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, Benj amin Odoki, acknowledged

the existence of unwarr anted disparities acr oss Ugandan sentencing.1

Justice Odoki then proceeded to appoi nt a Taskforce to develop sentencing

guidelines for magis trates and judges in Uganda. I n 2013, the Taskforce

issued Uganda’s rst Constit ution (Sentencing Guidelines for Court s of

Judicature) (Practice) Directions 2013 (hereaf ter the Uganda Sentencing

Guidelines). This essay provides an insight i nto the major historical e vents

that shaped sentencing guidel ine reform in Uganda and at tempts to show

a link between t he distribution of sentenci ng authority in Uganda a nd

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

Guidelines. The essay als o provides a brief overview of the sentenci ng

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

of the Ugandan Guidelines w ith a view to drawing some lesson s for other

African j urisdict ions.

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 Const itutional Court of Uganda

challenging the constitutional ity of the death penalt y in Uganda.2 The

main point of discussion in t he Kigula case was the cons titutionalit y

of the death penalty. The petitioners challenged the const itutionality

of the death penalty argu ing that it was cruel, inhuman and deg rading

punishment, and thus violated art 24 of the 1995 Constit ution of

Uganda. The petitioners fur ther argued that, altern atively (if the death

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

imposition was unconstitutional.

* PhD (Strathclyde) LLM (Notti ngham) LLB Hons (Ma kerere). 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 lega l notice no 8 of 2013 at Kabira Cou ntry Club Kampa la’ (Kampala,

10 June 2013) 1.

2 Susan Kigula & 416 Ors v Attorney Gene ral (Constitutiona l 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 Cour t dismissed the cha llenge with respect to

the constitutionalit y of the death penalty. The court noted that another

provision in the Constitution denouncing the prohibition of in human

punishment could not be invoked to illegitimatise the deat h penalty

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

Constitutional Cour t 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 pa rt of the Constitution.4

However, the Constitutional Court accepted the alternative challenge

against the mandatory n ature of the death penalt y pronouncing it

unconstitutional on the ground th at it denied the convict the right

to appeal against the sentence, breached the right of equalit y 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 Constitut ion.5

The Supreme Court emphasised that the ma ndatory nature of the

death penalty violated the principle of separ ation of powers, as it

deprived the judiciary of its right to exercise di scretion in sentencing.

The Supreme Court’s proclamation created a new era of disc retionary

capital sentencing for murder,6 treasonous acts,7 aggravated robber y8

and terrorism.9 The events following the Kigula case triggered

consideration of a structured approach to the judicia l sentencing

discretion in Uganda. The new era of d iscretionary capital sentenci ng

for these offences unexpectedly created a public outcry on the criter ia

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 dispa rities across

Ugandan sentencing. In his keynote address at the inaugur ation of

the Guidelines, Odoki noted that judicial sentencing di scretion was

sometimes being exercised ‘unfairly, thereby leading to public outcry

about injustices in the crim inal 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, befor e it was amended by The Penal C ode

(Amendment) Act 8 of 2007.

9 Section 7(1)(a) of the Anti-Terrorism Act 14 of 2002 set s the mandator y death

penalty for terro rism acts that r esult in the death of o thers.

10 See s 129(2) of the Penal Code Act, as ame nded by the Act of 2007 (aggr avated

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

11 Odoki op cit (n1) 4.

From discretionary to structured sentencing in Uganda 127

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