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Capital Punishment Jurisprudence: A Critical Assessment of the Supreme Court of Uganda's Judgment in Attorney General v Susan Kigula and 417 Others

Published online by Cambridge University Press:  14 September 2011

Barrie Sander
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Abstract

The Ugandan Supreme Court's decision in Attorney General v Susan Kigula & 417 Others ended a ten year constitutional challenge against capital punishment. The attorney general was appealing the Constitutional Court's declarations that a mandatory death penalty and a delay on death row of more than three years violate Uganda's Constitution. The respondents cross-appealed the Constitutional Court's declarations that the death penalty is constitutional and that hanging is an appropriate and therefore constitutional method of execution. The Supreme Court dismissed both the appeals and cross-appeals. This article summarises the Supreme Court's findings and analyses the court's reasoning. It demonstrates that, while the court's reasoning is generally in line with the interpretations offered by international courts and human rights bodies, the court arguably missed an opportunity to take a bolder approach regarding the relationship between the death penalty and the prohibition on cruel, inhuman and degrading treatment, particularly in light of recent international trends.

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Type
Research Article
Information
Journal of African Law , Volume 55 , Issue 2 , October 2011, pp. 261 - 279
Copyright
Copyright © School of Oriental and African Studies 2011

INTRODUCTION

“Revenge is kindred with our nature and our instincts but not with the law. The law cannot obey the same rules as human nature. Murder may come naturally to mankind, but the law is not made to imitate or reproduce nature. The law is crafted to correct nature.”Footnote 1

On 21 January 2009, the Supreme Court of Uganda rendered its long awaited decision in the case of Attorney General v Susan Kigula & 417 Others (Kigula),Footnote 2 ending a ten year constitutional challenge against capital punishment which had been brought by over 400 condemned prisoners. The attorney general was appealing the Constitutional Court's declarations, originally rendered in 2005, that the mandatory imposition of the death penalty and a delay on death row of more than three years violate the Constitution of Uganda (the Constitution). In turn, the respondents cross-appealed the Constitutional Court's declarations that the death penalty in itself is constitutional and that hanging is an appropriate and therefore constitutional method of execution. Ultimately, the Supreme Court dismissed both the appeals and cross-appeals.

This article provides a critique of the Supreme Court's findings in relation to each appeal and cross-appeal. It will demonstrate that, while the court's reasoning is generally in line with the interpretations offered by international courts and human rights bodies, the court arguably missed an opportunity to take a bolder, more progressive approach regarding the relationship between the death penalty and the prohibition on cruel, inhuman and degrading treatment, particularly in light of the recent international trend towards its abolition.

THE CONSTITUTIONALITY OF THE DEATH PENALTY

“[T]he right to life is the most fundamental of all rights. The taking away of such a right is, therefore, a matter of great consequence deserving serious consideration by those who make constitutions as well as those who interpret those constitutions.”Footnote 3

The Supreme Court first considered the submission that the death penalty in itself constitutes a form of cruel, inhuman and degrading punishment in violation of article 24 of the Constitution.Footnote 4 For this purpose, the Supreme Court adopted a two-stage analysis: first, it considered the position under public international law;Footnote 5 and secondly, it considered the position under the Constitution.Footnote 6 At both stages, the Supreme Court adopted a systematic and historic interpretation of the prohibition on cruel, inhuman and degrading treatment in conjunction with the right to life, which under both public international law and the Constitution explicitly contains an exception for capital punishment.Footnote 7 Systematic interpretation involves analysing a treaty or constitutional provision in its context and in such a way that ensures that all provisions in that treaty or constitution operate in harmony.Footnote 8 The Supreme Court expressly pointed to this “rule of harmony or completeness” and explained that it required that international treaties and the Constitution “be looked at as a whole with no provision destroying another, but provisions sustaining each other”.Footnote 9

Turning first to the court's analysis under public international law, the court pointed to several international instruments, including the Universal Declaration of Human Rights,Footnote 10 the International Covenant on Civil and Political Rights (ICCPR),Footnote 11 the Second Optional Protocol to the ICCPR,Footnote 12 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture),Footnote 13 the Optional Protocol to the Convention Against Torture,Footnote 14 and the African Charter on Human and Peoples' Rights (the African Charter).Footnote 15 The court's analysis of the ICCPR illustrates its systematic and historic interpretation of the prohibition on cruel, inhuman and degrading treatment in conjunction with the right to life.Footnote 16 In this regard, the court first pointed to article 6(1) of the ICCPR,Footnote 17 which sets out the right to life in the following terms: “[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”Footnote 18

The court acknowledged that this provision is significant for its use of the word “arbitrarily” which recognizes that, under certain conditions, an individual may be lawfully deprived of his life.Footnote 19 This position is reinforced by articles 6(2), (4) and (5) of the ICCPR, which set out clear conditions for the lawful imposition of the death penalty by a state.Footnote 20 The court then pointedFootnote 21 to article 7 of the ICCPR, which sets out a separate provision on torture, cruel, inhuman or degrading treatment or punishment in the following terms: “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

The court explained that it did not find any conflict between articles 6 and 7 of the ICCPR.Footnote 22 The reasoning has been set out in Canada's submissions before the UN Committee on Human Rights (Human Rights Committee) in the case of Charles Chitat Ng v Canada:

“Article 7 cannot be read or interpreted without reference to article 6. The Covenant must be read as a whole and its articles as being in harmony … It may be that certain forms of execution are contrary to article 7. … However, as the death penalty is permitted within the narrow parameters set by article 6, it must be that some methods of execution exist which would not violate article 7.”Footnote 23

