Kyomuhangi v Uganda (Criminal Appeal No. 131 of 2020) [2021] UGCA 139 (3 November 2021)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **HELD AT KAMPALA** CRIMINAL APPEAL NO. 131 OF 2020

## CORAM: Fredrick Egonda-Ntende, Catherine Bamugemereire, Christopher Izama Madrama IJA

Elizabeth Kyomuhangi::::::::::::::::::::::::::::::::::::

Versus

Uganda ::::::::::::::::::::::::::::::::::: Arising out of the decision of the Court Martial Appeal No. 05 of 2017 which arose out of General Court Martial Appeal No. 14 of 2014 which arose from the the decision of the 2nd Division Court Martial at Makenke, Mbarara in Criminal Case No. 5 of 2011

# **JUDGMENT OF THE COURT**

### **Brief Background**

The Appellant was first tried at the 2nd Division Court Martial in Makenke, Mbarara on charges of Murder contrary to sections 188 and 189 of the Penal Code Act. The facts as accepted were that on 15/09/2010 the Appellant Elizabeth Kyoumuhangi, a civilian, connived with two UPDF soldiers Griffin Rubihirwa and Rub Wambugu to kill her husband Dan Amumpaire. The Appellant was convicted and sentenced to 40 years imprisonment. She then appealed to the General Court Martial and then again to the Court Martial Appeal Court against both conviction and sentence. The Court Martial Appeal Court dismissed the appeal, upheld the conviction, but reduced her sentenced to 30 years imprisonment.

The Appellant being dissatisfied with the decision of the Court Martial Appeal Court now appeals to this court against the entire judgment and sentence at the Court Martial Appeal Court sitting in Makindye on the following grounds:

- 1. That the Court Martial Appeal Court erred in law when it sustained a conviction of the Appellant who had been tried under courts that were not independent and impartial tribunal as required by article 28 of the constitution. - 2. The learned panel of the Court Martial Appeal Court erred in law when they upheld the validity of the charge and caution statement purportedly implicating the Appellant. - 3. The learned panel of the Court Martial Appeal Court erred in law when it upheld that the Appellant was rightly convicted and sentenced based on an improperly admitted confession.

#### **Representation**

Submissions were filed on behalf of the Appellant by Mr. Jude Byamukama of Mssrs J Byamukama & Co Advocates. For the Respondent submissions were filed by Joseph Kyomuhendo Chief State Attorney of the Director of Public Prosecutions. Both counsel relied on written submissions which were adopted by this court. A preliminary point of law was raised by Counsel for the Respondent to the effect that this court lacked jurisdiction to hear the appeal. The Appellant appeared before this court via Zoom which is a form of web-based proceeding in compliance with the Covid-19 Pandemic personal health and safety regulations.

#### **Preliminary objection**

Counsel of the respondent raised a preliminary objection questioning the law under which this appeal was filed. He relied on **Attorney General v Shah (No.4)** [1970] EA, 50 for the proposition that an appeal is a creature of statute and that there is no such thing as inherent appellate jurisdiction. He argued that military courts are regulated by the Uganda People's Defence Forces Act 2005 and the Court Martial Appeals Court Regulations S. I 307-7 and that there is no single provision that confers jurisdiction to this honourable court and the same has been held by this court in Haloga Humphrey v Uganda CACA No. 259 of 2019 and Pte Muhumuza Zeph v Uganda CACA No. 031 of 2016.

Counsel submitted that there are conflicting decisions of this court; in as far as appeals from the Court Martial Appeals Court are concerned. On the one hand, he cited LT. Col. John Kaye v Uganda CACA 315 of 2015 which followed Lt. Ambrose Ogwang v Uganda CACA 197 of 2013 where this court summarily disposed of the appeals by setting aside the convictions and holding that criminal trials before the Court Martial are a nullity on grounds that the said courts are not independent and impartial tribunals as required by Article 28 of the Constitution. On the other hand, Counsel relied on the two decisions of this court; **Haloga** Humphrey v Uganda (Supra) (and Pte Muhumuza Zeph v Uganda (Supra) in which found that there is no right of appeal from the Court Martial Appeals Court to the Court of Appeal and refused to offer any relief.

Counsel opined that the four decisions while arriving at different conclusions were unison in their proclamation that the administration of criminal justice in the military tribunals ought to be regarded as illegal and unconstitutional. He submitted that the best course to follow is the time-tested principal that an illegality, once brought to the attention of court overrides all questions of law and pleadings. Counsel referred extensively to **Makula International v His Eminence** Cardinal Nsubuga and Anor CACA 04 OF 1989 to propose that this was an incompetent appeal on grounds that there was evident manifest illegality that required intervention. Based on assumption of illegality he invited this court to find unconstitutional the trial of the Appellant before the Court martial for the offence of murder. It was his view that the law requires this court, despite the precedents on the right of appeal, to intervene and quash the conviction and sentence.

