve structure in the neck and compresses the wind pipe and the spinal
code resulting to death which is very painful. This is commonly used on civilians in Uganda.
c) The gas chamber:
This kind of method a person dies when acid is placed in a box under a chair which the victim is
seated and a cyanide bellet released into it. Tubing it from the stethoscope on the arm of the chair
leads out of the gas chamber to where a physician monitors the heart beat of the victim in this
case the prisoner normally looses consciousness after two to three minutes and proclaimed dead
within fifteen minutes.
d) Electrocution
This isn't common in Uganda but used in the United States of America. this is a method whereby
the convicted person is put to death by passing an electric machine through his or her body. A lot
oflarge voltage is required so that one is put to death easily.
e) The lethal injection.
In this method a criminal is injected with a deadly chemical which makes him or her fall into
forever I and of course leading to death.
10
CHAPTER THREE
DEATH PENALTY: TOBE OR NOT TO BE?
3.1 INTRODUCTION
There has been significant process towards ending the use of the death penalty in many
Governments since Amnesty International published its special report, Africa: "Towards
abolition of the death penalty" 13 But Uganda still carries on the death penalty as a capital
punishment. This was seen when 28 prisoners on 29 April 1999 were sentenced to death and
many human rights were against it thus contested it. However, the government of Uganda still
believes 'that the death penalty offers a popular form of punishment and would be reluctant to
adverse public opinion. There are also arguments in its supp01i.
3.2 ARGUMENTS FOR DEATH PENALTY

With threat of Death Penalty, the Rate of Homicide Decreases. quote "claims common sense
supports the inference that if the threat of the death penalty decreases, the rate of murders
increases than it may be true, but if the death penalty threat increased then the homicide rate may
decrease. '" 4 In the case of Gregg V Georgia, Justice Stewmi held in the Supreme Court that
"Although some of the studies suggest that the death penalty may not function as a significantly
great deterrent than lesser penalties, there is no convincing empirical evidence supp01iing or
refuting this view. We may neve1iheless assume safely there are murders, such as those who act
in passion, for whom the threat of death has little or no detenent effect. But for many others, the
death penalty undoubtedly, is a significant deterrent" 15
Crime Rate Increases if death penalty is abolished. According to Time Magazine, there are
2,000,000 people beaten in the United States. Some are knifed, shot, or assaulted. Crime growth
has been going up in the past because of too much leniency going hand in hand with the
increased rate of people being victimized. There are many loop holes devised for offenders, and
fccause of that crime rate has increased drastically. More and more people are being murdered,
13
Rev fr. Agostoni Tarcision, May the state kill (supra).
14
As per Frank carrington (1978)
15
As cited in carrington (1978) p.87
11
raped, assaulted, kidnapped, and robbed, etc. A recent example, is the shooting in a theater in
Aurora by James Holmes though he is still on trial the question posed is "should the prosecution
seek for death penalty for the Aurora theater shooting?"
Free will that is to say when you commit a felony, it is a matter of free will. No one is compelled
to commit armed robbery, murder, or rape. The average citizen does not have a mind or
intentions to become a killer or being falsely accused of murder. What he is won·ied about is
being a victim.
Death feared, Most people have a natural fear of death- it's a trait man have to think about what
will happen before we act. If we don't think about it consciously, we will think about it
unconsciously. Think- if every murderer who killed someone died instantly, the homicide rate
would be very low because no one likes to die. We cannot do this, but if the Justice system can
make it more swift and severe, we could change the laws to make capital punishment faster and
make appeals a shmter process. The death penalty is impmtant because it could save the lives of
thousands of potential victims who are at stake 16 In a foot note Bedau (1982) cites, "Actually
being dead is no different from not being born, a (non) experience we all had before being born.
But death is not realized. The process of dying which is a different matter is usually confused
with it. In turn, dying is feared because death is expected, even though death is feared because it
is confused with dying. Death is an experience that cannot be experienced and ends all
experience. Because it is unknown as it is cetiain, death is universally feared. "The life of a man
should be sacred to each other" 17
Innocent Executed - no Proof, Opponents claim lots of innocent man are wrongly executed.
There has never been any proof of an innocent man being executed!! A study by Bedau-Radlet
claimed there were 22 cases where the defendants have been wrongly executed. However. this
study is very controversial. Studies like Markman and Cassell find that the methodology was
flawed in 12 cases. There was no substantial evidence of guilt, and no evidence of innocence.
Moreover, our judicial system takes extra precautions to be sure the innocent and their rights are
protected. Most likely an innocent person would not be executed (Internet).
16
Bedau hugo social Justice, 1982, p.338
17
Bedau hugo social Justice, 1982, p.330
12
Death Penalty Saves Lives, The question is whether or not execution of an innocent person is
strong enough to abolish the death penalty. Remember, the death penalty saves lives. Repeat
murders are eliminated and foreseeable murders are deterred. You must consider the victim as
well as the defendant.
Hugo Bedau (1982) claims: The execution of the innocent believed guilty is a miscarriage of
justice that must be opposed whenever detected. But such miscarriage of justice does not warrant
abolition at the death penalty. unless the moral drawbacks of an activity practice, which include
the possible death of innocent lives that might be saved?
By it, the activity is warranted. Most human activities like medicine, manufacturing of
automobile, and air traffic, sports, not to mention wars and revolutions, cause death of innocent
bystanders. Nevertheless, advantages outweigh the disadvantages; human activities including the
penal system with all its punishments are morally justified. 18
Wesley Lowe states, "As for the penal system, accidentally executing an innocent person, I must
point out that in this imperfect world, citizens are required to take certain risks in exchange for
safety." He says we risk dying in an accident when we drive a car, and it is acceptable.
Therefore. risking that someone might be wrongfully executed is wotih saving thousand's of
innocent people who may be the next victim of murder.
Death Penalty- Right to Live
Orients say the State is like a murder himself. The argument here is, if execution is murder,
Killing someone in war is murder. Our country should stop fighting wars. On the contrary.
necessary to protect the rights of a group of people? Hence, the death penalty is vital to protect a
person's right to live! Is arresting someone same as kidnapping someone? In the same, executing
someone is not murder; it is punishment by society for a deserving criminal.
Bible quotes. Hugo Adams Bedau (1982) states one popular objection to Capital punishment is
that it gratifies the desire for revenge regarding as unworthy. The bible quotes the Lord declaring
18
Hugo Bedau,Social Justice, (1982) p.323
13
"Vengeance is mine" 19 . He thus legitimized vengeance and reserved it to Himself. However. the
20
Bible also enjoins. "The murderer shall surely be put to death" recognizing that the death
penalty can be warranted whatever the motive. Religious tradition cet1ainly suggests no less
(p.330).
Justice requires punishing the guilty even if only some can be punished and sparing the innocent,
even if all are not spared. Morally, justice must always be preferred to equality. Justice cannot
ever permit sparing some guilty person, or punishing some innocent ones, for the sake of
equality because others have been spared or punished. In practice, penalties could never be
applied if we insisted that they can be inflicted on only a guilty person unless we are able to
make sure that they are equally applied to all other guilty persons. Anyone familiar with the law
enforcement knows that punishments can be inflicted only on an unavoidable "shudder" selection
of the guilty .A famous writer said, I quote ", when you kill a man with premeditation, you do
something different than stealing from him". And he fm1her said "I favor the death penalty as a
matter of justice and human dignity even apm1 from deterrence. The penalty must be appropriate
to the seriousness of the crime 21
Life is Sacred
In an interview with Professor van den Haag, a psychoanalyst and adjunct professor at New York
University, was questioned, "Why do you favor the death penalty?" His answer was that "the
Federal prison had a man sentenced to Life who, since he has been in prison committed three
more murders on three separate occasions .They were prison guards and inmates. There's no
more punishment he can receive, therefore, in many cases, the death penalty is the only penalty
that can deter". He went on saying "I hold life sacred, and because I hold it sacred, I feel that
anyone who takes some one's life should know that thereby he forsakes his own and does not just
suffer an inconvenience about being put into prison for sometime 22
19
Romans 12:19
20
numbers 35:16-18
21
Isenberg, The Death Penalty, New York, H.Wilson co {1977) p.135
22
As cited in Isenberg, The Death Penalty, New York, H.Wilson co.{1977) p.135
14
An Eye for an Eye
Some people argue that the capital punishment tends to brutalize and disregards society. Do you
agree? Some people say that penalty is a legalized murder because it is like "an eye for an eye"
The difference between ptmishment and the crime is that one is legalized and the other is not!
People are more brutalized by what they see on T.V. daily. People are not brutalized by
punishments they are brutalized by our failure to serious punish, the brutal acts. Could the same
effect be achieved by putting the criminal in prison for life? "Life in prison" means in six months
the parole board can release the man to 12 years in some states. "But even if it were real life
imprisonment, its deterrent effect will never be as great as that of the death penalty. The death
penalty is the only actually iJTevocable penalty. Because of that, it is the one that people fear the
most. 2'o
3.3 DEATH PENALTY IS AN UNJUSTIFIED RETRIBUTION

