Wandubire Clement v Uganda (Criminal Appeal No. 41 of 2017) [2020] UGSC 2089 (8 May 2020)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CRIMINAT APPEAL NO.41 2OI7 WANDUBIRE CLEMENT APPELTANT AND 1C UGANDA RESPONDENT [,^ppe.t ftom,ne iudgmeni of lhe C aofi af Appeol ol Mbole before Hon .,lusrce flirobelh Musoke, Hon JuJiice Borishoki (:hebcrior). Hon -lusfice Poul M ug o.nbo ) J A .loled 2l " AuQUsl. 2A I / in Ctiminol Appeo/ No. 7 52 of 20141 (CORAM; KISAAKYE; ARACH'AMOKO; MWANGUSYA; OPIO'AWERI; BUTEERA;JJ.S.C) 15 JUDG MENT OF COURT. INTRODUCTION This is o second Appeol regordlng legolity of o deoth sentence. Bockqround lo the Aooeol. 20 The oppellont bought lond which wos subject of o conflict. The conflict wos loken to court onci court decided in fovor of one of the deceosed persons. Ihe decree lrolder hod eorlier on reporled o cose of molicious domoge to property ogoinst the oppellont. To effeci lire court orders, the decree i-rolder come to the oppellont's lrome of 6: 00 om with two police officers io evict ond cnest the oppellont. The oppelk-:nt wos oskecl to gei out br,rt he refused' Th-' in-cl'rorge wos colled ond he ordered for o forceful entry by breoking of the oppellont's house dor:r. Upon erriry, ihe oppellont who wos ormecl wilh o pongo cut the police officer, cjisormed him ond shot him. He proceeded or.ri ond shot lhe other police officer ond the decree hclder. The oppellonl rvho wos with ltis son tried to escope but o 25 1. 30 niob pounced on them ond killed his son. The police soved the oppellonl. The oppellont wos indicted for murder on three counts. On the 2l't Seplember 2009, lhe Supreme Courl in Conslilulionol Appeol No. 3 of 2006, Attorney Generol v Suson Kigulo & 417olhers held thot deoth penolty wos not rnondotory ond ordered. omong oiher holdings, thot; "For lhose respondents whose senlence orose from lhe mondolory senlence provisions ond ore still pending before on Appellole Courl. Their coses should be remitled to the High Courl for lhem to be heqrd only on miligolion of senlence ond lhe High Courl sholl poss such senlence os il deems fil". Consequently on l51h July 2017, Ihe oppellont oppeored before Hon. Justice Dovid K. Wongutusi for mitigolion ond resentencing. By thot time the Conslitutionol (Senlencing Guideline for Courls of Judicolure) (Proctice) Directions Legol Nolice No. 8 of 20'13 hod come inio operotion which the re-sentencing judge opplied in sentencing the oppellont to deoth. The oppellont oppeoled thot decision to the Court of Appeol which dismissed ihe oppeol. The oppellonl is now before this Court with on oppeol on the following ground:- 10 15 20 25 ) / He wos convicted of murder on oll the three counis on 20th Jonuory 2003 by Hon. Justice l/oniroguho; J ond sentenced to suffer deoth. Thot the leorned juslices of Appeol erred in low when they upheld on illegol senlence of deolh which did nol loke into occounl lhe oppeilont's mitigoting foclors. 30 He proyecJ lhis court to sei oside the sentence of deoth ond reploce it wilh cr legol one. .) Represenlolion; The oppellont wos represented by Ms. Suzon Wokobolo whereos the respondent wos representecJ by Mr. Mulindwo Bodru, Senior Assistonl Director of Public Prosecution. Both counsel filed written submissions which lhey odopted entirely ot the heoring. Counsel for the oppellont submitted thot olthough during mitigotion, he hod pleoded thot he wos o first offender, the resentencing judge held thol thot foct did not corry ony weight. He orgued thol this wos in controvention with o well loid principle in the cose of Mbunyo Godfrey vs Ugondo Criminol Appeol No.4 of 2011, Supreme Courl where this court stoted thot being o first offender wos enough to negote ihe deoth sentence. She furiher contended thol it wos wrong for the lower couris to ignore the foct thot the oppellont wos of the odvonced oge of Z2 yeors. Ihe oppellonl's counsel olso submitted thot ihe deoth sentence should only be given where couri deterrnines thot individuol reform ond rehobilitotion consequent io o custodiol sentence would be impossible. She submilted thot on record wos o sociol inquiry report from his communily leodership showilrg he wos o good mon with good morols who hod never commitled ony crime before. Further, thot there wos o leller from the Prison outhorities doted 26rh June 2014 where he hocl spent 15 yeors which shows thot he wos o disciplined inmote. 