[2024] UGCA 318

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF'UGANDA AT KABALI

lCoram: Mutangula Kibeedi, Gashirabake & Kihika, JJAI CRIMINAL APPEAL NO. OO83 of 2Ol2

(Aising from the judgment of the High Court of Uganda [Bashaija K. Andrew, Jl, in Ciminal Session Case No. 0134 of 2010 at Mbarara, deliuered on the 27"t March 2012)

1. TWINOMUGISHA ANDREW

2. TUSENGYE IMANA VALENCE =====Appellants

#### VERSUS

UGANDA =Respondent

#### JUDGMENT OF THE COURT

# Introduction

[l]The appellants were indicted for the offense of murder contrary to sections 188 and 189 of the Penal Code Act Cap 120. The particulars of the offense were that on the 24tt September 2OO9 at Kagango 11 Ibanda District, the appellants, with malice aforethought, caused the death of Baguma Nicholas.

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- [2] Peninah Asiimwe and A1 were the parents of the deceased. On 24rh September 2009, she left the deceased with A1 and went to fetch water at the well. She returned home and did not find the son. When she inquired about the deceased, A1 told her that the child was asleep. She, however, did not find the son sleeping. She searched the neighbourhood in vain and reported the matter to the LC 1 Chairperson, who mobilized the residents to search for the child. - [3] A1, who had disappeared from home, was picked up from Kalunzo trading center, and upon questioning, he admitted to causing the death of the deceased together with 42. The deceased's headless body was found buried in Simon's banana plantation. The head was never recovered. Both appellants worked for Simon as shamba boy and herdsman, respectively. A blood-stained panga and a hoe were also recovered near the grave. The appellants were charged, tried, convicted, and sentenced to death. - [4] Aggrieved with the Trial Judge's decision, the 1"t appellant sought and was granted leave to appeal against the sentence only. The 2"d appellant appealed against both conviction and sentence. The grounds ofappeal are: - i. That the learned Tial Judge erred in Law and fact in finding that the euidence of Pw1 implicated A2 qs ^a participant in the murder. - ii. That the learned Tial Judge erred in law bg relging on A7's confession to conuict A2 in the absence of

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corroborating euidence qnd erred in his approach to the ueight to be atlqched to A7's confesslon as euidence against 42.

- 111 The learned tial judge erred in law bg failing to correctlg applg the test for the discretionary application of the death penaltg. - In the alternatiue but without prejudice to the aboue, the learned tial judge erred in law and fact bg; 1V. - a) Passing manifestlg excessiue sentences. - b) Without refereruce to the conect test for imposing the death penaltg. - cl Without consideing the different roles plaged bg each appellant, and - dl Placed no, or no adequate weight on the mitigation raised. - [5] The respondent opposed the appeal on the grounds that the learned trial judge properly evaluated the evidence, applied the facts and the law, and arrived at the correct decision. Concerning the sentence, the respondent contended that the tria-l judge considered the aggravating and mitigating factors and arrived at a fair and just sentence, given the nature of the offense and how it was planned and executed.

#### Appearances

[6]At the hearing of this appeal, Mr. Seth Rukundo and Mr. Robert Okot appeared for the appellants on State Brief and Private Brief, respectively. Mr. Joseph Kyomuhendo, Chief

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State Attorney in the Office of the Director of Public Prosecutions, appeared for the respondent

### The Appellant's Submissions.

## Submissions against sentence for A1.

- [7] Counsel submitted while relying on the case of AG V. Kigula & 417 others [2OO9] UGSC 6 that the mandatory death sentence was unconstitutiona-l. He submitted that the Court further pointed out that murders ale not committed under the same circumstances and that murderers vary in character, as some are first offenders, and some are remorseful. Such factors should be considered when the Court is exercising its sentencing discretion. - [8] Counsel further submitted that the test for applying ^a death sentence has been laid down in several cases. He relied on the authorities in Mbunga Godfreg V. Uganda" SC Crilmino,l Appeal No. 4 of 2Ol7; the court held that tJ:e death sentence should be passed in grave and ra.re circumstances because of its finality. The test was expounded in Kakubi V. Uganda [2OO9]UGCA 56 (28th December 2OO9l, where the court held that the death sentence should be imposed in the gravest of extreme guilt and where the court has determined, based on expert evidence, that the individual reform and rehabilitation consequent to a custodial sentence would be impossible. This test was applied Ln LDU Kgariktnda V. Uganda [2O16]U@CA 70(6th December 2016l.

