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International human rights law and foreign case law in interpreting Constitutional rights: The Supreme Court of Uganda and the death penalty question

Jamil Ddamulira Mujuzi

Doctoral Researcher, Civil Society Prison Reform Initiative (CSPRI), Community Law Centre, University of the Western Cape; LLD Candidate, Faculty of Law, University of the Western Cape

SUMMARY

On 21 January 2009, the Supreme Court of Uganda handed down a judgment in which it held that the death penalty was constitutional, that a mandatory death sentence was unconstitutional, that hanging as a mode of execution was not cruel and inhuman, and that the death row phenomenon is cruel and inhuman and therefore unconstitutional. Although the Constitution of Uganda does not empower or require the Court to refer to international law or foreign case law in interpreting the Constitution, the Court relied heavily on international human rights treaties and jurisprudence in arriving at its decision. This article has three purposes: one, to show how the Ugandan Court used international law and foreign case law in its judgment; two, to analyse the Court's orders; and third to recommend that the Constitution of Uganda be amended to empower or require courts to refer to international law and foreign case law in interpreting the country's Constitution.

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* LLB (Hons) (Makerere), LLM (Human Rights and Democratisation in Africa) (Pretoria), LLM (Human Rights Specialising in Reproductive and Sexual Health Rights) (Free State), LLD (Western Cape); djmujuzi@yahoo.com. I am grateful to Prof Julia Sloth-Nielsen, Faculty of Law, UWC, for providing me with the funding I used in accessing most of the materials used in this article and to the anonymous referees for their constructive comments. The funding by OSF-SA and Ford Foundation to CSPRI and CLC is acknowledged. The views expressed in this article are those of the author.
1Attorney-General v Susan Kigula & 417 Others Constitutional Appeal 03 of 2006 (judgment of 21 January 2009, unreported) Supreme Court of Uganda http://www.saflii.org (accessed 20 September 2009).
2 Penal Code Act, Cap 120.
3 Susan Kigula & 417 Others vAttorney-General, Constitutional Petition 6 of 2003 (judgment of 5 June 2005).
4Kigula (n 1 above) 10.
5 As above.
6 Kigula (n 1 above) 2.
7 For a detailed discussion of the Supreme Court's ruling on the question of hanging as a method of execution, see JD Mujuzi 'Execution by hanging not torture or cruel punishment? Attorney-General v Susan Kigula and Others' (2009) 3 Malawi Law Journal 133-146.         [ Links ]
8 Kigula (n 1 above) 63.
9 L Afedraru et al 'Uganda Supreme Court upholds death sentence' Daily Monitor 22 January 2009 http://www.monitor.co.ug/artman/publish/news/Ugandan_Supreme_Court_ upholds_death_sentence_78608.shtml (accessed 24 January 2009);         [ Links ] Editorial 'Positives from ruling on the death penalty' Daily Monitor 23 January 2009 http://www.monitor.co.ug/artman/publish/opinions/Positives_from_ruling_on_ the_death_penalty_78644.shtml (accessed 24 January 2009);         [ Links ] A Mugisa et al 'Death sentence judgment puzzles lawyers' The New Vision 22 January 2008 http://www.newvision.co.ug/D/8/13/668974 (accessed 24 January 2009);         [ Links ] A Mugisa & H Nsambu 'Supreme Court retains death penalty' The New Vision 21 January 2009 http://www.newvision.co.ug/D/8/12/668812 (accessed 24 January 2009).         [ Links ]
10 'Uganda court keeps death penalty' BBC News 21 January 2009 http://news.bbc.co.uk/2/hi/africa/7841749.stm (accessed 24 January 2009);         [ Links ]'Uganda's Supreme Court declares death penalty right' Guardian Newspaper 22 January 2009 http://www.ngrguardiannews.com/africa/article02//indexn3_html?pdate =220109&ptitle=Uganda's%20supreme%20cour%20declares%20death% 20penalty%20right&cpdate=240109 (accessed 24 January 2009).         [ Links ]
