Communication 365/2008 – Byagonza Christopher (represented by Dr. Curtis Doebbler and
Ms. Margreet Wewerinke) v Republic of Uganda
Summary of the Complaint
1. On 17 November 2008, the Secretariat of the African Commission on Human and
Peoples’ Rights (the Secretariat) received a Communication from Dr. Curtis
Doebbler and Ms. Margreet Wewerinke (the Complainants), who are legal
representatives of Mr. Byagonza Christopher (the Victim) against the Republic of
Uganda1
2. The Victim is a Ugandan citizen who is alleged to be detained in the Condemned
Section of the Jinja Main Prison in Uganda.
3. It is alleged that the Victim was sentenced to death on 28 January 1994 by the High
Court of Uganda and has been on death row for the past 15 years. He appealed
against the death sentence at the Court of Appeal and his appeal was dismissed. In
August 1999, he further appealed to the Supreme Court, which also dismissed his
appeal in March 2000. On 28 December 2000, his petition for clemency was denied
by the President of the Republic of Uganda.
4. The Complainants allege that the Victim was still a minor at the time of his arrest,
conviction and sentence after being accused of committing murder, attempted
murder and aggravated robbery and that he was denied due process during his
initial trial. The Complainants further allege that as a minor, the Victim did not
understand the proceedings and no care was taken to ensure that he was given
special treatment accorded to minors. As a consequence of an ineffective civil
1
The Republic of Uganda is a State Party to the African Charter on Human and Peoples’ Rights.
2
administration system, the Victim could not prove his minor status and was tried
as an adult and was subsequently condemned to death.
5. The Complainants allege that for the 15 years that the Victim has been on death
row, he has been without access to information or possibilities for legal
consultation. The conditions of detention are very poor and his mental and
physical health is at serious risk. The Victim has been denied adequate medical
care, good food and good hygiene in prison and all these factors contribute to the
Victim’s failing health. . In addition, the anxiety resulting from facing the death
sentence has had a devastating effect on his mental health and there is no
counseling available to the Victim to deal with this effect.
6. The Complainants allege that the Victim is indigent and is unable to afford legal
consultation and the government has not provided such, except independent
NGOs who give advice to him.
Articles alleged to have been violated
7. The Complainants allege violation of Articles 1, 2, 4, 5, 7(1), 9(1), 16(1) and 16(2) of
the African Charter.
8. The Complainants request the African Commission on Human and Peoples’ Rights
( the Commission) to find the government of
Uganda responsible, to bring an
end to the suffering of the Victim, and to compensate the Victim for his pain and
suffering and to pay the Victim’s legal representatives all the cost and expenses
associated with bringing this action.
3
Procedure
9. The Secretariat received this Communication on 17 November, 2008, during the
44th Ordinary Session of the Commission and decided to be seized thereof.
10. By letter of 20 January 2009, the Complainants informed the Secretariat that the
Supreme Court of Uganda made a ruling that may result in the execution of the
Victim, Byagonza Christopher and requested for provisional measures to prevent
the execution of the Victim.
11. By letter and Note Verbale dated 23 January 2009, the Secretariat informed the
parties that the Commission was seized of the Communication and requested both
parties to make submissions on Admissibility within three (3) months.
12. By letter to the President of Uganda dated 28 January 2009, signed by the
Chairperson, the Commission requested that the Government of Uganda adopts
provisional measures in accordance with Rule 111 of the Rules of Procedure of the
Commission, to prevent irreparable harm being done to the Victim.
13. By Note Verbale dated 10 March 2009, the government of Uganda informed the
Commission that consultations are ongoing regarding the Commission’s request
for provisional measures on the Communication.
14. By letter of 20 April 2009, the Complainants forwarded their submission on
Admissibility and the Secretariat acknowledged receipt by letter dated 22 April,
2009 and also informed them about the Government’s Note Verbale of 10 March
2009.
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15. By letter of 29 April 2009, the Respondent State forwarded its submission on
Admissibility. The Secretariat acknowledged receipt by Note Verbale dated 30
April 2009, and by letter forwarded to the Complainants. .
16. On 14 May 2009, the Complainants sent supplementary submissions on
Admissibility to the Secretariat and requested for an oral hearing at the 45 th
Ordinary Session. The Secretariat acknowledged receipt and by letter and Note
Verbale dated 4 June 2009 the Secretariat informed the Complainants and the
Respondent State that at its 45th Ordinary Session, the Commission decided to
defer consideration of the Communication to the 46th Ordinary Session.
17. By letter and Note Verbale dated 30 November 2009, the Secretariat
informed the Complainants and the Respondent State that at its 46th
Ordinary Session, the Commission deferred consideration of the
Communication to its 47th Ordinary Session.
18. By letter and Note Verbale dated 4 June 2010, the Secretariat informed the
Complainants and the Respondent State that at its 47th Ordinary Session, which
took place in Banjul, The Gambia from 12-26 May 2010, the Commission
considered the Communication on Admissibility and declared it Admissible.
19. By an email dated 27 August 2010, the Respondent State requested the Secretariat
to forward to it information touching on the Pleadings (Court, Tribunal, and
Commission), documentation outlining the Complaint and the rules of conduct of
the matters before the Commission to enable the Respondent State to reply to the
claims made.
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20. By Note Verbale dated 4 September 2010, the Respondent State acknowledged
receipt of the Secretariat’s Note Verbale dated 4 June 2010, and requested for time
to make its submission on the merits and for an oral hearing.
21. By Notes Verbales dated 7 September 2010, and 13 September 2010 respectively,
the Secretariat re-sent the Complaint to the Respondent State and granted the
request for an extension of time of one month for the Respondent State to submit
its arguments on the Merits.
22. By letter dated 22 September 2010, the Secretariat informed the Complainants of
the Respondent State’s email dated 27 August 2010, requesting for additional
information.
23. By email dated 23 September 2010, the Secretariat acknowledged receipt of
the Respondent States email dated 27 August 2010, and informed it that the
requested documents were not submitted by the Complainants in the initial
Complaints and that all the documents submitted by the Complainants
were attached to the Secretariat’s Note Verbale dated 7 September 2010.
24. By letter dated 27 September 2010, the Complainants informed the
Secretariat that the Pleadings documents are public record and as such the
Respondent State should be able to obtain them and requested the
Secretariat to ensure that the documents are made available to the
Complainants as soon as the Respondent State obtains them.
25. By letter and Note Verbale dated 4 October 2010, the Secretariat
acknowledged receipt of the Complainants’ letter dated 27 September 2010,
and forwarded same to the Respondent Sate.
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26. By Note Verbale dated 13 November 2010, the Respondent State forwarded
its submissions on the Merits of the Communication and requested for an
Oral Hearing at the 49th Ordinary Session.
27. By Letter and Note Verbale dated 9 December 2010, the Secretariat
acknowledged receipt of the Respondent State’s submission on the Merits
and forwarded the same to the Complainants. The Secretariat also informed
the Complainants and the Respondent State that the Commission at its 48th
Ordinary Session decided to defer consideration on the Merits of the
Communication to its 49th ordinary Session.
28. By letter dated 22 February 2011, the Complainants acknowledged receipt
of the submissions of the Respondent State on the Merits.
29. By letter dated 19 April 2011, the Complainants forwarded their arguments
on the Merits and confirmed its availability to attend the oral hearing at the
49th Ordinary Session.
30. By letter dated 24 April 2011, the Secretariat acknowledged receipt of the
Complainants’ submission on the Merits and by Note Verbale dated 1 May 2011,
the Secretariat forwarded the Complainants’ submissions on the Merits to the
Respondent State.
31. By letter and Note Verbale dated 16 May 2011, the Secretariat informed the
Complainants and the Respondent that the Commission at its 49th Ordinary
Session deferred consideration on the Merits of the Communication to the 50th
Ordinary Session.
32. By email dated 29 October 2011, the Secretariat informed the Complainant that the
delegation of Uganda at the 50th Ordinary Session requested for a postponement of
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the oral hearing. By email dated the same date, the Complainants acknowledged
receipt.
33. By letter and Note Verbale dated 9 November 2011, the Secretariat informed both
parties that the Commission at its 50th Ordinary Session deferred consideration on
the Merits on the Communication to its 51st Ordinary Session as a result of the
pending oral hearing.
34. By Note Verbale dated 6 March 2012, the Secretariat informed both parties that the
oral hearing would take place in the afternoon of either the 2nd or 3rd day of the
private session of the 51st Ordinary Session.
35. Following requests from the Respondent State for an oral hearing at 49th Ordinary
Session and subsequent postponements of the oral hearings at the request of the
Respondent State, the Commission held an oral hearing at its 51st Ordinary Session.
The Oral Hearing was only attended by the Complainants.
36. By Note Verbale dated 21 May 2012, the Secretariat requested the Respondent State
to forward the High Court and Supreme Court Judgments as well as the medical
report proving the Victim’s age.
The Law on Admissibility
Complainants’ Submission on Admissibility
37. The Complainants state that, in compliance with the provisions of Article 56(1) of
the Charter, the authors have been indicated and they have locus standi before the
Commission. The Complainants also state that they are the authorized legal
8
representatives of the Victim, Mr. Byagonza. This was attested to by a statement
issued by the Victim.
