A Ugandan woman who was jailed 30 years for trafficking cocaine worth Sh84 million has been freed by the High Court after it found that her continued imprisonment amounted to unequal treatment before the law.
Anne Birungi Bisaso was arrested at the Jomo Kenyatta International Airport in 2010 while carrying cocaine concealed in bags bearing United Nations logos and described as “diplomatic bags”.
A Kibera court convicted her and her co-accused, John Mugisha, of trafficking narcotic drugs contrary to Section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act.
The trial court initially sentenced the pair to life imprisonment and imposed a fine of Sh254.8 million. Birungi later successfully applied for a sentence review, resulting in her jail term being reduced to 30 years and the fine lowered to Sh120 million, with an additional one-year prison term in default of payment.
In her latest application before the High Court, Birungi argued that her continued detention was discriminatory because Mugisha had already secured his release after her sentence was reduced to 15 years on appeal.
The court agreed with her argument, noting that both offenders were convicted in the same trial for the same offence and that no evidence had been presented to justify the disparity in the sentences ultimately served.
The judge observed that no material had been placed before the court to demonstrate any distinction between Birungi and her co-accused in terms of their participation in the offence or level of culpability.
“There is therefore no discernible basis upon which one offender should continue serving a custodial sentence while the other has already secured his release,” the court said.
The court held that maintaining the disparity would violate the constitutional principle of equality before the law.
“To uphold such differential treatment would offend the principle of parity in sentencing and violate Article 27(1) of the Constitution, which guarantees equality before the law and equal protection and benefit of the law,” the judge ruled.
“I am therefore satisfied that the petitioner has established a violation of her right to equal treatment before the law. In the unique circumstances of this case, and bearing in mind that her co-convict has already been released, it would serve no useful purpose to remit the matter for a fresh resentencing hearing.”
The court consequently ruled that Birungi had served sufficient time in prison, having spent more than 15 years behind bars, and ordered her release.
The court further directed that she be deported to Uganda, with the cost of her repatriation to be met by the Ugandan High Commission.
An earlier application was rejected by the High Court in February 2023. In her plea for leniency, she told the court that she was a first offender, had reformed during her incarceration and had acquired various skills, including dressmaking, beadwork, baking, embroidery and paralegal training.