Thus, the only way to interpret articles 6 and 7 in harmony is to conclude that the prohibition on cruel, inhuman or degrading treatment was not aimed at capital punishment. This conclusion is reinforced by article 6(6) which promotes the abolition of capital punishment by retentionist states: “[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”Footnote 24 Adopting a systematic interpretation, it is inconceivable that the drafters of the ICCPR would encourage the abolition of capital punishment under article 6(6) if they considered it a form of cruel, inhuman or degrading treatment in violation of article 7. To do so would render article 6(6) superfluous.Footnote 25

Since articles 6 and 7 of the ICCPR are in pari materia [of the same subject matter] to articles 22(1) and 24 of the Constitution,Footnote 26 the Supreme Court had little difficulty in dismissing the suggestion that the framers of the Constitution had “inadvertently created confusion and conflict between two important provisions of the Constitution”;Footnote 27 instead, the Supreme Court held that “[h]ad the framers intended to provide for the non-derogable right to life, they would have so provided expressly”.Footnote 28 In the context of a constitution that permits capital punishment as an explicit exception to the right to life, the Supreme Court was able to conclude that the death penalty does not in itself constitute a form of cruel, inhuman and degrading punishment, in violation either of public international law or article 24 of the Constitution.Footnote 29 However, recalling that nothing in the provisions of the ICCPR should be construed as delaying or preventing the abolition of capital punishment, the Supreme Court added that “although the Constitution provides for the death sentence, there is nothing to stop Uganda as a member of the United Nations from introducing legislation to amend the Constitution and abolish the death sentence”.Footnote 30

The Supreme Court's reasoning is significant in two respects. First, it is encouraging that the court began its analysis by recognizing that there are “common standards of humanity that all constitutions set out to achieve”,Footnote 31 and went on to analyse the position under public international law. This willingness to delve into the position under public international law confirms Schabas's belief that “the great influence of the international law on human rights, at least where domestic or national courts are concerned, is essentially as a body of comparative law … [which] informs their appreciation of fundamental rights in a number of areas that impact upon death penalty litigation”.Footnote 32 It is hoped that the Supreme Court will maintain its open and receptive attitude towards public international law in the future.

Secondly, it is disappointing, though not unexpected, that the Supreme Court adopted a systematic and historic interpretation of the prohibition on cruel, inhuman and degrading treatment. Such an interpretation inescapably leads to the conclusion that the death penalty is not in itself a form of cruel, inhuman and degrading treatment: indeed, how can capital punishment constitute a violation of the prohibition on cruel, inhuman and degrading treatment if it is explicitly permitted as an exception to the right to life? Yet, this conclusion sits uneasily with the modern day understanding of the words “cruel, inhuman or degrading treatment and punishment” adopted by a majority of the international community. The Constitutional Court of South Africa has expressly acknowledged this discrepancy between the ordinary and legal meaning of the words “cruel, inhuman or degrading treatment and punishment”:

“In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment. … Death is a cruel penalty and the legal processes which necessarily involve waiting in uncertainty for the sentence to be 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 or her as an object to be eliminated by the state. The question is not, however, whether the death sentence is a cruel, inhuman or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman or degrading punishment within the meaning of … our Constitution.”Footnote 33

This dichotomy between the ordinary and legal meaning is clearly rooted in the willingness of domestic and international human rights courts to resort to a systematic interpretation of the prohibition on cruel, inhuman or degrading treatment. Yet, courts should not feel compelled to adopt such an interpretation. Indeed, the use of systematic interpretation has recently been explicitly challenged by the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.Footnote 34 The special rapporteur submits that, while systematic interpretation was a fully legitimate method of interpretation at the time of the adoption of the respective international treaties, human rights bodies and courts have since developed a dynamic interpretation of the provisions of human rights treaty law.Footnote 35 Human rights treaties are “living instruments” that need to be interpreted in the light of present-day conditions.Footnote 36

To illustrate his point, the special rapporteur sets out the development of international human rights law with regard to corporal punishment. At the time the respective human rights treaties were adopted, corporal punishment was not regarded as a form of cruel, inhuman or degrading treatment.Footnote 37 However, as states' attitudes towards corporal punishment shifted in the 1960s and 1970s, human rights courts began to adopt a dynamic interpretation of the prohibition on cruel, inhuman or degrading treatment, concluding that various forms of corporal punishment were no longer compatible with the modern-day meaning of those words.Footnote 38 Rather than interpreting cruel, inhuman or degrading treatment in terms of physical suffering, human rights courts began to focus on an individual's right to personal integrity and human dignity.Footnote 39 The special rapporteur argues that attitudes towards capital punishment have similarly begun to shift in the past few decades, creating a “clear trend towards abolition under international treaty law and practice”.Footnote 40 Were human rights or domestic courts to adopt a dynamic interpretation of the prohibition on cruel, inhuman or degrading treatment in relation to capital punishment, it is almost certain that capital punishment would no longer be found to be compatible with the modern-day meaning of those words. Indeed, some judges have already analysed capital punishment in terms of human dignity; for example, US Supreme Court Justice Brennan expressed the following opinion in the case of Gregg v Georgia:

“The fatal constitutional infirmity in the punishment of death is that it treats members of the human race as non-humans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the clause [prohibiting cruel and unusual punishment] that even the vilest criminal remains a human being possessed of common human dignity.”Footnote 41

In addition, three of the seven judges in the Superior Court of Quebec expressed the following opinion in the case of Kindler v Canada:

