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African Human Rights Law Journal

On-line version ISSN 1996-2096
Print version ISSN 1609-073X

Afr. hum. rights law j. vol.8 n.1 Pretoria  2008




Why the Supreme Court of Uganda should reject the Constitutional Court's understanding of imprisonment for life



Jamil Ddamulira Mujuzi

Doctoral Researcher, Civil Society Prison Reform Initiative, Community Law Centre, University of the Western Cape; PhD Candidate, Faculty of Law, University of the Western Cape, South Africa




The issue of life imprisonment is always a contentious one. Some people argue that life imprisonment should mean what it means, namely 'whole-life'. In Uganda, life imprisonment continues to mean imprisonment of 20 years. However, in 2005 the Constitutional Court ruled that life imprisonment should mean 'the whole of a person's life'. This decision is not yet law, because the particular case is on appeal before the Supreme Court, which will either uphold the Constitutional Court's ruling or not. This article deals with the constitutionality of long prison sentences that the Constitutional Court suggested could be imposed to avoid prisoners being released after 20 years. It also argues that the Supreme Court should reject the Constitutional Court's ruling that life imprisonment should mean the whole of the prisoner's life. The human rights and administrative implications of 'whole-life' imprisonment are discussed in detail to support the view that life imprisonment should remain as is, that is, 20 years in prison. The author draws inspiration from other domestic jurisdictions and international law to support his argument. In particular, the author looks at jurisprudence from Germany, South Africa, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the Former Yugoslavia, the Special Court for Sierra Leone, the International Criminal Court and the European Court of Human Rights. Where applicable, the views of the African Commission on Human and Peoples' Rights are highlighted.



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* LLB (Hons) (Makerere), LLM (Human Rights and Démocratisation in Africa) (Pretoria), LLM (Human Rights Specialising in Reproductive and Sexual Health Rights) (Free State); Diploma in International Humanitarian Law (Abo Akademi); I am deeply indebted to Prof Dirk van Zyl Smit of the University of Nottingham for his helpful comments on the earlier draft of this article and for his encouragement. I would like to thank Mr Chacha Bhoke, Legal Counsel, Parliament of Tanzania, for his comments on an earlier draft of this article and for availing me some of the material that I used in writing this article. Thank you the anonymous referees for their constructive comments. Misstatements, if any, remain entirely my own. OSF-SA and the Ford Foundation's funding to CSPRI and CLC is acknowledged.
1R v Secretary of State for the Home Department, Ex Parte Doody [1994] 1 AC 531 (HL) 549H-550B, as quoted in D van Zyl Smit Taking life imprisonment seriously in national and international law (2002) 2-3.         [ Links ]
2The Republic of Cyprus v Andreas Costa Aristodemou Case 31175/87, cited in Case of Kafkaris v Cyprus [2008] ECHR 21906/04 (12 February 2008) para 47.
3 D van Zyl Smit 'Life imprisonment: Recent issues in national and international law' (2006) 29 International Journal of Law and Psychiatry 410.         [ Links ]
4 The Constitution of Brazil (of 5 October 1988) prohibits the imposition of life imprisonment on any person. Art XLVII(b) provides that '[t]here may be no sentence of life imprisonment'. In Extradition 855, decision of 26 August 2004, the Supreme Federal Tribunal of Brazil ruled that it could not order the extradition on a Chilean citizen to Chile unless Chile commuted the defendant's sentence to 30 years' imprisonment, because 'Brazilian law establishes that 30 years is the maximum of actual serving time'. See /documento.asp?seq=70&lng=ingles (accessed 16 August 2007). It has been observed that '[i]t is noteworthy that life imprisonment is not considered everywhere as an essential form of social control. In countries such as Brazil and Portugal it is constitutionally outlawed.' See D van Zyl Smit & F Dünkel (eds) Imprisonment today and tomorrow: International perspectives on prisoners' rights and prison conditions (2001 ) 814. See also Van Zyl Smit (n 1 above) 189.
5 C Appleton & B Grover 'The pros and cons of life without parole' (2007) 47 British Journal of Criminology 601.
6 Generally see Van Zyl Smit (n 1 above) 20-131.
7 Van Zyl Smit (n 3 above) 410.
8 Van Zyl Smit (n 3 above) 411.
9 Act 17 of 2006.
10 Wasaja v Uganda [1975] EA 181.
11Wasaja v Uganda (n 10 above) 184.
12Kakooza v Uganda [1994] V KALR 54.
