Tigo Stephen Vs. Uganda (Criminal Appeal 8 of 2009) [2011] UGSC 7 (10 May 2011)

# Tigo Stephen Vs. 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Uganda (Criminal Appeal 8 of 2009) [2011] UGSC 7 (10 May 2011) Copy Media Neutral Citation [2011] UGSC 7 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Criminal Appeal 8 of 2009 Judgment date 10 May 2011 Language English ##### __Related documents * Upholds [Tigo Stephen v Uganda (Criminal Appeal No. 170 of 2003) [2009] UGCA 6 (22 March 2009)](/en/akn/ug/judgment/ugca/2009/6) Summary Life imprisonment ordinarily means natural life; Section 47(6) applies only to remission and ambiguity was resolved as a twenty-year term. ###### Flynote * Criminal Law * — Sentencing — Meaning of life imprisonment — Whether life imprisonment denotes natural life or a fixed twenty-year term — Prisons Act s.47(6) (remission) * — Sentencing Procedure — Ambiguous sentence — Whether a life sentence qualified as "20 years" is illegal or requires clarification Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: ODOKI C.J; TSEKOOKO, KATUREEBE, TUMWESIGYE AND KISAAKYE JJ.SC) CRIMINAL APPEAL NO. 08 OF 2009 BETWEEN TIGO STEPHEN:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT AND UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::;:::::RESPONDENT _[Appeal from Decision_ of _the Court_ of _Appeal sitting at Kampala (Twinom_ _ujuni,__Kitumba, and Byamugisha JJ.A_ _.__) dated_ 23 _March 2009 in Criminal Appeal No.1_ _70 of 2003]_ _**JUDGMENT OF THE COURT**_ _**Introduction**_ This is an appeal against the decision of the Court of Appeal confirming the sentence of life imprisonment imposed by the High Court against the appellant who had been convicted of the offence of defilement contrary to Section 127(1) (now Section 129(11) of the Penal Code Act. The appeal raises a substantial point of law concerning the meaning of life imprisonment in our Penal system having regard to the provisions of Section 47(6) of [the Prisons Act](/akn/ug/act/2006/17) which states that for the purpose of calculating remission, a sentence of imprisonment for life shall be deemed to be twenty years imprisonment. This point of law assumes greater significance following the decision in the case of __Attorney General Vs. Susan Kigula__ _& __417_ __Others__ Constitutional Appeal NO.3 of 2006 where this Court decided that the death penalty though Constitutional was not mandatory but discretionary. This would make a sentence of life imprisonment the next most severe sentence and probably the most effective alternative to the death sentence. **Background** The background to the case is that during the month of July 2001, the appellant was living with Nakyebega (PW3) the grandmother of the victim,. The victim Hadijja Sharon (PW2) then aged 6 years was living with PW3 and the appellant, her husband. She was a grandchild of PW3, fathered by her own son begotten with her former husband, who had died sometime back. On the night of 21 July 2001, PW3 left her home at night to attend to her daughter who lived nearby and was in labour pains. She left the appellant and the victim Sharon (PW2) sleeping in her house. After she had left, the appellant removed the victim, took her to his bed and defiled her. She felt a lot of pain and made a loud cry. Her grandmother returned and knocked on the door but the appellant refused to open the door. PW3 made a lot of loud noise and the appellant opened the door. She found the appellant in the house and noticed that the victim did not have her knickers on. She asked the victim why she did not have knickers. The victim told her, in the presence of the appellant, that it was the appellant who removed her knickers and had sexual intercourse with her. At that point, the appellant was seated in the house. PW3 could clearly see him with the help of a candle which had been left in the house and a lantern with which she had returned to the house. When asked why he had removed PW2's knickers, the appellant replied that he had done nothing wrong. PW3 then examined the victim's private parts and the victim informed her that the appellant had used her knickers to clean her private parts. As she was still investigating the matter, she