Otim v Uganda (Criminal Application 14 of 2018) [2020] UGSC 60 (1 June 2020)

Full Case Text

# THE REPUBLIC OF UGANDA INTHTSUPREMECOURTOFUGANDA AT KAMPALA

' CORAM: (KATUREEBE C. J; XISAAKYE; OPIO-AWERI; TIBATEMWA; MUGAMBA; JJ. S. C.)

# CRIMINAL APPLICATION NO. 14 OF 2018

## OTIM MOSES : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPLICANT

#### VERSUS

# UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(An application for review arislng from Crlminal Appeal No, O6 of 2016 of the Supreme Court {Arach-Amoko, Mwangusya, Opio-Aweri, Mwoodha and Nshimye, JJSC) dated 25tt'May, 2O181

#### RULING

,.+.

# Introductlon

This is an application for review of the decision of the Supreme Court delivered on 25th May 2Ol8 dismissing the Applicant's appeal against conviction and sentence for Murder and Aggravated Robbery, thereby confirming a sentence of death. The application was brought pursuant to Article 132(4) of the Constitution of the Republic of Uganda and Rules 2(2) and 35 of the Judicature (Supreme Court Rules) Directions. The application sought the following declarations and orders:

A declaration that the Applicant's case is a proper case for reconsideration by the Supreme Court, by reason of omission and misdirection of itself. I

- 2. A stay of execution of the sentence of death imposed upon the Applicant on 30th April 2O1O by the Hon. Lady Justice C. A. Okello sitting at the High Court holden at Lira, and later conl"rrmed by the Supreme Court on 25th May 2O18. - 3. A declaration that the Supreme Court panel which delivered the decision of 25th May 2018 was required by law to have regard to domestic and international jurisprudence governing the discretionary application of the death penalty, as also reflected in the Sentencing Guidelines Section 17 Part VI of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2O 13, and that omission to have such regard amounted to a miscarriage of justice. - 4. A declaration that the Supreme Court omitted to have regard to the only admissible evidence relating to the Applicant's age, when determining whether the Applicant was under 18 at the time of the alleged offence, and that the omission to do so amounted to a miscarriage of justice. - 5. A declaration that the Supreme Court omitted to have regard to a number of relevant factors when determining the sufficiency of the identification evidence in the case, and that the omission to do so amounted to a miscarriage of justice. - 6. That the conviction and sentence in this case be set aside. - 7. Provision for the costs of this application.

The grounds of the application are set out in the Notice of Motion and in the affidavit in support of the application sworn by the Applicant. The grounds are summarized as follows:

1. The Supreme Court erred in confirming the law{ulness of a discretionary death sentence in the present case, since;

- a) The High Court and the Court of Appeal did not refer to, or apply, the mandatory test for the discretionary application (sic) of the death penalty. The Supreme Court had before held in Mbunga GodfreS a. Uganda Crlmlnal Appeal No. 4 of 2OII that a death sentence should only be imposed in very grave and rare circumstances, lest the applicant be deprived of any opportunity to reform, or reconcile with the community. The Supreme Court therefore erred in confirming the death sentence without satisfying itself that lower courts had applied this test, or without applying the test itself. - b) The foregoing test was further elaborated in the case of Kaleubt Paul and Another a. Ugdnda Crlmlnal Appeal No. 726 of 2OOa which stated that the assessment as to whether an individual was capable of reform or rehabilitation consequent to a custodial sentence should only be made upon consideration of expert evidence. In the present case, no such expert evidence was sought or considered by the lower courts, vitiating confirmation of the sentence by the Supreme Court. - c) The said test was also given expression by Section 17 Part VI of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013, which states that the ucourA may onlg pcss (t sentence of death 7n exceptlonql clrcam.stances ln the 'm.rest of the ra.re' ccses where the olterflo,the of lmprlsonment for ltfe o? other custodldl sentence ts d,emonstrablg lnadequate". No reference was made in the lower courts to this principle, further vitiating confirmation of the sentence by the Supreme Court. - d) Regional and international jurisprudence on the lawful application of the discretionary death sentence maintains the same test as per the authorities relied upon by the Applicant.

