Celebrating the Love of Friends in a Loving World

Celebrating the Love of Friends in a Loving World
Red Roses for You, My Sweet Friends ... Total Love.

My Sweet Friends

My sweet friends,

We grow closer to each other;

When we interact together and share ideas;

The common faith that we share,

Binds our hearts in one accord.

For sweet friendships last a life time,

When built on mutual respect, humility and understanding;

Throughout each different season,

We find we are one in life.

Sweet friends are there through times of grief;

And times when hope is gone;

Always there with encouragement;

So we can carry on.

I thank the Lord for you,

My true and faithful friends;

To fondly speak with you, whether we agree or not,

On this, our beloved blog;

For sweet friends will stay, no matter what;

Giving support.

Together, our hearts and minds truly unite;

With the amazing love of sweet friends.

In the spirit of true friendship,

Best wishes, my sweet friends;

May the Lord bless you abundantly.

I remain, yours truly,

B.B. Bakampa.

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Monday, August 16, 2010

May the State Kill?

By Bakampa Brian Baryaguma
bsaint3@gmail.com


Introduction
On 29th March, 2009, I received for a gift, the second edition of the book, MAY THE STATE KILL?, written by Tarcisio Agostoni, mccj, published in 2002 by Paulines Publications Africa. It was from my friend and classmate, Mr. Kigenyi Emmanuels, who urged me to read it thoroughly well in order to have a better appreciation of the ancient and continuous debate on the death penalty. After shelving it for over a year, I finally found ample time to read it this vacation––and I passionately did.

In 144 pages, Father Agostoni poses a stiff challenge to the death penalty, although he concedes that it “is a controversial issue”. The man of God first declares the Church’s right and duty to challenge what he terms as “the law of death”. A self-appointed mouthpiece of the Church, the Comboni Missionary and Verona Father calls it “a violation of the basic and God-given human right, the right to life,” and says that this is against the love of neighbours.

In the foreword, Patrice Vahard, a lawyer and former director of Amnesty International Regional Office for Africa, states that, “As a Christian Father, Agostoni goes beyond the legal, philosophical and sociological perspective to add the religious foundation of the necessity to abolish the death penalty.” Patrice makes scathing remarks against those in favour of retaining the death sentence, observing that, “For many advocates of the death penalty, the life of others is a game of chance”; that “The state kills to appease society and compensate relatives of victims.” He passionately appeals for the abolition of the death penalty, averring that one of our challenges today “…is to equip our society with tools to achieve human centred development” and accuses the death penalty of “contradicting” it. Patrice calls upon states not to kill but instead promote life and uphold human rights.

Merits of the book
While Father Agostoni discusses at length several aspects of the death penalty, his cardinal message is that it doesn’t deter crime. He contends that the judicial system is marred with many loopholes and irregularities that lead to the execution of many innocent people. Whereas I believe the latter contention, I respectfully disagree with the former assertion. I have had the benefit and privilege of learning from experience that it is actually deterrent. Briefly, this is my story.

On 20th December, 1988, my grandfather (Israel Rwabutoga) was attacked and murdered in cold blood by his neighbours over a prolonged land wrangle (lasting over thirty years) which he had won in different courts of law; his latest victory being in the High Court on 23rd, December, 1987 before Acting Justice I. Mukanza. His murderers even swore to wipe his family from the surface of the earth! They looted all his hard-earned property, his five wives were rendered widows and all his children orphaned!

Thereafter my family embarked on hunting down and arresting his killers together with the police and army. Two of those arrested and imprisoned (Medadi Tindarwesire and William Gurikacha), were charged with murder and tried in the High Court of Uganda. They were found guilty, convicted and sentenced to suffer death by hanging on 21st January, 1992, by Justice J.W.N. Tsekooko. On appeal to the Supreme Court, their conviction and sentence were confirmed by a panel of three judges (Justices Manyindo, Oder and Platt). Their fate was sealed when the Advisory Committee on the Prerogative of Mercy, advised the President that they deserved to suffer death. Their death warrants were duly signed and in 1999 they were executed alongside other prisoners.

Meanwhile, all this time their relatives back at home were swearing to avenge their predicament by killing all of us. But other people warned them against it reminding them of the fate of their colleagues. This fear has kept us secure from our neighbours’ cruelty and tyranny. The punishment by death of those men was and still is a blessing to us because ever since their demise, we have lived happily and securely on our land. Therefore, the statistics and comparative studies quoted and relied on by Father Tarcisio, in a bid to undermine the deterrent effect of the death penalty, are simply a joke and utterly baseless to victims like us. We can comfortably call ourselves “beneficiaries” of the death penalty. For us what matters is that one of our own was ruthlessly murdered, his killers apprehended and punished according to law, as a result of which we are now living safely. Hence, this is “a specific influence on the amount or trend of the kind of crime [the death penalty] is supposed to deter people from committing” the truth of which Farther Tarcisio and those who share his opinion, are attempting to negate. No amount of words, however eloquent, would convince anyone in our position that the death penalty “is evil, an infirmity of the law, an indignity to the individual” as strongly argued by him.

The author advocates for the use of life imprisonment as a more effective deterrent. He states that, “The ethical basis of punishment is that of rehabilitation and reform. If this is the ethical basis of punishment, detention for life in case of murder and other grave offences according to the law, is the only punishment which can match these needs. Death penalty looks very much like revenge, which is not Christian. Imprisonment offers the advantage, already hinted on that the prisoner may reflect on his own ways of life. Moreover, it implements both aims intended: that of protection of society from the offender and that of an attempt to re-educate him and eventually to prepare him for the future.” I entirely agree.

