Assessing the Implications of the Law Revision (Penalties in Criminal Matters) Miscellaneous Amendment Act, 2019

OHCHR Uganda thematic briefing note: - A Step Towards Abolition in Uganda? Assessing the Implications of the Law Revision (Penalties in Criminal Matters) Miscellaneous Amendment Act, 2019.  The United Nations opposes the use of the death penalty in all circumstances. In the view of the UN Secretary-General, all measures taken by States towards limiting the application of, or abolishing, the death penalty constitute progress in the protection of the right to life and are important steps towards the universal abolition of the death penalty. The Secretary-General has noted that there is little evidence that the death penalty has an impact on reducing levels of crime and that where public support for it exists, it is based on a misconception that the death penalty acts as a deterrent to serious crime.[1]

The latest United Nations General Assembly Resolution on the Moratorium on the Use of the Death Penalty, resolution 73/175 adopted on 17 December 2018,[2] with 121 States voting in support, calls on the Member States that still maintain the death penalty to provide the Secretary-General with information relating to the use of capital punishment and the observance of the safeguards guaranteeing protection of the rights of those facing the death penalty; and to establish a moratorium on executions with a view to abolishing the death penalty among other issues. The resolution also calls on States to reduce the number of offences for which the death penalty may be imposed, including by considering removing the mandatory application of the death penalty.

Uganda voted against the UN General Assembly resolutions on a moratorium until 2014, however, in an encouraging move, it has abstained in the vote since then in 2016 and 2018.

During Uganda’s last Universal Periodic Review before the Human Rights Council in 2016, a recommendation by Cyprus to “amend, as a first step, relevant laws that impose a mandatory capital punishment” was noted (i.e. did not enjoy the support) by the Government of Uganda.[3]

While Uganda ratified the International Covenant on Civil and Political Rights (ICCPR) in 1995, it has not signed or ratified the Second Optional Protocol aiming at the abolition of the death penalty. Recommendations to this effect during the 2016 Universal Periodic Review (UPR) process were noted by Uganda. In its latest resolution on the question of the death penalty, the Human Rights Council called upon States that have not yet acceded to or ratified the Second Optional Protocol to consider doing so.[4] The Secretary-General has also noted the importance of moratoriums, and that they are useful transition tools towards abolition.[5]

The Human Rights Committee, which oversees the implementation of the International Covenant on Civil and Political Rights to which Uganda is a State party, has stated that article 6 of the Covenant on the right to life reaffirms the position that States parties that are not yet totally abolitionist should embark on an irrevocable path towards the complete abolition of the death penalty, de facto and de jure, in the foreseeable future. It has also stated that mandatory death sentences that leave domestic courts with no discretion as to whether to designate the offence as a crime warranting the death penalty, and whether to issue the death sentence in the particular circumstances of the offender, are arbitrary in nature. According to the Committee, in all cases involving the application of the death penalty, the personal circumstances of the offender and the particular circumstances of the offence, including its specific attenuating elements, must be considered by the sentencing court.[6]

At the regional level, the African Commission on Human and Peoples’ Rights (ACHPR) has adopted a number of resolutions urging States to envisage a moratorium on the death penalty, and also to reflect on the possibility of abolishing it.[7] In 2019, the ACHPR adopted its third resolution on the death penalty urging States that still retain the mandatory death penalty to abolish it as it breaches the right to life and the right to human dignity. The resolution urged retentionist States to observe a moratorium with a view to its abolition, and for those that have established a moratorium to undertake further practical steps towards the full abolition of the death penalty in law. On 4 July 2014, the Declaration of the Continental Conference on the Abolition of the Death Penalty in Africa (the Cotonou Declaration), called, amongst others, on the African Union Member States to adopt the Additional Protocol to the African Charter on Human and Peoples’ Rights on the Abolition of the Death Penalty in Africa. The Declaration also called upon African States that have not yet done so to consider abolishing the death penalty statutorily or constitutionally and to consider acceding to or ratifying the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty. Furthermore, the Declaration called upon the African States to vote in favour of the United Nations General Assembly Resolution (…) calling for a universal moratorium on executions with a view to abolish the death penalty.

The African Commission on Human and Peoples’ Rights (ACHPR), after considering the 5th periodic report of Uganda in November 2015, noted in the “Areas of Concern,” the “retention of the death penalty in the statute books of Uganda and the non-formalisation of the moratorium on the death penalty.” The ACHPR, therefore, made a specific recommendation on the “adoption of an official moratorium on the death penalty as a step towards the definitive abolition of the death penalty.”

