Prof. Jamil Mujuzi

Permanent URI for this collection

https://hdl.handle.net/10566/2346

Position:	Associate Professor
Department:	Criminal Justice and Procedure
Faculty:	Faculty of Law
Qualifications:	LLB, Makerere University, Uganda
	LLM (Human Rights and Democratisation in Africa), University of Pretoria
	LLM (Human Rights Specialising in Reproductive and Sexual Health Rights), University of the Free State
	LLD (focusing on life imprisonment in international criminal law and selected African countries), UWC.
More about me:	here, and here
	My publications in this repository
Tel:	021 959 3286
Email:	jdmujuzi@uwc.ac.za

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Now showing 1 - 20 of 28

Private prosecutions in Zanzibar
(Makerere University, 2017) Mujuzi, Jamil Ddamulira
In this article, the author deals with the question of private prosecutions in Zanzibar. The following issues are discussed: locus standi to institute a private prosecution; appeals in cases of private prosecution; the need for the private prosecutor to have a prima facie case before instituting a private prosecution; whether the DPP has to decline to prosecute before a private prosecution is instituted; the costs for conducting a private prosecution; the costs in the event of a successful or unsuccessful private prosecution; and the DPP’s intervention in private prosecutions.
The Ugandan Customary Marriage (Registration) Act: a comment
(University of Florida, 2013) Mujuzi, Jamil Ddamulira
Different marriages in Uganda are govemed by different pieces of legislation. For example, church or civil marriages are govemed by the Marriage Act (1904),' which is in the process of being amended.^ Muslim marriages are govemed by the Marriage and Divorce of Mohammedans Act ( 1906),' which, like the Marriage Act, is also in the process of being amended,*" Hindu marriages by the Hindu Marriage and Divorce Act (1961 ),' which is also in the process of being amended,' and customary marriages by the Customary Marriage (Registration) Act (1973).^ As the name suggests, the Customary Marriage (Registration) Act regulates the registration of customary marriages in Uganda. This article highlights some ofthe provisions ofthe Customary Marriage (Registration) Act that need urgent amendment to bring them in line with the Constitution and Uganda's intemational human rights obligations. The article also discusses the jurisprudence emanating from Ugandan courts dealing with proving the existence of an unregistered customary marriage and the issue of distribution of property at the dissolution of a customary marriage. The article is divided into five parts. Part one is the introduction, part two highlights the provisions of the Customary Marriage (Registration) Act the need to be amended, part three discusses the jurisprudence emanating from Ugandan courts on proving customary marriages, part four with the sharing of property at the dissolution of a customary marriage, and part five is the conclusion.
Protecting animals from mistreatment through private prosecutions in South Africa: A comment on National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2016 1 SACR 308 (SCA)
(Cambridge University Press, 2017) Mujuzi, Jamil Ddamulira
The general rule in South Africa is that, when an offence is committed, the suspect has to be prosecuted by a public prosecutor. However, there is an exception whereby a victim of crime is permitted to institute a private prosecution if the prosecutor has declined to prosecute. South African law allows natural, but not juristic, persons to institute private prosecutions. In the case examined in this note, the appellant argued that the law prohibiting juristic persons from instituting private prosecutions is discriminatory. The Supreme Court of Appeal held that private prosecutions are only permitted on grounds of direct infringement of human dignity. This note argues that section 7 of the Criminal Procedure Act is unconstitutional for excluding juristic persons from instituting private prosecutions and recommends steps the appellant could take to institute private prosecutions against those who mistreat animals.
Prisoner transfer to South Africa: Some of the likely challenges ahead
(North-West University, 2013) Mujuzi, Jamil Ddamulira
For many years the South African government has been reluctant to enter into prisoner transfer agreements. This reluctance is demonstrated by at least two instances. The first is that in 2000 there was an attempt by an opposition member of parliament to move a private member's Bill on the transfer of offenders between South Africa and other countries. This Bill, although supported by some officials from the Department of Justice, was not passed because it was, inter alia, opposed by the Department of Correctional Services since, amongst other things, it did not provide for the cost of the prisoner transfer, and it was not clear if the Correctional Services Act3 was to be amended to empower the Minister of Correctional Services to administer the law relating to the transfer of offenders.
