- Flynote
- Slip Rule
- Case summary
- The grounds of the application are that the applicants ought to be heard in mitigation after the ruling in Suzan Kigula even if their sentences had been confirmed by the highest court in Uganda. The court held that applicants have failed to give sufficient reasons to justify the filing of the application after eight years and two month for the delay. That the two orders this court made were deliberate, well intended and were meant to serve independent purposes. That that there was no mistake on the face of the record. It was a manifest intention of the Court when it made the first order commuting sentence from death to life imprisonment without remission for convicts whose death sentences had been confirmed by the Supreme Court. This was logical because their cases could not be remitted to the High Court for mitigation.
5
10
THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT KOLOLO
CONSTITUTIONAL APPLICATION NO.1 OF 2016
(Arising from Constitutional Appeal No. 3 of 2006)
JOHN SANYU KA TURAMU AND 49 OTHERS:::::::APPLICANTS
VERSUS
ATTORNEY GENERAL OF UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
15 Coram: Tumwesigye; Kisaakye; Nshimye; Mwangusya; Opio Aweri;
Mwondha; Tibatemwa -Ekirikubinza; JJSC.
RULING OF THE COURT.
Introduction
This is a ruling on an application brought by Notice of Motion under Section 99 CPA 0.52 r 1 CPR, Rules 2 (2), 34 (2), 35 (1) and (2), 42 (1) of the Supreme Court Rules, OR in the alternative under section 82 (b) CPA 0.46 (1) (b) CPR Rules 2 (2),42 (1) SCR. The application sought for the following orders:-
25 1) A declaration that the order of court dated 215T January
2009 in Attorney General VS Susan Kigula and 417 others
SCCA No.3 of 2006 referred to as the I" order, was an
r
5 accidental /I slip or omission or was a mistake or error of law
apparent on the face of the record".
An order that the accidental slip or omission be corrected
with the result that the applicant shall be entitled to
remission on their sentences as per the relevant provisions
10 of the Prisons Act.
Or in the alternative to paragraph 2 above, an order that
the mistake or error of law apparent on the face of the
record be corrected with the result that the applicants shall
be entitled to remission on their sentences as per the
15 relevant provisions of the Prisons Act.
An order that the respondent bear the costs of the
application.
The application was supported by the grounds set out in the
affidavits of the head applicant John Sanyu Katuramu and Gabula
20 Africa Evans Bright Ronald.
Briefly they are:-
The applicants had all been sentenced to suffer death for
various offences for which each had been convicted
2) The applicants' death sentences arose from their respective
25 convictions for offences where court could only
mandatorily impose a death sentence.
That when the applicants appealed to the Supreme Court
the highest court the applicants could only appeal against
conviction since the death sentence was mandatory.
[2]
, ':
"
5 4) That when the Supreme Court confirmed the sentences, it
is only because the court had confirmed their respective
convictions.
That when the Supreme Court in Attorney General VS
Susan Kigula SCCA No. 3 of 2006 upheld the findings of
10 the Constitutional Court that mandatory death sentences
were unconstitutional It meant that the sentences of the
appellants in that appeal were unconstitutional
That consequently court revisited the sentences and in
order No. 2 asked the High Court to hear submissions in
15 mitigation of sentences.
That by slip or omission the court ordered that the
applicants to whom order No. 1 pertains, should serve life
imprisonment without remissions.Or in the alternative, because of the mistake or error
20 apparent on the face of the record court ordered that the
applicants, to whom order No. 1 pertains, serve life
imprisonment without remission.
That order No. 1 was not a logical consequence of the
holding of the court that each convict is entitled to be
25 heard in mitigation of sentence.
10) That If the accidental slip or omission had not occurred
court would have ordered that the applicants are entitled to
remission of sentence as per the Prisons Act
11) That If the mistake or error apparent on the face of the
30 record had not occurred court would have ordered that the
[3]
, ..:._
"
5 appellants are entitled to remission of sentences as per the
Prisons Act
12) That it is only fair and just that the applicants be allowed to
benefit from the provisions of the Prisons Act on remission of sentences.
10 The application was opposed by way of affidavit deponed by
Elisha Bafirawala, a Principal State Attorney in the Attorney
General Chambers.
Briefly that-
1) The findings of the Court in Constitutional Appeal No.3 of
15 2006, Attorney General VS Susan Kigula sought by the
applicants.
The application is devoid of sufficient grounds to merit the
remedy sought under the slip rule.
Background facts.
