By Cynthia Ampairwe
Fourth
year Law student, Makerere University, also an intern at FHRI
Makerere University
Today, one of the most debated issues in the
Criminal Justice system is the issue of capital punishment or the death
penalty. Over the years, a number of countries have abolished the death
penalty. However, Uganda still
recognizes its imposition for the most serious offences. It is for this reason
that this has become one of the major areas of contention especially in the
Human Rights perspective. It is a topic of interest not only to the lawyers but
also to the public at large. The article therefore presents the current
situation in Uganda as regards the abolition of the death penalty. It presents
the major reasons that have been given in support of the death penalty;
deterrence and retribution. It goes ahead to show how these arguments have not
been effective in other countries as well as Uganda. Conversely, more
convincing arguments have been raised for its abolition amongst which is the
argument that it is a violation of human rights. The article also presents a
brief on Jeremy Bentham’s theory of punishment. Finally, this article points the way forward.
The author argues that publicity and the need for a constitutional review
should be the major concerns as we move towards total abolition of the death
penalty in Uganda.
INTRODUCTION.
History shows
that the view of every nation regarding the infliction of the death punishment
have, in the process of time undergone significant changes. There is a growing
trend towards the universal abolition of the death penalty and a restriction in
the scope and use of capital punishment over the last fifty years.[1] Of
the 198 states in the world, 58 retain the death penalty, 98 are abolitionist
for all crimes, 7 are abolitionist for ordinary crimes, and 35 are abolitionist
in practice (retaining the death penalty but having not executed anyone during
the past 10 years).[2]
The vast majority of countries in Africa have moved
away from the death penalty while a small, isolated group continues to cling to
state-sanctioned killing. 16 of the member states of the African Union are
abolitionist in law. Gabon is the latest country to abolish the death penalty;
others include Angola, Burundi, Senegal, Cape Verde, Ivory Coast, Djibouti,
Gabon, Guinea-Bissau, Mozambique, Namibia, Rwanda, Seychelles, South Africa,
Togo, and Mauritius.[3]
During the year (2013), many states across Africa
took small but significant steps towards abolition. New constitutions were
drafted in Ghana and Sierra Leone to end capital punishment, Both Benin and
Comoros are considering new penal codes that would abolish the death penalty
for all crimes. However, there was still an increase in executions in 2013.
Nigeria, Sudan, Somalia were behind more than 90% of the 64 reported executions
carried out in Africa in 2013. They are also accounted for two-thirds of all
reported death sentences in the region with dramatic increases especially in
Nigeria and Somalia.[4]
PROGRESSIVE
ABOLITION; THE UGANDAN EXPERIENCE.
Uganda is among the countries that have retained the
death penalty. Article 22(1) of the 1995 Constitution recognizes the death
penalty. It states that, “No person shall be deprived of life
intentionally except in execution of a sentence passed in a fair hearing 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.” Although this
article guarantees the right to life, it is subject to the passing of a death
sentence after a fair trial.
It is against
this premise that Foundation for Human Rights Initiative (FHRI)[5],
in 1993, launched a campaign against the death penalty. The multi-pronged
strategy comprised of routine prison inspections, human rights training for
prison staff, public debates on the death penalty and annual compilation of
prisoner statistics. In its move against the death penalty, the organization
commissioned a leading law firm in Kampala (Katende & Company Advocates) to
lodge a constitutional petition on behalf of all prisoners on death row
challenging the application of the death penalty in Uganda.
In 2005, a constitutional petition cited as Suzan Kigula v Attorney General ( Suzan
Kigula case),[6]
was lodged in which Suzan Kigula, the lead petitioner was convicted of
murdering her husband and placed on death row. The petition challenged the
constitutionality of the death penalty as cruel, inhuman, and degrading
punishment and in the alternative, that the mandatory death sentence was
unconstitutional, that hanging is an unconstitutional method of execution and
that the long delay between a sentence and execution made an otherwise constitutional
death penalty unconstitutional.