- e) Mitigating factors relevant to the above test were not considered, or considered sufficiently, at all. The factors included the Applicant's youthful age, as a factor affecting his potential for rehabilitation, and the Applicant's lesser role as affecting classification of the case as the rarest of the rare. - 2. The Supreme Court erred in its approach to the evidence of the Applicant's age, in that; - a) The Court relied on Counsel's submission that the Applicant was 25 years old; but that submission was unsupported either by admissible evidence or instructions from the Applicant. The only euidence of the Applicant's age was that which the Applicant himself provided on oath, where he stated he was u21 yeers of age'. - b) The Court omitted to have regard to the fact that Counsel TWonto Obaa who mitigated the case was holding brief for trial counsel, Mr. Innocent Omara, and according to the record, arrived at Court at lo.l0 am after the Applicant appeared in the dock at 9.33 am. Counsel thus had no opportunity to take instructions from the Applicant, as to age or otherwise. - c) Once the Applicant had raised the issue of his being under 18, in mitigation, the burden of disproving that fact to the required standard fell on the prosecution. The prosecution did not discharge this burden. - d) On the only admissible evidence before the Court, the Applicant was under 18 years of age at the time of the offence, in which case, a sentence of death could not have been imposed as per Section 9a(1)(g) of the Children Act, Cap 59.

- 3. In assessing the safety of the identilication evidence, the Supreme Court omitted to consider the following relevant evidence; - a) The Frosecution's failure to provide evidence of the composition of the identification parade; the procedures adopted therein; together with the words used by each witness when identifying the Applicant. This deprived the Applicant of the opportunity to test the central piece of evidence against him. - b) The fact that prosecution witnesses did not tell police at the outset that the Applicant lived in their area and was previously known to them. - c) The refusal of prosecution witnesses to explain to the trial court why they did not initially tell police that the Applicant was known to them. - d) The Prosecution's failure to provide evidence as to what the Applicant said on arrest and interview, which may have exculpated him. - 4. In view of the grounds set out above, the Applicant prayed that his conviction and sentence, confirmed by the decision of the Supreme Court on 25th May 20 18, should be set aside, or in the alternative and without prejudice to the foregoing, that the Court should impose a lawful sentence upon trim.

No affidavit in reply was filed for the Respondent. The parties were directed to file written submissions. They did.

### Representation

At the hearing, the Applicant was represented by Ms. Jackline Lule from M/s AF Mpanga Advocates. The Respondent was represented by

Mr. Peter Mugisha, State Attorney, from the Office of the Director of Public Prosecutions.

## - Brlef Background

The Applicant was indicted together with Odur Moses and Emeny Patrick on two counts of Murder contrary to Sections 188 and 189 of the Penal Code Act and Aggravated Robbery contrary to Sections 285 and 286 (2) of the same Act. Charges against the other two accused persons were dropped by the DPP. The Applicant was tried, convicted as charged and sentenced to suffer death on the first count of murder. The sentence on the second count of aggravated robbery was suspended. The Applicant later appealed to the Court of Appeal against conviction and sentence but the appeal was dismissed. The Applicant appealed to the Supreme Court against confirmation of the sentence by the Court of Appeal. The Supreme Court found no merit in the appeal. It dismissed the appeal and confirmed the sentence imposed by the High Court and confirmed by the Court of Appeal. The Applicant now brings this application seeking a review of the decision of this Court upon the law and the grounds set out herein above.

## Submlssions of Counael

Counsel for the Applicant in their submissions compressed the Applicant's grounds of the application into three grounds, but largely reiterated the grounds enumerated in the affidavit as highlighted above namely;

(i) The Supreme Court erroneously confirmed the 'lawfulness' of the sentence of death, in circumstances where the High Court and the Court of Appeal had failed to apply the mandatory test for imposition of such a sentence, thereby making confirmation of the sentence of death a nullity.

- (ii) The Supreme Court's assessment of the evidence of the Applicant's age was based on inadmissible evidence which, if correctly assessed, would have meant that the Applicant was not legally eligible for a sentence of death. - (iii) The Supreme Court's assessment of the safety of the identification evidence in the case omitted to consider a number of relevant pieces of evidence.