38. The Complainants state that the provision of Article 56(2) has been complied with.
The Complainants state that this Communication alleges enumerated and
documented violations of the African Charter by the State, which is a State Party to
the African Charter.
39. The Complainants state that the Communication has not been written in a
disparaging language aimed at the Respondent State.
40. The Complainants also state that this Communication is based on eye witness
evidence and well documented reports of credible international human rights
bodies, as such; it has complied with the provisions of Article 56(4) of the Charter.
41. The Complainants aver that this Communication has complied with Article 56 (5)
of the African Charter. According to the Complainants, all the domestic remedies
available in Uganda have been exhausted.
42. The Complainants also state that Article 56(6) of the Charter, which provides that
Communications brought before the Commission must have been brought within
a reasonable time after domestic remedies have been exhausted, has been complied
with. The Complainants state that the domestic remedies were exhausted when the
Uganda Supreme Court ruled against the Victim’s joint appeal, against the death
penalty in the Susan Kigula and 416 Others case on 12 January 2009. The
Secretariat received the Communication in November 2008.
43. The Complainants aver that Article 56 (7) has also been complied with because this
Communication has not been settled by any international body.
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Respondent State’s Submission on Admissibility
44. According to the Respondent State the Communication has not fulfilled the
provisions of Article 56(5) of the Charter, regarding exhaustion of local remedies,
and should be declared inadmissible.
45. The Respondent State argues that the Constitution of Uganda establishes the
Uganda Human Rights Commission whose functions include, inter alia:-
a) Investigation on its own initiative or on a complainant, of violation of any
human right;
b) The visiting of places of detention and related facilities with a view to
inspection and assessment of the conditions of inmates;
c) The establishment of a continuing programme of research, education and
information to enhance the respect of human rights;
d) The recommendation to Parliament of effective measures to promote
human rights;
e) The creation and sustenance within society of an awareness of the
provisions of the Constitution.
46. The Respondent State went further to state that Article 53 of the Constitution of the
Republic of Uganda empowers the Human Rights Commission (HRC) with the
authority of a Court to issue summons, or other orders requiring the attendance of
any person before it, to question any person, require any person to disclose
information, or to commit persons for contempt of its orders.
47. The Respondent State submits that the HRC also has the authority, where it is
satisfied that there has been an infringement of a human right, to order the release
of a detained person, order compensation or any other legal remedy or redress.
10
48. The Respondent State also informs the Commission of the provision of Article
55(4) of the Constitution which provides for matters which are beyond the remit of
the HRC’s jurisdiction and these matters are: matters pending before a court or
judicial tribunal; matters involving the relations or dealings between the
Government and the Government of any foreign State or a matter relating to the
exercise of the prerogative of mercy.
49. The Respondent State states that the mechanisms of the HRC is the proper
framework within which the Victim could have pursued his complaint and have
his case properly addressed. The Respondent State further states that this matter is
not pending before any court or tribunal, it does not involve relations between
States and neither does it deal with the prerogative of mercy.
50. The Respondent State also submits that the HRC has the power to order release,
compensate or provide any other legal remedy, all of which cover the remedies he
seeks in the Communication. According to the Respondent State Article 54 of the
Constitution provides that the HRC shall be independent and shall not be subject
to the direction or control of any person or authority. This, the Respondent State
notes, guarantees that the HRC is capable of handling the Victim’s matter in a fair
and even handed manner without any external influence.
51. The Respondent State submits that there have been several instances where the
HRC has found wayward State agents liable for the violation of human rights and
the Government of Uganda has dutifully complied with the HRC’s directives.
52. The Respondent State requests that the Commission should decline to entertain the
Communication, because it is not in compliance with Article 56(5) of the African
Charter on exhaustion of local remedies.
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Complainants’ Additional Submission on Admissibility
53. The Complainants in their supplementary submission on Admissibility, argue that
as stated by the representative of the Uganda Human Rights Commission (HRC) in
the public session of the Commission on 13 May 2008, the Human Rights
Commission’s decisions are only recommendations and the Human Rights
Commission’s decisions in practice and especially in relation to prisoners, have not
been followed or implemented with regularity. The submission of the Respondent
State that local remedies had not been exhausted because of non referral to the
National Human Rights Commission of Uganda was according to the
Complainants flawed.
54. The Complainants further argue that domestic remedies have been exhausted by
the Victim’s joint appeal to the Uganda Supreme Court in the Susan Kigula and
416 Others case in which a decision was handed down on 21 January 2009. A court
decision cannot be set aside by the Human Rights Commission.
Commission’s Analysis and Decision on Admissibility
55. The Admissibility of Communications within the African Commission is governed
by the requirements of Article 56 of the African Charter. This Article provides
seven requirements which must be met before the Commission can declare a
Communication admissible. If one of the conditions/requirements is not met, the
Commission
will
declare
the
Communication
inadmissible,
unless
the
Complainant provides sufficient justifications why any of the requirements could
not be met.
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56. In the present Communication, the Complainants claim that this Communication
fulfils all the requirements of Article 56 of the African Charter. On the other hand
the Respondent State submits that the Complainants have not fulfilled the
requirements of Article 56(5) and as such, the Commission should declare the
Communication inadmissible. The Commission will thus analyse the arguments of
both parties based on the provisions of Article 56 of the Charter.
57. Article 56(1) of the African Charter states that ‘Communication relating to Human
and Peoples’ Rights… received by the Commission shall be considered if they
indicate their authors even if the latter request anonymity…’ The Communication
received by the Commission indicates the authors as Dr. Curtis Doebbler and
Margreet Wewerinke as legal representatives of Mr. Byagonza Christopher. The
authors and the Victim of the Communication are stated and the African
Commission therefore holds that the requirement under Article 56(1) of the
African Charter is fulfilled.
58. Article 56(2) of the African Charter states that ‘Communications…received by the
Commission shall be considered if they are compatible with the Charter of the
Organization of African Unity or with the present Charter.’
The present
Communication alleges that Articles 1, 2, 4, 5, 7(1), 9(1) and 16(1) and (2) of the
African Charter have been violated. The Communication is brought against the
Republic of Uganda, which is a Party to the African Charter, and alleges the
violation of the rights of Mr Byagonza Christopher, a citizen of Uganda
incarcerated in Uganda. The Communication states that the alleged events
happened in 1991 and Uganda became a party to the African Charter in 1986. The
Commission therefore holds that the requirements under Article 56(2) have been
fulfilled.
59. Articled 56(3) of the African Charter states that ‘Communications …received by
the Commission shall be considered if they are not written in disparaging or
13
insulting language directed against the State concerned and its institutions or to
the Organisation of African Unity now African Union (AU)’. The present
Communication is not written in disparaging or insulting language directed to the
State, its institutions or the AU and for these reasons the Commission holds that
the requirements of Article 56(3) have been complied with.
60. Article 56(4) of the African Charter states that ‘Communications relating to human
and Peoples’ Rights… shall be considered if they are not based exclusively on
news disseminated through the mass media’ There is no evidence in this
Communication which indicates that the allegations contained therein are based
exclusively on news disseminated through the mass media. The Complainants
submit that the Communication is based on eyewitness evidence, as well as
documented reports of credible international human rights bodies. The
Respondent State does not challenge this assertion. For these reasons, the African
Commission holds that the requirement of Article 56(4) has been fulfilled.
61. Article 56(5) of the African Charter states that ‘Communications relating to human
and Peoples’ Rights… shall be considered if they: are sent after exhausting local
remedies, if any unless it is obvious that this procedure is unduly prolonged’. The
Respondent State submits that the
Complainants have not exhausted local
remedies as the Complainants did not approach the Uganda Human Rights
Commission which is endowed under Article 532 of the Constitution of Uganda
with the power of a Court, to issue summons or orders requiring the attendance of
any person before it, to question any person, require any person to disclose
information or commit persons for contempt of its orders. The Respondent State
further submits that the Human Rights Commission also has authority, where it is
satisfied that there has been an infringement of a human right, to order the release
of a detained person, order compensation or any other legal remedy or redress.
2 Article 53(1) of the Constitution of the Republic of Uganda
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62. The Respondent State further argues that under Article 55(4) of the Constitution of
Uganda, matters which are beyond the Human Rights Commission’s jurisdiction
are matters pending before a Court or Judicial Tribunal, matters involving the
relations or dealings between the Government and the Government of any foreign
State or a matter relating to the exercise of the prerogative of mercy. With these
reasons, the Respondent State submits that the Uganda Human Rights
Commission is a proper framework within which the Complainants could have
pursued their complaint and had their case properly addressed.
63. The Complainants submit that in relation to Article 56(5) of the Charter, the
Commission’s attention should be drawn to the fact that, the Victim was sentenced
to death 15 years ago on 28 January 1994 by the Ugandan High Court. He then
appealed against the death sentence to the Court of Appeal, which dismissed his
appeal on 19 August 1999. He later appealed to the Supreme Court, which
dismissed his appeal on 6 March 2000 and on 28 December 2000 his petition for
clemency was denied.
