Bahabwa v Uganda (Criminal Appeal No. 526 of 2014) [2022] UGCA 60 (3 March 2022)

Full Case Text

# 5 THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT MBARARA

# CRIMINAL APPEAL NO. 526 OF 2OI4

(Coram: Egonda-Ntende, Bamugemereire & Madrama, JJA)

BAHABWA GADI} APPELLANT

#### VERSUS

UGANDA} RESPONDENT

(Appeal from the decision of the High Court of Uganda Holden at Rukungiri in Criminal Session Case No. 15 of 20ll before Joseph Murangira, J delivered on 6th Novemben 2013)

### JUDGMENT OF COURT

The Appetlant was indicted for the offence of Murder contrary to section 188 and 189 of the Penat Code Act, Cap. 120 taws of Uganda. He was tried and convicted as charged by the High Court of Uganda sitting at Rukungiri on the 6th of November 2013 and was sentenced to sixty years' zo imprisonment. The appe[[ant was aggrieved by the sentence onty and with leave of this court appealed against the sentence.

The facts accepted by the triat judge are that the Appellant and others on l6th January, 2010, at Mushorero Cett in Kanungu District murdered Tukwasibwa Satvan, (a boy aged 13 years), The deceased's body was

- 2s found chopped to pieces, with parts put in a sack and thrown into a pit latrine. A bloodstained machete was recovered at the home of the appe[tant and the deceased's head was recovered from the appe]lant's kitchen where it had been hidden in a basket tied to the roof. Further btood was found in a basin of the accused. The murder was reported to - 30 Butogota potice station and the Appettant was arrested. A medical examination of the appellant showed that he was of sound mind. The appeltant was tried and convicted as charged whereupon he was sentenced to 60 years' imprisonment.

The appettant being aggrieved by the sentence only appealed to this court 3s against sentence on two grounds of appeaI that:

- 5 l. The learned triat Judge erred in law and fact in imposing the sentence of 60 years' imprisonment on the Appettant which is manifestly excessive and harsh in alt circumstances. - 2. The sentence imposed was i[lega[.

The Appetlant prays that the appeaI is altowed and the sentence set aside and reptaced with a lesser and appropriate sentence. 10

At the hearing of the appeal, the Appetlant was represented by learned Counsel Mr. Dhabangi Samuel on state brief white the Respondent was represented by Ms Angutoko lmmaculate, Chief State Attorney, Both counse[ addressed court by way of written submissions and judgment was reserved on notice.

The appellants counsel submitted that the triat judge's opening remarks in his reasons for sentence left a lot to be desired. The triat judge stated that he considered alt the mitigating factors for the sentence that were advanced by (l) the prosecution and (2) the defence counset. Mr Dhabangi noted that this consideration was omnibus, perfunctory and too passing to have any reasonable impact or influence on the mind of the triat judge in passing sentence. He contended that the entirety of the considerations

amounted to a lopsided consideration of factors advanced by the state. He relied on Guloba Rogers v Uganda Criminal Appeat No 57 of 2013 where it was hetd that the trial judge did not give adequate weight to the fact that the appetlant was a first offender and was of a youthful age of 20 at the time the offence was committed and therefore had to reform. !n that case the sentence for 47 years'imprisonment on both counts was found to be excessive in the circumstances. 25 30

Further the appellants counsel submitted that on the basis of the above consideration, the sentence was rendered itlegaI because the trial judge did not mention reduction of the sentence imposed in tight of the period of 3 years the appettant spent on remand. He relied on Rwabugande Moses v Uganda; SCCA No 25 of 2014; and Kawooya Joseph v Uganda; Crimina[ Appeat No 0512 of 2014 where it was hetd that a sentence arrived at without taking into consideration the period spent on remand is iltegat for failure to compty with a mandatory constitutionaI provision