13 Wanaba v Uganda Criminal Appeal 156 of 2001, decided on 22 July 2003.
14Wanaba v Uganda (n 13 above) 8.
15 Constitutional Petition 6 of 2003 (unreported) 140-142, quoted in n 39 below. In this case, the petitioners had been sentenced to death and they petitioned the Constitutional Court for a declaration that the death penalty was unconstitutional on the basis, inter alia, that it amounted to torture, cruel or degrading and inhuman treatment and that it violated the right to life. The Constitutional Court held that the death penalty was not unconstitutional and that, according to the Constitution (art 22(1)), the right to life is not absolute and it can be taken away provided due process of law has been followed. However, the Court held that a mandatory death penalty was unconstitutional because it eliminated the discretion of the courts in sentencing. The Court held that a mandatory death penalty in cases of murder meant that it was the executive and the legislature passing the sentence and not the courts.
16 Appleton & Grover (n 5 above) 603.
17 Under art 130 of the Constitution of Uganda (1995), 'The Supreme Court shall consist of (a) the Chief Justice; and (b) such number of justices of the Supreme Court, not being less than six, Parliament may by law prescribe.' Under article 131: '(1) The Supreme Court shall be duly constituted at any sitting if it consists of an uneven number not being less than five members of the court. (2) When hearing appeals from decisions of the Court of Appeal sitting as a constitutional court, the Supreme Court shall consist of a full bench of all members of the Supreme Court; and where any of them is not able to attend, the President shall, for that purpose, appoint an acting justice under article 142(2) of the Constitution.' At the time of writing, there were five justices at the Supreme Court: Justice Bart Katureebe, Justice Benjamim Odoki, Chief Justice, Justice GW Kanyeihamba, Justice JN Mulenga and Justice John WN Tsekooko. See (accessed 3 October 2007). Justice Arthur Oder passed away in June 2006 and Justice Alfred Karokora retired in 2006. See 'Appoint judges, legislators tell President Museveni' The New Vision 15 September 2007 (accessed 3 October 2007).
18Guloba Muzamiru v Uganda Criminal Appeal 289/2003 (unreported).
19Guloba Muzamiru v Uganda (n 18 above) 2.
20 Statistics obtained from Uganda Prisons Headquarters, Kampala in January 2008 (on file with the author).
21 Community Services Act, ch 115 of the Laws of Uganda.
22 Penal Code Act, ch 120 of the Laws of Uganda. Under the Penal Code Act, a person convicted of rape is liable to suffer death (sec 124); a person convicted of defilement is liable to suffer death (sec 129); a person convicted of murder is liable to suffer death (sec 189); a person convicted of manslaughter is liable to imprisonment for life (sec 190); a person convicted of attempted murder is liable to imprisonment for life (sec 204); a person convicted of kidnapping with intent to murder is liable to suffer death (sec 243); a person convicted or robbery is liable to imprisonment for life (sec 286(1)(b)); and a person convicted of attempted robbery is liable to life imprisonment (sec 287(2)(b)).
23 See L Muntingh 'Alternative sentencing in Africa' in J Sarkin (ed) Human rights in African prisons (2008) 178 196-197.
24 EL Pincoffs The rationale of legal punishment (1966) 2-3. See also MA Rabie & SA Strauss Punishment: An introduction to principles (1994) 46-53.
25 SS Terblanche Guide to sentencing in South Africa (2007) 170.
26 A Oldenquist 'Retribution and the death penalty' (2004) 29 University of Dayton Law Review 335 339.
27 Terblanche (n 25 above) 156.
28 CS Steiker 'No, capital punishment is not morally required: Deterrence, deontology, and the death penalty' (2005) 58 Stanford Law Review 751 775.
29 A Dissel 'Rehabilitation and reintegration in African prisons' in Sarkin (n 23 above) 155-159.
30 J Brooks 'Addressing recidivism: Legal education in correctional settings' (1992) 44 Rutgers Law Review 699 712.
31 Brooks (n 30 above) 712-713.
32 For a detailed discussion of punishment and reconciliation, see J Sarkin & E Daly 'Too many questions, too few answers: Reconciliation in transitional societies' (2004) 35 Columbia Human Rights Law Review 661.
33 David Dikoko v Thupi Zacharia Mokhatla [2006] ZACC 10 para 114 (footnotes omitted).
34 See M Ssenyonjo 'The International Criminal Court and the Lord's Resistance Army leaders: Prosecution or amnesty?' (2007) LIV Netherlands International Law Review 51 64-66.