20 The applicants were parties to Constitutional Appeal No.3 of
2006 Attorney General VS Susan Kigula and others (the Kigula
case). They had filed a petition in the Constitutional Court
challenging the constitutionally of the death penalty under the
Constitution of Uganda. They were persons who at different
25 times had been convicted of diverse capital offences under
the Penal Code Act and had been sentenced to death as
provided for under the laws of Uganda. They petitioned that
the imposition on them of the death sentence was
inconsistent with Articles 24 and 44 of the Constitution.
30 They further contended in the alternative that:-
[4]
, ,
--
5 1) The various provisions of the Laws of Uganda which
provide for a mandatory death sentence were
unconstitutional because they are inconsistent with
Article 20,21,22,24 and 44 (a) of the Constitution
because they deny the convicted persons the right to
10 appeal against sentence, thereby denying them the right
of equality before the law and the right to a fair hearing
as provided for in the Constitution.
The long delay between the pronouncement by the
court of the death sentence and the actual execution,
15 allows for the death row syndrome to set in. Therefore
the carrying out of the death sentence after such a long
delay constitutes cruel, inhuman and degrading
treatment contrary to Articles 24 and 44 (a) of the
Constitution.
20 3) Section 99 (1) of the Trial on Indictments Act which
provides for hanging as legal mode of carrying out the
death sentence, is cruel, inhuman and degrading
contrary to Article 24 and 44 of the Constitution.
The Attorney General opposed the petition contending that the
25 death penalty was provided for in the Constitution of Uganda
and its imposition, whether as a mandatory sentences or as a
maximum sentence, was constitutional.
The Constitutional Court heard the petition and made the
following declarations:-
30 1) The imposition of the death penalty does not constitute
cruel, inhuman or degrading punishment in terms of
Articles 24 and 44 of the Constitution and therefore the
[5]
5 various provisions of the laws of Uganda prescribing the
death sentence are not inconsistent with or in
contravention of Articles 24, and 44 or any provisions of
the Constitution.
2) The various provisions of the laws of Uganda which
10 prescribe a mandatory death sentence are inconsistent with
Articles 21, 22, (1) 24, 28, 44 (a) and 44 (c) of the
Constitution and, therefore, are unconstitutional.
Implementing the carrying out of the death sentence by
hanging is constitutional as it operationalizes Article 22 (1)
15 of the Constitution. Therefore, section 99 (1) of the Trial on
Indictment Act is not unconstitutional or inconsistent with
Articles 24 and 44 (a) of the Constitution.
A delay beyond three years after a death sentence has
been confirmed by the highest appellate court is an
20 inordinate delay. Therefore, for the condemned prisoners
who have been on death row for three years and above
after their sentences had been confirmed by the highest
appellate court, it would be unconstitutional to carry out
the death sentence as it would be inconsistent with Articles
25 24 and 44 (a) of the Constitution.
Consequently, the court made the following orders:-
For those petitioners whose appeal process is completed
and their sentence of death has been confirmed by the
Supreme Court their redress wJ!1 be put on hold for two
30 years to enable the Executive to exercise its discretion
under Article 121 of the Constitution. They may return to
court for redress after the expiration of that period
[6)
, J
, ,
5 b) For the petitioners whose appeals are still pending before
an appellate court:-
(1). Shall be afforded a hearing in mitigation of sentence.
(ll). The court shall exercise its discretion whether or not to
confirm the sentence.
10 (III). Therefore, in respect of those whose sentence of death
will be confirmed, the discretion under Article 121.
Should be exercised within three years.
The Attorney General was not wholly satisfied by the above
decision and appealed to the Supreme Court. The petitioners
were also dissatisfied with parts of the decision of the
Constitutional Court and filed a cross appeal to the Supreme
Court.
By unanimous decision, the Supreme Court dismissed the appeal
and by majority decision the same court also dismissed the
cross-appeal.
The Supreme Court confirmed the declarations made by the
Constitutional Court but modified the Orders made by the court
as follows:-
1) For those respondents whose sentences were already
25 confirmed by the highest court, their petitions for mercy
under Article 121 of the Constitution must be processed
within three years from the date of confirmation of
sentence. Where after three years no decision had been
made by the Executive, the death sentence shall be
30 deemed commuted to imprisonment for life without
remission.
[7]
5 2) For those respondents whose sentences arose from the
mandatory sentence provisions and are still pending before
an appellate court, their cases shall be remitted to the High
Court for them to be heard only on mitigations of
sentence, and the high Court may pass such sentence as it
10 deems fit under the law.
3) Each party shall bear its own costs.
The instant application is challenging the first order on the
ground that it was issued in error which error should be
corrected.
