Uganda’s Court of Appeal Sets Out the Test for the Discretionary Application of the Death Penalty

Kakubi Paul and Muramuzi David v Uganda (Criminal Appeal No. 126 of 2008)

In a significant judgment handed down in the case of Kakubi Paul and Muramuzi David v Uganda (Criminal Appeal No. 126 of 2008) on 22 August 2016, Uganda’s Court of Appeal overturned the death sentences imposed on the Appellants and substituted sentences of 20 years' imprisonment. The Appellants, two brothers, had been convicted of murder and were sentenced to death on 20 October 2008.

The Court of Appeal set out the test for the discretionary application of the death penalty stating "the death penalty should only be imposed in circumstances which establish the gravest of extreme culpability and where a Court determines that individual reform and rehabilitation consequent to a custodial sentence would be impossible. This assessment should only be made upon consideration of expert evidence".

This appears to be the first time an appellate court in Uganda has set out the circumstances in which the death sentence can be imposed, since the Supreme Court judgment in Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 03 of 2006), which upheld the decision of the Constitutional Court that an automatic death sentence, without affording a defendant the chance to mitigate is unlawful.

The Appellants were represented by Alex Chakmakjian and Tanya Murshed pro bono at the Supreme Court in May 2015. The case was remitted back to the Court of Appeal as the Court had failed to consider the original appeal against sentence. At the hearing before the Court of Appeal, Alex and Tanya filed written submissions on sentence through Evolve: Foundation for International Legal Assistance referring to the appropriate test for the discretionary application of the death penalty according to international law.

The case has already been relied upon in the re-sentencing hearings of Susan Kigula beneficiaries in the High Court of Kampala on 25 and 26 August 2016.