11 See T Butagira et al 'Death penalty ruling puzzles prison bosses' Saturday Monitor 24 January 2009 http://www.monitor.co.ug/artman/publish/news/Death_penalty_ruling_puzzles_ prison_bosses_78725.shtml (accessed 24 January 2009),         [ Links ] where it is reported that '[t]he Supreme Court ruling that prisoners, who have stayed on death row for more than three years, after exhausting all appeals, should not be executed but imprisoned for life has confused prison officials. Saturday Monitor has learnt that the officials are puzzled about how to handle condemned persons still in formal confinement. Dr Johnson Byabashaija, the [C]ommissioner [G]eneral of Uganda Prisons, said the government needs to clarify if the ... decision, arising from a petition by some 417 death row inmates to have the court quash the death sentence, would apply retrospectively. "We are going to write to the Attorney-General ... for advice because the Supreme Court ruling has got implications on all persons who have gone through all appeals [and stayed thereafter] on death row for more than three years."'
12 Kigula (n 1 above) 20.
13 The 1995 Constitution repealed the 1967 Constitution.
14 See generally Report of the Uganda Constitutional Commission: Analysis and Recommendations, UPPC, Entebbe (1993).
15 Proceedings of the Constituent Assembly (Official Report, Content) August-September 1994 (when the draft Bill of Rights was being debated).
16 Kigula (n 1 above) 20.
17 Kigula (n 1 above) 22.
18 Objective XXVIII(b) of National Objectives and Directive Principles of State Policy.
19 Art 52(1)(h).
20 Art 287.
21 See arts 132 & 137 of the Constitution.
22 Art 11(2)(c) which provides that '[i]n interpreting the provisions of this Constitution a court of law shall - where applicable, have regard to current norms of public international law and comparable foreign case law'.
23 Sec 39(1) provides that 'when interpreting the Bill of Rights, a court, tribunal or forum - (b) must consider international law; and (c) may consider foreign law'.
24 Eg, Law and Advocacy for Women in Uganda v Attorney-General of Uganda, Constitutional Petitions 13/05 and 05/06 (judgment of 5 April 2007, unreported). Although the Constitutional Court held that some provisions of the Penal Code and Succession Act were unconstitutional for violating women's right to freedom from discrimination, it did not refer to international human rights instruments although the petitioners argued that the impugned provisions also violated these treaties to which Uganda is party, such as the Convention for the Elimination of All Forms of Discrimination Against Women.
25 Kigula (n 1 above) 4-9.
26 H Arnould 'Lawrence v Texas and Roper v Simmons: Enriching constitutional interpretation with international law' (2008) 22 Saint John's Journal of Legal Commentary 685 685-686.
27 In Paul Kawanga Ssemwogerere & Others v Attorney-General of Uganda (Constitutional Petition 5 of 2002) [2003] UGCC 4 (21 March 2003), in which the petitioners challenged the constitutionality of some provisions of the Political Parties and Organisations Act 18 of 2002, for, inter alia, imposing unjustifiable restrictions on the activities of political parties and organisations, thus rendering them non-functional and inoperative contrary to the Constitution. One of the issues was whether the impugned provisions violated the international human rights instruments mentioned in the petition. The Supreme Court unanimously held that, inter alia, '[t]he International Human Rights Conventions mentioned in the petition are not part of the Constitution of the Republic of Uganda. Therefore, a provision of an Act of Parliament cannot be interpreted against them. This issue was therefore misconceived.' See para 6. In Charles Onyango Obbo & Another v Attorney-General (Constitutional Appeal 2 of 2002) [2004] UGSC 