On the powers of the Supreme Court to review its own decisions, Counsel for the Applicant submitted that the Court's powers are derived from Article 132 (4) of the Constitution which states:

The Supreme Court mag, while treating its own preuious decisions as normallg binding, depart from a preuious decision when it appears to it nght to do so; and all other courts shall be bound to follow tle decisions of the Supreme Court on questions of lau.

Counsel for the Applicant also relied on Rule 2(2) of tte Judicature (Supreme Court Rules) Directions which gives the Supreme Court wideranging powers to reconsider, vary, or set aside its own decisions.

Counsel submitted that the Supreme Court has repeatedly stated that the Court's jurisdiction under the Rules is a \,vide discretion'in order to enable the Court make such orders as will 'achieve the ends of justice'. Counsel referred to the case of Mohammed Mohamed Hamtd u Roko Constntctlon Llmlted lfiscellaneous Appllcatlon No. 23 of 2O17 [2014 UCSC 39 (16 August 2014. Counsel further submitted that in the case of lbrahlm Ruhweza as Uganda Crtmlnql Appllcatlon No. 7 of 2O74, the Supreme Court exercised its powers and quashed a sentence of death previously imposed by itself.

On ground I as paraphrased by Counsel for the Applicant, Counsel submitted that the High Court and the Court of Appeal did not address their minds to the mandatory test (sic) to be applied before a sentence of death was imposed and upheld respectively. She argued that consequently, the sentence of death imposed by the trial Court and confirmed by the Court of Appeal was wrong in law. Counsel submitted that the Supreme Court made a similar omission in its subsequent conlirmation of the sentence of death without any reference or application of the mandatory test in the lWhunya ccse and in the Sentencinq Guideline s.

Counsel for the Applicant submitted that the Court's duty when determining whether the sentence in a capital case is lawful as set out in Article 22(ll of the Constitution which provides that the deprivation of life shall be unlawful, unless;

- i) The sentence has been imposed following a fair trial; - ii) The sentence has been imposed by a court of competent jurisdiction in respect of an offence under the laws of Uganda; and - iii) Both conviction and sentence have been confirmed by the highest appellate court.

Counsel submitted that the confirmation referred to in Article 22 encompasses a right for every applicant to have the legality of a capital conviction and sentence reviewed by the Supreme Court. Counsel submitted that confirmation is not automatic, but discretionary and that it will be withheld if a death sentence was unlawfully imposed. Counsel relied on the case of AtCorneg General u. Susan Ktgula & 477 Ors Constlttttlonal Appeal JVo. O3 of 2OO6. Counsel further submitted that consequently, the rule of finality in legal proceedings and the Rules of the Supreme Court as to procedural requirements cannot fetter the

discretion of the Supreme Court in reviewing and determining the lawfulness of a death sentence.

Counsel for the Applicant relied on the decisions rn lllbunga Godfreg (supra), Kakubt Paul and, Anor (supra) and. LDU Kgarlkunda Rlchard v, Uganda, Crimlnal Appeal No. 296 of 2OO9, as well as Sentencing Guidelines to submit that the correct test for confirmation of a death sentence was not observed and applied by the trial Court, the Court of Appeal and the Supreme Court. Counsel submitted that the three-stage test has also been supported by well-established regional authorities such as The Stqte a, lfio,kwa,ngo,ne [7995] /3, S.e. 39I, wherein the Supreme Court of South Africa held that the death sentence should only be imposed:

- i. In the most exceptional cases; - ii. Where there is no reasonable prospect of reformation; and - iii. The object of punishment would not be achieved by any other sentence.

Counsel concluded that in this case the failure by the Courts herein to apply the correct test violated Article 22 (11 of the Constitution and the conlirmation of the death sentence by the Supreme Court was contra-ry to the law.

On ground 2 Counsel submitted that the Supreme Court erred in its approach to the evidence of the Applicant's age and that had the Court addressed the matter correctly, it would have found that the Applicant was under the age of 18 years at the time of the offence, and was therefore, not eligible to a death sentence. Counsel cited Section 9a(lXg) of the Children Act which makes it unlawful to impose a sentence of death on a child. Counsel stated that the said provision was in line with international jurisprudence. She referred to the UN Safeguards Guaranteeing Protection of the Rights of tlwse facing the Death Penalty . (1984), (by the UN Economic and Social Council), in this respect.

