Wakilii

Attorney General v Salvatori Abuki (Constitutional Case 2 of 1997)

Constitutional Court · [1997] UGCC 10 · 1997 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the validity of the Witchcraft Act and the convictions, sentences and exclusion orders made under it
Decision
Petition granted; sections 2 and 3 and the section 7 exclusion order of the Witchcraft Act declared unconstitutional; petitioner ordered released from custody

Observed later treatment

Treatment recorded in citing cases followed in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 1 case and applied in 0 cases, with no adverse treatment recorded. Citations steady — 6 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

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

By majority, the Constitutional Court granted the petition. It held that sections 2 and 3 of the Witchcraft Act are void for vagueness because they fail to define witchcraft, contrary to Article 28(12) of the Constitution, so the petitioner was tried on an undefined offence and denied a fair hearing under Article 28(1). The exclusion (banishment) order under section 7 was held unconstitutional: by depriving a convict of shelter, food and access to his property and land it threatens the right to life and amounts to cruel and inhuman punishment contrary to Articles 24, 44 and 26, and is not a justifiable limitation under Article 43. The petitioner was ordered released and awarded costs. Manyindo DCJ dissented.

Outcome

Petition granted; sections 2 and 3 and the section 7 exclusion order of the Witchcraft Act declared unconstitutional; petitioner ordered released from custody

Facts

Salvatori Abuki and Richard Obuga were tried before a Grade II Magistrate's Court at Aduku, Apac District, under the Witchcraft Act. Abuki was charged with practising witchcraft on three complainants contrary to section 3(3); during the hearing he changed his plea to guilty and was convicted, sentenced to 22 months' imprisonment, and additionally banished from his home for 10 years after serving the sentence. Obuga was convicted of possession of articles used in witchcraft and of practising witchcraft and was similarly subjected to a 10-year exclusion order. Their appeals to the Chief Magistrate failed. They petitioned the Constitutional Court challenging the Witchcraft Act and the convictions, sentences and exclusion orders as inconsistent with the 1995 Constitution. Obuga died in Luzira Prison shortly after the hearing began and his petition abated, leaving Abuki's petition for determination.

Issues

  1. Whether the offence of practising witchcraft under section 3(3) of the Witchcraft Act is sufficiently defined to satisfy Article 28(12) of the Constitution.
  2. Whether the petitioner was afforded a fair hearing under Article 28(1) of the Constitution when charged under a vague law.
  3. Whether the exclusion (banishment) order under section 7 of the Witchcraft Act constitutes cruel, inhuman or degrading punishment contrary to Articles 24 and 44 of the Constitution.
  4. Whether the exclusion order deprives the petitioner of his property without compensation contrary to Article 26 of the Constitution.
  5. Whether the exclusion order infringes the right to freedom of movement and to reside and settle anywhere in Uganda under Article 29(2) of the Constitution.
  6. Whether the Witchcraft Act infringes the right to equality and freedom from discrimination under Article 21 of the Constitution.

Orders

  • Sections 2 and 3 of the Witchcraft Act are declared void for being vague and ambiguous and failing to meet Article 28(12) of the Constitution.
  • The petitioner was not afforded a fair trial, the offence being unknown; Articles 28(12) and 44(c) were contravened.
  • The exclusion order under section 7 of the Witchcraft Act is unconstitutional as inhuman and a threat to life, contravening Articles 24 and 44(a), and deprives the petitioner of access to his property contrary to Article 26.
  • The petitioner is entitled to immediate release from custody.
  • The respondent shall pay the costs of the petitioner.

Rules and key headnotes

Criminal Law & Procedure — Definition of Offence — Constitutional Requirement under Article 28(12)
A penal statute that creates an offence without defining the prohibited conduct fails the requirement of Article 28(12) that an offence be defined and its penalty prescribed by law, and is to that extent unconstitutional and void.
Statutory Interpretation — Vagueness Doctrine — Sufficient Guidance for Legal Debate
A law will be found unconstitutionally vague where it so lacks precision that it fails to provide fair notice of the prohibited conduct or sufficient guidance for legal debate as to the scope of that conduct; the Witchcraft Act, which nowhere defines witchcraft, is such a law.
Criminal Law & Procedure — Fair Hearing — Trial on an Undefined Offence
An accused cannot receive a fair hearing under Article 28(1) where charged under a vague law that does not define the offence, since he cannot know the ingredients he must answer; a guilty plea cannot waive the constitutional requirement that the offence be defined and any plea to an undefined offence is a nullity.
Human Rights — Cruel, Inhuman or Degrading Punishment — Banishment/Exclusion Order
A banishment or exclusion order that deprives a convict of shelter, food, land and means of subsistence without alternative provision renders him destitute, threatens his right to life, and constitutes cruel and inhuman punishment prohibited by the non-derogable Articles 24 and 44 of the Constitution.
Constitutional Law — Lawful Sentence Exception — Limits of Article 23(1)(a)
Article 23(1)(a), permitting deprivation of personal liberty in execution of a lawful court sentence, must be read together with Article 24 and cannot validate a sentence or order that is cruel, inhuman or degrading or that threatens the inviolable right to life under Article 22(1).
Constitutional Law — Deprivation of Property — Loss by Deprivation under Article 26
The protection of property under Article 26 extends beyond compulsory acquisition to loss caused by deprivation; an exclusion order that denies a convict access to his property and land for years deprives him of his property without compensation contrary to Article 26(2).
Constitutional Interpretation — Purpose and Effect Principle — Generous and Purposive Construction
The constitutionality of a statute is determined by examining both its purpose and its effect; either an unconstitutional purpose or an unconstitutional effect invalidates the legislation, and provisions entrenching fundamental rights are to be given a generous and purposive construction with limitations construed restrictively.

Legislation cited (20)

Cases cited (17)

  • Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Attorney General of the Gambia v Momodou Jobe (1984) AC 689
  • The Queen v Big M Drug Mart Ltd [1986] LRC (Const) 332
  • McGowan v Maryland 366 US 420 (1961)
  • R v Nova Scotia Pharmaceutical Society (1992) 2 SCR 606
  • Canadian Pacific Ltd v R (AG) (1996) 1 LRC 78
  • Société United Docks v Government of Mauritius [1985] 1 All ER 864
  • Manitoba Fisheries Ltd v R (1979) 1 SCR 101
  • S v Makwanyane and Mchunu (CCT/3/94) [1995] (5) BCLR 665
  • Tellis v Bombay Municipal Corporation [1987] LRC (Const) 351
  • Whitney v California 274 US 357 (1927)
  • London & North Eastern Railway Co v Berriman [1946] AC 278
  • Brend v Wood (1946) 62 TLR 462
  • Trinidad and Tobago v Morgan [1985] LRC (Const) 770
  • State v Petrus [1985] LRC (Const) 699
  • constitutional reference by Marobe provincial Government (1983) CRC (Const) 642
  • The Queen v Big M Drug Mart Ltd [1986] LRC (Const) 332

Cases citing this judgment (6)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Attorney General v Salvatori Abuki (Constitutional Case 2 of 1997) [1997] UGCC 10 (13 June 1997)
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.