Wakilii

Susan Kigula & Others v Attorney General (Constitutional Petition No. 6 of 2003)

Constitutional Court · [2005] UGCC 8 · 2005 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under article 137(3) of the Constitution challenging the constitutionality of the death penalty, brought on behalf of 417 condemned prisoners on death row.
Decision
Petition allowed in part (majority 3:2): death penalty and hanging upheld as constitutional, but mandatory death sentences and section 132 of the Trial on Indictments Act declared unconstitutional, and inordinate delay (beyond three years post-confirmation) on death row declared cruel, inhuman and degrading.

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Holding

By a majority of 3 to 2, the Constitutional Court held that the death penalty itself is not unconstitutional because article 22(1) recognises it as an exception to the right to life, so articles 24 and 44(a) (prohibiting cruel, inhuman and degrading punishment) do not apply to it; execution by hanging under section 99(1) of the Trial on Indictments Act is likewise constitutional. However, the Court held that provisions prescribing a mandatory death sentence are unconstitutional for denying a fair hearing on sentence and violating the separation of powers, and that inordinate delay (beyond three years after the highest appellate court confirms the sentence) renders execution cruel, inhuman and degrading. The petition was allowed in part.

Facts

The 417 petitioners were prison inmates who, at the time of filing, had been convicted of various capital offences under the Penal Code Act and the Anti Terrorism Act and sentenced to death, and were confined on death row. By petition under article 137(3) of the Constitution they challenged the constitutionality of the death penalty, contending principally that it is a cruel, inhuman and degrading punishment prohibited by articles 24 and 44(a); in the alternative, that mandatory death sentences deny a fair hearing on sentence and offend the separation of powers; that hanging under section 99(1) of the Trial on Indictments Act is cruel; and that prolonged delay on death row, in harrowing prison conditions, produces a death row syndrome that renders carrying out the otherwise lawful sentence unconstitutional. The petition was supported by numerous uncontroverted affidavits, including that of Ben Ogwang, who had spent some twenty years on death row, describing the conditions of confinement.

Issues

  1. Whether the death penalty prescribed by various laws of Uganda constitutes cruel, inhuman or degrading treatment or punishment contrary to article 24 of the Constitution.
  2. Whether the various laws of Uganda that prescribe the death penalty upon conviction are inconsistent with or in contravention of articles 24 and 44 or any other provisions of the Constitution.
  3. Whether the various laws of Uganda that prescribe mandatory sentences of death upon conviction are inconsistent with or in contravention of articles 21, 22, 24, 44 or any other provisions of the Constitution.
  4. Whether section 99(1) of the Trial on Indictments Act, which prescribes hanging as the legal method of implementing the death penalty, is inconsistent with and in contravention of articles 24 and 44 or any other provisions of the Constitution.
  5. Whether the execution of petitioners who have been on death row for a long period of time is inconsistent with and in contravention of articles 24 and 44 or any other provisions of the Constitution.
  6. Whether the petitioners are entitled to the remedies prayed for.

Orders

  • The petition is allowed in part by a majority of 3 to 2.
  • Declaration that the various provisions of the laws of Uganda prescribing mandatory death sentences are inconsistent with articles 21, 22(1), 24, 28, 44(a) and 44(c) of the Constitution (including sections 23(1), 23(2), 189, 286(2) and 319(2) of the Penal Code Act and section 7(1)(a) of the Anti Terrorism Act No 14 of 2002).
  • Declaration that section 132 of the Trial on Indictments Act, restricting the right of appeal against a sentence fixed by law, is inconsistent with articles 21, 22(1), 24, 28, 44(a) and 44(c) of the Constitution.
  • Declaration that inordinate delay in carrying out the death sentence after confirmation by the highest appellate court (a delay beyond three years) is inconsistent with articles 24 and 44(a) of the Constitution.
  • The declarations sought in paragraphs 3(a)(i), (ii), (iii) and (iv) of the petition are declined.
  • For petitioners whose death sentence has been confirmed by the Supreme Court, redress is put on hold for two years to enable the Executive to exercise the prerogative of mercy under article 121, after which they may return to court for redress.
  • For petitioners whose appeals are still pending, they shall be afforded a hearing in mitigation on sentence, the court shall exercise its discretion whether to confirm the sentence, and for those whose sentence is confirmed the article 121 discretion should be exercised within three years.
  • Each party to bear its own costs, the petition having been taken as a matter of public interest.