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- [9] Counsel for the appellant further relied on Paragraph 17 of the Constitution (Sentencing Guidelines for Court of Judicature) (Practice) Directions 2O13 and Section 5 of the Law Reform (Penalties in Crimina-l Matters) Miscellaneous Amendment Act 2019, which provides that a death sentence should be considered in exceptional circumstances where the alternative of imprisonment for life or other custodial sentence is demonstrably inadequate. - [10] Counsel submitted that the court has to consider and balance the aggravating and mitigating factors to determine if a case falls within exceptional circumstances. He relied on the case of Aha;rikundira V. Ugand,a [2018] UGSC 49(3.a Decemher 2078), where the Supreme Court, while substituting a death sentence that the Court of Appeal had conlirmed with 30 years'imprisonment, held that the trial judge, while giving his decision did not weigh mitigating factors against the aggravating factors and that the same trend prevailed in the Court of Appeal when it failed in its duty to re-evaluate the mitigating factors. - [11] Counsel faulted the trial judge for not considering the mitigating factors, including the age of the appellant-Al who was 22 years as at the date of sentence, and being a first offender, a factor which counsel contends, was relevant to the appellant's capacity to reform, the gravity of the offense notwithstanding. Counsel further faulted the tria\_l judge for failure to assess the adequacy of a-lternative

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sentences like imprisonment for life or another custodial sentence, where an offender could reform or be rehabilitated.

- [12] Counsel submitted that the appellant had been in prison for over ten years, and there was evidence of his reform. He referred to annexures'C,'a letter byAl to the mother of the victim, 'D,' certificates of training done by A1 showing engagement in life skills programs, and 'E,' a report from prisons that A1 had adhered to the prison rules. - [13] Counsel further invited the court to consider decided cases in similar circumstances where the death sentence was not imposed. He cited Nalongo Nqziwa us Uganda (Criminal Appeal 35 of 2014) [2018] UGSC 27 where the appellant was convicted and sentenced to 18 years imprisonment for kidnapping with intent to murder. The victim, a baby, was never seen alive again. In Kakubi Pqul & Anor a Uganda (Crininal Appeal No. 726 of 2OO8) [2OO9] UCfrA 56 (28 December 2OO9), the death sentence was substituted with 20 years'imprisonment on appeal. The appellant hacked a grandmother to death in the presence of her young grandchildren. The deceased was accused of witchcraft. Counsel further referred to Nrtulu Ashm,qn Kibuuka ^a Uganda (Criminal Appeal No. 23 of 2OOO) [2OO4l UGCA 16 (1O June 2OO4), where the appellant was convicted of kidnapping with intent to murder and sentenced to 20 years

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imprisonment. The six-month-old child, a victim of the offense, was never seen alive again.

## Submissions against conviction and sentence for A2.

Ground l: The learned trial judge erred uhen he found that the euidence of Pw1 implicated A2 as a participant in the murder.

- [14] Counsel for the appellant faulted the learned trial judge for overlooking inconsistencies in the evidence of Ms Peninah Asiimwe (Pw1) about A2. He referenced the discrepancies, including when A1 used a banana to persuade the deceased not to follow the mother to the well, Pw1 did not mention that ,A.2 was present or that A1 was playng cards; When Pw1 returned from the well and asked A1 where the child was, A,1 washed his feet and went away. Pwl asked A2 where the child was, and A2 replied that he did not know. Pwl did not mention that A2 was playing cards or interacting with A1. - [15] Counsel submitted that it was during cross-exarnination that Pw1 indicated that A2 had been playing cards at home when Pwl went to fetch water. That Pwl did not mention with whom A,2 was playrng the cards. That the summar5r of evidence of Pw1 about A2 ascribed by the learned Judge was inaccurate. Further, that A2 lived in the same house; therefore, his presence there was not exceptional. Counsel for the appellants emphasized that the evidence did not show t}:at A2 was playing cards with A1, as the judge concluded.

