[2000] UGSC 25

$2.122000$

RESPONDENT

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

#### ODER - JSC. TSEKOOKO - JSC. KAROKORA - JSC. (CORAM: KANYEIHAMBA - JSC, MUKASA-KIKONYOGO - JSC)

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#### CRIMINAL APPEAL NO. 16 OF 1999

### **BETWEEN**

**KYAMANYWA SIMON:** APPELLANT *....... ....... ....... ....... .......* $A$ $N$ $D$

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UGANDA:

{Appeal form the decision of the Court of Appeal in Kampala |Kato -JA. Engwau - JA and Twinomujuni - JA1 dated 16^th March 1999, in Court of Appeal Criminal Appeal No. 5 of 1998?

### JUDGMENT OF THE COURT:

The appellant, Simon Kyamanywa, and another person were tried and convicted by the High Court on the first count of an indictment of two counts of robbery contrary to sections 272 and 273(2) of the Penal Code. The particulars of the count on which they were convicted were that the appellant, Simon Kyamanywa, and his co-accused, Sunday Joseph, on or about the 26^th day of May, 1994, at Kijuujubwa Village, in Masindi District, robbed September Mathias of one NIA Radio Cassette, model CRC 3 OOT KY II and one torch and at or immediately before or immediately after the said robbery, threatened to use a deadly weapon to wit a gun on the said September Mathias. The appellant and his co-accused were sentenced to death. The co-accused separately appealed to the Court of Appeal which substituted a conviction for simple robbery for the one of capital robbery. The appellant's appeal to the Court of Appeal against his conviction also succeeded. His conviction for robbery, contrary to sections 272 and 273(2) of the Penal Code was quashed and the sentence of death set aside. The Court of Appeal substituted a conviction of robbery Contrary to Sections 272 and 273(1)(b) for the one of robbery for which he had been convicted by the High Court. The Court of Appeal

sentenced the appellant to a term of imprisonment of six years and six strokes of the cane. The Court of Appeal also ordered that he should undergo Police supervision for three years after serving the term of imprisonntent. The co-accused, Sunday Joseph, made ^a separate appeal to this Court. (Crinrinal Appeal No. -5 of 1998). On 8-9-99, that appeal was withdrawn with the leave of this Court.

The appellant has now appealed to this Court against the sentence of six strokes of the cane. The only one ground of appeal is set out in the Memorandum of Appeal as follows:-

## "1) The decision of the Court of Appeal that the oppellant be sentenced to receive 6 strokes of lhe cane is in contlicl with the provisions of the 1995 Constilulion ond is therelore, illegal. It is proposed to ask Court lor on order lhot

(a) The appeal be allowed.

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(b) Sentence be sel aside,"

When the appeal was called for hearing, Mr. Charles Ogwal Olwa, Principal State Attomey, appearing for the State respondent, took a preliminary objection to the appeal, and prayed that the appeal should be struck out. Mr. Joseph Zagyenda appearing for the appellant opposed the objection. The leamed Cotmsel then made their arguments on the objection. We posponed our ruling on the same and asked both the parties to proceed with their respective submissions on the merit of the appeal. We indicated that we would give our nrling on the objection in our judgnrent. We now proceed to do so.

In essence the objection is that the appeal is incompetent because the appellant has right of appeal to this Court on the grormd sel out in his Memorandum of appeal. eppeal is not properly before this Court.. no The

Section 6(3) of the Judicature Statute 1996, provides:-

"In the case of an appeal against a sentence and an order other than one fixed by law, the accused person may appeal to the Supreme Court against the sentence or order on a matter of law not including the severity of sentence."

In the instant case, the appellant is appealing against a sentence of corporal punishment imposed on him by the Court of Appeal. Sentence of corporal punishment is provided for by section 274 A of the Penal Code which states:

> "Without prejudice to anything contained in any written law, any person who is sentenced to a term of imprisonment under the provisions of section 273 or section 274 of this Code, shall, in addition thereto, be sentenced to corporal punishment."