15 Representation.
The applicants were represented by Mr. Kiiza Rwakafuzi assisted
by MIS Carol Namara while the Respondent was represented by
Mr. Batanda, State Attorney in the Attorney General's Chambers.
Both counsel filed written arguments but were allowed to orally
20 highlight their written arguments in court.
Issues for determination.
Whether the applicants are guilty of dilatory and indolent
conduct in the institution of the instant application.Whether the order of the court mandating commutation of
25 the applicants' sentences to imprisonment for life without
remission was an accidental slip or omission; and
If SO whether the applicants are entitled to remission on
their sentences.
RESOLUTION
30 ISSUE No.1
[8]
, _'
5 It was the contention of counsel for the respondent that the
applicants are guilty of indolent conduct in the institution of the
instant application. This was because the applicants filed the
instant application 8 years and two months from the date the
decision in Kigula case was handled down on 21st January 2008.
10 Learned counsel contended that the above dilatory conduct did
offend the principle of "interest republican finis litmus (in the
interest of society as a whole, litigation must come to an end).
Counsel relied on the case of DAVID Muhende VS Humprey
Mirembe SCCA No.5 of 2012 to support the above contention.
15 In reply the learned counsel for the applicants contended that
they could not file this application on time because at that time
the Supreme Court lacked Coram. Counsel further contended
that in matters concerning enforcement of constitutional rights
there is no time limit. That was why the Kigula case was filed in
20 2003; it benefitted people who had been on death row in the
1990's. In view of the above argument, counsel contended that it
cannot be said that this application is late.
It is trite law that under the inherent powers of the court and slip
rule; the court's jurisdiction is circumscribed and must not be
25 invoked to circumvent the principle of finality of the court's
decisions. The above position was emphasized in the case of
David Muhende (supra) which was cited by counsel for the
respondent. In that case, the applicant filed his application under
rules 2 (2) and 35 of the Judicature (Supreme Court Rules)
30 Directions. The application was filed 12 (twelve) years after the
date of court's judgment under slip rule. An objection was raised
on the question of delay by the applicant in filing the application
after 12 years.
(9)
"
5 While upholding the objection this court observed as follows:-
"We think that the reasons the applicant is advancing to justify his
delay are not convincing, considering the long period of his
inaction, and so there was inordinate delay in bringing this
application in court The court will refuse to entertain
10 delayed application brought under rules 2 (2) and 35 of the rules
of this court unless sufficient reasons are shown to justify the
delay. We agree with the learned counsel for the respondent that
the phrase "at any time" appearing in rules of this court should
not be interpreted to mean that inordinately delayed applications
15 without justification will be permitted by this court".
It must be noted that this court handed down its decision in the
Kigula case on 21st January, 2008. The instant application to
correct the error in the above judgment was filed on 22nd March,
2016. It is not denied that this application was indeed filed 8
20 years and two months from the date of the decision.
It is clear from the record that controversy surrounding the
impugned order arose within one year from the decision of the
court. One would wonder why it took the applicants over eight
years to file their application under slip rule.
25 The reason that by that time the Supreme Court had no Coram is
untenable. The above allegation was not based on evidence at
all. It was submission from the bar. We agree with counsel for the
respondent that during the alleged period this court had Coram
and continued in its business and entertained applications and
30 delivered rulings and judgments. In any case even if the court
had no Coram the applicant was still bound to file this matter in
court, and to leave the issue of constituting the Coram to the
[10]
,
,
5 court. Lack of Coram could not have given the applicant license
to sit back and twiddle their thumbs.
Another reason which counsel gave for the delay was that
matters of enforcement of human rights have no limitation.
With greatest respect to counsel, the issue at hand was not about
10 enforcement of human rights. It was about the inherent powers
of the court and slips rule where the jurisdiction of the court is
circumscribed and where relevant principles have to be adhered
to and followed strictly.
In conclusion, we find that the applicants have failed to give
15 sufficient reasons to justify the filing of the application after eight
years and two month for the delay. We accordingly find the
conduct of the applicant latter and dilatory and should suffer the
same fate as Muhenda in the Muhenda application.