“It is the supreme indignity to the individual, the ultimate corporal punishment, the final and complete lobotomy and the absolute and irrevocable castration. [It is] the ultimate desecration of human dignity. … Capital punishment is per se cruel and unusual.”Footnote 42

The special rapporteur's analysis also finds support in the recent jurisprudence of the European Court of Human Rights (ECHR). In 1989, in the case of Soering v UK (Soering), the ECHR acknowledged the potential for a dynamic interpretation of the prohibition on cruel, inhuman or degrading treatment:

“Subsequent practice in national penal policy, in the form of a generalized abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under [the right to life] and hence to remove a textual limit on the scope for evolutive interpretation of [the prohibition on cruel, inhuman and degrading treatment].”Footnote 43

Yet, it was not until 2010, in the case of Al-Saadoon and Mufdhi v UK, that the ECHR was prepared to adopt such an interpretation. In this case, the ECHR held that the near universal number of signatures to and ratifications of Protocol No 13, concerning the abolition of the death penalty in all circumstances, as well as the consistent state practice in observing the moratorium on capital punishment “are strongly indicative that [the right to life] has been amended so as to prohibit the death penalty in all circumstances”.Footnote 44 In this light, the ECHR concluded that the express exception to the right to life under the European Convention on Human Rights is no longer a bar to its interpreting the words “inhuman or degrading treatment or punishment” as including the death penalty.Footnote 45

While it was to be expected that the Supreme Court of Uganda would not adopt such a progressive approach, especially since the Constitution expressly permits the death penalty, it is hoped that more domestic and international human rights courts will follow the lead of the ECHR in the future.

THE CONSTITUTIONALITY OF THE MANDATORY DEATH PENALTY

According to Ugandan legislation, the offences of murder,Footnote 46 aggravated robbery,Footnote 47 treasonFootnote 48 and terrorism, if it directly results in the death of any person,Footnote 49 are subject to a mandatory death sentence on conviction. Of the 417 death row detainees who originally lodged the petition challenging the death penalty to the Constitutional Court in 2004, 415 had been convicted of murder or aggravated robbery, and consequently had not been afforded an opportunity to mitigate their sentences.Footnote 50 Having decided that the death penalty does not in itself violate the Constitution, the Supreme Court of Uganda went on to consider whether the mandatory imposition of the death penalty for certain crimes is unconstitutional.

The problems associated with the mandatory death penalty have been emphasized by the UN special rapporteur on extrajudicial, summary or arbitrary executions:

“The legislation of a significant number of States provides for the death penalty to be mandatory in certain circumstances. The result is that a judge is unable to take account of even the most compelling circumstances to sentence an offender to a lesser punishment, even including life imprisonment. Nor is it possible for the sentence to reflect dramatically differing degrees of moral reprehensibility of such capital crimes.”Footnote 51

In addition, it is notable that the former UN Commission on Human Rights has previously called on those states that still maintain the death penalty to ensure that “the death penalty is not imposed … as a mandatory sentence”.Footnote 52

Against the background of this international pressure, as well as a growing body of human rights case law calling for an end to the mandatory death penalty,Footnote 53 the Supreme Court concluded in Kigula that the mandatory death sentence is inconsistent with the Constitution. Interestingly, in contrast to its analysis of the constitutionality of the death penalty itself, the Supreme Court omitted any consideration of the position under public international law, instead focusing on a purely constitutional analysis. In this regard, the Supreme Court made two points.

First, the court held that the mandatory death penalty compromises the principle of fair trial and is inconsistent with the principle of equality before and under the law.Footnote 54 According to the Supreme Court:

“A trial does not stop at convicting a person. The process of sentencing a person is part of the trial. This is because the court will take into account the evidence, the nature of the offence and the circumstances of the case in order to arrive at an appropriate sentence. … But the Court is denied the exercise of this function where the sentence has already been pre-ordained by the Legislature, as in capital cases.”Footnote 55

Secondly, the Supreme Court emphasized that the mandatory death penalty breaches the principle of separation of powers under the Constitution.Footnote 56 Article 126 of the Constitution provides that the administration of justice, a process which includes both the conviction and the sentencing of an accused individual, is a function of the judiciary.Footnote 57 By fixing a mandatory death penalty, Parliament had removed the judiciary's power to determine sentences, in essence “tying the hands of the judiciary in exercising its function to administer justice”.Footnote 58 The Supreme Court concluded that such fettering of the judiciary's discretion clearly violates article 126 of the Constitution.Footnote 59

While the ruling of the Supreme Court with regard to mandatory sentences is to be welcomed, it is important to note that not all prisoners will now be afforded an opportunity to mitigate their sentences. The Supreme Court held that only the cases of those individuals whose sentences are still pending before an appellate court shall be remitted to the High Court for a mitigation trial.Footnote 60 For those respondents whose sentences have already been confirmed by the highest appellate court, their petitions for mercy under article 121 of the Constitution must be processed and determined within three years from the date their sentence was confirmed. Where no decision is made by the executive after three years, the death sentence shall be deemed commuted to imprisonment for life without remission.Footnote 61 By only granting a right to mitigate to those individuals whose cases are still pending before an appellate court, the Supreme Court is arguably in breach of article 21(1) of the Constitution, which provides that all persons are equal before and under the law: “[a]ll persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.”Footnote 62

By distinguishing between different classes of individuals, all of whom have been subject to the mandatory imposition of the death penalty, the Supreme Court failed to ensure that all such individuals enjoy equal protection of the law: the right to mitigate should be available to all individuals who have been sentenced to death under a mandatory sentence regardless of whether they had previously exhausted the appellate process. In this regard, it is possible that the Supreme Court was driven by motivations of efficiency; the court may have concluded that it is simply not feasible to have hundreds of new mitigation trials before the High Court.Footnote 63 By limiting the right to mitigate, the Supreme Court effectively avoided creating a caseload with which the Ugandan criminal justice system is ill-equipped to deal. Nonetheless, the point remains that first and foremost the Supreme Court has a duty to treat all individuals equally before the law; by limiting the right to mitigate, the Supreme Court failed to fulfil this duty.