The constitutional Court held, a ruling upheld by
the Supreme court on appeal that: mandatory death penalty was unconstitutional
on grounds that a mandatory death sentence violated the right to fair trial by
denying a proper sentence hearing and precluding appellate review of criminal
sentences, as well as violating the principle of separation of powers; and any
inordinate delay lasting longer than three years as well as poor prison
conditions to be unconstitutional; that the death penalty per se was
constitutional. Court cited Kalu v. State
in which the Supreme Court of Nigeria upheld the death penalty.[7]
This therefore, shows that the death penalty is still recognized under the law
in Uganda. However, the last executions in Uganda reportedly took place in
2005. Court also ordered that those death row inmates, who were sentenced under
the mandatory death sentence provisions, should have their cases remitted to
the High Court for them to be heard for mitigation of sentence.[8]
Uganda’s retention of the death penalty in its
constitution goes against the international trend towards abolition as well as
international human rights norms. The delay between sentencing and execution,
including the time spent waiting for appeals, which can be very lengthy under
the Ugandan justice system, can cause the so called “death row phenomenon”.
This is the suffering and psychological torment that prisoners have to endure
after the pronouncement of their death sentence.[9]
POPULAR
ARGUMENTS FOR THE DEATH PENALTY.
Those who support the death penalty contend that it
serves two main purposes, Retribution and deterrence. For the purposes of this
Article we shall only look at these two arguments for the death penalty.
·
Deterrence
The argument
most commonly used in support of capital punishment is that it acts as a
deterrent to violent crime. People have often asserted that executing convicted
murderers will deter would-be murderers from killing people. Capital punishment
is often justified with the argument that imposing the death penalty will
create social order and it would help prevent potential offenders from
committing crimes.
However, a
report by Amnesty International claims that detailed research in the USA and
other countries shows no evidence that the death penalty deters crime more
effectively than other punishments. In fact, in some countries like Canada, the
number of violent crimes actually decreased rather than increasing, after the
death penalty was abolished.[10] John Donohue’s assertion also shows that
there is no big difference (in regard to commission of crimes) between
countries that have abolished the death penalty and those that have not;
“The homicide rate in Canada has moved in
virtual lockstep with the rate in the United States, while approaches to the
death penalty have diverged sharply. Both countries employed the death penalty
in the 1950s, and the homicide trends were largely similar. However in 1961,
Canada severely restricted its application of the death penalty (to those who
committed premeditated murder and murder of a police officer only); in 1967,
capital punishment was further restricted to apply only to the murder of
on-duty law enforcement personnel. As a result of these restrictions, no
executions have occurred in Canada since 1962. Nonetheless, homicide rates in
both the United States and Canada continued to move in lockstep.”[11]
Within the United States, studies have consistently
shown that proportionately fewer murders occur in states that do not have the
death penalty than in states that do[12]
and that, in the latter, murder rates increase after highly publicized
executions[13]-
findings that support the hypothesis that, as George Bernard Shaw put it, “murder and capital punishment are not
opposites that cancel one another, but similar that breed their kind.”[14]
The situation in other countries is quite similar to
that in Uganda. Despite the retention of the death penalty in Uganda, there has
not been any reduction in the crimes committed. There are approximately 293
individuals currently under sentence of death in Uganda.[15]
Murder cases are still very rampant. If the death penalty deterred murder, it
would follow logically that having and using it would result in lower murder
rates. However, it appears to me that general deterrence, in any event is a myth.