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[16] Counsel further argued that the mere presence of A2 at the house he lived in could not lead to the conclusion that he participated in the commission of the offense in the absence of eyewitnesses. Counsel cited the case of R Vs. Keishqimcizq Ttndikawa [794O]EACA 67, where the court distinguished evidence of opportunity from the evidence of participation, recognizing that they are not sJrnonJrmous. While evidence of opportunity is an important matter, it is not in itself to be regarded as corroboration.

Ground 2: The leqrned trial judge ened bg relging on the confession of A1 to conuict A2 in the absence of corroborating euidence. He also erred in his approach to the weight attoched to A7's confession as euidence against A2.

- IrTl Counsel faulted the learned trial judge for not warning himself of the need for caution before admitting the evidence of a confession of one accused against a co-accused and the need for corroboration. He relied on the authority of Mugisha Vs. Ugando U@A 749, ushich cited urith approaal the cqse o.,f R Vs. Bqskeruille [1916]2 KB 658, on the need for corroboration of a material circumstance of the crime and independent evidence connecting or tending to connect the accused with the crime, including circumstantial evidence. - t18l Counsel further cited the case of Aramqnthan Hrr,ssan & Anor as. Uganda [2O2O]UGCA I33, which noted with

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approval the case of Oryem Richard & Onor us. Uganda [2OO3] UGSC 30 (17 September 2OO3) where the court held that " if is tite low that in q case where two or more qcqtsed persons are jointlg tied with the same offense, a confession bg one implicating qnother cannot be a basis for ^a conuiction of that other. Under section 28 of the Euidence Act, it mag only be used to supplement substantial euidence against the co-qccttsed" [. . . ] "It is a weak form of euidence because it is made in the absence of the implicated coqccused and the ueracitg is not tested through crossexamination.

[19] Counsel submitted that the confession was weak because it shifted responsibility of planning, killing, and beheading the victim to A2, a worker at Haba Simon's property whose presence was obvious. Pwl's evidence that A1 persuaded the child to stay home strongly points to the possibility that A1 had hatched the plan of killing the child.

Ground 3: the learned trial judge failed to applg the test for the discretionary death penaltg correctlg.

- [2O] Counsel in his submissions, first set out the legal frame work pertaining to the factors that a court should take into account when exercising its discretion in passing the death sentence. - l2ll Counsel referred to the case of AG as Kigula and 477 otlers [2OO9] which held that the mandatory death sentence was unconstitutional. He further submitted that the test for the discretionar5r application of the death

Page 9 of 25 et penalty has subsequently been confirmed in domestic case law, the 2013 sentencing guideline and recent legislation.

- l22l Counsel cited the case of Mbunga Godfreg as Uganda Crirnm Appeal No. 4 of 201 I in which the Supreme Court held that the death sentence should be passed in very grave and rare circumstances on account of its finality. He further cited the Kakubl case (supra) which held that the death penalt5r should only be imposed in circumstances which establish the gravest of extreme culpability and where a court determines that individual reform and rehabilitation consequent to a custodial sentence would be impossible. - l23l Counsel submitted that the case law cited and the sentencing guidelines confirm that there are two parts to the test for the passing of the death sentence. The first determining whether there were special circumstances (rarest of rare, or worst of the worst). The second is whether the offender has the capacity to reform. - [24] Counsel further submitted that in the instant case, whereas the learned trial Judge considered the first part of the test, he however, failed to take into account all the relevant mitigating factors into account. Counsel also submitted that the learned trial Judge failed to consider the second limb of the test, which was that the 2"d Appellant was 26 years of age. He relied on the case of Kabdtera Stetren as Uganda, Crim-Appeql No. 723 of 2OOl where it was held that the age of an accused person is always a material factor that ought to be taken into account before sentence is imposed.

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[25] Counsel invited Court to allow the appeal against conviction for A2 and replace the death sentence.