The killing of a murderer doesn’t resurrect the dead person and experience has taught me that it doesn’t take away the pain of the bereaved relatives. My own father (who was very instrumental in the arrest, trial and hanging of Medadi and William) and the entire family, still mourns and laments grandpa’s death. The blood of his killers didn’t and can’t compensate for the loss––but their anger is understandable. For that matter, I don’t believe in the death penalty as being sufficient compensation for injured feelings and loss of a member of society. The solution therefore, doesn’t lie in taking away another life. I am convinced that life imprisonment is the best form of punishment suitable for heinous crimes like murder. The agony and anguish of spending the rest of one’s life in prison and the social stigma faced by other relatives is enough to deter other people from committing the same offence. Besides, I believe that offenders can repent and change and that they should be given a chance to do so.

In disputing assertions that the death penalty is deterrent, Father Tarcisio asks how many people hear of and witness executions so that they can fear committing crimes. Whereas this is a valid criticism, I think it is misguided because even then few people have ever witnessed or experienced murders first hand. Majority get information from the media and stories. Hence, it would be unfair and indeed foolhardy to expect that people can only believe the deterrent effect of the death penalty when they see offenders being executed. I support abolition of the death penalty because we need to overcome individualism by setting broader social interests, especially considering that no man is an island; with the guiding principle being the nurturing of a culture of life. In short, my view is that whereas the death penalty is deterrent, life imprisonment is a more effective punishment which should be adopted and relied on.

The position in Uganda today
In Uganda, the death penalty is provided for in the Constitution and various parliamentary enactments for different offences. In some of them, like the Penal Code, it was hitherto a mandatory punishment for crimes such as murder upon conviction. The struggle to abolish the death penalty here is promising. It was given a new lease of life by the judgment of the Supreme Court in the case of Attorney General Vs Susan Kigula & 417 Others, Constitutional Appeal No. 3 of 2006, where the Court by a majority of 6:1 held on 21st January, 2009, that “…all those laws on the statute book in Uganda which provide for a mandatory death sentence are inconsistent with the Constitution and therefore are void to the extent of that inconsistency.” While noting that “…the right to life is so fundamental that there should be no rush to extinguish it,” the Court made the following orders:

“1. For those respondents whose sentences were already confirmed by the highest Court, their petitions for mercy under article 121 of the Constitution must be processed and determined within three years from the date of confirmation of the sentence. Where after three years no decision has been made by the Executive, the death sentence shall be deemed commuted to imprisonment for life without remission.

“2. For those respondents whose sentences arose from the mandatory sentence provisions and are still pending before an appellate Court, their cases shall be remitted to the High Court for them to be heard only on mitigation of sentence, and the High Court may pass such sentence as it deems fit under the law.”

On the question of how long should a convict spend on death row pending execution, the Court held that, “…to hold a person beyond three years after the confirmation of sentence is unreasonable.”

The Susan Kigula case was a landmark decision in Uganda’s quest to abolish the death penalty. Its effect is that provisions of law prescribing the death penalty for diverse offences have to be construed as prescribing the maximum sentence, leaving discretion in the court in a particular case to impose the death sentence or to impose a lesser sentence. The Supreme Court held that in as much as and to the extent that any law providing for mandatory death sentence precludes judicial inquiry into factors pertaining to assessment of appropriate sentence and it denies a person convicted of a criminal offence to plead in mitigation of sentence, it is unconstitutional. A few days after delivery of this judgment, the media reported that about thirty people had survived death. This is remarkable.

Some critics have said that the Court’s refusal to declare the death sentence as cruel, degrading and inhuman and therefore unconstitutional, has shattered the hopes of ever abolishing it. But this is not only false but is also unfair to Court because its duty was to interpret and apply the Constitution and not to rewrite it in any way. The Court was asked to determine whether the Constitution, as the basic law of the country, authorizes the prescription of the death penalty by law; not to outlaw it as that power is only vested in Parliament.

A ray of hope
When delivering a paper on “UPHOLDING THE DEATH PENALTY: THE WAY FORWARD”, to Makerere University students on 3rd April, 2009, retired Supreme Court judge, Justice Joseph N. Mulenga (who was part of the coram that heard and determined the case), described the Court’s interpretation in this case as “…a very significant shift.” Justice Mulenga, an abolitionist himself, advised those against it “…to continue not only to lobby the legislature but also to sensitize the public in whose name the legislature has continued to retain the penalty.” He said that, “…the decision in Susan Kigula Case should not be a source of despair but an inspiration for further effort to ensure total elimination of the death penalty from Uganda’s criminal justice system.”

Clearly, the decision in this case is a ray of hope that there is light at the end of the tunnel. In fact, even the media has reported the Commissioner General of Prisons as saying that His Excellency the President promised him never to sign any more death warrants for anybody again, although the President has not come out to either confirm or dispute it. All in all, these are silver linings in our dark clouds.

Conclusion
So if the question, May the State Kill?, were put to me, I would answer boldly that, “NO. It may not kill.” Dear reader, how and what would be you answer to it? Lastly, I thank you very much, Kigenyi, for giving me the book. May God bless you abundantly.