64. The Complainants further submit that in reference to the State Party’s arguments
that the Victim should have approached the Uganda Human Rights Commission
in order to exhaust local remedies, the Commission’s attention should be drawn to
the fact that, as stated by the representative of the Uganda Human Rights
Commission3, the Uganda Human Rights Commission’s decisions are only
recommendations and its decisions, in practice and especially in relation to
prisoners, have not been followed or implemented with regularity. The
Complainants therefore submit that the Victim has exhausted all domestic
remedies by his joint appeal to the Uganda Supreme Court in the Susan Kigula and
416 Others case that was brought by the Ugandan Law Firm of Ssempebwa,
Katende & Co., whose decision was handed down on 21 January 2009 and the
Victim no longer has access to domestic remedies for the violation of his rights.
At the 45th Ordinary Session of the African Commission on Human and Peoples’ Rights held in Banjul, The
Gambia. May 2009.
3
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65. The issue to be determined at this stage is whether the Complainants have
exhausted local remedies as prescribed by Article 56(5) of the Charter. In the
Commission’s decision on Admissibility, in the case of Institute of Human Rights
and Development in Africa and Interights v Mauritania4, the Commission
reaffirmed the principle that ‘the generally accepted meaning of local remedies, which
must be exhausted prior to any communication/complaint procedure before the African
Commission, are the ordinary remedies of common law that exist in jurisdictions and
normally accessible to people seeking justice’. In a similar decision on Admissibility in
the case of Alfred B. Cudjoe/Ghana5, the Commission held that ‘the internal
remedy which article 56(5) refers, entails remedy sought from courts of a judicial
nature, which Ghanaian Human Rights Commission is clearly not’.
66. From the facts of the case and from its previous decisions of a similar nature, the
Commission holds that the Victim having been sentenced to death by the High
Court on 28 January 1994 and having appealed the death sentence at the Court of
Appeal and the Supreme Court of Uganda, which denied his appeal in March 2000
and finally his petition for clemency being denied in December 2000 illustrates that
the Complainants have exhausted all the local remedies of a judicial nature of
which the Uganda Human Rights Commission is clearly not; and as such the
requirements of article 56(5) has been fulfilled. Indeed a purposive reading of
Article 55(4) of the Constitution of Uganda cannot provide powers to the National
Human Rights Commission to effectively overrule a decision reached by a court of
law or by the President of the Republic in the exercise of his prerogative powers
when the National Human Rights Commission has no power to act in matters
which are merely pending before the court or the President.
4 Communication 242/01. Institute of Human Rights and Development in Africa and
Interights/Mauritania
5 Communication 221/98.
Alfred B. Cudjoe/ Ghana.
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67. Article 56(6) of the African Charter states that ‘Communications relating to human
and Peoples’ Rights… shall be considered if they: are submitted within a reasonable period
from the time local remedies are exhausted, or from the date the Commission is seized with
the matter’. The Complainants submit that the Victim has exhausted domestic
remedies with the appeal in his personal case to the Court of Appeal, the Supreme
Court and to the prerogative of mercy and his joint appeal to the Uganda Supreme
Court in the Susan Kigula and 416 Others case against the legality constitutionality
of the death penalty which was decided on 12 January 2009. The Secretariat of the
Commission received this Communication on 17 November 2008. The Commission
notes
that
the
Communication
was
brought
almost two months prior to the decision of the Supreme Court on the questioned
legality of the death penalty in the joint Susan Kigula and 416 Others case; and
further notes that the Complainants submit that the Supreme Court’s decision was
delayed for over two years and as such the Petitioner filed this Communication to
the Commission within a reasonable time from the exhaustion of local remedies.
The Commission, for these reasons, holds that the requirements of Article 56(6)
have been fulfilled.
68. Article 56(7) of the African Charter states that ‘Communications relating to human
and
Peoples’
Rights…
shall
be
considered
if
they:
do
not
deal with cases which have been settled by the states involved in accordance with the
principles of the Charter of the United Nations, or the Charter of the Organisation of
African Unity or the provisions of the present Charter.’ The Complainants state that
this Communication has not been settled by any international body and as such
this requirement has been met. The Respondent State has not objected to this and
there is no evidence before the Commission to show that the Communication has
been settled by another international body. The Commission therefore holds that
this requirement has been fulfilled.
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69. Since all the conditions of Article 56 have been met, the Commission declares the
Communication Admissible.
The Merits
The Complainants’ Submission on the Merits
70. The Complainants allege violation of Articles 1, 2, 4, 5, 7(1), 9(1), 16(1) and 16 (2) of
the African Charter6.
Alleged violation of Article 4 (Right to Life)
71. The Complainants argue that the application of the death penalty is especially
egregious because it has been applied to an individual when there is good reason
to believe he was a minor both at the time of the as well as during his trial. Yet
little attention was paid to this fact and little effort was taken to establish the
veracity of his claim. The result, the Complainants state, has been the sentencing of
a minor to the death penalty and his being placed on death row for almost twenty
years.
72. The Complainants further submit that the African Charter on the Rights and
Welfare of the Child and the UN Convention on the Rights of the Child, expressly
prohibit the death penalty for minors. Article 5, paragraph 3, of the African Charter
on the Rights and Welfare of the Child, unambiguously states that a “death
sentence shall not be pronounced for crimes committed by children.” Similarly,
article 37 (a) of the UN Convention7unambiguously states that “neither capital
punishment nor life imprisonment without possibility of release shall be imposed
6 In the initial Complaint, the Complainants did not allege a violation of articles 1 and 2.
7 UN Convention onthe Right of the Child, 1577 UNTS 3 (1989)
18
for offences committed by persons below eighteen years of age.” In addition the
“Safeguards” guaranteeing the rights of those facing the death penalty, 8adopted
by the Economic and Social Council of the United Nations expressly state in
paragraph 3 that “persons below 18 years of age at the time of the commission of
the crime shall not be sentenced to death”.
73. The Complainants aver that the imposition of the sentence of death penalty
without having taken all reasonable steps to ascertain whether the Victim was a
minor is itself inconsistent with the respect due to the right to life under the
Charter.
74. The Complainants further aver that the Commission has stated in Interights et al
(on behalf of Mariette Sonjaleen Bosch) v. Botswana9,, citing the authority of
additional human rights bodies, that “it is accepted that the death penalty should
be imposed after full consideration of not only the circumstances of the individual
offence, but also the circumstances of the individual offender….”. While allowing
the application of the death penalty in the cited case, the Commission did so only
because it determined that “the courts fully considered all the circumstances.” In
this case, the Complainant has established that some of the most obvious evidence
regarding his personal circumstances—the claim that he was a minor— were not
considered. The failure of the Court and Victim’s lawyers to seek the evidence of
the mother or the local official where the Victim was born when these were always
available, indicate a gross failure to consider the circumstances of the individual
offender. Thus the application of the death penalty by the Respondent State
without having taken all reasonable steps to ascertain whether the Victim was a
minor is itself inconsistent with the respect due to the right to life under Article 4
of the Charter.
8 Annex, UN Doc. E/RES/1984/50 (1984)
9 Interights et al (on behalf of Mariette Sonjaleen Bosch) v. Botswana,para 31
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Alleged violation of Article 5 (Torture and Cruel, Inhumane or Degrading Treatment
and Punishment)
75. The Complainants submit that the death sentence passed against the Victim
when he was a minor or without due investigation of his claim that he was
a minor has led to his detention in death row for almost 20 years, as well as,
his apparent continued subjection to the death sentence. These, according
to complainants, constitute a violation of Article 5 of the Charter.
76. The Complainants submit that the claim of the Respondent State that the
trial court in 1991 carefully considered the issue of the Victim’s age is based
on a judgment and on medical evidence that could not be obtained by the
Complainants and which the Respondent State failed to provide to the
Complainants and to the Commission although communication of such
documents was requested by letter dated 25 September 2010
by the
Commission. As a result, the Respondent State has not placed any evidence
on the record, despite its claim, that the trial court had carefully considered
the issue of the Victim’s age.
77. The Complainants submit that the two attestations10 by witnesses to the
Victim’s birth that are attached to this Communication establish at least the
presumption that the Victim was a minor at both the time he committed the
offence and at the time of his trial. Moreover, as the persons giving these
attested statements were readily available and are still willing to testify, the
failure of either the Victim’s legal counsel or the trial court to make any
10 The Complainants submission states two attestations, when there are three attached to the Complaint.-
from the mother, sister and the official. The Commission did not give any consideration to the evidence of
the sister in relation to the age of the victim considering that the sister was born after the victim.
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attempt to obtain and consider this evidence, draws into question the
fairness of the proceedings concerning a minor and consequently the
imposition of the death penalty on a minor after an unfair trial.
78. According to the Complainants, the above evidence must be understood in
light of the fact that despite requiring birth registrations by law11, a
government study done in May 2008 revealed that “about 4% of births are
registered and of these only 1% have birth certificates, with a general lack of
awareness on birth and death registration”12.
79. The Complainants aver that Article 5, paragraph 3, of the African Charter
on the Rights and Welfare of the Child13, guaranteeing the right to life of all
African children, which Uganda has ratified, unambiguously states that
“death sentence shall not be pronounced for crimes committed by
children”. Similarly, the UN Convention on the Rights of the Child, which
has been ratified by Uganda, states in Article 37, paragraph (a) that “neither
capital punishment nor life imprisonment without possibility of release
shall be imposed for offences committed by persons below eighteen years of
age”.
80. The Complainants further rely on a number of decided cases of the
Commission on purported breaches of Article 5 of the Charter.