THE CONSTITUTIONALITY OF PROLONGED DETENTION PRIOR TO EXECUTION

“It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”Footnote 64

The third issue which the Supreme Court had to consider was whether prolonged detention prior to execution constituted a form of cruel, inhuman or degrading treatment in violation of articles 24 and 44(a) of the Constitution.Footnote 65 The Supreme Court framed the issue as raising one fundamental question:

“[W]here a death sentence has been passed lawfully, can there be supervening events which can render the carrying out of such death sentence on the condemned prisoners to constitute inhuman and degrading treatment contrary to article 24 of the Constitution.”Footnote 66

The court adopted a five stage analysis in tackling this question. First, the court confirmed that a condemned person “does not lose all his other rights as a human being” and “is still entitled to his dignity”.Footnote 67 Secondly, the court set out several “key features” of what has become known as “death row syndrome”.Footnote 68 In this regard, the court pointed to the natural fear of death with which a condemned prisoner must live, particularly in the period between the rendering of a final sentence and the moment the execution takes place; the court also referred to the prison conditions under which a condemned prisoner is detained pending execution.Footnote 69 Thirdly, the court confirmed that “society should not wish to put a person to death expeditiously” and that a person sentenced to death must be given “as much latitude as possible to exhaust not only the court appellate processes but even all appeals for clemency before the sentence of death is carried out”.Footnote 70 In this regard the court, in a particularly striking passage, emphasized the importance of the appeal and clemency process by contrasting the finality of the death penalty with the fallibility of the justice system under which it is administered:

“[T]he death sentence is final. It extinguishes life. It should therefore not be carried out in a hurry. There have been reported too many instances where persons who have spent many years on death row are finally found to have been wrongly convicted and been released or had their sentences commuted. Had such persons been executed so as to avoid their suffering of the death row syndrome, it would have been gross miscarriage of justice, far worse than death row syndrome.”Footnote 71

Fourthly, the court held that the clemency process provided for under article 121 of the Constitution, when read in conjunction with article 28 which sets out the right to a fair, speedy and public trial, should be put in motion “as quickly as possible so that the person knows his fate” since “keep[ing] persons on death row for an indefinite period … could not have been envisaged by the Constitution”.Footnote 72 In order to explain the lack of any express provision in article 121 setting out a time limit within which the president should exercise the prerogative of mercy, the court cited section 34(2) of the Interpretation Act, which provides: “[w]here no time is prescribed or allowed within which anything shall be done, that thing shall be done without unreasonable delay and as often as due occasion arises.”Footnote 73 In this light, the Supreme Court agreed with the finding of the Constitutional Court that to hold a person beyond three years after the confirmation of sentence is “unreasonable”.Footnote 74 Finally, the court held that this period of delay should be counted from the time when the death sentence is confirmed by the highest court since it is only at this stage that a prisoner “realistically faces the death penalty, as he is now at the mercy of the President”;Footnote 75 therefore, according to the court, a prisoner's “anxiety and worry about the death sentence would start from there”.Footnote 76 At the end of a period of three years after the confirmation of the death sentence by the highest appellate court, and if the president shall not have exercised his prerogative of mercy one way or the other, the death sentence shall be deemed to be commuted to life imprisonment without remission.Footnote 77

In determining the legal effect of prolonged detention prior to execution, the court grappled with an issue on which international human rights courts are yet to reach consensus.Footnote 78 On the one hand, in the landmark case of Soering, the ECHR took account of the effect of prolonged detention and in particular “the anguish and mounting tension of living in the ever-present shadow of death” experienced by condemned prisoners, as a factor which led it to conclude that the applicant's extradition to the US would expose him to a real risk of cruel and inhuman treatment.Footnote 79 In Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and Others, the Supreme Court of Zimbabwe confirmed the approach adopted in Soering and explained that:

“It seems … highly artificial and unrealistic to discount the mental agony and torment experienced on death row on the basis that by not making the maximum use of the judicial process available the condemned prisoner would have shortened and not lengthened his suffering.”Footnote 80

In Pratt and Others v Attorney General for Jamaica (Pratt), the Privy Council held that, in any case in which execution is to take place more than five years after the initial sentence, there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading treatment.Footnote 81

By contrast, in Barrett and Sutcliffe v Jamaica, the Human Rights Committee held that “prolonged judicial proceedings do not per se constitute cruel, inhuman and degrading treatment, even if they may be a source of mental strain and tension for detained persons”.Footnote 82 In Errol Johnson v Jamaica, the Human Rights Committee set out what it considered the negative implications of making a finding that prolonged detention on death row, in itself, constitutes a form of cruel, inhuman or degrading treatment. First, it would lead to an incongruous situation whereby a state which executes a condemned prisoner after a certain period of time on death row will not be in violation of the ICCPR, whereas if it refrains from doing so, it will violate the ICCPR.Footnote 83 Secondly, it would convey the erroneous message to states retaining the death penalty that they should carry out a capital sentence “as expeditiously as possible after it was imposed”, whereas, to the contrary, in the committee's opinion,“[l]ife on death row, harsh as it may be, is preferable to death”.Footnote 84