The supreme court of Canada and the offender's right to be transfer to serve his sentence in Canada: Interpreting the International transfer of offenders in the light of Canada's National and International Human rights obligations
(De Gruyter Open, 2013) Mujuzi, Jamil Ddamulira
In September 2013 in the case of Divito v Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada dealt with the issue of whether section 6(1) of the Canadian Charter of Rights and Freedoms, the Charter, which grants Canadians the right to enter Canada was violated in a case where the Minister of Public Safety and Emergency Preparedness declined to consent to the transfer of a Canadian citizen to serve his sentence in Canada where the sentencing state had consented to the transfer. Another issue was whether sections 8(1) and 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act, which granted the Minister the discretion to consent or not to consent to the transfer, were contrary to section 6(1) of the Charter. In resolving the above issues, the Court referred to its earlier jurisprudence, academic publications and international law. Although the Court agreed with the government that the appeal was moot because the appellant had left the USA by the time it was heard, it held that it retained “a residual discretion to decide the merits of a moot appeal if the issues raised are of public importance” and that this case was one of public importance because “[t]he issues are likely to recur in the future and there is some uncertainty resulting from conflicting decisions in the Federal Court.” The purpose of this article is to highlight the interpretative tools invoked by the court and the implications of the judgement.
The rule of law: Approaches of the African Commission on Human and Peoples' Rights and selected African states
(Pretoria University Law Press (PULP), 2012) Mujuzi, Jamil Ddamulira
The African Commission on Human and Peoples' Rights is empowered to promote and protect human rights in Africa. Although the African Charter on Human and Peoples' Rights does not expressly use the phrase 'rule of law', the African Commission has interpreted its mandate under the African Charter as allowing it to promote and protect the rule of law in Africa. The article looks at four mechanisms through which the African Commission has attempted to promote the rule of law - in its resolutions, individual communications, promotional missions and through the periodic reports of state parties to the African Charter. The article shows that the African Commission has given different meanings to the concept of the rule of law. The article shows that, in their periodic reports to the African Commission, different African states have different understandings of the rule of law and have taken different measures to promote the rule of law in their jurisdictions. What is apparent is that the promotion and protection of human rights are crucial elements in rule of law discourse.
Making sense of the Rwandan Law Relating to Serving Life Imprisonment with Special Provisions
(Pretoria University Law Press (PULP), 2011) Mujuzi, Jamil Ddamulira
In October 2010, the Rwandan Law Relating to Serving Life Imprisonment with Special Provisions came into force. As the name suggests, the law is applicable to offenders sentenced to life imprisonment with special provisions. This article highlights the gaps in that law and suggests ways through which those gaps could be eliminated.
The Ugandan Transfer of Convicted Offenders Act, 2012: A commentary
(Pretoria University Law Press (PULP), 2012) Mujuzi, Jamil Ddamulira
Like many countries, Uganda is home to foreign nationals. The presence of foreign nationals in the prison of a country raises questions regarding their treatment. Countries are increasingly enacting legislation, ratifying or acceding to treaties, or signing agreements governing the transfer of such offenders to serve the last part of their sentences in their countries of nationality, citizenship or domicile. On 17 May 2012, the Ugandan Parliament passed the Transfer of Convicted Offenders Bill, 2007 into law. The Transfer of Convicted Offenders Act was assented to by the President of Uganda on 27 July 2012 and, once it comes into force, will regulate the transfer of convicted offenders between Uganda and other countries. The purpose of the article is to highlight the debates surrounding some provisions of the Bill, including the purpose of the Act; human rights issues, consent of offenders to transfer; the costs of the transfer; and pardon and amnesty.