One of the greatest challenges to the death penalty abolition campaign in Uganda has been the purported public[8] and the President’s[9] reported support for the death penalty.

Following the Constitutional Court’s judgment in the case of Susan Kigula,[10] which is hailed as a milestone in the efforts towards the abolition of the death penalty in Uganda, on 4 November 2019 the President assented to the Law Revision (Penalties in Criminal Matters) Miscellaneous Amendment Bill 2015.[11] The Bill removes all references to the mandatory death penalty, as prescribed in all Ugandan laws such as the Penal Code Act, Cap 120, the Anti-Terrorism Act, 2002 (amended in 2015) and the Uganda Peoples Defence Forces (UPDF) Act, 2005. By removing the mandatory imposition of the death penalty, it allows the Judiciary to pass an alternative sentence, taking into account the particular circumstances of the offence and the offender.

In light of this recent development, and the impending General Assembly consideration of the resolution on the moratorium on the use of the death penalty this year, OHCHR Uganda traces the history of the enactment of the Law Revision (Penalties in Criminal Matters) Miscellaneous Amendment Act, 2019, as part of the wider analysis of the movement towards the abolition of the death penalty in Uganda.

2.    The Death Penalty as a Punishment in Uganda

The death penalty is enshrined in Article 22 (1) of the Constitution of the Republic of Uganda, 1995 which states that: “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.”

Several statutes in Uganda provide for the death penalty, currently for 28 offences (civilian and military),[12] some of which do not appear to meet the threshold of “most serious crimes,” pursuant to article 6 of ICCPR for the imposition of the death penalty.[13] This is the highest number of offences providing for the death penalty among some of Uganda’s neighbours.[14]

At the same time, the law exempts certain categories of people from being sentenced to death. These include persons under eighteen years of age at the time of the commission of the offence,[15] pregnant women, and persons with psychosocial or intellectual disabilities.[16] 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.

The earliest recorded execution of an inmate took place in 1917 when Uganda was under colonial rule.[17] Since independence, 51 inmates have been executed following convictions by civilian courts.[18] The data on executions following convictions by military courts is not easily available, including due to the manner in which such executions have been carried out, often without granting those convicted the right to appeal, and frequently during periods of war or conflict. From January 1986 when the NRM government came to power, up to March 2003, forty-eight (48) soldiers convicted by military courts were executed by firing squad.[19] Between 2003 and 2005, i.e. before the current moratorium came into effect, and significantly at the height of hostilities between the Uganda People Defence Forces and the Lord’s Resistance Army, twenty-six (26) persons (civilians and soldiers) were executed in Northern Uganda alone, following convictions by military courts.[20] At the time of writing, there are one hundred twenty-seven (127) death row inmates sentenced by military courts.[21]  

Despite the existence of death penalty in law as a punishment, in 2000, the President of Uganda issued a moratorium on the death penalty. The last executions of 28 inmates convicted by a civilian court was carried out in April 1999, while convictions by the military court in 2003 resulted in the last execution of three soldiers in 2005.[22]

3.    The Legal Challenge to the Death Penalty – Susan Kigula case

On 4 September 2003, Katende Ssempebwa & Company Advocates, under the instructions of the Foundation for Human Rights Initiative (FHRI), filed a petition before the Constitutional Court, on behalf of the 417 inmates sentenced to death in Uganda at the time - the Susan Kigula case.[23] This marked the first time in world history that a country’s entire death row population filed a joint petition against capital punishment.

The Petitioners were all persons who at different times had been convicted of diverse capital offences under the Penal Code Act, and had been sentenced to death, as provided for under the laws of Uganda. The Petitioners contended that the imposition on them of the death sentence was inconsistent with Article 24 of the Constitution, which provides for respect for human dignity and protection from inhuman treatment, and Article 44, which prohibits derogation from particular human rights and freedoms.

