Nahabwe v Uganda (Criminal Appeal 48 of 2012) [2020] UGCA 2143 (13 November 2020)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT FORTPORTAL Coram: Kakuru, Madrama and Mulyagonja, JJA CRIMINAL APPEAL NO.048 OF 2012

NAHABWE LIVINGSTONE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

UGANDA:::::::::::::::::::::::::::::::::::

# (Appeal from the decision of Hon. Mr. Simon Byabakama Mugenyi, J (as he then was) dated 17th February, 2012 in Fort Portal Criminal Session Case No. 004/2010)

## Introduction

This is an appeal against the decision of the High Court sitting at Mubende in which the appellant was convicted of the offence of Murder contrary to section 188 and 189 of the Penai Code Act, Cap 120 and sentenced to 45 years of imprisonment, on $17$ th February, 2011.

## **Background**

The facts giving rise to the appeal are that the deceased, Kashubeho Amos was a resident of Kamusenene Village, Bwiizi Sub County in Kamwenge District. It was alleged that he, prior to his death, was involved in domestic wrangles with his wife Tamwesigire Peninah (A2 at the trial) which resulted in their separation. That his wife intimated to one Bwantoryo Arons that she would kill her husband if he sold off their cows, before killing the buyers. Further that the appellant and Turyomurugyendo Willy (A7 at trial) forcefully created an access road through the deceased's land with the support of his wife.

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It was further alleged that on 5h April, 2009, the deceased confided in Rugumayo Amos that he feared for his life because his wife together with Mephasi, her lover, were conspiring to kill him' Further that two days after that, he expressed similar fears to Mwesige Rukyekyeka.

It was also alleged thet on 10tt' April, 2009, at around 10pm, while the Bashubeho was asleep with two children in his house, a group of 1O attackers went to the house and hit the door open. The children were prompted to quietly leave the house leaving the deceased behind. That the attackers went to the deceased's bedroom and beat him up. That during the scuffle, Bashubeho was eventually overpowered and killed. That Kashaija Francis, one of the attackers who got injured during the scuffle was killed by his mates for fear that if arrested he may betray him.

The children raised an alarm and attracted the atfention of the Chairman Local council I and other villagers who came to the scene of crime and found Beshubeho and Kasheija dead. The attackers had already fled the scene. That on 13th April, 20O9, when the appellant was found in a bush, he stated that the swellings on his face were a result of a scuffle he and others were involved in as they strangled the deceased with a rope,

Upon examination, the cause of death of Beshubeho Amos was established as strangulation, leading to blockage of the trachea which resulted in cut off of blood supply to the brain. The cause of death of Kasheija Francis was also established as strangulation leading to cut off of blood supply to the brain. The appellant was examined and found to be of sound mind. He and 6 others were indicted for murder.

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At the trial, the appeilant pleaded not guilty. Prosecution relied on 9 witnesses to prove its case. The appellant gave sworn evidence but did not call any witnesses. He stated that on the fateful night, he was at his home when he heard an alarm. He went to Basubeho's home where people had gathered and found him and Kasheija dead. He stated that he kept vigil with others and spent two nights at his uncle's home. He alleged that on the third day, when he left to graze his goats, he was beaten and arrested by some people and eventually made to falsely implicate his co-accused at trial.lt was his defence that he was \*.aken to the police station in pain and with a broken rib, asked questions with regard to his uncle's death and made to sign a statement under duress.

The trial Judge relied on the confession of the appellant which was corroborated by other evidence to convict and sentence him to 45 years of imprisonment on each count of murder. He appealed against the sentence to this court and raised 2 grounds of appeal as follows:

- 1. The learned trial Judge erred in law and in fact when he imposed sentence on the appellant without complying with the Constitution of the Republic of Uganda and in the result rendering the sentence illegal. - 2. The learned trial Judge erred in law and in fact when he imposed a manifestly harsh and excessive sentence of imprisonment for 45 years on the appellant.

# Representatlon and submlrsiona

At the hearing of the appeal, the appellant was represented by Mr. Collins Acellam on State Brief. The respondent was represented by Ms' Fatina Nakafeero, Chief State Attorney. Due to the standard operating procedures issued by Ministry of Health during the Covid- 19 pandemic, the appellant

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did not physically attend court. But he was able to follow the proceedings and participate by video link, from Fort Portal Main Prison.

Counsel for both parties filed written submissions which were adopted by leave court. But they in addition addressed court briefly on the appeal.