## Submissions for the respondent.

- [26] Counsel for ttre respondent argued the l"t and 2"d grounds together, focusing on the learned trial Judge's reliance on compelling circumstantial evidence. Counsel submitted that this evidence was found in the accused's fa-lse a-libi, the last seen doctrine, the appellants' post-crime conduct, their lies, and the charge and caution statement, which formed the crux of the case. - [27]Counsel referred to the cases of . Hussefn Akbqr as. Uganda SCCA NO. 03 of 2073 and Simoa Musoke a R (1958) EA 775, highlighting their relevance to the current appeal. Counsel submitted that these cases, which established the criteria for a conviction based on circumstantial evidence, are pivotal in understanding the court's approach to such evidence. While relying on the aforementioned authorities, Counsel submitted that the inculpatory facts in the instant case were incompatible with the accused's innocence and incapable of explanation on grounds other than his guilt. - [28] Counsel submitted that the defense of alibi set up by both Appellants was false because the evidence of Peninah Asiimwe (Pwl) and Detective Inspector of Police Mbaramye Julius (P\*7), placed the appellants at the scene of the crime as active perpetrators of the Murder of Baguma. b{

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- [29] Counsel referred to the trial Judge's findings on page 35 of the Record of Appeal wherein he found contradictions in the evidence of the 1st Appellant regarding time, holding that the period did not exclude the Appellant from the crime scene. Counsel relied on the case of Festo Asenua Vs. **Uganda [1998] UGSC 23,** where the court held that an alibi should be disclosed at the earliest; otherwise, an accused may create doubt as to whether he has not been preparing it at intervals and secondly to enable the prosecution and police to investigate. - [30] Counsel referred to last seen doctrine, arguing that the Appellants were last seen with the deceased. He drew on the cases of **Mugerwa v Uganda [2023] UGCA 183** and Jagenda v Uganda / 2022/ UGCA 25, which upheld the doctrine's rebuttable presumption that the person last seen with the deceased is responsible for their death. - [31] Counsel pointed the fact that both Appellant's disappeared when the complaint started looking for her child. Counsel submitted that their disappearance exhibited guilty conduct and corroborative circumstantial evidence.

Counsel submitted that the Appellant's evidence was contradictory and inconsistent. A2 first testified that he did not know A1. He contradicted himself later when he said he knew A1. That his lies were deliberate and pointed to A2's credibility.

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With respect to the sentence, Counsel argued the 3rd and 4th grounds concurrently. Counsel relied on section 5 of the Law Revision (Penalties in Criminal matters) Miscellaneous (Amendment) Act, which provides that the court may only impose the death sentence in exceptional circumstances where the alternative of imprisonment for life or other custodial sentence is demonstrably inadequate.

He submitted that the offence was premeditated and executed, calling for a harsh sentence. Counsel invited the Court to consider the principle of consistency in sentencing as held in the case of Byaruhanga Okot v Uganda CACA **No 078 of 2010**. He cited authorities where appellate courts maintained the death sentence, including **Bidong & 2** others v Uganda [2023] UGCA 113, Mugabe Vs. Uganda [2014] UGCA 66 and Bahemuka William and Anor v Uganda [2010] UGCA 51.

He prayed that the appeal be dismissed.

## Court's consideration.

$[20]$ The first appellate court must re-appraise the evidence at the trial court and come to its conclusion. See Rule $30(1)(a)$ of the Judicature(Court of Appeal) Rules. However, we must remember that we did not have the opportunity to see and hear the witnesses as they testified

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## See Bogere Moses Vs. Uganda[l998lUGSC 22; and Kifiamutwe Henry Vs. Uganda [1998]UGSC 20

We shall first determine the appeal against the conviction of A2 only. If the conviction is confirmed, we shall concurrently deal with the appeal against the sentence for both appellants. If the conviction of A2 is quashed, we shall determine the appeal against the sentence for A1.

## Appeal Against Conviction of A2.

- l2ll There is no direct evidence of the participation of both appellants in the murder. The appellants and Pwl lived at the home of Simon Haba, for whom the appellants worked. Pw1 and Al- were married, and the deceased, Baguma Nicholas, was their son, aged one and a half years old. The headless body of the boy was found buried in a shallow grave in a banana plantation of the appellant's master by area LCs and residents. The head was never recovered. The mother of the victim(Pwl) had raised distress calls after returning from the well and finding the child whom she had left with the father missing. - l22l Counsel for the appellants faulted the learned trial judge for relying on the alleged inconsistent evidence of Pwl to find ,{2 guilty. He faulted the judge for finding that Pw1 had found A1 and A2 playing cards at Haba Simon's home when she returned from the well. Counsel stated this

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finding was inaccurate because Pw1 did not mention who A2 played cards with.

