ATTORNEY GENERAL v SALVATORI ABUKI
SUPREME COURT CONSTITUTIONAL APPEAL NO. 1 OF 1998
(CORAM: WAMBUZI, C.J., ODER, TSEKOOKO, KAROKORA, MULENGA
KANYEIHAMBA, MUKASA – KIKONYOGO, J.J.S.C.)
MAY 25, 1999
The respondents were charged and convicted with practising witchcraft under the Witchcraft Act. The first respondent was convicted on his own plea of guilty and sentenced to twenty-two months imprisonment and banished from home for ten years after serving the sentence of imprisonment. They petitioned and were granted declaration that the sections interpreting witchcraft, sections 2 and 3 of the Witchcraft Act, were void for being vague and ambiguous and did not meet the requirements of Article 28(12) of the Constitution; the exclusion order was unconstitutional because it threatened the petitioners life by depriving him of the means of subsistence and deprived him of access to his property, and was therefore, inhuman as it was a threat to life and contravened Articles 22 and 44(a) of the Constitution. By depriving the petitioner of access to his property, the exclusion order contravened Articles 26 of the Constitution as well and; the petitioner was entitled to immediate release from custody. On appeal, it was contended by the appellant that the court erred in law in holding that section 3 of the Witchcraft Act does not define the offence of witchcraft and therefore, contravenes Articles 28(12) of the Constitution and, court erred in holding that a banishment order or exclusion order under the Witchcraft Act is unconstitutional and amounted to a threat to livelihood, which is a threat to life contrary to Article 22 of the Constitution.
Held: (i) every criminal offence must be defined by law, in accordance with Article 28(12) of the Constitution, with the exception of contempt of court. However, not every word should be defined, nor need the offence be defined in the section, which creates the offence. There is no offence known as witchcraft, but offences in relation to witchcraft, which is defined under section 2 of the Witchcraft Act by exclusion. Witchcraft is spirit worship or the manufacture, supply or sale of native medicines, which is not bona fide and, is a supernatural means. Sections 2, 3 and 6 of the Witchcraft Act give a fair idea of what witchcraft is and sufficient notice of the prohibited conduct. The offences in section 3 of the Witchcraft Act are clear and unambiguous. What is required is to expound the words used. If the meaning is not plain, then court is under a duty to construe the words to give effect to the objects of the legislature and to do justice to the parties. The offences in relation to witchcraft are sufficiently defined and satisfy the provisions of Article 28(12) of the Constitution;
(ii) an exclusion order under section 7 of the Witchcraft Act prohibits for such period as may be stated therein, the person in respect of whom it is made, from entering and remaining in a specified area including and surrounding the place in which the offence was committed. This does not, however, mean that the person is prohibited from entering or remaining in his or her home or land. In this case, court could only make a finding that section 7 of the Witchcraft Act is void to the extent that it authorises the making of an exclusion order excluding a person from his or her home, which would be a violation of a fundamental right of the petitioner;
(iii) in the event of a conflict or inconsistency between the Constitution and other laws, the impugned law is not to be declared void merely because one aspect of its application offends a provision of the Constitution, otherwise the words shall be void to the extent of the inconsistency are meaningless. This is in conformity with Article 273(1) of the Constitution which provides that the operation of the existing law after the coming into force of the Constitution shall not be affected by the coming into force of the Constitution, but the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution. In this case, section 7 of the Witchcraft Act would be null and void in so far as it empowers the imposition of a torturous, cruel, inhuman or degrading treatment or punishment contrary to Article 24 of the Constitution. That modification would be necessary to enable other exclusion orders which do not offend the Constitution to be made to carry out the legitimate objects of Parliament to remove people who practice witchcraft from the areas were they practice witchcraft, presumably for their own protection and that of their victims. However, in the present case, the effect of the exclusion order on the petition was to deprive him of shelter, means of earning a living on his land and he had to look for alternate shelter and means of earning a livelihood. He could succeed in these endeavours or may be he would fail. An exclusion order under section 7 of the Witchcraft Act is cruel, inhuman and degrading treatment or punishment and accordingly, is in contravention of Articles 24 and 44(a) of the Constitution;
(iv) compulsory deprivation of property under Article 26(2) of the Constitution means total or complete deprivation.
Appeal allowed. Declarations set aside and petition dismissed. Each party bears its own costs here and in the court below.
Cases referred to:
Canadian Pacific Ltd v R (1996), 2 LRC 78
Catholic Mission for Justice and Peace in Zimbabwe v Attorney General Ors (1993), 2 LRC 279
Eriya Galikuwa v Rex (1951), 18 EACA 175
Grace Stuart Ibingira & Ors v Uganda, [1966] EA 306
Katikiro of Buganda v Attorney General of Uganda, [1959] EA 382
Manitoba Fisheries Ltd v R (1979), 1 SCR 101
MC Gowan v Mary Land, 366 US 420 – 6 LED 394 (1961)
Mombe Provincial Government, 1985 LRC 642
Osborne v Queen & Ors, (1991) DLR 321
R v Kimutai Arap Mursoi, (1939), 6 EACA 117
R v Kiwanuka Wa Mumbi & Ors, 14 KLR 137
Tallis & Ors v Bombay Municipal Corporation & Ors (1987), LRC (Const) 351
The Queen v Big M Drug Mart Ltd (1996), LRC (Const) 332
The Queen v Peters (1886), 16 QBD 636
Legislation referred to:
Canadian Charter of Rights & Freedoms, sections 1, 2
Constitution of Uganda, 1962, sections 1, 19(1), 28
Constitution of the Republic of Uganda, 1995, Articles 2, 6, 21, 22, 23, 24, 26, 28(1), 28(12), 29(1)(b), 29(1)(c), 29(2), 44, 273(1)
Public Service Employment Act RSC 1985, section 33 (Canada)
Witchcraft Act, (Chapter 108), sections 2, 3, 5(1), 6, 7
Counsel for the appellant: Mr. Cheborion.
Counsel for the respondent: Mr. Emoru.
