Salvatori Abuki and Richard Abuga v. Attorney General

The petitioners, Salvatori Abuki and Richard Obuga, brought a constitutional challenge against their convictions in a Magistrates’ Court for the practice of witchcraft. (Richard Obuga died before the hearing on the petition began leaving only one petitioner, Abuki.) The petitioner was arrested on a complaint of witchcraft and charged with practicing witchcraft in contravention of section 3(3) of the Witchcraft Act Cap. 109. (the “Witchcraft Act”) Having pled guilty, he was sentenced to 22 months imprisonment. In addition, an exclusion order was made against him under section 7 of the Witchcraft Act, banning him from his home for a period of 10 years after serving his prison sentence.

Following a failed appeal to the Chief Magistrate, the petitioner approached the Constitutional Court for a declaratory order that section 3 of the Witchcraft Act, was unconstitutional because it was vague and lacked precision, denying him his right to a fair trial, and allowed conviction for an undefined criminal defense. Secondly, the petitioner argued that section 7 of the Witchcraft Act, which allowed for exclusion orders, was inconsistent with the Constitution because it derogated from the constitutional prohibition on cruel, inhuman or degrading punishment, infringed on his constitutional right to reside and settle in any part of Uganda, and breached his constitutional right not to be deprived of his properties without compensation or recourse to the courts.

In considering the challenge to section 7  of the Witchcraft Act (permitting banishment from his home for a person convicted of witchcraft), the Court, speaking through Judge Okello, adopted the ‘purpose and effect’ principle wherein, when determining the constitutionality of a statute, a court must consider whether either the purpose or the effect of the statute violated a constitutional right.  The Court also noted that if a statute purported to encroach on a personal or proprietary right, it must be interpreted strictly and that a constitutional right must be interpreted purposively and generously. The Court held that the effect of the exclusion order (which left the petitioner homeless, destitute, and prohibited from having contact with anyone from the area from which he was banished) caused considerable economic, social and psychological anguish and therefore amounted to cruel, inhuman or degrading punishment in violation of the relevant constitutional guarantees.

The Court found that the petitioner had been deprived of property without compensation and that this violated his right to property under Article 26(2) of the Constitution (guaranteeing fair compensation in case of property being taken away in specified circumstances). The Court noted that Article 26(2) of the Constitution protected a fundamental right, and so must be interpreted liberally and purposively. Relying on past precedent, the Court held that a person could seek compensation not only for property compulsorily acquired by the State, but also for State’s deprivation of an individual’s property, as was the case here.

With regard to whether the petitioner was given a fair trial, the Court found that the offence of witchcraft under section 3(3) of the Witchcraft Act was vague because the term “witchcraft” was not defined in the Witchcraft Act. As such the petitioner was not provided with the opportunity to raise a proper defense, thereby denying him his right to a fair trial.

Judge Manyindo dissented with the judgment, arguing that (a) the meaning of witchcraft could be clearly adduced from a dictionary definition and that the petitioner was not thus unfairly convicted of an undefined offence, (b) considering that courts regularly sentenced people to execution or corporeal punishment, the constitutional prohibition on torture and cruel and unusual punishment simply meant that there should be no derogation therefrom unless specified by an order of the court; therefore, the exclusion order was legal; and (c) as the exclusion order did not take away the petitioner’s property but merely temporarily inconvenience him, it was lawful.

Judge Tabaro concurred with the judgment, noting that the Witchcraft Act was antiquated and ,considering that witchcraft is understood differently by different people, that the legislation was unconstitutionally vague and ambiguous. Judge Tabaro also took issue with the fact that the Witchcraft Act allowed the prosecution to adduce evidence of a person’s reputation as a witch, leading to trials based not on scientific truths but on subjective beliefs of the public.  Judge Tabaro agreed that the exclusion order constituted an impermissible taking of property, noting that many of whom such punishment was levied were persons who made a living from the “pitiable subsistence economy” and who would be most vulnerable to deprivation of property and exclusion from society. He reiterated the difference between depriving someone of use of his property while imprisoned (where the State was responsible for providing his necessities of life) and after the prisoner’s release. Finally, Judge Tabaro debunked the myth that severe punishment is required for meaningful penal laws in Africa, noting the concept of “ubuntu” (that being human entails humaneness to others). He touted human dignity and the importance of rehabilitation and decried punishment incorporating revenge and brutality.

Judge Bahigeine concurred with the judgment, noting that the Witchcraft Act was unconstitutional.

Judge Egonda-Ntende concurred with the judgment, emphasizing the importance of legislation in setting out prohibited conduct in explicit terms in order for an accused to properly conduct his defense.  Judge Egonda also took judicial notice of the fact that the majority of Ugandans work the land for their livelihood, rendering an exclusion order an effective sentence of destitution. He noted that the right to life, guaranteed by the Ugandan Constitution, encompassed the right to livelihood.  Finally, Judge Egonda-Ntende pointed out that the only permissible limitations to an individual’s enjoyment of fundamental rights were where such enjoyment prejudiced the rights and others or the public interest—neither of which had been shown to apply to exclusion orders.

“Under [the purpose and effect] principle, the court would consider both the purpose and effect of an impugned statute todetermine its Constitutionality. If the purpose of the statute infringes a right guaranteed by theConstitution, that statute is declared unconstitutional. Where the purpose of the statute is purportedly within the constitution, court would go further to examine its effects. If the effects violates a right guaranteed by the constitution, that statute is also declared unconstitutional.” Page 15

“What is “inhuman”. There is no judicial definition of that word … Because of the difficulties in ascertaining the exact meaning of the word, courts in other jurisdictions have resorted to illustrate the meaning by referring to some kinds or modes of punishments which were historically prohibited in England for being inhuman or cruel. They included the use of racks, thumbscrew, stretching limbs etc. Use of rack was also practiced in some parts of Uganda to punish witches or Witch-Doctors (Night Dancers). The common feature in this punishment is the causing of severe pain and suffering to the victim either physically or mentally. ... These are cruel and inhuman punishments. In my view these are the types of punishments which Articles 24 and 44 [of the Constitution] seek to prohibit.” Page 17

“The penalties [Parliament] prescribe[s] are to uphold the dignity and protection from inhuman or degrading treatment or punishment. As stated earlier in this judgment, a statute which purports to encroach on a personal or proprietary right of a citizen is to be construed strictly.” Page 18

“This is a provision which protects and entrenches a fundamental right to property. I have said before. The principle regarding construction of such provisions is that they must be given liberal construction in order to leave the fundamental rights of the citizens intact.” Page 19