The Petitioners further petitioned in the alternative as follows:

  • First, that the various provisions of the laws of Uganda which provide for a mandatory death sentence were unconstitutional because they are inconsistent with Articles 20, 21, 22, 24, 28 and 44(a) of the Constitution. They contended that the provisions contravene the Constitution because they deny the convicted person the right to appeal against the sentence, thereby denying them the right of equality before the law and the right to fair hearing as provided for in the Constitution.
  • Second, that the long delay between the pronouncement by Courts of the death sentence and the actual execution allowed for the ‘‘death row syndrome’’ to set in. Therefore, according to the petitioners, the carrying out of the death sentence after such a long delay constitutes cruel, inhuman and degrading treatment, contrary to Articles 24 and 44(a) of the Constitution.
  • Third, that section 99(1) (which provides for hanging as the legal mode of carrying out the death sentence) of the Trial on Indictments Act, was cruel, inhuman and degrading, contrary to Articles 24 and 44 of the Constitution.

The Constitutional Court handed down its ruling on 10 June 2005. It ruled as follows:

  1. The imposition of the death penalty does not constitute cruel, inhuman or degrading punishment in terms of articles 24 and 44 of the Constitution, and therefore the various provisions of the laws of Uganda prescribing the death sentence are not inconsistent with or in contravention of Articles 24, and 44 or any provisions of the Constitution.
  2. The various provisions of the laws of Uganda which prescribe a mandatory death sentence are inconsistent with Articles 21, 22(1), 24, 28, 44(a) and 44(c) of the Constitution and, therefore, are unconstitutional.
  3. Implementing the carrying out of the death sentence by hanging is constitutional as it operationalizes Article 22(1) of the Constitution. Therefore, Section 99(1) of the Trial on Indictments Act is not inconsistent with Articles 24 and 44(a) of the Constitution.
  4. A delay before execution beyond three years after a death sentence is an inordinate delay. Therefore, for those condemned prisoners who have been on death row for three years and more after their sentences had been confirmed by the highest appellate court, it would be unconstitutional to carry out the death sentence as it would be inconsistent with Articles 24 and 44(a) of the Constitution.

Consequently, the Constitutional Court made the following orders:

  1. For those Petitioners whose appeal process was completed and their sentence of death confirmed by the Supreme Court, their redress will be put on halt for two years to enable the Executive to exercise its discretion under Article 121 (which provide for prerogative of mercy) of the Constitution. They may return to court for redress after the expiration of that period.
  2. For the Petitioners whose appeals were still pending before an appellate court:

(a)   shall be afforded a hearing in mitigation on sentence,

(b)   the court shall exercise its discretion whether or not to confirm the sentence,

(c)   therefore, in respect of those whose sentence of death will be confirmed, the discretion under Article 121 should be exercised within three years.

Subsequent appeal was made to the Supreme Court by the Attorney General, which was followed by a cross appeal by the petitioners. On 21 January 2009, the Supreme Court confirmed the declarations made by the Constitutional Court with two modifications to the orders:

  1. For those respondents whose sentences were already confirmed by the highest 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 imprisonment for life 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.

4.    The Implications of the Susan Kigula case

The Susan Kigula case led to two main outcomes: the mandatory death penalty was declared unconstitutional, as was the delay of three or more years in carrying out the execution following confirmation of the sentence by the Supreme Court. As a result, all prisoners who had spent more than three years on death row after confirmation of their sentence by the highest appellate courts had their 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 to be heard only on mitigation of sentence and new sentences passed.[24]

This led to a drastic decline in the death row population arising mainly from mitigation hearings, which saw most of the death sentences quashed.[25] By 23 June 2016, thirteen (13) women previously on death row had been released, including Susan Kigula, while eighteen (18) female inmates had their sentences commuted to life imprisonment.[26] Among the men, forty-eight (48) previously on death row were serving twenty years without remission, two hundred eighty-three (283) are awaiting or going through mitigation hearings, eight (8) were released after the mitigation hearings, fifteen (15) were given terms of imprisonment that they had completed and were subsequently released, twenty-one (21) had their death sentences commuted to life in prison, one hundred nineteen were given determinate sentences (5 to 50 years), twenty (20) had their death sentences confirmed, two (2) were referred to a mental health facility, two (2) were found not guilty by the courts as a result of mentally incapacity at time the criminal acts were committed and held pending Minister’s Order on further action to be taken, while two (2) were pardoned.[27]

5.    Legislative and Judicial Efforts to Align the Law with the Supreme Court’s Decision

The Kigula judgment led to mixed results. While there is no conclusive trend identified as to how judges have used their discretion with regard to sentencing persons to death, proponents of the death penalty have resorted to issuing sentences of more than 50 years of imprisonment. This appears to be because, according to the Kigula judgment, persons sentenced to death who remain on death row beyond three years will have their sentences commuted to “life imprisonment” which, according to the Prisons’ Act, is construed to mean 20 years.[28]