- 123) We have reviewed the evidence of Pwl and the trial court's judgment. While it is true that Pwl did not specifically mention that A2 was playing cards with A1, as reflected in the judgment, we do not find this material. What is material is that both appellants were at Haba's home, from where the child disappeared. When Pwl returned from the well and found her child missing, she asked both appellants. A1 reportedly washed his feet and left the home. A'2 told Pw1 that he didn't know where the child was. A2 further told Pw1 that he was leaving Haba's home, too, and he did go. - l24l Both appellants left as the mother frantically looked for her child. When her efforts yielded no results, she alerted LCs and residents, who mounted a search. They looked for ,A'1 and found him playing cards in the Kafunzo trading center. They returned him to Kagango and asked him about the child, but A1 refused to participate in the search. He was handed over to the police. A.2 also returned but did not participate in searching for the boy, so the residents chased him. Pwl testified that her husband's parents used to tell him that the deceased was not his son. Pw3, the area LC had once intervened in the 1"t appellant's dislike for the child on allegations that he was not the father. On page 14

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of the appeal record, Pw3 testified that the l"t appellant had denied, saying he says things he doesn't meal when drunk.

- l25l The conviction of the 2"d appellant was not solely based on the evidence of Pwl as Counsel for the appellants contend. It was a total evaluation of the prosecution and defense case evidence. Page 32 of the appeal record bears the triai judge's analysis of the appellants' participationthe only disputed ingredient. The learned trial Judge quoted the case of Bogere,lltfoses & anor Vs. Uganda SCCII lVo. I of 7997, which answered the question; what amounts to putting the accused at the scene of crime? The Court held that the expression must mean proof to the required standard that the accused was at the crime scene at the material time. - 126l The learned trial judge, on page 33 of the record of appeal, noted that the evidence of Pw1 was corroborated by that of Pw7, who recorded a charge and caution statement(P Exhibit 10) of the 1"t appellant in which the l"t appellant provided graphic details of the plan to kill his child, the motive, and the actual execution together with the 2"4 appellant. They were promised to be paid four million Uganda shillings. - l27l On page 34 of the appeal record, the learned tria-l judge cautioned himself of the requirement for corroboration of a retracted or repudiated confession before the Court can

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safely act on it. A trial within a trial was conducted, after which the retracted confession was admitted in evidence. The learned trial judge also correctly applied section 27 of the Evidence Act on the effect of a confession statement against the maker and the co-accused.

- The trial judge held on pages 34 and 35 of the appeal $[28]$ record, "... A1 tars A2 with the same brush he tars himself. The confession corroborates the evidence of Pw1 and vice-versa and puts both accused at the crime scene on the fateful day at the material time. I do not believe the version of the accused persons because it is not credible for reasons that . . .." - $[29]$ Both the appellants denied the offense and set up a defense of alibi. The 1^st appellant doesn't contest the conviction. The $2^{nd}$ appellant testified that he was in Nyamalele trading center looking after cattle on the fateful day. However, the $2^nd$ appellant contradicted himself when he stated that as he was leaving Haba's home, he met Dw1 in the bush, and they were talking when Pw1 found them and accused them of conspiring to kill a child. Dw2 repeated, "As I was leaving Simon's place, that's when the wife saw me talking with A1." - In cross-examination, the $2^{nd}$ appellant re-affirmed $[30]$ that Pw1 found him at Simon's place and asked him where he was going. Dw2 testified that he had never seen Pw1

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before the court. The learned Judge dismissed the alibi. The court record also noted the contradictions in the evidence of both appellants. While Dw1 denied knowledge of Dw2 before the offense was committed, Dw2 said they knew each other as workers of Simon. While Dw2 said he was in Nyamarere on the fateful day, he later acknowledged that Pwl saw him and talked to him while at Haba Simon's place.

