Kyamanywa v Uganda (Constitutional Reference 10 of 2000) [2001] UGCC 3 (14 December 2001)

Full Case Text

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## THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CORAM: HON. MR. JUSTICE G. M. OKELLO, JA HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE S. G. ENGWAU, JA HON. MR. JUSTICE A. TWINOMUJUNI, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA

### CONSTITUTIONAL REFERENCE NO. 10 OF 2000

#### **BETWEEN**

KYAMANYWA SIMON ::::::::::::::::::::::::::::::::::::

#### AND

### UGANDA :::::::::::::::::::::::::::::::::::

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(Reference from the Supreme Court of Uganda from Cr. Appeal No. 16 of 1999 dated 7-4-2000)

#### RULING OF THE COURT

This Reference was made to this Court by the Supreme Court under Article 137 (5) (a) of the Constitution for this Court to determine the question:

"is the sentence of six strokes of the cane inconsistent with or does it contravene the provisions of Article 24 of the Constitution?"

the background facts which led to this reference are that the appellant was convicted by High Court for aggravated robbery contrary to sections 272 and 273 (2) of the Penal Code Act and was sentenced to death. He appealed to the Court of Appeal which allowed his appeal, quashed the conviction for aggravated robbery and substituted a conviction for simple robbery contrary to sections 272 and 273 (1) (b) of the Penal Code Act. The appellant was thus sentenced to six years imprisonment with six strokes of the cane. The court also ordered the appellant to undergo Police supervision for three years after serving the prison sentence. The appellant appealed to the Supreme Court solely against the sentence of six strokes of the cane.

When the appeal was called for hearing before the Supreme Court, counsel for the parties made their submissions. It was in the course of considering these submissions that the Supreme Court found there was a Constitutional question which necessitated interpretation and by majority made this reference under article 137 (5) (a) of the Constitution which provides:-

"where any question as to the interpretation of this Constitution arises in any proceedings in a court of Law other than a Field Court Martial, the court,

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(a) may if it is of the opinion that the question involves a substantial question of law and

(b) shall if any party to the proceedings requests it to do so, refer the question to the Constitutional Court for decision in accordance with clause (1) of this article."

Clause (1) of this article provides thus:-

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# "Any question as to the interpretation of this Constitution shall be determined by the Court of Appeal sitting as the Constitutional Court."

This clause, therefore, empowers this court to determine any question as to the interpretation of this Constitution. To discharge that task, we have to decide on an appropriate principle or principles of constitutional interpretation to adopt. "Purpose and Effect" is one of the principles of constitutional interpretation to determine constitutionality of an Act of Parliament or an act or omission of a person or authority. It has been invoked in some jurisdictions to determine questions of constitutionality. For example in Canada in The Queen vs Big Drugmark Ltd (others intervening) 1996 LRC (Const) 332, that principle was invoked. In that case, the issue was the constitutionality of the Lords Day Act which prohibited sales on Sundays. The Attorney General of Alberta conceded that the Act was religious in its purpose but contended that it is not the purpose but the effects of the Act alone $\gamma \leq$ which are relevant to determine its constitutionality.

the Chief Justice who wrote the leading judgment rejected that view and said:-

"In my view both purpose and effects are relevant in determining constitutionality; either unconstitutional purpose or unconstitutional effect can invalidate legislation."

That principle was adopted by the Supreme Court, (Oder, JSC) whose decision on the constitutionality of an exclusion order under section 7 of the Witchcraft Act, Cap 108 of laws of Uganda, was supported by the majority Justices of that Court in Attorney General vs Salvatori Abuki, Constitutional Appeal No. 1 of 1998, Supreme Court unreported. Under that principle, either the unconstitutional purpose or the unconstitutional effect of the impugned Act of Parliament or act or omission of a person or $15$ authority or both unconstitutional purpose and unconstitutional effect can invalidate the Act of Parliament or act or omission of a person or authority. We, therefore, find this principle applicable to determining the constitutionality of corporal punishment imposed on the appellant and we do adopt it. Cdp 20

Article 24 of the Constitution of the Republic of Uganda. 1995 allegedly contravened by the corporal punishment provides thus:-

## "No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment

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or punishment" (emphasis added)

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This article had been considered by the Supreme Court in Salvatori Abuki (supra) when it was considering the constitutionality of exclusion order under section 7 of the Witchcraft Act. In that case, Oder JSC stated that:- $\ell$ .