In April 2013, former Chief Justice Benjamin Odoki issued Sentencing Guidelines for Courts of Judicature, including to aid the uniform application of the Court’s decision in Kigula, providing guidance to judicial officers on the imposition of the death penalty and alternative sentencing in capital offences. The Guidelines provide that the death penalty is deemed as the suitable punishment[29] in the “rarest of the rare cases”, thus allowing its continued application. According to the Sentencing Guidelines the “rarest of the rare” cases are considered to be:

  1. where the court finds that the commission of the offence was planned and premeditated,
  2. where the victim was a law enforcement officer or a witness or likely to be one in court proceedings,
  3. where the death of the victims was caused by the offender who was committing or attempting to commit, murder, rape, defilement, robbery, kidnap with intent to murder, terrorism, or treason
  4. where the offender was acting in furtherance of a common purpose or conspiracy,  
  5. where the victim died following the unlawful removal their human organ or following an attempt to remove their human organ, and
  6. where the victim was killed in the act of human sacrifice.

The Sentencing Guidelines further list aggravating factors[30] and mitigating factors[31] for the court to consider.

The Guidelines also prescribe the circumstances in which the courts may impose a sentence of death in rape and defilement cases.[32]

The Guidelines further describe a sentence for life imprisonment as the second gravest punishment next to the sentence of death,[33] which a court may impose in capital offences where the circumstances do not merit a sentence of death,[34] considering aggravating or mitigating factors.[35]

It is therefore reasonable to conclude that according to the Sentencing Guidelines, in capital offences, in particular where the court finds factors mitigating sentence of death, its discretion is fettered to imposing a sentence of life imprisonment as the only alternative. In view of the Kigula case, efforts could be undertaken to review the Sentencing Guidelines to allow for Courts to issue sentences other than life imprisonment for capital offences, in particular in situations where mitigating factors are to be considered.

On 6 April 2016, Hon Alice Alaso, former Member of Parliament for Serere Constituency, introduced to Parliament the Law Revision (Penalties in Criminal Matters) Miscellaneous Amendment Bill 2015.[36] The objective of the Bill was to amend the Penal Code Act, Cap 120; the Anti-Terrorism Act, 2002, the Uganda Peoples Defence Forces Act, 2005 and the Trial on Indictments Act, Cap 23, by removing all references to the mandatory death penalty prescribed in those laws; to restrict the application of the death penalty to ‘the most serious crimes’; and to remove the restriction on mitigation in the case of convictions that carry a death penalty. Thus, the Bill sought to ensure that the various statutes conform to the Supreme Court decision in Kigula. When Alice Alaso lost her parliamentary seat in 2016, Hon. Medad Ssegona, the Busiro East Constituency Member of Parliament, took over the work of spearheading the enactment of the Bill until it was passed by Parliament in August 2019. On 4 November 2019, the President of Uganda assented to the Bill.

As of 17 February 2020, there are 133 inmates on death row.[37] Of these inmates on death row, four (4) are women and 129 are men.[38] There is no comprehensive public information available regarding the offences for which these death row inmates were convicted. However, statistics from the recent past provide guidance on what offences the death penalty is commonly meted out for. For instance, five out of the seven (7) death sentences handed out in 2010 were for murder,[39] three (3) of death row inmates in Luzira prison in 2011 were convicted of treason.[40] In 2013, 31% of the death row population (155 out of 505 inmates) were convicted of aggravated robbery.[41]

6.    Summary of the Current Legal Position on the Death Penalty in Uganda

Following the case of Kigula, and once the Law Revision (Penalties in Criminal Matters) Miscellaneous Amendment Act, 2019 is gazetted, the legal position with regard to the enforcement of the death penalty in Uganda will be as follows:

  1. Any inmate who has been on death row for more than three (3) years following confirmation of their sentence by the highest appellate court should have their sentence commuted to life imprisonment without parole. Thus, in the context of the current moratorium, death row inmates will be imprisoned for life, with no possibility of parole.
  2. Inmates on death row whose sentence arose from the mandatory statutory provisions should have their cases remitted to the High Court to be heard only on mitigation of sentence and have new sentences passed.
  3. Ugandan legislation no longer provides for the mandatory death penalty for any offences.
  4. The High Court/Judge has now a discretion on sentencing, to determine whether the person must be punished with death, or another form of punishment, which under current circumstances would be life imprisonment.
  5. The moratorium on the death penalty issued by the President of Uganda in 2000 is still in force.

