The Ugandan law defines criminal offences and prescribes\r\nthe corresponding penalties to be imposed by courts after conviction but\r\njudicial officers had in the past enjoyed a wide discretion while sentencing\r\nconvicts. In 2011, former Arua Municipality Member of Parliament Hon. Hussein\r\nAkbar Godi was handed a 25-year jail sentence for the murder of his 19-year-old\r\nwife Rehema Caeser by Mukono High Court.
\r\nHon. Godi was convicted on grounds that all the 30 prosecution witnesses\r\npresented by the state, were sufficient to prove his guilt.
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In a similar case, the High Court sitting in Kampala\r\nconvicted and sentenced to death by hanging businessman Mr. Thomas Nkulungira\r\na.k.a Tonku for murdering ex-girlfriend Ms. Brenda Karamuzi, before dumping her\r\nbody into a septic tank on August 12, 2011.
\r\nWhile passing the death sentence, Hon. Justice Albert Rugadya Atwooki, said he\r\nwas giving the maximum sentence to deter other people from unlawfully taking\r\naway other people’s lives.
\r\nAlthough the two scenarios were similar, each convict received a different\r\nsentence.
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Scenarios of having different court sentences for the\r\nsame offence committed under similar circumstances are now fast changing with\r\nthe enactment of Sentencing Guidelines.\r\nThe guidelines which were issued in 2013 were designed to assist Judges and Magistrates\r\nin the sentencing decision making process.
\r\nThe Hon. Principal Judge, Hon. Justice Dr. Yorokamu Bamwine, during the launch\r\nof the Sentencing Guidelines said these were developed to address the perceived\r\nexistence of inconsistencies in sentencing of similarly placed offenders.
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How Sentencing Guidelines Work
\r\nMr. Andrew Khaukha, the secretary of the taskforce on Sentencing Guidelines,\r\ndefines the guidelines as rules that provide standards that should bring some\r\nlevel of uniformity to the sentencing process. Mr. Khaukha, who is also the\r\ntechnical adviser of the Judiciary, says the introduction of Sentencing\r\nGuidelines is a significant development in Ugandan criminal jurisprudence. Over\r\nthe short term, Uganda’s Sentencing Guidelines should make the sentencing\r\nprocess more predictable. In addition, the guidelines should serve to ensure\r\nbetter compliance with the current legal requirements in the context of\r\ncriminal sentencing. Over the long term, the Guidelines offer a mechanism that\r\ncan inform significant policy reform.
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Why Do We Need Them
\r\nThe adoption of Uganda’s Sentencing Guidelines is helping to increase judicial\r\nconsistency and to help ensure that the sentencing process is compliant with\r\nthe many laws and court holdings that inform the sentencing process.
\r\nThe nature of an offence is the first determinant of the kind of sentence an\r\noffender is likely to get. The gravity of the offence is also given priority as\r\nwell as the consideration on whether the offence is rampant in the area or not,\r\naccording to retired Grade One Magistrate, His Worship Araali Muhiirwa.
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Considerations
\r\n"If you are in a place like Karamoja where cases of cattle rustling are\r\nrampant, the judicial officer in such a place will give tough sentences to\r\ndeter the would-be criminals from continually stealing other people’s cattle,”\r\nsays H/W Muhiirwa.
\r\nHis Worship Paul Gadenya, the Chief Registrar of Courts of Judicature says\r\nduring sentencing, judicial officers consider whether the convict is a habitual\r\noffender or not.
\r\n"The moment the past record of the accused person is brought before the court,\r\nand suggests accordingly, the court must take into consideration those records\r\nof that serial offender in that jurisdiction.” H/W Gadenya says the age of the\r\noffender is also taken into consideration.
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He explains that courts look out for the offender if the\r\noffender is a child, a juvenile or is of advanced age, that is, from 68 years\r\nand above.
\r\n"There is need to carefully assess and determine an appropriate sentence to\r\ngive to such people. Their sentences will be different from that of a youthful\r\noffender,” he says.
\r\nThe other aspect that courts look at is the impact of the offense on the victim\r\nin relation to injury, property or even the community where the offense was\r\ncommitted also matters a lot. He adds that the impact must be assessed by court\r\nto give an appropriate sentence.