Counsel submitted that in the instant case, the only admissible evidence on the Applicant's age was that which the Applicant himself provided on oath that he was 21 years at the time of the trial and sentence. She added that no contrary weight should have been placed on a separate remark by the Applicant's Counsel that he was 25 years old; given that, that submission was unsupported either by admissible evidence or instructions from the Applicant himself. Counsel emphasized that the Counsel who made the remark in issue was holding a brief for another Counsel who had participated in the trial. She asserted that this counsel himself arrived late in Court. Counsel submitted that the sentencing phase is part of a fair trial and that by opting for inadmissible evidence over admissible evidence, the Courts had failed to afford the Applicant a fair tria.l.

On ground 3, Counsel for the Applicant opted to rely on the matters set out in the Notice ol Motion in respect of the aspects relating to identification evidence.

Counsel for the Applicant concluded that the Applicant's conviction and sentence, confirmed by the decision of the Supreme Court on 25tn May 2018, should be set aside and that the case should be remitted to the lower courts either for retrial or, in the event that this appeal is allowed against sentence alone, for re-sentencing.

In reply, Counsel for the Respondent opposed the application and submitted that the evidence surrounding the Applicant's age was rightly appraised by the Supreme Court and that the Court came to a correct .finding. In that connection Counsel referred to the finding of the Court on page 7 of the judgment. Counsel for the Respondent submitted that the claim by the Applicant that he had no legal representation or that he never gave counsel instructions nor tell him that he was 25 years, or that he did not know how to plead for his own rights; are untenable and an afterthought since no such issues were raised either at the trial or in any of the appellate courts. Counsel for the Respondent submitted that the Applicant was duly legally represented at all court levels and that he never at any time challenged his legal representation nor disputed any information from his counsel as being untrue. However, upon being challenged by Court on the issue of the evidence of age of the appellant counsel conceded that the courts had not correctly addressed it.

Regarding the claim by the Applicant that the Court did not correctly assess the identification evidence, Counsel for the Respondent submitted that this claim was misplaced as this ground was never raised in the appeal before the Supreme Court and that as such the Court cannot be faulted for not making a finding on an issue that was not brought to its attention. Counsel submitted however that in the judgment of the Court of Appeal, the evidence of identification was covered at length and that the Court established that the Applicant was correctly identified as the prosecution evidence adduced at the trial shows.

On the sentencing principles to be followed before conlirmation of a sentence of death, Counsel for the Respondent submitted that the claim by the Applicant was untenable since the principles were followed by the trial court where the trial Judge considered both the aggravating and

mitigating factors before sentencing the Applicant. He added that the same principles were taken into account by the Court of Appeal before confirming the sentence. Counsel submitted that, as such, the Supreme . Court cannot be faulted for not reducing the death sentence when no satisfactory mitigating factors were brought to its attention by the Applicant at the hearing of his appeal. Counsel relied on the holding in the case of No,mllranJe Paullne uersr.s Ugand,a Supreme Coura Crlmlnal Appeal No. 74 of 2OO9 for that submission. Counsel for the Respondent prayed that the application for review be dismissed.

## Review by the Supreme Court of its own Decisions; The Legal Position

It is settled law that the decision of this Court on any issue of law or fact is final and a losing party cannot seek for its reversal. The same court cannot sit to hear an appeal against its own decision. From the law and practice however, circumstances arise in which this Court may be called upon to revisit its decisions. These were contemplated under the Rules of this court and were embedded in Rules 2(2) and 35(1) of the Judicature (Supreme Court Rules) (Directions) S. I 13 - l1 [hereinafter called Rules of the Courtl. These are the provisions that parties have often pleaded to invoke the inherent powers of the Court to revisit its own decisions.

For avoidance ofdoubt, Rule 2(2) ofthe Rules ofthe Court provides:

Nothing in these Rules shall be taken to llmlt or otherwlse affeet the lnherent power of the coura, and. the Court of Appeal, to make such orders as mqg be necessary Jor achleulng the ends ofJustlce or to preuent abuse of the process of ang such court, o'nd thqt power shall extend to settl nq asid.e ludoments

'IJhich haue been oroued null and uold after thea hoze been passed,. and shall be exerclsed to Preaent an abuse of the process of ang coura caused bg delag. [Emphasis added]

Rule 35(11 ofthe Rules ofthe Court provides:

A clerlcal or arlthmetlcal mlstake ln ang Judgment of the court or ang error arlslng in lt from an accldental sltp or omiss{on mag, at any tlme, whether beJore or afier the Judgment has been embodled ln o:tt order, be corrected bg the coura, elther ot Its own motlon or on the applicatlon of ang lnterested Person so as to gtoe effect to what was the lntentlon of the courl uhen fudgment uas glaen.

