Since 2003, we have 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 we have been able to transfer our unique skills and experience in representing prisoners under sentence of death in countries including Uganda,  Kenya, Malawi, Nigeria, Tanzania, Sierra Leone, Ghana, Democratic Republic of Congo, and Zambia.

Uganda

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Although Uganda abolished the mandatory death sentence in January 2009, it still retains the death penalty for ordinary crimes, including treason, rape, murder, terrorism, aggravated robbery, and aggravated kidnapping.  Uganda voted against the 2007 and 2008 UN General Assembly Resolutions on the adoption of a moratorium on the use of the death penalty. In 2008, Uganda imposed 114 death sentences.  The number of death sentences handed down in 2009 is unknown.  Although Uganda has been a party to the International Convention on Civil and Political Rights (ICCPR) since 1995, it has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

In July 2003 we were contacted by Katende, Ssempebwa & Company, Attorneys, based in Kampala, who had agreed to provide free legal representation to prisoners on death row in Uganda. We agreed to assist in the preparation and co-ordination of a constitutional challenge being brought on behalf of all prisoners under sentence of death, working together with a local NGO, the Foundation for Human Rights Initiative (FHRI). We assisted, inter alia, in the drafting of the petition to the Constitutional Court.   

In a landmark judgment delivered on 13 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 provided the Government with a two-year period to give effect to the judgment after which date all death sentences should be set aside. The Court also ruled that any prisoners who had been on death row more than three years were entitled to have their death sentences commuted to life imprisonment; this represented more than three-quarters of the death row population. The Attorney General subsequently filed an appeal against the decision to the Supreme Court. We assisted the local team in responding to the Attorney General’s Appeal.  Click here for further details. 

On 21 January 2009, the mandatory death penalty and excessive delay on death row were declared unconstitutional by the Supreme Court of Uganda, assisting approximately 900 prisoners then under sentence of death. As a result of this decision, three prisoners who were sentenced to death prior to 1989 (more than 20 years ago) were immediately released. All death sentences confirmed by the Supreme Court before 2006 will now be commuted to life imprisonment, benefiting approximately 139 prisoners.  All remaining inmates (whose death sentences have not been confirmed by the Supreme Court) will be re-sentenced by the High Court. In the unlikely event that any are re-sentenced to death, there is a right of appeal to the Court of Appeal and the Supreme Court.  For more information see Press Release.

As a result of the constitutional challenges brought by The Death Penalty Project, the local courts have commenced the re-sentencing of prisoners on death row. We have been working with our partners in Uganda to coordinate preparation of any subsequent re-sentencing hearings. This involves obtaining and compiling mitigation evidence for each prisoner by examining court records and obtaining medical and social inquiry reports that will be relevant and necessary before any judge can properly resentence a prisoner. A local project office has been established at Foundation of Human Rights Initiative headquarters in Kampala and a local legal officer is employed to coordinate this work.  Mitigation hearings for nineteen prisoners began in October 2009, during which the judges relied upon the ‘Guide to Sentencing in Capital Cases’ by Edward Fitzgerald QC and Keir Starmer QC, which was published by The Death Penalty Project as an authoritative source.  In particular, we worked on the re-sentencing hearing for Patrick Bwenge.  In the Court’s judgment, delivered on the 11th of November 2009, the Judge places great reliance upon the ‘Guide to Sentencing’ in finding that the death penalty was inappropriate in all circumstances of the case and a prison sentence of two years was imposed.

Kenya

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Whilst Kenya retains the mandatory death penalty for murder, armed robbery and treason de jure, it has not carried out an execution since 1987, and is therefore believed to have adopted a policy or established practice of de facto abolition.  Whilst Kenya has not yet abolished the death penalty, President Kibaki has commissioned studies to be carried out into the alleged deterrent effect of the death penalty.  Kenya abstained from voting in both the 2007 and 2008 UN General Assembly Resolutions on the adoption of a moratorium on the use of the death penalty.  In 2008 and 2009, there were a number of death sentences imposed, but the exact figures are unknown. 
Although Kenya has been a party to the International Convention on Civil and Political Rights (ICCPR) since 1972, it has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

On 3 August 2009, President Kibaki announced that he is to commute the sentences of all those on death row in Kenya. The decision will affect over 4,000 prisoners in Kenya and is thought to be one of, if not the, largest commutation of death sentences anywhere in the world. Undoubtedly, the successful constitutional challenge to the mandatory death penalty in Uganda (Kigula) was a key underlying factor in the decision to commute all death sentences in Kenya, because similar, if not identical constitutional challenges were also pending before the domestic courts in Kenya, brought by the Death Penalty Project. For more information on the commutations, see our Press Release.