"The treatment or punishment prescribed by article 24 of the Constitution are not defined therein. They must, therefore, be given their ordinary and plain meaning. According to the Concise Oxford English Dictionary they have the following meanings:-

"torture" - the infliction of severe bodily pain especially as a punishment or a means of persuasion; severe physical or mental suffering; force out of natural position or state, deform, pervert.

- causing pain or suffering especially "cruel" deliberately, pervert.

"inhuman" - brutal, unfeeling, barbarous; not of a human type inhumanly. 'degrading" - humiliating; causing loss or so

"treatment" - a process or manner of behaving towards or dealing with a person; customary way of dealing with a person.

"punishment" - the act or an instance of punishing; the condition of being punishment; the loss or suffering inflicted in this severe treatment or suffering."

Indeed, the words underlined in article 24 above are not defined in the Constitution. Therefore, they must be given their ordinary plain meaning. We, accordingly, take their Dictionary meaning given above.

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Mr. Cheborion Barishaki. Commissioner for Civil Litigation, counsel for the respondent, contended in his written submission that the sentence of six strokes of the cane does not automatically fall within what is prohibited by article 24 of the Constitution. He reasoned that any form of punishment can be meted out in a way that can result in it being cruel, inhuman, degrading and may amount to torture. He stated as an example, that a convict who is sentenced to 12 hours of hard labour on a daily basis, say, for three months, can be inhuman, cruel and amounts to torture. In his view, applying the strokes of the cane without "thrashing" is not

restricted by article 24 since only uncautionable or unreasonable application of the strokes of the cane is restricted. He argued that if the framers of article 24 intended to abolish canning as a form of punishment, they could have stated so. He submitted that many authorities in other jurisdictions have questioned the manner of application rather than the principle of corporal punishment. He did not show us the constitutional provisions and statutes of those other jurisdictions under which the challenge were made.

We wish to point out first of all, that article 2 of the Constitution of $10$ the Republic of Uganda, provides for the constitutional supremacy over all authorities and persons in Uganda (clause 1) and over all other laws or customs in Uganda (clause 2). All acts or omissions by any authority or person or any law or custom which conflicts with any provision of the Constitution shall to the extent of the $15$ inconsistency be void. The provision of the Constitution shall prevail. This is precisely what is meant by constitutional rule. Article 24, the text of which we have already given earlier in this Ruling, is very clear. It does not make any distinction between the manner of application of any form of treatment or punishment $\gamma_{\{1\}}$ which falls within the prohibited category. Corporal punishment by its very definition, which is inflicting pain by beating a part of the body, falls squarely within the category prohibited by article 24. It is by its nature a cruel, inhuman and degrading punishment which is amounts to a torture. The argument that applying the strokes without "thrashing" does not contravene article 24 is untenable. Such regulatory application cannot be measured when practically the severity of the punishment depends to a very large extent upon the character and personality of the officer charged with the duty of inflicting it and over which the court which ordered the punishment can have little if any, control.

In a Zimbabwean case of Juvenile vs The State (1989) LRC (Const), 778 Dumbutshena CJ said,

"The force used depends to some extent on the character and personality of the person administering the strokes. A sadistic officer will, slash with ferocity both the juvenile offender and the adult prisoner. In Naube vs The State (1988) LRC (Const) 442, Gubbay JA said at $458(714)$ "It is within the power of the officer administering the strokes to determine their strength, timing and to some extent, their placement upon the buttocks. A second stroke upon the same part as an earlier stroke undoubtedly causes greater pain than were it to be placed elsewhere."

We agree with that observation. We wish to observe that even the legislature that enacted the laws which provided for corporal punishment before the promulgation of this Constitution on 8/10/95, was alive to the severity of this cruel and inhuman punishment because it included in the law, Trial On Indictment Decree No. 26 of 1971 (TID) a provision which requires the presence $\frac{1}{2}$ S of a doctor when it is being administered. The presence of a doctor is a vain attempt to guard against a possible catastrophe as a weak recipient could die of shock resulting from the strokes of the cane or

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suffer grave or permanent injury. The relevant provisions are subsections 4 and 5 of section 108 of the TID which provide:

"4 - when a sentence of corporal punishment is to be carried out there shall be present a Government medical officer and no such sentence shall be carried out unless such medical officer has after examination certified that in his opinion the prisoner is physically fit to undergo the whole of the sentence of corporal punishment about to be inflicted on him. If such officer is unable to certify as aforesaid neither the sentence nor any part of it shall be carried out and the sentence shall be deemed for the purpose of subsection 7 of this section to have been wholly prevented from being carried out.