10 15 20 25 30 Appellonl's cose Counsel for the oppellont proyed to this courl io consider the mitigoting foctors ond the circumstonces sunounding the execulion of the crirnes so os io oppreciote the level of provocotion. Further. thoi court should consider thot his own son wos killed by o mob in o scuffle ond therefore thot omounted 1o port of the crppellont's punishment. Eefpqndent's cose Counsel for the respondent stoted thot the Suzon Kigulo cose (supro) did not obolish the deoth sentence bul rother mode it discretionory which discretion must be exercised in conformity with porogroph lZ orrd lB of the Constilution (Sentencing Guidelines for Courts of Judicoture) (Proctice) Directions, Legol Notice No.8/2003. Counsel for the respondent further orgued thoi the guidelines do noi exempt o person of odvonced oge or o first offencler from deoth penolty. He further contendeci lhot even the cose of Mbunyo (supro) which wos relied on by the oppellonl emphosises thot lhe deoih senlence should be possed in very grove ond rore circumstonces. Counsel for the respondent concluded ihot this cose is no doubt o rore one ond thot the nlonner thoi the oppellont hod killed the victims wos grove. He proyed courl to uphold the deoth sentence ond dismiss ihe oppeol. Consid erolion The oppeol is on legolity of sentence. Ihe oppellont's cose is thot the lower courts did not toke into considerotion the mitigoting foctors lhot the oppellont v.ros o first 10 15 )0 25 4 10 15 20 25 offender ond wos of the odvonce oge of 72 yeors thot were odvonced by ihe oppellont, hence reoching on illegol senlence. The sentence in question is the deoth senlence. lt is provided for in section 189 of the Penol Code Act Cop12 os omended which is to the effecl thot ony person found guilty of murcler sholl be sentenced to deoth. The position hos since chonged ofter Supreme Couri pronouncemenls in the cose of Suzon Kigulo & 417 Ors (supro) wherein the court set oside the mondotory deoth sentence ond ollowed such oersons found guilty to mitigote their sentence. ln thot cose, this Court observed os follows; ''Nol oll murders ore committed in the some circumslonces ond nol oll murders ore necessorily of the some chorocler. One moy be o firsl offender ond lhe murder moy hove been commitled in lhe circumslonces lhol lhe occused deeply regrels ond very remorseful. We see no reoson why lhese foclors should not be put before lhe courl before il posses lhe ultimole sentence." Ihe position in Suzon kigulo (supro) wos further fortifiecl by the Conslitulionol (Sentencing Guidelines for Courts of Judicolure) (Proclice) Directions, 2013. Guide line 17 stotes thot; "The court moy only poss o senlence of deqlh in exceplionol circumstonces in lhe rorest of lhe rore coses where the ollernolive of imprisonmenl for life or olher cuslodiol senlence is demonslrobly inodequote." 5 5 This position wos further exploined by this court in the cose of Ahorikundiro Yusiliino vs Ugondo Criminol Appeol No. 27 of 2015 where couri helcl os follows; "...it is trite lhot o person convicted of copilol offence in lhis counlry connol be senlenced lo suffer deolh qs o motter of course wilhoul lhe court considering mitigoting foclors ond olher presenlencing requiremenls. This is becouse deolh senlence is no longer mondolory in lhis counlry; See Suzon Kigulo & Ors vs Ag (supro). According lo the obove cose, deolh senlence should be visiled on o convicl in lhe roresl of lhe rore coses. ll is olso imporlonl lo beor in mind lhol o deolh senlence being lhe heoviesl in lhe lond should be corefully exomined ol differenl levels including oppellole levels to ensure its propriely. The qbove obligolion is more compelling lo lhis courl, since it is lhe courl of losl resorl. The Supreme Courl should nol merely rubber stomp senlences possed by the lriol courls ond courl of Appeo|.........." Agoinst thot bockground, we sholl consider the orgumenls by c o u nsel. It wos counsel's coniention thot the courts foiled to consider the mitigoting foctors odvonced by the oppellont, hence reoching on illegol sentence. He orgued in porliculor thot court did not consider thot the oppellont wos o first offender ond wos of odvonced oge. At this poinl, we sholl reproduce the lower courts' judgments on the motter. The High court observed os follows; "ll is lrue the convicl wos o firsl offender ond o mon of odvonced oge. lt is olso lrue lhot lhe deolh penolty con only be justified in very 6 10 15 20 25 30 I 5 exceplionol coses or in the rorest of lhe rore. Exceplionol coses hove been discussed in Trimingham v lhe Queen (2009) UKPC 25. ln this cose, lhe offence is soid fo be exceplionol when il is dilferent from olher murder coses nof ogreeoble with ordinory civilized behovior. Merely toking o life is