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Susan Kigula and 416 others v AG: Constitutional Appeal finally heard at Ugandaís Supreme Court.
 
On Thursday the 3rd of July 2008 the Supreme Court of Uganda finally heard the constitutional appeal concerning the imposition of the death penalty in Uganda, three years after the constitutional court gave its original judgement on the case.

The Attorney General was appealing the courtís 2005 decision that made the following declarations (1) that the mandatory death penalty is unconstitutional and (2) that a delay on death row for more than 3 years was unconstitutional. In turn the petitioners, supported by the Foundation for Human Rights Initiative challenged in their cross-appeal the constitutional courtís decision that retained the death penalty as being constitutional and hanging as an appropriate and therefore constitutional mode of carrying out executions.

The case was heard by a panel of seven judges: Chief Justice of Uganda Hon. Justice Bejamin Odoki, Justice John Wilson Tsekooko, Justice Joseph Mulenga, Justice George William Kanyeihamba, Justice Bart Katureebe, Lady Justice Christine Kitumba and Justice Fred Egonda-Ntende. The Attorney General was represented by Ms Angela Kiryabwire-Kanyima whilst Foundation for Human Rights Initiative with the support of Katende Ssempebwa and Company Advocates and the Death Penalty Project UK represented the petitioners, supported by the.

Also present in court were four representatives of the 417 petitioners, two men and two women including Susan Kigula, whose name headed the original petition. The case has been widely reported by a number of media houses in print and on radio and television. The judgement will be delivered on notice and will be eagerly anticipated not just by the 417 prisoners who brought the original case, but by all of the estimated 900 inmates now resident on death row.

SUPREME COURT JUDGEMENT ON CONSTITUTIONAL APPEAL NO. 03 OF 2006 (Attorney General Vs Susan Kigula and 417 Others)
On the 21st of January 2009, the Supreme Court of Uganda passed the long awaited judgment concerning the imposition of the death penalty in Uganda.

The Attorney General was appealing the courtís 2005 decision that made the following declarations (1) that the mandatory death penalty is unconstitutional and (2) that a delay on death row for more than 3 years was unconstitutional. In turn the respondents, supported by the Foundation for Human Rights Initiative challenged in their cross-appeal the constitutional courtís decision that retained the death penalty as being constitutional and hanging as an appropriate and therefore constitutional mode of carrying out executions.

On the issue of the constitutionality of mandatory death penalty the court stated that a trial does not stop at convicting a person but also involves sentencing a person and that the court would be denied its function as an impartial tribunal where the sentence has already been pre- ordained by the legislature, as in capital cases hence compromising the principle of fair trial. Court further stated that by fixing the mandatory death penalty, parliament removed the power to determine sentence from the courts which is inconsistent with Article 126 of the Constitution of Uganda. In the result, the court agreed with the decision of the constitutional court that all laws on the statute book in Uganda which provided for the mandatory death sentence are inconsistent with the constitution and therefore void to the extent of their inconsistency.

On the issue of delay in execution of the sentence of death, the court held that a period of more than three years from the time when the death sentence was confirmed by the highest appellate court would constitute inordinate delay. That at the end of three years after the highest appellate court confirmed the sentence, and if the President shall not have exercised his prerogative one way or the other, the death sentence shall be deemed to be commuted to life imprisonment without remission.

Regarding the constitutionality of the death penalty, the court held that the imposition of the death penalty is constitutional and as such does not amount to cruel, inhuman and degrading treatment and punishment as long as the sentence of death was passed by a competent court after a fair trial and it had been confirmed by the highest appellate court.

However court advised 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. Constitutionality of hanging as a method of carrying out the death sentence. Court stated that the respondents did not provide evidence to show that the lethal injection method as was argued is any more humane than hanging, that it produces no pain, nor that it does not produce any mishaps as may happen during hanging.

Both the appeal and cross appeal were dismissed.

Despite the dismissal of both the appeal and cross appeal, court urged the legislature to reopen the debate on the desirability of the death penalty in the Uganda constitution, particularly in light of the findings that for many years no death sentences have been executed yet 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 court made the following orders;
  1. That for those respondents whose sentences were already 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 of confirmation of the sentence. Where after three years no decision has been made by the executive, the death sentence shall be deemed commuted to life imprisonment without remission.
  2. For those respondents whose sentences arose from the mandatory sentence provisions and are still pending before an appellate court, their cases shall be remitted to the high court for them to be heard only on mitigation of sentence, and the High Court may pass such sentence as it deems fit under the law.
  3. Each shall bear its own costs.
The judgment was read in open court by Hon. Justice John Wilson Tsekooko . Also present in court were the representatives of the 417 petitioners, two men and two women including Susan Kigula whose name headed the original petition, representatives from the Attorney General, Katende Ssempebwa & Company Advocates, members of the civil society, media, members from Institutions of learning and the general public. The has been widely reported by both print media, radio and television.
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