Death penalty upheld despite tide against capital punishment
Publish date: 14 January 2020
Issue Number: 186
Diary: A Matter of Justice
Category: A Matter of Justice
There is a tragic story behind the Uganda supreme court’s rare approval of the death penalty in a recent case.
At its centre are Bashasha Sharif, described by the court as a ‘teacher of Islamic religion’, and his nine-year-old student, Isma Sekajja. Sekajja’s father suspected that Sharif was having an affair with his (the father’s) younger sister, the boy’s young aunt, Nalunga Zam (17), who lived alone in one of her father’s village houses. In fact, Zam’s father had threatened to have Sharif arrested for ‘defilement’, Uganda’s legal term for child rape.
One afternoon, the boy’s mother asked him to take some money to Nalunga Zam. When he reached her house, she wasn’t home. Instead, he found his teacher, Sharif, there.
Sharif was afraid that the boy would tell his family that he had met Sharif at the house, and so he decided to kill his young student. According to medical evidence, he used a sharp instrument to cut the child into pieces. For example, he cut out some of Sekajja’s ribs and extracted the boy’s heart. All the body parts were then hidden in different places in the bush to remove the evidence. They were only discovered later when Sharif, who admitted he killed the boy, pointed them out.
Convicted and sentenced to death by the high court, Sharif asked the court of appeal to set aside the death penalty. When he lost at that court, he turned to the supreme court Bench, saying the appeal judges ‘erred in law when they upheld the death sentence which was illegal’.
Sharif’s legal team argued that there were three ‘stages’ to the test whether the discretionary imposition of the death penalty was lawful. Because the two lower courts did not apply the second and third stages of this test, the sentence had been unlawfully imposed.
According to counsel, the first stage was that capital punishment should be imposed only ‘in the most exceptional and gravest of cases’. The second was that the judge should find there was no prospect of reform and the third, that the court should be satisfied that ‘the object of punishment would not be achieved by imposition of a lesser sentence’.
The state argued that Sharif’s case indeed ‘fell within the definition of the rarest of rare cases’. In addition, all the mitigating and aggravating circumstances had been considered by the appeal court.
In its decision, the supreme court quoted a telling paragraph from the trial court: ‘It is general knowledge that acts of this nature against children have been on the rise in this country. The courts ought to send a clear message that atrocities against children would fetch the full force of the law without any mercy.’
Sharif was a first offender who had six children as well as other dependents. In addition, he was remorseful and pleaded guilty, which saved the court’s time. However, the appeal judges had pointed out that Sharif had not explained why he had dismembered the boy’s body, something that had increased the trauma suffered by the bereaved family.
The supreme court said the death sentence was controversial and that many countries had abolished it completely. Uganda fell into the category of those that kept capital punishment on the statute books. Until Parliament scrapped the death penalty, the courts ‘will continue enforcing the death penalty’. Although the death penalty was no longer mandatory, courts would exercise their discretion in line with guidelines established in a 2009 supreme court judgment on the issue.
The court also said that the ‘tests’ described by Sharif’s counsel were attempts to limit the application of death penalty even though it was a lawful sentence in Uganda. Courts had to exercise their discretion and pass the death penalty when they saw fit. The power to abolish capital punishment lay with Parliament and not the courts, so judges had to be careful lest they be accused of usurping Parliament’s powers.
Sentencing courts had to follow the principles already established. If judges’ discretion were to be limited by foreign or domestic case law, this would as unconstitutional as the mandatory death sentence had been.
The appeal court had clearly taken the mitigating factors into account and cases cited by Sharif’s counsel in which less severe sentences had been imposed were, according to the supreme court, not similar to those in this matter. The lower courts had also been justified when they took into account the rise of ‘acts of this nature against children’ and that the public needed to know that atrocities against children would not be tolerated. As far as the supreme court was concerned, the crime ‘depicts a depraved person devoid of all humanity’, and there was no good reason to interfere with the sentence.
Serious though the supreme court approval of the death penalty in this case may be, it is unlikely that Sharif will be executed. The state has not executed any convicted person in the past 20 years or more. President Yoweri Museveni appears increasingly ambivalent about the issue of capital punishment, but a 2009 supreme court decision has held that after a condemned prisoner has spent three years on death row, the death penalty is automatically converted to life imprisonment.