Justice often insisted, it required the death penalty as the only suitable retribution for heinous
crimes. This action does not bear scrutiny, however, by its nature, all punishment is retributive.
Therefore, whatever legitimacy is to be found in punishment as just retribution can. in the
principle be satisfied even without recourse to executions.
Moreover, the death penalty could be defended on narrowly retributive grounds only for the
crime of murder. and not for any of the many others to this mode of punishment for example
(rape, kidnapping, espionage, treason, drug trafficking etc.). Few defenders of the death penalty
are willing to confine themselves consistently to the narrow scope afforded by retribution. In any
case, execution is more than a punishment exercised in retribution for the taking of a life.
As Nobel Laureate Albert Camus wrote,
For there's to justice, the death penalty would have to punish a criminal who, from that moment
on words had confined him at his mercy for months. Such a monster is not encountered in private
life24
23
Irwin lsenberg(i977)supra
24
Ibid p67
15
It is also often urged that death is what murderers deserve, and that those who oppose death
penalty violate the fundamental principle that criminals should be punished according to their
wrongful acts. This results into the rule that making the punishment fit for the crime.
Meaning that punishments are unjust unless the> are like the crime itself and therefore making
the principle unacceptable. This would require that the rapists be raped, the torturers' be tortured
and those that inflict on others horrible and degrading punishments for the offences committed.
This would mean that we betray again in that the punishments that are of course impossible to
inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is
arbitrary to invoke it as a requirement of justice in the punishment of murder If however the
principle of just deserts means that the security of punishments must be proportional to the
gravity of the crime and since murder is the gravest crime, it deserves the severest punishment
then the principle is no doubt sound. This does not compel support for death penalty. What it
does require is that other crimes punished with terms of imprisonment or other depravations less
severe than those used in the punishment of murder.
Criminals no doubt deserve to be punished, and the severity of the punishment should be
appropriate to their culpability and the harm they have caused to the innocent. But severity of
punishment has its limits imposed by both Justice and our Common human dignity.
Governments that respect these limits do not use premeditated, violent homicide as an instrument
of social policy.
Some people who support execution feel their minds cannot rest until the murderer rs also
executed. But this sentiment is by not universal. Coretta Scott King has observed,
As one whose husband and mother-in-law had died as victims of murder and assassination, one
stands firmly and unequivocally opposed to the death penalty for those convicted of capital
offenses. An evil is not redeemed by an evil deed of retaliation. Justice is never advanced in the
asking a human life. Morally is never upheld by a legalized murder. 15
25
Albert Camus, "Reflections on the Guillotine", in Resistance, Rebellion and Death (1960)
16
"I was seven years old when my father was murdered. It is impossible to describe the pain of
losing a parent. I remember the time the criminal who happened to murder my father was visited
by the police to cany out the atTest but to my surprise they were paid off. What would be my
reaction in such a situation? But I asked God to give me the grace to forgive, why? Now that I
am grown and understand and have gone tln·ough the hands of a single parent I now realize that I
wouldn't want the children to go through the same i.e. another set of parents, children, brothers
and sisters tln·own into grief. "26
Across the country, many who have survived the murder of a loved one have joined murder
victim families for reconciliation, in the efforts to replace anger and the hate joined towards the
criminal with a restorative approach to both the offender and the bereaved survivors.
The theory holds that criminals should pay for their sins. Proponents argue that justice requires
that a man or woman should suffer because of and also in proportion to his or her moral wrong. 27
These classic moral arguments in favor of the death penalty have been biblical and retributive.
"You have heard that it was said, eye for eye, tooth for tooth, I tell you not to stand up against an
evil person, but whoever slaps you, on the right cheek, turn the other also to him" (Matthew.
5:38-39)
These statements say no to violence. "But as this is no way to predict reliability what convicted .
murderers will try to kill again, the only way to prevent all such recidivism is to execute every
convicted murderer -a policy no one seriously advocates equally effective without the possibility
of parole," 28 lamented an advocate for the death sentence.
In the case of the Oklahoma bomber, Timothy Mac Veigh did not act as a justified retribution to
all the 168 families, by killing him. This could not actually give contentment to the above
families, in any case they would be adding more killings and increase of the loss of life to 169.
The position is the same in the 'Karamoja saga'.
26
Personal experience of the Researcher
27
Amnesty international p6
28
May the state kill, supra
17
3.4 CAPITAL PUNISHMENT IS NOT A DETERRENT
Deterrence is a function not only of a punishment's severity, but also of its certainty and
frequency. The argument most often cited in support of capital punishment is that the threat of
execution influences criminal behavior more effectively than imprisonment does. As plausible as
this claim may sound in actuality the death penalty fails as a deterrent for several reasons. 29
Death penalty in the United States, the intemational commission of the jurists reinforced this
point. Despite the efforts made over the past two decades since Greg to protect the administration
of the death penalty from abuses, the actual "constitutional errors committed in state courts have
gravely undermined the legitimacy of the death penalty as a punishment for the crime." 30
The theory consists in the thinking that the death penalty removes 'dangerous' persons to create a
safer society. The argument here is that the penalty ensures that the dangerous criminal never
commits the crime. 31 Worse still the death penalty would be deteJTent if everything would be put
I in light and we would watch the execution if we are to avoid more of the Karamoja saga.
However Mr. Mended( said "the execution in Uganda which is carried out in secrecy cannot I
have any deterrent effect as people never know the pain involved. "32
Testimonies that show that the capital punishment is not deterrent: this can be seen in the quote
below: "the argument most frequently used for the death penalty is deterrence. It is necessary to
Kill an offender to dissuade other people from committing the same kind of crime. Empirical
evidence however does not support the argument moreover it is a questionable assumption." 33 It
is incorrect to assume that all or most of those that commit such serious crimes as murder do so
after critically calculating the consequences. Murders are most often committed in moments of
passion when an extreme emotion overcomes reason. They may also be committed under the
influence of alcohol or drugs, or in moments of panic, for example when the perpetrator is caught
in the act of stealing or killing. Some people who commit violent crimes are highly insatiable or
mentally ill. In none of these cases can fear of the death penalty be expected to deter.
29
Hugo Adam Bedau, Case against Death penalty.
30
US Department of justice, "Capital punishment", annually October 1990
31
. Amnesty international p. 10
32
Mr Meudesh, advisor to the commissioner of Uganda Prisoners, interviewed by FGRT the defender, report 1998
33
May the state kills' piO, 11: Death penalty in America, 3rd Edition.
18
Japanese prison psychiatrist studies 145 convicted murderers between 1955 and 1957. He could
find none who remembered thinking they might be sentenced to death before committing the
crime34 . These show that there is need to abolish the death penalty and look for another
punishment like life imprisonment. Actual experience thus establishes beyond a reasonable doubt
that the death penalty does not deter murder. No comparable body of evidence available
contradicts that conclusion.
Using methods pioneered by Economists, three investigators concluded that capital punishment
does deter murderers. Subsequently, however, several qualified investigators independently
examined these claims and all rejected them. 35 In its thorough report on the effects of criminal
sanctions on crime rates, the National Academy of Science concluded:
"It seems unthinkable to us to base decisions on the use of the death penalty on such fragile and
plausible explanation for these findings. Other than the theory that capital punishment deters
murder" 36
Further more, there is a clinically documented case in which the death penalty actually incited
the capital crimes it was supposed to deter. These include instances of the so called suicide-by-
execution syndrome - persons who wanted to die but feared taking their own lives, and
committed murder so that the state would kill them. 37
Although inflicting the death penalty guarantees that the condemned person will commit no
Fmiher crimes, it does not have a demonstrable detenent effect on other individuals on
further 38 crimes of violence. Researchers examined the prison and post-release records of 533
prisoners on death row in 1972 which sentences were reduced to incarceration for life by the
supreme comis ruling in Forman. This research showed that seven had committed another
murder, But the same study showed that in four other cases, an innocent man had been sentenced
to death. 39
34
Ibid p.22-24
,
35
Iempert. In Crime & Delinquency, Challenging Capital Punishment
"Blumstein, Cohen and Nagin edition.
37
West Solomon, parole and Pierce, Eds, capital punishment in the United States.
38
Bedau, Rechvidsun, Parole and Deterrence 3rd Edition
39
Marguart and Sorensa, in Loyola of Los Angeles Law review 1989
19
Recidivism among murderers does occasionally happen, but it occurs less frequently than most
people believe; the media rarely distinguish between a convicted offender who murders while on
parole, and a Parole murderer who murders again. Government data to Justice P. Chaska! son;
"Punishment must to some extent be commensurate with the offence, but there is no requirement
that it be equivalent or identical to it. The state does not put out the eyes of a person who has
blinded another in vicious as cult, nor does it punish a rapist, by castrating him and submitting
him to the humiliate in goal. The state does not have to engage in the cold and calculate killing of
murderers in the express moral outrage at their conduct. A vety long prison sentence is also a
way of expressing outrage and visiting retribution upon the criminal." 40
Death penalty does not act as a retributive measure, it is not necessary that one should die in
order to pay for his or her sins even without death a convict can still pay for their acts.
"There is no convincing argument that society cannot find other ways other than killing to
express its condemnation of crime. Indeed, the publicity surrounding an execution may direct
from the crime to the person who committed it, far, from being condemned for his or her deeds,
the criminal my actually become a focus of sympath/ 1
However punishment must not violate any human rights and should tend more to their education
of the criminal than to his harassment and humiliation. The extent of the punishment must be
carefully evaluated and decided upon and ought not to go the extreme of executing the offender
except in cases of absolute necessity. In other words when it would not be possible other wise to
defend society. To day, however, as a result of steady improvements in the organization of the
penal system, such cases are very rare, if not practically non-existent.
"Abolishing the death penalty shows me a society that cares about human life, shows that we
have reverence for human life" 42
Retribution is deemed to be a revenge and yet the purpose of the punishment is to rehabilitate.
killing of a criminal would lead to more loss of life. loss of material for rehabilitation and
reformation.
40
Makwanyane's case, supra.
41
Amnesty international supra
42
Arch bishop desmond Tutu South Africa 1997
20
"Two murders cannot make the act right, in other words, killing one for another killing does not
make that right because you would have lost twice" 43
Killing one who has killed leads to revenge not a punishment.
"When a society allows the desire for revenge to become a premeditated violent homicide as an
institution of Social Policy, that society sinks to the level of its most detestable crimes44 . By
killing Timothy Mac Veigh did not act as a deterrent at all because the execution was done in a
closed place and many would not be able to see what really happened, so killing him was not
deferent at all.
3.5 DEATH PENALTY AS A VIOLATION OF THE PROHIBITION AGAINST

TORTURE, CRUEL, DEGRADING AND INHUMAN OF PUNISHMENT
In Uganda, Art 24 of the 1995 Constitution,
NO person shall be subjected to any form of torture, cruel, inhuman, or degrading treatment or
punishment".
This provision is an unequivocal as it is unqualified; in fact it is fortified by Article 44 of the

