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Since 2003, the project has been working with lawyers and NGOs in anglophone African countries in seeking to enforce the constitutional rights of those facing the death penalty. As a result, the project has been able to transfer its unique skills and experience in representing prisoners under sentence of death to countries such as Uganda, Nigeria, Kenya and Malawi. Uganda In July 2003, the project was contacted by Katende, Ssempebwa & Company , Attorneys, based in Kampala, who are providing free legal representation to prisoners on death row in Uganda. The Death Penalty Project agreed to assist in the preparation and co-ordination of a constitutional challenge being brought on behalf of all prisoners under sentence of death. The project critically reviewed and advised on the merits of the petition to the Constitutional Court and identified relevant expert witnesses to provide evidence in support of the petition. On 4th September 2003, 417 prisoners, constituting all of the death row prisoners in Uganda, filed a petition in the Constitutional Court, challenging the legality of the death penalty. It was the first action of its kind in Africa and the first time that in any one country all prisoners on death row had joined together to bring a collective petition. The case is of huge significance as it represents a broad constitutional challenge to all aspects of the death penalty in Uganda. The project's advice considered the following legal challenges: (i) the death penalty per se is unconstitutional;
(ii) the mandatory death penalty is unconstitutional;
(iii) the petitioners' have a right to a fair hearing before a mercy committee where the death penalty has been imposed;
(iv) the petitioners' have a right to receive the determination of an international human rights body before a decision is made whether to carry a sentence of death into effect;
(v) the petitioners have a right to challenge execution on the basis that excessive delay had lapsed between the pronouncement of the sentence and its execution - particularly when prison conditions are taken into account;
(vi) hanging as a method of execution is cruel and inhuman and therefore unconstitutional. In a landmark judgment delivered on 13th June 2005 ( Kigula & Others -v- Attorney General ), the majority of the Constitutional Court declared the death sentences passed on all the petitioners unconstitutional. The Court found that the mandatory (automatic) nature of its imposition was unconstitutional because it did not provide the Court with the opportunity to take into account any individual mitigating circumstances that might make the death penalty an inappropriately severe punishment. The Court has provided the Government with a two year period to give effect to the judgment after which date all death sentences will be set aside. The Constitutional Court also ruled that any of the prisoners who have been on death row more than three years are now entitled to have their death sentences commuted to life imprisonment. That, in itself, represents more than three quarters of the death row population. The Attorney General of Uganda has since filed an appeal against the decision to the Supreme Court, which is to be heard in 2006. The project has been requested by the legal team in Uganda to continue to assist and advise on the case. Nigeria, Kenya and Malawi The jurisprudence created in the Ugandan courts, restricting the imposition and application of the death penalty, will have a multiplier effect in other African countries. The project has been requested by the Legal Defence and Assistance Project (LEDAP), a NGO in Nigeria, to assist with legal challenges to the constitutionality of the death penalty. The project has also recently been invited to assist NGOs and human rights lawyers in Kenya and Malawi, who are developing similar legal strategies to assist prisoners on death row in those countries. |