## Resolution of the appeal

With regard to the first ground, Mr Acellam submitted that there was no indication on the record that the trial judge took the period that the appellant spent on remand into consideration when he imposed the sentence of 45 years. That this was in contravention of Article 23(8) of the Constitution. He relied on the decision of the Supreme Court in Rwabugade v. Uganda, SCCA No 25 of 2015, for the submission that taking the period of remand was interpreted to be arithmetical and the period spent on remand must be specifically credited to the accused person by deducting it from the sentence of imprisonment imposed. He further relied on Kabwiso v. Uganda; SCCA No. 7 of 2002 where the Supreme Court held that a trial judge who stated that the period spent on remand into account had been taken into account before he imposed a period of imprisonment of 15 years made an ambiguous statement.

However, Mr Acellam abandoned this ground when he was faced with the statement on the record where the trial judge during the sentencing process used exactly the same expression as that which is contained in Article 23 (8) of the Constitution when he ruled that:

"In the premises the convict is hereby sentenced to 45 year's imprisonment in Court 1 and also 45 years' imprisonment in Count II, taking into account the period spent on remand. The said sentences are to run concurrently."

This is because Article 23(8) of the Constitution provides that:

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Where a peraon 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 trial shall be taken into account in imposing the term of imprisonment. I

Mr Acellam then abandoned the first ground artd went on to argue the 2"d ground of appeal.

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With regard to the second ground of appeal, Mr Acellam submitted that the sentence of 45 years was harsh and excessive because it was above the period of 20 years that is considered to amount to a Iife sentence under the Prisons Act when remission is applied. He added that the appellant committed the offence with other persons who were not convicted. In view of the fact that persons convicted of murder are awarded lesser sentences, he submitted that it was incumbent upon courts to rationalise sentences and give appropriate sentences depending on the gravity of the offence.

In reply, Ms Fatinah Nakafero submitted that the appellant should be sentenced to a term of imprisonment similar to that which was awarded by the Supreme Court in Rwabugande v. Uganda (cited above). She prayed that he be sentenced to 2l years of imprisonment. Mr Acellam did not offer a rejoinder to the proposal that was made by Ms Nakafeero.

The duty of this court as the ltrst appellate court is set out in rule 30(1) of the Judicature (court of Appeal Rules)Directions. It is provided that on a hrst appeal, the duty of court is to re-appraise the evidence and come up urith its own inferences on all questions of law and fact. It was held in Klfamunte Henry v. Uganda, Suprerne Court Criminal Appeal 1O of 1997' that while doing so the court should have regard to the fact that it did not see or hear the witnesses and so caution should be taken by the court while reevaluating the evidence.

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We shall therefore proceed to re-evaluate the evidence on record relating to the sentence that was handed down to the appellant and come up with an appropriate sentence, taking into consideration the submissions that have been advanced by counsel at the bar.

In his statement praying for the sentence of the appellant, Mr Baine stated that the convict was a first offender who had been on remand for a period of 2 years and 8 months. That the maximum sentence for the offence is death. Further that the two deceased persons were innocent and did not deserve to die in such a painful manner. He added that such offences were rampant and the maximum sentence should therefore be imircsed.

In mitigation, Mr Musinguzi prayed that the time spent on remand be taken into account. He stated that the appellant was remorseful; he has a family of two children and a wife under his care. Further that he was only 22 years old and so a very young man and therefore the prosecutions prayer that he be awarded the maximum sentence was not appropriate. He prayed for a lenient custodial sentence that would enable the appellant to reform.

The trial judge expressed his outrage as follows:

"I haue carefullg considered the arguments of both sides on sentence. The deceased persons u)ere murdered in bizarre ciratmstances, being friends and dging at the same time, Thc conuict and uhoeuer assisled him in his gisly act did not show ang mercA on the deceased persons. Tle taking of huma life in such circumstances is clearlg repugnant and the court has aduty to deal resolutelA and firmIA uith offenders and also send a strong utarning to would-be offenders. It is qtite sLncking tLnt the conuict, a Aoung man of 2O years could indulge in such horrific cime. I belieue members of society uould feel safer without the likes of him. The ciranmstance of this case clearlg require the imposition of tle maximum penalty."

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However, the trial judge did not give him the maximum sentence. He considered that he was a young man and that for that reason, he deserved some leniency. He therefore convicted him to 45 years in prison on each count, having taken into account the period spent on remand.

We note from the facts that this was a double murder; two friends were murdered by the same person in similar circumstances. It must have been a great shock to members of their families and residents of the area in which the two lived. However, this court is concerned about the disparity of sentences for similar offences. But we are constrained by the law in that we cannot freely exercise out discretion to vary or reduce sentences imposed by the trial court. This is because sentencing is exercised upon the discretion of a trial judge.