From the above provisions of the law, it is clear that while rule 2(2) of the Rules extends to substantive errors of judgment on the part of the Court, rule 35(1) of the Rules is restricted to accidental errors or omissions on the part of the Court. These provisions summarize the instances when the Court can on its own motion or when called upon to do so give a second look at its decision not ln appeal but ln review' Specihcally rule 2(2) shows that the Court may review its judgment for purposes of: (i) achieving the ends of justice; (ii) preventing abuse of process of the Court; and (iii) setting aside its judgment that has been proved null and void after it has been passed.

The powers of the Supreme Court, as a final court of appeal, to review its own decisions have been extensively discussed in a number of cases both from within and outside Uganda as will be shown in this judgment. We have found it pertinent to lay out the parameters under which the inherent power and discretion may be exercised by the Supreme Court.

As noted earlier the position of the law is that a pafty is not entitled to seek a review of a judgment of the Supreme Court merely for the Purpose of a rehearing so as to seek a fresh decision of the case. This would . tantamount to an appeal. In principle, a judgment pronounced by this Court is final, and departure from this principle is justified upon circumstances of a substantial and compelling character being established to the court's satisfaction. Such circumstances may include where;

- a) Clearly a wrong has been done and it is necessary to Pass an order to correct it in the interests of justice. - b) The decision embedded in the judgment has been proved to be null and void in law; that is, it particularly violates provisions of the law. - c) Under Rule 35, known as the slip rule where some arithmetical or obvious mistake is clear on the record. - d) It is shown that enforcement of the decision will amount to an abuse of due process.

The above position is manifested in a number of decisions of this Court including Isaga Kalga & 2 Others a. hloses Macekengu lkagobga Supreme Court Cttttt Appltcatton No. 28 of 2075; Orlent Bank o' Fredrlck Zaabue & Anot, Supreme Cout't Ctull Appllcatlon No' 77 of 2OO7; Seuanyana u. Martin Allker, Supreme Court Ctuil Appllcatlon No, 4 of 7997.

There are also persuasive decisions from other Jurisdictions on this point such as Norahern Indla caterers (Indta) o. Lt. Got]€.ntor of Delhl IgaO SCR (2) 650; o;nd Gitdhartlal Gupta v. D. H. Mehta & Anor [197113 SCC r89.

## Consideratlon of the Application for Review

We have opted to handle the grounds of this application in the order they were argued by Counsel for the Applicant.

Let us begin with two preliminary matters that feature in the submissions of the Applicant's Counsel which we consider to constitute a distortion of the legal position and which this Court should not allow to stand. The first matter concerns Counsel's reliance on Article 132 of the Constitution as a basis for this application. The second matter concerns reference by Counsel for the Applicant to a 'Tnandatory test for lmposltlon of a sentence oJ death".

On the first point, Counsel for the Applicant invoked Article 132 of the Constitution as one of the provisions upon which the present application was based. Article 132(41 of the Constitution of the Republic of Uganda provides -

The Supreme Court mag, whlle treattng tE own preulous decdslons as nonnally blndlng, depara from a preulous d.eclslon uthen 7t a;ppeo;rs to tt rtght to do so; o,nd oll other coutas shall be bound to follout the d,eclslons o/ the Supreme Coura on questlons of law.

The above provision was not meant to cure the kind of mischief that is the subject of a review application. In a review application, the court is still deating with the same case and same parties. It is exercising a specific discretion given by Rule 2(2) or Rule 35 of the Rules of this Court. On the other hand, Article 132(a) of the Constitution was meant to give liberty to the Supreme Court to reconsider its own earlier

decisions on matters of law. The position taken by the Supreme Court in a decision does not have to be challenged first in order for the Court to ' make use of this provision. The Court may, upon changed . circumstances, depart from the legal position it took earlier, not necessarily because that position was wrong, but because the law and circumstances require a change in the Court's legal position. It is also true that sometimes the Court may be invited to depart from its earlier decision on matters of law. In other words, it is a provision meant to make the Court progressive and to foster its role in the development of jurisprudence. As such the impugned provision was wrongly invoked by the Applicant's Counsel in the present application.