Constitution that provides that, "Notwithstanding anything in this constitution, there shall be no
derogation from the enjoyment of the following rights and freedom:
Freedom from torture, cruel, inhuman, or degrading treatment or punishment and the right to a
Fair hearing.
As seen above, to be on a death row for years is torture and cruel, the execution itself is a second
t01iure, cruelty, often inhumane, degrading. Consequently, article 22 of the Uganda Constitution
is inconsistent with article 24 thereof. It is my considered view that because the death penalty
under miicle 22 not only offends the inherent right to life but also amounts to torture and a cruel
degrading punishment. It is thus unconstitutional and should be pronounced as such by the
Ugandan Courts. By declaring the death penalty as a cruel punishment. the Ugandan Courts
would be following in the footsteps of other comis that have addressed this point. The death
43
1nterview with excutive director, H. Sciongu of FHRI 5/03 2001
44
The defender "Journal of FHRI", January- June 1998 p25
21
penalty is not just about taking life, it is also about a process that entails the deliberate abuse of a
condemned prisoner's right to humanity and dignity especially when in the prison cells before the
actual act, in particular the right to be free from cruelty, inhuman or degrading treatment. Killing
constitutes the ultimate denial of humanity and dignity of a condemned prisoner.
"The death penalty is inhuman because it involves by its very nature, a denial of the executed
person humanity, and it is degrading because it strips the convicted person of all dignity and
treats him or her as an object to be eliminated by the state" 45 . The former president of Malawi
said I quote: "Think that we have to consider the death penalty more carefully but not personally,
I believe it deprives people of their own dignity and their right to life 46
The condemned prisoners are treated as objects awaiting disposal, they are the victim of worst I
custodial abuses and are the least concem on securely issues. They are kept in solitary, and in
me countries they are locked up naked and permitted only very short daily recess from their
cells. Under the prison regulations, of 1976, in Somalia, condemned prisoners were kept
permanently chained by the hands and legs.
Prison accounts of the hires of condemned prisoners are narrowing. They hire each day in forbid
fear. I quote "one rehearses his death in the death house, dying a little everyday, dying a little
mote every night" 47 Many prisoners endure death row for a very long period, sometimes for
decades while some develop severe psychiatric problems, others shorten the agony by
committing suicide. I quote "many people could not cope with all this and become mentally
48
disturbed" for example In Tanzania a condemned prisoner asked, if my own country and
people cannot do justice to me I pray to be hanged now, I just cannot see why I should be
subjected to this life for a long time. I am tired of slow death". The prisoner said he is prepared
to hang without involving the appeal court.
The typical death row inmate spends nine years in a 6 by 9 foot isolated cell, with little chance
for exercise, visitors, or contact with other human being. From day to day, he does not know
45
makwanyane's case, supra.
"The Former President Of Malawi, H.E. Bakili Muluzi
47
48
22
when his death sentence will be carried out. Such physical and psychological mistreatment has
been likened to torture. "49
In the case of J ens Soering, a German national who committed murder in Virginia and then fled
to England, the European Court, which was consideJing his extradition appeal, held that his
extradition to the D.S. would be a breach of Act 3 of the European convention on human rights
forbidding inhuman and degrading treatment. Despite the fact that some of the delay on death
row might be due to the defendant's own appeals, such treatment was deemed unacceptable.
Death penalty has no place in the general Penal System of advanced, civilized society. What
more degrading or afflictive punishment can be imagined than to deprive a person of his life?".
Asked Bill Clinton, the fmmer U.S. President when commenting on the intended execution of
Lawai, the Nigerian "adulterous" woman.
In Singapore in the case of Jabor V public prosecutor" 5° interesting questions arose in relation to
the right to life and prolonged delay in the execution of the death sentence. It was argued based
on the privy council decision in Draft v A.G .for Jamaica. 5 1 Singapore Count of Appeal, which
is the highest court in the land, ruled that; delay amounted to cruel, inhuman treatment.
3.6 DEATH PENALTY IS A BARBARIC PRACTICE
Prisoners are executed in Uganda through hanging, which is the most common. 52
In the United States. for example. in 1983. the electrocution of John Eucus in Alabama was
described by an eye witness as follows:
"At 8:30p.m.• the first jolt of 1900 volts of electricity passed through Mr. Evan's body. It lasted
for thi1iy seconds. Sparks and flames erupted from the electrode tied to Mr Evans left leg. His
body slammed against the straps holding him in the electric chair and his fist clenched
pe1manently. The electrode apparently burst from the strap holding it in place. A large puff of I
49
so
51
1994 2A.C.I
52
APollo Makubuya, Critical inquiry: Constitutionalism of the Death Penalty in Uganda.
23
graying smoke and sparks poured out from under the hood that covered Mr. Evan's face. An over
powering stench of burnt flesh and clothing began perverting the witness room. Two doctors
examined Mr. Evans and declared that he was not dead and the process was later return "
Most people observing an execution are hoJTified and disgusted.
I was ashamed", writes Sociologist Richard Moran, who witnessed an execution in Texas in
public who had trespassed on (the condemned man's) private moment of anguish. In my face, he
I could see the horror of his own death. 53
Revulsion at the duty to supervise and witness execution is one reason why so many prison
wardens -however unsentimental they are about crime and criminals -are opponents of capital
punishment. Don Cabana, who supervised several executions in Missouri and Mississippi,
reflects on his mood, just prior to witnessing an execution in the gas chamber:
"If the condemned prisoner was some awful monster deemed wo1thy of extermination, why did I
feel so bad about it? I wondered, it had been said that men on death row are inhumane cold-
blooded killers. But as I stood and watched a grieving mother tear her son to the last time, I
questioned how the sordid business of executions was supposed to be the great equalizer. The
last mile seemed an eternity, every step a painful reminder of what waited at the end of walk.
Where as the cold-blooded murder, to the last-night-cell? I had looked for that man before and i
still had not found him i saw, in my grasp, only a frightened child. (Minutes after the execution
and before), heading for the conference room and awaiting press corps, I shook my head. I quote
"no more, I do not want to do this anymore" 54
For some individuals, however, execution seems to appeal to strange, abler rant impulses that
provide an out let for Sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York
wrote of the many requests he receives to watch electrocutions, and hold that when the job of a
prisoner became vacant. "I received more than seven hundred applications for the position" 55 If
we delight in brutality, pain, violence and the death will always be with us but surely we must
conclude that it is the best for the law not to encourage such impulses. When the government
53
Losangeles times, 24 march 1985 p.S
54
Cababcy Death at midnight: the confession of an executioner (1996) pl77
55
Hugo Adam Bedau a case against death penalty (1982)
24
sanctions, commands and ceremoniously carry out the execution of a prisoner, it lends support to
this destructive side of human nature 5 6
More than two centuries ago, the Italian Furist Cesare Beccaria, in his highly influential treaties
on crimes and punishment (1964) asserted: I quote "the death penalty cannot be useful because
of the example of barbarity it gives men. "
Beccari's words still ring tme- that even if death penalty were a "useful" deterrent, it would still
be an " example of barbarity". No society can safely entrust enforcement of its laws to tmiure
brutality, of killing. Such methods are therefore inherently cruel and will always mock the
attempt of cloak them in justice. As the Supreme Comi Justice Arthur J.Coldberg wrote "the
deliberate institutionalized taking of human life by the state is the greatest conceivable
degradation to the dignity of the human personality.
3.7 THE DEATH SENTENCE IS IRREVERSIBLE

Unlike all other criminal punishments, the death penalty is irreversible. Speaking to the French
Chamber of Deputies in 1830, years after having witnessed the exercise of the French
Revolution, the Marglus De Lafayette said, I quote "I shall ask for the abolition of the
57
punishment of death till I have the infallibility of human judgment to me. Some proponents of
capital punishment would argue that its merits are worth the occasional execution of innocent
people. Most people would hasten to insist that there is little likelihood of the innocent being
executed, however, a large body of evidence from 1980's and I 990's show that innocent people
are often convicted of crimes including capital crimes and that some have been executed.
In I 985, in Maryland, Kirk B 1OOdsworth was sentenced to death for rape and murder, despite
the testimony of a witness. In 1986 his conviction was reversed on grounds of withheld evidence
pointing to another suspect. He was retried, reconvicted, and sentenced to life in prison in 1993,
newly available DNA evidence proved he was not the rapist killer, he was released after the L,
prosecution case dismissed the case, a year later, and he was awarded $300,000 for wrongful
punishment.
56
The Boston Globe, August 16, 1976 pl7
57
lucas Receivil Des Debates (1831) pt 11 p.32.
25
In Mississippi, in 1990, Sabrina Butter was sentenced to death for killing her baby boy. She
claimed the child had died after attempts at resuscitation failed. On technical grounds, the
conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated
Butler's explanation of the child's cause of death and the physician who performed the autopsy
admitted his work had not been thoroughly made.
3.8 DEATH PENALTY IS AN INSTRUMENT OF POLITICAL REPRESSION