The principles that govern sentencing have been laid down by the Supreme Court in various decisions including Kyalimpa v. Uganda, Crlminal Appeal No. 10 of 1995, Livingstone l(akooza v. Ugaads' Supreme Court Criminal Appeal No. 17 of 1993 and Kisalabye Bernard v. Uganda, Supreme Court Criminal Appeal No. 143 of 2OO1. In Kiwalabye Bernard, the Supreme Court reiterated the principles upon which the appellate court can interfere with the sentence of the trial court as follows:

"The appeltate court is not to interfere with the sentence imposed by a t-ilal court t'hich has exercised its discretion on sentence unless exercise of the discretion is such that it results in the sentence imposed to be manikstla excessiue or so lout as to amount to a miscarriage of justice or where a tial courl ignores to consider an tmportant matter or ciranmstances which ought ta be considered uhile passing the sentence or where the sentence imposed is wrortg in pnnciple."

It is also a long-standing principle that the appellate court should not interfere with the sentence of the trial court simply because if it was placed

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in the same circumstances it would have imposed a lower or higher sentence. This principle was laid down in Ogalo s/o Owoura v. Republic [1953] 24 rAcA 270.

Counsel for the appellant stated that the sentence awarded to the appellant was much higher than what is considered to be the next highest sentence which is life imprisonment, in that it is above the accepted standard of 20 years which is considered under the Prisons Act and Rules for purposes of remission. He argued ttrat the trial judge did not consider that a being young man, the appellant could reform and in view of that possibility, the sentence of 45 in prison was harsh and ought to be set aside by this court and substituted by a more appropriate sentence.

Mr Acellam cited the decisions of this court in Mwesige Peter v, Uganda' Crlminal Appeal No. 527 of 2OL4, where the appellant was convicted for murder of a village mate by cutting her on the head, neck and arms with a panga. His sentence on a plea of guilty was 35 yeais. On appeal this court considered that a sentence of 15 years would be appropriate.

He also cited the decision of this court in Anguyo Robert v. Uganda, Court of Appeal Crimlnal Appeal No 48 of 2OO9, where a sentence of 2O years was set aside and substituted with imprisonment for l8 years. The appellant in that case was convicted of murder of his uncle by assaulting him on the head with a hammer. It was considered that he was a first offender. Mr Acellam therefore prayed that the appellant's sentence be set aside and substituted with a sentence of 15, years after taking the period he had spent in lawful custody before conviction into account.

ln reply, Ms Nakafeero agreed that there is need for consistency in sentences. That since previous decisions indicate that lesser sentences have been awarded for the same offence, as was done by the Supreme Court in the

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Rwabugande case, the appellant's sentence may be reduced to 2l years tn prlson.

It was conceded that the sentence that was imposed by the trial judge was not an illegal sentence because he did take into account the period that the accused had spent in law{ul custody before conviction. However, he did not seriously consider the fact that the appellant was still a young man with many more years in which he could reform and become a useful citizen to the nation and his famiiy.

We have also considered that the appellant was a relative ofone the deceased persons and that courts ought to promote opportunities for reconciliation as provided for in Article L26 (21 (d) of the constitution. a very long time of imprisonment in circumstances where the appellant was a relative of one of the victims would only lead to unforgiveness and bitterness among the family members. This should always be considered and addressed by courts.

This court is also concerned about the disparity ofsentences that are handed down by the High Court for similar offences to accused persons that are incarcerated in the same prison facilities across the country. These disparities cause doubt in the minds of the inmates about the fairness and rationality of decisions made by the courts. we are under an obligation to bring about rationalisation of decisions in order to improve trust and confidence in the judicial process.

Therefore, taking into account the aggravating and mitigating factors that were advanced before the trial judge, the decisions cited to us by counsel for both parties, we consider that a senten ce of 24 years would be appropriate in the circumstances of the offences that the appellant was convicted for. Taking into account the period of remand of 2 years and 8 months that the appellant was in lawful custody before conviction, we now sentence the appellant to serve a period of 22 years and 4 months imprisonment

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commencing from the date of convicticn, the 17th February 2012. The sentence of 45 years is therefore hereby set aside and substituted with a sentence of 22 years and 4 months on each count, to run concurrently.

We so order.

lh Dated at Fort Portal this t3 Day ofNovember, 2020.

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Kenneth Kakuru JUSTICE OF APPEAL

Chri st()pher Madrama JUSTICE OF APPEAL

1,^\* lrene Mulya

JUSTICE OF APPEAL