On the second matter, Counsel for the Applicant made reference to a 'mandatory test for imposition of a sentence of death'as set out in the case of Mbunga Godfieg v. llgonda (supra), Ilakubl Pqul & Anor a. Itganda (supra) and Section 17 under Part VI of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2O13. To begin with, we are not aware of the existence of such a principle as the 'mandatory test for imposition of a sentence of death'. Secondly, even the authorities cited by Counsel impute no such mandatory nature. ln tl:e Mbunga co,se, the Supreme Court held that:

[T]he Death sentence should be passed ln aery graoe ond rare circumstances because of tts finalitg. When a death sentence ls executed., the Appellant has no chance of refonn and/or to reconclle wtth the communitg.

In the Kakubi Paul ccse, the Court of Appeal held that:

The death penaltg should onlg be lmposed in clrcumstonces whlch establlsh the graaest of extreme culpabtlttg and uhere a

court determlnes that tndiutdual refonn and rehabllltatton consequent to a custodlal sentence would be lmpossible. This assessment should onlg be made upon consld,eratlon of expert euidence.

Section 17 under Part VI of the Sentencing Guidelines provides:

The court mag onlg pass a sentence of death in exceptional circumstances in the "rarest of the rare" cases u.there the altematiue of imprisonment for life or other custodial sentence is demonstrablg inadequate.

Clearly, none of the above authorities are mandatory in nature in the guidance they give. The holdings by the Courts and the provision in the Sentencing Guidelines are recommendations of what the Court should take into consideration before imposing or confirming a death sentence. They do not in any way fetter the discretion of the Court. It was therefore erroneous on the part of Counsel for the Applicant to impute that the above quoted authorities impose on the Courts a mandatory requirement which if not complied with would make the court decision illegal. The same applies to authorities cited from other jurisdiction, for example the Makwanyane case from South Africa (supra). Suffice to say that those are persuasive authorities which the Court does not have to follow. They are helpful in guiding the court in the exercise of its discretion. But to assert that they are mandatory and seek to overturn the judgment of the Supreme Court on the ground that they were not followed is totally erroneous and untenable.

This brings us to the first ground of this application. As shown above, this ground was argued by Counsel for the Applicant under a misconception that there was a mandatory requirement on the part of

the Court to expressly classify the Applicant's case as qualifying to be called "the rarest of the rare". This is not correct. The question therefore is whether the Supreme Court exercised its discretion judiciously before . confirming the sentence of death against the Applicant.

In its judgment, the Supreme Court noted that the appeal before the court was against sentence only. The court considered the well settled principles upon which an appellate court can interfere with a sentence imposed by a lower court. The Court then evaluated the evidence on record and the contentions of the parties before the Court and came to the conclusion that it had not found it necessary to interfere with the sentence. This was a pure exercise of the Court's discretion. None of the issues raised herein under this ground were raised before the Court. For the Applicant and Counsel to raise them in this application, is tantamount to an exercise to seek a rehearing of the appeal. These issues do not fall within the ambit of matters that may be permitted under the window of review of this Court's own decisions. The first ground of the application therefore bears no merit and must fail.

Under the second ground, counsel for the Applicant submitted that the Supreme Court erred in its approach to the evidence of the Applicant's age. Counsel further contended that had the Court addressed the matter correctly, it would have found that the Applicant was under 18 years of age at the time of the offence, and therefore not eligible to be sentenced to death. Counsel relied on Section ga(lxg) of the Children Act which makes it unlawful to impose a sentence of death on a child' Counsel stated that the said provision was in line with international jurisprudence, citing the UN Safeguards Guaranteeirug hotection of the Rights of those facing the Death Penalty (1984). Counsel further submitted that in the instant case, the only admissible evidence on the Applicant's age was that which the Applicant himself provided on oath stating that the applicant was 21 years at the time of the trial and sentence. Counsel argued that no contrary weight should have been placed on a sepa-rate remark by the Applicant's Counsel then that he was 25 years old; since that submission was unsupported either by admissible evidence or instructions from the Applicant himself. Counsel emphasized that the counsel who made the said remark was holding brief for another Counsel who had participated in the trial and who had afterwards arrived late in Court. Counsel submitted that the sentencing phase is part of a fair trial and that consequently by accepting as true inadmissible evidence over admissible evidence, this Court and those below faited to afford the Applicant a fair trial.