In Kigula, the Supreme Court appears to have adopted an intermediary approach between these two extremes. On the one hand, the court appears to have followed the approach of the ECHR, the Supreme Court of Zimbabwe and the Privy Council by confirming that an inordinate delay in executing a condemned prisoner can constitute cruel, inhuman or degrading treatment.Footnote 85 On the other hand, the court also made two findings which lean towards the more subjective approach of the Human Rights Committee. First, the court held that death is always “far worse” than the death row syndrome.Footnote 86 Secondly, the court held that a prisoner's anxiety and concern about the death sentence would begin only after he has received confirmation of his conviction and sentence by the highest appellate court.Footnote 87 On each point, the court did not offer a legal analysis, but merely asserted the subjective opinion of its members. In relation to the first point, as Christine Chanet noted in her individual opinion in Johnson:

“In an analysis of human behaviour, it is not exceptional to find that a person suffering from an incurable illness, for example, prefers to take his own life rather than await the inevitably fatal outcome, thereby opting for immediate death rather than the psychological torture of a death foretold.”Footnote 88

In relation to the second point, the court failed to prove how the fact that a prisoner retains the “hope of succeeding legally in the courts”Footnote 89 ensures that he lacks any anxiety about the death sentence. The court failed to prove why inordinate delay before the final confirmation of a prisoner's conviction and sentence is no worse psychologically than delay after the final confirmation. The Ugandan appellate process can at times be unacceptably slow; the delay in waiting to find out the success or failure of an appeal can be just as cruel, inhuman or degrading as the delay in waiting to find out the ultimate date of execution after a prisoner's conviction and sentence has been confirmed by the highest appellate court. The court had the opportunity to hold the Ugandan appellate process to account, but instead chose to guard the Ugandan justice system from criticism. In this light, the court should have followed the reasoning of the Privy Council in Pratt:

“If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of [any court's] jurisprudence.”Footnote 90

Against this background, while the court's conclusion that prolonged detention prior to execution can constitute a form of cruel, inhuman or degrading treatment is welcome, the court should not have limited the scope of period to be regarded as delay in execution to “when the sentence of death is executable ie after it has been confirmed by the highest court”.Footnote 91

THE CONSTITUTIONALITY OF HANGING AS A METHOD OF EXECUTION

“In 1999, the late James Kigingi was hanged. However, because of his weight, he did not die and merely fell down on the table in the basement. This prompted the prison warders and the executioners to bundle him up and take him back to the gallows and hang him again. Once again, the same thing happened. This time the prison warders stabbed him and hit him on the head with a hammer until he died.”Footnote 92

In Uganda, hanging is the legal mode of execution under section 99(1) of the Trial of Indictments Act. The final issue before the Supreme Court was whether hanging as a method of execution constitutes a form of cruel, inhuman or degrading treatment in violation of articles 24 and 44(a) of the Constitution.Footnote 93 In light of its finding that the death penalty itself is constitutional, the court was faced with the following problem:

“If the Constitution permits the death penalty, the difficulty must be to identify that method of carrying it out that will extinguish the life of the condemned person without causing excessive pain and suffering.”Footnote 94

In tackling this issue, the court referred to resolution 1984/50, in which the Economic and Social Council had held that “[w]here capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering”.Footnote 95 The court held that this standard requires a comparative scientific study of the various methods of execution to determine which one imposes the least suffering.Footnote 96 In this regard, the court held that it had been presented with no evidence to indicate that lethal injection is any more humane than hanging,Footnote 97 but that ultimately it was the responsibility of the Ugandan legislature to conduct a comparative study to identify a method of execution which conforms to the evolving standards of decency.Footnote 98 In the meantime, the court still had to resolve the issue of whether hanging constitutes a form of cruel, inhuman or degrading treatment. In this regard, the court adopted reasoning akin to that used in relation to the question of whether the death penalty in itself constitutes a form of cruel, inhuman or degrading treatment. First, the court acknowledged that all methods of execution could potentially, in their ordinary meaning, be deemed cruel, inhuman or degrading:

“It is not in dispute that fear, anguish, etc must accompany a sentence of death by hanging. But then which method of carrying out a death sentence does not invoke these natural instincts in a normal human being?”Footnote 99

However, in the legal context of the Constitution, the court ultimately held that “the pain and suffering experienced during the hanging process is inherent in the punishment of the death penalty which has been provided for in the constitution” and does not therefore violate article 24.Footnote 100 The court then concluded by explaining that:

“[Although] the issue is not whether the method of execution causes instant death, but whether it causes minimum possible pain and suffering … a method that causes death within minutes would, in our view meet the standard of not causing excessive pain and suffering.”Footnote 101

The court's conclusions are unsurprising in light of the existing international jurisprudence on this issue. First, the court's acknowledgement that fear and anguish are inherent to all forms of execution echoes the words of the Human Rights Committee, which has previously acknowledged its awareness that “by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment”.Footnote 102 This acknowledgement by both the Human Rights Committee and the Supreme Court illustrates that it is becoming increasingly difficult for international courts and human rights bodies to draw a legitimate distinction between the ordinary and legal meaning of the prohibition on cruel, inhuman or degrading treatment. Secondly, the court's equation of what constitutes an “excessive” level of pain and suffering with the swiftness of death is reminiscent of the Human Rights Committee's finding that asphyxiation by cyanide gas constitutes a form of cruel and inhuman treatment because death “may take over 10 minutes”.Footnote 103 In this regard, both the Human Rights Committee and the Supreme Court are guilty of engaging in what Kurt Herndl has termed a “futile … attempt to quantify the pain and suffering of any human being subjected to capital punishment”.Footnote 104 Against the background of such criticism, while the court's conclusions are generally in line with established international standards, it is regrettable that the court shied away from taking a more progressive approach.