The
Commission found cruel, inhumane or degrading treatment or punishment
in violation of Article 5 of the Charter to have taken place when corporal
11 See Ugandan Birth and Death Registrations Act (CAP 309)
12 Justice, Law and Order Sector of the Ugandan Ministry of Justice and Constitutional Affairs, Final Report on the
Integrated Study on Land and Family Justice p. 46 (May 2008)
13 African Charter on the Rights and Welfare of the Child, OAU
Doc. CAB/LEG/24.9/49 (1990)
21
punishment has been used, 14,
against prisoners
held in “deplorable
conditions,” vide CFD v. Sudan and Org. Mondiale Contre la Torture, et al,
v. Rwanda15. , By holding prisoners in overcrowded conditions without
proper hygiene or medical care, the Commission also found that there was
in Malawi African Association, et al, v. Mauritania,16 a similar case.
Moreover, the Commission has held in Media Rights Agenda v. Federal
Republic of Nigeria17that “the term cruel, inhumane or degrading
punishment or treatment is to be interpreted so as to extend to the widest
possible protection against abuses, whether physical or mental”.
81. The Complainants submit that even under a restrictive standard, to subject
an individual to a threat of death when little or no effort has been made to
confirm he is a minor, constitutes cruel, inhumane and degrading
punishment in violation of Article 5 of the Charter. Moreover, to subject an
individual to the threat of execution for approximately 20 years, constitutes
a cruel, inhumane and degrading punishment in violation of Article 5 of the
Charter. In this case the Victim has spent almost 20 years on death row with
the lingering threat that each day might be his last.
82. The Complainants further submit that such a significant delay in carrying
out the death penalty may itself constitute a violation of Article 5. The
Complainants cite the decision of the UN Human Rights Committee in
14 Communication. 236/00 (2003)- CFD v. Sudan.
15 Communication. 27/89, et al, (1996); Org. Mondiale Contre la Torture, et al, v. Rwanda
16 Communication. 54/91, et al at paras. 115-118 (1991) Malawi African Association, et al, v.
Mauritania
17 Communication.224/98 Media Rights Agenda v. Federal Republic of Nigeria, para 71
22
Chisanga v. Zambia18 where it held that “to keep the author in doubt as to
the result of his appeal, in particular by making him believe that his
sentence had been commuted, only to inform him later that it was not, and
by returning him to death row after two years in the long-term section,
without an explanation on the part of the state, had such a negative
psychological impact and left him in such continuing uncertainty, anguish
and mental distress as to amount to cruel and inhumane treatment”.
Alleged Violation of Article 7(1) (Right to Fair Trial)
83. The Complainants state that the most basic constituents of the right to fair
trial are recognized in Article 7, paragraph 1, of the Charter. This provision
states that ‘everyone shall have the right to have his cause heard.’ This right
includes the ‘right to defence.’
84. The Complainants submit that the Victim has been denied a fair trial by the
failure of his legal representatives to adduce evidence of him having been a
minor and the failure of the Court to request such evidence. Indeed, the
Respondent State in its submission to the Commission neither suggests a
date on which the Complainant was born (1 November 1974), nor does it
state the date of his conviction (1 June 1991). Had the Respondent State
done so, it would have had to admit that the Victim was a minor at the time
of his offence based on the accounts of the mother of the Victim and the
local official, both of whom were readily available to the Respondent State
and who could have been compelled to testify by the trial court.
18
Communication 1132/2002, Chisanga v. Zambia, para 7.3
23
85. The Complainants submit that the trial court’s evaluation of the evidence,
based on the material placed before the Commission, shows lack of concern
for the views of the Victim that he was a minor, and this, without any
attempt to obtain evidence from his closest relatives. This indicates a
manifestly arbitrary determination of the Victim’s status as a minor that has
resulted in a denial of justice. The Commission has stated in Interights et al
(on behalf of Mariette Sonjaleen Bosch) v. Botswana19, that where ‘the
court’s evaluation of the facts were manifestly arbitrary or amounted to a
denial of justice’ the Commission is bound to review a trial court’s
determination.
86. The Complainants submit that the two attestations by witnesses to the
Victim’s birth that are attached to the Complainants submission establish a
strong presumption that the Victim was in fact a minor at both the time he
committed the offense and at the time of his trial. Neither of these persons
were called to testify at the Victim’s trial and their evidence was neither
sought or considered according to their attestations. In addition, both
persons in their attested statements emphasized that they are and were
available and willing to testify to the Victim’s age as witnesses to his birth.
87. The Complainants further submit that in these present circumstances the
failure of both the defendant’s legal counsel and the trial court to make any
attempt to obtain or consider such strong evidence draws into question the
fairness of the proceedings concerning a minor and consequently the
imposition of the death penalty on a minor after an unfair trial. According
to the Complainants, this denial of a basic procedural right is inextricably
linked to the Victim’s human rights as a child, to a process that takes into
19 Communication 240/2001-Interights et al (on behalf of Mariette Sonjaleen Bosch) v. Botswana, para.29
24
account his being a minor at the time of the offence. Thus, this denial
constitutes a violation of the Victim’s right to a fair trial in accordance with
Article 7 of the Charter.
Alleged Violation of Article 9(1) (Access to Information)
88. The Complainants state that linked to the Victim’s status as a minor and his
right to a fair trial is his right to be able to receive information. This right is
protected by Article 9, paragraph 1 which reads ‘every individual shall have
the right to receive information’.
89. The Complainants claim that the Victim’s human rights under Article 9,
paragraph 1, were violated because he did not receive adequate legal
advice. The Complainants state that the Respondent State does not refute
the facts provided by the Victim in his attestation in which he states clearly
that ‘I was assigned a lawyer but did not understand his instructions and
was not adequately informed of the proceedings’. The Complainants argue
that indeed, when a child is treated like an adult in judicial proceedings,
there must be an inherent assumption that the child is not adequately
informed about the proceedings. The Complainants therefore submit that
the Respondent State has violated Article 9(1) of the Charter.
Alleged Violation of Article 16 (Right to Health)
90. The Complainants state that the right to health requires that positive steps
be taken by every government to ensure the effective enjoyment of the right
25
to health by all individuals, including prisoners. This obligation is stated in
Article 16, paragraph 2, of the Charter in the following terms:
1. Every individual shall have the right to enjoy the best attainable state of physical and
mental health.
2. States Parties to the present Charter shall take the necessary measures to protect the
health of their people and to ensure that they receive medical attention when they are
sick.
91. The Complainants argue that Article 14 of the African Charter of the Rights
and Welfare of the Child, and Article 24 of the Convention on the Rights of
the Child, protect the human right to health for all children under the
jurisdiction of the Respondent State. The right is also protected in Article 12
of the International Covenant on Economic, Social, and Cultural Rights20,
for all individuals under the jurisdiction the Respondent State.
92. The Complainants further argue that according to the UN Committee on
Economic, Social, and Cultural Rights “in particular, States are under the
obligation to respect the right to health by, inter alia, refraining from denying or
limiting equal access for all persons, including prisoners or detainees … to
preventive, curative and palliative health services21.”
93. According to the Complainants, the Respondent State has violated the
Victim’s human right to health by placing him in unhygienic conditions,
denying him adequate health care including adequate medicine, and
20 International Covenant on Economic, Social, and Cultural Rights ,993 UNTS 3 (1976)
21 General Comment No. 14 (2000), UN Doc. E/C.12/2000/4 (11 August 2000).
26
denying him adequate food22. These allegations are made in an attested
Statement by the Victim that was communicated to the Commission with
the original Complaint.
94. The Complainants state that the Victim’s claims are also consistent with the
reports of the Government of Uganda and independent international
organizations. The Report of the Ugandan government “as at 30th June
2010, states that the total population of prisons stood at 31,127 prisoners
against the approved holding capacity of 13,670, showing that the prisons
held 17,457 prisoners over and above the number of prisoners that they are
meant to hold23.” And the Ugandan Human Rights Commission reported in
2008 that “of the 222 prisons in the country, only 48, (22%), had functioning
healthcare units24”.
95. The Complainants aver that this evidence has been corroborated by the
International Committee of the Red Cross (ICRC) in its 2007 Report that
“overcrowding, compounded by dilapidated prison infrastructure and
delays in the judicial process, continued to affect the wellbeing of detainees
in prisons administered by the Ugandan Prison System.” According to the
Complainants, the ICRC also reports that detainees’ health suffered as a
result of the structural and technical deficiencies of the Ugandan Prison
System’s poor level of health care and the poor coordination of health care”.
22 See Page 11 of 13 of Complainant’s submission
23 P. 80, Ugandan Government Justice Law and Order Sector, Annual Performance Report 2009/2010 (2010)
24 Ugandan Human Rights Commission, 11th Annual Report 9 (2008)
27
96. The Complainants further submit that the Respondent State’s denial of
adequate health care, medical care and adequate food to the Victim violates
the Victim’s right to health.
Respondent State’s Submissions on the Merits
97. The Respondent State denies the allegations made by the Complainants and
submits the following arguments:
98. On the allegation made by the Complainants that the Victim was a minor
when he was convicted, the Respondent State argues that the Constitution
of the Republic of Uganda is the supreme law of Uganda and Article 2(1) of
the Constitution provides that it shall have binding force on all authorities
and persons throughout Uganda. Furthermore, Article 20(2) of the
Constitution enjoins all organs and agencies of government to uphold and
promote the rights and freedoms of individuals and groups.
