Uganda Conducts Resentencing Hearings in the Wake of the Kigula Decision

Our guest blogger, Tanya Murshed, is the Uganda Project Director for the Centre of Capital Punishment Studies and is a practicing barrister at 1 Mitre Court Buildings in London.

In April 2013, I left my practice in London for eight months to volunteer for the Centre for Capital Punishment Studies’ (CCPS) Capital Mitigation Project in Kampala. CCPS is based at the University of Westminster in London and undertakes numerous pioneering activities within the field of the death penalty and penal research.

The CCPS Uganda Capital Mitigation Project was started in 2011, in the aftermath of the landmark Supreme Court Judgment of Attorney General v. Susan Kigula and 417 others, which abolished the mandatory death penalty. The Supreme Court decided two main points of law. Firstly, for all those who had been sentenced under the mandatory death sentence regime, their death sentences were to be commuted to life imprisonment without remission if they had waited three years or more for the executive to process their petition of mercy, following confirmation of their conviction by the Supreme Court. Secondly, those individuals who were still in the process of appealing their capital conviction would have their cases remitted back to the High Court for re-sentencing. The individuals affected by this aspect of the ruling are known as the “Kigula beneficiaries.” Accordingly, sentencing judges were given the discretion to impose the death penalty or some other form of punishment on the basis of mitigation put forward by, or on behalf of the defendant.

When I arrived in Uganda, approximately 60 individuals had gone back for mitigation since the judgment in 2009, in a somewhat haphazard way. The re-sentencing process had proved more difficult than anticipated, as many of the files were in different courts around the country and some of the judges who presided over the original trials had since retired or died. The Project was able to assist in a number of those initial cases, leading to the release of some inmates, and fixed term sentences for others. However, some of the sentences passed attracted much criticism for leniency and inconsistency. A Kigula Task force, formed in 2012, decided to adopt a more systematic approach to the re-sentencing process for the remaining beneficiaries by introducing special mitigation sessions where judges would apply formal Sentencing Guidelines.

It was clear from visits to Luzira Prison in Kampala, where all of the Kigula beneficiaries were located, that we were the only project trying to assist the remaining beneficiaries who had been held in the condemned section without a sentence for many years.

Having forged a new partnership with the Uganda Law Society and Justice Centres Uganda, we approached the Kigula Task Force to see how we could assist.  A special session was planned for all Kigula cases whose files had been sent back to the High Court. Ten judges, ten defense advocates and ten prosecutors were selected to participate in the mitigation and sentencing of 136 beneficiaries. Our project was heavily involved in this process and we were identified as a key stakeholder by the Kigula Task Force.

We provided assistance in a number of ways, including obtaining secretarial support from the Office of the High Commissioner for Human Rights (OHCHR) so that case files could be photocopied for all parties and acting as a liaison between the prisons and the courts.  We provided training to lawyers and judges in the principles of mitigation and international sentencing practice, and collected mitigating evidence through our student interns at Makerere Law School on behalf of the inmates.

We also acted as amicus curiae by providing written representations on the legal issues affecting the sentencing of Kigula beneficiaries. The re-sentencing exercise was clearly a complicated one and a number of issues arose for consideration. One contentious matter was the relevance of post-conviction mitigation. Some of the prisoners had languished on death row for as long as 20 years and were inevitably different from the people they were on the day they were convicted, having undertaken several rehabilitative courses in prison.  We also assisted the judges with the definition of the ‘rarest of the rare’ case; the relevance of mental health problems (both pre and post-conviction); the sentencing of offenders who were minors at the time of the offense; whether the beneficiaries should be considered still on remand for the purposes of sentencing and the approach to sentencing victims of domestic violence who had murdered their spouses. These issues were novel to many judges and assistance was vital to ensuring the fairness of proceedings.

Notably, we piloted a scheme of Pre-sentence and Social Inquiry Reports and mental health assessments for every inmate appearing for re-sentencing.