Counsel further proposed the an option of referring the Appellant for retrial in a civilian court but argued that the interest of justice requires that she be set free unconditionally as she has already served the 10 years of an illegal sentence resulting from an illegal and unconstitutional trial. To support this proposition, he cited the maxim of "*nemo bis vexari debet pro eadem causa*" (a man shall not be twice vexed for one and the same cause). He cited **Reverend Father Santos Wapokara v Uganda CACA 204 of 2021** in support of his argument that a retrial should not be ordered where it will result into an injustice that is where it will deprive the accused/Appellant of a chance of an acquittal.

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Counsel for the Respondent on her part argued that the Appellant in invoking **Makula International v His Eminence Cardinal Nsubuga and Anor (Supra)** was attempting to circumvent procedure. He argued that **Makula International** was not applicable and that the illegality cited is that trials before the Court Martial are a nullity since they are not independent and impartial tribunals as required under Article 28 of the Constitution and yet they are established under laws that have never been declared unconstitutional by this court. Counsel for the Respondent asserted that the members of the Court Martial take oath to protect and safeguard the Constitution meaning they exercised their powers impartially. Counsel argued that the Appellant has not pointed out any incident of partiality or influence-peddling by any person during her trial in both the General Court martial and the Court Martial Appeals Court. Finally, he submitted that the case of Lt Ambrose Ogwang v Uganda (supra) is not applicable in the current situation because it is still on appeal in the supreme court. He then prayed that the court finds that the appeal was wrongly filed before this court and ought to be dismissed.

#### **Consideration of Preliminary Objection**

We have carefully considered the submissions of counsel and studied with care the cases cited by them on the preliminary objection. In our opinion, the preliminary issue raised in the objection is whether the Court of Appeal has jurisdiction to hear appeals arising from the Court Martial Court of Appeal?

## The Black's law dictionary 2nd edition defines jurisdiction as

"....the power and authority constitutionally conferred upon or constitutionally recognized as existing in a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a set of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favour of or against persons who present themselves, or who are brought, before the court in some manner *sanctioned by law as proper and sufficient."*

In Attorney General v Shah No. 4 of [1971] EA P.50, Spry Ag. President held,

"It has long been established and we think there is ample authority for saying that appellate jurisdiction springs only from statute. There is no such thing as *inherent appellate jurisdiction.*"

Tsekooko JSC in Baku Raphael Obudra and Obiga Kania v the Attorney General, Supreme Court Constitution Appeal No.1 of 2005 pronounced with clarity and certainty where the jurisdiction of the appellate courts emanates from.

> "It is trite law that there is no such a thing as an inherent appellate jurisdiction. Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied."

This court is bound by **Baku Raphael Obudra and Obiga Kania v the Attorney General** in accordance with Article 132 (4) of the Constitution provides as follows:

> "The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law."

The jurisdiction of the Court of Appeal springs from Article 134 (2) of the **Constitution** which provides that an "... **appeal shall lie to the Court of Appeal** from such decisions of the High Court as may be prescribed by law". Section 10 of the Judicature Act Cap 13 similarly provides that an "... appeal shall lie to the Court of Appeal from decisions of the High Court prescribed by the Constitution, this Act or any other law". These laws confer on the Court of Appeal power to hear appeals only from the High Court.

With the greatest respect we do not accept Counsel for the Respondent's submission on two fronts. His argument that there is no single provision in the Uganda People's Defence Forced Act 2005 and the Court Martial Appeals Court Regulations S. I 307-7 that confers jurisdiction on this honourable court is clearly flawed. Regulation 20 (2) of the UPDF (Court Martial Appeal Court) Regulations **S. I 307-7** does purport to confer jurisdiction to this court but only where there is a sentence of death or a sentence of life imprisonment. Regulation 20 is essential to this appeal and so we shall set it forth in full. It provides that.

> "(1) Except as provided in sub regulation (2) of this regulation, any determination by the court of any appeal or other matter which the court has power to determine under the provisions of the Act or of these Regulations shall be final, and no appeal shall lay from the court to any other court.