99. The Respondent State avers that articles 129 and 132 of the Constitution
which established courts of judicature in Uganda as well as the jurisdiction
of the Supreme Court respectively means and implies that once the
Supreme Court has pronounced itself on a matter, the matter stands closed
and the parties (and all persons and authorities) are bound by the decision.
100. The Respondent State submits that the case of the Victim was in
accordance with the Constitution, tried by the High Court, before which he
stood accused of murder, attempted murder and aggravated robbery. He
was found guilty and sentenced to death as per the relevant provisions of
28
the Penal Code Act. He appealed to the Court of Appeal which
subsequently dismissed his appeal and then applied to the Supreme Court
on the following grounds:
a. that the learned justices of the Court of Appeal erred in law when they
confirmed his conviction without properly ascertaining his age; and
b. that the learned Justices of the Court of Appeal erred in law when they
confirmed his conviction and sentence without properly complying with
Section 104 of the Trial on Indictment Decree and Section 95 of the
Children’s merit (sic).
101. The Respondent State further submits that after carefully considering the
Victim’s age, the Supreme Court concluded that the Victim was tried and
sentenced as an adult of 22 years on the basis of the Victim’s own testimony
at the trial, led by his defense counsel during examination in chief and the
Supreme Court stated in its ruling on page 8 that:
…in the instant case the appellant’s evidence clearly indicated that he was
over 19 years of age at the time of the offence. The medical evidence was
to the effect that the appellant was above the age of 21 years. In the end the
Court of Appeal in the instant case fell back on the original evidence that
the appellant was 22 years at the time of his trial and on that basis,
concluded that the appellant was over the age of 19 years at the time the
offence was committed. In light of the evidence which was available
before it and the trial court, we consider that it was unnecessary for the
Court of Appeal to order a medical examination of the appellant in the
instant case25.
25
Criminal Appeal No.43 of 1999 (Christopher Byagonza v. Uganda)
29
102. The Respondent State argues that according to Halsbury’s Laws of
England, 4th Edition, vol 17, paragraph 42, regarding the law on age;
…..age may be proved by various means, including the statement by
a witness of his own age and the opinion of a witness as to the age
of another person, but when age is in issue stricter methods of proof
may be required. In these cases, age may be proved by the
admission of a party….in certain criminal and other cases in which
the age of a person is material, the age will be presumed or deemed
to be what appears to the court to be his age at the relevant time
after considering any evidence available..
103. The Respondent State further argues that, taking into account the above
position of the law and the submissions of both the defense and prosecuting
counsel, the Supreme Court ruled that the issue of the Victim’s age was
properly addressed by both the High Court and the Court of Appeal and
therefore dismissed the appeal.
104. The Respondent State therefore submits that the claim that the Victim was
sentenced to death when he was a minor in violation of Article 5(3) of the
African Charter on the Rights and Welfare of the Child is incorrect and
misconceived. The Complainants’ arguments in respect of the Victim’s age
were properly considered but not accepted by the courts of judicature in
Uganda and the matter stood closed.
105. The Respondent State further submits that the attention of the
Commission is drawn to the fact that when the Victim’s case was decided
by the Supreme Court of Uganda and the sentence was upheld, the matter
30
became subject to the doctrine of res judicata i.e, the principle that a final
judgment of a competent court is conclusive upon the parties in any
subsequent litigation involving the same cause of action. Since the
Commission is not an appellate court vis a vis the Supreme Court of
Uganda, the Commission shall not question the findings and/or the
decision of the Supreme Court.
106. On the issue of legal representation, the Respondent State submits that the
legal representation is a right guaranteed under Article 28(3) (d) of the
Constitution of Uganda. Pursuant to the said provision, the Victim was fully
and well represented by a lawyer during his trial. It is on record that
throughout the entire court process, the Victim was represented by a lawyer
and in the Supreme Court; he was specifically represented by Mr. Blaise
Babigumira and Mr. Francis Bwengye, two of the most able senior and
prominent advocates in Uganda. Moreover, the Government was under a
duty to provide him with a lawyer as required by article 28(3)(e) which
provides that:
“every person who is charged with a criminal offence shall, in the case any
offence which carries a sentence of death or imprisonment for life, be entitled
to legal representation at the expense of the State”
107. The Respondent State submits that the Complainants fail to show in
which respect the lawyers engaged by the Government of Uganda were
wanting or failed to adequately represent the Victim during the court
process. The Complainants have also not shown that the lawyers
represented the Victim against his will or that they displaced those chosen
or engaged by him.
31
108. With regards to the situation after the confirmation of sentence, the
Respondent State argues that all prisoners in Uganda can be accessed by
anyone including relatives, lawyers, religious leaders, friends, human rights
defenders etc at any time during working hours upon request. It is through
this window, one shall presume that the Victim’s representatives were able
and still is able to see and speak to him. No person or authority has barred
anybody from accessing the Victim to offer him the legal advice or
assistance he requires.
109. The Respondent State avers in consequence that the claim that the Victim
lacked adequate representation or that he is not accessing legal services is
baseless and should be dismissed by the Commission.
110. On the issue of the Complainant’s case that the Victim was denied medical
care, the Respondent State argues that all prisoners in Uganda are provided
with medical care through a well established Prisons Health System. The
Respondent State further argues that in all prison institutions there are
infirmaries where prisoners are attended to by qualified medical personnel
on a daily basis. Where a case cannot be managed at the unit level, it is
referred to the Prisons Referral Hospital (called Murchison Bay) at Luzira
Maximum Prison. If the case cannot be managed at this level, it is further
referred to Mulago National Referral Hospital. In addition, prisoners
regularly receive medical attention from medical consultants hired by the
Government who visit the prisons from time to time.
111. The Respondent State submits that whenever the Victim has fallen sick he
has been provided with the appropriate medical care just like any other
32
inmate. His representatives have not provided any proof to the contrary.
Allegations in the Complaint regarding health care are therefore mere
speculations by the Victim’s representatives. Therefore, the claim that the
Victim is not receiving medical care should be dismissed by the
Commission.
112. On the issue of denial of clemency, the Respondent State avers that
clemency is a prerogative of the President of the Republic of Uganda as
stipulated in Article 121 (4) of the Constitution which states that the
President may exercise the prerogative of mercy on the advice of the
Advisory Committee on the Prerogative of Mercy. It is not a must that
clemency will be granted to whoever asks for it. Each case is considered on
its own merits on the basis of the report of the sentencing judge, the views
of the Victim’s family and community, extenuating factors as can be
deduced from the facts of the case, circumstances of the convict, sense of
remorsefulness on the part of the convict etc.
113. The Respondent State submits that in the case of the Victim, the petition
was considered by the Advisory Committee on the Prerogative of Mercy
and was judged as not meriting positive consideration. The issue of age
which the Complainants seem to think was of importance was not taken
into account since the Supreme Court, the final court of appeal on technical
legal issues, had already pronounced itself on it. Therefore, the claim or
insinuation that the Victim’s petition for clemency was not granted because
he lacked legal advice or representation is misconceived and the
Commission should therefore disregard the Complainants’ claim on this
aspect.
33
114. On the issue of the alleged violation of Article 4 of the African Charter, the
Respondent State submits that the death penalty is expressly provided for
under Article 44(1) of the Constitution of Uganda. It provides that:
“no person shall be deprived of life intentionally except in execution of a
sentence passed in a fair trial by a court of competent jurisdiction in
respect of a criminal offence under the laws of Uganda and the conviction
and sentence have been confirmed by the highest appellate court”.
115. The Respondent State further submits that the Supreme Court of Uganda
pronounced itself on the legality of the death penalty in Constitutional
Appeal No. 3 of 2006 between the Attorney General and Susan Kigula and
416 Others and upheld the finding of the Constitutional Court that Article
22(1) recognizes the death penalty as an exception to the right to life. The
Court also held that the death penalty does not amount to torture or cruel or
degrading punishment. Accordingly, the Court upheld the death penalty in
Uganda.
116. The Respondent State avers that in arriving at the above decision, both
Courts took into account the fact that the presence of the death penalty in
Uganda’s law books reflected the sovereign wishes and aspirations of the
people of Uganda, as conveyed in the report of the Constitutional Review
Commission Report of 1993 and the subsequent one of 2004.
117. The Respondent State therefore submits that the Complainants’ claim that
the imposition of the death penalty is a violation of his right to life and of
the provisions of Article 5 of the African Charter is misconceived and
should, therefore, be dismissed. The Respondent State further submits that
34
the Commission may also note that the Victim has since obtained relief from
the Supreme Court of Uganda on 21 January 2009, under the Constitutional
Appeal no. 03 of 2006 (Susan Kigula case above), the Supreme Court
judicially commuted the death sentence of the Victim (and over 170 other
condemned inmates) to life imprisonment and the Victim is due for
discharge on 27 January 2014.
118. On the issue of poor quality food and hygiene, the Respondent State
argues that prisoners in Uganda are fed by Uganda Prisons Service. The diet
mainly consists of maize, beans and vegetables. Occasionally prisoners are
served meat to provide them with the necessary proteins. On demand or on
recommendation of the medical doctor, a prisoner may be placed on special
diet.
