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TABLE OF CONTENTS I. INTRODUCTION II. THE LEGAL REGIME

A. An Overview of International and Regional Standards B. An Overview of Domestic Legislation Excerpt from Amnesty International: Recent Executions in Uganda C. Martial Law Excerpt from Amnesty International: Recent Executions in the Army

Table: Appellants to Court Martial Awaiting Appeal in Upper Prison Luzira

III. THE ORGANISATION OF THE JUDICIAL SYSTEM A. Criminal Justice System B. Criminal Jurisdiction

1. Extradition 2. Uganda’s Extradition Treaties Table: Uganda’s Extradition Treaties 3. Extraditable Crimes

IV. ISSUES AND PROBLEMS OF THE CRIMINAL PROCESS IN UGANDA A. Pre-Trial Processes

1. Arrests 2. Searches and Search Warrants 3. Bail 4. Charges and Indictments 5. Plea Taking

B. Trial 1. Preliminary Proceedings in Cases to be tried by the High Court

2. Actual Trial 3. Procedure for Mentally Ill Suspects 4. Acquittal on no case to answer 5. Assessors 6. Judgement 8. Competent Verdicts 9. Sentencing 8. Compensation and Restitution 10. Serving Sentence/Parole 11. Appeals and Review 12. Clemency/Mercy

V. APPLICATION OF THE DETAH PENALTY

Table: Cases currently in Court in Uganda that could result in the Application of the Death Penalty A. Actual Mechanics of Death Warrant under the Penal Code

Table: Statistics of application of the Death Penalty in the last 15 Years Table: Uganda’s Death Row as at 1st January 2004

VI. CRIMINAL JUSTICE AND HUMAN RIGHTS IN UGANDA A. Legal Aid and Legal Representation

VII CONCLUSION AND RECOMMENDATIONS APPENDICES 1. Conventions and Legislation 2. Legislation 3. Cases 4. Select Bibliography

THE DEATH PENALTY IN UGANDA

EMMANUEL KASIMBAZI∗

I. INTRODUCTION

∗ National Coordinator, BIICL Death Penalty Project, Uganda Mr Emmanuel Kasimbazi is Dean of the Faculty if Law at Makerere University as well as a practising advocate in Uganda.

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Uganda has an area of 235,796 square kilometres and straddles the equator as far as one degree south and four degrees North between longitude 30 and 36 east approximately. It is land locked country bordering with Sudan in the north, Kenya in the east, Tanzania in the east and south, Rwanda in the southwest and Democratic Republic of Congo in the West. It has a population of approximately 24 million people.

Prior to the advent of colonialism, a network of indigenous legal and social systems formed what is now Uganda.1 With the declaration of Uganda as a British protectorate in 1894 came the abolition of those local systems that did not serve the British interests.2 Uganda’s independence in 1962, and the brief prosperity that followed, preceded a turbulent political period characterized by state brutality and massive human rights violations. Uganda’s current president, Yoweri Kaguta Museveni, assumed power on January 26, 1986, after a five-year guerrilla war. His administration restored peace in most parts of the country and introduced a measure of economic stability and democratic participation, in stark contrast to the years of political violence and economic deprivation under the former presidents Idi Amin and Milton Obote.

Since the early 1990s, Museveni’s government has pursued a policy of the decentralization of power to the local level. The process, which aims to improve administrative performance and enhance government accountability and transparency, encompasses the legislature, the executive, and judicial institutions. As a result, district administrations have assumed responsibility for the delivery of services that include health and social welfare, and for parts of the judicial system. These policies have led to the rejuvenation of the legal system in Uganda that was largely ineffective.

The legal system of Uganda is based on English common law. The applicable laws include statutory law, case law, common law, doctrines of equity, and customary law. Statutory law takes precedence, and customary law is only applicable in the absence of relevant statutory or case law. With a predominantly rural population, many Ugandans seek justice at the local level. State sponsored local tribunals or Local Council courts (LC courts) apply customary norms and provide local fora for dispute resolution. Five local government levels exist in Uganda, running from the village level to the district or city level. Local Council courts are established from the village level (LC1), to the parish level (LC2), and on to the sub-county level (LC3). The courts have jurisdiction over limited civil matters and petty criminal offences.

In pre-colonial Uganda, several tribes used death as a penalty. This was particularly so for the Langi where death was mandatory for such crimes as witchcraft, incest and sexual aberrations like bestiality.3 The execution was particularly gruesome as one could be clobbered to death. In the Bagisu, if a man died under the influence of magic, his relatives would hold the magic worker responsible for the death and would kill him or her in revenge.4 In Bakiga, if a girl conceived before marriage, she would suffer death and if one committed murder, the culprit would be buried beneath the body of his or her culprit.5 These are just some of the practices that used to exist.

With the advent of the British rule, a foreign legal system was institutionalised with some attempts to take into account the traditional practices. In June 1884, a consular court was set up applying English law and delivering authority from the Foreign Jurisdiction Act 1890. In 1900, the Buganda Agreement gave the Kabaka (the Buganda traditional leader) power to exercise direct rule over the natives of Buganda and administer the Kabaka’s courts until 1917. However, no death sentence could be executed without the approval and sanction of Her Majesty’s representative in Uganda. This did not hinder the application of the

1As of February 1, 1962, Uganda had 56 indigenous communities. See Third Schedule to the Constitution of the Republic of Uganda, 1995. The people of Uganda are divided into four main linguistic groups: the Bantu, the Luo, the Nilo-Hamites, and the Sudanic, each of which consists of several smaller ethnic and linguistic groups. Religion is an important factor in community life and national affairs. According to official statistics, two-thirds of the population are Christians, about 16 percent are Muslims, and the rest are animists. See Common Country Assessment, Uganda: Promise, Performance and Future Challenges, p. 10. 2 Manisuli Ssenyonjo, ‘The Domestic Protection and Promotion of Human Rights under the 1995 Ugandan Constitution' Netherlands Quarterly of Human Rights, vol. 20, no. 4, December 2002, 445, 447. 3 Driberg JH (1984), The Lango: The Nilotic Tribe of Uganda, Frank Cass & Co. Ltd, London, Pg 160. 4 John Roscoe The Bagisu and Other Tribes of Protectorate Uganda (Frank Cass &Co. Ltd London 1986) 5 Ibid Pg 164

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death penalty and by independence in 1962 at least 749 cases had been reported and 9 executions had been confirmed6.

II. THE LEGAL REGIME

A. An Overview of International and Regional Standards Relating to the Death Penalty The trend in international human rights and international criminal law7 is geared towards the abolition of the death penalty. This trend is clearly manifested in the various international human rights instruments, treaties and conventions that have been adopted by the United Nations. The 1948 Universal Declaration of Human Rights (UDHR)8 stipulates that everyone has a right to life.9 The International Covenant on Civil and Political Rights (ICCPR)10 provides that every human being has the inherent right to life and no one shall be arbitrarily deprived of his life.11 It further provides that anyone sentenced to death shall have the right to seek pardon or commutation of the death sentence.12 The Second Optional Protocol to the ICCPR is yet another instrument that aims at the abolition of the death penalty.13

In 1984, the United Nations General Assembly (UNGA) passed the Convention against Torture and other Inhuman or Degrading Treatment or Punishment.14 The Convention calls for the protection of all persons from being subjected to torture or any form of cruel, inhuman, or degrading treatment.15 It further calls for an effective struggle against torture, cruel, inhuman, or degrading treatment. Several jurists have argued that the action of executing a person by whatever means amounts to an act of cruelty and is not only degrading but also inhuman.16

The UNGA has further passed a number of resolutions relating to the death penalty, the most notable of which are Resolution 2857 (XXVI) of December 1971 and Resolution 1984/50 of 25 May 1984. Resolution 2857 (XXVI) calls for a progressive restriction of the number of offences for which capital punishment may be imposed. This call is aimed at abolishing this punishment in all countries. Resolution 1984/50 adopts safeguards guaranteeing the protection of the rights of those facing death penalty but on the understanding that these safeguards should not be invoked to delay or prevent the abolition of capital punishment. The safeguards include the provision that capital punishment should be imposed for serious crimes only. However, the problem with this is the definition of a serious crime. Each state has its own definition of what amounts to a serious crime.