·
Retribution
This argument states that real justice requires
people to suffer for their wrongdoing, and to suffer in a way appropriate for
the crime. That each criminal should get what their crime deserves and in the
case of a murderer what their crime deserves is death. Retribution is usually
summarized, by the scriptural invocation to take “an eye for an eye, a tooth
for a tooth” also meaning, life for a life. In this regard, A.S.Anand and N.P Singh
contend that;
“The measure of punishment in a given case must depend upon the atrocity
of the crime, the conduct of the
criminal and the defenseless and unprotected state of the victim. Imposition of
appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the
criminals. Justice demands that the courts should impose punishment benefitting
the crime so that the courts reflect public abhorrence of the crime.”[16]
However, the argument that the death penalty is the
only way to acknowledge the pain and suffering of the family and friends of
murder victims and to ensure just retribution for their loss serves no purpose.
An execution cannot restore life or lessen the loss to the victim’s family! Our
country should realize that retribution cannot be accorded the same weight
under our constitution as the right to life and dignity. The words of Justice
Chaskalson in State v Makwanyane[17]
clearly explain this;
“The righteous anger of family and friends of the murder victim,
reinforced by the public abhorrence of vile crime, is easily translated into a
call for vengeance. But capital punishment is not the only way that society has
of expressing its moral outrage at the crime that has been committed. We have
long outgrown the literal application of the biblical injunction of “an eye for
an eye, and a tooth for a tooth.” Punishment must to some extent be
commensurate with the offence, but there is no requirement that it be
equivalent or identical to it.”
WHY
ABOLISH THE DEATH PENALTY?
The
Right to Life.
The death penalty is an ultimate denial of human
rights. It is the premeditated and cold-blood killing of a human being by the
state. This cruel, inhuman and degrading punishment is done in the name of
justice.[18]
Article 22 of the 1995 Constitution of
Uganda provides for the right to life. However this is also accompanied by a
savings clause. It requires that to impose the death penalty, a court must
provide the accused with a trial and if convicted, the highest appellate court
must confirm the conviction. From this, it is evident that our constitution
still acknowledges the killing of criminals by the state.
Many lawyers and Human Rights Organizations have
argued that the death penalty is not in line with the spirit of the
Constitution.[19] First, it violates one of the most
fundamental principles under widely accepted human rights law- that states must
recognize the right to life. Article 3 of the UN Universal Declaration of Human
Rights, which Uganda adopted, states that, “Everyone
has the right to life, liberty and security of person.” According to
Article 6 of the International Covenant on Civil and Political Rights (ICCPR), the
right to life is to be protected by law.
The Center for Constitutional Rights[20] has
mentioned that the death penalty violates our most fundamental human rights. In
its own words, it says “As long as governments have the right to
extinguish lives, they maintain the power to deny access to every other right
enumerated in the Declaration. This first, most central right provides the
foundation upon which all other rights rest.”[21]
The Right to Life was also pronounced in the South
African case of State v Makwanyane and Mchunu in which the South African
Constitutional Court unanimously struck down the death sentence for violating
the right to life and human dignity and the right to be free from cruel,
inhuman, or degrading treatment and punishment.[22] Arthur Chaskalson, president of the
Constitutional Court states that, “Everyone,
including the most abominable of human beings, has a right to life, and capital
punishment is therefore unconstitutional.” Unlike the Ugandan Constitution,
the South African constitution does not contain a savings clause since the
right to life is unqualified. Why then should our constitution be different? the right to life should remain limitless.
Right
to be free from cruel, inhuman and degrading treatment.