5 The medical officer shall be present during the infliction of the corporal punishment and may at any time during the carrying out of the sentence of corporal punishment intervene and prohibit the remainder of the sentence from being carried out, if in his opinion the prisoner is unable to bear such sentence without risk of grave or permanent injury. If such medical officer intervenes as aforesaid the sentence shall be deemed for the purpose of subsection $(7)$ to have been partially prevented from being carried out."

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Mr. Barishaki submitted that this reference challenges only the method of application rather than the principle of corporal punishment since the provision of the Acts of Parliament which authorise such punishment are not challenged. In his view, corporal punishment as a principle is lawful because it is authorised by law which is saved by article 273 of the Constitution and therefore, cannot contravene the Constitution. He cited Riley and Others vs Attorney General of Jamaica and Another (1982) 3 ALLER 469 to support that proposition.

With respect to the learned Commissioner for Civil Litigation, we do not buy those views. Firstly, the reference does not challenge merely the method of application of the six strokes of the cane. The question for determination as framed is unambiguous. It clearly refers to the very principle of corporal punishment as authorised by certain provisions of the law for example, section 274 A of the Penal Code Act which provides:-

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"Without prejudice to anything contained in any written law, any person who is sentenced to a term of imprisonment under the provisions of section 273 or section 274 of this Code shall, in addition thereto, be sentenced to corporal punishment."

Secondly, the argument that a sentence which is authorised by law $\mathbb{R}^{\mathbb{Z}}$ cannot contravene the Constitution was rejected by the Supreme

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Court in Salvatori Abuki (supra). In that case, the Supreme Court considered the view of the then Deputy Chief Justice on the issue of exclusion order under section 7 of the Witchcraft Act. His view was:-

"........ article 24 must be read together with article 23 which clearly limits or restricts the liberty of an individual in that it permits courts of law to pass sentences and orders that deprive an individual of such liberty. And so in my view article 44 (a) which provides that there shall be no derogation from the freedom from torture, cruel, inhuman or degrading treatment must mean that there shall be no derogation from the rights and freedoms specified therein except by a sentence or order of court."

Though section 17 (1) of the Constitution of Jamaica, like our article 24, prohibited torture, inhuman or degrading treatment or 15 punishment, sub-section 2 thereof specifically saved the infliction of all punishment authorised by law immediately before the coming into force of their Constitution. That sub-section provides:-

> $(2)$ Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed date."

There is no corresponding provision of the above sub-section in our Constitution. Article 273 does not provide that the infliction of any

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description of punishment which was lawful immediately before the coming into force of this Constitution shall not be held to be inconvistent with or contravene the Constitution.

For casity we reproduce its text hereunder. It reads thus:-

(1) Subject to the provisions of this article, the Operation of the existing law after the coming into force of this Constitution shall not be affected by the coming into force of this Constitution but the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution.

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(2) For the purposes of this article, the expression "existing law" means the written and unwritten law of Uganda or any part of it as existed immediately before the coming into force of this Constitution, including any Act of Parliament or Statute or statutory instrument enacted or made before that date which is to come into force on or after that date."

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This article enjoins courts to construe the existing laws with such modifications adaptations, qualifications and exceptions necessary to bring them into conformity with the Constitution. Therefore, Riley and others vs Attorney General of Jamaica (supra) which was decided on the basis of section 17 (2) of their Constitution is not relevant to our situation.

In that Salvatori Abuki (supra) Oder, JSC cited with approval a passage from the judgment in a Namibian case of Exparte Attorney General, Namibia in Re Corporal Punishment Mohamed AJA (1991) 3 SA 76. He said:-

"......... the question for determination by the Supreme Court of Namibia was, inter alia, whether the infliction of corporal punishment by or on the authority of any organ of the state contemplated in the relevant Legislations and rules was unconstitutional, in particular was in conflict with article 8 of The Constitution of Namibia.