7.    Judicial Attitude Towards the Death Penalty

A recent judgment in case of Kyabire Patrick & 3 Others –v- Uganda,[42] which was handed down on 8 May 2020 by the Supreme Court, provides an insight into judicial attitudes towards imposing the death penalty. In this case, the four (4) appellants were sentenced to the mandatory death penalty by the trial judge on 24 June 2004. As a result of the decision in Kigula, the appellant’s case was remitted to High Court for mitigation of the sentence. In mitigation, the Appellants put forward the following issues:

1)    They had been on death row for 12 years and thus suffered the death row syndrome;

2)    They had been on remand for 1,5 years;

3)    They had no previous convictions;

4)    One of the appellants was 72 years with failing health;

5)    One of the appellants was 26 years old at the time of the offence and was influenced by others;

6)    All the appellants have families and they are the breadwinners for their families;

7)    They had undertaken courses while in prison and acquired skills that would allow them to fend for themselves and their families on release; and

8)    The person they were convicted of killing had died during an incident of mob justice, thus no one can tell who struck the fatal blow.

The High Court maintained the decision of the trial judge, by confirming the punishment of death. The appellants sought a revision of the High Court’s decision before the Court of Appeal, which dismissed their case. Thus, the appellants sought redress before the Supreme Court. Among their issues of contention, the appellants argued that as the law stands now in Uganda, the death penalty can only be imposed in grave and rare circumstances because of its finality. The appellants also argued that the court is bound to follow its decision in Kigula. Thus, the appellants prayed that the appeal is allowed and they are given custodial sentences of between 20-25 years.

In its judgment, the Supreme Court clarified that its intervention is only limited to cases where the court acted on the wrong principle or overlooked a material factor, or where the sentence is too low or too high. The Supreme Court further held that the Courts have a discretion in handing out the death penalty. In particular, in circumstances such as those in the present case, where the manner of commission, the motive, the magnitude of the crime, as well as the anti-social and abhorrent nature, coupled with the personalities of the victims, place the case in the category of the “rarest of the rare”. Thus, the Supreme Court confirmed the punishments of death for the Appellants. It is noteworthy that the Appellants’ sentences of death had not been confirmed by the highest appellate court and, therefore could not benefit from the case of Kigula, so as to have their sentences commuted to life imprisonment. This judgment provided guidance on the factors that judges may take into account in determining whether a particular crime amounts to the “rarest of the rare” and impose the death penalty.

The fact that the Supreme Court in this decision not only reiterated the discretionary powers of the Courts in handing out the death penalty, but also asserted its role in intervening where an inadequate sentence has been handed out by courts, points to the death penalty still very much being in the mindset of the Judiciary as an option.

 8.    Going Forward

OHCHR, as part of wider United Nations efforts, will continue advocating for the abolition of the death penalty. Consequently, OHCHR Uganda will continue sensitising relevant stakeholders and closely follow up on this matter. Attitudinal change among the Judiciary needs to be at the forefront of the campaign to limit the application of the death penalty in Uganda. This is because the law now provides them with discretion to hand down the death penalty for the gravest of crimes. This possibility continues to be resorted to, as seen in the recent case handled by the Supreme Court. As an urgent intervention, the Judiciary needs to be further sensitised regarding the parameters of its discretion with a view to moving away from the death penalty, even if it currently remains possible to impose it under the law. One way of doing this could be to reflect the current position on the death penalty in Uganda’s Sentencing Guidelines. In this context, the Judiciary could also be sensitised about human rights concerns pertaining to life imprisonment without parole. With regard to criminal justice or penal reforms, there is a need to engage with the Law Reform Commission, in order to review the offences which currently provide for the death penalty in Uganda, with the aim to ensure that the death penalty is only imposed for crimes of extreme gravity involving intentional killing.

By removing provisions regarding the mandatory imposition of the death penalty, Uganda has taken a significant step, in line with its obligations under the ICCPR, and the aspirations set out under the UN General Assembly resolution on the moratorium on the use of the death penalty. This also indicates a political will to progressively move towards abolition. This moment should be seized to galvanise support for the abolition of the death penalty, among political and judicial actors. It is hoped that in light of the recent positive developments, Uganda may consider to vote in favour of the UN General Assembly resolution in the near future.