35 NM Sita et al From prison back home: Social rehabilitation and reintegration as phases of the same social process (the case of Uganda) (2005) 32-34. See generally J Gakumba Testimonies on the impact of peace making and conflict resolution in Luzira prisons Kampala (2007) (on file with author).
36 Uganda v Bahigana William (HCT-01-CR-SC-0071-2001) 6 (unreported) (on file with author).
37 Personal interview with Assistant Commissioner of Welfare/Rehabilitation, Mr Robert Omita Okoth, Uganda Prisons Services Headquarters, 8 January 2008, Kampala.
38 n 15 above.
39 n 15 above, 140-142 (emphasis in bold in original judgment; emphasis in italics added). It has to be recalled that not all justices of the Constitutional Court expressed their views on the issue of life imprisonment. However, there were discussions between both parties - the state (as the appellant) and the petitioners (in their cross-appeal) to raise the issue of life imprisonment before the Supreme Court for the Court to clarify whether the Constitutional Court's ruling on life imprisonment should be interpreted to mean that life imprisonment should mean 'whole life'. Personal interview with a senior state counsel (who preferred to remain anonymous because the case was 'sensitive'), Ministry of Justice and Constitutional Affairs, Uganda, 7 May 2008, Royal Swazi Sun, Ezulwini, Swaziland, at the 43rd ordinary session of the African Commission on Human and Peoples' Rights.
40 S v Makwanyane & Another 1995 3 SA 391 (CC).
41Mhlakaza & Others v S [1997] 2 All SA 185 (A).
42 According to the judgment, effective sentence meant 'the difference between the cumulative and suspended sentence'. See 185. 'Appellant no 1 was sentenced cumulatively to 62 years of which 15 years were suspended; no 2, who was similarly to 62 years, had 20 years of his sentence suspended and a further two years were ordered to run concurrently. The so-called effective sentences were thus 47 and 38 years respectively.' See 187.
43 Nkosi & Others v S [2002] JOL 10209 (SCA).
44 Nkosi (n 43 above) 1.
45Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966 and entered into force on 23 March 1976.
46 See (accessed 3 October 2007).
47 See (accessed 3 October 2007).
48 Kafkaris v Cyprus (n 2 above) para 6.
49 It has been observed that there is no evidence to suggest that longer sentences reduce crime levels, except in so far as they keep some offenders in custody, who are thus unable to commit offences in free society ... long sentences place greater strain on the resources of the criminal justice system, undermine the rehabilitative ideal, and thus make it more likely that . offenders will re-offend'. See C Giffard & L Muntingh The effect of sentencing on the size of the South African prison population (Report 3) (2006) 47. See also M O'Donovan & J Redpath The impact of minimum sentencing in South Africa (Report 2) (2006) 22-33.
50 Makwanyane (n 40 above).
51 Makwanyane (n 40 above) para 126.
52 Prisons Act ch 90, sec 46(1)(ii).
53 Prisons Act (Cap 34 of 1967) sec 49; and Parole Boards Act (Act 25 of 1994) sec 4(a).
54 Prisons Act (ch 7:11), secs 109, 115(1) & 121(1a); and the Criminal Procedure and Evidence Act (ch 9:07), sec 344A.
55 Prisons Service Act, NRCD 46, sec 34.
56 Correctional Services Act 111 of 1998, sec 73.
57 Prisons Act 17 of 2006, sec 86(3).
58 Prisons Bill 2003, sec 53(1)(b).
59 Prisons Act 1980, sec 85(c).
60 Criminal Procedure (Amendment) Bill VIII of 2007, sec 150A.
61 Act 17 of 2006.
62 Sec 89(2-4).
63 Act 111 of 1998.
64 Sec 73(6)(b)(iv).
65 Ch VI & VII.
66 Kafkaris v Cyprus (n 2 above), joint dissenting judgment of Judges Tulkens, Cabral Barreto, Fura- Sandström, Spielmann & Jebens, para 6.
67 Case of Ezeh and Connors v The United Kingdom (Applications 39665/98 & 40086/98) [2003] ECHR 485 (9 October 2003) para 5.