In many African countries, fair trial procedures either do not exist or are not observed.
Confessions made under torture are freely used without investigation. Rights of appeal are
denied inadequately trained judges and judicial officials are appointed, judges and jurors are -
'Proper, influenced by the political authorities, many other shortcomings often characterize
tribunals exercising jurisdiction to impose the death penalty. By using judicial procedures that
fail to meet internationally accepted fair trial standards. Some countries attempt to legitimize
their elimination or repression of political opponents.
In Uganda, while the penal code, cap 120, can claim its foundation under A1iicle 22 (1) of the
1995 Uganda Constitution, the military criminal regime death penalty cannot identify itself in
Article 22 (1) 58 This is because it does not confmm to the sentence being confirmed by the
highest appellate comi, yet executed as per the March 2002 Karamoja saga. And because it
bypasses the above Constitutional provision, one comes to know other conclusions other than
that it is UN constitutional, hence a bad tool of political repression. And this further conflict with
adage that justice hunied is justice buried.
Fmiher in Uganda, the political suppression can easily be achieved using the ugly military
criminal regime as is seen in everything being primitive and inconsistent with modern justice
system to wit-army officers arrest, investigate, prefer charges, prosecute, sit as judges and legal
representation is by army officers of a lower rank than that of the Chairman of the Comi martial
59
and not of the accused's choice. A case in point is that of the two soldiers in kotido 2002 march.
Further injury to justice is seen in that in Uganda army judges (Chairman of Court martial) need
not any legal training as it is evident that although the army officers who are Lawyers. but the
58
Of the 1995 Constitution of Uganda.
59
Lt Elly Tumwine
26
former Chairman of the Court martial 60 ,was a Fine artist graduate of Makerere University
without any legal training. Even the current court martial chaim1an 61 isn't experienced and
trained. And that all decisions made by the court mmiial are in favor of the president thus no
independence of the comi. Some cases can be the case of the late James kazini. As A. N.
Makubuya a lecturer in the Faculty of Law in Makerere University rightly opined, 'It leaves a lot
of room for injustice", hence cmmot meet the modern demands of justice credentials. And if
justice can be met, it remains an illusion in U ga11da.
In Kenya, former President61 Government brought capital criminal charges against political
opponents in places of detaining them under the widely criticized public security. In Regulations
under Kenya Law those charged with robbery with violence and attempted robberies wiili
violence were not entitled to legal aid.
Kioigi Wa Wamwerre, a prominent human rights activists and former member of pm·liament in
Kenya was arrested and charged with an offence of carrying the death penaitl2 • He had formed
the National Democratic and human rights Organization (NDE HURO) in 1993 and had been
investigating the political violence in the valley and other parts of Kenya during which more than
1,500 people were killed and 300,000 displaced since December 1991. Two days later the then
president Daniel Arap Moi accused the political opponents of being responsible for the ethnic
clashes. Same as it was in 2006 between the Kikuyu's and Luos. And these were the same people
claiming to be pursuing parochial political objectives through campaigns of mis-information,
distortion of facts and actual excitement.
Other critics of the Kenyan Government were charged with capital offences, including Josephine
Nyabaina Ngengi, who had been campaigning on behalf of political detainees, against whom
there was no substantial evidence. D.P. Ski Mwangi, who had been providing medical attention
to detained political prisoners and was to present a medical report on Kioigi Wa Wamwere and
others in court was also detained, charged with sedition and possession of explosives. The
charges were later dropped. In 1993, Libyan leader Colonel Mwammar Ali Gaddafi, said,
60
General Ivan Koreta
61
HE Daniel Arap Moi
52
On 2nd November 1993
27
"Anyone who drinks alcohol should be charged with being an agent of the enemy with whom we
ere in a state of confrontation. The sentence for that could be death because alcohol is obtained
from foreign Embassies of countries".
Why executions do not make sense" a caption in the news paper said, I quote : Treason should be
0
exempted fi:om the death penalty. In Africa with her record of dictatorial S yernments, what
63
constitutes treason can sometimes be a tough call " Many Ugandans express the idea that
64
treason should not carry a death penalty.
3.9 THE POOR AND THE DEFENCELESS ARE THE WORST VICTIMS OF THE
DEATH PENALTY.
This statement is understandable. Rich people can afford to hire not only the most famous
lawyers but also different companies of lawyers, which are able to win the case. Through
con-uption, rich people may also hire false testimonies mainly among weak and needy people.
Judges also may be compromised.
The execution of innocent persons had undoubtedly occurred due to unfair trials. It would seem
difficult for this to happen, yet it often happens and it has happened in Uganda. It is appalling to
read in Ugandan news paper about the corruption of some policemen, prosecutors, D.P.P, judges
and lawyers. This brings us to accept that in Uganda, innocent people have been executed. To
some former prisoners, who know from prison who is guilty and who is innocent suggests that at
least 50% of those condemned by the high comis are innocent. Retrials are rarer for several
reasons. The appeals to higher courts are often dismissed while few are accepted and the
prisoners are either released or have the sentence changed to life. imprisonment. There are also
some faults in the judicial system in Uganda that need to be revised to make retrials a possibility
and the final judgment of the Supreme Court. Retrials should not be possible only on
technicalities but also on convictions, testimonies and new research. For example from the
criminal appeal 65 • the sentence of the Supreme Court of Uganda in Mengo of July 2000. The case
of the appellant was dismissed by the Court of Appeal66. The defense counsel of the appellant
brought an imp01iant piece of evidence in favor of the appellant. K.D. The learned pnnciple state
63
F Musoke,Uganda Monitor, May 09 1999 p.10
64
According to the research I made and different interactions with some citizens.
"No 19 of 1999
28
Attorney objected to this on the grounds that it was not raised and argued in the Court of Appeal
66
and the case was dismissed.
statistics in the USA show the result of a wide research by "New York Times" has revealed that
0
ne out of seven people sentenced to death were innocent though some of them were later 'eared
by the higher courts. Since 1976, 586 have been killed and 82 were somehow saved from
execution. But everybody knows that in the USA, criminality is growing mainly among the
young people. For example so many school killings are on the increase, two young men killed 13
schoolmates, wounded others and then killed themselves. Similar cases have been happening.
The Newspaper indicates reason:
Only in two states is the collection of new proofs not tenninated after the proclamation of death
sentence. In the other 35 states only after a few weeks, do new documentary has legal values in
court. For instance in the state Of Virginia, only 4 days are given for the production of new
proofs. And after 21 days one can legally die in spite of new proof of his or her innocence. The
other reasons are the indifference of the people in the offices of the coU!i of laws or of the police
investigating different circumstances of the crime with the newly graduated "plea bargain" which
"is common that is the practice of a rich person to bargain or the relatives of the condemned
person to bargain through payments and production of false testimonies.
In this eventually and through false testimonies, innocent people are condemned and hanged for
the crimes of the rich people.
A recent publication from professors of Columbia and New York Universities confirmed the
analysis of "New York Times" the title referring to the USA criminal judicial system says "A
broken system".
They found many errors in the judgments of courts. The authors say this because examining
capital cases (4578) which took place from 1973 reveal a system in which lives and public order
are at stake, yet for decades has made more mistaking than we would tolerate in far less
impo1iant activities. They reveal a system that is wasteful and broken and needs to be addressed.
The central findings are as follows:
66
10 of 1998
29
Nationally, during 23 years study period the overall rate of prejudicial error in the American
Capital Punishment. System was 68% in other worlds, courts found serious in-eversible errors in
nearly 7 of every I 0 of the thousands of capital sentence that were fully reviewed during the
period.
Capital trials produce so many mistakes that it takes three judicial inspections to catch them
leaving rare doubt whether we do catch them ail. 67
After state courts threw out 4 7% of the death sentence due to serious flaws a later federal review
found " serious error which was undem1ining the reliability of the outcome in 40% of the
remaining sentences because state courts come first and see all the cases they do most of the
work of conecting enormous death sentences thrown out due to serious enor,90% were
overtumed by state judges many of whom were the judges who imposed the death sentence in
the first place nearly all of whom were directly beholden to the electorate and ove1turn death
sentences except for eve1y good reason. This does not mean that federal review is unnecessary
precisely because of the huge amounts of serious capital trial enor that state appellate judges are
upon to catch. It is not surprising that a substantial number of the capital judgments they let
through to the federal states are still seriously flaws.
To change these serious errors is very important. The most common errors prompting majority of
reversals at the state post conviction state are:
I. Egregiously incompetent defense lawyers who did not even look for demonstrably
missed evidence and could not effectively defend their clients.
2. Police or prosecution who did discover that the kind of evidence was insufficient but
suppressed it again keeping it from jury.
3. Getting much error takes time a National average of a years from date of death sentence
to the last inspection and execution. By the end of the study period, that average had risen
to I 0-6 years in most cases, death row inmates take years for the lengthy review
procedures needed to uncover all this error, and the time needed to un cover it, impose
fumble costs on victim's employers, families, the judicial system and the wrongly
67
Rev Fr. Tago Agostoni,May the state kill, Pauline publications(2000)
30
condemned. And it renders unattainable the finality, retribution and deteiTence that are
the reasons usually given for having a death t penalty.
The fear that the abolition of death penalty may encourage "mob justice" is unfounded. In many
countries, there's both death penalty and frequent execution by an excited "mob" the mob may
even kill a thief of a chicken or of food like those two school girls who killed a boy who stole the
casava for their lunch. In Uganda if its not for the intervention of the police and law w cement
agents it's the norm in Uganda especially when it comes to theft and other crimes they leave no
their or criminal because they have lost trust in the law of their country.
What is necessary is to create culture of life through the abolition of death penalty. In this case,
men of the state will give a lesson that to kill is forbidden and against human rights. In general,
in cases of a murder by "mob justice", the preoperative are not brought to justice because it is
difficult to identify the culprits, the fact may encourage "mob justice" or better still "mob crime".
It was appalling and amusing that a woman Member of Parliament allegedly encouraged mob
justice68 in the local news paper. This is hard to believe but true and one would wonder.
If there's any Parliament for her in the jungle, Members of Parliament should have passed a vote
of censure for a legislator who encouraged the mob to take the law into their own hands -
moreover, the law exists. We can confidently say that the abolition of death penalty has the
advantage to give an important and decisive contribution to the creation of a culture of life. This
right of life which is a basis for the respect
3.10 THE CHANGE OF HEART OF A PRISONER

.,The changing of the heart of a prisoner is another important advantage of the abolition of death
-Penalty. It is a fact that many prisoners even "criminals" may change their hemi and vision of if
life. Through a program of re-education mainly given by visiting religious persons, some
prisoners are not only seriously repentant but have already changed their private and social
feiavior. Also they are determined to continue their good behavior once they are released. The
ftime belongs to their past and not to their future. The execution that takes place a few years after
the final death sentence may destroy the life of a person who is no more the same.
68
Professor Emeritus, Rwawi Bhari, The New Vision, October 1999
31
"... The impmiant point is that every person can improve himself and should he given the
opportunity to do so. However serious his mistakes have been, the reason for this is that deep
down inside each human being there exist the potentially of development towards the highest
good. A death penalty would totally destroy that potentially, such punishment is not a correction,
It can only be an act of revenge" 69
Somebody said. Murder is man plus murder. Real justice is done when the judge punishes the
Murderer and restores the mind.
This is also in line with the Bible that is tilled with the policy of the Almighty God. He wants the
conversion of the sinners and not death. Jesus came on emih not to judge the world but to save it.
To substantiate the above arguments, the testimonies from upper prison, Luzira Ugandan,
condemned Section show that there is really change of heart and therefore no need to kill them.
The abolition of death penalty may open the eyes of citizens to the cause of criminality. 70 This
simply implies that parliaments, governments, judiciaries in favor of death penalty think that
keeping such punishments have done their duty to combat crime. This brings an illusion that may
be the state thinks that death penalty is the easiest way to solve the problem of the increase of
criminality. Facts and inquiries show that such presumption isn't backed by factors. The fact is
that some people are born criminals whereas others are influenced by some unavoidable
circumstances such as poverty, insanity which the state may have failed to address. For example
today in Uganda and some other parts of the world most of the criminals are graduates due to the
frustration of unemployment.
Young people have to learn their own decision after dialogue with parents who may guide,
enlighten them and share with them their own experiences. It is true that the days of doing a
thing "because" it has always been done like this" are long past. Anyone will obey more quickly
and get better if he does so intelligently and if he knows and understands why the order is given.
A B.B.C Journalist. speaking on certain heinous crimes committed by the male youth in USA
gave Some comments, among them he asked, "Is it possible that today the youth cannot control
themselves? Are they not used to self-control?
69
former Justice V.R. Krishyey, supreme court of India.
70
'May the State kill, p.lO, ll(supra)
32
The system of family education reconunended by Dr. B. Spock may become one of the causes of
such increase in criminality. Children grow up spoon-fed. Many parents agree to all their
requests. They do not train them to control themselves and to refrain from satisfying all their
wishes. So, if the urge for doing something is strong, they do it without thinking of the
consequences.
A living example is a tragedy that happened last years in USA, a young man went to school with
a pistol and the teacher sent him out of school. His parents too, reproached him. The next day, he
took the pistol and killed his father, mother and then went to school and killed 13 of his
classmates, he shot at the teacher and wounded others. Some of the classmates stopped him only
when the bullets are over and he wanted to recharge the pistol.
In the sixties, famous psychologist 71 wrote several books on the education of children proposing
to parents to let children do whatever they felt like doing without restraint. The abolition of the
law of death penalty is one vital factor to sensitize citizens against violence and "mob justice."
72
And this calls for the state to be exemplary. A meeting was held in Italy and countries like
USA, Great Britain, Germany, France, and Brazil. In this meeting president Clinton showed
pride because at that time USA was economically sounding and very wealthy and he requested
that the European community follow its mode this was challenged by the then prime minister of
France Mr. Lionel Jospin saying that USA still applies death penalty as he bluntly told Clinton:
"A Sleckye hammer welding man stands ale1t just in case a convict comes down alive into an
underground compartment." 73 To repay brntality with brutality in my opinion doesn't serve any
useful purpose." 74
It is shocking to hear from state representatives that capital punishment is not cruel; it is in both
ways cruel, physically and psychologically and at times imposed on innocent people especially
on opposition politicians.
"Even with the modem methods guards have sometimes had to finish the hanging by pulling
down the legs of the suspended prisoner. Although unconscious may have intervened before, the
71
Dr. Benjamin Spack (USA)
72
On 29'h November 1999
73
May the state kill p.l2(supra)
74
As reported in new vision may 13th 1999
33
prisoner's body may jerk in spasms and the heart may continue beating for some minutes. Once
the law is abolished, it has been scientifically proven that the sensitization of people against
violence is much easier. According to some inquiries scientifically done, the best way to
sensitize people is to explain the law abolishing death penalty and why it has to be abolished.
The law in fact has a deep psychological influence on the consciences of people and shapes
them. In some countries for instance, after abortion was legalized, the number of abortions as a
whole increased and the clandestine abortions did substantially decrease. It is alleged in England,
abortion has become so easy that during the mid day break, women could take 15 minutes to go
to a clinic and abort an example of the psychological influence of permissive law. The number of
abortions increased sharply.
The Following examples from the federal Republic of Germany may show the psychological
effect of death penalty was, passed by parliament against the majority opinion and public support
for death penalty declined steadily since the abolition, apart from temporary increased in support
of it following politically motivated killings.
"The death penalty must disappear in all truly democratic countries we should be unchangeable
so that without fear and with trimness. we can decisively table the problem, of human rights on
the table of your negotiations with developing countries. It is only when we are unchanged in the
firm and strict defense and upholding of human rights that we can exhort developing countries to
abide by them. The death penalty is against human rights, so it should be abolished; A famous
Russian counter shared the opinion of Mr. L. Jospin;
"I regard the death penalty as a savage and immoral institution which undermines the moral and
legal foundation of a society. A state, in the person of its functions, who like all people are
inclined to making superficial conclusions, who like all people are subject to influences,
connections, prejudices and egocentric motivation for their behavior, takes upon itself the right
to the most tenible and irreversible act the deprivation of life. Such a state cannot expect an
"improvement of the moral atmosphere in its country. I reject the notion that the death penalty
has any essential deterrent effect on potential offenders. I am convinced that the contrary is true
fl1at savagery begets on! y savagery. 7''
75
May the state kills p/S(supra)
34
Executioners should tell us the instinctive resistance of some victims when taken to the killing
Machine. The resistance is not only psychological, but also physical in fact.
3.11 CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