Why the Supreme Court of Uganda should reject the Constitutional Court's understanding of imprisonment for life
(Pretoria University Law Press (PULP), 2008) Mujuzi, Jamil Ddamulira
The issue of life imprisonment is always a contentious one. Some people argue that life imprisonment should mean what it means, namely 'wholelife'. In Uganda, life imprisonment continues to mean imprisonment of 20 years. However, in 2005 the Constitutional Court ruled that life imprisonment should mean'the whole of a person's life'. This decision is not yet law, because the particular case is on appeal before the Supreme Court, which will either uphold the Constitutional Court's ruling or not. This article deals with the constitutionality of long prison sentences that the Constitutional Court suggested could be imposed to avoid prisoners being released after 20 years. It also argues that the Supreme Court should reject the Constitutional Court's ruling that life imprisonment should mean the whole of the prisoner's life. The human rights and administrative implications of 'whole-life' imprisonment are discussed in detail to support the view that life imprisonment should remain as is, that is, 20 years in prison. The author draws inspiration from other domestic jurisdictions and international law to support his argument. In particular, the author looks at jurisprudence from Germany, South Africa, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the Former Yugoslavia, the Special Court for Sierra Leone, the International Criminal Court and the European Court of Human Rights. Where applicable, the views of the African Commission on Human and Peoples' Rights are highlighted.
The African Commission on Human and Peoples' Rights and the promotion and protection of refugees' rights
(Pretoria University Law Press (PULP), 2009) Mujuzi, Jamil Ddamulira
African countries have been host to and have produced refugees for decades. These refugees have fled their countries for various reasons, including political and religious reasons. Many African countries are party to the 1951 United Nations Convention Relating to the Status of Refugees and its additional Protocol of 1967. In 1969, the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, the major instrument that deals with the rights and duties of refugees in Africa, was adopted to address, as the name suggests, the specific aspects of refugee problems in Africa which were not addressed by the 1951 UN Refugee Convention. The African Commission on Human and Peoples' Rights has put in place various measures to promote and protect the rights of refugees in Africa. These measures include the organisation of seminars, seminar paper presentations by commissioners, the appointment of a Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons in Africa, and adopting resolutions on the rights of refugees. The African Commission has also allied itself with various international human rights and humanitarian law organisations to protect the rights of refugees in Africa. It has protected the rights of refugees through its visits to different countries and through its decisions on individual communications. This article observes, inter alia, that, although the African Commission has entertained various communications dealing with the rights of refugees in Africa, the arguments of the parties to those communications as well as the decisions of the Commission have largely focused on the African Charter on Human and Peoples' Rights and not on the 1969 OAU Convention on Refugees. The author recommends that, in matters relating to refugee' rights, the African Commission should always invoke the provisions of the 1969 OAU Refugee Convention in addition to the African Charter and, where need be, reference should be made to other refugee-related instruments.
International human rights law and foreign case law in interpreting constitutional rights: The Supreme Court of Uganda and the death penalty question.
(Pretoria University Law Press (PULP), 2009) Mujuzi, Jamil Ddamulira
On 21 January 2009, the Supreme Court of Uganda handed down a judgment in which it held that the death penalty was constitutional, that a mandatory death sentence was unconstitutional, that hanging as a mode of execution was not cruel and inhuman, and that the death row phenomenon is cruel and inhuman and therefore unconstitutional. Although the Constitution of Uganda does not empower or require the Court to refer to international law or foreign case law in interpreting the Constitution, the Court relied heavily on international human rights treaties and jurisprudence in arriving at its decision. This article has three purposes: one, to show how the Ugandan Court used international law and foreign case law in its judgment; two, to analyse the Court's orders; and third to recommend that the Constitution of Uganda be amended to empower or require courts to refer to international law and foreign case law in interpreting the country's Constitution.