was called to go and attend to her daughter who apparently had not yet delivered her child. When PW3 returned, she found that the appellant had left the home. He disappeared. The appellant was subsequently arrested and charged with defilement. He was convicted by the High Court and sentenced to life imprisonment and his appeal to the Court of Appeal was dismissed; hence this appeal which is only against the sentence. **The ground of appeal** The appellant has one ground of appeal framed as follows: “ _The learned Justices_ of _Appeal erred in law when the_ _y_ _upheld the sentence which sentence is illegal by virtue_ of _it_ _s_ _ambiguity.”_ At the hearing of the appeal, Mr. Muhammed Kajubi held a brief for Mr. Stephen Mubiru who represented the appellant on a state brief. Mr. Charles Richard Kamuli, Principal State Attorney represented the respondent. Counsel for the appellant filed written submissions, while Mr. Kamuli made oral submissions. **Arguments of counsel** Learned counsel for the appellant submitted that it is not clear from the way the sentence was pronounced whether the sentence imposed is imprisonment for the rest of the appellant's life or for only twenty years. This ambiguity renders the sentence illegal since the appellant is entitled to know the specific duration of his incarceration. He argued that the fact that life imprisonment under [the Prisons Act 2006](/akn/ug/act/2006/17) is deemed to be twenty years is a construction which is limited in purpose to the computation of remission. It was his contention that the Court of Appeal ought to have cleared the ambiguity. He prayed that this Court makes the clarification and substitutes the sentence of life imprisonment with a definite sentence. Learned Principal State Attorney submitted that the sentence confirmed by Court of Appeal of life imprisonment was lawful and definite within the meaning of Section 47(6) of [the Prisons Act](/akn/ug/act/2006/17) Cap. 304 which provides: “ _**For the purposes**_**o****f** _**calculating remission**_**a** _**sentence**_**of** _**imprisonment for life shall be deemed**_**to** _**be twenty years.”**_ It was counsel's contention that the interpretation of the above provision leads to the conclusion that the appellant is to serve a sentence of twenty years' imprisonment. He prayed that the appeal be dismissed. **Consideration of the Law** This appeal is against sentence only. It is a second appeal. The appellant has a right of appeal only against the legality of sentence, not its severity. In this case, the appellant argues that the sentence is illegal because it is vague. In her sentencing order, the trial Judge stated: “ _**The convict is**_**a** _**first offender, but I take very serious vi**_ _**ew**_**of** _**this offence especially when it is committed on sm**_ _**all**_ _**children like the victim in this case. The victim was onl**_ _**y 7**_ _**years and he eroded the confidence she had in him. S**_ _**he**_ _**was respecting him**_**as a** _**grandfather but instead j**_ _**ust**_ _**introduced her**_**to** _**this kind**_**of** _**immorality. I take into acco**_ _**unt**_ _**the fact that he has been on remand for**_**2** _**years,**_**so** _**tak**_ _**ing**_ _**that into account, he is sentenced**_**to** _**life imprisonment**_ _(__**20**_ _**Years),**_**so** _**that the rest who intend**_**to** _**do the same can stand warned."**_ _In confirming the above sentence, the court of Appeal said;_ _**"On the fourth ground**_**of** _**appeal, that the sentence was too harsh, we were not given any single reason**_**to** _**justify us**_**to** _**have mercy on**_**a 45** _**years old man who decided**_**to** _**defile an 8 years old girl whom he calls his granddaughter. The learned trial Judge took into account all the mitigating factors available**_**to** _**the appellant and passed**_**a** _**sentence**_**of** _**life imprisonment. We see no reason**_**to** _**disturb that sentence. "**_ It should be noted at the outset that the appellant did not challenge the vagueness of the sentence on appeal and therefore the Court of Appeal did not have an opportunity to clarify the alleged vagueness. However, it can be argued that the Court of Appeal