It is sometimes suggested that abolishing capital punislunents unfair to the tax -payer, on the
assumption that life imprisonment is more expensive than execution. If one takes into account all
the relevant costs, however, just the reverse is true.
The death penalty is not now, nor has it ever been, a more economical alternative to life
imprisonment. A murder trial nom1ally takes much longer when the litigation costs including the
time of judges, prosecutor, public defenders and court reports, and the high costs of briefs - are
mostly borne by the tax payer. The cost of capital trial alone would more ilian double the cost of
a life term in prison.
Fmiher, the cost of life is immeasurable, hence the argument that keeping a prisoner on life
Imprisonment is not sustainable. The impmiance of life explains how a sitting President, Vice
President, and his Ministers plus daughters and daughters-in-law can cost the State like Uganda
so much dollars or pounds for treatment abroad.
35
CHAPTER FOUR
DEATH PENALTY IN LIGHT OF RIGHT TO LIFE UNDER ARTICLE 22(1) OF THE

CONSTITUTION
4.1 INTRODUCTION
This piece of work requires me to analyze the theoretical foundation of death penalty and
examine the law and the constitutionality of the same in Uganda and stimulate public debate in
the subject and make recommendations for the way forward of capital punishment. Death penalty
is a controversial form of punishment throughout the world. While it has been condemned and
abolished in many states as a violation of the right to life, a considerable number of countries
including Uganda still retain it as a form of punishment. There has thus been a significant level
of discussion on the subject. In Uganda, the debate reached its peak during the constitutional
making process that ended in 1995 when the majority of the constituent Assembly delegates
voted to retain the penalty amidst strong opposition from different circles. 76 Under Uganda's
Constitution, one's life may be taken, in the execution sentence-passed in a fair trial by a court of
a competent jurisdiction in respect of a criminal offence and the sentence confirmed by the
highest appellate comt77 .
Several offenses, including murder, kidnap with intention to murder, armed robbery, rape and
defilement are punishable with death under Uganda's penal Laws. Despite the law in place
Uganda has been notorious for extra-judicial executions. In this vein, Amnesty International has
stated that, killings by soldiers of unarmed civilians and prisoners have happened every year
since the national Resistance Movement took power in 1986 in areas facing insurgencies. 78
Its also pertinent to note that, "In Uganda with a past military exercises, is therefore come as a
surprise the outcry the execution of two members of its armed forces, the Uganda People's
76
Makubuya A.NJhe East African Journal of Peace and Human Rights p.222 (2000) 6(2)
77
Article 22(1) of the 1995 Constitution of Uganda.
78
Dr. Onoria Henry, the East African Journal of Peace and Human Rights p.223 (2000) 6(2)
36
Defense Forces, where executed by firing squad for allegedly killing one Rev. Fr. Delan 0 Toole
and two other persons in Karamoja in North Eastern Uganda on2l st March, 2002. 79
In regard to the killing the Uganda Law Society the applicants in their consolidated
Constitutional Petitions no.81/2002 and No. 2/2002 were challenging the Constitutionality of
NRA statute No.3/1992 in so far as it provides for the passing of death sentences at all, or
without an appeal to the supreme court. In the majority view of judges, a field court martial is
one of the subordinate courts established by Parliament by Virtue if S. 77 (1) of the NRA statute.
It is therefore one of the comts of judicature and consequently it is a court of competent
jurisdiction as evidenced in Article 22(1) of the Constitution 80
Therefore the firing squad was constitutional. It suffices to note here that the various legal and
related issues obtaining to extra-judicial execution in Uganda lie outside the scope if this work.
4.2 THE GENESIS OF THE LAW OF DEATH PENALTY

The common denominator of the law in Uganda, practice and the philosophy of the law of
former colonies of England, Uganda inclusive, is the British legacy introduced and left in
Uganda per virtue of the 1902 reception clause. However, it would remain wrong if one the fact
that even before the coming of the Whites. Criminals were killed.
One of the earliest records containing evidence of death penalty as a sentence can be traced in
I-IUMURABI's Code 1722-1750 BC, which prescribed death for murder, which was revengeful
and retributive penalty, identifYing itself with the laws' of Biblical Moses of an "EYE FOR AN
81
EYE" Besides that bible which should not be placed nearer to killing, prescribed death penalty
Tor murder 82 and fornication 83
"For the Americans it was common for a wider range of crimes
including murder, arson, treason, burglary, rape, and theft. Unfortunately whether slave or free
the black Americans were threatened with death for a range of crimes that were punished less
84
severe! y when committed by the Whites"
79
East Africa journal Peace and Human rights p.87 (2003) 9 (1) (supra)
80
Uganda Law Society and An or VA.G Constitutional Application No. 7/2003 at p.1 and 14
81
Exodus 21:12 and Genesis 6:5
82
Ibid
83
Deuteronomy 22:13
84
The east African journal and Human rights (2000) 6p.225
37
As per R.SEDMAN. "criminal law of England developed simultaneously with the society and
penal punishment in five stages. 85 In the I ST stage the primitive stage in which criminals were
harshly punished, the commonest punishment for felonies was death. Most offences were of
personal nature like assault, murder and rape as many people hadn't amassed wealth.
The 2ND stage saw the emergence of the retributive theory that advocated punishment to fit or
equal to the crime. This coincided with the articulation of and human rights that emphasized
divine right and power, which no human being could not upset, and this took the world back to
HAMURABI's code. But what defeated its logic was, could a rapist be raped? Especially if it's
the original African setting? May be it would in America and Europe where the genesis of homo-
sex has been alleged to originate.
The retribution theory gave way to another concept of deterrence theory articulated in the 18 and
!91h century by rationalists like J.Betham. Its advocacy was based on the objective that criminal
law was to deter potential criminal by example. As SYDNEY SMITH opined" when a man was
proved to have committed a crime, its expedient that society should use that for the diminution of
crime, he belongs to them for that purpose. 86 The reason here is once you are a convict your life
dos not belong to you but to the public hence your body can be used as experimental material or ,
simply as an example. The above example encompassed prevention, popular opinion and will.
But is it good reason to sacrifice an individual for learning of the remaining community? This
would call for an inquiry.
The 41h and 51h stages came into place to qualify the retribution theory and in particular to cater
for criminals without capacity to be deterred like the insane and children who did not appreciate
the quality and consequences of their conduct. This meant that before one is punished the
prosecution or the state machinery must first prove that he/she offence with full appreciation of
the consequences or that such defense like intoxication, insanity or child of tender age are not
available hence the goal was to that reform or rehabilitate.
85
puree of criminal law of Africa, 1966
85
Editor Sydney Smith, Edinburgh Review 1830
38
4.3 THE CONSTITUTIONALITY OF DEATH PENALTY
The death penalty finds its legal basis on national legal regimes like the constitution, criminal
law which is govemed by a number of Acts such as Penal Code Act Trial on indictment Decree
and Act, Criminal Procedure Code and Court Martial Law under NRAstatuteNo.3/1992. The
right to life forms the bedrock of the concept of human rights and is universally acclaimed as an
inalienable and inherent right to all. In Uganda, the right to life is qualified to the extent that it
may be taken away 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 87 • In this context, Katuramu Vs
Uganda where the accused/appellant convicted and sentenced of murder by the High Court of
Uganda and on appeal the supreme court upheld the decision of the High Court88
Though the aforesaid decision complied with the constitutional provision the question still
remains whether the state has the right to take away the life of any citizen. In R- Vs- exparte
Bugdaycal 9 challenging the Constitutionality of death Penalty held, capital punishment imposed
a limitation on the essential content of fundamental right to life and human dignity, eliminating
them irretrievably. As such it was unconstitutional. In confirming Lord Bridge statement
Chaskalson l.has stated that, "the right to life and dignity are essential content of all rights .. take
them away and all other rights cease". Similarly in State Vs Makwanyane & Anor90 . In this ?S.
African constitutional case Court found that the right to life is one antecedent to all the other
rights in the constitution without life in the sense of existence it would not be possible to exercise
rights to be the bearer of them.
It should be noted that the right to life was included in the constitution not simply to enshrine the
right to existence. It's not life as an organic matter but the constitution Cherishes. but the right to
human life, to live as a human being; to be a part of a broader community, to share in the
experience of human life. That is to say in the center of our constitutional values. The
constitution seeks to establish in society where the individual value of each member of the
community is recognized and treasured. The right to life is central to such society.
87
Article 22 (1) of the 1995 Uganda Constitution
88
katuramu and ors V Uganda (un reported)
89
(1987) AC 514 @ p.531
90
(1995)1 LRC 269
39
The jurisprudence in the Makwanyane and the British cases provide for the basis to challenge the
constitutionality of the death penalty. The opinion that the death penalty is a violation of the
rights to life, "finds its residence in A1iicle 20 of our constitution which recognizes the
fundamental rights and freedoms of the individual are inherent and not granted by the state. The
miicle emphatically provides that "the rights and freedoms of the individuals and groups
enshrined this chapter shall be respected. upheld and promoted by all organs and agencies of
government and by all persons91
As construed in this context, Aiiicle 20 underlines that the right to life is not privileged but
granted to individual by the state but inalienable and integral part of a person by virtue of being
human. It imposes the duty upon all organs of the state to respect, uphold and promote this
inalienable right. This implies that neither a cou1i of law which is an organ of a state legislation
is capable in condemning a person to death.
In S. Vs- Mitlongo 92 in that case it was held that, "the death penalty is the ultimate and the
incomparably extreme fmm of punishment... it is the last, the most devastating and most
irreversible recourse of the criminal law, involving as its necessary does the planned and
calculated termination of life itself, these desh·uction to the greatest most precious gift which is
bestowed on all mankind".
The principle is that. all human beings are entitled to the protection of the law and those entitled
to claim these protections even include social outcast. If it's contended that the law seeks to
protect the lives of people then it would be superfluous for the law to uphold these rights to life
in the one end, especially having regard to a special nature of this to seek and take it away on the
other.
The above cases illustrate that A1iicle 22(1) of the constitution of Uganda is inconsistent the
fundamental right to life and human dignity and can be challenged on these grounds. The death
penalty as a violation of the prohibition against torture, cruel, degrading and inhuman forms of
treatment or punishment.
91
Article 20(2) the 1995 constitution of Uganda
92
(1990) 10S.A.C.R 584 @p587
40
In Uganda the death penalty is not imposed by the constitution, but by the Penal Code, which
According to some sources, should be revised 93 However, articles 22 and 28(3 )e of the
constitution, considered the possibility of the death penalty, "passed in a fair trial by a court of
competent jurisdiction in respect of a criminal offence under the law of Uganda and the
conviction and sentence have been confirmed by the highest appellate comi".
Does the constitution give the right or the duty to competent comi to impose the death penalty?
In spite of the above provision, many lawyers and Human rights organizations agreed that the
death penalty is not in line with the spirit of the constitution which run as follows:
Notwithstanding anything in this constitution, there shall be no derogation from the enjoyment of
the following rights and freedoms, freedom of torture, cruel, inhuman or degrading and that no
person shall be subjected to any form of torture, cruel, inhumane and degrading treatment94 . This
provision was complied with in the case ofKyamanywa Simon Vs Uganda95 where the Majority
of justices of the constitutional court adopted the principle of the Supreme Court in the case of
AG-Vs-Salvatori Abuki, where Oder JSC obse1ved that is the wording of mticle 24 above are not
defined in the constitution. Therefore, they must be given that ordinary plain meaning".
In the aforesaid case the comi held by the majority justices that, the rights and freedoms
prescribed by Alticle 24 are, by miicle 44(a), made non-derogable. They are absolute. They are
in a different category from death sentence. The right to life provided for under article 22 of the
constitution. This right is not absolute under our constitution. Life can be taken away in the
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 where the conviction and sentence have been
confirmed by the highest appellate court.
Though the constitution of Uganda permits death penalty, in my opmwn article 22 of the
constitution is inconsistent with Articles 24 and 44(a) thereof. This is because, death penalty
under A1ticle 22 not only offends the inherent rights to life, it's also unconstitutional and should
pronounced as such by the Ugandan court.
"May the state kill (2000)p.26(supra)