In addition to the right to life, other basic rights
are often breached in the application of the death penalty. The death penalty breaches
the prohibition against cruel, inhuman or degrading treatment. This is provided
for under Article 24 of the Constitution of Uganda. There has also been a
growing consensus that the “death row phenomenon” violates the prohibition
against torture under international human rights law. It has been shown that
humans experience isolations as torture. Decades in isolation without access to
family, other prisoners, programming, or any other form of intellectual or
social stimulation along with the constant knowledge of one’s impending, but
uncertain death, combine to create the death row phenomenon.[23]
Research also shows that the prisons are endemically
crowded. The cellblocks lack sanitation facilities and prisoners defecate in
buckets. Infectious diseases are rampant for example Tuberculosis. Malaria is
also common yet the medication is allegedly scarce. Many prisoners suffering
from peptic ulcers resorted to eating raw garlic to alleviate pain.[24] For example, according to the current death
row prisoners, 10% of prisoners in condemned section started suffering from
epileptic fits after incarceration.[25] Such
physical conditions and mental suffering of condemned prisoners frequently
result in their death even before they are executed. Many allegedly die within
2 to 5years after sentencing. In support of this, a death row prisoner provided
the following anecdote: In 1993, when he was convicted, a total of 35 people
were sentenced to death in Uganda. Of those 35, two were executed, two had
their convictions quashed on appeal, and one was pardoned. Out of the remaining
30, as of August 2005, 28 had perished whilst imprisoned on death row.[26] The worst aspect of death row life is the
anxiety of living under the shadow of death. Elias Wanyama,[27] a
former death row prisoner stated that, “Death row prisoners become living zombies.
Its tantamount to living in a mortuary…In normal life, you look forward to the
next day, you make plans, but on death row all your hopes are gone, you make no
plans.”[28]
In addition to this, hanging which is the method of
execution is considered a very cruel, inhuman and degrading method. The
petitioners in the Suzan Kigula[29]
argued, without prejudice and in the alternative to its challenge to the death
penalty’s constitutionality per se, that hanging, the prescribed execution
method violated Articles 24 and 44(a) of the constitution.[30]
Hanging, they contended, was unduly cruel, inhuman, and degrading. In support,
they emphasized the non-derogability of Articles 24 and 44(a).[31]
The Court, having held that the death penalty was constitutional per se, held
that the death penalty by hanging could not be cruel and degrading within the
meaning of the constitution.[32] However, in the landmark case of Mbushuu,[33]
the Tanzanian Court of Appeal took a different stand. It described hanging as a
“dirty, horrible, brutal, uncivilized and unspeakably barbaric” execution
method that “defeats the very purpose it claims to be pursuing.” It ultimately
considered this when determining that capital punishment was an inherently
cruel, inhuman, and degrading punishment. Similarly, in the case of Campbell v. Wood,[34]
the U.S. Supreme Court held that hanging is “a savage and barbaric method of
terminating human life”, and is “cruel and unusual-in layman’s terms and in the
constitutional sense”.[35]
Furthermore, in the 2002 Atkins v Virginia Supreme court decision, the court found that
executing the mentally disabled constitutes cruel and unusual punishment.[36]
However, research shows that Uganda continues to execute mentally ill prisoners.
Many condemned prisoners develop mental problems as a result of severe overcrowding,
the poor sanitation, permanent anguish and the stress they suffer. As a result,
some become mentally insane. These are executed nonetheless.[37] From
the above discussion, I can only conclude that the experience of being under
the sentence of death, and the execution itself, are inhumane and may cause
intense suffering. It is in this vein, that
Lloyd Volgeman described those incarcerated on death row as “the living dead”![38]
Risks
to the Innocent.
Imposition of the death penalty also makes
inevitable the execution of some prisoners who have been wrongly convicted. A
poorly prepared defense, missing evidence, or even a decision of the
investigating authorities to pin the guilt falsely on the accused can all
result in wrongful conviction. Such convictions are difficult to reverse as
appellate courts will often not consider new evidence, confining themselves
only to points of law. Prisoners have been executed during the past decade despite
strong doubts over their guilt. Others have been freed after a re-examination
of their cases showed they had been wrongly convicted.[39]
The Death Penalty Information Center (DPIC) also states that since 1973, 123
persons who had been sentenced to death have been exonerated, fourteen of them
through DNA testing.[40] .
The DPIC defines “exoneration” as reversal of the conviction followed by
acquittal or dismissal of charges, or an absolute pardon based on new evidence
of innocence.[41]
This evidence confirms that some prisoners are executed despite their
innocence.