The safeguards further include the right to appeal, the right to benefit from lighter penalties under certain conditions, the right to seek pardon and exemptions from capital punishment for persons below 18 years of age, pregnant women, new mothers, and persons of unsound mind. At the regional level, a number of conventions against the death penalty have been adopted. In 1950, for example the Council of Europe passed the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention provides inter alia that everyone has a right to life and that life can only be taken in execution of a sentence of court. It further provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. These provisions, however, are inherently 6 Noowe Kakono M, ‘Rethinking the Death Penalty in the Criminal Justice System in Uganda’ (LLB Unpublished, 2002) 24 7 The 1998 Rome Statute of the International Criminal Court (UN Doc A/Conf 183/9) provides in Art. 76 (1) and (2) that the court may only impose a maximum sentence of imprisonment of up to 30 years, while both the International Criminal Tribunals for Rwanda (see Security Council Resolution 955 (1994), UN Doc S/RES/955 1994) And for the former Yugoslavia (See SC Resolution 827, 25 May 1993, UN Doc S/RES./827 (1993) provide for the maximum sentence of life imprisonment. 8 UNGA res.217 A(III) of Dec. 10, 1948 9 UDHR, Art. 3. 10UNGA res.2200 A (XXI) of Dec. 16, 1966. 11ICCPR, Art. 6(1) & (2). 12ibid, art. 6(4) 13 See, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty (UNGA res. 44/128, Dec. 15, 1989). 14 See, Convention against Torture and other Inhuman or Degrading Treatment or Punishment (UNGA res. 39/46 Dec 10, 1984). 15 ibid, at preamble. 16 See, eg Chaskalson in the South African Case of The State v Makwanyane & Mchunu, Case No. CCT/3/94

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contradictory because the death penalty implicitly allowed in Article 2 is tantamount to the torture or inhuman or degrading treatment prohibited in Article 3.

On 1st March 1985, the 6th Protocol to the European Convention concerning the abolition of the death penalty was passed. The protocol qualifies Article 2 of the 1950 Convention by providing that member states of the Council of Europe may allow the death penalty in respect of acts committed in war or in imminent threat of war.

In the Americas, the Organisation of American States (OAS) has over the years created jurisprudence in human rights and invariably the death penalty. A number of conventions and Declarations have been passed which include but are not limited to the 1948 American Declaration of the Rights and Duties of Man (ADRM) and the American Convention on Human Rights (ACHR). The ADRM provides that every human being has a right to life, liberty and the security of his person. The ACHR provides that everyone has the right to have his life respected and it shall not be arbitrarily taken away. It further provides that those countries that have not abolished the death penalty should impose it only for those most serious crimes. It provides too that, that the death penalty shall not be re-established in states that have abolished it and that in no case shall capital punishment be inflicted for political offences or related common crimes.

The Convention limits the age a person should have attained upon which the death penalty can be imposed to a minimum of 18 years and a maximum of 70 years. Pregnant women are exempt. Like the European Convention, the ACHR also stipulates that no one shall be subjected to torture or cruel, inhuman, or degrading punishment or treatment. The Protocol to the American Convention on Human Rights to Abolish the Death Penalty calls for the total abolition of the death penalty in all member states. However, member states are given the option to reserve the right to apply the death penalty in wartime in accordance with international law for extremely serious war crimes.

In Africa, the African Charter on Human and People’s Rights (ACHPR) states that no one may be arbitrarily deprived of the right to life. It prohibits all forms of exploitation and degradation particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment.17 In other words, the African Charter approves the death penalty within the jurisdictions of states that have it as a form of punishment, provided that it is not imposed in an arbitrary fashion.

B. Overview of Domestic Legislation

In Uganda, the criminal justice system is governed by a number of statutes including the Penal Code Act, the Trial on Indictments Act and the Criminal Procedure Act. In the Penal Code a number of offences are created that carry the death penalty. These include kidnap with intent to murder, murder, armed robbery, defilement and rape. Today a person can be sentenced to death if he or she commits a crime that falls within the confines of the Penal Code and is found guilty by a competent court. However, the accused has a right of appeal to the supreme court of Uganda.

The offences of defilement and rape were created under Chapter 15 of the Penal Code and have only recently attracted the death penalty. This was aimed at curbing the spread of HIV/AIDS, which has plagued this country for over a decade. It remains to be ascertained whether the people who rape or defile necessarily have HIV/AIDS, by ascertaining how many victims of rape and defilement have contracted it, if the death penalty is to be justified. Domestically the statutory law that is relevant to the application of the death penalty in Uganda includes;

• The Constitution, Chapter 1 of the Laws of Uganda • The Trial On Indictments Act, Chapter 23 of the Laws of Uganda • The Penal Code Act, Chapter 120 of the Laws of Uganda • Judicature Act, Chapter 13 of the Laws of Uganda • Robbery Suspects Act, Chapter 123 of the Laws of Uganda

17 arts 4 and 5, African Charter on Human and Peoples Rights, 1986

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• The Uganda Peoples Defence Forces Act, Chapter 307 of the Laws of Uganda • The Extradition Act, Chapter 117 of the Laws of Uganda • The Magistrates Court Act, Chapter 16 of the Laws of Uganda • The Prisons Act, Chapter 304 of the Laws of Uganda • The Police Act, Chapter 303 of the Laws of Uganda • The Criminal Procedure Code, Chapter 116 of the Laws of Uganda • The Identification of Offenders Act, Chapter 119 of the Laws of Uganda • The Evidence Act, Chapter 6 of the Laws of Uganda

In Uganda, there are several crimes that may result in the application of the death penalty. While the death penalty has been condemned and abolished in many states as a violation of the right to life, a considerable number of countries including Uganda still retain it as a form of punishment. In fact, Amnesty International states that more than half of the countries in the world have abolished the death penalty in law and practice. As of 1 February 2004, the number of abolitionist countries for all crimes were 78, abolitionist for ordinary crimes were 15 countries while abolitionist in practice were 24. On the other hand, Uganda is listed as a retentionist state.18 Under Uganda’s 1995 Constitution, one’s life may be taken in the 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. The offences for which a death penalty may result are;

• Treason contrary to Section 23 of the Penal Code • Murder contrary to Section 189 of the Penal Code • Kidnapping with intent to Murder contrary to Section 243 of the Penal Code Act • Rape contrary to Sections 123 and 124 of the Penal Code Act • Defilement contrary to Section 129(1) of the Penal Code Act • Aggravated Robbery contrary to Section 286 (2) of the Penal Code • Treachery contrary to Section 16 of the Uganda Peoples’ Defence Forces Act • Mutiny contrary to Section 18 of the Uganda Peoples’ Defence Forces Act • Disobeying Lawful Orders contrary to Section 19 of the Uganda Peoples’ Defence Forces

Act • Failing to execute one’s duties contrary to section 20 of the Uganda Peoples’ Defence

Forces Act • Offences relating to prisoners of war contrary to Section 21 of the Uganda Peoples’

Defence Forces Act • Cowardice in action contrary to Section 29 of the of the Uganda Peoples’ Defence Forces

Act • Offences by persons in command when in action contrary to Section 30 of the Uganda

Peoples’ Defence Forces Act • Breaching concealment contrary to Section 31 of the Uganda Peoples’ Defence Forces Act • Failure to protect war materials contrary to Section 33 of the Uganda Peoples’ Defence

Forces Act • Failure to brief, etc- Section 35 of the Uganda Peoples’ Defence Forces Act Chapter 307

of the laws of Uganda; • Offences relating to security-Section 37 of the Uganda Peoples’ Defence Forces Act

Chapter 307 of the laws of Uganda; • Spreading harmful propaganda-Section 38 of the Uganda Peoples’ Defence Forces Act

Chapter 307 of the laws of Uganda;

18 Amnesty International, March 2004, AI Index: ACT 50/005/2004. Regular updates to the list of abolitionist and retentionist countries are posted on the death penalty page on the Amnesty International website <http://www.amnesty.org/deathpenalty>

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• Desertion-Section 39 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

• Offences relating to convoys-Section 50 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

• Losing, stranding or hazarding vessels-Section 51 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

• Wrongful acts in relation to aircraft-Section 52 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

• Inaccurate certificate-Section 54 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

• Dangerous acts in relation to aircraft-Section 55 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

• Attempt to hijack aircraft, vessel, etc-Section 58 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

• Causing fire-Section 61 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

• Terrorism – Section 7 of the Anti-Terrorism Act

The box below sets out some of the executions that have been carried out in Uganda.

The first hangings since 1970s following High Court trials took place on 15 March 1989 when Kassim Obura, Lukoda Mugaga and Thomas Ndaigana were executed in Luzira prison. Kassim Obura who was a member of the public safety Unit, a government security unit responsible for gross human rights violations under the government of Idi Amin, was convicted of murdering a prisoner in November 1973. He had been in prison for almost 10 years.

There were no further executions under the Uganda Penal Code until 29 June 1991, when nine prisoners variously convicted of aggravated robbery or murder were hanged in Luzira. At least 5 had already been convicted in 1984. For example, three UNLA soldiers, William Otasono, Milton Ongom and Nicholas Okello, who were stationed at Mbuya General Headquarters near Kampala, were convicted in July 1984 of robbing and murdering a man. Their appeal to the supreme court was rejected in March 1989.

Adopted from Amnesty International: Uganda: The Failure to Safeguard Human Rights AI Index: AFR 59/05/92

C. Martial Law

There are two parallel systems of criminal justice in Uganda. All citizens are subject to the Penal Code, while soldiers are in addition subject to a separate military criminal regime under the UPDF Act disciplinary code of conduct.

