Court quashes death row sentence

KAMPALA- The Supreme Court has in an unprecedented move, departed from its own earlier judgment and ordered the immediate release of a death row convict, whom it said was serving an unlawful sentence.

In its second judgment that was by way of review, the court held that the death sentence passed against Mr Moses Otim, should have not been confirmed since he was a child (below 18 years) at the time of committing murder.

Section 94(1)(g) of the Children’s Act, makes it unlawful to impose a death sentence against a child offender.
Still under the Ugandan laws, a child can only be jailed for a maximum period of three years if the offenses he/she has been found guilty of carry a death penalty.

“We are convinced that if the trial and appellate courts had properly considered the evidence of the applicant (Otim), they would have found that as of October 7, 2009, the applicant was 21-years-old. The offences in issue were committed on October 1, 2005, making it four years prior to the time the applicant was convicted and sentenced. This means the applicant was 17-years-old when he committed the offences,” ruled the Supreme Court on June 1.

Sentence quashed
Adding: “We must point out that this is a case where courts occasioned a miscarriage of justice as the appellant (Otim) should not have been sentenced to death. Accordingly, we set aside the sentence of death against the applicant and order that he be released from prison forthwith, unless held for any other lawful charges.”

The panel that overturned the death sentence against Mr Otim included Chief Justice Bart Katureebe and Justices Esther Kisaakye, Rubby Opio Aweri, Prof. Lillian Tibatemwa and Paul Mugamba.

This case arose in 2005 when Otim was indicted with two others; Mr Moses Odur and Mr Patrick Emeny on two charges of murder and aggravated robbery.

Charges against Otim’ s accomplices were along the way, dropped by the Director of Public Prosecutions (DPP).
Otim was tried alone and found guilty of murder by Lira High Court and was sentenced to death.

He petitioned the Court of Appeal, which also upheld the same death sentence. He then appealed to the Supreme Court, with its first panel also confirming the death sentence in 2018.

But again, he applied for review of its decision which the second panel, found it had erred since children are never sentenced to suffer death.

Since Otim had been on death row for over ten years, for a sentence that was unlawful, the justices who revisited this case, said it would be unfair to send his file to the Justice minister for orders to release him as the Children’s Act demands.