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"For instance, if the offence occurred in a coffee\r\ngrowing area where by an organized group of young men are moving around\r\nstealing people’s coffee, the economic and security impact on such an area must\r\nbe looked into when the sentencing is being passed to the offenders once they\r\nhave been convicted of the offence.
\r\n"At times, we (judicial officers) also take into consideration gender matters;\r\nthat is, if the person to be convicted is a pregnant woman or breastfeeding\r\nmother. These conditions are considered by court so that these people are given\r\nfavorable sentences,” H/W Gadenya says.
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The Sentencing Process
\r\nH/W Gadenya says court is required to make two principle decisions: the type of\r\nsentence and its length (or, in the case of a fine, the amount). He outlines\r\nthe following factors:-
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Seriousness of the Offence: The court will consider the range of sentences as recommended by the Sentencing\r\nGuidelines, and then has regard to the details of each offence in order to\r\nassess its seriousness. This involves assessing the aggravating and mitigating\r\nfeatures of the offence. Any hostility based on racial, religious, disability\r\nor sexual grounds demonstrated in the commission of the offence will be\r\nconsidered as an aggravating feature. For example, the use of a weapon in an\r\nassault is an aggravating feature, or the fact that a person is in a position\r\nof trust if he/she commits an offence of theft.
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Defendant’s Circumstances: The defendant’s character, his previous convictions (most relevant will be\r\nthose for similar offences) and any personal mitigation, as expressed by the\r\ndefendant’s advocate or (if unrepresented) by the defendant in person. An early\r\nguilty plea will go towards reducing the sentence—this can result in a discount\r\nin up to a third of the sentence, depending on when the plea is entered. The\r\ndefendant’s personal circumstances will also be considered.
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Passing Sentence: After taking into account all the relevant information and fixing the sentence\r\naccordingly, the court will announce the sentence in an open court, addressing\r\nthe defendant directly and giving reasons for the decisions. Costs if there are\r\nany will also be announced at this time.
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The sentences:-
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1. \r\nDeath
\r\nAccording to the Chief Registrar at the High Court, H/W Paul Gadenya says,\r\ndeath sentence is the most severe or maximum punishment as provided for in the\r\nPenal Code Act (PCA).
\r\nDeath sentence is imposed only in capital offences like; treason, murder, rape\r\nand aggravated defilement and kidnap with intent to murder.
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Following\r\nthe landmark Susan Kigula case, the Supreme Court ruled that death sentence is\r\nno longer mandatory though it was not outlawed. The Kigula ruling meant that\r\nit’s at the discretion of the judicial officer to hand a death sentence\r\ndepending on the aggravating circumstances which must fall under the ‘rarest’\r\nof the ‘rarest’ cases.
\r\n"The law stipulates that a death sentence should be imposed in the rarest of\r\ncircumstances such as animosity, says H/W Gadenya.
\r\nHe adds: "there are even people who meticulously pre-plan murders. This is proof\r\nthat you had forethought the crime and thought through the consequences.”
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2. Life\r\nImprisonment
\r\nAccording the recent Supreme Court decision, life Imprisonment nowadays means\r\nbeing imprisoned for the rest of one’s natural life. But before the Supreme\r\nCourt decision, life imprisonment meant one would spend about 20 years in jail.
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3. \r\nCustodial Sentence
\r\nCustodial sentences, these range from hours to so many years in prison,\r\nsometimes one may be given a caution if the offence was not so serious; for\r\nexample some traffic offences or if you are a first time offender if you\r\nexplain in mitigation, the magistrate or judge may give you a caution.
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4. Conditional\r\nDischarge
\r\nYou can as well get what we call a conditional discharge; here the court finds\r\nyou guilty, does not send you to jail instead directs that you maintain a good behavior.