Pre-sentence reports are used in other jurisdictions and indeed are mandatory in some countries for the most serious offenses. It was clear from observations at the Kampala High Court that judges were not being provided with sufficient background information about a defendant prior to sentencing.  Even after the launch of the first official Sentencing Guidelines in June 2013, which imposed a duty on the defense and prosecution to provide background information about an offender, detailed information was not being presented by either advocate. Importantly, any information put forward was of limited value to the court, as it was not sufficiently independent.

In conjunction with the Uganda Law Society, we obtained funding for social workers from the Democratic Governance Facility for the Ministry of Gender, Labour and Social development to complete these reports. There were two groups of workers: the first group conducted interviews with the inmate and produced a pre-sentence report. These interviews focussed on obtaining information from the offender regarding his/her background; his/her progress in prison and the reasons for his/her offending behavior.  They also consulted various official documents such as medical reports and prison reports in order to address medical issues, progress and behavior in prison. The social workers conducted an independent assessment of the offender’s thinking, behavior and capacity to reform which was contained in the report.

The second stage of the exercise involved district social workers, also from the Ministry of Gender, who made inquiries in the offenders’ home villages, in order to gain further information about their background and to ascertain whether the offenders could be re-integrated into the community or re-located if released. These social workers provided Social Inquiry Reports.

With respect to the mental health reports, we felt that these were of considerable importance for various reasons. International law prohibits the imposition of the death penalty on anyone suffering from mental illness or learning disability at the time of conviction, sentence, or execution. Furthermore, a person cannot be deemed incapable of reform without a psychiatric report.  Most inmates had not been examined by a psychiatrist on entry to prison and any previous assessments were completely out of date. We were also concerned that many of the beneficiaries were suffering from death row syndrome, having been in the condemned sections for years. These assessments were carried out by a consultant psychiatrist whose reports addressed not only mental health issues and learning difficulties, but medical problems as well.

Out of the 136 people that went for re-sentencing, 15 individuals were released, nine were given death sentences; one was given a Minister’s Order due to minority status; four were referred to a psychiatric facility, 22 were given life sentences and 85 were given fixed terms of imprisonment.

The session was a success in many ways. Apart from the 9 individuals who had their death sentences confirmed (which have since been appealed), 127 individuals finally left the condemned section of Luzira prison and some were released unconditionally back into the outside world after many years. It was a joyous occasion for a considerable number of the beneficiaries. However, it was clear from the hearings and subsequent judgments that judges applied an inconsistent approach to sentencing and that there were a number of issues that still had not been resolved. Some judges took irrelevant matters into account; there was a failure by some to understand the relevance of mental health issues at the sentencing stage; there was an inconsistent approach to post-conviction mitigation, a lack of understanding of the ‘rarest of the rare’ standard and a number of age-related issues. The pre-sentence reports received a mixed reception, with one judge describing them as ‘very very useful’ and some disregarding them altogether. With respect to the lawyers we trained, most of them welcomed our guidance and support but there were one or two who outright rejected it to the dismay of many of the inmates.

The second special session involving 93 individuals is due to start today. In order to improve upon the last session and ensure greater consistency, we held a workshop with judges, lawyers and other stakeholders to discuss the issues that arose in the last session as well as the importance of pre-sentence reports and mental health assessments. Further training has been provided for the social workers to improve upon the quality of pre-sentence and social inquiry reports on this occasion, which we hope will become an integral part of capital sentencing practice.

We hope that we will be able to continue to make progress and assist the judiciary and advocates in Uganda into the future, building capacity.  Although it took many years to start the re-sentencing process for most of the Kigula beneficiaries, that process has now begun and different parts of the judicial system are working together in ways not previously seen.  This will be of benefit not only to the Kigula beneficiaries, but to the Ugandan justice system as a whole. We have certainly been in a privileged position, able to assist not only the inmates but also advocates and the judiciary who have welcomed our support.  Looking to the future, we are hopeful that we will be able to continue to build capacity and contribute further to issues surrounding access to justice and law reform.