When the NRM captured power in 1986 it took steps to incorporate into Ugandan Law two Codes of Conduct for soldiers, which prescribed a death penalty for a wide range of offences. As a result the UPDF Act prescribes a mandatory death sentence for treason, murder, rape, and disobedience of a lawful order leading to loss of life. It further defines a series of offences, including desertion and disobedience of lawful orders, carrying a maximum penalty of death. In the army, military disciplinary measures are taken through a system of courts ranging from Unit Court Martial, Martial Division Court, General Court Martial, to Court Martial Court of Appeal. Soldiers on operations are tried by a Field Court Martial and executed if found guilty. This system leaves a lot of room for injustice as the field courts are often ad hoc and the accused rarely represented by any legal counsel of whatever nature. There is no appeal procedure. However, soldiers have the right to legal representation by a lawyer from the army. The army’s legal department has set up a legal aid service for soldiers although it is still poorly funded. Since 1987, over 40

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soldiers have been executed by firing squad19. In December 1990, two soldiers were executed for cowardice and mishandling of an operation in Kitgum district, which resulted in the death of several soldiers.20 Other unconfirmed reports have suggested that in reality between 40 and 80 soldiers were executed following a mutiny during the same operation in December 1990.21

In most cases soldiers have been executed in public. For example on 4 June 1991 NRA soldiers Rubanga Kende and Phillip Onekalith were publicly executed in Nebbi after Court Martial found them guilty of murder and aggravated robbery.22 On July 1991 Sergeant Robert Baraza and Private Nicholas Obal were executed by firing squad in Abarilela after being convicted of murdering a villager in Soroti District23. On 2 June 1991, three soldiers were shot by firing squad at Majjansi High School in Tororo on the same day that they had allegedly committed rape and aggravated robbery24. On 22 January 1992 Private Steven Egunyu was executed in Orungo north of Soroti town after being convicted of murdering a pregnant woman the previous evening.25

In cases of soldiers tried by the General Court Martial, some time lapses between conviction and execution, presumably to allow sentences to be considered by the High Command. For example, Lt. Colonel Oliver Odweyo was found guilty of treason and sentenced to death. However, he was taken to death row and his execution was not immediately carried out.26

Recent Examples of Executions in the Army Pte Richard Wigiri was executed by firing squad on 3 March 2003 in Kitgum Matidi Township, near Kitgum in northern Uganda, after a military court found him guilty of the murder of Monica Achiro, a civilian, in December 2002. Ptes Kambacho Ssenyonjo and Alfred Okech were executed by firing squad later the same day after a military court near Kitgum found them guilty of killing Charles Labeja, Patrick Olum and Peter Ayela on January 4 2003. Reports suggest at least 200 members of the public witnessed the executions. Previously, on 25 March 2002 two UPDF soldiers, Cpl James Omedio and Pte Abdullah Muhammed, were executed in public by firing squad after a military court found them guilty of killing the Irish priest Rev. Fr. Declan O'Toole, his driver, Patrick Longoli, and his cook Fidel Longole. It was reported that the court martial lasted only two hours 36 minutes.

News Release Issued by the International Secretariat of Amnesty International AI-index: AFR 59/004/2003 06/03/2003

The UPDF Act provides for a Court Martial Appeal, which has the jurisdiction to hear and determine all appeals, referred to it from decisions of the General Court Martial. One of the problems with this procedure is that it is the army lawyers who act as the defence counsel for the accused, army officers who sit in these courts, and the army that prefers charges against the accused soldiers. Therefore, the institutions of the army become the accuser, the prosecutor and the judge. This situation contradicts the principles of natural justice and can occasion miscarriages of justice. Another critical problem lies in the fact that a death sentence passed by the court martial and the Field Court Martial would not be confirmed by the highest appellate court as is required by Article 22(1) of the Constitution. In this way, executions made under the UPDF Act are unconstitutional. And yet the Advisory Committee on the prerogative of mercy is precluded by the Constitution to consider cases decided by the Field Court Martial.

In May 2003, the Foundation for Human Rights Initiative received a petition from 17 army men, all sentenced to death by the Unit Disciplinary Committees but who had not been allowed to appeal for the last 9-11 years27. All of them complained that the charges against them were trumped up. Even the efforts of the Foundation for Human Rights Initiative have been so far fruitless. The table below represents the appellants to the court martial who are now languishing in the Condemned cells of Upper Prison Luzira; 19 Amnesty International, Uganda The Failure to Safeguard Human Rights AI Index: AFR59/05/92 20 Ibid 21 Ibid. 22 Ibid 23 Ibid 24 Ibid 25 Ibid 26 Ibid 27 Foundation for Human Rights Initiative, (2003), The Bi-Annual Human Rights Reporter, Kampala

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Appellants to Court Martial awaiting Appeal in Upper Prison Luzira No Military

No Rank Name Case No CRB Nature of

Offence Place of Trial

Date of Conviction

1. RO/967 Major Ongole Matayo

DCM/002/95 Murder 4th Division, Gulu

17.6.1995

2. RA/2027 Captain Mugerwa Nyasio

Unit Tribunal MK5/90

Murder 135 Battalion Mabira Forest

24.1.1990

3. RA/106122 Private Oyuru Richard DCM/001/94 Murder Atiak, Gulu

7.02.1994

4. RA/54081 Sergeant Kidega David DAM/8/95 Murder 4th

Division, Gulu

21.10.1995

5. RA/143459 Private Alion Godfrey 4 DCM/010/99 Murder 4th

Division, Gulu

20.7.1999

6. RA/104992 Private Oluka Faustino

4 DCM/008/99 Murder 4th

Division, Gulu

15.7.1999

7. RA Private Okello Boniface

4 DCM/008/99 Murder 4th

Division, Gulu

15.7.1999

8. RA/113992 Private Anywar Micheal

CR.SIB/02 DIV/263/98

Murder 2nd Division, Mbarara

21.10.1999

9. RA/127168 Private Omondi Isaac DCM/Gulu/SIB 4 DIV/464/2001

Murder 4th

Division, Gulu

5.7.2001

10. RA/53839 Corporal Ojera Saverino

DCM/Court/1 st Division/Kakiri CR.01/2002

Murder 1 Division Gulu

14.3.2002

11 RA/133224 Private Oketa Micheal UPDF/Dcm/G HQS 03/01

Murder Gen. Hqrs Bombo

28.7.2002

12 RA/134380 Private Hussein Charles

DCM/Div 4 001/2002

Murder 4th

Division, Gulu

2.9.2002

13 RA/143410 Private Ewama Agaali DCM/Div 4 011/2002

Murder 4th Division, Gulu

2.9.2002

14 RA/134430 Private Jino, K Asiraf DCM/Div 4 011/2002

Murder 4th

Division, Gulu

2.9.2002

15 RA/NYA Private Egama Phillip DCM/DV4/04 6/2002

Murder 4th

Division, Gulu

7.11.2002

16 RA/130461 Private Lukolu John Murder 4th

Division, Gulu

8.11.2002

17 RA/61941 Private Tusubira Emmanuel

Murder 4th

Division, Gulu

12.1.2003

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In summary, the courts that can administer court-martial and pass the death sentence are established under the UPDF Act as seen below;

Unit Disciplinary Committee- Section 77 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

Field Court Martial-Section 78 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda;

Division Court Martial-Section 80 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda; and

General Court Martial-Section 81 of the Uganda Peoples’ Defence Forces Act Chapter 307 of the laws of Uganda.

III. THE ORGANISATION OF THE JUDICIAL SYSTEM IN UGANDA

The court structures in Uganda are constituted of a hierarchy with the Supreme Court at the top and the Magistrate Grade II at the bottom. However, there are Local Council Courts that have nothing to do with cases resulting in the application of the death penalty. This hierarchy is laid down in Article 129(1) which states that the courts of judicature shall consist of (a) Supreme Court (b) Court of Appeal (c) High Court and (d) Subordinate courts established by Parliament (this would include the magistrates courts and Local Council courts)

It is the High Court which has original jurisdiction in criminal cases. The Constitution in Article 139(1) provides that the High Court has unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the Constitution or other law. In particular, it is only the High Court that has jurisdiction to try capital offences. Section 1 of The Trial on Indictments Act Chapter 23 provides that the High Court shall have jurisdiction to try any offence under any written law and may pass any sentence authorized by law. This is reiterated in Section 14 of the Judicature Act Chapter 13 of the Laws of Uganda.

The Magisterial courts have limited jurisdiction in terms of geography and gravity of the offence. Section 3 of the Magistrates Court Act Chapter 16 of the Laws of Uganda limits the territorial jurisdiction of magistrates’ courts to the local limits of their establishment. Section 161 (1) of the Magistrates Court Act limits the Chief Magistrate from trying any offence in which the maximum penalty is death, a Magistrate Grade I from trying any offence in which the maximum penalty is death or imprisonment for life.

This limitation does not apply to preliminary proceedings. Section 168 of the Magistrates Court Act provides that where a person is charged in a Magistrates Court by an offence to be tried by the High court, the DPP shall file an indictment and summary of the case. The magistrate shall then give the accused a copy of the indictment and a summary of the case, read them out and explain the nature of the accusation against him or her in a language he or she understands and inform him or her that he or she is not required to plead to the indictment. It shall then commit the accused for trial by the High Court. The essence of the committal is to give the accused an opportunity to prepare his case knowing the general nature of the case against him or her.

