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 __________________ 26 27 28 29 30 31 32 33 12-45812 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