Article 8 (2) (b) of the Namibia Constitution provides:-

"No person shall be subjected to torture, or to cruel, inhuman and or degrading treatment or punishment."

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Under the Namibia Constitution the rights protected by article 8 (2) (b) are non-derogable. So the state's obligation is

absolute. This is the same as in article 24 of our Constitution. All that is therefore, required to establish a violation of article 24 is a finding that the particular statute or practice authorised or regulated by a state organ falls within one or other of the seven permutations of article 24 set out above; no question of justification can ever arise.

In Exparte Attorney General, Namibia (supra) the Supreme Court of Namibia said:-

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"The question as to whether a particular form of punishment authorised by law can properly be said to be inhuman or degrading involves the exercise of a value Judgment by the Court. It is however, a value judgment which requires objectively to be articulated and identified regard being had to the contemporary norms, aspirations, expectations and sensitivities of the Namibian people as expressed in its national institutions and Constitution, and further having regard to the emerging consensus of values in the civilised international community (of which Namibia is a part) which Namibia share. This is not a static exercise. It is a continually evolving dynamic. What may have been accepted as a just form of punishment some decades ago may appear to be manifestly inhuman or degrading today. Yesterday's Orthodox might appear to be today's heresy. The provision of article 8 (2) of the Constitution are not peculiar to Namibia; they articulate a temper through out the civilised world which has manifested itself consciously since the second world war. Exactly the same or similar articles are to be found in other instruments. See for example article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; article 1 (1) of the German Constitution; and article 7 of the Constitution of Botswana; article 15 (1) of the Zimbabwean Constitution. In the interpretation of such articles there is a strong support for the view that the imposition of corporal punishment on adults by organs of the state is indeed degrading or inhuman and inconsistent with the civilised values pertaining to the administration of justice and the punishment of offenders,

$\overline{14}$ What was said in that case about article $8(2)$ of the Namibian Constitution applies with equal force to Article 24 of our constitution."

We could not agree more with the above closing remarks of Oder JSC, whose view was supported by the majority Justices of that Court. The rights and freedoms prescribed by article 24 are, by article 44 (a), made non-derogable. They are absolute. They are in a different category from death sentence. The right to life is provided for under article 22 of the constitution. This right is not absolute under our Constitution. Life can be taken away in the execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and where the conviction and sentence have been confirmed by the highest appellate court. $15$

In our view, courts having a duty to enforce the Constitution are enjoined to construe section 274 A which is an existing law in accordance with article 273 (1) so as to bring it into conformity with article 24 of the Constitution. Our answer to the question referred to us is therefore, by majority of three to two, that the sentence of six strokes of the cane is inconsistent with article 24 of the Constitution.

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Dated at Kampala this $14\overline{1}$ day of Secendary, 2001. $\omega$ G. M. Okello JUSTICE OF APPEAL $\tilde{\varsigma}$ A. E. N. Mpagi-Bahigeine JUSTICE OF APPEAL $\overline{I}$ IUN TWINOMUYUNI JUSTICE OF APPEAL. る。 $15$ $\mathcal{L}$ $\{ \epsilon,$

## THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA HOLDEN AT KAMPALA

## CORAM: HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. MR. JUSTICE S. G. ENGWAU, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

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## CONSTITUTIONAL REFERENCE NO. 10 OF 2000.

KYAMANYWA SIMON $======== = \underline{PETITIONER}$ VERSUS

$UGANDA$ = = = = = = = = = = = = = = RESPONDENT

(Reference to the Constitutional Court of Uganda from the Supreme Court of Uganda in respect of Crim. Appeal No. 16/99 dated 7.4.2000

## RULING OF S. G ENGWAU AND C. N. B KITUMBA (DISSENTING)

The facts and circumstances leading to this reference are that the petitioner, Simon Kyamanywa, and another person were tried and convicted by the High Court at Masindi on the first count of aggravated robbery, contrary to sections 272 and 273 (2) of the Penal Code Act. The particulars of the count on which they were convicted were that the petitioner, Simon Kyamanywa, and his co-accused, Sunday Joseph, on or about the 26th day of May, 1994, at Kijuujubwa village in Masindi District, robbed September Mathias of one NIA Radio Cassette, model CRC 300T KY II and one torch and at or immediately before or immediately after the said robbery, threatened to use a deadly weapon to wit a gun on the said September Mathias. The Petitioner and his co-accused were sentenced to death.