A. Criminal Justice System in Uganda

Criminal prosecutions in Uganda are usually the act of the state. However, not all criminal proceedings commence at the instance of the state. Under Section 42 of the Magistrates Court Act, criminal proceedings may be commenced in any of three ways namely;

• By a police officer bringing a person arrested with or without a warrant before a magistrate upon a charge already preferred;

• A public prosecutor or police officer first laying a charge before a magistrate and then applying for the issue of a warrant or summons compelling the person named therein to come and answer the charge(s); and

• A person other than the public prosecutor or police officer who has reason and probable cause to believe that an offence has been committed may also institute criminal

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proceedings. He can do so by making a complaint to a magistrate either in writing signed by him or orally. Upon receipt of the complaint, the magistrate then draws up and signs a formal charge and compels attendance of the accused person before his court to answer the charge by issuing either a criminal summons or a warrant of arrest.

The overall conduct and supervision of the criminal prosecutions in Uganda is the responsibility of the Director of Public Prosecutions (DPP). This is especially so for offences that may result in the application of the death penalty. Section 134 of the Trial on Indictments Act provides that all prosecutions in the High court can be conducted only by a member of the Attorney General’s chambers or such other person the DPP may appoint.

The office of the DPP is a public office. It was first established under the Independence Constitution, remained so under the 1967 Constitution and has been retained under the 1995 Constitution. Under Article 120(1) of the Constitution of the Republic of Uganda, the DPP is appointed by the President on the recommendation of the Public Service Commission and with the approval of parliament. Under Article 120(2) of the Constitution for one to be appointed DPP such a person must be qualified to be appointed a judge. Article 120(6) of the Constitution makes the DPP completely independent and not subject to the direction or control of any person or authority. The functions of the Director of Public Prosecutions are contained in Article 120 (3). These include;

(a) To direct the police to investigate any information of a criminal nature and to

report to him or her expeditiously. (b) To institute criminal proceedings against any person or authority in any court

with competent jurisdiction other than a court martial. (c) To take over and continue any criminal proceedings instituted by any other

person or authority. (d) To discontinue at any stage before judgment is delivered, any criminal

proceedings to which this Article relates, instituted by himself or herself or any other person or authority; except that the Director of Public Prosecutions shall not discontinue any proceedings commenced by another person or authority except with the consent of the court.

These functions can be exercised by officers authorized by him or her in accordance with the general or specific instructions except functions specified in paragraph (d) which can be exercised by him or her exclusively.

B. Criminal Jurisdiction in Uganda The jurisdiction of the criminal courts is limited to crimes committed within Uganda.28 In the case of Uganda v Atama Mustapha29 it was held that whether or not a prosecution can be sustained is entirely a matter of municipal law, which may choose to disinterest itself in the activities of its national extraterritoriality. That exterritorial jurisdiction must be statutorily conferred. Therefore, the court had no jurisdiction to try a Ugandan national for his acts committed wholly outside Uganda. In response to this decision the Penal Code Act was amended to confer jurisdiction on the courts of Uganda to try offences of treason and offence against the state30, acts intended to alarm or annoy or ridicule the President31, concealment of Treason32, terrorism33 and promoting war on chiefs34 committed outside Uganda by a Uganda citizen or a person ordinarily resident in Uganda.

28 s4 of the Penal Code Act 29 [1975] H.C.B 254 30 s23 of the Penal Code Act 31 s24 of the Penal Code Act 32 s25 of the Penal Code Act 33 s26 of the Penal Code Act 34 s27 of the Penal Code Act

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1. Extradition It is a cardinal principle of our criminal justice that an accused cannot be tried in absentia and has a right and ought to be at his trial. Therefore, when an accused person flees the country before the determination of his case, his presence can be secured by extraditing him or her to face charges in Uganda.

The Extradition Act governs the procedure for extradition in Uganda. Section 3 of the Extradition Act sets the conditions for surrender of any fugitives in Uganda. First, there must be a law in the country seeking extradition that he will only be tried or punished for the offence for which extradition is being sought. Second, if a fugitive criminal is being accused of having committed an offence in Uganda, he will not be surrendered until the determination of his case; and where he is serving a sentence after conviction, he will not be surrendered until after the completion of his sentence. Finally, a fugitive offender will not be surrendered by the Ugandan authorities until after the expiration of 15 days from the time he was committed to prison by the magistrate. A requisition of surrender of a fugitive criminal is made to the Minister by a diplomatic representative or consular officer of the country seeking extradition. The minister will then signify in writing that such a requisition has been made and require the magistrate to issue a warrant for the apprehension of the criminal.

However, the minister may refuse to do so and will accordingly order the discharge of the accused if he is in custody. Upon receipt of the order of the minister and such evidence as would justify the issue of a warrant if the offence was committed within Uganda, the magistrate will issue a warrant for the apprehension of the fugitive criminal. Even if no such order has been received from the minister, the magistrate has power to issue a warrant if he has received information or complaint and there is evidence to support it, provided the issue of a warrant would be justified if the offence had been committed in Uganda. When the warrant is issued without an order from the minister together with the complaint and evidence thereof, on perusing the report, the minister may, at his discretion, order the cancellation of the warrant and discharge of the fugitive offender. A fugitive criminal apprehended on a warrant must be produced before a magistrate within 24 hours. Where a fugitive is arrested on a warrant issued without the order of the minister, the magistrate must discharge him if within a reasonable time, the minister does not signify in writing that a requisition has been made for the surrender of the criminal. When the fugitive criminal is brought before the magistrate, the magistrate will proceed to hear the evidence and determine whether or not the offence is extraditable. If the magistrate is satisfied that there is sufficient evidence to justify committal of the accused for trial if the crime was committed within Uganda, he shall commit the fugitive criminal to prison to await the Minister’s warrant for his surrender.

Meanwhile the magistrate will transmit the certificate of committal to the minister. The magistrate can discharge the prisoner if at the end of the hearing he or she is not satisfied. The evidence before the magistrate need not be evidence, which would secure a conviction. The standard of proof is that which in a criminal trial would amount to prima facie evidence at the close of the prosecution. This was held in the Tanzanian case of Re An Application by the Attorney General of Tanganyika35. It is important that the magistrate informs the prisoner that he will not be surrendered until after 15 days and that he has the right to apply to the High Court for a writ of habeas corpus. After the 15 days or if upon the hearing application for habeas corpus the High Court decides that the fugitive criminal may be extradited, the minister may order his surrender.

After two months following his committal to prison by the magistrate if the fugitive is not conveyed out of Uganda, the High Court Judge can discharge him unless sufficient cause to the contrary is shown. But an order of discharge will not be made upon an application on behalf of the prisoner and upon proof that reasonable notice for such application was given to the minister. A warrant issued by a magistrate for apprehension of a fugitive criminal may be executed anywhere in Uganda. Part II of the Extradition Treaty deals with the reciprocal backing of warrants. Under this system a magistrate in another country may cause the arrest of a criminal who has fled into Uganda. The magistrate does so by issuing a warrant of arrest directed to a magistrate in the place in Uganda where the fugitive criminal is suspected to be residing. Upon receipt of such warrant, the magistrate in Uganda, if satisfied with the authenticity of the warrant, will endorse it by signing it and that will be sufficient authority for the arrest of the criminal. The magistrate before whom the apprehended criminal is brought may then order his return to the country seeking his return if the warrant has been endorsed by the diplomatic representative or other appropriate authority of the foreign country to the minister in Uganda. The minister may refuse to endorse if he is of the opinion that the offence is of a political nature. Under this system if the prisoner whose return is authorized

35 [1958] EA 482

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by court is not conveyed out of Uganda within 1 month of such authorization, a magistrate may discharge him from custody upon application made on his behalf, provided it is proved that reasonable notice for such application was given to the person holding the warrant and the Inspector General of Police. Refusal to make an order is appealable to the High Court. A magistrate may refuse the return of the fugitive criminal and discharge him or her because of the triviality of the offence or because the application is not made in good faith and having regard to the circumstances his return would be unjust or oppressive or too severe a punishment. 2. Uganda’s Extradition Treaties Uganda adopted the treaties entered into with other countries by the United Kingdom on its behalf before independence. Accordingly, a country to which Part I of the Fugitive Offenders Act, 1881 of the United Kingdom applied became a country to which Part I of the Uganda Extradition Act applies. A list of such countries is given in statutory instrument No 103 of 1966 and are listed below; Table: Ugandan Extradition Treaties. Italy