94
Article 24 ibid
95
.Constitutional reference No. of 2000
41
This argument is in line with the American case of the People -Vs-Anderson96 where
WRIGHT.J. held that, capital punishment to be impennissible and cruel because it degrades and
dehumanizes all who pmticipate in its processes. Therefore, the challenge to the death penalty
was squarely tackled recently in landmark South African case of State - V s - T. Makwanyane &
Anor (supra) where it was held that, "death is a cruel penalty and legal processes which
necessarily involve waiting in uncettainty for the sentence to set aside or carried out add to the
cruelty. It is also an inhuman punishment for it involves by its very nature a denial of the
executed person's humanity, and it is degrading because it strips the convicted person of all
dignity and treats him/her as an object to be eliminated by the state".
The decision above is in conformity with Article 20(1) of our constitution97 which provides that
fundamental rights and freedoms of the individual are inherent and not granted by the state. And
I do not see why the state should take away some one's life as if it's not inherent and that
becomes unconstitutional. This means that "death row" for years is torture and cruelty, the
execution itself is a second tmture, cmelty often inhuman degrading. Likewise, AN Makubuya
in his mticle at Page 242 quoted the United Nations Committee on Human Rights has held that
the death sentence by definition is a cruel and degrading punishment, therefore needs to be
scraped.
It's imperative to note the trend in international human rights law and international criminal law
is presently geared towards the world-wide abolition of the death penalty. This trend is clearly
manifested in the various international human rights instruments, treaties and conventions that
have been adopted by the United Nations 98 in compliance with the above agreement the former
president of Malawi 99 his speech 100 stated" I have promised that I will never sign the death
sentence for a fellow human being. I would like to reaffirm this commitment. Life is sacred; I
believe a person can reform. I believe that forgiveness • makes all of us better persons. In the
cause of truth and justice I invite all heads of state in Africa our common home, to abolish the
96
493 p2d 880. 886
97
Constitution of Uganda
98
UDHR Art 3; ICCPR art 6(1) & (2)
99
Dr. Bakili Muluzi
100
During the English General Assembly of the World Council of Churches in Harare December1998
42
death sentence to work for the removal of violence among our people's and so to prepare a better
future for our children."
The above President's speech is in line with the judgment of JPM Tabaro. in AG -V -Salvation
Abuki (supra) where he cited State-Vs-Makwanyane case "... discussing the constitutionality of
the death penalty in which it is shown that African values are based on "need for understanding
but not victimization" of course our concept of "Ubuntu" the idea that being human entails
humanness to other people is not confined to South African or any particular ethnic group in
Uganda. It is the whole mark of civilized societies". Despite the above decision, in Uganda the
unofficial moratorium on death penalty ended with the execution of such a large number of
prisoners which raised public outcry not only by the majority citizens, but also by the other
Human rights organizations who are advocating for the abolition of death penalty. According to
Makwanyane' Case many offences are committed but few are defected and only a sample of
those on death row are execute some convicted on framed charges. The state to increase its
accuracy in detection, arrest and have many convicts to suffer life sentences; this is because
many commit offences, go undetected, hence encouraged to continue committing offence
causing a multiplier. If the state has to retain the death penalty in its code, then all areas of the
.court martial should be over hauled, like good legal qualification for the chairman, legal
representation by non-militaty juniors to chailman but by renowned lawyers. All court mattial
should be a lawyer if they are army officers, they should not those officers also at the front line if
impartiality is to be achieved. Fmther the trial time to be reasonable not over htmying, as justice
hurried is justice buried Not like the speed the two soldiers in Moroto court mattial were
"executed.
Last but not least, the State of Uganda is encouraged to substitute the Death Penalty with Lifer
imprisonment where the convicts are even treated well without an overdose attendant advantages
'like no loss of material for reform and rehabilitation, capable of reversibility of decision in case
new facts in evidence are discovered. And the convict is given chance to contribute to national
income and above all, Uganda State to be given recognition by the international community as a
civilized State.
However. in positive terms, Uganda has not executed any juveniles, as in accordance with
'International Convention on civil and political Rights. In the case of Attorney General v Susan
43
'Kigula & 417 others 101 , The Respondents were all persons who at different times had been
convicted of diverse capital offences under the Penal Code Act and had been sentenced to death
as provided for under the laws of Uganda. They contended that the imposition on them of the
death sentence was inconsistent with Articles 24 and 44 of the Constitution. To the Respondents
the various provisions of the laws of Uganda which prescribe the death sentence are inconsistent
with A1iicles 24 and 44. The Respondents also further petitioned in the alternative as follows:
First, that the various provisions of the laws of Uganda which provide for a mandatory death
sentence are unconstitutional because they are inconsistent with Articles 20, 21, 22, 24, 28 and
44(a) of the Constitution. They contended that the provisions contravene the Constitution
because they deny the convicted person the right to appeal against sentence, thereby denying
them the right of equality before the law and the right to fair hearing as provided for in the
Constitution
Second that the long delay between the pronouncement by Court of the death sentence and the
actual execution, allows for the death row syndrome to set in. Therefore the caiTying out of the
death sentence after such a long delay constitutes cruel, inhuman and degrading treatment
contrary to Articles 24 and 44(a) of the Constitution.
Third, that section 99(1) of the Trial on Indictments Act which provides for hanging as the legal
mode of carrying out the death sentence is cruel, inhuman and degrading contrary to A1iicles 24
and 44 of the Constitution. In the same case this is said: The respondents seek orders and
declarations as follows:-
I. Declarations to the effect that:-
a. The death penalty, in its nature, and in the manner. process and mode in which it
is or can be implemented in Uganda, is a form of torture, cruel, inhuman or
degrading treatment or punishment prohibited under Articles 24 and 44(a) of the
Constitution:
b. The imposition of the death penalty is a violation of the right to life protected
under Articles 22(1) 20 and 45 of the Constitution;
101
Constitutional Appeal No. 03 of 2006
44
c. Section 25(1), 25(2), 25(3), 25(4), 118, 123(1), 129(5), 184, 273(2), 301 B(2) and
235(1) I~-and Sections 7(l)(a), 7(1 )(b), 8, 9(1) and 9(2) 10", and any other laws that
prescribe a death penalty in Uganda are inconsistent with and in contravention of
Articles 20, 21, 22(1 ),24, 28, 44(a), 44(c) and 45 of the Constitution to the extent
that they permit or prescribe the imposition of death sentences;
d. The caiTying out of a sentence of death is inconsistent with Article 20, 21, 22(1 ),
24, 28, 44(a), 44(c) and 45 of the Constitution;
e. the method of caiTying out a death sentence by hanging is cruel, inhuman and
degrading and inconsistent with the provisions of A1ticle 20, 21, 22(1), 24, 44(a),
and 45 of the Constitution.
This case in conclusion looks at death penalty as a violation of human rights that requires it be
made mandatory that life imprison111ent be made as an alternative other than death penalty since
everybody has the right to live and also there's room for change for the convicted person.
According to the UNIVERSAL DELCARATION OF HUMAN RIGHTS as adopted and