On appeal, the conviction for capital robbery was quashed and the sentence of death set aside. The Court of Appeal substituted a conviction of simple robbery, contrary to sections 272 and 273 (1) (b) of the Penal Code. The Court of Appeal, then sentenced the petitioner to a term of

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imprisonment of six years and six strokes of the cane. The Court of Appeal also ordered that he should be under Police Supervision for three years after serving the term of imprisonment.

The petitioner, Simon Kyamanywa, then appealed to the Supreme Court against the sentence of six strokes of the cane only. The Memorandum of his appeal reads:-

" 1. The decision of the Court of Appeal that the appellant be sentenced to receive 6 strokes of the cane is in conflict with the provisions of the 1995 Constitution and is therefore, illegal.

It is proposed to ask Court for an order that

- (a) The appeal be allowed. - (b) Sentence be set aside."

Sentence of corporal punishment imposed by the Court of Appeal on the petitioner is provided for by section 274 A of the Penal Code Act which states:-

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Without prejudice to anything contained in any written law, any person who is sentenced to a term of imprisonment under the provisions of section 273 or section 274 of this Code, shall in addition thereto be sentenced to corporal punishment.

The above section upon which the Court of Appeal sentenced the petitioner to six strokes of the cane does not specify or fix the number of strokes and the manner of inflicting the punishment on a person sentenced on conviction under sections 273 and 274. The number of strokes of the cane applicable is left to the discretion of the trial court. The provisions of $\tilde{f}^{(n)}(x)$ section 108 (1) of the Trial on Indictments Decree, however, describe the

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type of weapon or instrument to be used and the method of inflicting corporal punishment. It limits to 24 strokes as the maximum within which that discretion may be exercised. It states:

108 (1). Only one sentence of corporal punishment shall be imposed at one time. Such corporal punishment shall be inflicted with a rod or cane to be approved by the Minister. The sentence shall specify the number of strokes which shall not exceed twenty four.

Corporal punishment is not defined by the Penal Code Act. The Concise Oxford Dictionary defines it as: " Punishment inflicted on the body especially by beating." The shorter Oxford Dictionary 1973 Vol. 1 defines it as: " Punishment inflicted on the body, now confined to flogging."

The question before us is:- " Is sentence of six strokes of the cane inconsistent with or does it contravene the provisions of article 24 of the Constitution?" Article 24 reads:-

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No person shall be subjected to any form of torture, cruel, inhuman, or degrading treatment or punishment.

Sections 273, 274 and corporal punishment created by section 274 A of the Penal Code Act were saved by article 273 of the Constitution when the Constitution came into force in 1995, the Penal Code Act amongst others having been in existence before. Article 273 states:

> 273. (1) Subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by the coming into force of this

Constitution but the existing-law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution. ř

Clearly, sections 273, 274 and 274 A of the Penal Code Act must be construed with article 273 of the Constitution with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with article 24 of the Constitution. In so doing we are persuaded by the decision of the Supreme Court of Jamaica in Riley and others V. Attorney general of Jamaica and another [1982] 3 All ER 469. In that case five appellants were convicted of murder in Jamaica and were sentenced to death. The appellants applied to the Supreme Court of Jamaica for declarations that the executions would be illegal on the grounds that they would be contrary to section 17 (1) of the Constitution of Jamaica which prohibited "inhuman or degrading punishment."

Section 17 (1) and (2) of the Jamaica Constitution provided that:-

17 (1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this

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section to the extent that the law in question authorises the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed date.

We agree with learned Counsel for the respondent that as indicated above, the Decree and Penal Code Act were saved by article 273 of the Constitution which is in effect equivalent to section 17 (2) of the Constitution of Jamaica. In the Riley case, the Supreme Court of Jamaica held inter alia that a punishment was lawful if:-

- it was done by the authority of law $(a)$ - it involved the infliction of punishment which was $(b)$ authorised by that law and - it did not exceed in extent the description of the $(c)$ punishment so authorised.

It is clear to us that the punishment of six strokes of the cane meets the above criteria and it is neither inconsistent with nor does it contravene the provisions of Article 24 of the Constitution.

Dated at Kampala this 14 day of Beccurity, 2001.

S. G. ENGWAU JUSTICE OF APPEAL.

KITUMBA JUSTICE OF APPEAL.

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