UK/Italy Extradition Treaty 1873

Hungary UK/Hungary Extradition Treaty 1873 Haiti UK/Haiti Extradition Treaty 1874 France UK/France Extradition Treaty 1876. Spain UK/Spain Extradition Treaty 1878 Ecuador UK/Ecuador Extradition Treaty, 1880 Luxembourg UK/Luxembourg, Extradition Treaty, 1880 Switzerland UK/Switzerland Extradition Treaty, 1880 El Salvador UK/El Salvador, Extradition Treaty 1881 Uruguay UK/Uruguay, Extradition Treaty, 1884. Guatemala UK/Guatemala, Extradition Treaty, 1885. Columbia UK/Colombia, Extradition Treaty, 1888. Argentina UK/Argentina, Extradition Treaty, 1889. Monaco UK/Monaco, Extradition Treaty, 1891 Bolivia UK/Bolivia, Extradition Treaty, 1892. Liberia UK/Liberia, Extradition Treaty, 1892 Rumania UK/Rumania Extradition Treaty, 1893 Chile UK/Chile Extradition Treaty, 1897. Netherlands UK/Netherlands, Extradition Treaty, 1898 San Marino UK/San Marino, Extradition Treaty, 1899. Yugoslavia UK/Yugoslavia, Extradition Treaty, 1900 Belgium UK/Belgium, Extradition Treaty, 1901. Peru UK/Peru, Extradition Treaty, 1904 Cuba UK/Cuba, Extradition Treaty, 1904 Panama UK/Panama, Extradition Treaty, 1906. Paraguay UK/Paraguay, Extradition Treaty, 1908. Greece UK/Greece, Extradition Treaty, 1910 Finland UK/Finland, Extradition Treaty, 1924. Czechoslovakia UK/Czechoslovakia, Extradition Treaty, 1924 U.S.A UK/United States, Extradition Treaty, 1931 Poland UK/Poland, Extradition Treaty, 1932. Iraq UK/Iraq, Extradition Treaty, 1933 Germany (F.R) UK/Germany (F.R), Extradition Treaty, 1960. Israel UK/Israel Extradition Treaty, 1960. Uganda has since then entered into other agreements. Under the Extradition (Republic of India) Order, 1969 that was adopted as Statutory Instrument No. 129 of 1969, Uganda entered into an Extradition Treaty

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with India. Statutory Instrument 235 of 1964 provides for the extradition status with the former East African Community partners i.e. Kenya and Tanzania. 3. Extraditable Crimes The extraditable crimes are set out in the Schedule to the Extradition Act Chapter 117 of the Laws of Uganda. It is important to note that nearly all the offences that may result in the application of the death penalty are extraditable crimes. They include the following; (i) Criminal Homicide and similar offences - Murder and attempt and conspiracy to murder, manslaughter injury to persons not amounting to murder, wounding or inflicting grievous bodily harm, assault occasioning actual bodily harm and assault; (ii) Abduction, rape and similar offences - Rape, defilement, carnal knowledge, indecent assault, abortion and offences relating to abortion, child-stealing, kidnapping and false imprisonment, bigamy and procuration; (iii) Offences relating to narcotics and offences relating to traffic in dangerous drugs; (iv) Damage to Property - Malicious damage to property including aircraft, endangering safety of life, falsification of currency and similar offences, counterfeiting and altering money, uttering counterfeit or altered money and offences related to counterfeiting; (v) Forgery and similar offences - Forgery, counterfeiting and altering, and uttering what is forged or counterfeited or altered; (vi) Misappropriation, fraud and similar offences - Embezzlement and larceny, and offences related to embezzlement and larceny, fraudulent conversion, arson, burglary and housebreaking, robbery, robbery with violence, threats by letter or otherwise with intent to extort, intimidation, obtaining money or goods by false pretence, perjury and subornation of perjury and bribery; (vii) Offences by bankrupts against bankruptcy law, or any indictable offences under the laws relating to bankruptcy fraudulent misappropriations and fraud; (viii) Piracy and similar offences - piracy by law of nations, sinking or destroying a vessel at sea or an aircraft in the air, or attempting or conspiring to do so, assault on board a ship on the high seas or an aircraft in the air against the authority of the master, or captain of the aircraft; and (ix) Slave dealings- Offences against the Slave Trade Act 1873 of the United Kingdom, or otherwise in connection with the slave trade, committed on the high seas or on land, or partly on the high seas and partly on land.

A fugitive will not be surrendered under Section 3 of the Extradition Act if the offence for which his extradition is sought is one of a political character or if it appears to the court or the minister that the requisition to have him surrendered was in fact made with a view to try or punish him for an offence of a political character. The offence of a political character was defined in the English case of Re Castioni36. This case has not yet been tested in Uganda.

IV. ISSUES AND PROBLEMS IN THE CRIMINAL PROCESS IN UGANDA

A. Pre-Trial Processes

Some of the most intricate problems raised by the protection of the fair trial principle concern its implementation in the early stages of criminal proceedings. Pre trial processes are in this context understood as covering the whole of criminal proceedings, from the time when the police or the prosecuting magistrate first learns of the occurrence of a crime and starts an inquiry, up to the moment when the hearing on the charges begins in the court. If the accused is to be at his or her trial there must be a method of compelling his or her court appearance. His or her presence may be secured in any of three ways. He or she can be served with a criminal summons compelling him to appear37; he or she can be brought before the court under arrest with a warrant38; or he or she can be arrested without a warrant and brought to answer charges against him or her. 1. Arrest

Every person in Uganda is entitled to protection of his or her personal liberty in the Constitution.39 However, there are circumstances in which such liberty may be interfered with. The most common is arrest. In making an arrest, the arresting person is required to actually touch or confine the body of the person being arrested unless that person submits to custody either by word or conduct40. In case of resistance,

36 (1891) 1 QB 149 37 pt IV of the Magistrates Court Act 38 pt VII of the Magistrates Court Act 39 art23 of the Constitution of the Republic of Uganda 40 s2 of the Criminal Procedure Code Act c116 of the Laws of Uganda.

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reasonable force may be justified. Usually, arrest should be authorized by a warrant; however, a police officer can arrest anyone who is reasonably suspected to have committed a cognizable offence, without a warrant. This is provided for under Article 23(4) (b) of the Constitution of the Republic of Uganda. The conditions must be that, the suspicion on which the person is arrested must be reasonable and that the arresting officer must inform the person arrested by touching him or her and informing such a person that he or she is under arrest. In cases of arbitrary arrest, he or she can sue the arresting authority for unlawful arrest.41

A person arrested has the right to know on the spot why he or she is being arrested, because it is a pre-condition of lawful arrest that a person being arrested should know the nature of the charge or suspicion for which he or she is arrested42. However, if the person being arrested creates a situation where it is impossible to inform him or her, such as by counter attacking the arresting officer, then the arresting officer may not inform him or her.43 Article 23(4)(b) of the Constitution provides that a person arrested must be brought to court as soon as possible but in any case not later than 48 hours. In case, the Police are not ready, the officer in charge of the Police Station where a person is detained has a right to apply to court for extra detention to enable them to complete their investigations. Article 23 of the Constitution further provides the rights of an arrested person and these include; a right to a lawyer of his or her choice, the right to inform his family, access to a lawyer, family, personal doctor and medical treatment.

However, a point of concern is that the right to counsel is not sufficiently protected at the early stages of the proceedings in Uganda as the police normally do not permit consultation of a lawyer before the end of the initial interrogation of the accused by the police, which is often crucial to the outcome of the proceedings as a whole.

2. Searches and Search Warrants

There are two types of searches. The first is the search without authority from the court by the police. Section 27 of the Police Act empowers a police officer not being lower in rank than a sergeant to search any place where he or she reasonably believes that they will find anything that will be necessary for investigations. Secondly, there is search with authority from court in the form of a search warrant. It should be noted that anyone can apply for this type of search. Section 29 of the Police Act empowers a police officer to seize anything that he or she believes on reasonable grounds might be used as an exhibit in relation to an offence which he or she is investigating and that it is necessary to seize that thing in order to prevent it from being concealed, lost, tampered with or destroyed. Although, the need to carry out searches can not be underestimated, the tendency of the police to carry out their investigations with impunity and in utter disregard of the suspects has been having a negative bearing on the outcome of the case as against the suspects.

3. Bail It includes security given to court by another person that the accused will attend his trial on the appointed date. Bail is a constitutional right under Article 23(6)(c). Two basic ideas underlie bail. First, the accused is not guilty until proven so and it would be unfair to keep him or her imprisoned; and second, a need for an assurance that when he or she is released, such a person will turn up for the trial. In deciding whether bail should be granted or refused a court must be guided by the statutory provisions. It is rare for a person accused of an offence that may result in the application of the death penalty to get bail. Section 15 of the Trial Indictments Act requires an accused person to show to the satisfaction of the court that exceptional circumstances exist justifying his or her release on bail and that he or she will not abscond when released on bail44. On the other hand, for other crimes bail applications are usually granted provided the applicant satisfies the considerations laid down in Section 77 of the Magistrates Court Act. These are; the nature of the accusation, the gravity of the offence, the antecedents of the applicant, a fixed place of abode and whether the applicant is likely to interfere with any of the witnesses. 4. Charges and Indictments

41 Christie v Leachinsky (1947) AC 573. 42 art23 (3) of the Constitution of the Republic of Uganda. 43 Mwanji S/o Njoroge v Republic (1954) 2 EACA 277. 44 Uganda v Zubairu And Another (1973) E.A 470

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A charge is a formal written accusation of an offence drawn up either by a police officer or magistrate and signed by a magistrate to be used in a magistrate’s court as a basis for trial or preliminary proceedings. On the other hand, an indictment is a formal written accusation of an offence drawn up and signed by the DPP and filed in a registry of the High Court to be used as a basis for trial in that court. Apart from the court in which they are used there is really no difference in content between the charge and indictment. In cases that may result in the death penalty, the indictment is more relevant.

