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Discussions on the death penalty always raise troublesome moral issues, and evoke strong emotional responses. Recently, Uganda's Constitutional Court rejected an appeal by death-row inmates to outlaw capital punishment, but ruled that laws requiring the imposition of the sentence are illegal and must be rewritten.
According to media reports, in the first ever case of its kind in Africa, the Constitutional Court declared unconstitutional the death sentences on all 417 prisoners on death row. It ruled that the automatic nature of the death penalty in Uganda for murder and other offences amounted to inhuman punishment as it did not provide the individuals concerned with an opportunity to mitigate their death sentences.
The 400-plus inmates brought their unprecedented appeal to the Constitutional Court Uganda's second-highest court - in January 2005, arguing that capital punishment amounts to cruel and degrading treatment that is prohibited by the Constitution.
Several Ugandan human rights activists have been demanding that the death penalty be abolished. However, there are many who feel that it should continue.
Central to this debate has been the issue of whether the death penalty has helped reduce sexual crimes against children. Supporters of the move to abolish capital punishment have been saying for long that child abuse should carry a penalty of life imprisonment instead.
The Defilement Act - which legalised death penalty for child abusers 13 years ago - came at a time when there was a sharp rise in attacks on children, some of the infants. Parents and child rights activists saw it as an opportunity to curb the runaway rates of sexual crimes against children.
The law also came into effect at a time when there was rising concern about the HIV/AIDS pandemic, with Uganda being one of the hardest-hit African countries. Proponents of the Act point to the fact that teenagers and little girls are easy prey to older men's sexual advances, especially since they have no bargaining powers. The law was also seen as a means to cut down on teenage pregnancies, with the age of consent being raised from 14 to 18.
In effect, though, the Act had little impact. Attacks on minors have risen, with the victims getting ever younger. In February 2005, Margaret, 3, underwent a major operation at Mulago, Referral Hospital in Kampala to fix her uterus, which was ruptured by a man in his 20s. There are reports of sexual attacks on very small children almost daily.
Besides, legal practitioners say that the death penalty is one of the major drawbacks to implementing the Defilement Act. The maximum penalty acts as a deterrent to stringent sentencing.
Some of the victims also tend to frustrate the justice system. Young girls, who have had babies as a result of the abuse, are led to believe that they would be 'sacrificing' the fathers of their babies. Others are prevailed upon not to press charges because the offenders are close to their families or are minors themselves.
In 2003, for example, a 15-year-old girl undermined the case against her defiler - a 30-year-old man -- even though the baby she carried to the witness box was practically a replica of the accused. As she was a key State witness, the case was thrown out. The girl's mother says that the man had seduced her daughter, made her pregnant and abandoned her after she was thrown out of school. When he was arrested, he started sending her messages promising to resume the relationship. Meanwhile, the girl's mother is taking care of both her daughter and her grandchild.
Those opposing the death penalty say that the law has led to a sharp increase in the number of capital sentencing cases tried by the High Court. More than half the offenders, prison authorities say, face charges of child sexual abuse. Also, the process of disposing of death cases takes very long, and justice is defeated because victims have grown up and may even have even distanced themselves from the case.
So far, not a single offender has been handed death penalty for raping a minor. The only judge to have handed down what can be regarded as a stiff sentence is Justice David Wangutusi. In January 2005, he sentenced a polygamous father to 40 years in jail for repeated sexual abuse of his two children aged I I and 13.
That there is some merit in the concern of the legal officers is borne out by cases where parents reduce their daughters' ages as a way of seeking revenge on boys or men they have failed to extort money from.
However, children's rights activists have been arguing strongly that such isolated incidents cannot be an excuse for tampering with the Defilement Act. They say that the death sentence is a necessary deterrent for potential abusers. They point to the damage girls suffer as a result of forced sex. Even when girls consent to sex, doctors say, the bodies of those under 18 years are not mature enough to handle sex and pregnancy.
Activist David Mukholi believes that lowering the sentence to life imprisonment will lead to offenders being released back into the community, only to abuse more children.
— NewsNetwork
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