Wakilii

Bahabwa v Uganda (Criminal Appeal No. 526 of 2014)

Court of Appeal · [2022] UGCA 60 · 2022 Appeal Allowed — Sentence Reduced ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against sentence from High Court conviction for murder
Decision
Sentence set aside; appellant resentenced to 26 years and 1 month's imprisonment from date of conviction

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Holding

The Court of Appeal set aside a 60-year sentence for murder. It held the sentence was illegal for failing to comply with article 23(8) of the Constitution, as nothing showed the trial judge deducted the three years spent on remand. The Court further held that a determinate term of 60 years is unlawful and untenable because, in the ranking of penalties, life imprisonment is the second gravest sentence after death; a fixed term purporting to be less severe yet exceeding the 20 years deemed for life imprisonment is absurd. Exercising its jurisdiction under section 11 of the Judicature Act, the Court resentenced the appellant afresh to 26 years and 1 month, after accounting for remand time.

Facts

On 16 January 2010 at Mushorero Cell, Kanungu District, the appellant and others murdered Tukwasibwa Salvan, a boy aged 13. The deceased's body was found chopped to pieces, with parts placed in a sack and thrown into a pit latrine. A bloodstained machete was recovered at the appellant's home, and the deceased's head was found hidden in a basket tied to the roof of the appellant's kitchen. Further blood was found in a basin at the home. The murder was reported to Butogota police station and the appellant was arrested. A medical examination showed the appellant was of sound mind. The appellant was tried at the High Court at Rukungiri, convicted of murder on 6 November 2013, and sentenced to 60 years' imprisonment. He appealed against sentence only. The appellant had spent about three years and ten months on remand prior to conviction, having been in custody since January 2010.

Issues

  1. Whether the sentence of 60 years' imprisonment was illegal for failure to take into account the period spent on remand under article 23(8) of the Constitution.
  2. Whether a determinate sentence of 60 years' imprisonment is lawful given that it exceeds the severity of life imprisonment.
  3. Whether the sentence of 60 years' imprisonment was manifestly excessive and harsh.

Orders

  • Ground 2 of the appeal allowed.
  • Sentence of 60 years' imprisonment set aside.
  • Appellant resentenced to 26 years and 1 month's imprisonment commencing on the date of conviction, 6 November 2013.

Key headnotes

Sentencing — Remand Period — Compliance with Article 23(8) of the Constitution
A sentence imposed without demonstrably taking into account the period the convict spent on remand before conviction contravenes article 23(8) of the Constitution and is illegal; a sentence of 60 years' imprisonment cannot, by any stretch, show that three years of pre-trial remand was deducted.
Article 23(8) — Remand Period — Distinction from Mitigating Factor
The pre-trial remand period is not a mitigating factor; it does not lessen the sentence but is a constitutional requirement that the sentence imposed be arrived at after taking the remand period into account.
Sentencing — Determinate Terms Exceeding Life Imprisonment — Legality
Life imprisonment ranks as the second gravest penalty after the death sentence; a determinate term of imprisonment such as 60 years, which purports to be less severe than life imprisonment yet exceeds the period deemed for life imprisonment, is absurd, unknown in law and precedent, and is unlawful.
Sentencing — Appellate Power to Resentence — Section 11 of the Judicature Act
Where an appellate court sets aside an illegal sentence, it may exercise its jurisdiction under section 11 of the Judicature Act to sentence the convict afresh, taking into account mitigating factors and the remand period.

Legislation cited (7)

  • Penal Code Act, Cap. 120 s.188
  • Penal Code Act, Cap. 120 s.189
  • Constitution of the Republic of Uganda art.23(8)
  • Judicature Act s.11
  • Law Revision (Penalties in Criminal Matters) Miscellaneous (Amendments) Act, 2019 s.4
  • Prisons Act, Cap 304 s.46(6)
  • Prisons Act, 2006 s.86(3)

Cases cited (13)

  • Guloba Rogers v Uganda (Criminal Appeal No. 57 of 2013)
  • Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)
  • Kawooya Joseph v Uganda (Criminal Appeal No. 0512 of 2014)
  • Kizito Senkula v Uganda (Supreme Court Criminal Appeal No. 24 of 2011)
  • Abelle Asuman v Uganda (Supreme Court Criminal Appeal No. 66 of 2015)
  • Nashimolo Paul Kiboto v Uganda (Supreme Court Criminal Appeal No. 46 of 2011)
  • Tigo Stephen v Uganda (Criminal Appeal No. 08 of 2009)
  • Wamutabanewe Jamiru v Uganda (Supreme Court Criminal Appeal No. 74 of 2007)
  • Lawrence Kakooza v Uganda [1994] UGSC
  • Oketto Godfrey v Uganda (Supreme Court Criminal Appeal No. 34 of 2014)
  • Tumwesigye Anthony v Uganda (Court of Appeal Criminal Appeal No. 46 of 2012)
  • Kasaija v Uganda (Court of Appeal Criminal Appeal No. 128 of 2008)
  • Atiku Lino v Uganda (Criminal Appeal No. 0041 of 2009)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.