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Case Name Attorney General v Abuki

Topic
CRUEL, INHUMAN OR DEGRADING TREATMENT- Home exclusion order violates the
constitutional prohibition on cruel, inhuman or degrading treatment; derogations from
prohibitions not permitted; access to property by owner may be temporarily denied
FAIR HEARING- Home exclusion order violates the constitutional prohibition on cruel, inhuman
or degrading treatment; derogations from prohibitions not permitted; access to property by
owner may be temporarily denied
LIBERTY & SECURITY- Home exclusion order violates the constitutional prohibition on cruel,
inhuman or degrading treatment; derogations from prohibitions not permitted; access to property
by owner may be temporarily denied
LIFE- Home exclusion order violates the constitutional prohibition on cruel, inhuman or
degrading treatment; derogations from prohibitions not permitted; access to property by owner
may be temporarily denied
PROPERTY- Home exclusion order violates the constitutional prohibition on cruel, inhuman or
degrading treatment; derogations from prohibitions not permitted; access to property by owner
may be temporarily denied
Tribunal
Supreme Court
Country
Uganda (Africa)
Case Date
01 Jun 1999
Judge(s)
Wambuzi CJ, Oder JSC, Tsekooko JSC, Karokora JSC, Mulenga JSC, Kanyeihamba JSC,
Mukasa-Kikonyogo JSC
Resume:
The respondent, a farmer, was convicted of practising witchcraft contrary to s 3(3) of the Witchcraft
Act (Cap 108). He was sentenced to 22 months imprisonment and to an exclusion order under s 7 of
the Act, which banished him from his victims homes for ten years after his release from prison. The
respondent filed a petition claiming, inter alia, that an exclusion order violated the constitutional
prohibitions on inhuman or degrading punishment (Arts 24 and 44) and the compulsory forfeiture of
property (Art 26(2)) as well as constituting a threat to his livelihood contrary to the right to life (Art
22(1)). He also claimed that the Act breached Art 28(12) of the Constitution by not defining the offence
of witchcraft. The Constitutional Court construed the exclusion order to mean that the respondent,
who lived in the same village as his victims, had been banished from his own home. It upheld the
respondents claim and the appellant appealed to the Supreme Court.
In allowing the appeal in part, setting aside the orders of the Constitutional Court, and declaring s 7
unconstitutional (Wambuzi CJ dissenting in part), it was held that:
Per Wambuzi CJ (Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba and Mukasa-Kikonyogo JJSC
concurring):
1. Article 28(12) does not require that the word witchcraft be defined in order to explain the
meaning of the offences relating to witchcraft. Reading ss 2 and 3 together gives a fair idea of
what witchcraft is, and sufficient notice of the prohibited conduct under Art 28(12) (dicta of Sir
Kenneth OConnor P in Katikiro of Buganda v Attorney General of Uganda (1959) EA 382, 395
(East Africa CA applied).
2. The exclusion order made against the respondent does not constitute a violation of Art 26(2)
since it does not completely deprive him of his property. While the respondent cannot enter
his property during the term of the exclusion order, he retains indirect use of it (Socit United
Docks v Government of Mauritius [1985] AC 585 (Maur PC) distinguished).
Per Oder, Tsekooko, Karokora, Mulenga, Kanyeihamba and Mukasa-Kikonyogo JJSC:
1. By banishing the respondent from his home village, the exclusion order deprives him of
shelter, food, the means of subsistence and other necessities of life, as well as access to his
family. The effect of the exclusion order is dehumanising and degrading and constitutes a
violation of Arts 24 and 44 (Catholic Commission for Justice and Peace in Zimbabwe v
Attorney General & Ors (1993) 2 LRC 279 (Zim SC), Ex parte Attorney General, Namibia: In re
Corporal Punishment by Organs of State (1991) (3) SA 76 (Nam SC) and Republic v Mbushuu &
Anor (1994) 2 LRC 335 (Tan HC) considered).
2. In determining the constitutionality of legislation, both purpose and intended and actual effect
are relevant. In this case the impugned Act authorises exclusion orders which constitute cruel,
inhuman or degrading treatment or punishment by requiring those affected to leave their
homes. These disastrous effects outweigh the legislatures objective in enacting the
legislation, namely to prevent and punish the practice of witchcraft, and section 7 is therefore
inconsistent with Arts 24 and 44 of the Constitution and to that extent void (The Queen v Big M
Drug Mart Ltd 1986 LRC (Const) 332 (Can SC) and McGowan v Maryland (1961) 366 US 420 (US
SC) applied).
Per Oder, Karokora, Mukasa-Kikonyogo JJSC:
The conditions resulting from the exclusion order also threaten the respondents livelihood in violation
of Art 22(1).
Per Tsekooko, Karokara and Mulenga JJ:
Article 23 of the Constitution, which guarantees the right to personal liberty, does not authorise the
court to impose orders which infringe provisions of Art 44(a), prohibiting derogation from torture.
Article 24 absolutely prohibits torture, cruel, inhuman or degrading treatment or punishment, and no
justifications are acceptable (Riley & Ors v Attorney-General of Jamaica & Anor (1982) 3 All ER 469

(Jam PC) distinguished).


Per Wambuzi CJ (dissenting, Mulenga J concurring):
1. Section 7 is inconsistent with Art 24 and would be void in so far as it authorises the imposition
of a torturous, cruel, inhuman or degrading treatment or punishment, i.e. the making of an
exclusion order banishing a person from his or her home. However, other exclusion orders,
which do not contravene the Constitution, could be imposed in order to achieve the Acts
objective. An impugned law should not be declared void merely because one aspect of its
application offends the Constitution (Grace Stuart Ibingira & Ors v Uganda 1966 EA 306, 310
(East Africa CA) applied and dicta of Sopinka J in Osborne v Queen (1991) DLR 321, 344 (Can
SC) considered).
2. The exclusion order made against the respondent is not unconstitutional. It banishes him from
his victims homes, not from his own home. If it had banned him from his own home it would
have been cruel and a threat to life.
Observation:
Arts 2(2) and 273 of the Constitution mean that Ugandan courts cannot enforce a law inconsistent with
the Constitution.
Cases sited Examination of comparative case law including cases from Zimbabwe, Pakistan, India,
Canada and the US
Riley & Ors v Attorney General of Jamaica & Anor [1982] 2 All ER 469 (Jam PC)
Catholic Commission for Justice and Peace in Zimbabwe v Atto
Citations
[2000] 1 LRC 63; (1999) 2 CHRLD 329