Revisit decision on death penalty
On Monday, Uganda joined the rest of the world to commemorate the 20th edition against the death penalty under the theme; a path paved with torture.
One can describe the relationship between the death penalty and torture as inseparable. The death penalty is a capital punishment where the state sanctions the practice of killing a person as a punishment for a crime. The sentence ordering the offender to be punished in such a manner is known as a death sentence.
Torture refers to any act or omission by which severe pain or suffering, physical or mental, is intentionally inflicted on a person by or at the instigation of or with the consent or acquiescence of any person whether a public official or other person acting in an official or private capacity as provided for under Section 2 of the Prevention and Prohibition of Torture Act, 2012.
The Constitution as amended under Article 22 provides for the right to life and stipulates that no person shall be deprived of life intentionally except in the execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offense under the laws of Uganda and that the conviction and sentence have been confirmed by the highest appellate court.
It is also worth noting that the Constitution provides for the prohibition of derogation from particular human rights and freedoms under Article 44(a) one of them being freedom from torture and cruel, inhuman, or degrading treatment or punishment.
Uganda is considered a retentionist state because it has no established practice or policy against carrying out executions. This was expounded by the Supreme Court in the case of Attorney General and Susan Kigula & 417 others, Constitutional Appeal No.03 of 2006.
The court opined that the Constitution did not regard the death penalty as qualifying for cruel, unusual inhuman, or degrading treatment or punishment thus concluding that it didn’t contradict the right against freedom from torture, inhuman, and degrading treatment among other rights.
The fact that the court stated that the death penalty should not be mandatory and that laws on statute books in Uganda which provide for a mandatory death sentence are inconsistent with the Constitution, implies that the death penalty as a punishment can still be imposed under some circumstances.
The line between torture and the death penalty as a sentence is very thin. A condemned person does not lose all their other rights as a human being provided they are not executed such as dignity.
The death row syndrome amounts to psychological torture in as much as the Supreme Court was not alive to this fact.
The inordinate delays to execute condemned persons exposes them to harsh prison conditions such as; insufficient access to food, medical care, restricted visits by their relatives, decent clothing, solitary confinement, and limited socialisation among others.
All these conditions in my view amount to cruel, inhuman degrading treatment which is torture. This should also not imply that the alternative execution should be expedited.
Regarding the right to life, very precious and fundamental, it should give us no option but to re-visit the Supreme court decision of Attorney General and Susan Kigula, and expressly declare that the death penalty amounts to torture thus totally abolishing and declaring it unconstitutional.
World over, there are various modes of execution such as hanging, shooting, beheading, stoning, crucifixion, gas asphyxiations, electrocution, and lethal injections. All these methods amount to cruel, inhuman degrading treatment which in my view is torture.
The UN Resolution on safeguards guaranteeing the rights of those facing the death penalty, specifically under paragraph 9 provides that; Where capital punishment occurs, it shall be carried out to inflict the minimum possible suffering.
The lacuna that we still face is to determine a painless way to take a person’s life without any form of torture or inhuman or degrading treatment and the Supreme Court in the Susan Kigula case alluded to this fact. This may require extensive research which is not likely to yield a substantive acceptable conclusion.
It is hard to guarantee that there is a pain-free method of execution even when there are safeguards that may be invented or put in place by experts of whatever caliber thus making it hard to implement the death penalty without violating the provisions of the law about the prohibition of torture.
The failure to provide convicts with timely notification about the scheduled date of their execution is in my view a form of ill-treatment which renders execution likely to be contrary to the prohibition of torture thus psychological trauma is an inevitable consequence of the imposition of the death penalty.
The prolonged trial process alone in my view involves deliberate and premeditated destruction of the accused person hence causing physical pain and psychological suffering. This occurs each time the accused person thinks about the death sentence that the court may hand down to the accused in the event he or she is convicted.
I, therefore appeal to the Supreme Court in Uganda to revisit its decision in the Susan Kigula case and declare the death penalty as a sentence unconstitutional since it’s inseparable from torture.
Brian Kisomose, Human rights activist