1 (11 February 2004), Mulenga J of the Supreme Court, in holding that sec 50 of the Penal Code Act which criminalised the publication of false news was unconstitutional on the ground that the limitations it imposed could not be justified in a free and democratic society, referred to art 9 of the African Charter on Human and Peoples' Rights, the African Commission on Human and Peoples' Rights' Declaration of Principles on Freedom of Expression in Africa (paras 1 and 2) and art 10 of ICCPR and concluded that, inter alia, '[f]rom the foregoing different definitions, it is evident that the right to freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information. It is not confined to categories, such as correct opinions, sound ideas and truthful information'.
28 RF Oppong 'Re-imagining international law: An examination of recent trends in the reception of international law into the national legal systems in Africa' (2007) 30 Fordham International Law journal 296 313.
29 MA Waters 'Creeping monism: The judicial trend towards interpretative incorporation of human rights treaties' (2007) 107 Columbia Law Review 628.
30 Y Shany 'How supreme is the supreme law of the land? Comparative analysis of the influence of international human rights treaties upon the interpretation of constitutional texts by domestic courts' (2006) 31 Brooklyn Journal of International Law 341.
31 Kigula (n 1 above) 12.
32 Kigula (n 1 above) 13-14.
33 Kigula (n 1 above) 14-15.
34 Kigula (n 1 above) 15.
35 Communication No 469/1991.
36 Kigula (n 1 above) 16.
37 As above.
38 Kigula (n 1 above) 18-19.
39 Kigula (n 1 above) 33.
40 Kigula (n 1 above) 23.
41 Kigula (n 1 above) 20.
42 Kigula (n 1 above) 22.
43 Kigula (n 1 above) 18.
44 Kigula (n 1 above) 17.
45 Resolution 1996/15.
46 Kigula (n 1 above) 61.
47 Kigula (n 1 above) 63.
48 Kigula (n 1 above) 91-96.
49 Application 14038/88.
50 Kigula (n 1 above).
51 Kigula (n 1 above) 78.
52 Kigula (n 1 above) 78-80.
53 Kigula (n 1 above) 97.
54 Kigula (n 1 above) 80.
55 See Francis Kafantayeni v Attorney-General, Constitutional Case 12 of 2005 (judgment of 27 April 2007). The court referred to foreign law extensively and to the jurisprudence of the Inter-American Court on Human Rights.
56 For a detailed discussion of some of the jurisprudence of the African Commission on Human and Peoples' Rights on the death penalty, see L Chenwi Towards the abolition of the death penalty in Africa: A human rights perspective (2007) 66-73 103-105 158-165.
57 R Reed 'Foreign precedents and judicial reasoning: The American debate and British practice' (2008) 124 Law Quarterly Review 253.
58 JJ Zehnder 'Constitutional comparativism: The emerging risk of comparative law as a constitutional tiebreaker' (2007) 41 Valparaiso University Law Review 1739 1767.
59 See, eg, Paul Kawanga Ssemwogerere & Others v Attorney-General Constitutional Appeal 1 of 2002, where the Supreme Court refers to judgments from several Commonwealth countries.
60 See generally S Choudhry (ed) The migration of constitutional ideas (2006).
61 Kigula (n 1 above) 12.
62 RR Zubaty 'Foreign law and the US Constitution: Delimiting the range of persuasive authority' (2007) 54 UCLA Law Review 1413 1440.
63 Kigula (n 1 above) 10.
64 Kigula (n 1 above) 11.
65 Kigula (n 1 above) 27-29.
66 Kigula (n 1 above) 30.
67 Kigula (n 1 above) 31.
68 Kigula (n 1 above) 34-37.
69 Kigula (n 1 above) 39.
70 Kigula (n 1 above) 39.
71 Kigula (n 1 above) 46.
72 Kigula (n 1 above) 45-46.
73 (1993) 2 LRC 279.
74 Kigula (n 1above) 48.
75 Kigula (n 1 above) 58.
76 Kigula (n 1 above) 57-58.
77 Kigula (n 1 above) 59.
78 Kigula (n 1 above) 60.
79 Kigula (n 1 above) 59 (emphasis in original).
80 A Hamann & HR Fabri 'Transnational networks and constitutionalism' (2008) 6 International Journal of Constitutional Law 481 501.
81 R Singh 'Interpreting bills of rights' (2008) 29 Statute Law Review 82-99 94.
82 Arnould (n 26 above) 686.