Brief: Nabigwo Musa aka Hajji Tanywa v Uganda

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Date of Judgement: 7th June, 2024

Court: Court of Appeal

Case Number: (Criminal Appeal 82 of 2012) [2024] 

Judge (s): Justices; Fredrick Egonda-Ntende, Christopher Gashirabake, Oscar John Kihika.

Main Topic (s): Death Penalty

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Summary Facts of the Case

The appellant, Nabigwo Musa was convicted by the High Court for the murder of one Tausi Tagairya and sentenced to death.

The Appellant used a panga to cut the deceased person to death in broad daylight.

In sentencing him, the High Court noted that he was a violent young man who had committed a heinous crime and was not remorseful about it. The High Court Judge Justice Stephen Musota (as he was then) reasoned that there was a need to keep such a violent man away from society.

The appellant appealed to the Court of Appeal challenging the death sentence on the grounds that; the learned trial Judge had failed to properly apply his discretion in arriving at the sentence and that the death sentence was manifestly excessive and harsh when juxtaposed with previous sentences for similar crimes.


Justice Oscar Kihika/Photo: Uganda Law Society (ULS)
Justice Oscar Kihika/Photo: Uganda Law Society (ULS)

Legal Issues before the Court

Whether the death sentence was harsh and excessive and should therefore be set aside?

Decision of the Court

The Court of Appeal found merit in the appellant’s arguments and overturned the death sentence imposed by the High Court and substituted it with a 30-year imprisonment term, deducting the time spent in pre-trial custody. The appellant will serve a total of 28 years and 5 months from the date of his conviction.

The Court of Appeal maintained the legal principle in Attorney General v. Susan Kigula and 417 others that the death penalty is not mandatory but the trial Judge has the discretion to issue the death penalty.

The Court of Appeal held that there is a need for consistency and uniformity in sentencing in accordance with precedent although that does not imply the discretion of a Judge to impose a death sentence in appropriate circumstances is taken away from him or her.

In this case, the Court of Appeal seized its power under Section 11 of the Judicature Act to reconsider the mitigating and aggravating factors in the sentencing of the Appellant finding that there were no sufficient conditions to justify the death penalty.

The death penalty is reserved for the rarest of the rarest of cases and this case was not one of them, the Court held.

The Court reasoned that the appellant was young, a first-time offender, and had potential for reform and to continue with his education.


Justice Christopher Gashirabake
Justice Christopher Gashirabake/Courtesy Photo

Key Quote: “Ordinarily, as a sentencing principle, a first offender will not attract the maximum punishment unless the conditions the law has established for the imposition of the maximum sentence are established. In this case, in our view, no conditions were established that call for the imposition of the death penalty. This is not the rarest of the rare cases. We consider 30 years’ imprisonment as the appropriate sentence in the circumstances of this case.”

Law Applied by the Court

  • Attorney General v Susan Kigula and 417 Others (2009): The discretionary nature of the death penalty.
  • Judicature Act, Section 11: Provides the appellate court with powers akin to those of the original jurisdiction court.
  • Sentencing Guidelines for the Courts of Judicature (Practice Directions) Legal Notice No. 8 of 2012: Emphasizes consistency in sentencing.
  • Aharikundira Yusitina v Uganda (SCCA No. 27 of 2015): Established the principles for appellate courts when reviewing sentences for consistency and proportionality.

Counsel on Record

  • For the Appellant: Mr. Turyamusiima Geoffrey
  • For the Respondent: Mr. Ojok Alex Michael, Assistant Director of Public Prosecutions (DPP).

Conclusion

This judgment upholds the principle that the death penalty should be reserved for the most heinous cases and underscores the appellate court’s role in ensuring proportionality and fairness in sentencing.

Case Download Link



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