confirmed the sentence as imposed by the trial Judge which indicated that the sentence imposed by the trial Judge was twenty years, apparently basing it on the provisions of Section 47(6) of [the Prisons Act](/akn/ug/act/2006/17). The question still remains as what is the meaning of life imprisonment. Is it for the rest of the life of the convict or for twenty years only? Section 47 of [the Prisons Act](/akn/ug/act/2006/17) provides in full as follows: _"(1_ _**) Convicted criminal prisoners sentenced**_**to** _**imprisonment whether by one sentence or consecutive sentences for**_**a** _**period exceeding one month may by industry and good conduct earn**_**a** _**remission**_**of** _**one third**_**of** _**the remaining period**_**of** _**their sentences**_ _**(2) For the purpose**_**of** _**giving effect**_**to** _**subsection**_**(1),**_**each prisoner on admission shall be credited with the full amount**_**of** _**remission**_**to** _**which he or she be entitled**_**at** _**the end**_**of** _**his or her sentence or sentences if he or she lost or forfeited no such remission.**_ _**(3) A prisoner may lose remission**_**as a** _**result**_**of** _**its forfeiture**_**as a** _**punishment for any offence against prison discipline and shall not earn any remission in respect**_**of** _**any period -**_ _**(a) spent in**_**a** _**hospital through his or her own fault or while malingering; or**_ _**(b) While undergoing confinement in a separate cell.**_ _(4)__**The Commissioner may recommend**_**to** _**the Advisory Committee on the Prerogative**_**of** _**Mercy established under Article**_**121(1) of** _**[the Constitution](/akn/ug/act/statute/1995/constitution) that it should advise the President **_**to** _**grant further remission on special grounds.**_ _**(5) The Commissioner shall have power**_**to** _**restore forfeited remission in whole or in part.**_ _**(6) For the purpose**_**of** _**calculating remission**_**of a** _**sentence, imprisonment for life shall be deemed**_**to** _**be twenty years imprisonment.**_**11** The Prisons Rules (SI 304-4) provide rules for calculating the amount of remission. The provisions of Section [47](/akn/ug/act/2006/17/~part_VI__sec_47)(6) of [the Prisons Act](/akn/ug/act/2006/17) have sometimes been cited as authority for holding that imprisonment for life in Uganda means a sentence of imprisonment for twenty years. However, there is no basis for so holding. The Prisons Act and Rules made there under are meant to assist the Prison authorities in administering prisons and in particular sentences imposed by the Courts. The Prisons Act does not prescribe sentences to be imposed for defined offences. The sentences are contained in the Penal Code and other Penal Statutes and the sentencing powers of Courts are contained in [the Magistrates Courts Act](/akn/ug/act/1998/10) and the Trial on Indictment Act, and other Acts prescribing jurisdiction of Courts. The most severe sentences known to the penal system include the death penalty, imprisonment for life and imprisonment for a term of years. Imprisonment for life which is the second gravest punishment next only to the death sentence is not defined in the Statutes prescribing it. It seems to us that it is for that reason that [the Prisons Act](/akn/ug/act/2006/17) provided that for purposes of calculating remission, imprisonment for life shall be deemed to be twenty years. It is noteworthy that the Act is clear that twenty years is only for the purpose of calculating remission. The question remains whether there are purposes for which life imprisonment means something more than 20 years, e.g. imprisonment for life. The meaning of imprisonment for life seems to vary from country to country. In some countries, it is limited to a term of years of between 20 to 30 years. In others it means imprisonment for the natural life of the convict. In other countries, the term of imprisonment imposed may be longer than the natural life of the convict when the duration is longer than the possible life span of the convict. In yet other countries, there is a minimum period of imprisonment imposed to be served before remission or parole is granted. In India, the Supreme Court has held in