The determination of the charge depends on whether the assembled evidence can prove all the ingredients of the offence to be charged. Two cases bring out the nature of the charge in Uganda. In the case of Manzour v R45 it was held that the accused person should be able to tell from the charge or indictment, the precise nature of the charges against him so as to be able to put forward a defence and direct evidence to meet them. More precisely in Uganda v Dickens Elatu46 it was held that it is the duty of the court to ensure that the charge is properly set out and is perfect in all respects. Therefore in drafting a charge or indictment, several factors are considered including; the facts of the case, the material evidence such as written documents and other physical exhibits and the witnesses who will testify.

In a study carried out by the Law Reform Commission,47 it was observed that charge bargaining should be introduced in Uganda. In fact, this innovation would most likely have an impact on the application of the death penalty. Charge bargaining would essentially involve discussions between the defence and the prosecution in relation to the charges to proceed with. Such discussions may result in the suspect pleading guilty to fewer than all the charges, with the remaining charges not being proceeded with. It was observed that it would lead to a reduction of periods of remand, faster and more expeditious investigations, reduction of workload in courts and a general efficiency in the trial system.48 5. Plea Taking As soon as the charge is read to the accused he or she enters a plea. Under Section 124 of the Magistrates Court Act once the substance of the charge has been stated, the accused person is asked to enter a plea. Under Section 60 of the Trial on Indictments Act, once the indictment has been read to the accused or interpreted by the interpreter of the court, the accused person is required to plead instantly. (i) Guilty plea Section 63 of the Trial Indictments Act states, if the accused pleads guilty, the plea shall be recorded and he or she may be convicted on it.49 In the case of Uganda v Charles Olet And Another 50 Okello J held that for a conviction to be properly based on a guilty plea, the plea must unequivocally admit all ingredients of the offence. (ii) A Plea of Not Guilty When the accused pleads not guilty, the procedure is that, his plea shall be recorded and he or she shall be required to answer the charge51. (iii) Autre-fois convict or acquit A person who has once been tried for an offence and convicted or acquitted of that offence by a court of competent jurisdiction shall not be tried again on the same facts for the same offence while such conviction or acquittal has not been reversed or set aside. It is a principle of law that a person should not be put in jeopardy twice for the same offence.52

There are times in the middle of the trial where the accused might wish to change his plea from one of not guilty to one of guilty. In this case, the plea taking process must be started all over again. However, this is not easily done in cases where the accused wants to change the plea from guilty to one of not guilty. It is only possible in clear cases where for example due to a language problem, the accused misunderstood the charge. In other words, not every accused person who wants to change his or her plea is allowed to do so at his or her convenience. 45 [1975] EA 386 46 Criminal Review No. 71 of 1972 47 African Centre for Research and Legal Studies A Study for the Reform of Trial Procedures in Uganda (2002). 48 Ibid. 49 See also s124 of the Magistrates Court Act. 50 (1991) HCB 13 51 s126 of the Magistrates Court Act. 52 s18 of the Penal Code of Uganda.

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B. Trial Process

1. Preliminary Proceedings in cases to be tried by the High Court These proceedings relate to cases triable by the High Court. All the cases that may result in the application of the death penalty fall under this category. These proceedings spring from a proviso of Section 1 of the Trial on Indictments Act which provides that no criminal case shall be brought under the cognizance of the High Court unless the accused person has been committed for trial to the High Court in accordance with the provisions of the Magistrates’ Court Act. The basis of this procedural requirement has already been stated i.e. to afford the accused person an opportunity to know the case against him or her and accordingly prepare his or her defence.

The procedure53 is that when the accused is brought before a magistrate for the purpose of conducting preliminary proceedings, the indictment shall be read out and explained to the accused. He or she must be told not to plead to it and that he or she shall be tried at a later date in the High Court where he or she will be able to make his or her defence and call all the necessary witnesses. The summary of the case shall then be read out to the accused and, where necessary translated in a language he or she understands. The accused then must be informed of his right to reserve his or her defence until the trial or make a statement on oath or give evidence on oath, and that if he or she does give evidence on oath he or she will be cross-examined. The purpose of this is to ensure that the accused, who is usually not legally represented at this stage, does not prejudice his or her case by making incriminatory statements which he or she would not make if he or she had the services of counsel. Therefore, the accused must be told in no uncertain terms the consequences of any step he or she takes in deciding whether he or she should at this stage say something.

During the preliminary proceedings it is mandatory upon the prosecutor to produce exhibits intended to be used at the trial. These exhibits shall be handed to the magistrate who shall mark and take them into the custody of the court.

At the conclusion of a preliminary hearing, the court prepares a memorandum of matters agreed which is read over and explained to the accused by his advocate and the prosecution. Any fact or document admitted or agreed in a memorandum filed is deemed to have been duly proved54. While preliminary hearings may assist in expediting preparation of cases for trial by the High Court, they may not necessarily expedite the hearing. This is so because the trial judge and the defence counsel are kept in the dark about the basic evidence, which the prosecution relies on. This makes it difficult for the judge to actively guide or participate in the proceedings in order to ascertain the truth; and for the defence counsel not only to prepare the defence but also agree on what evidence should be admitted at the preliminary hearing stage. 2. Actual trial When the accused person appears before a court for his trial, the court should read the substance of the charge to him and he or she should be asked to plead to it. Under the Constitution, the accused has the right to legal representation if he or she wishes55. The prosecutor leads the evidence for the prosecution by examining his witness in chief and the accused or his advocate is entitled to cross-examine a prosecution witness at the end of his testimony. Where legal counsel does not represent the accused, it is the duty of the court to ask him or her whether he or she wishes to put any questions to any of the prosecution witnesses56. Ordinarily evidence in the High Court must be given in the presence of the accused who is entitled to be present except where he or she does not conduct him or herself properly.57 There is a special procedure for the accused if they are mute as a reason of unsoundness of mind or are unable to understand the proceedings. 53 s168 of the Magistrates Courts Act. 54 s66 of the Trial on Indictments Act 55 art23 (3) of the Constitution of the Republic of Uganda. 56 ss 71-73 of the Trial on the Indictments Act. 57 s54 of the Trial On Indictments Act and see R v Suke d/o Samwe (1947) 14 EACA 134 where the court held that in joint trials all accused persons have a right to hear all the witnesses for the defence, to cross-examine them and address the court on the evidence of all such witnesses.

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3. Procedure for mentally ill suspects According to section 45 of the Trial on Indictments Act

when in the course of the trial by the High Court, the court has a reason to believe that the accused is of unsound mind and consequently incapable of making his or her defence, it shall inquire into the fact of such unsoundness.

It has to postpone the trial until it is satisfied that the defendant can understand the nature of the proceedings. If the court is of the opinion that the person is of unsound mind and consequently incapable of making his or her defence, the court shall order the accused to be detained in safe custody and in such a place and manner as it may think fit and shall submit, the court of record or certified copy of it to the Attorney General.

The Attorney General may by warrant under his or her hand directed to the court order that accused to be confined as a criminal lunatic in a mental hospital or any other suitable place of custody. Such a warrant by the Attorney General shall be sufficient authority for the detention of the accused until the Attorney General makes further orders in the matter or until the court finding him or her capable of making his or her defence shall order him or her to be brought to court again. If a person confined in a mental hospital is certified as capable of making his or her defence by the medical officer in charge of the mental hospital, the medical officer shall immediately forward to that effect to the DPP. The DPP shall thereupon inform the court which recorded the finding against the insane defendant whether it is the intention of the state that the proceedings against the person shall continue or otherwise. In case of the former, the court shall order the removal of that person to be brought into custody and the trial shall proceed or begin de novo as appears expedient. Any certificate given to the DPP by the medical officer may be given in evidence in the proceedings without further proof unless it is discovered that the medical officer did not sign it. 4. Acquittal on no case to answer Generally, if at the close of the prosecution case, the court considers that there is no sufficient evidence that the accused committed the offence, after hearing the advocates for the prosecution and defence, the court shall record a finding of not guilty58. 5. Assessors All trials before the High Court must be with the aid of assessors, whose number must be two or more59. The Assessor’s rules which are contained in the schedule to the Trial on Indictments Act deal with matters such as who are liable to serve as assessors, their qualifications and procedural matters to ensure their attendance at the High Court Sessions. All citizens between the age of 21 and 60 years who understand the language of the court sufficiently to be able to follow the proceedings can serve as assessors. If in the course of the trial, more than one assessor is absent, then the trial must be stayed60. At the close of the case, the judge shall sum up the law and evidence to the assessors before asking each of them to state their opinion. In giving his or her judgement, the judge is not bound by the opinion of the assessors, but where he disagrees with their opinion, he or she must state the reasons for doing so61. 6. Judgement The delivery of a judgement is an integral part of the trial so that at the end of the case of the prosecution and the defence, the court will deliver a judgement leading to a final verdict of the court as to the guilt or innocence of the accused. The judgement must be written by the judge him or herself. It must be delivered in open court. However, there does not appear to be a specific time within which a judgement must be delivered. The judgement must be in the language of the court, which is English, and must contain points for determination, the decision thereon and the reasons for the decision62.