Corporal punishment is not defined by the Penal Code Act. The Shorter Oxford Dictionary 1973 Vol. I defines it as: "Punishment inflicted on the body, Now confined to flogging." The Concise Oxford Dictionary defines it as: "Punishment inflicted on the body especially by beating." The provisions of section $108(1)$ of the Trial on Indictment Decree appears to be consistent with this definition. The section indicates what weapon or instrument should be used in inflicting corporal punishment and how it should be meted out. It states:

> "108(1) Only one sentence of corporal punishment shall be imposed at one time. Such corporal punishment shall be inflicted with a rod or cane to be approved by the Minister. The sentence shall specify the number of strokes which shall not exceed twenty four."

Section 274A of Penal Code by virtue of which the Court of Appeal sentenced the appellant to six strokes of the cane does not specify or fix the number of strokes of the cane to which a person must be sentenced on conviction under sections 273 and 274. It does not say, for instance, that "......... any person who is sentenced to a term of imprisonment under the provisions of section 273 or section 274 of this Code, shall, in addition thereto, be sentenced to $X$ strokes of the cane of corporal punishment." The words underlined are our addition for purposes of explaining the point. If the section provided for the number of strokes of the cane which a Court must impose, then the

sentence would be fixed. As it is, the number of strokes ofthe cane applicable is left to the discretion ofthe trial court. section 108(l) of the Trial on Indictment Decree sets out the nraximum within which that discretion may be exercised. The limit is 24 strokes In the circumstances, the sentence of corporal punishment by strokes of the cane to which the Appellant was sentenced by the Court of Appeal is one which is not fixed by law for puposes of section 6(3) of the Judicature Statute. For that reason, this appeal is competent.

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The appeal is competent for another reason. The appellant is not appealing against severity of sentence. He is appealing againsl the legality (or constitutionality) of the sentence. He contends that the sentence of corporal punishrnent (o which he was sentenced by the Courr ofAppeal is illegal because it is in conflict with article 24 ofthe Constitution. It is contended that the punishment is a form of torture, is cruel, inhuman and degrading. This is a matter of law not including severity of sentence. lt is ^a condition required by section 6(3) of the Judicature Statute for a person to appeal to the Supreme Court against sentence.

For the above reasons, we see no merit in the respondent's preliminary objection to this appeal. It is therefore, ovem.rled.

tn his submission on the merit of the appeal, Mr. Joseph Zagyenda, the appellant's learned Counsel. contended that the punishment of six strokes of the cane imposed on the appeltant, is in conflict with anicle 24 of the Constitution. Caning is a form of torture. cruel, inhuman and degrading punishment. We should therefore, declare it to be unconstitutional, and set a side the appellant's sentence to corporal punishment of six strokes of the cane.

For the respondent, Mr. Charles Ogwal OIwa, Principal State Anomey. opposed the appeal. He submitted in his reply that because the Constitutional Court has not yet declared corporal punishment unconstitutional, corporal punishment is legal under section 274A of the Penal Code Act. Only the Constitutional Court under article 137(3)

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ofthe Constitution can declare corporal purishment unconslitutional. Secondly, corporal punishment created by section 274A ofthe Penal Code Act, is legal because it was saved by anicle 273 of the Constitution when the Constitution came into force in [ 995, the Penal Code Act having been in existence before. He prayed for dismissal of the appeal.

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Article 24 ofthe Constitution which the appellant contends the corporal punishment is in conflict with provides:

## "No person shall be subjected lo any lorm ol torture, cruel, inhuman, or degrading treolment or punishmenl,,,

This appeal requires us to decide whether'. and declare that, corporal punishment is inconsistent with article 24 of the Constitution. The constitutionality of corporal cunishment is therefore being challenged by the appellant. We have to decide whether Corporal Pturishment is constitutional or not. In order to make that decision, it is necessary, in our view, to construe the meaning of that article in relation to Section 274A of the Code Act. In our view that clearly involves interpretation of the Constitution.

The jurisdiction for interpretation of the Constitution in the first instance preserve of the Constitutional Court r.rnder Article I l7( l) of the Constitution says is the which

" 137 (l), Any question os to the irtterpretatiou of this Constitution sholl be determined by the Court ofAppeol silting as the Constitutional Court",

This means thal it is the constitutional court which has the original jurisdiction on matters of interpretation ofthe Constitution. It also has the original juriscliction in cases where a person seeks a declaration that an Act of parliament is inconsistent with ^a provision of the constitution. This is provided for in article 137(3). which states:-

$(3)$ A person who alleges that:-(a) An Act of Parliament, (b) $\dots$

> is inconsistent with or in contravention of a provision of this Constitution may petition the Constitutional court for $a$ declaration to that effect, and for redness where appropriate.