In reply, Counsel for the Respondent initially submitted that the evidence surrounding the Applicant's age was rightly appraised by the Supreme Court and that the Court came to a correct finding. However as has already been pointed out above, Counsel did concede at the prompting of the court, that the court had erred in its consideration of the evidence as to the age of the appellant.

We must point out that we find strange the manner in which the evidence touching on the Applicant's age was considered by all the three Courts. The Applicant gave evidence on oath as shown by the record. He stated on record that he was 21 years on the 7th October 2009, at the time of the trial. He was not cross examined on this part of his evidence. Neither was that evidence challenged by the prosecution in any way. As it stands, the evidence on the applicant's age was not in dispute' The record shows that on 30tt' April 20 10, the date of delivery of the judgment and consideration of the sentence against the Applicant, and after

delivery of the judgment and submission of the Prosecutor on the sentence prayed for, a one Mr. Twonto Obaa arrived and introduced himself as counsel for the convict holding brief for Mr. Innocent Omara. . The record clearly indicates that Mr. Innocent Omara had represented the accused during the trial.

In his submission in allocutus, Mr. Twonto stated, arnong other things, that the convict is "still young aged 25 years". It is not clear where the said advocate obtained that information from. Nor did he disclose the source of his information. According to the Applicant in his affidavit in support of this application, the said advocate had not consulted him. As such the Applicant had not given him any instructions. We believe the Applicant, given the circumstances in which Mr. Twonto came into the picture. He came up at the tail end of the proceedings. He definitely had no time to consult the Applicant. The Applicant stated that he met the said advocate there in Court for the first time. There is no evidence to contradict this claim by the Applicant. In any case, Mr. Twonto was never sworn in as a witness. He merely made a statement from the Bar.

In such circumstances, we cannot come to terms as to how the trial Court and subsequently the appellate Courts chose to believe the statement of the said advocate from the bar over the Applicant's evidence which was given on oath. In our view the only evidence on record concerning the Applicant's age was what he himself gave on oath. What the advocate stated was not evidence. The Applicant's un-contradicted evidence could not have been contradicted by no evidence.

We are convinced that if the triat and appellate Courts had properly considered the evidence of the Applicant as to his age, they would have found that as of 7\*,October 2009, the Applicant was 21 years old. The

offences in issue were committed on the 1"t October 2OO5, making it four years prior to the time the Applicant was convicted and sentenced. This - means the Applicant was 17 years at the time he committed the offences. Indeed, the Supreme Court itself stated thus: "The appellant relles on hls surorn testlmong uhere he stated thot he uto,s 27 years old. Thls uas on the Vh October, 2OO9. The offence utas commltted, on 7,t October, 2OOS uthtch utould lmplg that the appellant was 77 years old qt that tlme. Thls euldence was houeaer contradlcted bg hls own counsel, Mr. Twonto who stated durlng allocutus that: ufie is stltl goung aged 25 geors.' The appellant dld not dlspute thls fact....'

We think this was a gross misdirection on the facts and the law by the Supreme Court. The misdirection started in the trial Court. First of all, the applicant testified at his trial that he was 21 years old, and yet the offence had been committed on lst October 2005. The Court should have been alerted that there was a strong probability that it was dealing with a child. The Court should have directed itself to Section 104(3) of the Children Act, Cap.59 which states as follows:

In any proceedings before the High Court in which a child is involved, the High Court shall have due regard to the child's age and to the provisions of the law relating to the procedure of trials involving children.

The Court should also have addressed itself to Section 107 of the Children Act which states as follows:

Where a person, urhether charged with an offence or not, is brought before any Court otherwise than for the purpose of giving evidence and it appeers to the court that he or she is under eighteen years of age, the Court shall make inqulry as to the age ofthat peraon.

l07l2l In making inquiry, the Court shall take any evidence, including medical evidence, which it may requlre.