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5. \r\nCommunity Service
\r\nThere is also community service instead of being jailed in prison. This is\r\nusually for petty offences. Under this kind of arrangement, the offender is\r\nasked to do some work that benefits the community that is why it’s called\r\n‘community work’. This is done to decongest the already crowded prisons
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Some of the Sentencing Guidelines for\r\nDifferent Offences
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Offence Maximum sentence Starting point Sentencing\r\nrange(appropriate sentence to be determined after taking into account the\r\nfactors aggravating or mitigating sentence):-
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1. Manslaughter\r\nImprisonment for life 15 years From 3 years up to imprisonment for life
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2. Robbery\r\n10 years 5 years From one year up to 10 years imprisonment
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3. Attempted\r\nrobbery 7 years 3 and a half years From 9 months up to 7 years imprisonment
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4. Simple\r\ndefilement Imprisonment for life 15 years From 3 years up to imprisonment for\r\nlife
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5. Attempted\r\ndefilement 18 years’ imprisonment 9 years From one year up to 18 years
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6. Defilement\r\nof idiots or imbeciles 14 years imprisonment 7 years From 8 months up to 14\r\nyears
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7. Permitting\r\ndefilement 5 years ‘imprisonment 2 and a half years From 3 months up to 5 years
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8. Criminal\r\ntrespass One year imprisonment 6 months From caution up to one year\r\nimprisonment
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9. False\r\naccounting by a public officer 3 years’ imprisonment One and a half years From\r\n6 months to up to 3 years’ imprisonment
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10. Embezzlement\r\n14 years’ imprisonment 7 years From 2 years up to 14 years’ imprisonment
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11. Causing\r\nfinancial loss 14 years’ imprisonment 7 years From 2 years up to 7 years\r\nimprisonment
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12. Solicitation\r\nand receipt of a gratification 12 years’ imprisonment 6 years From 3 years up\r\nto 12 years’ imprisonment
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13. Bribery\r\nof a public official 12 years’ imprisonment 6 years From 3 years up to 12\r\nyears’ imprisonment
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14. Abuse\r\nof office 7 years’ imprisonment 3 and a half years From one year up to 7 years\r\nimprisonment
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15. Obtaining\r\nmoney by false pretense 5 years’ imprisonment 2 and a half years From 6 months\r\nup to 5 years
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16. Theft\r\n10 years’ imprisonment 5 years From one year up to 10 years imprisonment
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17. Murder\r\nDeath 35 years From 30 years up to death
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18. Rape\r\nDeath 35 years From 30 years up to death
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19. Aggravated\r\ndefilement Death 35 years From 30 years up to death
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20. Robbery\r\nDeath 35 years From 30 years up to death
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21. Kidnap\r\nwith intent to murder Death 35 years From 30 years up to death
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22. Terrorism\r\nDeath 35 years From 30 years up to death
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23. Treason\r\nDeath 35 years From 30 years up to death
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Scale\r\nfor Determining of Fine
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\r\n \r\n | \r\n S.NO \r\n | \r\n \r\n Amount \r\n | \r\n \r\n Maximum period \r\n | \r\n
\r\n \r\n | \r\n 1. \r\n \r\n | \r\n \r\n Not\r\n exceeding 0.5 of the currency point \r\n | \r\n \r\n 7\r\n days \r\n | \r\n
\r\n \r\n | \r\n 2. \r\n \r\n | \r\n \r\n Exceeding\r\n 0.5 of a currency point but not exceeding one currency point \r\n | \r\n \r\n 14\r\n days \r\n | \r\n
\r\n \r\n | \r\n 3. \r\n \r\n | \r\n \r\n Exceeding\r\n one currency point but not exceeding two \r\n | \r\n \r\n One\r\n month \r\n | \r\n
\r\n \r\n | \r\n 4. \r\n \r\n | \r\n \r\n Exceeding\r\n two currency points but not exceeding three currency points \r\n | \r\n \r\n 6\r\n weeks \r\n | \r\n
\r\n \r\n | \r\n 5. \r\n \r\n | \r\n \r\n Exceeding\r\n three currency points but not exceeding six currency points \r\n | \r\n \r\n 3\r\n months \r\n | \r\n
\r\n \r\n | \r\n 6. \r\n \r\n | \r\n \r\n Exceeding\r\n six currency points \r\n | \r\n \r\n 12\r\n months \r\n | \r\n
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This article was published in the daily monitor
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Posted 26th, May 2016
