The appropriateness of the death penalty as a punishment for even extremely violent murder has been raised at the Supreme Court in Kampala. Members of Uganda’s apex court were considering the case of a 63-year-old woman who murdered and dismembered her husband. Though she was originally condemned to death, the five Supreme Court justices have replaced that sentence with a 30-year jail term. Their judgment illustrates the continuing conflict in the courts of Uganda about the place of the death penalty and the circumstances under which it should be imposed. It also shows the close attention trial courts need to pay to the balance between mitigating and aggravating circumstances, and to the sentencing guidelines, if they are to get the punishment correct.
Read the judgment
The facts of the case before Uganda’s Supreme Court were just about as bad as they could be.
The accused, Aharikundira Yusitina, murdered her 65-year-old husband and when family and others asked where he was she pretended that she did not know. She even told their daughter that he “had other women” and might be with one of them.
For two days everyone searched for him and eventually the woman was pressurized to report that he was missing. During the subsequent search they found part of his body some distance away. His throat had been cut and his arms and legs were missing. When the authorities searched their home, they first had to force the woman to unlock their bedroom. Inside they found the man’s mattress and some blood soaked cloth.
The couple’s relationship seemed to have been strained in the time immediately before he was killed. The husband had retired from work on a tea estate and the court accepted evidence that he returned home after his official retirement only to find that the wife had sold some cows and some land belonging to him and had also taken some of his pension money.
Even the trial court judge seems to have been shocked by the facts of the case.
The judge acknowledged that the death penalty was no longer compulsory in a case of murder, and that the presiding judge should “exercise discretion” about the appropriate sentence to impose. However, he wrote, “what message would this court send out to society if a spouse is found guilty of killing other spouse from their bedroom in cold blood when there is no violence from the deceased.
“Should I release her to enjoy the fruits of bumping off the deceased. I answer in the negative.
“Dismembering a husband and father of one’s children from one’s bedroom calls for meting out a serious punishment whether the convict is young or old. In the circumstances of this case, I sentence the accused to suffer death in a manner prescribed by law.”
When the case came to the Court of Appeal, that court did not interfere with the death sentence, saying unless it could be shown that the trial judge flouted any sentencing principles, the sentence would have to stand – even if the appeal judges would have passed a different sentence.
But the Supreme Court took a different view, pointing out that because the death penalty was no longer mandatory, the trial judge had to consider a number of factors in reaching a proper sentence.
Since a 2006 constitutional decision, trial courts should have been considering mitigating factors in all murder cases, and so the Supreme Court in this case had to ensure that mitigation had been taken into account in both courts below.
The most important mitigating factors in this case was that the accused was a first offender, had been on remand for three years, was aged 63 with six children who “needed her attention”.
In the view of the Supreme Court, these factors had not been taken into consideration by the trial judge who appeared to have focused solely on the aggravating features of the case.
The Court of Appeal likewise failed to re-evaluate the mitigating factors. Where the trial judge had not done so, the Court of Appeal had an automatic duty to apply its mind to these issues.
The Supreme Court then concluded: “From the foregoing, we find that the Court of Appeal erred in law when it failed to re-evaluate and re-consider the mitigating factors before it came to its conclusion.” In a case where the trial judge and the court of first appeal ignored circumstances to be considered while sentencing, the Supreme Court was entitled to interfere but could only do so where the original sentence was “manifestly excessive” and where sentence “exceeds the permissible range”.
According to Uganda’s sentencing guidelines, said the court, sentences for murder could range from 30 years up to the death penalty, depending on the mitigating and aggravating factors.
Recapping recent cases in which one partner had killed the other, the court quoted from one of its recent decisions saying that “the death sentence should be passed in very grave and rare circumstances”.
Was this such a case? The woman “brutally murdered her husband and cut off his body parts in cold blood”, but she was a first offender and was “of an advanced age”. In addition, “she did not bother court on second appeal regarding her conviction and displayed remorsefulness. (She) was the surviving spouse and mother of six children.”
Weighing up the aggravating and mitigating factors, the court said that “in the interest of consistency” it was of the view that the death sentence should be set aside and a sentence of 30 years be imposed instead.
It’s a case quite shocking in its facts, but it illustrates the close attention a trial court needs to pay to the balance between mitigating and aggravating circumstances to get the sentence right. It also illustrates, however, that this apex court is generally reluctant to approve the death penalty. If you consider the sentencing guidelines quoted by the court, with the sentence for murder starting at 30 years and going up to the death penalty, you could well conclude that in this case the accused was given the lightest sentence possible for murder – and that the mitigating factors taken into account by the five justices must have weighed very heavily with them indeed.
- Newsletter, Judicial Institute for Africa (Jifa), 17 January 2019