Court name
Supreme Court of Uganda
Judgment date
28 April 2017

Katuramu John Sanyu & 49 Ors v Attorney General (Constitutional Application-2016/1) [2017] UGSC 31 (28 April 2017);

Cite this case
[2017] UGSC 31
Short summary:

Slip Rule

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 resu
lt 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 er
ror of law apparent on the face of the
record be corrected with the result that the applicants shall
be ent
itled 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 G
abula
20 Africa Evans Bright Ronald.

Briefly they are:-

1)    

The applicants had all been sentenced to suffer death for
various offences fo
r which each had been convicted

2) The applicants' death sentences arose from their respective

25                       convictions for offences where court could only
mandato
rily impose a death sentence.

3)    

That when the applicants appealed to the Supreme Court
the highest court the applicants could only appeal against
con
viction 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 K
igula 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
G
eneral 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 Gene
ral VS Susan Kigula and others (the Kigula
case). They had filed a pet
ition in the Constitutional Court
cha
llenging 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 impos
ition 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
unconstitutiona
l because they are inconsistent with
Artic
le 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 equal
ity before the law and the right to a fair hearing
as p
rovided for in the Constitution.

2)   

The long delay between the pronouncement by the
court of the death se
ntence and the actual execution,

15                               allows for the death row syndrome to set in. Therefore
the carry
ing out of the death sentence after such a long
delay const
itutes cruel, inhuman and degrading
treatment co
ntrary to Articles 24 and 44 (a) of the
Const
itution.

20                       3) Section 99 (1) of the Trial on Indictments Act which

provides for hanging as legal mode of carrying out the
death sente
nce, is cruel, inhuman and degrading
contrary to Art
icle 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
Artic
les 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 Const
itution.

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 exp
iration 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
conf
irm 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
dec
ision 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
Cou
rt.

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
Co
nstitutional Court but modified the Orders made by the court
as fo
llows:-

1) For those respondents whose sentences were already

25                       confirmed by the highest court, their petitions for mercy
under Art
icle 121 of the Constitution must be processed
with
in 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
rem
ission.

[7]

 

       5                2) For those respondents whose sentences arose from the

mandatory sentence provisions and are still pending before
an appe
llate 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 inst
itution of the instant application.

2)   

Whether the order of the court mandating commutation of

     25                the applicants' sentences to imprisonment for life without
remiss
ion was an accidental slip or omission; and

3)   

If SO whether the applicants are entitled to remission on
the
ir sentences.

RESOLUTION

30  ISSUE No.1

[8]

 

, _'

 

 

  5      It was the contention of counsel for the respondent that the
applicants are gu
ilty 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
de
cision in Kigula case was handled down on 21st January 2008.

10         Learned counsel contended that the above dilatory conduct did
off
end the principle of "interest republican finis litmus (in the
interest of soc
iety as a whole, litigation must come to an end).
Counsel relied on the case of DAVID Muhende VS Humprey
M
irembe SCCA No.5 of 2012 to support the above contention.

15         In reply the learned counsel for the applicants contended that
they cou
ld not file this application on time because at that time
the Supreme Court lacked Coram. Counsel further contended
that in matters concerning enforcement of c
onstitutional 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 sa
id 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 co
urt's judgment under slip rule. An objection was raised
on the question of de
lay by the applicant in filing the application
after 12 yea
rs.

(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,
2
016. 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 ord
er arose within one year from the decision of the
co
urt. 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
unt
enable. The above allegation was not based on evidence at
all. It was submission from the bar. We agre
e with counsel for the
r
espondent that during the alleged period this court had Coram
and continu
ed 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 matt
er in
court, and to leave the issue of constituting the Coram t
o 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
y
ears 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 high
est court has jurisdiction in
confirming both conviction and sentence and that the mand
atory

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 conf
irmed by the highest court...." was not
a l
ogical inference from the findings and holdings of the

30        Supreme Court because the court had only confirmed their
convi
ction 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 d
eath
s
entences 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 th
e

10        respondents in order No.1 to benefit from remission. Therefore,
denying the respondent rem
ission was accidental slip or omission
or mistake or error of law apparent on the face of the rec
ord
which this court should cor
rect.

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
th
e court's order mandating commutation of the applicants'
sentences to impris
onment 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 Sol
icitor General on the issue. The learned
counsel concluded that the app
licants 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 part
ies 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)
D
irections 51 11-13, This court has power to recall its judgment
and make orders as may be necessary for ach
ieving the end of
justice. In do
ing so, it is not limited to rule 35 of the rule of this
court, see for examp
le Livingstone 5ewanyana VS Martin Aliker

10         Misc. Application No. 40 of 1991 and Nsereko Joseph Kisukye
V5 Ba
nk of Uganda, Civil Appeal No.1 of 2012 and Orient Bank
Ltd V5 F
redrick Zaabwe and another, Civil Application No. 17 of
2007. In Nsereko Joseph K
isukye 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 unsuc
cessful party cannot apply for its reversal". This

20        principle is based on the decision of Lakhamshi Brothers Ltd V5
R. Raja and so
ns [1966] EA 313 page 314 where Sir Charles
Ne
wbold 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 the
re not been an omission in relation to the particular
matter. Bu
t 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
adm
inistration 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
Mutabaz
i Emmanuel SCCA No. 06 of 2009".

In UDB VS Oil Seeds (U) Ltd Civil Application No. 15 of 1977, it
was he
ld 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 judgmen
t was given, or in the case of a matter which was
overlooked, where it is sat
isfied beyond reasonable doubt, as to
t
he 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 del
iberate, 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 th
e
Supreme Court on appeal. The first order applied to those who

20        were convicted under mandatory death sentences whose
convict
ions had been affirmed by the Supreme Court while the
2nd order was in respect of those convicted under mandatory
death sentences whose appeals were st
ill pending before the
appellate court. In the 1
st 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 m
itigation 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 Appea
l 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
H
igh 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
t
hat the above two orders of the Supreme Court were in respect
of two cat
egories of cases; I" order was in respect of convicts
whose d
eath sentences had gone through the appeal processes
and had b
een 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
sent
ence 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 mitigati
on 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 m
ade the first order commuting sentence from death to life

10        imprisonment without remission for convicts whose death
s
entences had been confirmed by the Supreme Court. This was
logical because their cases could not be remitted to the High
C
ourt 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
e
xecution 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 th
e

        20              Supreme Court Rules. It is an attempt to induce this court to
correct a mistake arising from misunderstanding law with regard
to remissi
on 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. Co
urt cannot correct a mistake of its own
in law or otherwise even where apparent on the face of the
record. Under s
lip 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
suff
icient 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 on
ly 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
m
isunderstanding 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
sent
ences 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

 

 

                         .                           

Dated at Kololo this ..........28th........ day of. ................April..................... 2017

 

 

Hon. Justice Dr. Esther Kisaakye, JSC

 

Hon. Justice Opio-Aweri, JSC

 

 

Hon. Justice Faith Mwondha, JSC

 

 

Hon. Justice Prof. Dr. Lillian Tibatemwa-Ekirikubinza, JSC