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The learned Judge considered issues 1 and 2 together. After referring to
the various arguments from both parties, he emphasised that the point for
determination by the court is the constitutionality of the death penalty in
Uganda and the constitutionality of the various provisions of the laws of
Uganda which prescribe the death penalty. He referred to articles 24, 22
(1) and 44 of the Constitution. He said that the Uganda Supreme Court in
Abuki’s case
9
meant that the words in article 24 must be interpreted in the
context of the Constitution in which they are used, but not in the abstract,
when the supreme court said that the words in article 24 must be given
their ordinary and plain meaning. He went on to argue that article 22 (1)
recognises the death penalty in execution of a sentence passed in a fair
trial. This section is an exception to the enjoyment of the right to life.
Therefore, he said, the death penalty is constitutional. He referred to
Makwanyane’s case and Mbushuu’s case when considering whether
article 24 which outlaws any form of torture, cruel, inhuman and
degrading treatment or punishment also outlaws article 22 (1). He stated
that in Makwanyane’s case the Constitutional Court of South Africa found
the death penalty to be inherently, cruel, inhuman or degrading and
therefore unconstitutional and that under the Constitution of South
Africa, the right to life is unqualified. As for Mbushuu’s case, the court of
Appeal of Tanzania also found the death penalty inherently cruel,
inhuman or degrading but still constitutional because it is saved by article
30 (2) of the Tanzania Constitution and that the right to life under the
Tanzania Constitution is qualified just like under the Uganda
Constitution. He referred further to Catholic Commission For Justice And
Peace, a case of the supreme Court of Zimbabwe which held the death
penalty constitutional. In Kalu vs the State
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articles 22 (1) and 24 of the
9
Attorney General vs Salvatory Abuki, Constitutional Appeal No.1 of 1998, Oder JSC.
10
A Nigerian Case