- 5 (Articte 23 (8) of the Constitution of the Repubtic of Uganda). The appellants counsel contended that the lopsided manner of consideration of the aggravating factors advanced by the prosecution among other factors moved the learned trial judge to impose a harsh and manifestly excessive sentence in att circumstances of the case because the appellant was 25 years with tife expectancy in Uganda of 45 years. Further counse[ submitted that there is little, if any, difference in essence and outcome between a sentence over 60 years' imprisonment imposed on the 25-year-old appetlant and a sentence of tife imprisonment. ln essence the triat judge denied the appetlant the slightest chance for rehabilitation, reconcitiation with society and the fact that the appe[lant was hurt and traumatised too. He further submitted that the taw demands a custodial sentence but justice demands that even society [earns to be forgiving and kind. He proposed a sentence of 20 years' imprisonment in the circumstances. 10 15 - !n reply Ms Angutoko submitted that it is trite law that sentencing is at the discretion of the triat judge. 0n the question of tegatity of the sentence, the [earned triat judge considered the mitigating and aggravating factors advanced by the prosecution and by the defence. 0n the question of tegatity of sentence, the learned triat judge clearly stated that the appellant had spent 3 years in ]awful detention before his conviction. The appellant was sentenced on 16 November 2013. She retied on Rwabugande Moses v Uganda SCCA No 25 of 2014 which requires arithmetic deduction of the period spent on remand. However, in Kizito Senkula v Uganda; SCCA No 24 of 2011, it was hetd that the taking into account under article 23 (8) of the Constitution does not mean an arithmeticaI exercise. This position was reinforced by the decision in Abette Asuman v Uganda SCCA No 66 of 2015 and in Nashimolo Pau[ Kiboto v Uganda; SCCA No 46 of 2011 where it was held inter a/lb that the decision in Rwabugande Moses (supra) was delivered on 3 March 2017 20 25 30 - and in accordance with the principtes of precedent, the courts have to follow the position of the law from that date henceforth. Finalty, in Abelle Asuman v Uganda (supra) it was held inter a/ra that att that the court has to do is to demonstrate that it is taken into account the period on remand to the credit of the convict and the arithmetical method is merely a 35

5 method of doing that. ln the premises the sentence did not contravene article 23 (8) of the Constitution and is [awfu[.

0n the question of whether a sentence of 60 years' imprisonment is not manifestly excessive and harsh, the respondents counsel submitted that consistency in sentencing is neither a mitigating nor an aggravating

factor. The sentence imposed [ies at the discretion of the trial court. CounseI noted that tife imprisonment was a more severe penalty than imprisonment for a term of years and relied on several authorities where a sentence of life imprisonment was uphetd by the Supreme Court. 10

# Resolution of appeal

We have carefulty considered the appeal and woutd start with the issue of legatity of sentence which is a point of [aw. This is based on the second ground of appeaI which is that: 15

The sentence imposed was ittegat.

Where the sentence imposed is i[[ega[, it would be set aside and there woutd be no need to consider the first ground of appeaI which is whether the learned trial judge erred in [aw and fact in imposing the sentence of 60 years' imprisonment on the appticant which is manifestly excessive and harsh in the circumstances. 20

The learned triaI judge in imposing sentence stated that the foltowing factors are put into consideration namety:

Att the mitigating factors for the sentence that were advanced by (i) the prosecution (ii) the defence counset. The learned triatjudge went ahead to consider the aggravating factors. Going back to the mitigating factors, in mitigation of sentence counsel for the convicts submitted that the convict is the first offender, he is aged 25 years and spent on remand 3 years. He prayed for a sentence that is commensurate with the offence. The prosecution did not mention the period spent by the appettant in lawful detention before his conviction. The question that comes to mind is whether the pre-triaI period the appellant was in detention is a mitigating factor. The pre-triaI period does not mitigate any offence but only has to be taken into account as mandated by article 23 (8) of the Constitution. This article onty appties to a determinate period and does 5 not apply to a sentence of life imprisonment or a sentence for the convict to suffer the. Articte 23 (8) of the Constitution provides that:

> (8) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her triat shatt be taken into account in imposing the term of imprisonment.