119. The Respondent State submits that the Victim is fed just like any other
prisoner and the quality of food is the same throughout the entire Prison
Service and is not different from that found in almost all prisons across the
African Continent. The Complainants have not provided any evidence that
the food served to him is different from that served to other inmates.
120. On the issue of hygiene, the Respondent State submits that all prisoners
are provided with safe and sufficient water on a daily basis and issued with
soap. Toilets and wards are cleaned daily by the prisoners themselves under
supervision. That is why no one has heard of any epidemic in the prison
facilities in Uganda. Therefore, the claim that the Complainant is poorly fed
and that he is exposed to poor hygiene is incorrect and is not backed by any
evidence. It should accordingly be dismissed.
35
121. The Respondent State therefore prays to the Honourable Commission to:
i.
find the entire Complaint misconceived, frivolous and vexatious
and duly dismiss it;
ii.
find that the Republic of Uganda has not violated any rights of the
Victim or any of the provisions of the African Charter;
iii.
find that the Victim and/or his representatives have not provided
any evidence in support of any and all of the claims and allegations
contained in the Complaint;
iv.
rule that the Complainants bear the expenses of the frivolous and
vexatious Complaint; and
v.
order Ms. Margaret Wewerinke and Mr. Doebbler to reimburse the
Government of Uganda for the expenses incurred in the defence of
the misconceived Complaint.
Complainants Response to the Respondent State’s Submissions on the
Merits
122. The Complainants state that the Respondent State has failed to refute the
allegation that the Victim was a minor at the time of his conviction and thus
received a fair trial. The Complainants submit that the stand of the
Respondent State that the Victim’s age was properly determined in
accordance with Ugandan law is apparently based on the text of the
decision of the Supreme Court in Criminal Appeals Case No. 43 (1991)
concerning the Victim.
123. The Complainants state that the Respondent State, in whose control the
text of the said decision rests, has failed to provide a copy of that decision
36
to the Complainants despite their repeated requests and no text of that or
any other judicial decision concerning the Victim are apparently available in
the
public domain. While the decision extensively referred to by the
Respondent State to support its position should be a public document, it is
not found in the Ugandan Legal Information database listing cases of the
Ugandan Supreme Court, which was accessed on 8 September 2010, 13
December 2010, 23 January 2011, and 18 February 2011 with the same
negative results each time26.
124. The Complainants aver that the Respondent State has failed to refute the
allegation that the Victim had inadequate legal representation. The
Complainants argue that it is not disputed that the Ugandan Constitution
requires that the Victim be provided adequate legal representation. The
Victim, however, has indicated that his lawyers did not adequately raise the
issue of him being a child when he committed the offence for which he was
sentenced, and that neither the court nor his lawyers explained the
proceedings to him. The Respondent State has not materially contradicted
any of these claims but has only made general denials, which have
remained unsupported.
125.
The Complainants submit that the Respondent State has failed to refute
the allegation that it failed to protect the Victim’s right to health. The
Complainants argue that on 17 November 2008, after receiving a complaint via a
third party that was communicated directly by the Victim concerning his ill
health and lack of access to medical treatment, a letter was sent by the
26 See http://www.ulii.org/ug/cases/UGSC/
37
Complainants to Mr. J. Byabashaija, the Commissioner General of Prisons,
seeking assurances about the Victim’s health. No response was ever received.
126.
The Complainants argue that the Respondent State’s claim about
clemency are misplaced and submit that the Complainants have made no claim
in relation to his petition for clemency.
Oral Submissions of the Complainants
127.
As new evidence, the Complainants state that they have been told that the
Victim has been transferred to a prison closer to his home. The Complainants
state that they have enquired but have not received written confirmation that the
Victim has been transferred.
128.
The Complainants also state that the Victim has a serious medical
condition; his state of health has deteriorated and he requires medical treatment
which has not been available. The Complainants provided copies of the Victim’s
medical records dated 2007/2008.
129.
The Complainants further state that they have not received any official
notification from the Respondent State with regard to the Respondent State’s
submission that the Victim is due for release in January 2014.
Preliminary Objection
38
130.
Before analyzing the alleged violations of the articles of the Charter, the
Commission will address the preliminary objection raised by the Respondent
State that when the Victim’s case was decided upon in the Supreme Court of
Uganda and the sentence was upheld, the matter became subject to the doctrine
of res judicata. Since the Commission is not an appellate court vis a vis the
Supreme Court of Uganda, the Commission shall not question the findings
and/or the decision of the Supreme Court.
131.
The Commission is of the view that while it accepts that it is not an
appellate court vis a vis the Supreme Court of Uganda, it is the supervisory body
mandated to promote and protect human and peoples’ rights in Africa by virtue
of article 45 of the Charter. It is in this regard that the Commission has
jurisdiction to consider Communications in relation to alleged continuing
violations of the Charter by virtue of articles 47 and 55 of the Charter, after the
State has been given the opportunity to redress the alleged violations in
accordance with its own laws.
The Commission’s Analysis on the Merits
132.
In this Communication, the Commission is called upon to determine
whether the sentencing of a minor to death by the trial courts of the Respondent
State amounts to violations of the Victim’s rights guaranteed under Articles
1,2,4,5,7(1),9(1) and 16(1) and (2) of the African Charter as alleged by the
Complainants. The Commission will accordingly proceed to analyze each of the
articles of the Charter alleged to have been violated by the Respondent State.
39
133.
The Commission will not seek to analyse the alleged violations of article 2
of the Charter because the Complainants have not made any submission on the
said article.
40
Alleged Violation of Article 4
134.
The Complainants submit that the imposition of the death penalty without
having taken all reasonable steps to ascertain whether the Victim was a minor at
the time of the commission of the offence and/or at the time of his trial and
placing him on death row for over 20 years is itself inconsistent with the respect
due to the right to life under the Charter.
135.
The Respondent State has refuted these allegations stating that the death
penalty is expressly provided for under Article 22(1) of the Constitution of
Uganda, arguing that the Victim was tried by the High Court, before which he
stood accused of murder, attempted murder and aggravated robbery. He was
found guilty and sentenced to death as per the relevant provisions of the Penal
Code Act. He appealed to the Court of Appeal which dismissed his appeal and
subsequently appealed to the Supreme Court which maintained his conviction
and sentence in March 2000. His appeal to the prerogative of mercy was further
refused in December 2000. Subsequently the joint application with a number of
prisoners awaiting in death row was lodged, questioning the legality and
constitutionality of the death penalty in Uganda. The Supreme Court of Uganda
upheld the finding of the Constitutional Court in Constitutional Appeal No. 3 of
2006 between the Attorney General and Susan Kigula and 416 Others that Article
22(1) recognizes the death penalty as an exception to the right to life. The
Respondent State submits that the sentencing to death of the Victim was
therefore in accordance with the Constitution of Uganda.
41
136.
The African Charter under Article 4 states that ‘human beings are inviolable.
Every human being shall be entitled to respect for his life and the integrity of his persons.
No one may be arbitrary deprived of this right’.
137.
The question to be asked at this juncture is: does the sentencing of the
Victim to death amount to a violation of Article 4 of the Charter?
138.
The Commission held in SERAC and CESR V Nigeria27 that the right to
life is the most fundamental of all human rights. In International PEN,
Constitutional Rights Project, Civil Liberties Organisation and Interights (on
behalf of Ken Saro-Wiwa Jnr.) / Nigeria28, the Commission held that the
protection of the right to life in Article 4 also includes a duty for the State not to
purposefully let a person die while in its custody.
139.
In the present Communication, the Victim is still under the custody of the
Respondent State, and has not been executed. Furthermore as the Respondent
State’s submission reveals, the Victim has since obtained relief from the Supreme
Court of Uganda on 21 January 2009, under the Constitutional Appeal no. 03 of
2006 (Susan Kigula case above), which has judicially commuted the death
sentence of the Victim (and over 170 other condemned inmates) to life
imprisonment and the Victim is due for discharge on 27 January 2014.
27 Communication 155/96, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social
Rights (CESR) / Nigeria.
28 Communication 137/94-139/94-154/96-161/97 ,International PEN, Constitutional Rights Project, Civil Liberties
Organisation and Interights (on behalf of Ken Saro-Wiwa Jnr.) / Nigeria
42
140.
However, the Complainants’ stated in their submission that ‘neither the
Victim nor his lawyers have received any official notification stating that the
Victim’s sentence has been commuted and that he is due for release.
141.
Considering the circumstances of this case, and more particularly our
findings based on the evidence placed before the Commission that the Victim
was a minor at the time of the commission of the offence and the fact that the
Victim has remained in death row from the date of his conviction by the High
Court on 28 January 1994 until the date of the decision by the Supreme Court in
the Susan Kigula case on 21 January 2009, that is for a period of almost 15 years,
the Commission holds that Article 4 of the African Charter has been violated.
Alleged Violation of Article 7(1)
142.
The Complainants argue that the Victim has been denied a fair trial by the
failure of his legal representatives to adduce evidence of his being a minor at the
time of commission of the offence and of his trial and the failure of the Court to
request such evidence.
143.