proclaimed by the United Nations General Assembly on I Oth December 1948. The preamble to
that declaration provides in pmt;
"Whereas disregard and contempt for human rights have resulted in barbarous acts which
jxave outraged the conscience of mankind, and the advent of a world in which human beings
shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed
M the highest aspiration of the common people." ..... and provides that:
And it also 104 states: "Everyone has the right to life, liberty and security of person." And that
"No one shall be subjected to torture or to cruel inhuman or degrading treatment or Punishment.
105
102
The Penal Code act cap 120
103
The Anti Terrorrism act (no 14 of 2002)
104
Article 3 of the Universal Declaration of Human Rights
105
Article 5 of the Universal Declaration of Human Rights
45
It may be noted that the right to life is provided for separately, and the freedom fi·om torture,
cmel, inhuman or degrading punishment is also treated separately. It cannot be argued therefore
that by these provisions, the Universal Declaration of Human Rights had thereby abolished the
death penalty in the world. Indeed this could not have been so, for even as the Declaration was
being proclaimed, death sentences passed by International Tribunals were being carried out
against war criminals in Germany and Japan.
The next instrument is the International Covenant on Civil and Political Rights which was
adopted and opened for signature, ratification and accession by the General Assembly on 16th
December 1966, and came into force on 23rd March, 1976 and Article 6(1) thereof states:-
"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."
This mticle amplifies Article 2 of the Universal Declaration of Human Rights (supra) by adding
on that the right to life must be protected by law and may not be arbitrarily taken away. In our
view, the introduction of the word "arbitrarily" is significant because it recognizes that under
certain acceptable circumstances a person may be lawfully deprived of his life. This is further
acknowledged in Article 6(2) which states that "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 trial judgment rendered by a
competent comt." This provision recognised the reality that there were still countries that had not
yet abolished capital punishment. It also seeks to set out safeguards that should be followed in
the imposition of death sentences. Article 6(4) provides thus:-"Anyone sentenced to death shall
have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation
of the death sentence may be granted in all cases. 'These safeguards are not to be construed as
intended to delay or prevent the abolition of capital punishment, but they have to be followed by
those countries which, for one reason or 0 ther peculiar to their circumstances. have not yet
abolished the death penalty
46
4.4 COMPARATIVE OF DEATH PENALTY IN SOUTH AFRICA, NIGERIA AND
KENYA TO THAT OF UGANDA.
In South Africa, in reference to murder the question that could be asked is capital punishment
justifiable for murder? A case in point is In Zuma's case, Kentridge AJ pointed out that the
criteria developed by the Canadian Courts for the interpretation of section 1106 may be of
assistance to our Courts, but that there are differeri.:es between our Constitution and the
Canadian Charter which have a bearing on the way in which section 33 should be dealt with.
This is equally true of the criteria developed by other courts, such as the Getman Constitutional
Court and the European Court of Human Rights. Like Kentridge AJ, "I see no reason in this
case ... to attempt to fit our analysis into the Canadian pattern," or for that matter to fit it into the
pattern followed by any of the other courts to which reference has been made. Section 33
prescribes in specific terms the criteria to be applied for the limitation of different categories of
rights and it is in the light of these criteria that the death sentence for murder has to be justified.
However according to the constitution of South Africa it is provided that "Every person" is
entitled to claim the protection of the rights as enshrined in Chapter 3, and that "no" person shall
be denied the protection that they offer. Respect for life and dignity which is at the heart of
section II (2) therefore the canying out of the death penalty would destroy these and all other
'rights that the convicted person has, and a clear and convincing case must be made out to justify
such action.
The Attorney General contended that the imposition of the death penalty for murder in the most
serious cases could be justified according to the prescribed criteria. The argument went as
follows. The death sentence meets the sentencing requirements for extreme cases of murder
more effectively than any other sentence can do. It has a greater deterrent effect than life
imprisonment; it ensures that the worst murderers will not endanger the lives of prisoners and
wardens who would be at risk if the "worst of the murderers" were to be imprisoned and not
executed; and it also meets the need for retribution which is demanded by society as a response
to the high level of crime. In the circumstances presently prevailing in the country, it is therefore
a necessary component of the criminal justice system. This. he said, is recognized by the
106
The Canadian Chater of Rights ab=nd Freedom as enacted by the Canada Act 1982
47
Appellate Division, which only confirms a death sentence if it IS convinced that no other
sentence would be a proper sentence.
In the constitutional court of the republic of South Africa case no CCT/3/94 in the matter of the
state v makwayane and m. mchunu(supra) it was held that, "death is a cruel penalty and legal
processes which necessarily involve waiting in uncertainty for the sentence to set aside or carried
out add to the cruelty. It is also an inhuman punishment for it involves by its very nature a denial
of executed person's humanity, and it is degrading because it strips the convicted person of all
dignity and treats him/her as an object to be eliminated by the state.
With all the different arguments about whether or not abolish death penalty South Africa finally
abolished death penalty after the workers launched a mass action for the new labor Act. I quote
"The death penalty, a weapon of terror used against thousands of working people in South
Africa, has been abolished. In a unanimous decision June 6, South Africa's Constitutional Court
voted to ban the use of capital punishment. A prison official at Pretoria Central penitentiary
reported that the news was greeted with "shouting and clapping and general jubilation on death
row." As per Mr. Greg Rosenberg. 107
In the case of Kenya the issue was death sentence or life imprisonment? Where by it was seen -
that thousands of convicted Kenyans awaiting their appointment with the hangman had their
fates reversed when in one swoop the president commuted their death sentences o life
imprisonment in 2009. When President Mwai Kibaki announced he was commuting all death
sentences to life in prison, Kenya moved toward eliminating the death penalty. His action
reduced by a fifth the 20.000 prisoners facing execution around the world.
Kibaki signaled intentions to abolish the death penalty altogether but first called for a study
todetermine whether Kenya's mandatory death sentence for murder, armed robbery or treason
actually deters crime. His move reflects a trend beyond Europe and elsewhere to abolish capital
punishment. Since 2008, Argentina, Burundi and Uzbekistan have abolished the death penalty.
Kenya is one of the Sub-Saharan countries that have made steps toward reducing executions or
doing away with them. The others include; Uganda. Tanzania. Mali and Nigeria. Only 25
107
The militant vol.59/no. 24, June 19,1995
48
countries actually can·ied out executions in 2008." In sub-Saharan Africa, only two countries
Botswana and Sudan carried out executions 2008.
By Kenyan law, armed robbery carries a mandatory death sentence for bank robbers with
submachine guns or someone using a stick to snatch a chicken. Even though the death penalty
has not been carried out since 1983, the population on death row kept expanding. Even, as
President signaled an intention to push for abolition of the death the fact the new constitution
retains provisions for the death penalty. 108 Nevertheless, Kenyans need to have a conversation
about the continued existence of the death penalty in our statutes.
In a landmark judgment, Kenya's Court of Appeal sitting in Nairobi on July 30, 2010 declared
unconstitutional the application of a mandatory death sentence on all prisoners convicted of
murder. In their unanimous judgment, the Court of Appeal ruled that the automatic nature of the
death penalty in Kenya for murder violates the right to life and amounts to inhuman punishment,
as it does not provide the individuals concerned with an opportunity to mitigate their death
sentences. As a result, hundreds of prisoners currently on death row in Kenya, including the
Appellant, Godfrey Mutiso, were given a reprieve. The Court of Appeal said that the same
reasoning given in the judgment would apply to other offences having a mandatory death
sentence, such as treason and Jobbery with violence 109
A philosopher and conflict management specialist," 0 said that death sentence is barbaric and
should be abolished. Kubasu argues that comis should hand sentences to convicts that are
correctional. He argues that: In imposing sentences on wrong doers the State takes the high
moral ground and I therefore it should correct the wrongs by passing life sentences instead of
killing or destroying another life. He maintains that the death penalty is immoral and just a
sanitized form of vengeance, which has no place in the modern world.
On the other hand are those who argue that the death penalty is justified and should not be
abolished. They include Kabarak University Chaplain; The Reverend Paul Ombati who argues
that argues that capital punishment is legitimate for use in cases of gross injustice but that it is
more of a prerogative of human government than as a mandate. Rev Ombati believes that in
108
The Penal code is an impediment
109
Section 296/2 of the Penal Code
110
Nolasco Kabusu
49
situations where capital punishment is pmi of a reasonably just system and is used in cases such
as premeditated murder it would probably enhance the value oflife and the fabric of justice
in a society.
It is interesting to note that Rev Ombati and others supporting the death penalty are aware of the
inherent failures in the Judicial systems. They are acutely aware of the fact that miscarriages of
justices can be found anywhere in the world and therefore you will find cases where a person
who is innocent is mistakenly sentenced to hanged and ends up being hanged. The trouble is that
when facts emerge that confirms the person innocent, the process cannot be reversed. A person
cannot be hanged and later 'unhanged'. Death is finality.
One of the most notorious cases of miscan·iage of justice relates to three men who were
sentenced to 15years imprisonment in the UK for murder. Years later, the advent of technology
enabled law enforcement officers to confirm beyond doubt that the three men were all innocent
and that they had had to be released from prison. However, they had already served 9 years in
prison. Had they been death sentences three innocent people would have been killed by the state.
·Ill Section 33(1) of the Constitution of the Federal Republic ofNigeria,l999
In Nigeria, the right to life is a universal right. However. various jurisdictions recogmze
permissible limitation to this universal right. In Nigeria, such permissible limitation includes the
imposition of the death penalty. The death penalty is provided for in the Nigerian constitution
which provides that "eve1y person has a right to life, and no one shall be deprived intentionally
of his life save in execution of the sentence of a court in respect of a criminal offence of which
one has been found "guilty in Nigeria" 111
In Nigeria. like Uganda, five offences are punishable by death. These include: murder, treason,
treachery, directing and controlling or presiding at an unlawful trial by ordeal from which death
results, m1d conviction for armed robbery. The introduction of the sharia criminal law in some
states in northern Nigeria widened offences punishable by death. For instance. under sharia law.
death penalty can be applied for sexual crimes.
111
Section 33 (1) of the Constitution of the Federation Republic of Nigeria 1999
50
From the above, it follows that the constitutionality of death penalty is not in doubt. In fact, the
supreme comt of Nigeria upheld the constitutionality of the death sentence in the case of Onuoha
Kalu vs The State 112 . In this case, the appellant was charged with the offence of murder. The trial
court found him guilty. The appellant was accordingly convicted and sentenced to death.
Aggrieved with this decision, the appellant appealed to the court and his conviction was upheld.
Unsatisfied, he subsequently appealed to the Supreme Court. It was at this point that the
appellant sought and was granted leave to raise the issue of the constitutionality of the death
sentence in Nigeria. The Supreme Court, as usual, invited distinguished lawyers to address it on
the issue. After considering submissions by all parties, the Supreme Court came to the
conclusion that the death penalty was indeed constitutional. In the words of Iguh (Justice of the
Supreme Court).i quote:
"Upon a careful perusal of the various foreign authorities to which our attention was drawn by
the opinion that the death penalty per se amounts to torture, inhuman and degrading treatment
and therefore intrinsically unconstitutional seems to me a minority view. A close study of those
decisions reveals that the foreign jurisdictions that have similar provisions in their constitution as
ours have repeatedly pronounced the death penalty to be constitutionally valid."
There have been worldwide appeals and campaigns aiming to abolish death penalty. Indeed,
various international and regional instruments against death penalty are on the increase. Each
year, since 1997, the United Nations Commission on Human rights has passed a resolution
calling on countries that have not abolished the death penalty to establish a moratorium
on executions.
Although the death penalty still remains constitutionally valid in Nigeria, there has been a
national debate on the death penalty issue. While many argue for its retention, others argue for its
abolition. I shall now seek an evaluation of these arguments.
Arguments In Favor Of The Death Penalty. The death penalty has been regarded as a retributive
measure. Accordingly. the criminal should die for the crime he has committed. Allowing him to
go free is to make him a threat to others. Just as the individual has the right to safeguard as well
as take his life whenever he pleases, the state has the right and duty to take the life of a citizen in
112
(1998) 13 NWLR; Suit No.SC.24/1996
51
order to increase its welfare. This argument hinges on the ethical principle that evil deserves
castigation and wrong doing deserves reparation by adequate deprivation and punishment for the
wrong doer. It is also argued that the death penalty acts as a deten·ent to future crimes. This is
known as the deterrence theory. Thus, the death penalty would be a deterrent or preventive act
for capital offences.
Again, it has been argued that if the death penalty is abolished, it may lead to an increase in the
number of extra judicial killings by the police and survivors of violent crimes. Indeed, the
knowledge that a wanton murderer, for example, would get only a life sentence with the
possibility of state pardon may compel an overzealous police officer or the victim of such an
offence. In the case of Rabi Ismail, was by the supreme court sentenced to die by hanging 113 but
the case was re- opened debating over death sentence Groups such as Amnesty International and
LEDAP have called for an immediate moratorium to be declared on all executions, changing all
death sentences "without delay" to terms of imprisonment.
Proponents of the death penalty argue that capital punishment permanently removes the worst
criminals from society, providing a much safer environment than long-term or permanent
incarceration. The supposed cost effectiveness of death sentences is often cited, as is the belief
that capital punishment deters further crimes being committed. These opinions were emphasized
by a touring national debate initiated by the Nigerian Government in 2007, urging Nigerians to
come forth with their honest opinions to discuss capital punishment. One supporter of the death
sentence argued "The death penalty is good for people who have killed because it will serve as a
deterrent to other peop !e."
The abolitionist groups, such as Civil Liberties Organization, Nigeria's largest human rights
group, posit that "no form of punishment can be more inhuman" or "more unusual than the death
penalty". Nigeria's judicial system is widely viewed as being "riddled with flaws that can have
devastating consequences". Amnesty Intemational's Nigeria researcher 114, described the situation
as "truly horrifying", referring to the large numbers of "innocent people that may have been
executed and may still be executed". A recent report by Amnesty International revealed that
several expert groups set up by former President Olusegun Obasanjo in 2004 have
113
1113 By lkechukwu Nnochiri,Vanguard news, July 8, 2011
114
Aster Van Kregten
52
"acknowledged that the Nigerian criminal justice system cannot guarantee a fair trial and
therefore recommended a moratorium on executions". Stating that since the handover to
democracy in May 1999, "at least 650 people have been sentenced to death in Nigeria," the
report highlights the draconian nature of the Nigerian judicial. Many prisoners awaiting trial and
on death row reported, "that the police picked them up and asked for money to release them.
Those who couldn't pay were treated as suspected armed robbers." Other death row prisoners are
said to have told Amnesty International "that they were arrested when they went to a police
station to report a crime they had witnessed." Furthermore, police officers are alleged to have
demanded money for their release, sometimes asking for money for fuel, "without which they
could not visit witnesses or check alibis."
According to van Kregten, Nigeria's police force is "over-stretched" and "under resourced." As a
result, officers rely heavily on supposed confessions to solve crimes, "rather than on expensive
investigations". This is in direct contradiction to Nigerian law, as, if a suspect confesses under
pressure, torture, or threat, "it cannot be used as evidence in court". In spite of this, judges
'"continue to sentence suspects to death based on these confessions, leading to many possibly
innocent people being sentenced to death", further enraging critics of the use of the death penalty
in Nigeria.
The demand for a moratorium made Rabi Ismail's case have firmly put the issue of capital
punishment in Africa's most populous nation back in the spotlight. It raises questions over the 1
legitimacy of the death sentence, the Nigerian judicial system and the state of the nation's
prisons.
Organizations such as Amnesty International and LEDAP have long campaigned for the
abolition of I the death sentence. In speaking out against the Supreme Court's ruling, they echo
the sentiments of countless human rights and campaign groups voicing an increasingly voluble
call for a progressive review of Nigerian law. Demanding a moratorium is at once an
announcement of their stance, but also a challenge to Good luck Jonathan and his government to
deliver on promises of change: to be firm. to be decisive. and to "show leadership".
53
Mr Dahim Musdapher 115 and the Nigerian Bar Association (NBA) recently jointly insisted that
death penalty should stay in the nation's law books. But the European Union (EU) submitted that
capital punishment should be completely abolished from the Nigerian legal system. They made
their positions known on Tuesday in Abuja at a one-day programme organized by a Non-
Govemmental Organization, Lawyers without Borders and France, which is canvassing for the
abolition of death penalty in Nigeria.
The former Chief Justice of Nigeria stated that death penalty remains a law in Nigeria and would
remain so until the National Assembly amends the constitution otherwise. He also spoke through
his Special Assistant, Hadiza Sontali Sa'eed, further stressed that in constitutional democracy,
neither the legislature nor the judiciary was supreme over the constitution. He added that it was
not the responsibility of the judiciary to abolish death sentence in Nigerian laws, but the work of
the legislature.
The EU Head of Political Governance and Democracy in Nigeria and ECOW AS, Mr Allan
Munday, on his part, insisted that death penalty was no longer in vogue in the world and should
be abolished in Nigeria. He urged the Nigerian government to adopt life imprisonment as
alternative to death penalty as being practiced in the United States of America and the United
Kingdom. But the NBA vehemently opposed the position of the EU, saying that such a system
was too premature for Nigeria : and would not work.
The National President of the NBA, Joseph Dauda, stated that the call for death penalty abolition
was wrongly timed in view of the rampaging activities of the Boko Haram sect that had led to the
untimely death of innocent Nigerians and permanently injured the interest of many families. He 1
charged the EU and the lawyers to direct their energies to re-orientate criminally minded
Nigerians to stay out of crime and allow peace to reign.
115
The former chief Justice of Nigeria
54
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.1. INTRODUCTION
I would bonow the statement that the trend in international human rights and international
criminal law is geared towards the worldwide abolition of death penalty.
As for arguments for abolitionists of death penalty school of thought, from the above arguments
both have good reasons, but the receptionists theory is confronted with situations like there
would be no one to rape rapists, and eye for an eye looks out dated and open to political abuse
the incumbent executives, hence only reasonable to move along the abolitionists who offer life
sentence.
5.2 CONCLUSION
During my research I came to realize that death penalty is one of the most debatable topics in the
criminal justice system. Today there are many arguments for and against death penalty; in my
findings most people are in favor of death penalty reason being that it will cm1ail future
murderers thus saving more lives meaning that the chances of murdering will be minute. Some
people still believe in the "eye for an eye and a tooth for a tooth" whereas some people say better
to imprison a convicted person because there's room for change because that makes one to
realize their mistakes.
In my opinion, my conclusion is based on my personal experience and my research, I advocate