68 Bull & Another v The State Case 221/2000 [2001] ZASCA 105 (26 September 2001) para 23.
69 S v Tcoeib 1996 1 SACR 390 399.
70 The President, eg, used his powers under art 121 to pardon Abudallah Nasuru who had been on death row for almost 20 years. See Susan Kigula & 146 Others v Uganda (n 15 above) Issue 5(iii). In early February 2003, the President pardoned 92 prisoners, including a member of parliament, who were serving sentences in prisons in Uganda. I could not establish whether any of them was serving a life sentence. See %20Birimumaaso%20pardoned (accessed 4 October 2007).
71 BVerfGE 45 187 246, as cited in Van Zyl Smit (n 3 above) 409.
72 n 50 above. In February 2007, the President pardoned over 170 prisoners, but none of them was serving a life sentence. See S Candia & P Jaramoji 'President pardons over 170 inmates' The New Vision 27 February 2007 prisoners%20pardoned (accessed 4 October 2007). In December 2004, the President also pardoned 173 prisoners and none of them was serving a life sentence. See J Etyang & H Kiirya 'Museveni pardons 173 inmates' The New Vision 8 December 2004 (accessed 4 October 2007).
73 It has been observed that '[i]t must be recognised that the many decisions taken by the prison authorities at every step in this process [of ensuring that prisoners serving life sentences are released] may have a bearing on when the prisoner is eventually released. For example, an administrative decision not to transfer a prisoner to an open facility may lead to a parole board deciding not to release the life conditionally.' See Van Zyl Smit (n 3 above) 415.
74 Van Zyl Smit & Dünkel (n 4 above) 846.
75 See Prisons in Cameroon: Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa (Report to the Government of the Republic of Cameroon on the Visit of the Special Rapporteur on Prisons and Conditions of Detention in Africa from 2-15 September 2002) ACHPR/37/OS/11/437, where, under General Recommendations, the Special Rapporteur recommends that '[m]easures such as parole, judicial control, reductions of sentences, community service, diversion, mediation and permission to go out should also be developed'.
76 S v Sikhipa 2006 2 SACR 439.
77 Para 19 (my emphasis).
78 BVertGE 45, 187, 238, as cited in Van Zyl Smit (n 3 above) 408.
79 In their joint partly dissenting opinion in the case of Kafkaris v Cyprus (n 2 above), Judges Tulkens, Cabral Barreto, Fura-Sandström, Spielmann and Jebens observed, in relation to the parliamentary debates surrounding the abolition of the death penalty in the United Kingdom in 1964, that 'as a general rule "experience shows that nine years, ten years, or thereabouts is the maximum period of confinement that normal human beings can undergo without their personality decaying, their will going, and their becoming progressively less able to re-enter society and look after themselves and become useful citizens"' (para 5).
80 See D van Zyl Smit 'Punishment and human rights in international criminal justice' (2002) 2:1 Human Rights Law Review 5.
81 Appleton & Grover (n 5 above) 606.
82 J Wright 'Life without parole: The view from death row' (1991) 27 Criminal Law Bulletin 334-57 346, as cited in Appleton & Grover (n 5 above) 607.
83 See Report on the Visit to Prisons in Zimbabwe by Prof EVO Dankwa, Special Rapporteur on Prisons and Conditions of Detention, 10th Annual Activity Report of the African Commission on Human and Peoples' Rights 1996/97, Annex VII, in which the Special Rapporteur recommended that '[t]he prison service should help orient public attitude to accepting that rehabilitation does occur in the prisons of Zimbabwe by employing ex-convicts whenever there is the opportunity to do so' (Recommendation 7).
84 Appleton & Grover (n 5 above) 604.
85 Appleton & Grover (n 5 above) 604. 'In her report ... in 2004, the Ombudswoman criticised the Cypriot authorities' interpretation of life sentence as imprisonment for the rest of the convicted person's life ... The Deputy Director of the Central Prison spoke of the difficulties in dealing with those currently serving life sentence ... both in terms of the prisoners' morale, and security issues. The usual incentives for encouraging good behaviour in prisoners were inevitably of no use in relation to those serving life sentences, and this posed security problems both for the warders and for the other prisoners.' See Follow-up Report on Cyprus (2003-2005) 'Assessment of the progress made in implementing the recommendations of the Council of Europe Commissioner for Human Rights' Doc Comm DH (2006) 12, cited in Kafkaris v Cyprus (n 2 above) para 73.
86 See generally S Rahman 'Addressing anomalies created by the fiction of life imprisonment' (2000) 8 Waikato Law Review 87.