According to the Complainants, the Victim supports his claim to have
been a minor at the time of the offense for which he was sentenced to death with
three attestations from himself, his mother, and a local government official. The
Complainants argue that the Victim’s statements were ignored by the Court and
no attempt was made by the Court or even his lawyers to have his mother, sister
or the government official testify, although they attest to the fact that had they
been asked they would have testified that the Victim was a minor at the time of
the offense. The documents provided by all three of these parties consistently
provide that the Victim was born on 1 November 1974 at 10 am, thus making
43
him approximately sixteen (16) and a half years old at the time the offense was
committed.
144.
The Complainants further argue that, a government study done in May
2008 revealed that “about 4% of births are registered and of these only 1% have
birth certificates, with a general lack of awareness on birth and death
registration”29. In this case therefore, the very fact as to whether the Victim was a
minor during his criminal trial in early 1991 should have been at least examined
in more detail to ensure that his best interest were being secured, if indeed he
was found to be a child30.
145.
The Complainants submit that the Trial Court’s evaluation of the
evidence, based on the submission of the Respondent State makes abstraction of
any attempt to obtain evidence from his closest relatives. This indicates that a
manifestly arbitrary determination of the Victim’s status as a minor was made
that resulted in a denial of justice. This denial of a basic procedural right,
according to the Complainants, constitutes a violation of the Victim’s right to a
fair trial in accordance with article 7(1) of the Charter.
146.
The Respondent State contests the arguments presented by the
Complainants regarding the age of the Victim. The Respondent State submits
that the Victim’s age had been properly addressed by all the courts, that is, the
High Court, Court of Appeal and the Supreme Court. The Respondent State
submits that after carefully considering the Victim’s age, the Supreme Court
concluded that the Victim was tried and sentenced as an adult of 22 years on the
29 Justice, Law and Order Sector of the Ugandan Ministry of Justice and
Constitutional Affairs, Final Report on the
Integrated Study on Land and Family Justice p. 389 46 (May 2008).
30 Articles 4, paragraphs 1 and 2, and by article 17, paragraph 2, subparagraph iii (c) of the African Charter on the
Rights and Welfare of the Child, and by articles 3 and 37, paragraph c of the Convention on the Rights of the Child.
44
basis of the Victim’s own testimony at the trial, led by his defense counsel during
examination in chief. Furthermore, the Supreme Court in its judgment concluded
that “the appellant was over the age of 19 years at the time the offence was
committed”. The Respondent State argues that based on the above, the issue of
the Victim’s age was fully and properly considered but was not accepted by the
courts of judicature in Uganda.
147.
The Respondent State submits that the claim that the Victim lacked
adequate representation or that he is not accessing legal services is baseless. The
Respondent State argues that pursuant to Article 28(3) (d) and (e) of the
Constitution of Uganda, the Victim was fully and well represented by a lawyer
during his trial. The Respondent State argues that throughout the entire court
process, the Victim was represented by a lawyer and in the Supreme Court, he
was specifically represented by two of the most able senior and prominent
advocates in Uganda. This has not been challenged by the Complainants.
148.
The Respondent State further argues that the Complainants have also not
shown that the lawyers represented the Victim against his will or that they
displaced those chosen or engaged by him. The Respondent State further
submitted that all prisoners in Uganda can be accessed by anyone including
relatives, lawyers, religious leaders, friends, human rights defenders etc at any
time during working hours upon request and no person or authority has barred
anybody from accessing the Victim to offer him the legal advice or assistance he
requires.
149.
At this juncture, the Commission would have to determine the following
issues which are in contention:
45
1. was the Victim’s age properly determined during the trial to ascertain
whether he was a minor or not?
2. was the Victim adequately informed about the proceedings by his
lawyers or by the Court?
150. According to the Commission's long-standing practice, in Amnesty
International, Comité Loosli Bachelard, Lawyers' Committee for Human
Rights, Association of Members of the Episcopal Conference of East Africa v
Sudan, the Commission held that in cases of human rights violations, the
burden of proof rests on the government. If the government provides no
evidence to contradict an allegation of human rights violation made against it,
the Commission will take it as proven, or at the least probable or plausible31. In
the present case, the burden of proof rests on the Respondent State to prove
firstly that the Victim’s age was properly considered and ascertained by the
Court. Secondly, that the Victim was adequately informed about the
proceedings by his lawyers and/or the court.
151. According to the evidence placed before this Commission, although the
Respondent State argued that the Victim’s age was properly considered by the
Trial Court, basing its arguments on the medical report and the text of the
decision of the Supreme Court, yet it failed to provide a copy of the medical
report and the decision of the Supreme Court to the Commission32, despite
repeated requests from both the Complainants and the Commission. Therefore,
the Commission does not have any evidence relied by the Respondent State to
31 (See, Communications 48/90-50/91-52/91-89/93- Amnesty International, Comité Loosli Bachelard, Lawyers'
Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa / Sudan
32 By Note Verbale dated 21 May 2012, ref: ACHPR/COMM/365/08/UGA/09/439.12, 4 October 2010,
ACHPR/COMM/365/08/UGA/09/624.10
46
substantiate its defence, although in its submission dated 13 November 2010,
large references were made to that judgment of the Supreme Court and a
reference was even given 33which cannot be relied upon ex facie considering that
the reference given for the year 1991 is prior to the date of the first trial before
the High Court in January 1994.
152. Furthermore, the Respondent State while arguing that the Victim had
adequate legal representations as stipulated by the Constitution of Uganda and
that he had prominent lawyers representing him, has failed to prove that the
court or his lawyers adequately explained the proceedings to him, more
specifically in light of the claim of the Complainants that the Victim was still a
child then. The Commission thus agrees with the Complainants that the
Respondent State’s mere denials of the Complainants’ allegations fall short of
the standard of evidence required to support its claim.
153. The Commission notes that the Complainants’ submission that the Victim
was a minor at the time of the trial has been supported by three attestations of
his birth, that is, by the mother, sister and a government official establishing a
presumption that the Victim was a minor at the time the offence was committed,
although due weight cannot be given to the sister’s attestation because she is
much younger than the Victim and cannot testify to his birth. The Commission
further notes that the Victim himself attested that he was not kept informed by
his lawyers; that his lawyers did not adequately raise the issue of him being a
child; that neither the court nor his lawyers explained the proceedings to him.
The Respondent State again has failed to prove the contrary, relying merely on
general denials of the allegations and providing no solid evidence to prove the
contrary.
33 Criminal Appeal case No.43(1991)
47
154. In light of the evidence made available to the Commission and in light of
the Respondent States failure to provide to the Commission any substantial
evidence proving the Victim’s age and proving that the Victim was adequately
informed about the proceedings, due weight must be given to the
Complainants’ allegations in this respect that the Victim, being a minor at the
time of the offence, was not properly informed about the proceedings. The
Commission accordingly holds that a violation of the Victim’s right to a fair trial
under Article 7(1) of the Charter has been substantiated.
Alleged Violation of Article 5
155. The Complainants submit that to subject an individual to a threat of death
when little or no effort has been made in the first place to confirm that he is not
a minor, and moreover, to subject an individual to the threat of execution for
approximately 20 years, as well as, the significant delay in carrying out the
execution constitutes cruel, inhumane and degrading punishment in violation of
article 5 of the Charter.
156. The Complainants cited the case of the UN Human Rights Committee in
Chisanga v. Zambia34, where it was held that ‘to keep the author in doubt as to
the result of his appeal, in particular by making him believe that his sentence
had been commuted, only to inform him later that it was not, and by returning
him to death row after two years in the long-term section, without an
explanation on the part of the state, had such a negative psychological impact
34 Communication No. 1132/2002 , U.N. Doc. CCPR/C/85/D/1132/2002 (2005). Mr. Webby Chisanga v. Zambia,
48
and left him in such continuing uncertainty, anguish and mental distress as to
amount to cruel and inhumane treatment’.
157. The Respondent State having argued that the Victim was not a minor at
the time of the trial has not contested the claim made by the Complainants that a
significant delay in carrying out the death penalty, and in this case a delay of
almost 20 years, constitutes cruel, inhumane and degrading punishment.
158. Article 5 of the Charter states that:
“every individual shall have the right to the respect of the dignity inherent in a human
being and to the recognition of his legal status. All forms of exploitation and degradation
of man particularly slavery, slave trade, torture, cruel, inhumane or degrading
punishment and treatment shall be prohibited”.
159. The Commission would like to draw inspiration from the European Court
judgments. In Soering vs. UK35, the court held that “Having regard to the very
long period of time spent on death row in such extreme conditions, with the
ever present and mounting anguish of awaiting execution of the death penalty,
and to the personal circumstances of the applicant, especially his age and mental
state at the time of the offence, would expose him to a real risk of treatment
going beyond the threshold set by Article 3 of the European Convention on
Human Rights which is the corresponding article to Article 5 of the African
Charter”.
160.
In Al-Saadoon and Mufdhi v UK36, the Court held that “the death penalty
which involved the deliberate and premeditated destruction of a human being
by the State authorities causing physical pain and intense psychological
35
Soering v. the United Kingdom (application no. 14038/88)
36 Al-Saadoon and Mufdhi v the United Kingdom (application no. 61498/08)
49
suffering as a result of the foreknowledge of death, could be considered
inhumane and degrading and, as such, contrary to Article 3 of the European
Convention on Human Rights”.
161. The Commission would also acknowledge the landmark decision of the
Supreme Court of Uganda in Attorney General v. Susan Kigula and 417
Others37 where it held that “to execute a person after a delay of three (3) years in
conditions that were ‘not acceptable by Ugandan standards’ would amount to
cruel, inhumane punishment”.