We have been assisting a local team of lawyers and the Kenyan NGO, CLEAR in the case of Michael Jimmy Obuoka who is under sentence of death having been convicted of the offence of robbery with violence.  A constitutional challenge was brought before the High Court to the mandatory death penalty for capital robbery, but for many years the case remained part-heard pending determination in the High Court.  The case raises serious arguments about the constitutionality of the mandatory death penalty in Kenya which will affect the lives of thousands of other prisoners in Kenya in a similar situation to Michael Jimmy Obuoka.  Due to the delays that have taken place in the High Court, the case will now be determined by the Court of Appeal in 2010. We have also been assisting CLEAR in the case of Mutiso who is under sentence of death having been convicted of murder.  The case was recently heard in the Court of Appeal on the 15th of April.  The Director of Public Prosecutions appeared in person before the Court of Appeal to state that the Attorney General, in consultation with key ministries and agencies of the government, had instructed that he was to agree with the Appellant’s submissions in the case. In particular, they accepted the argument that the trial judge should have the discretion to impose a sentence other than death. The Court also raised the issue as to whether this position could affect all other mandatory penalties which provided for the death penalty, including robbery. The Court has reserved judgment and this is to be handed down on the 25th of June 2010.

Malawi

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Whilst Malawi retains the death penalty for murder, rape, treason, armed robbery and burglary with aggravated circumstances de jure, Malawi has not carried out an execution since 1992, and is therefore believed to have a policy or established practice of de facto abolition. In, 2009, no reported death sentences were handed down. Malawi abstained from voting in both the 2007 and 2008 UN General Assembly Resolutions on the adoption of a moratorium on the use of the death penalty.  Although Malawi has been a party to the International Convention on Civil and Political Rights (ICCPR) since 1993, it has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

The jurisprudence created in the Ugandan courts, restricting the imposition and application of the death penalty, has already had a multiplier effect in other African countries, notably Malawi. Working with a local legal team and the Malawi Human Rights Commission we successfully brought a constitutional motion challenging the mandatory death penalty. In a landmark decision delivered on 27 April 2007 (Francis Kafantayeni and others -v- The Attorney General of Malawi) the death sentences of all prisoners on death row were declared unconstitutional. In a unanimous judgment, the High Court ruled that the automatic nature of the death penalty in Malawi for murder violated the right to life and amounted to inhuman punishment, as it did not provide the individuals concerned with an opportunity to mitigate their death sentences.  As a consequence of the ruling, in all future cases the death penalty is less likely to be imposed, or where imposed it is less likely to be carried out.  In 2008, the Court of Appeal of Malawi (Twoboy Jacob v Republic: Crim. App. No. 16 of 2006) approved the decision of the High Court in declaring the mandatory death penalty unconstitutional.

Due to the abolition of the mandatory death penalty in 2007, following the successful case of Kafantayeni, all prisoners on death row are entitled to re-sentencing hearings. We are working closely with John-Gift Mwahkwawa, a local attorney with whom we have built a strong partnership.  Since the abolition of the mandatory death penalty, we have organised judicial colloquiums and workshops for local lawyers on sentencing in capital cases. Copies of our handbook, ‘A Guide to Sentencing in Capital Cases’, by Edward Fitzgerald QC and Keir Starmer QC, have been widely disseminated.  At present, we are assisting with the re-sentencing process by commissioning psychiatric assessments of prisoners which will have a bearing upon the new sentences.

Nigeria

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Nigeria retains the death penalty for ordinary crimes, including murder, armed robbery and culpable homicide.  In 2007, Nigeria imposed at least 20 death sentences. In 2008, the number of death sentences imposed rose to over 40, and in 2009, this rose again to 58 death sentences. However, no executions were carried out in 2009.  Nigeria voted against both the 2007 and 2008 UN General Assembly Resolutions on the adoption of a moratorium on the use of the death penalty.  Although Nigeria has been a party to the International Convention on Civil and Political Rights (ICCPR) since 1993, it has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

We are assisting the Nigerian NGO, the Legal Defence and Assistance Project (LEDAP), with a number of legal challenges to the constitutionality of the death penalty in Nigeria. In November 2008, the Court of Appeal sitting in Ilorin, heard final arguments in three appeals challenging the provision in the Nigerian Penal Laws providing for the mandatory death penalty. The common ground on sentence in all three cases concerned the constitutionality of the mandatory death sentence provision in the Nigerian Penal Code.  In actual fact, this point was never decided upon as the Court of Appeal allowed the three appeals on conviction.   We are continuing to work with LEDAP assisting in a number of further constitutional challenges to hanging and the mandatory death penalty in the Court of Appeal.