Edmary Mpagi, a former death row prisoner
illustrates such miscarriage of justice in Ugandan capital cases. Mpagi was
convicted of murder in 1982 and sentenced to death. However, his “victim” emerged
alive and well in 2000. Mpagi received a presidential pardon as a result of
this “new evidence.”[42]
He was however, jointly convicted with his brother, who died whilst in prison.
“There is no way to compensate for that loss,” he said.[43]
Mpagi believes that he was only one of the many unlawfully convicted condemned
prisoners in Luzira. “Many people claimed that they were innocent
throughout the whole process… I’m going to die but I’m innocent was something
you often heard. But the public perception is that if you are convicted and go
through the appeals process you are guilty, you are a killer, a criminal, an
anti-person”.[44] It is in this regard that Richard Dieter, the
executive director DPIC said that the death penalty had fallen out of favor
largely because law makers and the public more and more feared that innocent
people could be executed.[45] “A mistake cannot be reversed if an innocent
person is put to death.”[46]
A
BRIEF ON JEREMY BENTHAM’S THEORY OF
PUNISHMENT.
Jeremy Bentham is one of the scholars who greatly
opposed capital punishment.[47]
He came up with his own theory of punishment. In his theory of punishment, he
promoted panopticon imprisonment instead of capital
punishment. Under panopticon imprisonment,
the guards would be able to monitor every prisoner at any time without the
prisoner’s knowledge. He believed that any person who carried out acts that
were detrimental to society should be punished with imprisonment. That if those
who were locked up felt that they were under constant surveillance, they would
behave more obediently. He also believed since the prisoners would never be
certain if armed guards were watching them at any given time, they would be
forced to become model prisoners out of fear of retribution.
He denounced capital punishment for possessing
the detrimental qualities of inefficiency, irremissibility, positive male
ficence (i.e. tending to produce crimes), and for the enhancement of evils
produced by ill-applied pardons.[48]
He believed that through this, punishment undermined the purpose for which it
was intended. According to him, the purpose of punishment is to produce future
pleasure by inflicting pain. He believed that the pains resulting from capital
punishment, and more particularly from the widespread threat of capital
punishment, were judged to be considerable and excessive.[49]
According to Bentham, punishment has to provide a
variable quantity of pain in response to the varying quantities of mischief
caused by offences.[50]
Just like his other English contemporaries (William Blackstone and William Eden)[51],
Bentham believes that the immediate end of punishment is to deter future crime
and on a wider scale, they concurred that punishment ought prominently to
protect the liberties of law-abiding citizens. However, he also emphasized the importance of
future benefit/ pleasure over pain. That pain and thus punishment, was always a
social negative, unless it promised greater benefit in the future. It is for
this reason that he abandoned his support for corporal infliction of pain and
joined a contemporary pursuit of an increased use of penal incarceration.
Summarily, he says that the obvious advantage that
imprisonment and particularly panopticon imprisonment offered was the greatly
improved provision for the property of “exemplarity”. If prisoners could be seen to be suffering,
then the purpose of the punishment could be better fulfilled through
imprisonment rather than death. He says that the ends of punishment should
always remain the same: reformation, disablement, example, and constant. Overwhelming
emphasis is placed on the assessment of the quantities of pain inflicted in
pursuit of these ends.[52]
WAY
FORWARD.
Basing on the above discussion, I propose that it is
time to outlaw capital punishment in Uganda. Public support for the abolition
of capital punishment is still limited. The main reason for this is that
Ugandans are uneducated about the death penalty and are not versed with what it
means and how inhumane it is. People will usually think that there are only two
alternatives, you are either killed or released back into society. They believe
capital punishment is necessary to deter crime especially murder. However, there
is no evidence to show that the death penalty has deterred crime since murder
cases continue to exist in Uganda.
The campaign
to stop executions is primarily an education and publicity campaign.[53]
There is need for comprehensive media publicity and raising awareness to inform
the key stakeholders and the public at large about the evils of the death
penalty.