Article 23 (8) of the Constitution was considered by the Supreme Court in Rwabugande Moses v Uganda; [2017] UGSC 8 where the Supreme Court stated that the period spent on remand before conviction should be deducted from the sentence the triaI court intends to impose:

!t is our view that the taking into account of the period spent on remand by a court is necessarily arithmeticat. This is because the period is known with certainty and precision; consideration of the remand period shoutd therefore necessarily mean reducing or subtracting that period from the finat sentence. That period spent in lawful custody prior to the trial must be specificatty credited to an accused.

This method was of taking into account the period the convict spent in lawfuI detention before his conviction was considered in Abetle Asuman v Uganda; [20181 UGSC 10, where the Supreme Court considered other methods of taking into account the period the convict spent on remand before his conviction. The Supreme Court hetd that there ought to be a demonstration by the trial court that the period the appettants spent in lawful custody was taken into account and this is a question of style. They stated that: 25 30

> Where a sentencing Court has clearty demonstrated that it has taken into account the period spent on remand to the credit of the convict, the sentence would not be interfered with by the appe[tate Court only because the sentencing Judge or justices used different words in the Judgement or missed to state that they deducted the period spent on remand. These may be issues of styte for which a lower Court woutd not be fautted when in effect the Court has complied with the constitutional obligation in Article 23 (8) of the Constitution.

- 5 White the learned triaI judge could have taken into account the period by making reference to the mitigating factors advanced by the defence counsel, which factors he stated that he had taken into account and the factors are any merit it in the submissions which were recorded by the court, we have noted that the period the appetlants spent in the remand - is not a mitigating factor. A mitigating factor, is a factor that may lessen the sentence that woutd be imposed while article 23 (8) of the Constitution is a provision that requires the sentence that woutd be imposed to be imposed after considering the period the convict spent on remand before his conviction. The facts of this case are that the learned 10 - triat judge sentenced the appetlant to 60 years' imprisonment. This cannot by any stretch of the imagination show that the period of 3 years the appetlant had spent in pre-triaI remand was taken into account. 15

While this engages the first ground of appeaI about the harshness or severity of sentence, there is another factor to be considered. The respondents counsel could not point to any precedent where a sentence of over 45 years' imprisonment has been uphetd by this court or the Supreme Court.

Before the amendment of the law by the Law Revision (Penalties in Criminal Matters) Miscettaneous (Amendments) Act, 2019 which law came into force in November 2021 and is therefore not retevant to this matter which was decided in November 2013, tife imprisonment sentences had been considered by the Supreme Court and this Court. They are by definition the most severe penatty after the death penalty. Yet in practice a prisoner on a sentence of tife imprisonment may come out of prison after serving less than twenty years. Other terms of imprisonment are supposed to be less than tife imprisonment which ranks next in severity to the death penalty. ln the new law namely the Law Revision (Penalties in Criminat Matters) Miscellaneous (Amendments) Act, 2019 under section 4 thereof tife imprisonment or 25 30

imprisonment for tife in any enactment is defined as: 35

"[ife imprisonment or imprisonment for life means imprisonment for the naturaI life of a person without the possibitity of being released." 5 This is consistent with decisions of the Supreme Court before the enactment starting with Tigo Stephen v Uganda; Criminat Appeal No 08 of 2009 [2011] UGSC 7 (10th May, 20ll). The Supreme Court defined tife imprisonment as:

... imprisonment for the natura[ [ifetime of a convict, though the actuat period of imprisonment may stand reduced on account of remissions earned.

The Supreme Court was criticaI of any notion that life imprisonment meant 20 years' imprisonment as deemed under section 46 (6) of the Prisons Act Cap 304 2000 laws of Uganda which provides that:

For the purpose of calculating remission of sentence, imprisonment for life shatl be deemed to be 20 years' imprisonment.