In the instant case the appellant is, in essence, seeking for a declaration that the corporal punishment to which he has been sentenced is inconsistent with or contravenes the provisions of article 24 of the Constitution. The sentence of corporal punishment is provided for by an Act of Parliament. If corporal punishment were to be declared to be inconsistent with the provisions of article 24 of the Constitution the result would be that to that extent Section 274A of the Penal Code would be inconsistent with these provisions of Article 24.

In so far as this appeal seeks for an interpretation of the constitution and for a declaration under article $137(3)(a)$ of the constitution that corporal punishment is unconstitutional, it follows that it is the Constitutional Court which has the original jurisdiction on these matters as the court of first instance to consider and determine the issues raised by this appeal.

This court cannot determine at this stage the issues raised in the appeal for the following reasons.

First in constitutional matters this court is an appellate court. Article 132(3) provides:-

#### Any party aggrieved by a decision of the Court of Appeal $\sim$ (3) sitting as a constitutional court is entitled to appeal to the Supreme Court on questions of Law."

As the appellate court in constitutional matters this court cannot entertain and determine this appeal as a court with original jurisdiction or a court of first instance. The issues raised by this appeal is being raised for the first time in this court. It has not come to this Court on appeal. The appellant has not been aggrieved by a decision of the Constitutional Court on the question raised by his appeal, which is a condition precedent before this court can entertain and determine the question.

Secondly. if is the Constitutional Court as the court of first inslance on the issue, and not this court. which should first deal with the matter, because it may be necessary to adduce evidence before the Constitutional Court to prove that corporal punishment is a form of torture, cruel, inhuman and degrading treatment or punishment' On the basis ofsuch evidence (if any) and subrnissions by coursel, the Constitutional Court would then make the necessary decision and declaration on the issue raised in this appeal.

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ln vie\*' of what we have said above in this judgment, a question as to the interpretation of the Constilution has arisen in the proceedings ofhearing this appeal in this court. The provisions of clause (5) of article 137 of the Constitution are, therefore, relevant. The clause says:

> "5. Where any queslion as to lhe interprelotion of this Constilution arises in ony proceedings in a court ol law olher than a Field Court Marlial, the Court

- (a) May, if it is of the opinion that the question involves ^a subslantiol question of law; and - (b) Shall, tl any parly to lhe proceedings requests it to tlo so, reJer lhe quettion lo lhe Conslitulional Court lor tlccision in accordance h'ith clause (l ) of this articlc."

In the instant case, none of the parties to the appeal has requested the court for ^a reference to the Constitutional Court of the question of interpretation of the Constitution which has arisen. Accordingly, clause (5Xb) of article 137, is inapplicable to this case. The court, therefore, is not obliged to comply with clause 5(b).

Under clause 5(a), the court concerned has discretion to refer a question arising before it if it is of the opinion that the question involves a substantial question of law. The provisions of this clause not-withstanding another question now arises whether this courl should exercise its discretion mder clause 5(a) of article 137 of the Constitution in the instant case in view of its position and jurisdiction in the hierarchy of courts in the judicial system as established by the 1995 Constitution? Clause 5(a), appears to empower any court before which a question as to lhe interpretation of the

Constitution arises in any proceedings before it to refer the question to the Constitutional Court at its own discretion. Only the Field Court Martial, is excepted. This court is not excepted. If it was the intention of the makers of the Constitution to do so, they would have no doubt done so as they did the Field Court Martial. In the circumstances our view is that the expression "any proceedings in a court of law other than a Field Court *Martial*" is wide enough to include the proceedings in this appeal in which the question under discussion has arisen and this court before which the question has arisen.

We also think that the question of interpretation of the Constitution which has arisen in this appeal involves a substantial question of law. It is therefore, necessary for the Constitutional Court to decide on the question in relation to section 274 A of the Penal That is to say it should answer the question whether corporal punishment is in Code. conflict with or contravenes provisions of the Constitution. There appears to be no good reason for this Court to negatively exercise its discretion by not referring the question to the Constitutional Court. It would be an arbitrary decision to do so, given the fact that a substantial question of law involving interpretation of the Constitution has arisen. On the other hand as discretion must be exercised judiciously our view is that it is the proper course to take. Moreover it has to be appreciated that the issue raised in this appeal is bound to have consequences in respect of other offences for which convictions entail corporal punishment. It is therefore, important that issues raised in this appeal should be properly and fully convassed in the Constitutional Court which should make its views on the matter known. Many courts below will be affected by such a decision. For these reasons, we think that this Court should make such a reference in accordance with clause $5(a)$ of article 137 of the Constitution.