Every Ugandan
should be sensitized about the fundamental right to life. This can be done with
the help of different human rights organizations. A number of such organizations have committed
themselves to the campaign for the abolition of the death penalty in Uganda. The Coalition on the Abolition of the Death
Penalty in Uganda (CADP) for example, has seven members: FHRI, Amnesty
International (AI), Friends of Hope for Condemned Prisoners (FCHP-U), the Human
Rights Network Uganda (HURINET-U), the Public Defenders Association of Uganda
(PDAU), the Uganda Joint Christian Council (UJCC), and the Uganda Association
of Women Lawyers (FIDA-U). These organizations should aim at creating public
awareness on issues to do with the negative effects of the death penalty in
Uganda and most especially the human rights violations. This will help increase
public support for the abolition of capital punishment in our country. In South Africa for example, the campaign to
stop hangings was strengthened and advanced by different civil society groups.
In particular, the “Save the Patriots Campaign” raised awareness of the issue
amongst the youth and other black township residents. The Abolition Society was
also formed. It spoke for everyone on death row without exception. The
Abolition Society produced pamphlets, booklets and regular news briefs on the
issue. It also organized regular public meetings and monthly pickets, as well
as counseling for those on death row for “political offences.” It also produced
social support for both the inmates on death row and their families.[54]
Secondly, in order to effectively advocate for the
abolition of the death penalty, there is need to appreciate the nature of the
Ugandan legal framework that has continued to abet the death penalty.[55]
The constitutional position, especially Article 22(1) of the Constitution of
Uganda does not “constitutionalize the death penalty” but rather “recognizes
its existence” and authorizes its imposition by legislation.[56]
There are also different statutes that create offences punishable by the death
penalty, most especially the Penal Code Act, the Uganda Peoples’ Defense Forces
Act among others. The legislature should aim at reviewing such positions of the
law.
The Law Revision (Penalties in Criminal Matters)
Miscellaneous Amendments Bill for example, has been tabled in Parliament. This
bill seeks to abolish mandatory death penalty against capital offenders. If it
is passed, a number of laws which provide for mandatory death sentence will be
repealed. These include, the UPDF Act, Penal Code Act, Anti-Terrorism act and
the Trial on Indictment Act. This has been a big step in our move against the
death penalty. However, we should not stop at that. Uganda should also focus on
a constitutional review in regard to Article 22, so that capital punishment is
completely eliminated from our legal framework.
CONCLUSION.
With the growing acceptance of human rights values,
it is necessary to put a stop to the death penalty. Uganda should remain
committed to the respect and promotion of the rights of its citizens. Each and
every Ugandan should also appreciate the value of life and realize that there
is no place for executions. The success of this anti-death penalty campaign
depends on collectiveness of individuals
in different fields. Lawyers, academia, civil society organizations, the media,
should all come together as one and work towards achieving this common goal.
However, the lawyers as officers of court should take the lead. They should
concentrate on remedying the injustices in society rather than becoming agents
of violence.
[1]
Penal Reform International, “Death
Penalty Information Pack,” ( April
2011), p.5.
[2]Amnesty
International report 2013, http://www.amnesty.org/en/death-
penalty/numbers.
[3] Ibid.
[4] Death
Penalty 2013: Isolated Countries Behind a rise in executions in Africa, Amnesty International Annual report 2013,
(27 March 2014).
[5]
Foundation for Human Rights Initiative is an independent, non-governmental and
non-profit making organization established in December 1991 to enhance the
knowledge, respect and observance of human rights, encourage exchange of
information and experiences through training, education, research, legislative
advocacy and networking in Uganda.
[6]See
Suzan Kigula et al Attorney General, Constitutional
Petition No. 6/2003 at 2 (2005) (cc).
[7]
Kalu v State, (1998) 13 N.W.R. 531.