> (2) In case of an appeal against a conviction involving a sentence of death or life imprisonment that has been upheld by the court, he Appellant shall have a right of further appeal to the Court of Appeal"

At the hearing of this appeal, on 24th of August 2021, this questioned regarding which the law that grants this court jurisdiction to hear the appeal was raised. Counsel relied on Regulation 20 of the UPDF (Court Martial Appeal Court) **Regulations.** We would once again spur with counsel on his interpretation of **Regulation 20**. His is of the view is that jurisdiction can be inferred to include cases beyond those mentioned. We respectfully disagree. Regulation 20 confers jurisdiction to the Court of Appeal to hear Appeals from the Court Martial Appeal Court where the Court Martial Appeal Court has passed a sentences of Death sentence or Life Imprisonment. In the matter before us the Appellant was sentenced to 30-year. I would therefore adopt the reasoning of this court in Pte Muhumuza Zeph v Uganda (Supra) where this court declined to entertain the appeal from a sentenced to 30 years imprisonment.

The right to appeal is a creature of statute. An appeal founded on a particular law. Where no such legislation exists, no appeal lies. This is equally the understanding under International Human Rights Law. Uganda is a signatory to International Covenant on Civil and Political Rights having ratified the same. Article 14, paragraph 5 of the Covenant provides that 'anyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law.' The Human Rights Committee in its 19th session in Geneva held on 9 to 27 July 2007 passed General Comment No. 32 that expounded on the meaning of obligation of state parties under Article 14. In paragraph 41 of the **General Comment 32**, the Committee explained that Article 14, paragraph 5 is violated not only if the decision by the court of first instance is final, but also where a conviction imposed by an appeal court or a court of final instance, following acquittal by a lower court, according to domestic law, cannot be reviewed by a higher court. In this case the appellant was convicted by the Divisional Court Martial. She appealed to the General Court Martial and her conviction was upheld. A second appeal was lodged at the Court Martial Appeal Court. She lost the appeal

but her sentenced was reduced from 40 years imprisonment to 30 years imprisonment. Given the above processes it cannot therefore be said that her right of appeal has been violated and that there was no recourse to the law.

While we agree with Counsel for the Appellant that it is about time this court harmonised the conflicting decisions in as far as appeals from the Court Martial Appeals Court are concerned with defer from his proposal to adopt the cases of Lt. Col. John Kaye v Uganda (Supra) CACA 315 of 2015 which followed the case of Lt. Ambrose Ogwang v Uganda (Supra) CACA 197 of 2013 as cases where this court for reasons given below. While this Court is bound to follow its own decisions and the only exceptions to this rule were stated in Young v Bristol **Aeroplan Company Limited, [1944] 1 KB 718 as:**

> (1.) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.

> (2.) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of a superior court; and

> (3.) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.

It should be noted that Lt Ambrose Ogwang Vs Uganda CACA No. 107 of 2013 is distinguishable from the present one. In Lt Ogwang, the appellant was indicted with the offence of murder and was sentenced to death by the Court Martial. On appeal to the Court Martial Appeal Court, this sentence was reduced to life imprisonment. Thus, when the matter came up on appeal in this court, the court was seized with jurisdiction under Regulation 20.

Secondly, given our pronounced on jurisdiction we would much rather follow **Pte** Muhumuza Zeph v Uganda (Supra) than the decision in Lt Ambrose Ogwang. In deciding the Lt Ambrose Ogwang, this court followed Sgt Kalemba Frank v Uganda Criminal Appeal No.18 of 1994 where appeals from decisions of the Court Martial Appeal Court had to go to the Court of Appeal and then the Supreme Court. The decision was based on Regulation 17 (2) of the National Resistance Army Court Martial Appeal Court Regulations and section 14 of the Judicature statute which have since been repealed.

We are conscious of **Michael Kabazingukura v Attorney General Constitutional Petition 45 of 2016 which** decided that trials of civilian in military courts were unconstitutional since court martials were found to be partial. However, the case is pending appeal in the Supreme Court and the orders and directives of the constitutional court were stayed pending that appeal. The Appellant therefore cannot benefit from the **Kabazigurula Case**.

We note that currently the controlling authority is that this court has no jurisdiction. Clearly, until the law changes this court has no option but to follow

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Pte. Muhumuza Zepha v Uganda CACA No. 031 of 2016 and Haloga Humphrey v Uganda CACA No. 259 of 2016.

Having found as above, we can safely conclude that the Court of Appeal does not have jurisdiction to entertain this matter and therefore the appeal ought to be dismissed. We do sincerely hope that the question; whether trials of civilians in court martials are constitutional; will be put to rest once and for all.

As it stands now, this appeal is herewith dismissed for lack of jurisdiction.

Signed this $3^{\circ}$ Day of $\mathbb{N}$ 2021

Sumprimos.

Hón. Mr. Justice Fredrick Egonda-Ntende Justice of Appeal

Boardson

Hon. Lady Justice Catherine Bamugemereire Justice of Appeal

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Hon. Mr. Justice Christopher Madrama Justice of Appeal