Issue No.2
20 It was the contention of the applicants that order No.1 was not a
logical consequence of the findings of the court in SCCA No.3 of
2006. Counsel for the applicants submitted that the Supreme
Court having held that the highest court has jurisdiction in
confirming both conviction and sentence and that the mandatory
25 death sentences were unconstitutional could not have issued
order No.1 in that form. The applicants argued that referring to
them in order No.1 of SCCA NO.3 of 2006 as "those respondents
whose sentences were confirmed by the highest court...." was not
a logical inference from the findings and holdings of the
30 Supreme Court because the court had only confirmed their
conviction and sentence was guaranteed by law. The learned
counsel concluded that since the SCCA NO.3 of 2006 was about
[11]
, ,
, I
5 the constitutionality of mandatory death sentence and the
Supreme Court having found that the mandatory death
sentences was unconstitutional and allowed the respondents in
respect of Order No, 2 to appear before the High Court to
mitigate sentence, the same court should have also accorded the
10 respondents in order No.1 to benefit from remission. Therefore,
denying the respondent remission was accidental slip or omission
or mistake or error of law apparent on the face of the record
which this court should correct.
Counsel for the Respondent on the other hand contended inter
15 alia that the instant application was devoid of sufficient grounds
to merit the remedy sought under slip rule. Counsel argued that
the court's order mandating commutation of the applicants'
sentences to imprisonment for life without remission was not
accidental slip or omission. He submitted that this court made its
20 position clear as the import of the impugned order by adopting
the opinion of the Solicitor General on the issue. The learned
counsel concluded that the applicants were baiting this court to
sit on appeal in its own decision.
We have carefully perused the notice of motion, the affidavits in
25 support and objection to the same. We have also studied the
submissions of the parties and the authorities they relied upon in
support and opposition to this application. The circumstances
under which this court is required to apply slip rule under Rules 2
(2) and 35 of the Rules of this Court to correct the error or
30 injustice have been put beyond doubt in a number of authorities.
The recent case of David Muhenda VS Humprey Mirembe
(supra) summarizes them all as follows:-
[12]
- ' ..•. _
5 "Under Rule 2 (2) of the Judicature (supreme Court Rules)
Directions 51 11-13, This court has power to recall its judgment
and make orders as may be necessary for achieving the end of
justice. In doing so, it is not limited to rule 35 of the rule of this
court, see for example Livingstone 5ewanyana VS Martin Aliker
10 Misc. Application No. 40 of 1991 and Nsereko Joseph Kisukye
V5 Bank of Uganda, Civil Appeal No.1 of 2012 and Orient Bank
Ltd V5 Fredrick Zaabwe and another, Civil Application No. 17 of
2007. In Nsereko Joseph Kisukye case, for example, the court
recalled the judgment and made clarifications on the orders it
15 had made to make them implementable.
However, the power of the court in this regard is not open
ended. As it was stated in Orient Bank V5 Fredrick Zambwe
(supra) lithe decision of this court on any issue or law is fina~ so
that the unsuccessful party cannot apply for its reversal". This
20 principle is based on the decision of Lakhamshi Brothers Ltd V5
R. Raja and sons [1966] EA 313 page 314 where Sir Charles
Newbold P. stated
" There are circumstances in which the court will
exercise its jurisdiction and recall its judgment, that is, only in
25 order to give effect to what clearly would have been its intention
had there not been an omission in relation to the particular
matter. But this application and the two or three others to which I
have referred go far beyond that. It asks, as I have said, this court
in the same proceeding to sit on its own previous judgment.
30 There is a principle which is of the greatest importance in the
administration of justice and the principle is this, it is in the
interest of all persons that there should be an end to litigation".
[131
• - I I I
5 This principle was restated in the case of Fangmin VS Dr. Kaijuka
Mutabazi Emmanuel SCCA No. 06 of 2009".
In UDB VS Oil Seeds (U) Ltd Civil Application No. 15 of 1977, it
was held thus;
"A slip order will only be made where the court is fully satisfied
10 that it is giving effect to the intention of the court at the time
when judgment was given, or in the case of a matter which was
overlooked, where it is satisfied beyond reasonable doubt, as to
the order which it would have made had the matter been
brought to its attention".
15 In the instant case we are persuaded that the two orders this
court made were deliberate, well intended and were meant to
serve independent purposes. The two above orders were first
made by the Court of Appeal and later slightly modified by the
Supreme Court on appeal. The first order applied to those who
20 were convicted under mandatory death sentences whose
convictions had been affirmed by the Supreme Court while the
2nd order was in respect of those convicted under mandatory
death sentences whose appeals were still pending before the
appellate court. In the 1st category, the Supreme Court
25 commuted their sentences from death to life imprisonment
without remission. In the 2nd order, the convicts were to be
remitted to the High Court for mitigation of sentences.