CONCLUSION

This article has provided a critique of the Supreme Court's reasoning in Kigula. In reviewing the court's reasoning as a whole, two characteristics are particularly noteworthy.

First, the court's reasoning is largely in line with interpretations adopted by international courts and human rights bodies. This can be seen as both a blessing and a curse. On the one hand, it is encouraging for a domestic court to aspire to international standards and take account of international human rights jurisprudence. On the other hand, the court appears at times to have followed the approach of international courts without scrutiny, even where such findings have been subject to much criticism. This is most noticeable in the willingness of the Supreme Court to distinguish between the ordinary and legal meaning of the prohibition on cruel, inhuman or degrading treatment. By shying away from a more dynamic interpretation of the Constitution, the court was able to conclude that both the death penalty itself and hanging as a method of execution do not violate the prohibition. In this regard, the court missed an opportunity to adopt a more progressive approach towards these issues.

Secondly, the court's reasoning is extremely deferential to the Ugandan legislature and protective of the Ugandan criminal justice system. In respect of the impact of prolonged detention prior to execution, by limiting the scope of what counts as a delay to the period after the confirmation of a prisoner's sentence by the highest appellate court, the court failed to subject the Ugandan appellate process to scrutiny. In addition, the court left the burden of defining acceptable methods of execution to the legislature. Finally, the court concluded its judgment by calling on the legislature for a fresh debate on the desirability of the death penalty in the Ugandan Constitution:

“[W]e wish to urge that the Legislature should reopen debate on the desirability of the death penalty in our Constitution, particularly in light of findings that for many years no death sentences have been executed yet the individuals concerned continue to be incarcerated on death row without knowing whether they were pardoned, had their sentences remitted, or are to be executed. The failure, refusal or neglect by the Executive to decide on those death sentences would seem to indicate a desire to do away with the death penalty.”Footnote 105

Viewed in this light, despite the positive findings that the mandatory death penalty and prolonged detention prior to execution constitute cruel, inhuman or degrading treatment, the Kigula judgment will most likely be remembered for the Supreme Court's relative restraint.

Footnotes

Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid

References

1 PH Imbert, director general of human rights of the Council of Europe, quoted in Krüger, HC “Protocol no 6 to the European Convention on Human Rights” in Council of Europe, Death Penalty, Beyond Abolition (2004, Council of Europe) 87 at 96Google Scholar.

2 Attorney General v Susan Kigula and 417 Others Supreme Court of Uganda, constitutional appeal no 3 of 2006, 21 January 2009.

3 Kigula, above at note 2 at 2.

4 Id at 10. Under the Ugandan Penal Code, eight offences carry death sentences: treason (sec 23); smuggling where the offender is armed with, uses or threatens to use a deadly weapon (sec 319(2)); detention with sexual intent, where a person having authority to detain or keep the victim in custody participates in or facilitates unlawful sexual intercourse (sec 134(5)); murder (sec 189); kidnapping with intent to murder (sec 243); rape (sec 124); defilement (sec 129(1)); and aggravated robbery (sec 286(2)). Under the Anti-Terrorism Act 2002, the crimes of terrorism and related offences are also punishable by death (see secs 7(2) and 8).

5 Kigula, id at 12–20.

6 Id at 20–34.

7 Id at 20, 27 and 33–34.

8 Art 31 of the Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331, provides that provisions of international treaties should be interpreted in their context.

9 Kigula, above at note 2 at 23.

10 Id at 12.

11 Id at 14.

12 Id at 16.

13 Id at 17.

14 Id at 18.

15 Ibid.

16 See id at 14–17.

17 Id at 14.

18 GA res 2200 (XXI), UN GAOR, 21st session, supp no 16, at 49: UN doc A/6316 (1966), art 6(1) (emphasis added). See also the American Convention on Human Rights (1978) 1144 UNTS 123, art 4(2) and the European Convention on Human Rights (1955) 213 UNTS 221, art 2. See also art 4 of the African Charter: OAU doc CAB/LEG/67/3 rev 5: 21 ILM 58 (1982): “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right” (emphasis added). It is notable that, unlike other international human rights treaties, the African Charter is silent on the subject of the death penalty itself.

19 See Kigula, above at note 2 at 4.

20 Art 6(2): “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.” Art 6(4): “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.” Art 6(5): “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”

21 See Kigula, above at note 2 at 15.

22 See id at 16.

23 Human Rights Committee, comm no 469/1991, 5 November 1993 (Ng) at para 10.4, citing Canada's submissions. See also Joseph Kindler v Canada Human Rights Committee, comm no 470/1991, 30 July 1993 at para 15.1: “[a]s regards the author's claims that Canada violated article 7 of the Covenant, this provision must be read in the light of other provisions of the Covenant, including article 6, paragraph 2, which does not prohibit the imposition of the death penalty in certain limited circumstances. Accordingly, capital punishment as such, within the parameters of article 6, paragraph 2, does not per se violate article 7.”

24 ICCPR, art 6(6).

25 See State v T Makwanyane and M Mchunu, case no CCT/3/94, 6 June 1995 (Makwanyane) at para 67: “[W]hat is clear from the decisions of the Human Rights Committee of the United Nations is that the death penalty is regarded by it as cruel and inhuman punishment within the ordinary meaning of those words, and that it was because of the specific provisions of the International Covenant authorising the imposition of capital punishment by member States in certain circumstances, that the words had to be given a narrow meaning”.