- [31] He also admitted that Pw1 asked him where he was going. Dw2 further contradicted himself when he testified that he didn't know Pw1 as the wife of Dw1 before his appearance in Court. And yet he earlier testified that Dwl's wife found both appellants talking. When in crossexamination, the contradiction was pointed out, Dw2 stated, "l mag hann forgotten qnd told lies." - l32j The trial judge dismissed the 2"d appellant's alibi. On page 35 of the appeal record, the trial judge, while referring to the evidence of Dw2 regarding the conversation he held with Pw1, stated as follows; n... he couldnothure lefi the place three ta,eeks eqrlier qs he clalmed and. dt the scme time sag he la.o-s leaaing the place that so;mc dag. It does not mqke sense at all". The trial judge concluded that the appellants were placed at the scene as participants in the killing of the deceased. - t33l While Counsel for the appellants faulted the trial judge for relying on the confession of A1 to implicate 42, in the

ClnTl crM{\*",M absence of corroboration, the defense counsel enumerated incidences of corroboration. These include the evidence of Pw7 and Pw1 placing the appellants at the scene. The last seen doctrine, where the deceased was left with the appellants before disappearing in 20 minutes and later being found dead.

- [34] ln Mugerua Vs. Uganda [2023] UeiCA I83, the Court quoted with approval the case of Jagenda Vs. Uganda, CACA No. OOl of 2O77, where it was held that "tte last seen doctrlne uhlch has global appllcatlon to homicides, our uiew is that, this doc:trine creqtes a rebuttable presumptlon to the elfect that the person la,st seen unth q deceased person bears lull responslbllltg for his or her death." In the instant case, the appellants did not rebut the presumption. The trial judge found their evidence incredible. - [35] The respondent further pointed to the appellants not participating in the search and, instead, both disappearing from home until they were a-rrested. The respondent relied on the autJrority of George Wilson Ssimbuta Vs. Uganda. (Criminal Appeal No. 37 of 1995) where it was held that the appellant's conduct of running away from the village shortly after the murder was incompatible with their innocence and buttressed the prosecution case.

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[36] After a review of the evidence and submissions on appeal, we find that the trial court was justified in concluding that the 2"d appellant participated in the murder of the deceased. As a result, we uphold the conviction of the 2nd appellant.

## Appeal against sentence for both appellants

- l37l Both appellants were sentenced to death. Counsel for the appellants faulted the learned trial judge for failing to consider the mitigating factors adequately, and to correctly apply the test for the discretionary application of the death penalty. The test is the presence of very grave and rare circumstances where an offender's chalces to reform or reconcile with the community are impossible. See; Mbunga Godfreg Vs Uganda, Supreme Court CriminqlAppeal No. 4 of 2O77, Ko.krtbi Vs Uganda [2OO9]UG CA 56 and LDU Kgarikunda Vs. Ug anda[2o 7 6]UGCA 7 O. - [38] Counsel for the appellant faulted the judge for not considering the appellant's age(Al at 22 years and A2 at 26 yea-rs at the date of sentence), family responsibilities, background, and health, all of which were mitigating factors. The trial judge did not address whether arr alternative punishment would be inadequate, nor the appellant's ability to reform since they were relatively youthful.

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[39] The respondent submitted that the learned trial judge considered both the aggravating and mitigating factors and correctly found the aggravating factors more weighty. Counsel further submitted that the facts of this case fell within the exceptional circumstances warranting a death penalty. This is because a young child was murdered by a biological father and A2 brutally.

[4O] The law that governs appellate courts regarding sentencing is well settled. In Kamya Johnson v Uganda, SCCA No. 16 of 2OOO, the Supreme Court held:

> "It is well settled that the Court of Appeal wlll not interfere with the exercise of discretion unless there has been a failure to exerclse discretion, or failure to take into account a materlal consideration, or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion dlfferently."

[4 1] The learned trial Judge's sentencing order on page 37 of the appeal record was couched as follows;

> "It has been said thot the conuicts are first-time offenders since there are no records auailable of their preuious conuictions for any other offenses. Howeuer, the conuicts committed a uery graue offense in a brutol and barbaric mannen Theg took awag the life of an bf

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innocent growing child in a ritualistic murder in the hope of getting rich quickly.