[8]As
an intern at FHRI, I was given the opportunity to attend these mitigation
hearings for purposes of observing whether the fair trial principles were
adhered to. The hearings went on well. Both prosecution and defense referred to
the aggravating and mitigating factors under the sentencing guidelines and most
of the convicts had their sentences reduced depending on the mitigating
factors. Only one death sentence was confirmed.
[9] Patrick
Izizinga, a former death row inmate stated how just after the mention of four
words “GO AND SUFFER DEATH,” he saw darkness. From then on, his kidneys and
liver were affected, he had uncontrollable headaches which have persisted until
today.
[10]
Graeme Simpson and Lloyd Vogelman, “The
Death Penalty in South Africa,” ( Center for the study of Violence and
Reconciliation).
[11]
John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death
Penalty Debate,
58
STAN. L. REV. 791, 799 (2005) (internal citations
omitted).
[12]See, e.g., David
Baldus & James W.L. Cole, Statistical
Evidence on the Deterrent Effect of Capital
Punishment, 85 YALE L.J. 164 (1975). There have been a few
studies by economists purporting to
document
a deterrent effect—notably, Isaac Ehrlich, The
Deterrent Effect of Capital Punishment: A Matter
of Life and Death, 65
AM. ECON. REV. 397 (1975)—but rigorous analysis of these studies has shown
their
conclusions
to have been false. For a succinct analysis of research on the issue, see RAYMOND
PATERNOSTER, ROBERT BRAME & SARAH BACON, THE DEATH PENALTY: AMERICA’S EXPERIENCE
WITH
CAPITAL PUNISHMENT 140–48 (2008).
[13]
William J. Bowers & Glenn Pierce, Deterrence or Brutalization: What is the Effect of
Executions?, 26
CRIME & DELINQ. 453, 453 (1980).
[14] GEORGE BERNARD SHAW, MAN AND SUPERMAN: MAXIMS FOR REVOLUTIONISTS
232, para. 60 (1903).
[15] The
death penalty in Uganda. Death penalty worldwide. www.deathpenaltyworldwide. Org.
[16]
Justices A.S Anand and N.P Singh, Supreme court of India, in the case of Dhananjoy Chatterja.
[17]
Constitutional court of the Republic of South Africa, 1995 Case No. CCT/3/94, 1
LRC 269 (1995), Judgement of Justice Chaskalson para 12.
[18]Amnesty
International, “ Death Penalty, Facts and Figures 2013.”
[19]
In Uganda, such organizations include FHRI, Amnesty International (AI), Friends
of Hope for Condemned Prisoners (FCHP-U), the Human Rights Network Uganda
(HURINET-U), the Public Defenders Association of Uganda (PDAU), the Uganda
Joint Christian Council (UJCC), and the Uganda Association of Women Lawyers
(FIDA-U).
[20]
The Center for Constitutional Rights is dedicated to advancing and protecting
the rights guaranteed by the Universal Declaration of Human Rights (UDHR).
[21]
Center for Constitutional rights, “The
Death Penalty is a Human Rights violation: An examination of the Death Penalty
in the U.S from a Human Rights Perspective.”
[22]
See State v Makwanyane & another 1995 (3) SA 391 at 144-146.
[23]
Center for Constitutional Rights, “The
Death Penalty is a Human Rights violation.”
[24] The Civil Society Coalition on the Abolition
of the Death Penalty in Uganda, “The Death Penalty in Uganda: The Perspective
of those Affected,” in Towards Abolition of the Death Penalty in
Uganda (Kampala: Fountain Publishers, 2008), p.135.
[25]
Civil Society on the Abolition of the Death Penalty, “The Death Penalty in
Uganda: The Perspective of those Affected,” p.135.
[26] Ibid.
[27] Elias
Wanyama, former death row prisoner (1988-1993 and 1982-2000), Luzira Upper
Prison, Uganda.
[28]
Civil Society Coalition on the Abolition of the Death Penalty in Uganda, “The
Death Penalty in Uganda: The Perspective of those Affected,” p.136.
[29]
Suzan kigula, supra.