not of ilself exceplionol. fhis hos been emphosized in Bochon v Slofe of Punjob (1980) 2 SCC478 in which the Courl found: "fhe exfreme penolty con be inflicted only in grovest coses of exlreme culpobilily.....life imprisonment is fhe rule ond lhe deolh senlence on exceplion.....A real ond obiding concern tor the dignily of humon life postuloles resislonce to toking lile throvgh low's insfrumentalily. Thal ought nol lo be done sove in fhe roresl of rore coses when lhe olternotive option ls unqueslionobly foreclose." Article 6 of the lnternolionol Covenont of Civil ond Polilicol Rights ocknowledges fhe exisfence of deoth penolly bvl provides fhot it is only meted ouf in rnosf serious crimes. It provides; "ln counlries which hove not obolished fhe deofh penolty, senlences of deoth moy be imposed only for fhe mosl serious crimes in occordonce wilh lhe low in force ol fhe time of the commission of fhe crime" lndeed Direction l7 the Constitution (Sentencing Guidelines for Courts of Judicoture) (Proctice) Directions Legol Notice 8 of 2013 provides; "The Courl moy only poss o senfence of deoth in excepfionol circumslonces in lhe "rorest of the rore" coses whele the olternotive 10 15 20 25 7 30 10 15 2A 25 30 of imprisonmenl for life or olher cusfodlol senlence is demonslrobly inodequote". Counsel for the oppellonl submitled ihot becouse the murder wos not premeditoted, it did not foll omongsi the rorest of the rore. Hoving lislened to both porties, this Court con ogree with the courts below thot tlre oct of killing 3 people ot ogo using o pongo ond o gun wos brutol, disgusting, gruesome ond cold blooded. On the issue of premeditoiion people who hod gone to orrest the convict orrived of his home of 6:00om. They pleoded with him for 2 hours but he refused to surrender to the outhorities. They colled the LC Choirperson of the oreo wlro wos well known to him bul he refused to open the door. They in turn colled the OC Police who forced lhe door open. The oppellont wos ormed with o pongo ond stool which he proceeded to hit the first victim on the heod, cut off his left hond, disormed him ond shol the helpless police officer. Being ormed with lethol weopons could not hove been occidenlol but in preporotion to kill whoever corrle by. Hoving killed the Police Officer ond being ormed os he wos, he should hove stopped ot thot but he continued, shooting two other people ond would hove proceeded to the fourth if the gun hod noi jommed. The evidence of PW2 wos to the effect thot when the police officers colled the oppellont out of the house, he refused 1o get out. Loter, his doughter ond some young clrildren sneoked lhrough the window ond weni out of the house. lt wos of thot monrent thot ihe police forced open the door of the house ond immediotely the oppellont cut the hond of the police officer holding gun with o pongo ond 8 .5 when the gun fell, he pickecl it ond shot the officer deod, plus onother officer ond o one Musurtgu, tlre decree holder. We believe thot oll olong ihe oppellont wos plonning to commii the crime ond thot wos why he let his children get out of the house 1o sofety. We find thot there wos premeditotion of the crime by ihe oppellont. He must hove plonned his ociions 'arithin the severol hours thot he remoined locked up in his lrouse. The premeditotion cleorly drows this cose into the brocket of exceplionol coses ond or the rorest of the rore. Furthermore, Direction l8 (b) (1) of the Constitution (Sentencing Guidelines for Courts of Judicoture) (Proclice) Directions Legol Notice 8 of 2013 provides thot omongsi coses thot foll within ihe rorest of the rore ore lhose where the viciim wos o low Enforcement Officer or o Public Officer killed during tlre performonce of his or her functions. The re-sentencing judge while sentencing lhe instont oppellont observed os follows:- "Two of lhe people lhe convicl killed were police officers, one of whom wos lhe in chorge of the oreq's police posl. These togelher wilh the comploinonl who wos likely lo give evidence ogoinsl him, compleled the piclure of lhe roresl of lhe rsre coses. Hoving done so, the issue of hoving stoyed on remond for long ond being o person of good conducl in prison, in my view lokes the bock seol. Fighting oulhorily, leoding to lhe deoth of lhose oulhorized lo execule oulhority . complelely reinforces lhe need for lhe deoth penolly in lhis ccrse ond juslifies lhe moinlenonce of the deolh penolty os hod been imposed eorlier..." 