87 R v Foy [1962] 2 All ER 246 247.
88 Simon Kyamanya v Uganda Constitutional Reference 10 of 2000.
89 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its Resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
90 It should also be recalled that both the International Military Tribunal at Nuremberg (Nuremberg Tribunal) and the International Military Tribunal for the Far East (Tokyo Tribunal) sentenced some war criminals to life imprisonment. The Nuremberg Tribunal sentenced three defendants to life imprisonment (Rudolf Hess, Walter Funk and Erich Raeder); see The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany Part 22 (22-31 August 1946 and 30 September-1 October 1946) (1950) 529. Funk and Raeder were released after serving a considerable amount of years because their health had deteriorated. Even though his life had also deteriorated, Hess's release was vetoed by the Russians until he committed suicide in prison. See C Kress & G Sluiter 'Imprisonment' in A Cassese (ed) The Rome Statute of the International Criminal Court: A commentary (2002) 1762. It should be remembered that the Spandau Prison in Germany, where the prisoners were serving their sentences, 'was administered and guarded jointly by the four Allied Powers: the Soviet Union, France, the United Kingdom and the United States' and therefore all the representatives of all the Allied Powers had to consent for any prisoner to be released. See D Kamchibekova 'State responsibility for extra-territorial human rights violations' (2007) 13 Buffalo Human Rights Law Review 87 124. The reason why Hess was not released could be attributed to the fact that the Soviet judge at the Tribunal, Major General IT Nikitchenko, wrote a dissenting judgment holding that Hess should have been sentenced to death by hanging instead of life imprisonment. After indicating clearly the role Hess had played in the Nazi government, Major General Nikitchenko held that '[t]aking into consideration that among the political leaders of Hitlerite Germany Hess was third in significance and played a decisive role in the crimes of the Nazi regime, I consider the only justified sentence in his case can be death'. See Dissenting Opinion of the Soviet Member of the International Military Tribunal in The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany Part 22 (22-31 August 1946 and 30 September-1 October 1946) (1950) 541. On the other hand, the Tokyo Tribunal sentenced the following accused to imprisonment for life: Araki Sadao, Hashimoto Kingoro, Hata Shunroku, Hiranuma Kiichiro, Hoshino Naoki, Kido Koichi, Koiso Kuniaki, Minimi Jiro, Oka Takasumi, Oshima Hiroshi, Sato Kenryo, Shimada Shigetaro, Suzuki Teiichi, Kaya, Shiratori and Umezu. See BVA Röling & CF Rüter The Tokyo judgment: The International Military Tribunal for the Far East (IMTFE) 29 April 1946-12 November 1948 (1977) 465-466. It has been observed in relation to prisoners sentenced to life imprisonment by the Tokyo Tribunal that '[n]ot a single Tokyo defendant ... actually served his life sentence "unless he died of natural causes within a very few years. They were all paroled and pardoned by 1958."' See MM Penrose 'Spandau revisited: The question of detention for international war crimes' (2000) 16 New York Law School Journal of Human Rights 553 564-565. It should also be recalled that, unlike the life sentences imposed by the Nuremberg Tribunal where there was no law specifically stipulating the minimum number of years to be served before a prisoner could be released for parole, with regard to the sentences by the Tokyo Tribunal, '[t]he Supreme Commander General did lay down criteria for early release :. offenders sentenced to life imprisonment were to be considered for parole after they had served 15 years'. See D van Zyl Smit 'International imprisonment' (2005) 54 International and Comparative Law Quarterly 357-385 359.
91 Art 1.
92 Art 2.
93 Art 3.
94 Art 4.
95 Van Zyl Smit points out that '[t]he major difficulty [with a provision such as this one] is that the trigger lies in the national law of the states, which may vary greatly. This results in the same sentence being implemented for different for different periods depending on where it is served.' See Van Zyl Smit (n 80 above) 9. See also Rules 124-126 of the Tribunal's Rules of Procedure and Evidence.
96 See Prosecutor v Paul Bisengimana Case ICTR-00-60 (the offender was sentenced to 15 years' imprisonment); Prosecutor v Samuel Imanishimwe Case ICTR-99-46 (the offender was sentenced to 12 years' imprisonment); Prosecutor v Elizapah Ntakirutimana Case ICTR-96-10 and ICTR-96-17 (the offender was sentenced to 10 years' imprisonment); Prosecutor v Joseph Nzabirinda Case ICTR-01-77 (the offender was sentenced to seven years' imprisonment); Prosecutor v Georges Ruggiu Case ICTR-97-32 (the offender was sentenced to 12 years' imprisonment); Prosecutor v Joseph Serugendo Case ICTR-2005-84 (the offender was sentenced to six years' imprisonment); Prosecutor v Omar Serushago Case ICTR-98-39 (the offender was sentenced to 15 years' imprisonment); Prosecutor v Tharcisse Muvunyi Case ICTR-2000-55 (the offender was sentenced to 12 years' imprisonment); and Prosecutor v Athanase Seromba Case ICTR-2001-66.