Key headnotes

Constitutional Interpretation — Harmonisation — Qualified Right to Life and Prohibition on Cruel Punishment
Where a constitution recognises the death penalty as an express exception to the right to life (article 22(1)), the general prohibition on cruel, inhuman or degrading punishment in articles 24 and 44(a) does not apply to that penalty; a right conferred by the constitution can only be taken away by the same instrument in clear and unambiguous terms, not by implication.
Right to Life — Constitutionality of the Death Penalty
The death penalty imposed after a fair trial by a court of competent jurisdiction, for a criminal offence under the laws of Uganda, where the conviction and sentence have been confirmed by the highest appellate court, is constitutional under article 22(1) and is not outlawed by articles 24 and 44(a).
Sentencing — Mandatory Death Sentence — Right to a Fair Hearing on Sentence
A statutory provision prescribing a mandatory death sentence is unconstitutional because it denies the convict the opportunity to be heard in mitigation before sentence and deprives the court of any discretion to determine the appropriate sentence, thereby violating the right to a fair hearing under articles 22(1), 28 and 44(c) and the right to equality under article 21.
Separation of Powers — Mandatory Sentences as Legislative Intrusion into Judicial Function
A mandatory death sentence that compels the court to impose death without any discretion to weigh the circumstances of the offence and offender is an intrusion by the legislature into the realm of the judiciary and violates the principle of separation of powers under article 126(1).
Death Row Phenomenon — Inordinate Delay as Cruel, Inhuman or Degrading Treatment
A condemned prisoner does not lose all constitutional rights on conviction; inordinate delay in carrying out a death sentence, coupled with harsh conditions of confinement, constitutes cruel, inhuman or degrading treatment contrary to articles 24 and 44(a). Delay beyond three years after the highest appellate court has confirmed the sentence tends towards unreasonable and unconstitutional delay.
Right of Appeal — Restriction on Appeal Against Sentence Fixed by Law
Section 132 of the Trial on Indictments Act, which denies a person sentenced to a penalty fixed by law the right to appeal against sentence alone while permitting such appeals to others, offends the principle of equality before the law and the right to a fair hearing under articles 21, 22(1), 28 and 44(c) and is unconstitutional.
Constitutional Interpretation — Ordinary Meaning in Context — Role of Public Opinion
Constitutional provisions are construed as an integrated whole, giving the words their ordinary meaning read in the context of the entire instrument, with fundamental rights given a generous and purposive interpretation; while the values, norms and aspirations of the people under article 126(1) are a relevant consideration, public opinion cannot override the clear language of the Constitution.

Legislation cited (31)

  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.22(1)
  • Constitution of Uganda 1995 art.24
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.45
  • Constitution of Uganda 1995 art.121
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.139
  • Constitution of Uganda 1995 art.273
  • Trial on Indictments Act (Cap 23) s.98
  • Trial on Indictments Act (Cap 23) s.99(1)
  • Trial on Indictments Act (Cap 23) s.102
  • Trial on Indictments Act (Cap 23) s.132
  • Penal Code Act (Cap 120) s.23
  • Penal Code Act (Cap 120) s.124
  • Penal Code Act (Cap 120) s.129
  • Penal Code Act (Cap 120) s.189
  • Penal Code Act (Cap 120) s.243
  • Penal Code Act (Cap 120) s.286(2)
  • Penal Code Act (Cap 120) s.319(2)
  • Anti Terrorism Act 2002 (Act No 14 of 2002) s.7(1)(a)
  • Anti Terrorism Act 2002 (Act No 14 of 2002) s.8
  • Anti Terrorism Act 2002 (Act No 14 of 2002) s.9
  • Prisons Act (Cap 304) s.34
  • Interpretation Act (Cap 3) s.34(2)
  • Judicature Act (Cap 13) s.11
  • Magistrates Court (Amendment) Statute No 6 of 1990 s.9

Cases cited (19)

  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Simon Kyamanywa v Uganda (Constitutional Reference No. 10 of 2000)
  • Republic v Mbushuu (1994) 2 LRC 335
  • Mbushuu v Republic (1995) 1 LRC 216
  • State v Makwanyane (1995) 1 LRC 269
  • Kalu v The State (1998) 13 NWLR 531
  • Catholic Commission for Justice and Peace in Zimbabwe v Attorney General (1993) 2 LRC 279
  • Pratt and Morgan v Attorney General for Jamaica (1994) 2 AC 1 (PC)
  • Riley v Attorney General for Jamaica (1983) 1 AC 719 (PC)
  • Mithu v State of Punjab (1983)
  • Reyes v The Queen (2002) 2 AC 235
  • Bachan Singh v State of Punjab (1983) 2 SCR 583
  • Paul K. Ssemogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Soering v United Kingdom (1989) 11 EHRR 439
  • The Republic vs El manu (1969) EA 357
  • Zachery Olum vs Attorney General (case No 7)
  • South Dakota vs North Carolina, 192, US 268 (1940) LED 448
  • Campbell vs Wood (18 F. 3rd 662 - US 9th Circuit Court of Appeals)
  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.