10 15 2A 25 g 30 The Court of ApPeol held os follows; ,,The oppellonl during o killing spree exlinguished the lives of two police men ond one civilion, lhe comploinonl. Direction l8 (o) ond (b) of lhe Senlencing Guidelines relotes to lhe rorest of lhe rore coses ond stotes lhot lhey ore presenl inlerolio where; o. The courl is solisfied thot the commission of lhe offence wos plonned or meticulously premediloled ond execuled; b. The viclim wos ; i. A low enforcemenl officer or o public officer killed during lhe performonce of his or her functions ; or ii. A person who hos given or wos likely lo give moteriol evidence in courl proceedings............'...' Given lhe obove, we ore solisfied lhol the senlencing courl properly found this cose quolifies os the roresl of the rore where lhe oggrovoling foctors for oulweigh ony perceived foclors in mitigolion. As we find no reoson lo foult lhe penolty possed by the High court, we uphold lhe deoth senlence." It is very lmportont to note thot the Suzon Kigulo locus clossicus did not obolish the deoth sentence. lt sirnply renounced the compulsoriness of c deoth sentence upon being founcJ guilty wilhout o chonce of mitigoiion. Therefore ihe death sentence ls still o legol sentence ond moy be honded down even ofter mitigotion, if the judgecomestotheconclusionlhottheoggrovotingfoctors outweigh the mitigoting foctors. The re-sentencing iudge from his observolions obove took note of oll the mitigoting foctors thot were roised by the oppellont ond 10 15 20 25 30 t0 5 highlighted lhe overwhelming oggrovoting foctors which included premeditolion ond killing o Iow enforcemenl officer thereby concluding thot the deoth senlence wos crppropriote in the circumsionces. The Court of Appeol reiteroled the some ond olso found thot lhe oggrovoling foctors outweighed the mitigoting foctors. We ogree with the findings of the Triol Court ond confirmed by the Court of Appeol thot the deoth senlence wos oppropriote in the circumsicnces of this cose. ll is o well estoblished principle from the low ond outhorities c;bove cited thot o deoth sentence moy be meted out only in murders thot ore the "Rcrrest of ihe Rore". The rorest of the rore coses ore well providecl for under Guideline '18 of the sentencing guidelines, which provide os follows; "The roresl ol lhe rore coses include coses where; 10 15 (o) The courl is solisfied I hol lhe commi ssion of the offe ce wqs 20 n lonned or m alie ulousl rem F diloled ond ex cuted (b) i. A lrrw enforce menl officer or o public officer killed durin q the o e rformonce of his or her funclions ,ot" 25 ii. A person who hos given or likely lo give moleriol evidence in court ptoceedings. (c) (d) (e) (f) 11 The viclim wos; 5r Furiher, it is nol In contention thot omongst lhe victims of the crime were two low enforcemenl officers who were killed during the performcnce of iheir duties. Courts of low hove o duty to society to show the low enforcement community thot they ore supported ogoinst those who oltock them. Society depends on police officers for proteclion therefore we should protect them in return from oll the vulnerobiliiy ond crisis they encounter during ilre course of their duties. 10 ln our opinion, the oppellont in the instont cose hod o lond conflict which wos loken to court. He lost in court ond therefore wos owore ls thot there wos o decree ohrout to be executed ogolnst hlm. Therefore his octs were not spontoneous os orgued by counsel for the oppellont. Although the oppellont wos o first offender, ond o person of odvonced oge, the circurnstonces uncler which he murdered the victims justify the deoth sentence os mointoined by 20 the lower courts. The circumstonces of this cose foll squorely within the ombits of the rorest of the rore coses. We olso note thot the contenlion thot the sociql inquiry reporl of the oppellont show thot he wos o good mon with morols ond o letter from Prisons indicoting thot ihe oppellont wos o disciplined inmote 2s ore not issues for mitigotion but relevont for the purposes of mitigotion. They moy be foctored irr for the purposes of remission ond prerogotive of mercy. ln the resull, we find no merils in this oppeol. We find thot ihe leorned Justices of the Appeol did not error when they confirmeo the deoth 30 sentence imposed on the oppellont. The deoth senlence imposed on the oppellont is hereby confirmed. t2 I ihe oppeol is occordingly dismissed. Doted oi Kompolo this ... doy of 2020. HON. JUSTICE KISAAKYE; JUSTICE OF THE SUPREME COURT 10 HON. JUSTICE ARACH.AMOKO; JUSTICE OF THE SUPREME COURT H J USTI SYA; 15 JUSTICE OF THE SUP E COURT HON. JUSTICE OP O-AWERI; JUSTICE OF THE SUPREME COURT 20 HON. JUSTICE BUTEERA; JUSTICE OF THE SUPREME COURT 13 E