The above intention of the Supreme Court in Kigula case was
confirmed in the case of Ambaa Jacob and another VS Uganda,
30 Criminal Appeal No. 10 30f 2009 (SC) where Supreme Court
confirmed the differences between the 1st and 2nd order. In the
above case, the Court of Appeal dismissed the appellant's appeal
[14]
• .' r I
5 and proceeded to hear submissions on mitigation of sentence.
The Supreme Court held that in view of the decision in the Kigula
case, the Court of Appeal ought to have remitted the case to the
High Court to enable the appellants to make submissions in
mitigation of the death sentence.
10 The court stated as follows:-
"We would like to emphasize that, after the Constitutional Court
held that the mandatory death sentence was unconstitutional,
and the decision was confirmed by this court, it meant that the
condemned persons remained with their convictions, but without
15 death sentence. Normally the sentence is passed by the trial
court (High Court in this case) so that the convicted person may
exercise his or her right of appeal against a conviction and
sentence to the Court of Appeal. This was the reason why this
court decided that the pending cases go back to the trial court
20 which was now in a position to exercise judicial discretion in
passing sentence. It is within the jurisdiction of the High Court as
trial court to maintain the death sentence even after receiving
submission in mitigation. The convicted persons as indicted,
could then still appeal to the Court of Appeal against sentence"
25 It is clear from the above passage and decision in the Kigula case
that the above two orders of the Supreme Court were in respect
of two categories of cases; I" order was in respect of convicts
whose death sentences had gone through the appeal processes
and had been confirmed by the Supreme Court and were waiting
30 execution. Due to their pleas of death syndrome, they were
saved from execution by the court deliberately substituting their
sentence with one of life without remission. For the second
category, their appeals were still pending in either the Court of
[15]
_.
..
• I
5 Appeal or Supreme Court; they were referred to the High Court
for mitigation of their sentences.
In the same vein, we also find that there was no mistake on the
face of the record. It was a manifest intention of the Court when
it made the first order commuting sentence from death to life
10 imprisonment without remission for convicts whose death
sentences had been confirmed by the Supreme Court. This was
logical because their cases could not be remitted to the High
Court for mitigation.
An error or mistake on the face of the record would have
occurred under the 1st order if the court had allowed the
execution to be carried on after concluding that mandatory
death sentence was unconstitutional.
In view of the above analysis, we find that this application is -
misconceived and untenable under rule 2 (2) and 35 of the
20 Supreme Court Rules. It is an attempt to induce this court to
correct a mistake arising from misunderstanding law with regard
to remission under the Prisons Act. To do so, would tantamount
to the court sitting on appeal in its own judgment. In Ahmed
Kawoya Kanga VS Banga Aggrey Fred [2007] KALR 164, it was
25 held as follows:-
"The error or omission must be an error in expressing manifest
intention of the court. Court cannot correct a mistake of its own
in law or otherwise even where apparent on the face of the
record. Under slip Rule court cannot correct a mistake arising
30 from its misunderstanding of the law"
In the result, we find that the instant application is devoid of
sufficient grounds to merit remedy sought under slip rule.
[16]
"
" - . "
5 Issue No.3
We are of the view that issue No.2 disposes of issue NO.3. We
would only add that remission would only be available in the
circumstances after presidential prerogative of mercy under
Article 121 of the Constitution.
10 In conclusion, we find that the present application attempts to
implore this court to correct what the applicants perceive to be a
misunderstanding by the court of the law on mitigation of
sentences under the Prisons Act which is not tenable under the
Slip rule. The application is dismissed.
15 In the interest of justice parties should bear their own costs.
Dated at Kololo this 28th day of.. April 2017
Hon. Justice Jotham Tumwesigye, JSC
20
Hon. Justice Dr. Esther Kisaakye, JSC
25
30
Hon. Justice Augustine Nshimye, JSC
Han. Justice Eldad Mwangusya, JSC
Hon. Justice OPio-Aweri, JSC
Hon. Justice Faith Mwondha, JSC
Hon. Justice Prof. Dr. Lillian Tibatemwa-Ekirikubinza, JSC
[17)
·, .•
/, -.s'
We also find that the present application attempts to implore this
court to correct what the applicants perceive to be a
10 misunderstanding by the court of the law on mitigation of
sentences under the Prisons Act which is not tenable under the
Slip rule, The application is dismissed.
In the interest of justice parties should bear their own costs.
15
20
25
30
35
. 28th April
Dated at Kololo this day of. 2017
Hon. Justice Dr. Esther Kisaakye, JSC
Hon. Justice Opio-A
Hon. Justice Faith Mwondha, JSC
Hon. Justice Prof. Dr. Lillian Tibatemwa-Ekirikubinza, JSC