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Attorney General v Salvatori Abuki (Constitutional Appeal 1 of 1998)

Supreme Court · [1999] UGSC 32 · 1999 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal by the Attorney General from the Constitutional Court (Constitutional Case No. 2 of 1997).
Decision
Appeal allowed in part; section 7 of the Witchcraft Act declared void to the extent it authorises an exclusion order rendering a person homeless; respondent to serve the remainder of his sentence.

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Holding

The Supreme Court held that the offences relating to witchcraft in sections 2 and 3 of the Witchcraft Act are sufficiently defined and do not contravene article 28(12), and that an exclusion order does not compulsorily deprive a person of property under article 26(2). By majority it held that an exclusion order under section 7, in so far as it renders a convicted person homeless, is cruel, inhuman and degrading punishment contravening the absolute, non-derogable rights in articles 24 and 44(a), and declared section 7 void to that extent. The appeal was allowed in part; the Constitutional Court's declarations were set aside and substituted accordingly.

Facts

Salvatori Abuki and Richard Obuga were separately tried and convicted in the Magistrate Grade II Court at Aduku under the Witchcraft Act. Abuki was charged with practising witchcraft contrary to section 3(3) in respect of three complainants. The evidence showed he had brought charms from Masindi and installed them at the home of his relatives — Bosco Okao, Alisandro Okao and Albatina Agol — in Agwenyere village, where the witchcraft was allegedly practised. He pleaded guilty after three prosecution witnesses testified, and was sentenced to 22 months' imprisonment and, in addition, made subject to an exclusion order banishing him for ten years from "that home" after serving his sentence. Obuga died in prison and his petition abated. Abuki petitioned the Constitutional Court challenging the constitutionality of the Witchcraft Act's offence provisions and the exclusion order. The Constitutional Court, by majority, declared the offence-defining sections void for vagueness and the exclusion order unconstitutional. The Attorney General appealed to the Supreme Court.

Issues

  1. Whether the offences relating to witchcraft under sections 2 and 3 of the Witchcraft Act are sufficiently defined to satisfy article 28(12) of the Constitution.
  2. Whether an exclusion order under section 7 of the Witchcraft Act is cruel, inhuman and degrading treatment or punishment contrary to articles 24 and 44(a) of the Constitution.
  3. Whether an exclusion order under section 7 amounts to compulsory deprivation of property contrary to article 26(2) of the Constitution.
  4. Whether an exclusion order amounts to a threat to livelihood and thereby a threat to life contrary to article 22 of the Constitution.

Orders

  • Appeal allowed in part.
  • Declarations of the Constitutional Court set aside.
  • Declared that sections 2 and 3 of the Witchcraft Act are not inconsistent with article 28(12) of the Constitution.
  • Declared that section 7 of the Witchcraft Act is void for inconsistency with articles 24 and 44(a) of the Constitution in so far as it authorises an exclusion order prohibiting a person from entering or remaining in his or her home.
  • Respondent not entitled to immediate release; to serve the remainder of his sentence.
  • Each party to bear its own costs in the Supreme Court and in the Constitutional Court.

Key headnotes

Constitutional Law — Definition of a Criminal Offence — Article 28(12)
Article 28(12) requires that a criminal offence be defined and its penalty prescribed by law, but it does not require every word used in the law to be defined, nor does it require the offence to be defined in the section that creates it; an offence is sufficiently defined where its meaning is ascertainable by the ordinary rules of statutory construction.
Criminal Law — Witchcraft Act — Offence of Practising Witchcraft
The offences relating to witchcraft created by sections 2 and 3 of the Witchcraft Act, read together with section 6, are sufficiently defined to give fair notice of the prohibited conduct and accordingly satisfy article 28(12); there is no offence simply called "witchcraft", the offences being those in relation to witchcraft.
Human Rights — Freedom from Cruel, Inhuman and Degrading Treatment — Absolute and Non-derogable Right
The protection under article 24 against torture, cruel, inhuman or degrading treatment or punishment is absolute and non-derogable under article 44(a); it cannot be qualified by reference to article 23, so neither the legislature may prescribe nor a court impose any penalty that subjects a person to such treatment.
Human Rights — Exclusion / Banishment Order Rendering a Person Homeless
A punishment that renders a convicted person homeless is inhuman and degrading; in so far as section 7 of the Witchcraft Act authorises an exclusion order having that effect, it is inconsistent with articles 24 and 44(a) of the Constitution and void to that extent.
Land & Property — Compulsory Deprivation of Property — Article 26(2)
An exclusion order does not compulsorily deprive a person of ownership of, interest in, or right over property; it merely interrupts physical occupation, as a term of imprisonment does, and therefore does not contravene article 26(2).
Constitutional Law — Remedy for Unconstitutional Existing Law — Reading Down vs Invalidation under Article 273
Where an existing law is capable of being applied both consistently and inconsistently with the Constitution, a court may under article 273 either "read down" the provision or declare it void to the extent of the inconsistency; where the offending aspect cannot be excised without destroying the provision's substance, restructuring is a matter for Parliament rather than the court.

Legislation cited (16)

  • Witchcraft Act (Cap 108) s.2
  • Witchcraft Act (Cap 108) s.3
  • Witchcraft Act (Cap 108) s.3(3)
  • Witchcraft Act (Cap 108) s.5(1)
  • Witchcraft Act (Cap 108) s.6
  • Witchcraft Act (Cap 108) s.7
  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.22
  • Constitution of Uganda 1995 art.23
  • Constitution of Uganda 1995 art.24
  • Constitution of Uganda 1995 art.26(2)
  • Constitution of Uganda 1995 art.28(12)
  • Constitution of Uganda 1995 art.44(a)
  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.273(1)
  • Penal Code Act ss.122, 227, 228

Cases cited (17)

  • Riley v Attorney General of Jamaica [1982] 3 All ER 469
  • Ibingira and Others v Uganda (1966) EA 306
  • Société United Docks v Mauritius [1985] 1 All ER 864
  • Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76
  • Osborne v Canada (Treasury Board) (1991) 82 DLR (4th) 321
  • Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General [1993] 2 LRC 279
  • Tellis v Bombay Municipal Corporation [1987] LRC (Const) 351
  • Canadian Pacific Ltd v R (1996) 7 LRC 78
  • R v Big M Drug Mart Ltd [1985] 1 SCR 295
  • McGowan v Maryland 366 US 420 (1961)
  • Katikiro of Buganda v Attorney-General of Uganda (1959) EA 382
  • R v Peters (1886) 16 QBD 636
  • Shah v Attorney-General (No 2) (1970) EA 523
  • Eriva Galikuwa v Rex (1951) 18 EACA 175
  • Manitoba Fisheries Ltd v R [1979] 1 SCR 101
  • Soering v United Kingdom (1989) 11 EHRR 439
  • Seaford Court Estates Ltd v Asher [1949] 2 KB 481
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