Wakilii

Otim v Uganda (Criminal Application 14 of 2018)

Supreme Court · [2020] UGSC 60 · 2020 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court for review of its own decision confirming a death sentence
Decision
Death sentence set aside and applicant ordered released from prison forthwith; conviction not disturbed

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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

On an application to review its own decision, the Supreme Court held that Article 132(4) was wrongly invoked, as the review power arises under Rules 2(2) and 35(1) of the Supreme Court Rules and is not a rehearing. There is no 'mandatory test' for the death penalty; the authorities and Sentencing Guidelines are guidance, not binding requirements, so the first ground failed. However, the applicant's uncontradicted sworn evidence showed he was 17 when the offence was committed in 2005, making the death penalty unlawful under the Children Act. The courts' failure to inquire into his age was a miscarriage of justice. Having served over ten years under an unlawful sentence, the applicant was ordered released forthwith.

Facts

The applicant, Otim Moses, was indicted with two others for murder (Penal Code Act ss.188, 189) and aggravated robbery (ss.285, 286(2)). Charges against the co-accused were dropped. He was convicted and, on 30 April 2010, sentenced to death on the murder count by the High Court at Lira; the aggravated robbery sentence was suspended. The Court of Appeal dismissed his appeal, and on 25 May 2018 the Supreme Court dismissed his appeal and confirmed the death sentence. At trial the applicant testified on oath that he was 21 years old on 7 October 2009. Counsel holding brief for trial counsel, who arrived after proceedings had begun and had not consulted the applicant, stated in allocutus that the applicant was 25 years old. The offence was committed on 1 October 2005. The applicant applied to the Supreme Court to review its decision, contending the courts misapplied the law on the death penalty and wrongly assessed his age.

Issues

  1. Whether Article 132(4) of the Constitution provides a basis for an application to review the Supreme Court's own decision.
  2. Whether there is a mandatory test for the imposition of a death sentence such that failure to apply it renders confirmation of the sentence unlawful.
  3. Whether the Supreme Court exercised its discretion judiciously in confirming the death sentence.
  4. Whether the courts erred in their assessment of the evidence of the applicant's age, and whether the applicant was under 18 at the time the offence was committed.
  5. Whether the Supreme Court erred in not considering the identification evidence.

Orders

  • The application succeeds in part.
  • The sentence of death against the applicant is set aside.
  • The applicant is to be released from prison forthwith, unless held for any other lawful charges.
  • The prayer for costs is denied.

Key headnotes

Constitutional Law — Supreme Court — Article 132(4) — Departure from precedent distinguished from review
Article 132(4) of the Constitution empowers the Supreme Court to depart from its own previous decisions on questions of law; it does not provide a basis for reviewing a decision in the same case between the same parties.
Civil Procedure — Review of Supreme Court decisions — Inherent jurisdiction — Rules 2(2) and 35(1)
The Supreme Court's power to review its own final decision arises under Rules 2(2) and 35(1) of the Supreme Court Rules and is exercised only in substantial and compelling circumstances — to correct a clear wrong in the interests of justice, where the judgment is null and void, under the slip rule, or to prevent abuse of process — and not to grant a rehearing.
Criminal Law & Procedure — Sentencing — Death penalty — No mandatory test
The authorities and the Sentencing Guidelines governing imposition of the death penalty are guiding recommendations, not mandatory requirements; a failure to expressly apply them does not render a death sentence unlawful or fetter the court's sentencing discretion.
Evidence — Proof of age — Sworn testimony versus statement from the bar
An accused's uncontradicted sworn testimony as to his age is admissible evidence; an unsworn statement from the bar by counsel who took no instructions is not evidence and cannot displace it.
Criminal Law & Procedure — Sentencing — Child offenders — Death penalty prohibited
A person who was below 18 years of age at the time of committing an offence cannot lawfully be sentenced to death; where the age evidence shows the convict was a child, the court must proceed under the Children Act and order detention rather than impose death.
Criminal Law & Procedure — Trial of children — Duty to inquire into age
Where it appears that a person before the court may be under 18 years of age, the court is bound to inquire into the person's age under sections 104 and 107 of the Children Act, taking medical or other evidence as required.
Human Rights — Unlawful death sentence — Remedy — Release in the interests of justice
Where a convict has spent years imprisoned under an unlawful death sentence, the final appellate court may exercise its inherent power to set aside the sentence and order immediate release rather than remit the matter, where the justice of the case so demands.

Legislation cited (16)

  • Constitution of Uganda art.132(4)
  • Constitution of Uganda art.22(1)
  • Judicature (Supreme Court Rules) Directions r.2(2)
  • Judicature (Supreme Court Rules) Directions r.35(1)
  • Penal Code Act s.188
  • Penal Code Act s.189
  • Penal Code Act s.285
  • Penal Code Act s.286(2)
  • Children Act (Cap 59) s.94(1)(g)
  • Children Act (Cap 59) s.104
  • Children Act (Cap 59) s.104(3)
  • Children Act (Cap 59) s.107
  • Children (Amendment) Act 2016 s.23
  • Children (Amendment) Act 2016 s.24
  • Children (Amendment) Act 2016 s.104A
  • Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 s.17

Cases cited (13)

  • Mbunga Godfrey v Uganda (Criminal Appeal No. 4 of 2011)
  • Kakubi Paul and Another v Uganda (Criminal Appeal No. 726 of 2008)
  • Byarikunda Richard v Uganda (Criminal Appeal No. 296 of 2009)
  • Mohammed Mohamed Hamid v Roko Construction Limited (Miscellaneous Application No. 23 of 2017)
  • Ibrahim Ruhweza v Uganda (Criminal Application No. 7 of 2014)
  • Attorney General v Susan Kigula & 417 Ors (Constitutional Appeal No. 03 of 2006)
  • S v Makwanyane 1995 (3) SA 391
  • Namuranje Pauline v Uganda (Criminal Appeal No. 14 of 2009)
  • Isaga Kalya & 2 Others v Moses Macekengu Kagobya (Civil Application No. 28 of 2015)
  • Orient Bank v Fredrick Zaabwe & Anor (Civil Application No. 17 of 2007)
  • Sevanyana v Martin Aliker (Civil Application No. 4 of 1997)
  • Northern India Caterers (India) Ltd v Lt. Governor of Delhi 1980 SCR (2) 650
  • Girdharilal Gupta v D.H. Mehta & Anor [1971] 3 SCC 189
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.