Tanzania

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Whilst Tanzania retains the death penalty for murder and treason de jure, it has not executed anyone since 1995, and is therefore believed to have a policy or established practice of de facto abolition.  Whilst no executions were carried out in 2009, an unknown number of death sentences were imposed.  Tanzania abstained from voting in both the 2007 and 2008 UN General Assembly Resolutions on the adoption of a moratorium on the use of the death penalty.  In 2008, there were a number of death sentences imposed, but the exact figure is unknown. Although Tanzania has been a party to the International Convention on Civil and Political Rights (ICCPR) since 1976, it has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

We have established firm relationships with the Legal and Human Rights Centre (LHRC) and the Tanganyika Law Society (TLS) in preparing a legal challenge to the mandatory death penalty and the death penalty per se.  A petition has been filed in the High Court of Tanzania and the matter is pending hearing. We have also filed public interest litigation challenging the constitutionality of the death penalty.  Furthermore, we are preparing to file challenges to the death penalty on behalf of individuals on death row in Tanzania. 

Sierra Leone

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Sierra Leone retains the death penalty for treason, murder and aggravated robbery, however, it carried out its last execution in 1998, and is therefore considered to be de facto abolitionist. Whilst no executions were carried out in 2009, at least one death sentence was imposed.  Sierra Leone abstained from voting in both the 2007 and 2008 UN General Assembly Resolutions on the adoption of a moratorium on the use of the death penalty.  In 2008, Sierra Leone imposed 3 (reported) death sentences. Although Sierra Leone has been a party to the International Convention on Civil and Political Rights (ICCPR) since 1996, it has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

We are assisting the NGO AdvocAid in the cases of Mankapri Kamara and Sampa Kamara, women on death row in Sierra Leone, in their appeals on conviction and sentence for murder to the Court of Appeal. The Death Penalty Project is drafting grounds of appeal in partnership with AdvocAid and with the pro bono assistance of English Barristers at Matrix Chambers.

Ghana

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Whilst Ghana retains the death penalty for murder, treason and armed robbery de jure,  it has not executed anyone since 1993, and is therefore believed to have a policy or established practice of de facto abolition.  At least 7 death sentences were imposed in 2009, although no executions took place.  Ghana abstained from voting in both the 2007 and 2008 UN General Assembly Resolutions on the adoption of a moratorium on the use of the death penalty.  Although Ghana has been a party to the International Convention on Civil and Political Rights (ICCPR) since 2000, it has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

As part of the UK Foreign and Commonwealth Office’s Pro Bono Panel, we provide assistance to British nationals on death row overseas. In August 2008, we agreed to represent Dexter Johnson, a British national convicted of murder and sentenced to death in Ghana. Mr. Johnson was represented by Kwabla Senanu in the Court of Appeal. Joseph Middleton, Barrister at Doughty Street Chambers, assisted Mr Senanu in the preparation of the appeal and was also present at the hearing. Mr Johnson’s appeal against conviction and sentence was dismissed by the Court of Appeal in July 2009. We will continue to assist Mr Johnson’s legal team in his appeal against conviction and sentence to the Supreme Court.  We are coordinating this work with the legal charity Reprieve and and the NGO Fair Trials International who are also assisting Dexter Johnson.

The Democratic Republic of Congo (DRC)

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The DRC retains the death penalty for aggravated murder, aggravated robbery, treason, spying, political and military offences, and genocide.  The DRC abstained from voting in the 2007 UN General Assembly Resolution on the adoption of a moratorium on the use of the death penalty, and was absent from the 2008 vote. In 2007, the DRC imposed at least 24 death sentences.  In 2008, the DRC imposed 50 death sentences, handed down by its military courts. The number of death sentences imposed in 2009 is unknown.  Although the DRC has been a party to the International Convention on Civil and Political Rights (ICCPR) since 1976, it has neither signed nor ratified the Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty (1989).

In 2009, we began working on our first case in the jurisdiction of the Democratic Republic of Congo (DRC).  We have been requested by the UK Foreign and Commonwealth Office (FCO) to assist in the case of Joshua French and Tjostolv Moland. French, who holds dual British and Norwegian nationality, and Moland, a Norwegian national, were sentenced to death by firing squad by a military tribunal following their convictions for murder, attempted murder, robbery, unlawful possession of a firearm and espionage. Since their arrest in May 2009, both men have been subjected to numerous incidents of violence, intimidation, mock executions, and threats.  In December, their convictions and sentences were upheld by a higher military court in Kisangani.  We worked with various partners including Reprieve, Norwegian lawyers and the FCO, to provide legal assistance in preparation for French’s appeal before the Military High Court. On 22nd April 2010, the Military High Court in Kinshasa (DRC) quashed the death sentences imposed on French and Moland, and ordered a retrial to take place. For more information on this case, please see our press release.

Other Jurisdictions

We are also working with NGOs and legal practitioners in pursuing challenges to the application of the death penalty in Zambia, and we have recently been asked to assist local lawyers in Zimbabwe.