[30]
Petitioners’ Submissions, supra, p.58.
[31]
Ibid ,p.59.
[32] Kigula
and 416 Others v. the Attorney General, supra , Judgement of Okello JA,
pp.43-45; Byamugisha JA, pp. 31-32; Twinomujuni JA, p.51; Mpagi-Bahigeine JA
and Kavuma JA, pp.28-29.
[33]
Mbushuu (alias Dominic Mnyaroje) and Anor v. Republic ICHRL 5 (30 Jan 1995).
[34]
Campbell v. Wood 18 F.3a 662 (1994), U.S. Supreme Court (Case No.25 Vol. 3).
[35]
Ibid, p.48, para. 5, p. 49, para. 3.
[36]
Atkins v Virginia 536 U.S 304 (2002).
[37]
Civil Society Coalition on the Abolition of the Death Penalty in Uganda; “The
Death Penalty in Uganda: The Perspective of those affected,” p. 138.
[38]
Greame & Volgeman, “The Death Penalty
in South Africa.”
[39]
Amnesty International, “The Death Penalty in practice,” in When the State kills…The death penalty v. human rights, ( London: Amnesty
International Publications, 1989), p.31.
[40] The
Hon. William W. Wilkins, “The Legal, Political, and Social Implications of the
Death Penalty,” University of Richmond
Law Review 41, no. 4.
[41]
Ibid.
[42]
Civil Society Coalition on the Abolition of the Death Penalty in Uganda, “The
Death Penalty in Uganda: The Perspective of those Affected,” p.133.
[43]
Ibid.
[44]
Since his release, Mr. Mpagi has founded an organization named Christian Prison
Ministry Uganda to provide support and assistance (moral, spiritual and
financial) to condemned prisoners. Contact details may be found at
http://prisonministry.net/cpmug.
[45] Ian
Simpson, “Maryland becomes the latest U.S state to abolish death penalty,” Reuters, May. 2,2013, http:
//www.reuter.com.
[46]
Ibid.
[47]
Jeremy Bentham was a philosopher and author who strongly believed in a
political system of utilitarianism: the idea that the best laws for society are
those that benefit the largest number of people. He felt that every action any
person took should be judged by how it aided or harmed the general public as a
whole. He was an advocate for prisoner’s rights, their education and health.
[48] See
“On Death Punishment”, Bowring, i. p.526-3.
[49] Tony
Draper, “An Introduction to Jeremy Bentham’s Theory of Punishment,” Journal of Bentham Studies vol. 5(2002):
p. 16.
[50] Introduction
to the Principles of Morals and Legislation, Oxford, 1996 (The Collected Works
of Jeremy Bentham), henceforth IPML (CW), p. 175.
[51]Sir
William Blackstone KC SL ( 10 July 1723 – 14 Feb 1780 ) was an English jurist,
judge and Tory politician of the eighteenth century. He is most noted for
writing the Commentaries on the Laws of
England. The commentaries were designed to provide a complete overview of
English law. On otherhand, William Eden, 1st Baron Auckland PC(
Ire), FRS ( 3 April 1745 – 28 May 1814 ) was a British statesman and diplomat.
He was Secretary of State for the North( Auckland). He was Member of Parliament
for Woodstock from 1774 to 1784. In 1778, he carried an Act for the improvement
of the treatment of prisoners, and accompanied the Earl of Carlisle as a
commissioner to North America on an unsuccessful mission to bring an end to the
American war of Independence. On his return in 1779, he published his widely
read “four letters to the Earl of
Carlislie.”
[52] Tony,
“An Introduction to Jeremy Bentham’s Theory of Punishment”, p. 16.
[53]
Graeme and Lloyd, “The Death Penalty in
South Africa.”
[54] Graeme
and Lloyd, “The Death Penalty in South Africa.”
[55]
Dr. Emmanuel Kasimbazi, “Introduction,” in Towards
Abolition of the Death Penalty in Uganda.
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