58 s73(1) of the Trial on Indictments Act 59 s3 of the Trial on the Indictments Act 60 s66 of the Trial on Indictments Act 61 s82 (3) of the Trial on Indictments Act. 62 ss85 and 86 of the Trial on the Indictments Act.

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7. Competent Verdicts The general principle of law is that an accused person should not be convicted of an offence with which he was not charged unless he has had a fair opportunity of defending him or herself against the alternative offence. However, both the Magistrates Court Act and the Trial on Indictments Act contain specific provisions for instances where a person can be convicted of an offence with which he was not charged63. For example, a person charged with murder may be convicted of infanticide; a person charged with rape may be convicted of indecent assault or defilement etc. 8. Sentencing The court having heard the evidence called by the prosecution and the accused, shall either convict the accused and pass sentence upon or make an order against him according to law or shall acquit him. Assessment of the sentence is generally discretionary, however, for specific offences like treason, murder and aggravated robbery the death penalty is mandatory. Otherwise, for offences like rape, the death penalty is reserved for the worst examples of such offences64. 9. Compensation and Restitution Article 23(7) of the Constitution provides that a person unlawfully arrested, restricted or detained by any other person or authority, shall be entitled to compensation from that other person or authority whether it is the state, an agency of the state or other person or authority.

10. Serving Sentence/Parole Mitigating factors can be put forward at trial but their success in reducing the sentence is at the discretion of the court. Once the accused are charged, they are taken to the prison. It is where they are held until they are convicted. The conditions of detainment are normal prison conditions. 11. Reviews and Appeals Under Section 132 of the Trial Indictments Act an accused may appeal to the Court of appeal as of right on a question of law or fact or mixed law and fact. Section 10 of the Judicature Act provides that an appeal lies to the Court of Appeal from the decisions of the High Court. Under section 5 of the Judicature Act an appeal lies to the Supreme Court as of right in the case of an offence punishable by a sentence of death where the Court of Appeal has confirmed a conviction and sentence of death passed by the High Court on a matter of law or fact or on mixed law and fact. Secondly, where the High Court has acquitted an accused person, but the Court of Appeal has reversed that judgment and ordered the conviction of the accused, the accused may also appeal to the Supreme Court as a matter of right on a matter of law or mixed law and fact. Thirdly, where the High court has convicted an accused person, but the court of appeal has reversed the conviction and ordered the acquittal of the accused, the Director of Public Prosecutions may appeal as of right to the Supreme Court for a declaratory judgment on a matter of law or mixed law and fact. Lastly, where the Court of Appeal has confirmed an acquittal of an accused by the High Court, the Director of Public Prosecutions may appeal to the Supreme Court on a matter of law of great public importance. 12. Clemency/Mercy The last hope for a prisoner sentenced to death is clemency. It can be used to correct possible errors, to mitigate the harshness of punishment and to compensate for the rigidity of criminal law by taking into account factors relevant to an individual case for which the law makes no allowance. Some authorities may apply a more generous standard than the courts are allowed to use in sentencing, making extra allowances for provocation or mental abnormality, or taking into account such factors as the public feeling that the execution would be unjust.

In Uganda, this is a constitutional act. Article 121 of the Constitution of the Republic of Uganda provides for the Prerogative of mercy. Under Article 121(5) where a person is sentenced to death for an offence, a written report of the case from the trial judge or judges or person presiding over the court or tribunal, together with such other information derived from the record of the case or elsewhere as may be necessary, shall be submitted to the Advisory committee.

63 s87 of the Trial on Indictments Act. 64 ss96-98 of the Trial on Indictments Act.

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The President acts through the Advisory Committee. Under Article 121(1) of the Constitution, the Committee consists of the Attorney General, six prominent citizens of Uganda appointed by the President who should not be members of Parliament, members of the Uganda Law Society or of the District Council. One appeal has been successful during the last five years. It was a presidential prerogative with no peculiar circumstances. Death Penalty can only be carried out after one has exhausted all the remedies available to him or her.

V. APPLICATION OF THE DEATH PENALTY The death penalty is a controversial form of punishment throughout the world.65 While, it has been condemned and abolished in many states as a violation of a right to life, a considerable number of countries including Uganda still retain it as a form of punishment.66 Amnesty International writes that the belief that the death penalty is an effective deterrent underpins the Uganda government’s approach to human rights.67 The use of the death penalty violates the spirit if not the letter of the international human rights laws to which Uganda is a party. The right to life is one that is specified in and considered the basis of almost every human rights document in existence around the globe, while execution is the irreversible end to life and can be applied unjustly, to the wrongly accused, or the unfairly tried. Terminating the life of an accused denies them the opportunity to appeal, or to fulfil their potential. It denies the living victims the opportunity to forgive. Government and military officials on the other hand point to their preparedness to execute soldiers as an indication of their commitment to human rights and the rule of law. Uganda’s past, in which civilians were so often the victims of atrocities by soldiers or members of other security agencies, gives the argument special power. But the argument can only have force if it can be shown that the death penalty has a uniquely deterrent effect—and there is absolutely no evidence to support such a claim.

Indeed, the continuing frequent occurrence in Uganda of crimes for which the penalty is death strongly suggests that it has no deterrent effect whatsoever. Moreover, the authorities’ reliance on the penalty appears to be a barrier to their recognising the need for fundamental procedural reforms to prevent human rights violations. The authorities seem to believe that executing soldiers is enough. In reality the likely effect of ruling soldiers by violence is to create a brutalised army with little respect for human life. Bringing soldiers to justice for human rights violations is important. But in Uganda, judicial execution often appears to be the only action taken. This policy means that those executed, many of whom have been convicted of terrible crimes, become victims themselves, sacrificed on the altar of official complacency.

Moreover, of the 40 executions of soldiers that Amnesty International can confirm since 1987, only three were of soldiers who had committed human rights violations during military operations. All the others were executed for serious crimes committed while apparently off-duty or after they had deserted the army. The government argues that the death penalty is an effective deterrent, but it appears in general that it has not chosen to take any action against the majority of soldiers committing serious crimes while engaged in authorised military action.68

Government officials sometimes defend the death penalty on the grounds that the Ugandan public expects retribution. In a response in September 1991 to an Amnesty International Report entitled Africa: Towards Abolition of the Death Penalty, the government argued ‘if the death penalty is abolished, the people would lose confidence in government and they would take the law into their own hands’

The death penalty is widely accepted in Ugandan society, and the Government has considered it important that the civilian population should see that the authorities will punish severely soldiers who commit crimes against civilians.69 However, now it appears that the government is softening.70 There are several categories of prisoners on death row in Uganda. These include;

65 Makubuya A ‘The Constitutionality of the Death Penalty in Uganda: A Critical Inquiry’ in East African Journal of Peace & Human Rights’ Vol. 6, No. 2 66 ibid 67 Amnesty International. The Failure to Safeguard Human Rights, AI Index: AFR59/05/92 68 ibid 69 ibid. 70 See ‘Death Sentence to be Replaced’ in The New Vision, Friday, 30 April 2004 p4.

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• Those just sentenced by the High Court • Those appealing to the court of appeal • Those appealing to the supreme court • Those that have petitioned for the prerogative of mercy

In all these categories the outcome can be acquittal, confirming sentence or reducing the sentence to life imprisonment.

There are several cases currently in court in Uganda that could result in the application of the death penalty Table 1 Charges Between 1999-2003 Number of cases Murder 365 Aggravated Robbery 207 Treason 33 Rape 66

SOURCE: High Court Library, 2004 Uganda.

A. Actual Mechanics of Death Warrant under the Penal Code The Committee of Prerogative of Mercy after rejecting the prisoner’s application to the President after careful consideration will cause the President to sign the death warrant and sent it to the Commissioner of Prisons, who then immediately on receiving it informs the officer in charge of the prison. The officer in charge then informs the prisoner about the death warrant and the time when the execution is to be carried out.

Three clear days of grace are given for the relatives to visit the prisoner for the last time. At the same time, the prisoner is informed of the time and date of his execution, he is also transferred to a cell in the block upstairs set for prisoners for whom a death warrant has been received. The prisoner is then asked if he or she wishes to see a religious minister.

If he or she wishes and his denomination has not been determined, he must be asked the denomination of his preference so that he or she sees the minister concerned. The officer in charge of the prison on receipt of the death warrant also notifies the following persons immediately either by signal or telephone: the medical officer, the minister of the prisoner’s religion of his or her choice, the District Commissioner where the prisoner was domiciled, the executor and his assistants, the Minister of Justice and the Commissioner of Prisons.

