3)	

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". 
2)	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. 
4)	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. 
4)	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:- 
1)	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. 
3)	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. 
5)	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 
6)	That consequently court revisited the sentences and in 
order No. 2 asked the High Court to hear submissions in 
15 	mitigation of sentences. 
7)	That by slip or omission the court ordered that the 
applicants to whom order No. 1 pertains, should serve life 
imprisonment without remissions. 
8)	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. 
9)	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. 
2)	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. 
2)	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. 
3)	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. 
4)	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:- 
a)	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. 
1)	Whether the applicants are guilty of dilatory and indolent 
conduct in the institution of the instant application. 
2)	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 
3)	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] 

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	, 	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) 

5)	
·, .• 
	/, -.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. 

6)	
7)	

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