 ***


[1] UN Secretary General 2019 report to the Human Rights Council on Capital punishment and the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty,  https://undocs.org/en/A/HRC/42/28; para 30 onwards.

[2] UN Doc A/RES/73/175, adopted on 17 December 2018; available here https://undocs.org/en/A/RES/73/175.

[3] Report of the UPR Working Group, UN Doc A/HRC/34/10, available here: https://undocs.org/A/HRC/34/10.

[4] A/HRC/RES/42/24, para 2.

[5] E.g. A/73/260.

[6] CCPR/C/GC/36, paras 37 and 50.

[7] Resolution ACHPR/Res. 42(XXVI) 99: Resolution Urging States to Envisage a Moratorium on the Death Penalty; and Resolution ACHPR/Res.136 (XXXXIIII) 08: Resolution Urging States to Observe a Moratorium on the Death Penalty. https://www.achpr.org/sessions/resolutions?id=440

[8] However, an opinion poll survey in September 2016 by IPSOS, revealed that the trend has since reversed, with support for the sentence decreasing to 36% while that of its abolition increasing to 64%, see Lucy Nantume in “The death Penalty in Uganda: Obstacles to the adoption of the draft Protocol and strategies the civil society could undertake to mitigate them.”

[9] See “Museveni Regrets Halting the Death Penalty”, New Vision, 22 January 2018; “Ugandan President Museveni seeks mandatory death penalty for murders after nephew's slaying,” CNN, 12, September 2019.

[10] Attorney General v Susan Kigula & 417 Others (Constitutional Appeal No.3 of 2006) [2009], UGSC (21 January 2009, p.43.

[11] The East African, Uganda abolishes mandatory death penalty, 21 August 2019, available at https://www.theeastafrican.co.ke/news/ea/Uganda-abolishes-mandatory-death-penalty/4552908-5243370-rfierez/index.html (Accessed 7 July 2020).

[12] These are:

-     Under the Penal Code Act: Murder - section 189; Aggravated Robbery - section 286 (2); Rape - section 123; Aggravated Defilement - section 129(1); 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.

-     Under the Anti-Terrorism Act: Engaging in or Carrying out Acts of Terrorism - section 7(1); Aiding and Abetting Terrorism; and Establishment of Terrorist Institution - section 9.

-     Under the UPDF Act: Treachery - section 16; Mutiny - section 18; Failing to Execute One’s duties where Such Failure Results in Failure of an Operation or Loss of Life - section 20; Offences Related to Prisoners of War where a Prisoner of War Fails to Re‐join the Army when Able To Do So, or Serves with or Aids the Enemy - section 21; Cowardice in Action where it Results in Failure of Operation or Loss of Life - section 29; Failure by Person in Command to Bring Officers under his Command Into Action, or Failure to Encourage Officers under His Command to Fight Courageously or Gives Premature Orders to Attack, Resulting into Failure of Operation or Loss of Life - section 30; Breaching Concealment - section 31; Failure to Protect War Materials - section 32; Failure to Brief or Give Instructions for an Operation Leading to Failure or Operation or Loss of life - section 35; Disclosing Confidential Information to the Enemy or Unauthorised Persons or Discussion of Confidential Information in Unauthorised Places, and Anything Deemed to be Prejudicial to the Security of the Arm - section 37; Spreading Harmful Propaganda where There is Failure of Operation or Loss of Life - section 38; Desertion if the Desertion Endangers life, or Leads to Loss of Life, or if the Person Deserts with Ammunition or War Materials or Joins the Enemy - section 39; Failure to Defend a Ship or Vessel when Attacked or Cowardly Abandoning it - section 50; Inaccurate Certification of an Aircraft or Air Material - section 54; Dangerous Acts in Relation to an Aircraft which May Result in Loss of Life or Bodily Injury - section 55; Attempt to Hijack an Aircraft or Vessel Used by the Army or Belonging to the Army - section 58, and Causing Fire where Fire Results in Death - section 61.

[13] According to the Human Rights Committee, the term “most serious crimes” must be read restrictively and appertain only to crimes of extreme gravity involving intentional killing. Crimes not resulting directly and intentionally in death can never serve as the basis, within the framework of article 6, for the imposition of the death penalty. See General Comment No. 36, CCPR/C/GC/36, para 35.

[14] Kenya has five offences and Tanzania four offences, which provide for the imposition of the death penalty. Rwanda and Burundi have abolished the death penalty.