97 Prosecutor v Juvenal Kajelijeli Case ICTR-98-44 (the offender was sentenced to 45 years' imprisonment);Prosecutor v Gerald Ntakirutimana Case ICTR-96-10 and ICTR-96-17 (the offender was sentenced to 25 years' imprisonment); Prosecutor v Obed Ruzindana Case ICTR-95-1 (the offender was sentenced to 25 years' imprisonment); Prosecutor v Laurent Semanza Case ICTR-97-20 (the offender was sentenced to 35 years' imprisonment); and Prosecutorvjean Bosco Barayigwiza Case ICTR-97-19 (the offender was sentenced to 35 years' imprisonment).
98 Prosecutor v Jean Paul Akayesu Case ICTR-96-4; Prosecutor v Jean Kambanda Case ICTR-97-23; Prosecutor v Alfred Musema Case ICTR-96-13; and Prosecutor v Georges Rutaganda Case ICTR-96-3.
99 Prosecutor v Sylvester Gacumbifsi Case ICTR-2001-64; Prosecutor v Jean de Dieu Kamuhanda Case ICTR-99-54; Prosecutor v Clement Kayishema Case ICTR-95-1; Prosecutor v Mikaeli Muhima Case ICTR-95-1; Prosecutor v Emmnuel Ndindabahizi Case ICTR-2001-71; Prosecutor v Eliezer Niyitegeka Case ICTR-96-14; Prosecutor v Ferdinand Nahimana Case ICTR-96-11; and Prosecutor v Hassan Ngeze Case ICTR-99-52.
100 Van Zyl Smit (n 1 above) 186.
101 Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda (as amended on 15 June 2007).
102The Prosecutor of the Special Court v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu Case SCSL-04-16-T, para 2. For a detailed discussion of this judgment, see JD Mujuzi 'The Special Court for Sierra Leone and its justification of punishment in cases of serious violations of international humanitarian law and human rights law: Reflecting on The Prosecutor of the Special Court v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu in the light of the philosophical arguments on punishment' (2007) African Yearbook on International Humanitarian Law 105-137.
103 See also Prosecutor v Moinina Fofana and Allieu Kondewa Case SCSL-04-14-T (sentence of 9 October 2007) in which the accused were sentenced to six and eight years respectively.
104 See WA Schabas The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (2006) 549.
105 Art 23 Statute of the SCSL.
106 Prosecutor v MilomirStaki Case IT-97-24-A (judgment of 22 March 2006).
107 See XII Disposition. The 'reluctance' of the ICTY to impose life sentences could be attributed to the fact that its Statute does not expressly allow it to impose life sentences. As one scholar observes, '[t]he argument is not that life sentence is necessarily an inappropriate ultimate penalty for the Yugoslavia Tribunal to impose. But if the Security Council had wanted to allow the Tribunal to impose sentences of more than 20 years with life imprisonment as its ultimate penalty, it should, in the interest of legal certainty, have made this explicit in the Statute of the Tribunal rather than requiring the Tribunal to have recourse to "the general practice regarding prison sentences in the courts of the former Yugoslavia"'. See Van Zyl Smit (n 80 above) 8 (footnotes omitted). Schabas observes that '[i]n Jelisi, the ICTY Appeals Chamber stated that "it falls within the Trial Chamber's discretion to impose life imprisonment". Perhaps this was a message to the Trial Chambers, as none of them had previously seen fit to pronounce such a sentence.' See Schabas (n 104 above) 550 (footnote omitted).
108 As early as 1990, the International Law Commission failed to support 'whole-life' sentences. It has been observed that during that time, the Commissioners ... considered whether life imprisonment as an alternative ultimate penalty [to the death sentence] would satisfy human rights norms. Of particular concern was the notion that no system of punishment that recognised human dignity of offenders could impose a penalty that excluded them permanently from society. Not only was the death penalty fundamentally unacceptable from this perspective, but life sentence prisoners would also have the prospect of release.' See Van Zyl Smit (n 80 above) 6 (footnotes omitted).
109 S v Dodo 2001 5 BCLR 423 (CC) paras 22-23 (footnotes omitted).

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