international treaties on human rights and the death penalty:
International Covenant on Civil and Political Rights
1st Optional Protocol to the Covenant
Convention on the Rights of the Child
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Statute of the International Criminal Court (which excludes the death penalty)
The death penalty is enshrined in article 22 (1) of the Constitution of the Republic of Uganda. It states, “No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.”
The statues which prescribe offences that attract the death penalty are: the Penal Code Act, Cap 120, the
Anti-Terrorism Act, 2002 amended in 2015 and the Uganda Peoples Defence Forces (UPDF) Act, 2005.
In April 2007, the Parliament passed a law that prescribes the death penalty for those who intentionally transmit the HIV virus.
On 3 April 2009, the Parliament unanimously created a new clause in the “Prevention of Trafficking of Persons Bill 2007” providing for the death penalty as a maximum sentence to a person convicted of human trafficking.
The Penal Code Act, Cap 120 accounts for eight offences that attract the death penalty which are: Murder (Section 189), Aggravated Robbery (Section 286 (2)), Rape (Section 123), Aggravated Defilement (129 (1) of the Penal Code Amendment Act 2007), Treason and Offences against the State (Section 23), Kidnap with Intent to Murder (Section 243), Smuggling while Armed (Section 319(2)) and Detention with Sexual Intent (Section 134).
Uganda has 28 offences (civilian and military) that attract the death sentence. The law exempts certain categories of people from being sentenced to death: juveniles, pregnant women, and mentally ill persons.
Section 99 of the Trial on Indictments Act, Cap 23 provides that hanging is the preferred mode of execution for offenders sentenced to death by civilian courts; while firing squad is the preferred mode of execution for offenders sentenced to death by military courts.
On 4 of September 2003 Katende Ssempebwa & Company advocates under instructions of the Foundation for Human Rights Initiative (FHRI) filed a petition before the Ugandan Constitutional Court on behalf of all the 417 living inmates sentenced to death in Uganda at the time, in the Susan Kigula case. The ruling was made on 10th June 2005. In 2006 an appeal was made to the Supreme Court by the Attorney General and a cross appeal by the petitioners. On 21st January 2009, the Supreme Court confirmed the declarations made by the Constitutional Court with a few modifications to the orders.
Although the Kigula case did not lead to full abolition of the death penalty by the courts, it led to two main outcomes: mandatory death penalty and a delay of 3 or more years in carrying out the execution following confirmation of the sentence by the Supreme Court were held unconstitutional.
As an outcome, all prisoners who had spent above 3 years on death row after confirmation of their sentence by the highest appellant courts had the sentence commuted to life imprisonment without parole.
Those whose sentences arose from mandatory sentence provisions and were still pending before appellate courts had their cases remitted to the High Court for them to be heard only on mitigation of sentence and new sentences passed.
This led to a drastic decline in the death row population arising mainly from mitigation hearings, which saw most of the death sentences quashed.
On 15 March 2016, Ms Aliyo Natukunda of Uganda Prisons Service at a Capacity building Forum organized by Foundation for Human Rights Initiative (FHRI) said that since the ruling, 13 formerly condemned women have been released, while 18 are serving long-term sentences. On the part of men, 48 are serving 20 years without remission, 264 are through with mitigation, 19 are pending mitigation, 8 were released from court after the mitigation hearings, 15 were given terms of imprisonment and they served and were released, 21 were sentenced to life in prison,119 were given determinate sentences (5 to 50 years), 20 had their death sentences confirmed, 2 were sent to mental hospital, 2 are pending Minister’s Order and 2 were pardoned. The death sentence is still being handed down. 4 new admissions were received in 2015. Overall there are 75 new admissions since the Kigula ruling and the general death row population is 208 (197 men and 11 women).
Uganda attracted international scrutiny from 2009, when a Private members’ bill was introduced to Parliament, which would have mandated the death penalty for aggravated homosexuality. The Bill was ultimately passed by the Parliament in December 2013 and signed into law by the president in February 2014, but the capital punishment provision was eliminated and substituted with life imprisonment. The Constitutional Court however ruled the Anti-Homosexuality Act invalid in August 2014 on procedural grounds, as it was not passed with the required quorum.
After the Kigula ruling, some judges who are proponents of the death penalty resorted to issuing sentences beyond 50 years because the ruling was to the effect that those who stay on death row beyond 3 years will have their sentences commuted to life imprisonment which according to the Prisons’ Act is construed to mean 20 years.
