Supreme court quashes death sentence handed to minor offender

Kampala, Uganda| AFP |  THE INDEPENDENT |  The Supreme Court has quashed a death sentence that was handed to Moses Otim after he was found guilty of murdering Alex Ongom in Apac District in 2005. A panel of five Supreme Court Justices chaired by the Chief Justice, Bart Katureebe quashed the sentence on Friday on grounds that Otim was 17-year-old when he committed the offense.

The other justices on the panel were Dr. Esther Kisaakye, Paul Mugamba, Opio Aweri and Professor Lillian Tibatemwa Ekirikubinza. According to the court files, Otim was initially charged together with Moses Odur and Patrick Emeny on two counts of murder and aggravated robbery for shooting to death Alex Ongom in 2005. However, the Directorate of Public Prosecution withdrew the charges against Otim’s co-accused.

Otim was exclusively tried, convicted and sentenced to death in April 2010 by High Court Judge, Caroline Atima Okello. He appealed the conviction and subsequent sentence in the Court of Appeal but lost. Otim proceeded to the Supreme Court to challenge the decision of the lower courts.

However, a panel of five Supreme Court judges comprising Stellah Arach- Amoko, Eldard Mwanguhya, Faith Mwondha, Opio Aweri and Augustine Nshimye didn’t find merit in the appeal and confirmed the death Sentence on May 25th, 2018.  Otim returned to the Supreme Court through his lawyers of AF Mpanga Advocates led by Jackline Lule seeking a review of  its decision.

The lawyers argued that the Supreme Court had confirmed the death sentence handed to their client in disregard of the fact that he was below 18-years-of age when he committed the offense. They argued that their client wasn’t legible for a death sentence, according to the Children’s Act.

According to  court records, Otim was 21-years-old when he was handed the death sentence on April 30, 2010. His lawyer, Obaa Twonto, who walked into court 43 minutes late while holding a brief for his colleague Innocent Omara, asked court for a lenient sentence on grounds that the convict was 25-years of age.

However, court records show that Twonto who was attending the court session for the first time didn’t even interact with his client. The convict had earlier on admitted on oath that he was 21-years old as of 2010 and was subsequently condemned to suffer death.

However, in their judgment delivered on Friday, Supreme Court Justices, said there was gross misdirection on the facts and law by their Supreme Court colleagues, which originated from the trial court. They observed that Otim testified on oath that he was 21-years-old in 2010 yet the said offenses were committed on October 1st 2005 meaning that he was 17 years old.     

“The court should have been alerted that there was  strong probability that it was dealing with a child”, said the Judges. They explained that there is need for High court to exercise due regard to children’s rights where minors are involved in its proceedings.

They argued that the Supreme Court should have transferred the case to the family and Children’s court for sentencing when they learnt that the convict was a minor when he was charged. The Judges observed that as of 2010 once a child below the age of 16 is found guilty, a detention of three months should have been maximum and for children above 16 years, a punishment equivalent to death should be three years.

However, the justices note that following the amendment of the Children’s Act in 2013, children facing the death sentence should be referred to the Justice and Constitutional Affairs Minister for appropriate action. They therefore ordered Otim’s immediate release arguing that referring him to the Justice and Constitutional Affairs Minister after serving ten years illegally would be unlawful.

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