162. Furthermore, as highlighted by the Respondent State in its submission,
following the above decision, “the Victim has since obtained relief from the
Supreme Court which judicially commuted the death sentence of the Victim and
over 170 other inmates on death row to life imprisonment, and he is due for
release in January 2014”.
163.
The Commission holds that subjecting the Victim to death row while he
was a minor and keeping him there for 20 years amounts to cruel, inhumane
and degrading punishment and violates his right under article 5 of the Charter.
Alleged Violation of Article 9(1)
164. Article 9(1) of the Charter states that “everyone shall have the right to receive
information”.
37 Attorney General v. Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006) [2009] UGSC
6 (21 January 2009).
50
165. The Complainants’ claim that the Victim’s rights under Article 9,
paragraph 1, were violated because he did not receive adequate legal advice.
The Complainants further state that the Respondent State does not refute the
facts provided by the Victim in his attestation in which he states clearly that “I
was assigned a lawyer but did not understand his instructions and was not
adequately informed of the proceedings….��.
166. The Respondent State on the other hand argues that pursuant to the
Constitution, the Victim was provided with prominent lawyers and that
throughout the proceedings he was represented by a lawyer.
167. The Commission would like to state that the government has discharged
its duty by providing the Victim with a lawyer throughout the proceedings. The
onus therefore shifts on the Complainants to prove that the Victim did inform
his lawyers that he did not understand the proceedings. In the absence of any
evidence to show that the Victim did inform his lawyers that he did not
understand their instructions and the proceedings, and in the absence of any
proceedings brought against the lawyer who had appeared for him before the
trial court, questioning their professional aptitude, the Commission cannot find
a violation of
article 9(1) of the Charter based on the above arguments in
respect of his trial before the High Court and eventually of his appeal to the
Court of Appeal and to the Supreme Court .
168. It is in this light that the Commission would like to express its regret that
the Respondent State failed to provide the judgments of the High Court and the
Supreme Court of Uganda on the case of the Victim, as well as, the medical
reports in its possession for our consideration of this Communication.
51
Alleged Violation of Article 16
169. Article 16 of the Charter states that :
1. Every individual shall have the right to enjoy the best attainable state of
physical and mental health.
2. States parties to the present charter shall take the necessary measures to
protect the health of their people and to ensure that they receive medical
attention when they are sick.
170. The Complainants place reliance on the Victim’s affidavit evidence that
the Respondent State has violated his human right to health by placing him in
unhygienic conditions, denying him adequate health care including adequate
medicine, and denying him adequate food. The Complainants refer to the prison
medical report of the Victim and to an attested statement by the Victim and by
one Alex Brandon Kintu, who visited the Victim in prison. The statements
reveal that “the Victim suffers from serious medical conditions and receives
inadequate treatment, prisoners are only provided one meal a day and they lack
basic sanitary necessities such as soap, towel and adequate clothing”38.
171. The Complainants submit that the Victim’s claims are also consistent with
the reports of the government of Uganda and independent international
organizations. The Complainants rely on the Ugandan Government Justice Law
and Order Sector, Annual Performance Report39 which states that as at 30th June
2010, the total population stood at 31,127 prisoners against the approved
holding capacity of 13,670, and the Ugandan Human Rights Commission, 11th
38 Attested Statement of Christopher Byagonza dated 8 November 2008 and attested statement of Alex Brandon
Kintu, dated 19 April 2011.
39
Ugandan Government Justice Law and Order Sector, Annual Performance Report 2009/2010 (2010). Page 80.
52
Annual Report 9 (2008), which states that “of the 222 prisons in the country,
only 48, (22%), had functioning healthcare units.
172. The Complainants also refer to the report of the International Committee
of the Red Cross (ICRC) 200740, which states that overcrowding, compounded
by dilapidated prison infrastructure and delays in the judicial process,
continued to affect the wellbeing of detainees in prisons administered by the
Ugandan Prison System and health suffered as a result of the structural and
technical deficiencies of the Ugandan Prison Systems poor level of health care
and the poor coordination of health care.
173. The Respondent State refutes these allegations stating that all prisoners in
Uganda are provided with medical care through a well established Prisons
Health System with infirmaries where prisoners are attended to by qualified
medical personnel on a daily basis. Where a case cannot be managed at the unit
level, referrals are made and prisoners occasionally are attended to by overseas
medical practitioners. The Respondent State submits that whenever the Victim
has fallen sick, he has been provided with the appropriate medical care just like
any other inmate.
174. The Respondent State further submits that prisoners in Uganda are fed by
the Uganda Prisons Service and their diet mainly consists of maize meal, beans
and vegetables and occasionally served meat to provide them with the
necessary protein. The Respondent State submits that the Victim is fed just like
any other prisoner and the quality of food is the same throughout the entire
Prison Service and is not different from that found in almost all prisons across
the African Continent.
40
ICRC Annual Report 2007 (2008) accessed online at www. icrc.org (14 November 2010).
53
175. The Commission would also like to refer to its decision in Free Legal
Assistance Group and Others v. Zaire41, where it held “that the failure of the
Government to provide basic services such as safe drinking water and electricity
and the shortage of medicine constitutes a violation of Article 16. In Purohit and
Moore v The Gambia, the Commission held that States party to the African
Charter should take concrete and targeted steps, while taking full advantage of
its available resources, to ensure that the right to health is fully realised in all its
aspects without discrimination of any kind42.
176. Furthermore, the Commission in Media Rights Agenda, Constitutional
Rights Project, Media Rights Agenda and Constitutional Rights Project /
Nigeria has noted that the responsibility of the government is heightened in
cases where an individual is in its custody and whose integrity and well-being is
completely dependent on the actions of the authorities43. Moreover, drawing
inspiration from European Court in Khudobin v. Russia (59696/00)44, the Court
held that “while accepting that the medical assistance available in prison
hospitals might not always be at the same level as in the best medical
institutions for the general public, it underlined that the State had to ensure that
the health and well-being of detainees were adequately secured by providing
them with the requisite medical assistance”.
41 25/89-47/90-56/91-100/93 : Free Legal Assistance Group, Lawyers' Committee for Human Rights, Union
Interafricaine des Droits de l'Homme, Les Témoins de Jehovah / DRC
42
Communication 241/01-Purohit and Moore v The Gambia
43 Communication 105/93-128/94-130/94-152/96 : Media Rights Agenda, Constitutional Rights Project, Media Rights
Agenda and Constitutional Rights Project / Nigeria.
44 Case no. (59696/00) Khudobin v. Russia. European Court of Human Rights.
54
177. The Commission would also like to point out that the right to health has
been enshrined in numerous international and regional human rights
instruments, including the African Charter. In its General Comment No.14 on
the right to health adopted in 2000, the UN Committee on Economic, Social and
Cultural Rights sets out that, “the right to health extends not only to timely and
appropriate health care but also to the underlying determinants of health, such
as, access to safe and potable water, an adequate supply of safe food, nutrition,
and housing…”45. In terms of the General Comment, the right to health
contains four elements: availability, accessibility, acceptability and quality, and
imposes three types of obligations on States – to respect, fulfill and protect the
right.
178. The government therefore has a direct responsibility to ensure that
prisoner’s health and well being are protected.
179. The Respondent State having informed the Commission that prisoners in
Uganda are provided with adequate medical care through a well established
Prisons Health System and are also fed by the Uganda Prisons Service, has not
provided any evidence to support this claim. In any event, it is the
responsibility of the Respondent State to adduce sufficient evidence to prove
that its obligation under article 16 has been fulfilled.
180. Therefore after consideration of the various arguments by the
Complainants which is supported by evidence provided to this Commission
and in the absence of any evidence by the Respondent State that could convince
45 General Comment No. 14 (2000) The right to the highest attainable standard of health. E/C.12/2000/4.
55
the Commission of the contrary, the Commission finds a violation of the
Victim’s right to health under article 16(1) and (2) of the Charter.
181. However although the Complainants have not submitted on the alleged
violation of article 1, the Commission has held in various communications that
a violation of any of the articles of the Charter is a violation of Article 146. Thus
the Commission finds that the Respondent State has violated article 1 of the
Charter.
Decision of the Commission
182. For the above reasons, the Commission finds as follows:
I.
that there has been no violation of article 9(1) of the African Charter in
relation to the trial of the Victim and
II.
that the Republic of Uganda has violated articles 1, 4, 5, 7 (1), 16 (1) and (2)
of the African Charter.
183. The Commission decides that the Respondent State should:
I.
release the Victim forthwith considering the circumstances;
II.
provide monetary compensation to the Victim for the pain and suffering
he has suffered as a result of the violations; the manner and mode of
payment of compensation shall be made in accordance with the pertinent
laws of the Respondent State;
46
Communication 147/95-149/96 -Jawara v The Gambia, Communication 313/05,-Kenneth Good v. Botswana
56
III.
In accordance with Rule 112 (2) of the Rules of Procedure of the
Commission, the Respondent State should report on the status of
implementation of this decision within 180 days.
Done in Yamoussoukro, Cote d’Ivoire at the 52nd Ordinary Session of the African
Commission on Human and Peoples’ Rights, held from 9 to 22 October 2012.