a series of cases that a sentence of imprisonment for life is not for any definite period and imprisonment for life must prima facie be treated as imprisonment for the whole of the convict's natural life. The Supreme Court propounded this view in the case of __**Gopal**__ __V__ __inayak Godse Vs The State__ _of_ __Maharashtia and Others__ (1962) ISCJ 423, (1961) 39 AIR 1961 SC 600, (1962) MLJ crl 269. In _Gopal Vinayak Godse Vs the State_ (supra), the convict was one of the conspirators in the assassination of Mahatama Gandhi on January 30, 1948. His brother Nathuram Godse who shot Gandhi was sentenced to death and was executed. Godse was convicted in 1949 for his part in the assassination of Gandhi and sentenced to transportation (imprisonment) for life. He earned remission of 2963 days and adding this to his term of imprisonment, actually served by the prisoner, the aggregate exceeded 20 years. He applied for _habeas_ _corpus_ that he had justly served his sentence and contending that his further detention in jail was illegal and therefore he should be set at liberty. The Supreme Court held that the petitioner had not yet acquired any right to be released. It held further that a prisoner sentenced to life imprisonment was bound to serve the remainder of his life in prison unless the sentence was commuted or remitted by the appropriate authority. Such a sentence could not be equated with any fixed term. The rules framed under [the Prisons Act](/akn/ug/act/2006/17) entitled such a prisoner to earn remissions but such remissions were to be taken into account only towards the end of the term. The question of remission was exclusively within the province of the appropriate Government authority. In that case, though the Government had made certain remissions under S.401 of the Criminal Procedure, it had not remitted the entire sentence. The court reasoned:_"__**The next question is whether there is any provision**_**of** _**law where under**_**a** _**sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated**_**as** _**one for**_**a** _**definite period. No such provision is found in the Indian Penal Code, Code**_**of** _**Criminal Procedure or[the Prisons Act](/akn/ug/act/2006/17)**_ _**.**__**Though the Government**_**of** _**India stated before the Judicial Committee in the case**_**of** __**(Pandit Kishorital Vs King Emporor**__**(1944)**_**LR 721A.1) having regard to S.57**_**of** _**the Indian Penal Code, 20 years' imprisonment was equivalent to**_**a** _**sentence**_**of** _**transportation for life; the Judicial Committee did not express its final opinion on that question. The Judicia**_ _**l**_ _**Committee observed in that case thus, at p.10**_ _._ _**'Assuming that the sentence is**_**to** _**be regarded**_**as** _**one**_**of** _**the twenty years and subject to remission for goo**_ _**d**_ _**conduct, he has not earned remission to entitle him**_**to** _**discharge at the time**_**of** _**his application and it was therefore rightly dismissed, but in saying this, thei**_ _**r**_ _**Lordships are not to be taken**_**as** _**meaning that**_**a** _**lif**_ _**e**_ _**sentence must and in all cases be treated**_**as** _**one**_**of** _**no**_ _**t**_ _**more than twenty years, or that the convict i**_ _**s**_ _**necessarily entitled**_**to** _**remission'."**_ _The court went on to state:_ _**"Section**_**57 of** _**the Indian Penal Code has no real bearing o**_ _**n**_ _**the question before us. For calculating fractions**_**of** _**terms**_**o****f** _**punishment, the Section provides that transportation for lif**_ _**e**_ _**shall be regarded**_**as** _**equivalent**_**to** _**imprisonment for twent**_ _**y**_ _**years. It does not say that transportation for life shall b**_ _**e**_ _**deemed to be transportation for twenty years for a**_ _**ll**_ _**purposes; nor does the amended Section which substitute**_ _**s**_ _**the words imprisonment for life for transportation for lif**_ _**e**_ _**enable the drawing**_**of** _**any such all embracing fiction.