Kyamanywa v Uganda (Criminal Appeal 16 of 1999)

Supreme Court · [2000] UGSC 25 · 2000 Question Referred to Constitutional Court ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second criminal appeal to the Supreme Court against a sentence of corporal punishment imposed by the Court of Appeal

Decision

Preliminary objection overruled; the constitutional question referred to the Constitutional Court under article 137(5)(a); disposal of the appeal deferred pending that decision.

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court overruled the preliminary objection and held the appeal competent: the number of strokes of corporal punishment is left to judicial discretion (capped at 24 by s.108(1) of the Trial on Indictment Decree) and is therefore not a sentence 'fixed by law' under s.6(3) of the Judicature Statute; further, the appellant challenged the legality and constitutionality of the sentence, a matter of law not including severity. However, deciding whether corporal punishment contravenes article 24 requires interpretation of the Constitution, which is the original jurisdiction of the Constitutional Court under article 137(1). Sitting only as an ordinary appellate court, the Supreme Court could not determine the question at first instance and referred this substantial question of law to the Constitutional Court under article 137(5)(a).

Facts

The appellant, Simon Kyamanywa, and a co-accused were convicted by the High Court of robbery under the Penal Code and sentenced to death. On appeal, the Court of Appeal quashed the capital robbery conviction, substituted a conviction for robbery contrary to sections 272 and 273(1)(b) of the Penal Code, and sentenced the appellant to six years' imprisonment, six strokes of the cane, and three years' police supervision. The corporal punishment was imposed under section 274A of the Penal Code Act. The appellant appealed to the Supreme Court solely against the sentence of six strokes of the cane, contending that it conflicts with article 24 of the Constitution as a form of torture and cruel, inhuman and degrading punishment, and seeking a declaration that it is unconstitutional. The State took a preliminary objection that the appeal was incompetent because no right of appeal lay on the ground raised.

Issues

Whether the appeal to the Supreme Court against the sentence of corporal punishment was competent under section 6(3) of the Judicature Statute, the State having objected that it raised no appealable right.
Whether the question of the constitutionality of corporal punishment under article 24 of the Constitution falls within the original jurisdiction of the Constitutional Court such that the Supreme Court cannot determine it at first instance.
Whether the Supreme Court should exercise its discretion under article 137(5)(a) of the Constitution to refer the constitutional question to the Constitutional Court.

Orders

The respondent's preliminary objection is overruled.
The question whether the sentence of six strokes of the cane is inconsistent with or contravenes article 24 of the Constitution is referred to the Constitutional Court under article 137(5)(a) of the Constitution.
Disposal of the appeal is deferred pending the decision of the Constitutional Court on the referred question.

Key headnotes

Criminal Law & Procedure — Appeals — Sentence not fixed by law

A sentence of corporal punishment is not a sentence 'fixed by law' for purposes of section 6(3) of the Judicature Statute where the governing provision leaves the number of strokes to the trial court's discretion subject only to a statutory maximum.

Criminal Law & Procedure — Appeals — Matter of law not severity of sentence

An appeal challenging the legality or constitutionality of a sentence raises a matter of law not including the severity of sentence, and is competent under section 6(3) of the Judicature Statute.

Constitutional Law — Jurisdiction — Original jurisdiction of the Constitutional Court

Any question as to the interpretation of the Constitution, including whether an Act of Parliament is inconsistent with a constitutional provision, falls within the original jurisdiction of the Constitutional Court under article 137(1) and (3).

Constitutional Law — Supreme Court jurisdiction — Appellate only in constitutional matters

In constitutional matters the Supreme Court sits only as an appellate court under article 132(3) and cannot determine, at first instance, a constitutional question that has not first been decided by the Constitutional Court.

Constitutional Law — Reference to Constitutional Court — Discretion under article 137(5)(a)

A court (other than a Field Court Martial) before which a substantial question as to the interpretation of the Constitution arises has a discretion under article 137(5)(a) to refer the question to the Constitutional Court, and that discretion will be exercised judicially in favour of reference where the question is substantial and affects other cases.

Legislation cited (15)

Judicature Statute 1996 s.6(3)
Penal Code Act s.274A
Penal Code Act s.272
Penal Code Act s.273(1)(b)
Penal Code Act s.273(2)
Penal Code Act s.277
Trial on Indictment Decree s.108(1)
Constitution of Uganda 1995 art.24
Constitution of Uganda 1995 art.137(1)
Constitution of Uganda 1995 art.137(3)
Constitution of Uganda 1995 art.137(5)
Constitution of Uganda 1995 art.137(6)
Constitution of Uganda 1995 art.132(3)
Constitution of Uganda 1995 art.111(2)
Constitution of Uganda 1995 art.273

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.