26 Kigula, above at note 2 at 15.

27 Id at 26.

28 Id at 33.

29 Id at 20, 27 and 33–34.

30 Id at 16.

31 Id at 20, 27 and 33–34.

32 Schabas, WA “International law and the death penalty: Reflecting or promoting change?” in Hodgkinson, P and Schabas, WA (eds) Capital Punishment: Strategies for Abolition (2004, Cambridge University Press) 36 at 39–40Google Scholar.

33 Makwanyane, above at note 25 at para 26. See also White J in Furman v Georgia US Supreme Court 408 US 238, 29 June 1972 (Furman) at para 150: “The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense”. See also Ng, above at note 23 at para 16.2: “The Committee is aware that, by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the Covenant.”

34 “Report of the special rapporteur on torture and other cruel, inhuman or degrading treatment of punishment”: A/HRC/10/44 Human Rights Council 7th session (14 January 2009).

35 Id at paras 46–47.

36 Id at para 47.

37 Id at para 35.

38 See, for example, Tyrer v UK European Court of Human Rights application no 5856/72, 25 April 1978 (Tyrer) at para 31; Osborne v Jamaica Human Rights Committee, comm no 759/1997, 15 March 2000, at paras 3.3 and 10; and Winston Caesar v Trinidad and Tobago Inter-American Court of Human Rights, series C no 123, 11 March 2005.

39 “Report of the special rapporteur”, above at note 34 at para 41; Tyrer, id at para 33: “Although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which it is [sic] one of the main purposes of Article 3 (art 3) to protect, namely a person's dignity and physical integrity.”

40 “Report of the special rapporteur”, id at para 32.

41 Gregg v Georgia US Supreme Court, 428 US 53, 2 July 1976, Brennan J dissenting at para 186, citing Furman, above at note 33 at para 85.

42 Kindler v Canada (Minister of Justice) Supreme Court of Canada [1991] 2 SCR 779, 26 September 1991, Cory J dissenting (Lamer CJC concurring) at 241 and Sopinka J dissenting (Lamer CJC concurring) at 220, cited in Makwanyane, above at note 25 at para 60.

43 ECHR application no 14038/88, 7 July 1989 at para 103. See also Öcalan v Turkey ECHR application no 46221/99, 12 May 2005 at para 163.

44 ECHR application no 61498/08, 2 March 2010 (Al Saadoon) at para 120.

45 Ibid. See also W Schabas “European Court of Human Rights death penalty decision raises difficult issues” (6 April 2010) PhD Studies in Human Rights Blog, noting that the ECHR went on to make the “perplexing” finding that “[t]he inhuman treatment is not the imposition of the death penalty itself, but rather the ‘psychological suffering’ or ‘mental suffering’ inflicted upon the applicants by their exposure to capital punishment”, available at: <http://humanrightsdoctorate.blogspot.com/2010/04/european-court-of-human-rights-death.html> (last accessed 7 June 2011).

46 Ugandan Penal Code, sec 189.

47 Id, sec 286 (2).

48 Id, sec 23.

49 Anti-Terrorism Act 2002, sec 7.1a.

50 International Federation of Human Rights “International fact-finding mission - Uganda: Challenging the death penalty” (report no 425/2, October 2005) (FIDH report) at 19.

51 “Civil and political rights, including the questions of disappearances and summary executions” (report of the UN special rapporteur on extrajudicial, summary or arbitrary executions, UN Commission on Human Rights, 61st Session, E/CN.4/2005/7, 22 December 2004) at para 63.

52 Res 2005/59, UN Commission on Human Rights, 20 April 2005, clause 7(f).

53 See, for example: Eversley Thompson v St-Vincent and the Grenadines Human Rights Committee, comm no 806/1998, 18 October 2000, at para 8.2: “The Committee considers that such a system of mandatory capital punishment would deprive the author of the most fundamental of rights, the right to life, without considering whether this exceptional form of punishment is appropriate in the circumstances of his or her case”; Edwards and Others v The Bahamas Inter-American Commission on Human Rights, report no 48/01, 4 April 2001, at para 138: “imposing a mandatory penalty of death … prohibits a reasoned consideration of each individual case to determine the propriety of the punishment in the circumstances, despite the fact that [crimes] can be committed under widely-differing circumstances. By its nature, then, this process eliminates any reasoned basis, for sentencing a particular individual to death and fails to allow for a rational and proportionate connection between individual offenders, their offenses, and the punishment imposed on them”. See also the jurisprudence of the Privy Council, which has held on several occasions that the mandatory death penalty is incompatible with fundamental human rights in appeals from several jurisdictions: Reyes v The Queen Privy Council on appeal from Belize [2002] 2 AC 235, at para 43: “to deny the offender the opportunity, before sentence has been passed, to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate is to treat him as no human being should be treated and thus to deny his basic humanity”; Bowe and Davis v The Queen Privy Council on appeal from the Bahamas [2006] 1 WLR 1623; Watson v The Queen Privy Council on appeal from Jamaica [2005] 1 AC 472; Matthew v The State Privy Council on appeal from Trinidad and Tobago [2005] 1 AC 433; Boyce and Joseph v The Queen Privy Council on appeal from Barbados [2005] 1 AC 400; Fox v R Privy Council on appeal from St Christopher and Nevis [2002] 2 AC 284; R v Hughes Privy Council on appeal from St Lucia [2002] 2 AC 259; and Lubuto v Zambia Human Rights Committee, comm no 390/1990, 31 October 1995, at para 7.2. See also WA Schabas The Abolition of the Death Penalty in International Law (2002, Cambridge University Press) at 111, noting that, since art 6(4) of the ICCPR requires that all death sentences be subject to commutation or reprieve, “it appears that the spirit of the Covenant opposes mandatory death sentences”.