**__**A**_ _**sentence**_**of** _**transportation for life or imprisonment for lif**_ _**e**_ _**must prima facie be treated**_**as** _**transportation o**_ _**r**_ _**imprisonment for the whole**_**of** _**the remaining period**_**of** _**th**_ _**e**_ _**convicted person's natural life**_ _._ " The Court also pronounced itself on the effect of remission on the life sentence and held that, unless the sentence is remitted or commuted, a prisoner is bound to serve for a life term in prison. The Court observed, _**"Unless the said sentence (life imprisonment) is commute**_ _**d**_ _**or remitted by appropriate authority, under the releva**_ _**nt**_ _**provisions**_**of** _**the Indian Penal Code or the Code**_**of** _**Crimin**_ _**al**_ _**Procedure,**_**a** _**prisoner sentenced**_**to** _**life imprisonment i**_ _**s**_ _**bound**_**to** _**serve the life term in prison. The rules frame**_ _**d**_ _**under[the Prisons Act](/akn/ug/act/2006/17) enable such **_**a** _**prisoner**_**to** _**ear**_ _**n**_ _**remission**_**•** _**ordinary special and state**_**•** _**and the s**_ _**a**_ _**i**_ _**d**_ _**remissions will be given towards his term**_**of** _**imprisonme**_ _**nt.**__**For the purpose**_**of** _**working out remissions the sentence**_**of** _**transportation for life is ordinarily equated with**_**a** _**definit**_ _**e**_ _**period, but only for that particular purpose and not for an**_ _**y**_ _**other purpose. As the sentence**_**of** _**transportation for life**_ _**or**_ _**its prison equivalent, the life imprisonment, is one**_**of** _**indefinite duration, the remissions**_**so** _**earned do not**_ _**in**_ _**practice help such**_**a** _**convict**_**as** _**it is not possible**_**to** _**predi**_ _**ct**_ _**the time**_**of** _**his death. That is why the rules provide for**_**a** _**procedure**_**to** _**enable the appropriate Government**_**to** _**remit t**_ _**he**_ _**sentence under S**_ _**.**__**401**_**of** _**the Code**_**of** _**Criminal Procedure**_ _**on**_**a** _**consideration**_**of** _**the relevant factors, including the peri**_ _**od**_**of** _**remissions earn.‘”**_ _Go_ _pal Godse's_ case was relied on in the recent case of __Hohd M__ __unna Vs Un__ __ion__ _of_ __India and Others__ (2006) I MLJ III (SC) to hold that life imprisonment means imprisonment for life. Other cases which followed Godse's case include __Dalbir Singh and Others Vs State__ _of_ __Punja__ __b__ _(1979)_ 3SCC 745, __State__ _of_ __Punjab and Others Vs Jogender Sigh an__ __d Others__(1990) 2SCC 661, __Ashok Kumar Vs Union__ _of_ __India__ (1991) 3SCC 49, __Su__ __bash Chander Vs Krishna tal and Others__ (1991) 4SCC 438 and in __Sw__ __amv Vs Shrddnanda Vs State__ _of_ __Kamataka__ (2008) 13 SCC 767. We find these authorities persuasive because they are based on Statutes similar to our own laws. We hold that life imprisonment means imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned. We note that in many cases in Uganda, Courts have imposed specific terms of imprisonment beyond twenty years instead of imposing life imprisonment. It would be absurd if these terms of imprisonment were held to be more severe than life imprisonment. In the present case, the trial Judge imposed a sentence of imprisonment for life yet she qualified the sentence by limiting it to twenty years. In our view, the sentence was vague. The Court of Appeal confirmed the sentence of life imprisonment without clearing the vagueness. However, we think that this error did not make the sentence illegal. We are satisfied that the trial Judge intended to impose a sentence of imprisonment for twenty years. We therefore, find that the error made by the Court of Appeal did not occasion any miscarriage of justice. We uphold the sentence of twenty years imprisonment. **Decision** In the result, we find no merit in the appeal which is accordingly dismissed. . Dated at Kampala this 10th _day_ of May 2011 B J ODOKI CHIEF JUSTICE _~__(__r_ __/____~.-.____.____-___-__·_ _-?~__·_ _-_ J W N TSEKOOKO JUSTICE OF SUPREME COURT Bart M Katureebe **JUST****ICE OF SUPREME COURT** J Tumwesigye JUSTICE **OF SUPREME COURT** EM Kisaakye **JU****STICE OF THE SUPREME COURT** #### __Related documents #### Upholds 1. [Tigo Stephen v Uganda (Criminal Appeal No. 170 of 2003) [2009] UGCA 6 (22 March 2009)](/en/akn/ug/judgment/ugca/2009/6) #### More documents like this one ▲ To the top >