This section was retained by section 86 (3) of the Prisons Act, 2006 which repealed the Prisons Act, Cap 304. ln Tigo Stephen v Uganda (supra) the Supreme Court ranked the death penalty as the most severe penatty fo[lowed by tife imprisonment and thereafter a term of years. The

Supreme Court stated that: 20

> The most severe sentences known to the pena[ system inctude the death penalty, imprisonment for tife and imprisonment for a term of years. lmprisonment for tife which is the second gravest punishment next onty to the death sentence is not defined in the statutes prescribing it. lt seems to us that it is for that reason that the Prisons Act provided that for purposes of calculating remission, imprisonment for tife shatt be deemed to be twenty years. lt is noteworthy that the Act is clear that twenty years is only for purpose of calculating remission. The question remains whether there are purposes for which tife imprisonment means something more than 20 years, e.g. imprisonment for life.

Because tife imprisonment was ranked as the second gravest sentence next to the death sentence, the effect of a sentence of imprisonment of over 60 years is that the convict wilt remain in prison for over twice the period deemed of 20 years to be the tife imprisonment for purposes of

remission. 35

> To make it much more consistent, the Supreme Court in Wamutabanewe Jamiru v Uganda; Supreme Court Criminal Appeal No. 74 of 2007 [20181 UGSC I (lztn Aprit 2018) struck down a hotding that the term of imprisonment shall be without remission. This meant that the Prison

5 Authorities were free to deem tife imprisonment to be 20 years' imprisonment and give a convict the benef it of remission. That meant that a prisoner sentenced to life imprisonment may walk out of prison in less than 16 years. The Supreme Court hetd that:

We note that the maximum penatty for the offence of murder, which the Appettant was convicted of, is death and that the sentence he is appealing is less severe than the death penalty he had eartier been handed. Nevertheless, given that remission is a function of the penal institution which has to exercise it in accordance with the Prisons Act I find it ittogicat for any court, let atone the Court of AppeaI in the instant matter, to ordain that the Appettant shatl serve his sentence without remission. 10 15

ln an earlier decision of the Supreme Court in Lawrence Kakooza v Uganda n994] UGSC the Supreme Court had taken the contrary view that tife imprisonment amounted to 20 years'imprisonment in tight of section 49 (7) of the Prisons Act cap 302 (repealed in 2006). This decision was not discussed or expressly overruled in the seminal decision of Tigo v Uganda (supra). ln effect there were two conflicting approaches by the Supreme Court. We raise this merety for completeness of the picture

Turning to the ranking of punishments starting with the worst of the worst cases attracting the death penalty and the next severe penatty being tife imprisonment or imprisonment for [ife, a sentence of 60 years' imprisonment which purports to be less severe than tife imprisonment is not only absurd but untawfu[. 25

around this subject.

This is conclusion can be based on precedent where the Supreme Court in Oketto Godfrey v Uganda; SCCA No. 34 of 2014 the Supreme Court held that: 30

> ln terms of severity of punishment in our pena[ [aws, a sentence of tife imprisonment comes next to the death sentence which is stitt enforceabte under our pena[ laws.

Secondly in Tigo Stephen v Uganda; (supra) the Supreme Court took note of the absurdity of specific terms of imprisonment (of over 20 years) being taken to be more severe than tife imprisonment. They said: 35

> We note that in many cases in Uganda, courts have imposed specific terms of imprisonment beyond twenty years instead of imposing tife imprisonment. lt

> > 8

I 5 wou[d be absurd if these terms of imprisonment were hetd to be more severe than life imprisonment.

> 0ur conctusion is that a term of imprison of 60 years cannot pretend to be less severe than life imprisonment. lt is therefore untenabte in [aw.