for the abolition of death penalty. One will think am crazy to advocate for that since my father.
the bread winner of a family was murdered, he died intestate, no last words from him, the killer
is out there enjoying her freedom and nothing was done about it. I should be supporting it. true I
should be but I stopped and asked myself "is the killer having a free conscience? Do you think
she is enjoying her life like some would say? Don't you think she is haunted everyday? Imagine
had she been sentenced to death. the plot to kill wasn't done by only her others too were involved
but only she will be convicted and the rest free, does it change anything? No. every one has a
right to life, we all make mistakes knowingly and unknowingly and if the people we offend were
55
to pass judgment after the crime we all wont be able to con-ect our mistakes. Let's give a criminal
a chance to change. Therefore instead of death penalty one should be given life imprisonment
since the most affected people are the poor and the innocent.
5.2 RECOMMENDATIONS
The wish is by the individual to do away with the death penalty, but as for the state does not just
wish, for it has capacity to put to an end the death penalty through parliament. It is good to
imitate the international positive decisions so that Uganda is not left behind and more so that the
death penalty is open to abuse as the incumbent presidents use it against political opponents, and
it's irreversible over dose, once it has been executed.
Another recommendation is turn the convicts into economic assets through serious work and not
waste scarce resources in buying expensive machinery to kill the convicts. There can do manual
labor in doors like sawing or other factory work while being guarded from out side. The state to
take responsibility to sensitize the public like it has done with immunization and contraceptives
campaign where it feels that the death penalty is of popular interest, rather than give excuse that
death penalty is still popular.
The state is advised to further increase the level of literacy for the ignorant to be able to read
materials on abolition theories and also to put programmes in local languages on the FM radio
stations of the benefits of countries like German which has done many with death penalty yet not
experiencing many of this capital offence.
56
BIBLIOGRAPHY
BOOKS
Roger Hood, The Death penalty: A World Wide perspective: revised and updated(2nd edition)
published 1996.
Uganda Government, human rights enforces or abuser, analysis and recommendations, Entebbe
government printer 1993
Ssekandi F.M A, handbook for judges and magistrates The law and development centre,
Kampala Uganda trust ltd 1972
Mulwande T.N. Death penalty, is it a solution to crime, Cambridge university publishers. 1961
Namero Berlin, choice between life imprisonment and death penalty, lagos university press 1997
Robe1i B.Seidman, A source book of crimina/law ofAji'ica, published (1966).
Wade H.W.R. Administration law, Clarendon press oxford, -lth edition.
Hieke Berehd's: When the state kills, West minister University publishers.
Onoria Henry," Soldiering and the constitutional Rights in Uganda kotido militwy Execution
(2003)9 (I) East Afi'ica.
Makubuya A.N, The constitutionality of death penalty in Uganda critical inquily (2000)6 (2)
east Afi·icaj. peace human rights:
Ms. G.Stephanie Hoey, An international overview of death penalty: for "The Exchange of view I'
on death penalty, hosted by foundation of human rights initiative (FHRI) held at .fair way hotel
on Februwy 28th 2000:
Umechc. chinedu !kenna. Death penalty in Nigeria: an evaluation of the argument.
Leke Sanusi. Nigeria under rescue to abolish Death Penalty: think Afi·ica press 25th July 2011
Greg Rosenberg, the militant val. 59/ No 2-1, June 19,1995.
57
Study sage publications November 21, 2011
58

Death Penalty in Uganda

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A RESEARCH DISSERTATION ON DEATH PENALTY AND ITS IMPLICATIONS ON

THE RIGHT TO LIFE IN UGANDA.

A RESEARCH DISSERTATION TO BE SUBMITTED TO THE SCHOOL OF LAW IN

.. ... ~~~············· ········· ..... ?:.~ .~~- 1~-~~-Y.. f.~ I 1

Thank you All!

AELR All England Law Repm1s

CID Criminal Investigations Department

Cap Chapter (Of Law)

Crim App Criminal Appeal

Crim Cause Miscellaneous Criminal Cause

Dpp Director of Public Prosecutions

H.C.B High Court Bulletin

EALR East African Law Reports

TIA Trial on Indictments Act

ULR Uganda Law Repo11s

The Constitution of the Federal Republic of Nigeria J 999

The Constitution of Kenya, 20 I 0

The Constitution of the Republic of South Africa No. I 08 of 1996

The penal code Act, Cap. 120, (Uganda)

The Trial on Indictment Act, Cap.

The Magistrate courts Act

The Judicature Act

The Anti tenorism Act

The first optional protocol to the covenant

Convention on the rights of the child

Statute of the international c

Universal Declaration of Human Rights 1948

Universal National General Assembly Resolution 39/46 I Oth December 1984

I. To establish whether Death penalty violates the right to life

I) The government emulate the international countries in abolishing death penalty

Dedication ....................................................................................................................................... iii

LIST OF CASES .............................................................................................................................. v

LIST OF ACRONYMS .................................................................................................................. vi

STATUTES .................................................................................................................................... vii

INTERNATIONAL LEGAL INSTRUMENTS ........................................................................... viii

CHAPTER ONE ............................................................................................................................. 1

1.1 INTRODUCTION AND HISTORICAL BACKGROUND OF THE DEATH PENALTY IN

1.2 STATEMENT OF THE PROBLEM ........................................................................................ 2

1.3 AIMS AND OBJECTIVES ...................................................................................................... 2

1.4 HYPOTHESIS .......................................................................................................................... 3

1.5 JUSTIFICATION OF THE STUDY ........................................................................................ 3

1.6 LITERATURE REVIEW ......................................................................................................... 4

CHAPTER TWO ............................................................................................................................ 6

ANALYSIS OF THE LAW GOVERNING THE DEATH PENALTY IN UGANDA ................. 6

2.2 THE PENAL CODE ................................................................................................................. 7

2.3 THE ROLE OF THE STATE ................................................................................................... 8

2.4 THE NATIONAL RESISTANCE ARMY STATUTE 1992 ................................................... 9

CHAPTER THREE ...................................................................................................................... 11

DEATH PENALTY: TO BE OR NOT TO BE? .......................................................................... 11

3.1 INTRODUCTION .................................................................................................................. 11

3.2 ARGUMENTS FOR DEATH PENALTY ............................................................................. 11

3.3 DEATH PENALTY IS AN UNJUSTIFIED RETRIBUTION ............................................... 15

3.4 CAPITAL PUNISHMENT IS NOT A DETERRENT ........................................................... 18

3.5 DEATH PENALTY AS A VIOLATION OF THE PROHIBITION AGAINST TORTURE,

3.6 DEATH PENALTY IS A BARBARIC PRACTICE .............................................................. 23

3.7 THE DEATH SENTENCE IS IRREVERSIBLE ................................................................... 25

3.8 DEATH PENALTY IS AN INSTRUMENT OF POLITICAL REPRESSION ..................... 26

3.10 THE CHANGE OF HEART OF A PRISONER .................................................................. 31

3.11 CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION ........................... 35

CHAPTER FOUR ......................................................................................................................... 36

DEATH PENALTY IN LIGHT OF RIGHT TO LIFE UNDER ARTICLE 22(1) OF THE

4.1 INTRODUCTION .................................................................................................................. 36

4.2 THE GENESIS OF THE LAW OF DEATH PENALTY ...................................................... 37