Wakilii

Bashasha Sharif v Uganda [2019] UGSC 65

Supreme Court · 2019 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court against a death sentence, from the Court of Appeal's affirmation of a High Court murder conviction and sentence
Decision
Appeal against sentence dismissed; the death sentence stands confirmed.

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Cited — treatment unverified cited in 1 (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 dismissed the appeal against a death sentence for a gruesome child murder. It rejected the argument that a binding multi-stage test (no prospect of reform; lesser sentence would not achieve punishment's object) must be applied before passing the death penalty, holding that such formulations lack precision and cannot operate as legal tests; limiting judicial sentencing discretion by foreign and domestic case law could itself be as unconstitutional as a mandatory death sentence. Following Susan Kigula, the death sentence is lawful and discretionary, and judges may impose it where fit. The Court of Appeal had in fact considered the mitigating factors, the case resembled Mugabe v Uganda, and no basis existed to interfere with the sentencing discretion.

Facts

The appellant was an Islamic religious teacher of the deceased, a nine-year-old boy, and was in a relationship with the deceased's 17-year-old aunt, Nalunga Zam. The aunt's father had threatened the appellant with arrest for allegedly defiling his daughter. On the material day the deceased was sent by his mother to deliver money to Nalunga but found the appellant at her home instead of her. Fearing the boy would reveal his presence, the appellant killed him. The body was cut into pieces by a sharp instrument, ribs were cut out, the heart was extracted, and the body parts were hidden in different places in the bush, where they were later recovered after the appellant led people to them. The appellant admitted participating in the killing. He was indicted for murder, convicted in the High Court, and sentenced to death.

Issues

  1. Whether the Court of Appeal passed an illegal sentence by upholding the death sentence without applying the second and third stages of the alleged three-stage test for the discretionary imposition of the death penalty.
  2. Whether the Court of Appeal failed to take into account the appellant's mitigating factors in confirming the death sentence.
  3. Whether the death sentence was inconsistent with sentences imposed in comparable cases such that the appellate court should interfere.

Orders

  • Appeal dismissed.
  • Death sentence imposed by the High Court and confirmed by the Court of Appeal upheld.

Key headnotes

Sentencing — Death Penalty — Discretionary Imposition After Susan Kigula
Following Attorney General v Susan Kigula, the death penalty for murder is a lawful but discretionary sentence; a sentencing judge retains discretion to impose it in an appropriate case rather than being bound to do so.
Sentencing — Death Penalty — Rejection of Multi-Stage 'Rarest of the Rare' Test
Formulations such as the 'rarest of the rare', 'worst of the worst', or 'gravest of extreme culpability', and a purported requirement to find no prospect of reform and that a lesser sentence would not achieve punishment's object, lack precision and cannot be relied upon as binding tests governing the imposition of the death penalty.
Separation of Powers — Judicial Sentencing Discretion and the Death Penalty
The power to abolish or amend the law on the death penalty lies with Parliament and not the courts; limiting judges' sentencing discretion by foreign and domestic case law may be as unconstitutional as making the death sentence mandatory.
Appeals — Interference With Sentencing Discretion of a Lower Court
An appellate court will not interfere with the exercise of sentencing discretion unless there has been a failure to exercise discretion, a failure to take into account a material consideration, the taking into account of an immaterial consideration, or an error in principle; it is insufficient that the appellate court would have exercised the discretion differently.
Sentencing — Deterrence — Crimes Against Children
Deterrence is a legitimate sentencing objective that may aggravate the severity of a sentence according to prevailing circumstances, and courts are justified in taking into account the prevalence of atrocities against children when sentencing.

Legislation cited (3)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013

Cases cited (19)

  • Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No. 3 of 2006)
  • S v Makwanyane [1995] (3) SA 391
  • Trimmingham v The Queen [2009] UKPC 25
  • Bachan Singh V. State of Punjab, AIR 1980
  • Santosh Bariyah v State of Maharashtra (2009) 6 SCC 498
  • Mbunya Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Kakubi Paul and Another v Uganda (Criminal Appeal No. 126 of 2008)
  • Kyarikunda Richard v Uganda (Criminal Appeal No. 296 of 2009)
  • Mugabe v Uganda (Criminal Appeal No. 412 of 2009)
  • Byaruhanga Moses v Uganda (Criminal Appeal No. 144 of 2010)
  • Nsabimana Richard v Uganda (Criminal Appeal No. 189 of 2013)
  • Aharikundira Yusitina v Uganda (Criminal Appeal No. 27 of 2015)
  • Lockhart v The Queen [2011] UKPC 33
  • Ssekawooya Blasio v Uganda (Criminal Appeal No. 24 of 2014)
  • Kamya Johnson Wavamunno v Uganda (Criminal Appeal No. 16 of 2000)
  • Kyalimpa Edward v Uganda (Criminal Appeal No. 10 of 1995)
  • Kiwalabye Bernard v Uganda (Criminal Appeal No. 143 of 2001)
  • Karisa Moses v Uganda (Criminal Appeal No. 23 of 2016)
  • Mwanga Moses v Uganda (Criminal Appeal No. 2 of 2018)
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.