Evidence obtained through violating the right to freedom from torture and other cruel, inhuman or degrading treatment in South Africa
(Pretoria University Law Press (PULP), 2015) Mujuzi, Jamil Ddamulira
Although South African courts have expressly held that any evidence obtained through torture is always inadmissible, the author is unaware of a decision from a South African court to the effect that evidence obtained through cruel, inhuman and degrading treatment is, like evidence obtained through torture, inadmissible in all circumstances. In this article, the author first deals with the issue of evidence obtained through torture and thereafter relies on the practice of international and regional human rights bodies, such as the Committee against Torture, the Human Rights Committee, the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Independence of Judges and Lawyers, the European Court of Human Rights and the African Commission on Human and Peoples' Rights, and some of the sections of the South African Constitution, to argue that South Africa has an international obligation to exclude any evidence obtained through cruel, inhuman and degrading treatment. In support of this argument, the author relies on the jurisprudence of the South African Supreme Court of Appeal on the nature of the right to freedom from torture and argues that the same approach could be applied to the right to freedom from cruel, inhuman and degrading treatment.
Private prosecutions and discrimination against juristic persons in South Africa: A comment on National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & Another
(Pretoria University Law Press (PULP), 2015) Mujuzi, Jamil Ddamulira
Unlike countries such as the United Kingdom, Kenya, Zimbabwe and Australia, in South Africa companies and associations are not permitted to institute private prosecutions although natural persons have a right to institute private prosecutions. In National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development & Another, the applicant argued that the law which permitted natural persons to institute private prosecutions and prevented companies and associations from doing so violated section 9 of the Constitution which protects the right to equality. The court held that the discrimination in question was not unfair. In this note, the author assesses the court's reasoning and recommends that there may be a need to empower companies to institute private prosecutions in South Africa.
Protecting animals from mistreatment through private prosecutions in South Africa: A comment on National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2016 1 SACR 308 (SCA)
(Cambridge University Press, In press) Mujuzi, Jamil Ddamulira
In South Africa, the general rule is that when an offence is committed, the suspect has to be prosecuted by a public prosecutor. This is on the basis of the Constitution (section 179) and the National Prosecuting Authority Act (section 20). However, there is an exception to this general rule - where a victim of crime or his or her representative, where the victim has no legal capacity, is permitted to institute a private prosecution if the prosecutor has declined to prosecute.
The prosecution in South Africa of international offences committed abroad: The need to harmonise jurisdictional requirements and clarify some issues
(Juta Law, 2015) Mujuzi, Jamil Ddamulira
There are two broad exceptions to the general rule that South African courts do not have jurisdiction over offences committed outside South Africa. The first set of exceptions developed by South African courts deals with offences of treason and theft. The second set of exceptions was created by the legislature and includes national and international offences. The prosecution of international offences is based on the principle of universal jurisdiction. This article examines the relevant statutory provisions relating to the offences of torture, terrorism, grave breaches of the Geneva Conventions, war crimes, crimes against humanity and genocide. It will recommend that there is a need for the relevant legislation to be amended to eliminate the ambiguities that relate to the following issues: the place where the suspect has been arrested or found; courts with jurisdiction over the offence and the individual responsible for authorising the prosecution of the offence and designation of the court; the expiry of the right to prosecute; and the prosecution of acts or omissions which took place before the commencement of the Acts.
Sentencing primary caregivers of young children
(Juta Law, 2011) Mujuzi, Jamil Ddamulira
Traditionally a judicial officer was not required to consider the effects of the imposed sentence on the children of the offender, even if the offender was a primary caregiver of young children. The Court in S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) [2007 (12) BCLR 1312] (discussed in detail in Mujuzi (2011) 2 SACJ 164-177) held that, in sentencing primary caregivers of young children, courts should inquire into the effects the sentence will have on such children and, where possible, impose a non-custodial sentence to ensure that the children are not deprived of the care and support of the primary caregiver.