Such acts are abhorrent to society and need to be curtailed by applying the full force of the law. Therefore, the sentence should be such that it should be deterrent enough for the convicts and other would-be offenders. A message needs to be sent with clear signals to the public that ritual murders and human sacrifice of innocent children and people shall not be tolerated.

Those who harbor such notions that child or human sacrifice brings riches quickly should know that it is nothing but a shortcut to the gallows. Courts cannot be lenient to or condone such preposterous evil acts. The convicts killed an innocent child mercilessly. Hence, they, too, deserve no mercy. They committed one of the *worst crimes in the worst manner. They have to pay in the same measure. Therefore;*

I hereby sentence Twinomugisha Andrew to death. I *hereby also sentence Tusengye Imana Valence, alias Mufumbira, to death".*

- $[42]$ Before the sentence was pronounced, Counsel for the accused submitted, "A1 is 22 and A2 is 26 years old. They need another chance at life." Both appellants were then allowed to speak and submitted as follows: A1-" $I$ am a sick person. I am an orphan." $A2$ -"I have children and a mother to look after." - $[43]$ Section 5 of the Law Revision (Penalties in Criminal Matters) Miscellaneous (Amendment) Act provides that **"the**" court may only impose the sentence of death in

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exceptional circumstances where the alternative of imprisonment for life or custodial sentence is **demonstrably inadequate."** The same measure is reechoed in Guideline 17 of the Constitution (Sentencing Guidelines for Courts of Judicature) Practice Directions 2013.

- $[44]$ Counsel for the appellant acknowledged that the trial judge considered the first leg of the test; "the rarest of the rare," when during the sentence, he acknowledged that the offense was grave and committed in a brutal and barbaric manner, a ritualistic murder was done in the hope of getting rich, etc. (sentencing notes above). - A1 mitigated that he was sick and an orphan. A2 $[45]$ mitigated that he had children and a mother to look after. Their Counsel prayed that the Court give them another chance at life. Both were also youthful. The sentencing notes above are silent on whether the trial judge considered these factors or whether the possibility of an alternative punishment was considered as required by law. - $[46]$ The failure to consider and weigh all mitigating factors led to a harsh sentence on two youthful offenders, one of whom had family responsibilities. We have considered other cases in which the victims were children, and the convicts were not given life sentences. In Ssekawoya Blasco Vs. **Uganda**/2018/UGSC 6, the appellant killed three children

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aged 12, 10, arrd 8 years. He was sentenced to life imprisonment. In Ruralinda John Vs. Uganda [2O14UGSC 38, a toddler was kidnapped and never seen again. The appellant was convicted of kidnapping with intent to murder. He was sentenced to life imprisonment.

- [47] We accordingly allow this ground of appeal ald set aside the death sentence. We shall invoke section 11 of the Judicature Act, which gives this Court the power to impose a sentence of its own. To arrive at an appropriate sentence, we must consider the mitigating and aggravating factors and the time spent on remand. - [48] Under regulation 18 of the sentencing guidelines, paragraphs (a), (d), (e), and (f), the murder was aggravated by the planning, pre-meditation, and execution, furtherance of a common purpose, remova-l of the head of the victim and victim having been killed in the act of human sacrifice. The mitigating factors include the fact that the appellants were first offenders, both youthful and capable of reforming. A,2 had family obligations. - l49l The sentencing guidelines prescribe death as the maximum penalty for murder. The starting point for murder is 35 years, while the sentencing range after considering tJre mitigating and aggravating factors is 30 years to death. While a heinous crime was committed, we are convinced that a prison sentence will meet the ends of justice. This is

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because both appellants are youthful and capable of reform and re-integration into the community. Having said that, ritual murders have become a regular occurrence in recent times. A deterrent sentence is indeed warranted in the circumstances of this case. The appellants are accordingly sentenced to 37 years'imprisonment each.

[50] The two years spent on remand are deducted in line with Article 23 (8) of the Constitution. Each appellant shall serve 35 years' imprisonment from 21"t March 2012, the date of conviction

Dated at Kampala this day of 2024.

Muzamiru Mutangula Kibeedi

Justice ofAppeal

t C ^S pher Gashirabake

Justice ofAppeal

Osc Justice o ppeal \.