Abuki and the Limits of Banishment Orders

Attorney General v Salvatori Abuki, Constitutional Appeal 1 of 1998, [1999] UGSC 32, is a leading Ugandan decision on two questions that do not always sit comfortably together. The first is whether a criminal offence is clear enough to satisfy the constitutional demand of legality. The second is whether a lawful conviction can be followed by a punishment so harsh in its practical effects that it violates human dignity. The Supreme Court answered both questions in a balanced way. It accepted that the Witchcraft Act could create offences capable of judicial interpretation, but it rejected an exclusion order that prevented a person from returning to his home. That combination gives the case its enduring value.

The appeal was heard by the Supreme Court of Uganda at Mengo. The bench included Wambuzi CJ, Oder JSC, Tsekooko JSC, Karokora JSC, Mulenga JSC, Kanyeihamba JSC and Mukasa Kikonyogo JSC. The appeal came from the Constitutional Court, which had found important parts of the Witchcraft Act unconstitutional. Because the Supreme Court partly agreed and partly disagreed with that court, the judgment is especially useful for understanding how appellate courts may refine constitutional remedies rather than simply accept or reject a lower court’s reasoning wholesale.

The facts are simple, though the legal consequences are not. Salvatori Abuki and Richard Obuga challenged provisions of the Witchcraft Act after convictions under that law. Obuga died in prison, leaving Abuki’s case as the main focus of the appeal. Abuki had been tried before a Magistrate Grade II Court in Aduku, Lira District. He pleaded guilty to practising witchcraft, was convicted and received a sentence of imprisonment. In addition, the court made an exclusion order. The order barred him from entering or remaining in a specified area connected with the place of the offence. In ordinary language, it meant that after serving the prison sentence, he could be kept away from home.

That detail matters. A punishment that looks technical on paper may be devastating in a village setting. For a rural resident, home is not only a house. It may be the place where land is cultivated, where food is grown, where family members offer support, where identity is recognised, and where a person can survive without cash income. Removing a person from that setting may expose him to homelessness, hunger, shame and social isolation. The Supreme Court’s judgment is powerful because it did not treat exclusion as a minor administrative addition to imprisonment. It looked at what the order could actually do to a person’s life.

The first legal question concerned vagueness. Article 28(12) of the Constitution requires that a person should not be convicted of a criminal offence unless the offence is defined and the penalty is prescribed by law. The Constitutional Court had treated sections 2 and 3 of the Witchcraft Act as too vague. The Supreme Court disagreed. It held that the offences were sufficiently defined for constitutional purposes. A statutory word may be broad, traditional or culturally specific, but that alone does not make it unconstitutional. Courts interpret words in context every day. The real question is whether the law gives enough notice of what is prohibited and whether a court has a workable standard to apply.

This part of the decision may disappoint those who expected a stronger attack on old and culturally loaded criminal laws. There is a fair concern that offences involving witchcraft can be difficult to apply without relying on fear, rumour or local hostility. The Court’s response was more restrained. It did not say that such prosecutions are always wise or always easy. It said that the statutory language was not so uncertain that it failed Article 28(12). That is a narrower point. It keeps the legality test focused on definitional clarity rather than on whether the law is socially desirable.

The second issue involved property. Abuki argued, among other things, that the exclusion order interfered with property rights under Article 26. The Supreme Court did not accept that the order amounted to compulsory acquisition of property. The State had not taken ownership of his land in the direct sense. The distinction may appear formal, because being barred from home can feel close to losing the practical benefit of land. Still, the Court was careful not to turn every severe restriction on residence or movement into an acquisition claim. That caution is understandable, even if one may think the property consequences deserved more attention.

The heart of the case lies in Articles 24 and 44(a). Article 24 protects every person from torture, cruel, inhuman or degrading treatment or punishment. Article 44(a) makes that protection non derogable. The Supreme Court held by majority that section 7 of the Witchcraft Act was unconstitutional to the extent that it allowed a court to make an exclusion order preventing a person from entering his or her own home. The judgment did not strike down the whole Witchcraft Act. It did not even treat every possible exclusion order as invalid. It targeted the unconstitutional part: the use of exclusion to drive a person away from home.

