A/67/279
constitute a violation of the prohibition of torture and cruel, inhuman or degrading
treatment. 26
45. The Human Rights Committee and national courts have recognized the
existence of the death row phenomenon as a possible breach of article 7 of the
Covenant. 27 The African system provides substantial evidence for this claim. In
Catholic Commissioner for Justice and Peace in Zimbabwe v. Attorney General and
Others (1993) 28 the Supreme Court recognized judicial and academic acceptance of
the existence of the death row phenomenon. The Court held that, having regard to
judicial and academic consensus concerning the death row phenomenon, the
prolonged delays and the harsh conditions of incarceration, a sufficient degree of
seriousness had been attained to entitle the applicant to invoke the protection
afforded by the Constitution under section 15, paragraph 1 (concerning the
prohibition of torture and inhuman or degrading punishment). The Court held that
52 and 72 months, respectively, on death row constituted a violation of the
prohibition of torture and would render an actual execution unconstitutional. In
Attorney General v. Susan Kigula (2009), the Supreme Court of Uganda
acknowledged that a prolonged stay on death row constituted cruel and inhuman
treatment. 29 The Court found that execution after an inordinate delay would be
inconsistent with the Ugandan Constitution which ensures freedom from torture and
cruel, inhuman or degrading treatment or punishment.
46. In 1993, the Judicial Committee of the Privy Council of the British House of
Lords took the approach that length of time is the sole factor in constituting cruel or
inhuman punishment. The case of Pratt and Morgan v. Jamaica 30 created a
presumption that spending more than five years on death row met the criteria
necessary for a finding of death row phenomenon. The Privy Council’s reasoning
was that the domestic appeals process should take approximately two years and an
appeal to an international body should take approximately 18 months. By combining
the two, and adding an appropriate amount of time for reasonable delay, the Court
was able to come up with a timetable of five years. In a number of cases, the Privy
Council relied on the five-year principle as a guide. In Guerra v. Baptiste (1996), 31
it found that four years and ten months under sentence of death, as a result of factors
beyond the prisoner’s control, constituted the death row phenomenon and therefore
a violation. In Henfield v. Bahamas (1997), 32 three and a half years was deemed an
appropriate time limit. Similarly, in the landmark ruling of the Supreme Court of
Uganda in January 2009, 33 the Court held that to execute a person after a delay of
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27
28
29
30
31
32
33
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Inter-American Commission of Human Rights, The Death Penalty in the Inter-American Human
Rights System: From Restrictions to Abolition, OEA/Ser.L/V/II, Doc. 68 (31 December 2011).
For example, Human Rights Committee, decision of 30 July 1993 in Kindler v. Canada,
communication No. 470/1991; Privy Council in Pratt v. Attorney General for Jamaica, Appeal
No. 10.22 (1993); Supreme Court of Canada in Kindler v. Canada (Minister of Justice),
2 S.C.R. 779 (1991).
Judgement of the Supreme Court of Zimbabwe of 24 June 1993 in Catholic Commissioner for
Justice and Peace in Zimbabwe v. Attorney General (4) SA 239 (ZS).
Supreme Court of Uganda in Attorney General v. Susan Kigula and 417 others (Constitutional
Appeal No. 3 of 2006), 2009. See also Court of Appeal of Kenya, Judgement of 30 July 2010 in
Godfrey Ngotho Mutiso v. Republic, H.C.CR.C.NO.55.
Privy Council in Pratt and Morgan v. Attorney General of Jamaica.
Privy Council in Guerra v. Baptiste (1996), AC 397, PC.
Privy Council in Henfield v. Attorney General of the Bahamas (1997), AC 413, PC.
Supreme Court of Uganda in Attorney General v. Susan Kigula.
11
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