We altow ground 2 of the appeal and set aside the sentence of 60 years' 10 imprisonment for breach of article 23 (8) of the Constitution and for being a sentence unknown in law or precedent.

Having set aside the sentence we do not need to consider ground one of the appeaI which is against the severity of sentence. Exercising our jurisdiction under section 11 of the Judicature Act, we will sentence the 1s appellant afresh.

We have considered the facts and circumstances of this murder. lt was a gruesome murder and we agree with the sentencing notes of the triat judge that the brutaI actions of the convict caused trauma and psychotogicaI torture to the victim's parents. Secondty the death of the 20 victim was a big toss to his famity, retatives, friends, in-taws and the

- entire community. The victim was a sma[[ boy who was robbed of his tife at the tender age of 13 years in what appears to be a rituaI murder. He was beheaded had his body dumped in a latrine. Parts of his body were also dismembered and some were kept in a basket. The head was - zs detached and smeared with mittet flour. The intestines were out. The learned triat judge noted that the people who attended court were traumatised by the conduct of the appe[[ant was not remorseful.

We however note that the convict does not have a previous record as stated by the prosecution. Secondty, he committed the offence at the age

30 of 25 years and the society can make an effort to have him reformed. He had spent 3 years on remand which we woutd take into account by deducting it from the sentence that we would have imposed on him.

We have further considered a few sentences where a tife imprisonment sentence was reduced to a term of years. ln Tumwesigye Anthony v

3s Uganda; Court of Appeal Criminal Appeat No 46 ot 2012 [2014] UGCA 6l (l8th December 20141the Appellant had been convicted of the offence of murder and sentenced to 32 years' imprisonment, The Court of Appeat agreed that the sentence was harsh and manifest[y excessive in light of 5 the fact that the appellant was a first offender and 19 years otd at the time of commission of the offence and reduced the sentence to 20 years' imprisonment to run from the date of conviction.

ln Kasaija v Uganda; Court of AppeaI Criminal Appeat No 128 of 2008, 120141UGCA 47 the appetlant had been convicted of two counts of murder

- and sentenced to tife imprisonment by the High Court. His appeal against sentence was a[lowed on the ground that the sentence was harsh and manifestly excessive. The Court of AppeaI considered the mitigating factor that the Appettant was a first offender and was 29 years otd at the time of commission of the offence. 0n the other hand, he had committed 10 - a very serious offence leading to the loss of tife in each count of a senseless and brutaI murder of two suspects who had been arrested. Fina[ty, the court took into account the period of two and a half years the appellant spent in remand prior to his trial and conviction. He was resentenced to 18 years' imprisonment on each count to be served concurrently with effect from the date of conviction. 15 20

ln Atiku Lino v Uganda; Criminal Appeat No 0041 of 2009 [2016] UGCA 20 (5th June 2016), the Appetlant used a cuttass and cut the deceased several times causing her death. He was detuded that the deceased had bewitched his ailing son. He was convicted and sentenced to tife imprisonment and on appeaI from the High Court, the sentence was reduced from tife imprisonment to 20 years' imprisonment. The court inter alia look into account the age of the appeaI who committed the offence when he was 31 years otd.

ln the premises, we consider a sentence of 30 years' imprisonment woutd meet the ends of justice. 30

The medical examination report shows that the appettant was in custody by 2"0 January 2010. He was tried and convicted on 6th November 2013 giving a period of 3 years and l0 months.

We accordingty take this period into account and sentence the appetlant lo26 years and 1 month's imprisonment which period commenced on the date of his conviction on 6th of November, 2013. 3s

Dated at Mbarara the $3^{1/2}$ day of March 2022

$\overline{\rho}$ Air Fredrick Egonda - Ntende

Justice of Appeal $\overline{c}$

$10$

$\mathsf{S}$

Catherine Bamugemereire

**Justice of Appeal**

$\overline{\phantom{a}}$ Christopher Madrama

**Justice of Appeal**