Wakilii

Attorney General v Salvatory Abuki [1999] UGSC 7

Supreme Court · 1999 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal by the Attorney General from a decision of the Constitutional Court on a petition under Article 137(3)
Decision
Appeal partly allowed; section 7 of the Witchcraft Act declared void for inconsistency with Articles 24 and 44(a); respondent to serve remainder of sentence

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Cited — treatment unverified cited in 5 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court unanimously held that the offences relating to witchcraft under 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, the Court held that an exclusion (banishment) order under section 7 that renders a convict homeless constitutes cruel, inhuman and degrading treatment or punishment, contravening the non-derogable rights in Articles 24 and 44(a); section 7 was declared void to that extent. The appeal was allowed in part. The respondent was not entitled to immediate release and had to serve the remainder of his sentence.

Facts

Salvatori Abuki was charged before the Magistrate Grade II Court at Aduku, Lira District, with practising witchcraft contrary to section 3(3) of the Witchcraft Act. The prosecution evidence was that he had brought charms from Masindi and placed them in the homes of his relatives at Agwenyore village, causing illness; a witchdoctor recovered four charms, which Abuki admitted bringing. He pleaded guilty, was convicted, sentenced to 22 months' imprisonment, and in addition banished for ten years from "that home" after serving his sentence. His appeal to the Chief Magistrate was dismissed. Together with a co-accused, Richard Obuga (who died in prison, abating his petition), he petitioned the Constitutional Court challenging the constitutionality of the Witchcraft Act's offence provisions and the exclusion-order penalty. The Constitutional Court, by majority, declared the witchcraft offence provisions void for vagueness and the exclusion order unconstitutional. The Attorney General appealed to the Supreme Court.

Issues

  1. Whether the offences relating to witchcraft created by the Witchcraft Act are sufficiently defined to satisfy the requirement in Article 28(12) of the Constitution that a criminal offence be defined and its penalty prescribed by law.
  2. Whether an exclusion (banishment) order made under section 7 of the Witchcraft Act infringes or is inconsistent with Articles 24 and 44(a) of the Constitution prohibiting cruel, inhuman or degrading treatment or punishment.
  3. Whether the exclusion order amounts to compulsory deprivation of the petitioner's property contrary to Article 26(2) of the Constitution.
  4. Whether the exclusion order amounts to a threat to livelihood and life contrary to Article 22 of the Constitution.

Orders

  • Appeal allowed in part.
  • Declarations issued by the Constitutional Court set aside.
  • Substituted declaration that section 7 of the Witchcraft Act is void for inconsistency with Articles 24 and 44(a) of the Constitution, in that it authorises an exclusion order prohibiting a person from entering his or her home, which is torturous, cruel, inhuman and degrading treatment or punishment.
  • Respondent not entitled to immediate release; to serve the remaining prison sentence, if any.
  • Each party to bear its own costs here and in the court below.

Key headnotes

Constitutional Law — Cruel, Inhuman and Degrading Treatment — Non-derogable rights under Articles 24 and 44(a)
The freedom from torture, cruel, inhuman or degrading treatment or punishment guaranteed by Article 24 is, by virtue of Article 44(a), absolute and non-derogable; neither Parliament may enact, nor any court impose, a punishment that subjects a person to such treatment, and the limitations on personal liberty in Article 23 cannot be transposed onto that freedom.
Constitutional Law — Definition of Criminal Offence — Article 28(12)
Article 28(12) requires that a criminal offence be defined and its penalty prescribed by law, but does not require every word used to be defined, nor the offence to be defined within the section that creates it; the offence of practising witchcraft is sufficiently defined when sections 2, 3 and 6 of the Witchcraft Act are read together.
Statutory Interpretation — Construction of Penal Statutes — Voidness for Uncertainty
A statutory provision is not to be treated as void for uncertainty unless the uncertainty cannot be resolved and the provision can be given no sensible or ascertainable meaning; where the words are precise they are expounded in their ordinary and natural sense, and where the meaning is unclear the court must construe them so as to give effect to the object of the legislature.
Constitutional Law — Punishment — Banishment / Exclusion Order under section 7 Witchcraft Act
An exclusion order made under section 7 of the Witchcraft Act that renders a convicted person homeless by barring him from his own home and land is cruel, inhuman and degrading treatment or punishment inconsistent with Articles 24 and 44(a), because a home is the anchor of human dignity and rendering a person homeless dehumanises and degrades him.
Constitutional Law — Protection of Property — Compulsory Deprivation under Article 26(2)
An exclusion order does not compulsorily deprive a person of ownership of, interest in, or right over property within Article 26(2); it merely interrupts physical occupation of the home or property for a period, in the same way a sentence of imprisonment does, and the constitutional protection extends to total deprivation, not to temporary interruption of occupation or use resulting from a lawful order.
Constitutional Law — Existing Law — Construction under Articles 2(2) and 273
Existing law such as the Witchcraft Act, enacted in 1957, must be construed under Article 273(1) with such modifications, adaptations and qualifications as are necessary to bring it into conformity with the 1995 Constitution, and is void under Article 2(2) to the extent that it is inconsistent with the Constitution.

Legislation cited (13)

  • Constitution of Uganda 1995 art.2(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
  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.273(1)
  • Witchcraft Act (Cap.108) s.2
  • Witchcraft Act (Cap.108) s.3
  • Witchcraft Act (Cap.108) s.6
  • Witchcraft Act (Cap.108) s.7

Cases cited (20)

  • Riley v Attorney-General of Jamaica [1982] 3 All ER 469
  • Ibingira v Uganda (1966) EA 306
  • Societe United Docks v Government of Mauritius [1985] 1 All ER 864
  • Osborne v Canada (Treasury Board) (1991) 82 DLR (4th) 321
  • R v Big M Drug Mart Ltd (1996) LRC (Const) 332
  • McGowan v Maryland 366 US 420 (1961)
  • Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General (1993) 2 LRC 279
  • Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3) SA 76
  • Republic v Mbushu (1994) 2 LRC 335
  • Tellis v Bombay Municipal Corporation (1987) LRC (Const) 351
  • Canadian Pacific Ltd v The Queen (1996) 2 LRC 78
  • Katikiro of Buganda v Attorney-General of Uganda (1959) EA 382
  • R v Peters (1886) 16 QBD 636
  • Soering v United Kingdom (1989) 11 EHRR 439
  • Seaford Court Estates Ltd v Asher [1949] 2 KB 481
  • Eriya Galikuwa v Rex (1951) 18 EACA 175
  • R v Kimutai Arap Mursoi (1939) 6 EACA 117
  • Shah v Attorney-General (No.2) (1970) EA 523
  • Manitoba Fisheries Ltd v R (1979) 1 SCR 101
  • Fawcett Properties Ltd v Buckingham County Council [1960] 3 All ER 503 (HL)
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.