[15] Important to note that under Section 88 of the Children’s’ Act, 2006, the minimum age of criminal responsibility is twelve (12) years while under Section 2 of the same Act a children is defined as a person under the age of eighteen (18).

[16] Sections 106,103 of the Trial on Indictment Act, 2008 & Section 11 of the Penal Code (Amended) Act 2007.

[17] Augustine Obura, Commissioner of Prisons, “Situation of the Death Penalty in Uganda”, Presentation to Parliamentary Round Table on the Abolition of the Death Penalty, 7 October 2015, available on request to OHCHR-Uganda.

[18] Ibid.

[19]  Emanuel Kasimbazi, The Death Penalty in Uganda, March 2003.

[20]  Progressive Report on Action Taken Against Human Rights Violations by Uganda People’s Defence Force (UPDF) in Northern Uganda 2003-2005.

[21] Information provided by Uganda Prison Service on 31 July 2020.

[22] Ibid.

[23] Attorney General v Susan Kigula & 417 Others (Constitutional Appeal No.3 of 2006) [2009], UGSC (21 January 2009, p.43.

[24] Supreme Court judgement pages 63 and 64.

[25] Before the Susan Kigula ruling, mitigation factors were not heard during trials for capital offenders as per Section 98 of the Trial on Indictments Act.

[26] Information provided by the Civil Society Coalition on the Abolition of the Death Penalty, Uganda on 17 February 2020.

[27] Ibid.

[28] Section 86(3) of the Prison Act, 2006 states that for the purpose of calculating remission of sentence, imprisonment for life shall be deemed to be twenty years imprisonment.

[29] Section 18 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice Directions), 2013.

[30] Section 20: (a) the degree of harm or injury; (b) the part of the victims body where harm or injury was occasioned; (c) sustained or repeated injury or harm to the victim, (d) the degree of meticulous pre-meditation or planning, (e) the use and nature of the weapon, (f) when the offender deliberately caused loss of life in the cause of commission of another offence, (g) when the offender deliberately targeted and caused death of a vulnerable victim; (h) when the offender was part of a group or a gang and the role of the offender in the group or a gang and in the commission of the crime, (i) when the offender was motivated by or demonstrated hostility based on the victim’s age, disability, gender or other discriminating characteristics, (j) where the offence was committed against a vulnerable member of the community such as pregnant woman, child or person of advanced age; (k) where the offence was committed in the presence of another person for instance a child or spouse of the victim; (l) where there was gratuitous degradation of the victim such as multiple incidents of harm, injury or sexual abuse; (m) where there was attempts to conceal or spouse of evidence; (n) where there was abuse of power or trust; (o) where there was previous incidents of violence or threats to the victim; (p) the impact of the crime on the victim’s family, relatives or community, or (q) any other factors that the court may consider relevant.

[31] Section 21: (a) lack of premeditation; (b) a subordinate or lesser role in a group or gang involved in the commission of the offence; (c) mental disorder or disability linked to the commission of the offence; (d) element of self-defence; (e) plea of guilt; (f) where the offence is the first one committed by the offender; (g) where a single or isolated omission or act caused the fatal injury; (h) where the injury is less serious in the context of the offence; (i) the remorsefulness of the offender; (j) any provocation; (k) advanced or youthfulness age of the offender; (l) family responsibilities; (m) intoxication; (n) or any other issues that the court may consider relevant.

[32] Section 22: (a) where the victim was raped or defiled repeatedly by the offender, co-accused, co-perpetrator or an accomplice; (b) where the offence was committed by more than one offender; (c) where such persons acted in the execution or furtherance of a common purpose or conspiracy; (d) where the offender knew or had reasonable cause to believe that they had HIV/AIDS; (e) where the offence was committed repeatedly by an offender in a position of trust or with primary responsibility of the child victim; (f) where the victims was gang raped or defiled; (g) where the victim is physically disabled and as such vulnerable, mentally disabled, sustained injuries arising from the infliction of grievous bodily harm or any other grave circumstances.

[33] Ibid Section 23.

[34] Ibid Section 24.

[35] Ibid Section 25.

[36] No. 27 of 2015.

[37] Information provided by the Civil Society Coalition on the Abolition of the Death Penalty, Uganda on 17 February 2020.

[38] Ibid.

[39] Information provided by Penal Reform International, Uganda Chapter.

[40] Ibid.

[41] Ibid.

[42] Criminal Case No.62 of 2018