Yesterday, Uganda´s constitutional court began hearing an unprecedented legal challenge to capital punishment from the country´s more than 400 death row inmates. -While this is surely important, I fear that Ugandan authorities may welcome this opportunity to draw attention away from far bigger human rights problems, especially in the north, says Niels Jacob Harbitz, HRH´s Project Manager for Central and East Africa. (20-JAN-05)
This article was originally produced by the South African News 24 on 19 January. It has been edited for republication here.
The 417 prisoners contended before the country´s second highest court that the death penalty – carried out by hanging in Uganda – amounts to cruel and degrading treatment which is prohibited by the constitution. “The petition (asks the court to rule on) whether the death penalty is constitutional and a lawful punishment or whether the constitution permits it,” defence lawyer John Katende told the five-judge panel.
Unique, and all the more important, appeal
Five of the 417 convicts, who first petitioned in September 2003 for the death penalty to be expunged from the penal code, appeared at yesterday´s hearings, while the others remained at Uganda´s Luzira maximum security prison. The inmates in court shed tears when Katende offered the judges graphic descriptions of the hanging process, which drew gasps from relatives in the audience while sombre human rights activists looked on. The petitioners argue that capital punishment is banned by Uganda´s constitution which proscribes “torture, cruel and inhuman or degrading forms of punishment”. The petition covers only capital punishment in non-military courts, where the sentence can be handed down for crimes such as treason, terrorism and murder. Katende said the appeal was unique both in Uganda and in Africa as he maintained the petition was the first in which a country?s entire death row population had challenged their sentences en masse.
Warders ´traumatised´
The convicts have found an unlikely ally in the form of the Uganda prisons department, which since early 2003 has called for the abolition of capital punishment as it traumatises warders who have to look after doomed inmates. Prison chief Joseph Etima submitted an affidavit in support of the death row inmates´ appeal, according to a list of supporting documents provided by Katende. The department has recommended that the death penalty be replaced by life in prison without the possibility of parole. However, a lawyer for the government argued the death penalty should be preserved as it is an effective deterrent and is supported by the Ugandan people. “We represent all Ugandans who believe that people should be responsible for their mistakes,” state attorney, Benjamin Bagambe, told the court.
Most want death penalty to stay
He said a recent study by a government-appointed constitutional review commission had found that 57.5% of the country´s population is in favour of keeping the death penalty while only 42.5% want it abolished. According to prison records, at least 377 people, including one woman, have been legally executed by hanging in Uganda since 1938. Current President Yoweri Museveni´s government has hanged 51 people, but none since 1999 when it executed 28 in one day, including a prominent politician in deposed president Milton Obote´s regime, Hajji Musa Ssebirumbi. Seventy-one court ordered executions were carried out under Idi Amin´s 1971 to 1979 military dictatorship, although thousands more were killed extra-judicially during his rule.
-Keep up the pressure
-While the outcome at this stage is open, I fear that Ugandan authorities may not only welcome this diversion of attention from other human rights issues in the country. They may even play up to what they know is the opinion, for instance of the vast majority of their donors, namely that the death penalty should have been abolished long since, elaborates Harbitz. -As in many other countries in the region, the death penalty is a dormant paragraph. In Uganda, nobody has actually been hanged for the last six years. In Kenya, where HRH visited the death row in a women´s prison eighteen months ago, the situation is pretty much the same. Needless to say, even if a decision to abolish the death penalty will contradict the opinion of the majority of Ugandans, the international community will still welcome it as a watershed move towards having the death penalty abolished in other African countries as well. Regardless of the outcome, though, it is up to all of us working for higher human rights standards in Uganda now not to get carried away, but instead make sure that we keep up the pressure for improvements of the human rights situation also in other areas where the implementation of what is, on paper, by and large fine laws, come far short of living up to their own standards, such as in the areas of of refugees´ and IDP´s rights and women´s and children´s rights. That may well become a bigger challenge now, concludes Harbitz.
