Uganda: Anti-homosexuality Bill -- Time to denounce death penalty

In January, the Supreme Court of Uganda delivered a judgement in the case of Susan Kigula & 417 Others, in which it rejected the claim that the imposition of the death penalty violates the Constitution of Uganda.

However, rather than leaving matters there, the Supreme Court went on to urge the legislature to "reopen debate on the desirability of the death penalty in our Constitution, particularly in light of findings that for many years no death sentences have been executed yet the individuals concerned continue to be incarcerated on death row without knowing whether they were pardoned, had their sentences remitted, or are to be executed."

Despite this encouragement from the Supreme Court, the chances of such a debate transpiring anytime soon seem unlikely: The political agenda in any country is rarely dictated by actual need and more by political will. However, the likelihood of a legislative debate on the merits of capital punishment has recently dramatically increased with the tabling of a Private Members Bill by Ndorwa West MP David Bahati, titled The Anti-Homosexuality Bill 2009. The Bill fundamentally undermines numerous human rights and has rightly been denounced by a group of 17 local and international human rights organisations, who have called for its immediate withdrawal. One of the gravest provisions in the Bill is the new offence of "aggravated homosexuality," which states that anyone who commits the offence of homosexuality against a person under the age of 18 years, against a person with a disability or when the offender is HIV positive shall be liable on conviction to suffer death. This provision is unjustifiably draconian in nature but will nonetheless provide the first opportunity since the Supreme Court ruling earlier this year for the legislature to engage in a discussion as to the merits of the death penalty. Should the legislature engage in such a debate, it must denounce the provision of "aggravated homosexuality" and with it the use of the death penalty as a legitimate form of punishment in the Ugandan criminal justice system. Put simply, there is no credible justification for the retention of the death penalty. It is widely accepted that any form of punishment should be aimed at the protection of society, the reformation of the wrongdoer, and the provision of retribution for the victim. Yet, the death penalty notoriously fails to achieve any of these aims.

First, the death penalty does not act as a deterrent to the commission of crimes. This is illustrated by comparing criminal statistics of countries where the death penalty is in force with those where it has been abolished. If a government wishes to deter crime, it should invest in education, development and improving law enforcement. Secondly, the death penalty eliminates the possibility for any level of reformation for wrongdoers by cutting short their lives. Thirdly, the inherent fallibility of humans means that no administrative system of the death penalty can be free from wrongful conviction and execution of the innocent. One innocent life wrongfully sentenced to death is one life too many. Finally, rather than providing a form of retribution, more often the death penalty has exacerbated the pain and anger of a victim's family and created new victims in the form of the wrongdoers' families. When considering this issue, Uganda must also look to its neighbours.

14 countries in Africa are now abolitionist for all crimes and a further 18 are abolitionist in practice. Indeed, just last month in Kigali at a conference by the African Commission on Human and Peoples' Rights for Central, Eastern and Southern Africa, 50 participants representing African Union member states and national human rights commissions made a direct appeal to African countries to banish the death penalty from their books. There is much to criticise in the Anti-Homosexuality Bill. However, it is hoped that at the very least, the tabling of the Bill will provide the necessary impetus for a constructive debate in the legislature on the desirability of the death penalty in Uganda. It is the hope of this writer that the outcome of such a debate will be the abolition of a form of punishment that is clearly out of step with evolving standards of decency generally advocated across the international community.

Source: Opinion-- Mr Barrie Sander is a legal officer, African Prisons Project, Uganda, Oct. 25, 2009