In April 2013, former Chief Justice Benjamin Odoki issued the “Sentencing Guidelines for Courts of Judicature”, aimed at strengthening humane, predictable and consistent sentencing. These Guidelines do not address the issue of the death penalty, but stress the importance of taking into account aggravating or mitigating circumstances and the necessity to introduce further transparency and uniformity in the sentencing process.
They define a long-term sentence to mean a custodial sentence ranging from 30 to 45 years.
Whereas both the Constitutional and the Supreme Courts held that mandatory death penalties are unconstitutional in 2005 and 2009, to date, the laws have not been revised to remove the inconsistency. Upon this premise, On 6 April 2016, it was before the Parliamentary and Legal Affairs Committee the Law Revision (Penalties in Criminal Matters) Miscellaneous Amendments Bill 2015 moved by Serere District Woman MP Alice Alaso in November 2015 to propose life imprisonment for crimes like murder, rape, aggravated robbery, aggravated defilement and terrorism. If passed, the Bill will amend and repeal the provisions in the Anti-Terrorism Act 2002, The Penal Code Act chapter 120 of the laws of Uganda, the Uganda Peoples Defence Forces Act, 2005 and the Trial on Indictment Act chapter 23. All these laws provide for mandatory death penalties for convicted persons. The Bill intends to give effect to government’s commitments to the UN following first Universal Periodic Review of Uganda’s human rights record, to consistently apply the rulings of the Supreme Court by converting all death sentences into life imprisonment where the convicts are not executed within three years.
On 26 May 2016, five people convicted of terrorism over the 2010 bomb attacks in Uganda's capital, Kampala, which killed 74 people, have been given life sentences. Handing down the sentences, Justice Alfonse Owiny-Dollo said “Grave crimes of terrorism and murder must correspondingly attract severe punishment. I however, do not believe that the death sentence would really assuage the victims and give them closure to the indelible pain that the society has suffered on account of terrorism and murderous acts”. This depicted the great progress made by the campaign for the abolition of the death penalty.
In June 2012, the Uganda Prisons Services (UPS) spoke out against the death penalty, saying the purpose of prisons is to rehabilitate wrong-doers, and not kill them. “Our mandate is to have safe custody which is humane. We are for reforming and re-integrating, and not hanging prisoners,” said UPS spokesperson Frank Baine at the Uganda Human Rights Commission two-day Forum to promote the rights of detainees. Baine added that hanging prisoners traumatizes both staff and inmates. “Prisoners are part of our family. By the time you hang, it is like you are hanging your own,” he said.
The above situation is worsened by the President’s express support for the death penalty as quoted on various occasions. In the early years of the campaign for the abolition of the death penalty, he was quoted stating in response to the call by human rights organisations to abolish that: “I hear some people saying that the death sentence is inhuman. Very sorry. We shall shoot anybody who kills a human being. You are the one who kills, why can’t we kill you? When our soldiers make mistakes, we punish them.” He still holds the same views because at the opening of the 17th Judges’ conference, on 23 February 2015, he said; “those who willfully kill others should be sentenced to death and hanged under the law.”
In 2016 no death sentence was recorded whereas in 2015 only one death sentence was imposed, as in 2014, while no death sentences at all were handed down in 2012 or 2013. In 2011, there were at least 15 sentences of death handed down.
According to prison records, at least 377 people, including one woman, have been legally executed by hanging since 1938. Last executions were carried out on 3 March 2003, when Pte Richard Wigiri and then Ptes Kambacho Ssenyonjo and Alfred Okech were executed by firing squad after a military court found them guilty of two different murders. In 2016, there were 208 prisoners on death row in Uganda.
(Source: Intervention by Lucy Peace Nantume, Human rights lawyer and activist, (FHRI) to the World Congress against the Death Penalty, 23 June 2016)
The death penalty on women
In Uganda, in 2016 there were 11 women on death row out of a total of 208 prisoners. Since 1938 a woman has been executed out of a total of 377 people sent to the gallows.
On 3 November 2016, Uganda underwent to its second cycle of the UPR. The Government of Uganda, did not accept but noted recommendations on the death penalty, as to introduce a legal moratorium on capital executions, abolish the death penalty, ratify the Second Optional Protocol to the ICCPR. The delegation declared that a de facto moratorium in in place and that the death penalty is not any more mandatory.
On 19 December 2016, Uganda, for the second time, abstained on the Resolution for a Moratorium on the Use of the Death Penalty at the UN General Assembly. It previously voted against.