Punishment in the eyes of the Constitutional Court of South Africa: the relationship between punishment and the rights of an offender in the sentencing of primary caregivers of children
(Juta Law, 2011) Mujuzi, Jamil Ddamulira
Punishment has mostly focused on achieving its objectives without considering the impact a sentence will have on the rights of the offender and those under the offender's care. Drawing on the jurisprudence of the Constitutional Court, the author illustrates how the Court, relying on the Constitution of the Republic of South Africa, 1996, has shifted the punishment discourse from one that emphasises the objectives of punishment to one that calls upon sentencing officers to not only emphasise the objectives of punishment, but also to consider the effect the punishment will have on the children if their primary caregiver was sentenced to imprisonment.
Diversion in the South African criminal justice system: emerging jurisprudence
(Juta Law, 2015) Mujuzi, Jamil Ddamulira
On 1 April 2010 the South African Child Justice Act (CJA or the Act) commenced. The long title of the Act states, inter alia, that the purpose of the Act is 'to establish a criminal justice system for children, who are in conflict with the law and are accused of committing offences, in accordance with the values underpinning the Constitution and the international obligations of the Republic'. The Act provides, inter alia, that a child who has committed any offence may be diverted from the criminal justice system. Case law has started emerging from South African courts dealing with some of the sections of the Act. The purpose of this article is to highlight how courts have interpreted or applied some of the sections of the Act.
The conditional early release of offenders transferred from the Special Court for Sierra Leone to serve their sentences in designated states: some observations and recommendations
(Juta Law, 2014) Mujuzi, Jamil Ddamulira
The Special Court for Sierra Leone (SCSL) (now the Residual Special Court for Sierra Leone) convicted various offenders of crimes, such as war crimes and crimes against humanity. These convicted offenders were sentenced to prison terms ranging from two to fifty years' imprisonment. The SCSL signed sentence-enforcement agreements with Sweden, Finland, Rwanda and the United Kingdom. On the basis of these enforcement agreements, those convicted by the SCSL were transferred to serve their sentences in Rwanda and the United Kingdom. Some of those convicted of contempt of court served their sentences in Sierra Leone. The enforcement of the sentences is governed by Articles 227 and 238 of the Statute of the SCSL, read with Rules 103 and 124 of the Rules of Procedure and Evidence which provide for the place of imprisonment of the offenders convicted by the SCSL and the issue of pardon respectively. The conditional early release (what is known as parole in some countries) of the offenders is governed by the Practice Direction on the Conditional Early Release of Persons Convicted by the Special Court for Sierra Leone. As at the end of 2014, only two offenders - Moinina Fofana and Eric Koi Senessie - had been granted conditional release by the President of the SCSL. The purpose of this article is to analyse the issues emerging from these two cases. Before I deal with those issues, it is important to draw a distinction between the transfer of offenders between countries and the transfer of offenders from international criminal tribunals, such as the SCSL, to sentence enforcement states.
Life imprisonment in South Africa: yesterday, today, and tomorrow
(Juta Law, 2009) Mujuzi, Jamil Ddamulira
Life imprisonment has been part of South Africa's penal regime for decades. This article analyses how this form of punishment has changed in meaning in since 1906. The author looks at life imprisonment during the death penalty period ; life imprisonment in the aftermath of the abolition of the death penalty ; life imprisonment under the Criminal Law Amendment Act, when it could only be imposed by the High Courts ; and life imprisonment during the Criminal Law Amendment Act, when the regional courts were also empowered to impose this sentence. The author discusses the laws and circumstances which prevailed in the above four periods. With life imprisonment now being the severest sentence that can be imposed in South Africa, the author highlights the challenges associated with it and calls upon the government, courts and civil society to think seriously about how this form of punishment should be administered so as to avoid confusing inmates and exposing the government to litigation.

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