Special Issue: From discretionary to structured sentencing in Uganda

• Author: Kamuzze, J.
• Published date: 06 July 2020
• Citation: (2020) 33 SACJ 126
• Pages: 126-147
• Date: 06 July 2020

From discretionary to structured

sentencing in Uganda

J KAMUZZE*

ABSTRACT

In August 2010, the then Chief Justice, Benjamin Odoki, acknowledged

the existence of unwarranted disparities across Ugandan sentencing.1

Justice Odoki then proceeded to appoint a Taskforce to develop sentencing

guidelines for magistrates and judges in Uganda. In 2013, the Taskforce

issued Uganda’s rst Constitution (Sentencing Guidelines for Courts of

Judicature) (Practice) Directions 2013 (hereafter the Uganda Sentencing

Guidelines). This essay provides an insight into the major historical events

that shaped sentencing guideline reform in Uganda and attempts to show

a link between the distribution of sentencing authority in Uganda and

how this shaped the nature, form and enforcement of Uganda’s Sentencing

Guidelines. The essay also provides a brief overview of the sentencing

framework in Uganda. The e ssay analyses the nature, form and enforcement

of the Ugandan Guidelines with a view to drawing some lessons for other

African jurisdictions.

1 Historical backdrop to sentencing guideline reform in

Uganda: The Kigula case

In 2003, 418 inmates on death row in Uganda’s Luzira maxi mum prison,

led by Susan Kigula, petitioned the Constitutional Court of Uganda

challenging the constitutionality of the death penalty in Uganda.2 The

main point of discussion in the Kigula case was the constitutionality

of the death penalty. The petitioners challenged the constitutionality

of the death penalty arguing that it was cruel, inhuman and degrading

punishment, and thus violated art 24 of the 1995 Constitution of

Uganda. The petitioners further argued that, alternatively (if the death

penalty was found to be constitutional), the mandatory nature of its

imposition was unconstitutional.

*PhD (Strathclyde) LLM (Nottingham) LLB Hons (Makerere). Lawyer at Fides Legal

Advocates, Kampala; for mer lecturer at the School of Law Makerere Un iversity.

1 BJ Odoki ‘Speech by the hon the Chief Just ice His Lordship Benjamin J O doki at the

launch of the Constit ution (Sentencing Guidelines for Courts of Jud icature) Practice

Directions legal notice no 8 of 2013 at Kabira Country Club Kampala’ (Kampala,

10 June 2013) 1.

2 Susan Kigula & 416 Ors v Attorney General (Constitutional Petition No 6 of 2003)

[2005] UGCC 8 (10 June 2005).

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(2020) 33 SACJ 126

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The Constitutional Court dismissed the challenge with respect to

the constitutionality of the death penalty. The court noted that another

provision in the Constitution denouncing the prohibition of inhuman

punishment could not be invoked to illegitimatise the death penalty

which was duly provided for in the 1995 Constitution of Uganda. The

Constitutional Court argued that the death penalt y was not a limitation

to the right to life.3 In other words, the principle of harmonious

interpretation was invoked, which discourages the use of one provision

in the Constitution to destroy another part of the Constitution.4

However, the Constitutional Court accepted the alternative challenge

against the mandatory nature of the death penalty pronouncing it

unconstitutional on the ground that it denied the convict the right

to appeal against the sentence, breached the right of equality before

the law (the right to mitigation of sentence which was accorded to

offenders in other cases) and the right to a fair hearing as provided in

the Constitution.5

The Supreme Court emphasised that the mandatory nature of the

death penalty violated the principle of separation of powers, as it

deprived the judiciary of its right to exercise discretion in sentencing.

The Supreme Court’s proclamation created a new era of discretionary

capital sentencing for murder,6 treasonous acts,7 aggravated robbery8

and terrorism.9 The events following the Kigula case triggered

consideration of a structured approach to the judicial sentencing

discretion in Uganda. The new era of discretionary capital sentencing

for these offences unexpectedly created a public outcry on the criteria

judges were using to impose different types of sentences on capital

convicts.10

Following the Kigula case, in 2010, the then Chief Justice, Benjamin

Odoki acknowledged the existence of unwarranted disparities across

Ugandan sentencing. In his keynote address at the inauguration of

the Guidelines, Odoki noted that judicial sentencing discretion was

sometimes being exercised ‘unfairly, thereby leading to public outcry

about injustices in the criminal justice system’.11 Justice Odoki said

3 Ibid.

4 Ibid.

5 Articles 21, 22(1), 24, 28, 44(a) and 44(c) of the 1995 Constitution.

6 Sections 188 and 189 of the Penal Code Ac t 120 of 1950.

7 Sections 23(1)−(4) of the Penal Code Act.

8 Section 286(2) of the Penal Code Act, before it was amended by The Penal Code

(Amendment) Act 8 of 2007.

9 Section 7(1)(a) of the Anti-Terrorism Act 14 of 2002 sets the mandatory death

penalty for terrorism acts that result in the death of o thers.

10See s129(2) of the Penal Code Act, as amended by the Act of 2007 (aggravated

delement); s123 (rape); s319 (smuggling) and s243 (kidnap with inte nt to murder).

11Odoki op cit (n1) 4.

From discretionary to structured sentencing in Uganda 127

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