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The Abolition of the Death Penalty and Its Alternative Sanction in East Africa: Kenya and Uganda

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The Abolition of the Death Penalty and Its Alternative Sanction in East Africa: Kenya and Uganda The abolition of the death penalty and its alternative sanction in East Africa: Kenya and Uganda www.penalreform.org The abolition of the death penalty and its alternative sanction in East Africa: Kenya and Uganda 1 Contents Acknowledgements 2 Acronyms 3 Introduction 4 Research methodology 5 Executive summary 6 Country-by-country analysis Republic of Kenya 8 Republic of Uganda 23 Comparison of the application and implementation of the death penalty and its alternative sanction in East Africa 46 Annex I: Recommendations from the East African regional roundtable on the death penalty (27 July 2011) 53 2 Penal Reform International Acknowledgements This research paper has been created by Penal Reform International (PRI) in partnership with Foundation for Human Rights Initiative (FHRI). It was written by Doreen Namyalo (FHRI) and Jacqueline Macalesher (PRI). The Kenya research was undertaken with the assistance of the International Commission of Jurists-Kenya (ICJ-K), and the Uganda research was undertaken by FHRI. This research paper has been produced in conjunction with PRI’s project “Progressive Abolition of the Death Penalty and Alternatives that Respect International Human Rights Standards”, with the financial assistance of the European Union under the European Instrument for Democracy and Human Rights (EIDHR). The contents of this document are the sole responsibility of PRI and FHRI and can in no circumstances be regarded as reflecting the position of the European Union. The abolition of the death penalty and its alternative sanction in East Africa: Kenya and Uganda 3 Acronyms ARV Antiretroviral drug CADP Coalition Against the Death Penalty (Uganda) CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment EIDHR European Instrument for Democracy and Human Rights EU European Union FHRI Foundation for Human Rights Initiative GA General Assembly GCM General Court Martial ICCPR International Covenant on Civil and Political Rights EIDHR European Instrument for Democracy and Human Rights ICJ-K International Commission of Jurists-Kenya KNCHR Kenya National Commission for Human Rights KPS Kenya Prison Service MoJCA Ministry of Justice and Constitutional Affairs (Kenya) MP Member of Parliament NGO Non governmental organisation NPM National Preventative Mechanism OPCAT Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment PRI Penal Reform International TB Tuberculosis UK United Kingdom UN United Nations UNCT United Nations Country Team UPDF Uganda Peoples Defence Force UPR Universal Periodic Review UPS Uganda Prison Service USA United States of America 4 Penal Reform International Introduction The death penalty is the ultimate cruel, inhuman and DD Statistical information on the application of the degrading punishment. It represents an unacceptable death penalty/life imprisonment. denial of human dignity and integrity. It is irrevocable, and where criminal justice systems are open to error DD Criminal justice reform processes. or discrimination, the death penalty will inevitably be inflicted on the innocent. In many countries that retain DD Abolitionist and reform movement in each the death penalty there is a wide scope of application country. which does not meet the minimum safeguards, and prisoners on death row are often detained in This paper provides detailed and practical conditions which cause physical and/or mental recommendations tailored to each country to bring it suffering. in line with international human rights standards and norms. The challenges within the criminal justice system do not end with the institution of a moratorium or with We hope this research paper will assist advocacy abolition of the death penalty, as the problem of efforts towards abolition of the death penalty and the what to do with the most serious offenders remains. implementation of humane alternative sanctions in Many countries that institute moratoria do not create the region. We also hope this paper will be of use to humane conditions for prisoners held indefinitely on researchers, academics, members of the international ‘death row’, or substitute alternative sanctions that and donor community, and all other stakeholders amount to torture or cruel, inhuman or degrading involved in penal reform processes including punishment, such as life imprisonment without the parliamentarians, prison officials and members of the possibility of parole, solitary confinement for long and judiciary. indeterminate periods of time, and inadequate basic physical or medical provisions. Punitive conditions of March 2012 detention and less favourable treatment are prevalent for reprieved death row prisoners. Such practices fall outside international minimum standards, including those established under the EU Guidelines on the Death Penalty. This research paper focuses on the application of the death penalty and life imprisonment as an alternative to it across the East Africa region. Its aim is to provide up-to-date information about the laws and practices relating to the application of the death penalty in Kenya and Uganda, including an analysis of the alternative sanctions to the death penalty and whether they reflect international human rights standards and norms. This paper takes a country-by-country approach and focuses on: DD The legal framework of the death penalty and its alternative sanction (life imprisonment). DD Implementation of the sentence, including an analysis of fair trial standards. DD Application of the sentence including an analysis of the method of execution, the prison regime and conditions of imprisonment. The abolition of the death penalty and its alternative sanction in East Africa: Kenya and Uganda 5 Research methodology Access to information on the application of the death penalty and its alternative sanction is often unavailable or inaccurate in many countries. Statistical information is not always made available by state bodies, and information provided is not always timely, or lacks clarity. As such, although PRI and FHRI aimed to undertake an in-depth analysis of legal, policy and practice areas within this research paper, access to certain types of information was sometimes beyond the abilities of the researchers, and therefore gaps in the research remain. A research questionnaire was designed in late 2010 to assist researchers in identifying relevant information. The research questionnaire was designed by PRI in partnership with Sandra Babcock (Northwestern University, USA) and Dirk van Zyl Smit (Nottingham University, UK). The research was undertaken by PRI and FHRI in both countries and included field visits and desk- based research. ICJ-K facilitated the gathering of research in Kenya. The researchers looked at primary sources, such as legislation and case law. They interviewed relevant government officials (within the various departments of the Ministries of the Interior, the Ministries of Justice, and the Penitentiary Services), prison officials, national human rights commissions, lawyers and judges, journalists, and members of civil society/ human rights defenders in both countries, as well as death row and life-sentenced prisoners where access was made available. The researchers also turned to reports by people or organisations with first-hand experience, including inter-governmental organisations such as the African Commission’s Working Group on the Death Penalty, and reports by UN treaty bodies and Special Rapporteurs, as well as reports by international NGOs such as Human Rights Watch, Amnesty International, Death Penalty Worldwide and the World Coalition against the Death Penalty. Reports and articles by journalists and academics were also analysed. The research was carried out during 2011. 6 Penal Reform International Executive summary Although East Africa is still a largely retentionist (UN GA) moratorium resolution, Uganda voted against region,1 Kenya and Uganda have not carried out it and signed the note verbale of dissociation. executions since 1987 and 2003, respectively. Both countries are in a situation of flux and have made There have, however, been a number of positive legal significant changes in law and policy in recent years developments towards reducing the application of the to restrict the application of the death penalty in death penalty in both countries. In January 2009, the practice. Although both countries continue to hand Supreme Court of Uganda issued a landmark ruling down death sentences, and neither has established in Attorney General v. Susan Kigula and 417 Others.2 an official moratorium on executions, it is expected The court found that the mandatory application that the experiences of Kenya and Uganda will of the death penalty was unconstitutional, and influence the rest of East Africa (Tanzania and South serving at least three years on death row amounted Sudan, who also retain the death penalty). to cruel and inhuman punishment. Following the Kigula judgement, the Kenya High Court also found Kenya retains the death penalty for five offences. mandatory death sentences unconstitutional in the It has the highest number of people on death row 2010 case of Godfrey Ngotho Mutiso v. the Republic.3 in East Africa. By the end of 2011 it is estimated that Kenya had 1,140 prisoners on death row (30 As a result of these two landmark cases, a number of which are women). Steps have been taken by of death row prisoners have had their sentences progressive parliamentarians to abolish the death commuted to whole
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