The rule from Abuki can be stated plainly. A criminal offence satisfies the Constitution if it is defined with enough clarity for an ordinary person to know the prohibited conduct and for a court to apply the law by ordinary interpretation. At the same time, punishment must respect human dignity. A sentence authorised by statute is not automatically constitutional. If it removes a person from home, livelihood, family support and ordinary community life, it may become cruel, inhuman or degrading. The case is a reminder that legality and humanity are separate questions. A punishment can be lawful under a statute and still unconstitutional under the supreme law.

One reason the decision remains useful is that it deals with banishment in a Ugandan context. Banishment has a troubling history in colonial and post colonial administration. It was often used to remove difficult people from their communities rather than to punish a precisely defined wrong. The exclusion order in Abuki carried a similar flavour. It did not only say that the offender should serve time. It said that after prison he could be kept away from the place where life was rooted. The Supreme Court appears to have understood that this kind of punishment can break a person socially as well as physically.

The case also offers an important lesson on constitutional remedies. The Court avoided an all or nothing approach. It declared section 7 void only to the extent of the inconsistency. That method respects the supremacy of the Constitution without destroying more of the statute than necessary. Some readers may see this as judicial modesty. Others may see it as a missed opportunity to examine the Witchcraft Act more deeply. Both views have force. Yet as precedent, the narrower remedy is useful because it shows how courts can correct a constitutional defect while leaving Parliament room to revisit the wider law.

For defence lawyers, Abuki suggests that a challenge to criminal law should separate the offence from the sentence. A lawyer arguing vagueness must show more than the fact that a word is old, broad or culturally contested. The argument should explain why the accused person lacked fair notice or why the court lacked a workable legal standard. A lawyer challenging punishment should focus on evidence of actual impact: where the person lives, how food is obtained, whether family support is available, whether the order separates the person from land or shelter, and whether the punishment humiliates more than it lawfully corrects.

For prosecutors and magistrates, the case is equally practical. Sentencing is not a mechanical exercise. A court should not impose a punishment simply because an old statute appears to allow it. The Constitution sits above the sentencing power. Where a sentence risks stripping a person of basic dignity, the court must ask whether the punishment is compatible with Articles 24 and 44(a). That question remains necessary even after a guilty plea. A convicted person does not step outside the Constitution at the moment of conviction.

Abuki also fits within Uganda’s early constitutional rights jurisprudence after 1995. Like Tinyefuza, it shows the Supreme Court testing older legal practices against the new constitutional order. Later punishment cases, including the capital sentencing litigation in Susan Kigula, would return to similar ideas about dignity, proportionality and humane punishment. Abuki is not a death penalty case, but it prepared the ground for a wider understanding that punishment must be constitutionally controlled at the stage where its human effect becomes real.

The lasting value of Attorney General v Salvatori Abuki lies in its refusal to accept easy answers. The Court did not casually invalidate the criminal offences, but neither did it allow the State to punish in a manner that pushed a person out of home and ordinary survival. It is a precedent about clarity in crime, restraint in remedies and dignity in punishment. Most importantly, it reminds lawyers that constitutional law is not only about whether the State may punish. It is also about how the State punishes, and whether the person being punished is still treated as a human being under the Constitution.

Source note. This article is based on Attorney General v Salvatori Abuki, Constitutional Appeal 1 of 1998, [1999] UGSC 32, Supreme Court of Uganda, judgment delivered on 25 May 1999, with reference to the Witchcraft Act and the Constitution of the Republic of Uganda. It is prepared for public legal education only and should not be treated as legal advice for any specific dispute.

Suggested citation

Ronald Serwanga, “Abuki and the Limits of Banishment Orders” East Africa Legal Insight (4 June 2026).