54 Kigula, above at note 2 at 41–43.

55 Id at 41.

56 Id at 44.

57 Ibid.

58 Id at 45.

59 Ibid.

60 Id at 64.

61 Id at 63. Pursuant to sec 86(3) of the Prisons Act, life imprisonment is deemed to be 20 years. This was confirmed by the solicitor general in a supplementary interpretation of the Kigula judgment, issued in response to a request by the commissioner general dated 12 March 2009: see letter from the solicitor general (11 May 2009) at 4.

62 The Constitution, art 21(1) (emphasis added).

63 The Ugandan criminal justice system suffers from severe trial delays and a large backlog of cases; see, for example, Foundation for Human Rights Initiative The Human Rights Status Report 2007 at 27, available at: <http://www.fhri.or.ug/Uganda%20-%202007%20Human%20Rights%20Status%20Report%20.pdf> (last accessed 1 June 2011). To provide one illustration, in February 2006 it was reported that 4,700 capital suspects were awaiting trial on committal. At least 375 suspects were reported to have spent more than four years in prison. In this regard, see “4,700 capital suspects detained without trial” (5 February 2006) The New Vision.

64 Herrera v Collins US Supreme Court [1993] 506 US 390, at 415, cited with approval in Kigula, above at note 2 at 52.

65 Kigula, id at 45.

66 Ibid.

67 Ibid.

68 Ibid.

69 Ibid.

70 Id at 49–50.

71 Id at 50.

72 Id at 53.

73 Id at 53–54.

74 Id at 55.

75 Id at 56.

76 Id at 55.

77 Id at 57.

78 See Schabas “International law and the death penalty”, above at note 32 at 56–57.

79 Soering, above at note 43 at paras 106 and 111.

80 AHRLR 248 (ZwSC 1993) at para 94.

81 [1994] 2 AC 1 at 35.

82 Barrett and Sutcliffe v Jamaica (nos 279/1988 and 271/1988) UN doc A/47/40 at para 8.4. However, see the individual opinion of Christine Chanet in Johnson, below at note 83, who submitted that “[a] very long period on death row, even if partially due to the failure of the condemned prisoner to exercise a remedy, cannot exonerate the State party from its obligations under article 7 of the Covenant”.

83 Errol Johnson v Jamaica (no 588/1994) UN doc CCPR/C/56/D/588/1994 (Johnson) at para 8.3.

84 Id at para 8.4. However, see the individual opinion of Francisco José Aguilar Urbina, who criticized both the committee's “basic assumption that awaiting execution is preferable to execution itself” and “the position that … to rule that the excessive length of time which Errol Johnson spent on death row constitutes a violation of the Convention would be to convey a ‘message’ to States parties that they should execute those condemned to death expeditiously” as “a subjective opinion of the majority”, which “represents the feelings of the Committee members rather than a legal analysis”. See also the individual opinion of Christine Chanet, who held that the committee's conclusion that the setting of a time-limit would provoke hasty execution “is a subjective analysis in that the Committee is anticipating a supposed reaction by the State”. Despite such criticism, the Human Rights Committee has stuck to its position ever since this decision, on which see Schabas “International law and the death penalty”, above at note 32 at note 375 for a comprehensive list of the jurisprudence of the Human Rights Committee.

85 Kigula, above at note 2 at 48–49.

86 Id at 50.

87 Id at 55–56.

88 Johnson, above at note 83, individual opinion of Christine Chanet.

89 Kigula, above at note 2 at 48–49.

90 Pratt, above at note 81 at 33.

91 Kigula, above at note 2 at 56.

92 Godfrey Mugaanyi, affidavit sworn 28 August 2003, Kampala, cited in FIDH report, above at note 50 at 39.

93 Kigula, above at note 2 at 58.

94 Id at 60.

95 Res 1984/50, Economic and Social Council, 25 May 1984, safeguard no 9, cited in Kigula, ibid. See also: general comment no 20, Human Rights Committee, 1992, at para 6: “when the death penalty is applied by a State party for the most serious crimes, it must not only be limited in accordance with article 6 but it must be carried out in such a way as to cause the least possible physical and mental suffering”. See also res 2004/67, Commission on Human Rights, 21 April 2004 at para 4(i): “[u]rges all States that still maintain the death penalty … to ensure that, where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering and shall not be carried out in public or in any other degrading manner, and to ensure that any application of particularly cruel or inhuman means of execution, such as stoning, is stopped immediately” (emphasis original).

96 Kigula, id at 61.

97 Ibid.

98 Ibid.

99 Ibid.

100 Id at 62 (emphasis added).

101 Id at 62–63.

102 Ng, above at note 23 at para 16.2.

103 Id at para 16.3.

104 Id at para 18: individual opinion of Kurt Herndl (dissenting). See also individual opinion of Christine Chanet (dissenting), noting that “the Committee engages in questionable discussion when … it assesses the suffering caused by cyanide gas and takes into consideration the duration of the agony, which it deems unacceptable when it lasts over 10 minutes. Should it be concluded, conversely, that the Committee would find no violation of article 7 if the agony lasted nine minutes?”: Johnson, above at note 83.

105 Kigula, above at note 2 at 63.