THE CONUNDRUM OF SENTENCING IN UGANDA: A CALL FOR A SENTENCING ACT

“Justice must always question itself, just as society can exist only by means of the work it does
on itself and on its institutions” Michel Foucal
Every criminal case has a life cycle which is determined by either a dismissal for want of
prosecution; an acquittal; abatement; withdrawal/nolle prosequi and or a conviction. For
purposes of this write up, emphasis will be placed on what follows if the outcome of a criminal
trial is a conviction. Where a prosecutor secures a conviction following a criminal proceeding he
or she is required and expected to pray for an effective sentence. A sentence simply put is an
order by the judicial officer, based on his or her decision within the range of punishments set by
law. Uganda has different types of sentences including caution, fines, compensation, restitution,
community service, probation, imprisonment and the death penalty.
It is posited that a sentence is a pronouncement in the judgement which sets out what the actual
punishment for a particular offence will be according to the law. It is when the same is put in
action, and is operationalised; it would be called the 'punishment'. Thus, it can be said that the
sentence is the precursor to the actual inflicting of punishment. In the past two decades Uganda
has been grappling with its sentencing regime following the Constitutional Court and Supreme
Court sitting as the Constitutional Court of Appeal rendering judgements in the case of Susan
Kigula and 417 v A.G. [2009] UGSC 6. The case was triggered by the movement against the
death penalty albeit unsuccessfully so. This was a botched effort to have the death penalty
declared unconstitutional. Article 21 of the 1995 Constitution which provides for the death
penalty is an entrenched provision and the Constitutional Court lacks the jurisdiction to annul it.
The court then declared statutory provisions on mandatory and minimum sentences
unconstitutional. The court further set a three year time limit for condemned prisoners whose
sentences have been confirmed by the Supreme Court and not executed to return to court to have
their death sentences commuted to life imprisonment without remission. The effect of this
decision was that all courts were given the leeway to determine their sentences. The
Constitutional Court of Appeal never gave adequate directions to the Attorney General and or the
lower courts on how to deal with sentences in the absence of the minimum and mandatory
statutory provisions. This led to a conundrum as each and every court issued sentences entirely
as their discretion within their jurisdictions. Studies, however, revealed that this system created
sentencing disparities in which different criminals received very different sentences for the same
crime. The judiciary on realizing the lacuna created issued Sentencing Guidelines cited as the
Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions, 2013
following a study commissioned by Emeritus C.J Benjamin Odoki in 2010. Paradoxically the
Sentencing Guidelines have since been frowned upon by judicial officers who consider them to
have no effect of law at all and rightly so. As a matter of fact some judicial officers would take
offence when counsel on either side of the Bar sought to rely upon them. In my considered view
the Judiciary and the Law Reform Commission should have at that point in time lobbied
Parliament for a substantive legislation of sentencing.
The sentencing process became more complicated when it came to resentencing convicts under
the Susan Kigula directive; the computing of the sentences to cater for the period spent on
remand and the meaning of life imprisonment. A number of court decisions were rendered in an
effort to guide the lower courts through the murky sentencing water so as to restore parity. In the
Rwabugande v. Uganda Crim App 25 of 2014 [2017] UGSC 8, the Supreme Court held that
“The court will mathematically deduct any time spent remanded in custody as required by
Article 23 (8) of the 1995 Constitution”
In Aharikunda Vustina V Uganda, Supreme Court Criminal Appeal No. 27/2017, the Supreme
Court, while setting aside a death sentence imposed by the High Court and upheld by the Court
of Appeal, stated as follows:-
“The holdings of the trial court ... do not reflect consideration of any of the mitigating
factors but rather only the aggravating factors. The appellant mitigated her sentence
before the trial Judge however when giving his decision, the learned Judge did not weigh
the mitigating factors against the aggravating factors. These included the fact that the
convict was a first offender, of advanced age and had children who needed her attention
as the surviving spouse ... The same trend prevailed in the Court of Appeal when it failed
its duty to re-evaluate the mitigating factors."
The necessity to reconcile the Law with Supreme Court decision in Tigo Stephen v Uganda
S.C.C.A. No. 089 of 2009 [2011] UGSC 7 where it was held that life imprisonment is defined as
imprisonment for the remainder of the convict's life and Magezi Gadi v Uganda [2017] UGSC
35 where court concluded that “We are of the considered view that like a sentence for murder,
life imprisonment is not amenable to Article 23 (8) of the Constitution. The above Article applies
only where sentence is for a term of imprisonment i.e. a quantified period of time which is
deductable. This is not the case with life or death sentences”, cannot be overemphasized.

The Law Revision (Penalties in Criminal Matters) Miscellaneous Act, 2015 which removed all
references to the mandatory death penalty prescribed by the laws and restricts the application of
the death penalty to "the most serious crimes" by converting the maximum penalties prescribed
in those laws into imprisonment for life; removed the restriction on mitigation in the case of
convictions that carry a death penalty; defines life imprisonment or imprisonment for life and
provides for related matters. The amendment was among others informed by the Kigula and Tigo
decisions by the Constitutional Court of Appeal and the Supreme Court respectively. In spite of
this legislation the conundrum persists as in the case of Sundya Muhamudu and Others v
Attorney General (Constitutional Petition 24 of 2019) [2022] UGCC 7, the Constitutional Court
seems to have further complicated the sentencing regime of Uganda by declaring all sentences in
the excess of 20 years imprisonment unconstitutional. In their considered view sentences in the
excess of 20 years offended section 86(2) of the Prisons Act which caps life imprisonment to that
period for purposes of remission. This recent development places the sentencing regime of
Uganda at crossroads.
It is arguable that the uncertainty by the bench as regards sentencing places convicts, the victims,
the prosecution, defence and the Uganda Prisons Service in a very precarious position. Leaving
the sentencing of convicts to judicial discretion on the basis of all this uncertainty creates a fluid
situation. Criminal justice must have uniformity, certainty, consistency and universality, having a
fluid situation exposes each actor to the vagaries of the justice system. As noted above the
concepts of sentencing and inflicting punishment are distinguishable. It follows that it is high
time for the justice sector to engage with Parliament, academia, civil society and policy makers
to enact a comprehensive sentencing legislation. A sentencing legislation would provide for a
sentencing hearing, victim impact statements, social impact statements and social welfare reports
for the convicts, mitigation, antecedents, sentencing rulings et al. The ad hoc approach adopted
in the circumstances is untenable to say the least. A Sentencing Act is the way to go.