After measuring the weight and height of the prisoner to be hanged, a sack is filled with some sand weighing equal to the weight of the prisoner. The machine operates like a pulley system. A special rope is imported from Britain which is thick and hard, which then in a way breaks the spinal cord and the neck causing instant death to the prisoner. Then the prisoners are hanged one by one. There is no ground on which a stay of execution can be granted after the President has signed and the names have been forwarded to the Commissioner of Prisons. Statistics of application of the Death Penalty in the last 15 Years Year CLEMENCY

CASES No. of Executions

Some Names of the Executed Offence(s)

1989 3 Kassim Obura, Lukoda Mugaga & Thomas Ndaigana

Murder

1990 3 1991 5 9 Milton Ongom, William

Otasono & Nicholas Okello Aggravated Robbery and Murder

1992 9 12 1996 3 Suleman Ndamagye, Salim

Mulumba and Dominic Oboth Murder and Rape

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1999 13 28 William Bataringaya, Haj Ssebirumbi, Emmanuel Kasujja & Leo Mwebaza

Murder

Source: Uganda Prisons Headquarters

Uganda’s Death Row as at 1st January 2004

Offence Length of Stay in Prison <1Year 1- 5 Years 5-10

Years 10 - 15 Years

15 - 20 Years

More than 20 years

TOTAL

Murder 84 165 48 8 2 --- 307 Robbery 36 79 16 8 1 ---- 140 Treason --- --- --- 4 ---- ---- 4 Kidnap 1 1 2 Mutiny ---- 3 ---- ---- ---- ---- 3 Cowardice 1 --- ---- ---- --- --- 1 Total 121 247 64 20 4 1 457

VI. CRIMINAL JUSTICE AND HUMAN RIGHTS IN UGANDA The Constitution of Uganda is very elaborate in enunciating the human rights. In fact chapter four of the Constitution is dedicated to human rights. Article 22 provides for a right to life while Article 23 provides for the protection of personal liberty. In cases where a person is arrested, there are detailed procedures that the arresting authority must conform to under Article 23. Article 24 provides for a right against torture, inhuman or degrading treatment or punishment. These rights are important and it has been argued in foreign jurisprudence that the death penalty is a breach of these rights. In order to enforce human rights in Uganda, the Uganda Human Rights Commission was set up under the Uganda Human Rights Commission Act Chapter 24 of the Laws of Uganda with the following functions:

• To investigate, at its own initiative or on complaint made by any person or group of persons against the violation of any human right;

• To visit jails, prisons, and places of detention or related facilities with a view to assessing and inspecting conditions of the inmates and make recommendations;

• To visit any place or building where a person is suspected to be legally detained; • To establish a continuing programme of research, education and information to enhance

respect of human rights; • To recommend to parliament effective measures to promote human rights, including

provision of compensation to victims of violations of human rights, or their families; • To create and sustain within society the awareness of the provisions of the Constitution as

the fundamental law of the people of Uganda; • To educate and encourage the public to defend the constitution at all times against all

forms of abuse and violation; • To formulate, implement and oversee programmes intended to inculcate in the citizens of

Uganda awareness of their civic responsibilities and an appreciation of their rights and obligations as free people;

• To monitor the Government’s compliance with international treaty and convention obligations on human rights;

• To carry out the functions of the Commission under article 48 of the Constitution; and

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• To perform such other functions as may be provided by law. It has been executing its duties diligently given the prevailing constraints. The administration of criminal justice in Uganda adheres to the fundamental principles of a rights based approach. This is designed to protect and promote human rights of both victims and the suspects in the administration of justice. It is based on five basic principles, namely, linkages to rights, accountability, empowerment, participation and non-discrimination and attention to vulnerable groups. There have been major criticisms aimed at the administration of criminal justice that may impact on the full realisation of human rights in Uganda. A. Legal Representation and Legal Aid In Uganda a person charged with a crime that may result in the application of the death penalty is entitled to free legal representation. The question of legal representation of the accused is central to the realisation of a fair trial. In Uganda, overall there are several organisations that are currently offering legal aid in Uganda. These include the Legal Aid Project of the Uganda Law society, the Legal Aid Clinic of the Law Development Centre and the Association of the Public Defender. These are also supplemented by private lawyers who are required to provide pro bono services on state briefs. However, because the fees which are offered to lawyers on state briefs are usually low most of the lawyers do not take such cases seriously. For one to access free legal aid, several factors are taken into consideration like indigency, severity of the offence, age of the accused person and public interest. However, in Uganda, the coverage of legal aid service providers is limited geographically and where available, is far from those who need it most (rural areas). The Uganda Human Rights Commission has identified the following weaknesses in the administration of criminal justice in Uganda.71 These are outlined below; 1. Courts • Backlog of cases • Poor access to justice for the poor i.e. expense of legal fees and poor legal aid system, complicated

procedures and intimidating court atmosphere, distrust of the judicial system by the poor and poor public perception.

• Adherence to strict rules of interpretation by judges/ reluctance to give wide interpretation to rights especially ESCRs)

• Absence of a formal training school for judicial officers • Phasing out of lower grade magistrates (i.e. grade 2, access to justice at grass roots. Though it is argued

that this is necessary for professionalisation of the judiciary and more Grade 1 Magistrates will be recruited.)

• Corruption 2. Police • Poor logistics • Low recruitment (ratio is 1: 1663 and 1800 instead of the recommended international standard of

1:800) • High turn over (loss of about 300 officers per year) • Human Rights training only targets new recruits not existing personnel • Mob justice (failure of police to curb the problem) • Torture • Poor funding • Poor transport- failure to produce prisoners in time before courts • Incarceration of minors with adults(only 3 functional remand homes) • Misuse of power to intimidate and arrogance • Disappearance of files 71 Byamukama, Nathan (2004) Rights Based Approach, Paper presented at the Ethics and Integrity Workshop organised by the Directorate of Public Prosecutions.

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• Corruption • Other security organs involved in police work 3. Prisons • Low recruitment ratio 1:8 instead of 1:3 (international standard) • Incarceration of minors with adults (few remand homes) • Overcrowding (prison population grows at a rate of 10% per annum) • Rampant rights violation incl. Torture in local government prisons. • Torture, cruel and inhuman and degrading treatment

VII CONCLUSION AND RECOMMENDATIONS The report has analysed the international and domestic legal mechanisms governing the application of the death penalty in Uganda. It has also outlined the trial process in Uganda and the application of the death penalty in Uganda. It is argued that the continued application of the death penalty is a controversial human rights issue that should be addressed. In light of the above observations, the following recommendations are made;

A concrete study should be carried to assess public opinion on the application of the death penalty in Uganda and its relevance in today’s society;

Provide materials from other jurisdictions to assess the application of the death penalty; Introduction of short term courses in criminal justice and human rights; Strengthening the defence lawyers team; Strengthening the system of human rights application; Training of police officers, prison officers and prosecutors; Sensitization of the public, MPs, politicians and opinion leaders on the dangers of the death

penalty; A handbook on the application of the death penalty in Uganda should be compiled to guide the

general public on the debate; and Formation of a pressure group advocating for the abolition of the death penalty.

APPENDIX 1. CONVENTIONS AND LEGISLATION The 1948 Universal Declaration of Human Rights The International Covenant on Civil and Political Rights Convention against Torture and other Inhuman or Degrading Treatment or Punishment European Convention for the Protection of Human Rights and Fundamental Freedoms Charter of the Organization of American States 1967 1948 American Declaration of the Rights and Duties of Man American Convention on Human Rights African Charter on Human and People’s Rights 2. LEGISLATION The Constitution Chapter 1 of the Laws of Uganda The Trial on Indictments Act Chapter 23 of the Laws of Uganda The Penal Code Act Chapter 120 of the Laws of Uganda The Uganda Peoples Defence Forces Act Chapter 307 of the Laws of Uganda

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The Extradition Act Chapter 117 of the Laws of Uganda The Prisons Act Chapter 304 of the Laws of Uganda The Police Act Chapter 303 of the Laws of Uganda The criminal Procedure Code Chapter 116 of the Laws of Uganda The Identification of Offenders Act Chapter 119 of the Laws of Uganda The Evidence Act Chapter 6 of the Laws of Uganda 3. CASES Christie v Leachinsky 1947 AC 573 Mwanji S/o Njoroge v Republic (1954) 2 EACA 277 Manzour v R [1975] EA 386 Re An Application by the Attorney General of Tanganyika [1958] EA 482 Re Castioni (1891) 1 QB 149 R v Suke d/o Samwe (1947) 14 EACA 134 Uganda v Atama Mustapha [1975] H.C.B 254 Uganda v Charles Olet and Another (1991) HCB 13 Uganda v Dickens Elatu Criminal Review No. 71 of 1972 Uganda v Zubairu and Another (1973) E.A 470 4. SELECT BIBLIOGRAPHY Agostoni T. (1998) May the State Kill? A Challenge to the Death Penalty Ayume F Criminal Procedure in Uganda (Fountain Publishers Kampala 1998). Odoki B A Guide to Criminal Procedure in Uganda (Law Development Centre Kampala 1990). Odoki B Criminal Investigations and Prosecution (2nd ed Law Development Centre Kampala 1994).