Clause $(6)$ of article 137 of the Constitution provides:

"(6) Where any question is referred to the Constitutional Court under clause (5) of this article the Constitutional Court shall give its decision on the question and the Court in which the question arises shall dispose of the case in accordance with that decision."

If this Court referred the question to the Constitutional Court it would do so as the court in proceedings before which the question has arisen. As we have already said before in this judgement it would do so like any other Court other than a Field Court Martial under clause (5) of article 137 of the Constitution. It would not be doing so in its jurisdiction as the appellate Constitutional Court consisting of all its members, which constitutionally it is, under Article $131(2)$ of the Constitution.

Similarly after the Constitutional Court has given its decision on the question referred to it, this Court would dispose of the appeal before it, not as the Constitutional Appellate Court, but as the Court from the proceedings before which the question arose. It would have to dispose of the appeal in accordance with the decision of the Constitutional Court on the question. $\mathcal{K}$ To us, that appears to be the effect of the mandatory language of clause (6) of article 137. In case the decision of the Constitutional Court on the question is appealed (which at this stage can only be a matter for speculation), then such an appeal would come to this Court in its jurisdiction as the appellate Constitutional Court consisting of all the members of the Court. In case the decision of the Constitutional Court on the question referred to it is not appealed, then such a decision would stand as the law until it is over-turned or upheld on appeal by the appellate Constitutional Court in another case in the future.

In the circumstances, and in accordance with the provisions, of clause $5(a)$ of article 137 of the Constitution and the Schedule to the Interpretation of the Constitution (Procedure) Rules, 1992 (Modification) Directions 1996 (Legal Notice No. 3 of 1996), the following question is hereby referred to the Constitutional Court.

### FORM:

### REFERENCE TO THE CONSTITUTIONAL COURT. IN THE CONSTITUTIONAL COURT OF UGANDA. THE INTERPRETATION OF THE CONSTITUTION (PROCEDURE) RULES.

The Reference of the Hon. Justices of the Supreme Court, Oder, Tsekooko, Karokora, $(dissenting)$ Kanyeihamba, and Mukasa-Kikonyogo, JJ. SC, of the Supreme Court sitting at Kampala in Supreme Court Criminal Appeal No. 16 of 1999.

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The Supreme Court being of the opinion that a substantial question of law as to the interpretation of the Constitution has arisen in the above proceedings.

The question or issues are: $2.$

$1.$

"On 16^th March 1999, the Court of Appeal of Uganda at Kampala (Kato, Engwau and Twinomujuuni JJA) in the Court of Appeal Criminal Appeal No. 52/98, Simon Kyamanywa vs Uganda, convicted the appellant of robbery contrary to sections 272 and 273(1)(b) of the Penal Code Act and sentenced him to imprisonment for six years and to six strokes of the cane. It was also ordered that the appellant should undergo Police supervision for three years. The sentence of six strokes of the cane was imposed under section 274A of the Penal Code Act.

Is the sentence of six strokes of the cane inconsistent with or does it contravene the provisions of article 24 of the Constitution?"

The Supreme Court desires the Constitutional Court to determine the question 3. or issues in order to dispose of the above appeal.

| $$ day of:f.<br>Dated at Mengo this: | $W$ $\sim$ 2000. | |---------------------------------------------------|--------------------------------------------------| | A. H. O. ODER | | | JUSTICE OF THE SUPREME COURT | | | J. W/N. TŠĚŘOOKO | | | JUSTICE OF THE SUPREME COURT | | | | | | A. N. KAROKORA | | | JUSTICE OF THE SUPREME COURT | | | | | | G. W. KANYEIHAMBA<br>JUSTICE OF THE SUPREME COURT | (une a<br>dissenting<br>Opinion on<br>reference) | | tem in | |

L. E. MUKASA-KIKONYOGO JUSTICE OF THE SUPREME COURT