Since the Courts did not seriously inquire into the testimony of the appellant with regard to his age in relation to the date of the commission of the offence, these provisions of the law were not invoked. The testimony of the applicant remained unchallenged, and must be accepted. Had the Court found, as we do, that the applicant was below 18years at the time of the commission of the offence, it would have remitted the case, after conviction, to the Family and Children's Court under Section 104 for that Court to Pass an appropriate ORDER under Section 9a(1)(g) of the Act which states as follows:-

A family and children court shall have Power to make any of the following orders where charges have been proved against a child -

(g) detentlon of a maximum of three months for a child under slxteen years of age and a maximum for a child above sixteen years of age, and in the case of aa offence rruniehable by death three years in respect of any child. (emphasis added)

It is our view that had this matter been properly proceeded with, the applicant after conviction would have been given an Order for detention for a period not exceeding three years. There would have been no question of a death sentence. That was the gist of Counsel for the

applicant's argument. We are aware that, at the time the Supreme Court has considered this appeal, the Children Act has been amended by the ' Children(Amendment) Act 2016. Under Section 23 of the amended Act, . Section 104 of the parent Act is amended to give the High Court power to make appropriate Orders under the Act. Sigrrificantly it states in paragraph (b) as follows:-

## A child shall not be sentenced to death.

It further states in Section 24 introducing Section 104 A as follows:-

- 1o4 (U A death sentence shall not be pronounced on or recorded against a person convicted of an offence punishable by death, if it appears to the Court that et the time when the offence was committed the convicted person waa below the age ofeighteen Years. - l2l The Court shall, in lieu of the death sentence, order the person to be detained in safe custody' Pending an order made by the Mlnister under Sub-Section (4).

Under that Sub-Section (4) the Court is required to send the files together with its recommendations to the Minister for the Minister to make appropriate Orders. We must point out that this is a case where the Courts occasioned a miscarriage of justice. The applicant should never have been sentenced to death. For the reasons we have given above, that sentence was unlawful. The applicant was sentenced to death on 30th April 2010. This means he has been in prison as a condemned prisoner under an unlawful death sentence for over 10 years. The justice of the case demands that he should be released and set free forthwith. Had this Court been the Court of first instance, Section 104(4) of the Children's (Amendment) Act would have applied and the case

.. l -

would have been referred to the Minister of Justice. But this case, as earlier indicated, presents a peculiar situation. The Applicant has been in prison for more than ten years serving an unlawful sentence. This Court had confirmed his sentence almost two years ago. Upon his application for a review this Court has now found that the Appellant has suffered tremendously. As the final Court with inherent powers to do justice we shall exercise that power and order that the Applicant be released from custody forthwith. It would be a negation of justice for this Court at this point in time to send this applicant's case to the Minister thereby subjecting him to continued unlawful imprisonment. Accordingly, we set aside the sentence of death against the Applicant and order that he be released from prison forthwith, unless held for any other lawful charges.

The claim in the thlrd ground is not tenable since the issue of identification evidence was never raised in the appeal before the Supreme Court. The Court cannot therefore be faulted for not making a finding on an issue that was not brought to its attention. The record clearly shows that the appeal in the Supreme Court was against sentence only. The Applicant cannot therefore be allowed to re-open the case using this application.

We notice that in the Notice of Motion, the Applicant had prayed for costs of the application. We note that award of costs is not common in criminal proceedings and no justification was given in the instant case for the Court to consider making such an order. In fact, Counsel for the Applicant is on record as appearing for the Applicant pro bono. Furthermore, this Court has not interfered with the conviction of the Applicant. Accordingly, the prayer for costs is denied.

The application therefore succeeds in part and we order that the Applicant be released from prison forthwith.

It is so ordered.

. . . . . . . . . . . . . . . . . .

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Benkatin

Bart M. Katureebe **CHIEF JUSTICE**

Esther K. Kisaakye JUSTICE OF THE SUPREME COURT

Rubby Opio Aweri JUSTICE OF THE SUPREME COURT

us atemi Lillian Tibatemwa-Ekirikubinza

JUSTICE OF THE SUPREME COURT

Paul Mugamba JUSTICE OF THE SUPREME COURT