REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA AND
MUKASA-KIKONYOGO, JJSC.)
CRIMINAL APPEAL NO. 25 OF 2000
BETWEEN
APPELLANT
KATO SULA
VERSUS
UGAND) : RESPONDENT
(Appeal from the decision of the Court of Appeal before KATO,
OKELLO AND KITUMBA JJ.A. dated 22" May, 2000 in Criminal
Appeal No. 30 Of 1999)
REASONS FOR JUDGEMENT OF THE COURT:
The appellant, Kato Sula, was tried and convicted by the High
Court on an indictment charging him with the offence of defilement
contrary to section 123(1) of the Penal Code. He was sentenced to 8
years’ imprisonment. His appeal to the Court of Appeal was
dismissed. He appealed to this Court.
We heard the appeal on 27" November, 2000 and dismissed it
because we found that there was no merit in the appeal and reserved
our reasons. We now give the reasons.It was the prosecution case that the complainant, Agila Gabula
(PW5) was a pupil of Yudaya Islamic School. The appellant, Kato
Sula, was her teacher in primary two at the same school. On
6/8/1995, at about 10.30 a.m., the appellant sent for Agila Gabula to
go to his residence which was near the school. Agila was
accompanied by some of her schoolmates who included Nabalera
Justine (PW1) and one Habibu Kalema, a child and young uncle of
Agila. The appellant chased away the other children including
Nabalera Justine but Habib Kalema refused to go away until the
appellant persuaded him to go and collect a Koran from a nearby
mosque. When the appellant was alone with Agila Gabula, he pulled
her into his room where he demanded to have sexual intercourse
with her. She resisted. The appellant eventually overpowered her
and defiled her. After the defilement, Agila returned to school and
later went to her grandfather's home where she lived.
Next day she refused to go back to school. This prompted her
grandfather, Jaffali Kimera, (PW2) to inquire why she had not gone
to school. She replied that she feared to go to school because the
previous day the appellant had defiled her. Jaffali reported the matter
to authorities who eventually arrested the appellant. He was charged
with and prosecuted for the offence of defilement. At the trial he
raised an alibi to the effect that he was not at the school where Agila
Gabula was defiled. He testified and called a witness Fatuma Bukirwa
(DW2) to confirm that he was a student in another school. Heclaimed that because he resembles his brother Wasswa who taught
at Yudaya School, he was mistaken for that brother.
The assessors and the trial Judge disbelieved the appellant but
believed the prosecution. They found that there was corroboration of
the evidence of the children witnesses Justine Nabalera and Agila
Gabula. The appellant was convicted and sentenced and his appeal to
the Court of Appeal was dismissed. He then appealed to this Court on
two grounds. The two grounds in effect complained that the
Prosecution evidence was insufficient and in particular that the
evidence did not conclusively establish the identity of the appellant as
the person who defiled Agila Gabula.
The appeal was argued by Mr. Kafuko-Ntuyo, Counsel for the
appellant. We did not call upon Ms. Khisa, the Principal State
Attorney, to reply because we were satisfied that there was
overwhelming evidence against the appellant and that the objections
raised in the memorandum of appeal and the arguments thereon had
no merit.
The learned trial judge and the Court of Appeal accepted the
evidence that the appellant had taught Agila Gabula and Nabalera
Justine in primary two for some time. Agila had therefore known the
appellant and his twin brother Wasswa so well that she (Agila) was
able to describe the shape of the head of the appellant as being
distinct and different from that of Wasswa. There was no cross-examination on the evidence of Nabalera to the effect that Agila and
herself were accompanied by other schoolmates when they went to
the appellant's residence from where the appellant himself got a
cassava stick and chased the rest of the children away. This
happened in midmorning. Defense counsel did not challenge
Nabalera's evidence, by way of cross-examination, which clearly
means that the identity of the appellant in so far as Nabalera's
evidence goes was not challenged. The evidence of Jaffali was to the
effect that he knew the appellant very well as a teacher at Yudaya
School where the two gilrs were pupils. He testified that after Agila
complained of defilement, he and J. Lule, PW3, an L.C. Chairman,
went to the residence of the appellant and discovered that the
appellant had removed all his belongings and fled the area.
The learned trial judge in a well reasoned judgment found the
prosecution witnesses, especially Agila, to be impressive. He found
the appellant and his witnesses especially Fatuma Bukirwa to be liars.
He found her to be shifty and called her a consummate liar. He found
that there was corroboration of the evidence of Nabalera and of
Agila. The Court of Appeal re-evaluated the evidence and accepted
the conclusions of the learned trial judge.
We are here now faced with two concurring findings of fact by
the two courts below. In order for us to interfere with those findings,
we had to be persuaded that either one of the courts or both of them
erred in their findings. We note that the trial judge relied on theimpressive demeanour of Jaffali (PW2) and believed him. On the
other hand the Judge noted that Bukirwa Fatuma's (DW2)
demeanour was not impressive as she was shifty in the witness box.
She was a liar. In cases such as this appeal, where the element of
demeanour of witnesses for both the state, in this case Jafali, and for
the accused, such as Fatuma (DW2) has influenced the trial judge
and the assessors, in assessing the credibility of witnesses, we can
only interfere if the appellant can satisfy us that either the trial judge
and or the Court of Appeal erred in a material respect see: Kifamunte
Henry vs. Uganda - Sup. Court, Cr. Appeal 10/98 and Pandya vs. R.
(1957) EA. 336. We were not persuaded that the courts or either of
them erred.
In the circumstances our opinion was that the two grounds
must fail. That is why we dismissed the appeal.
Before we take leave of this case, there are two errors which
we have noticed on the record that we must correct.
The first matter is the issue of procedure in the conduct of
voire dire. The inquiry, which is conducted before a child of tender
years is allowed to testify, is intended to test first whether the child
witness understands the nature of an oath and, secondly if not, it is
sufficiently intelligent to understand the duty of speaking the truth. A
trial judge's note should reflect this.The record of the trial court in the instant case on the conduct
of the voire dire in respect of Nabalera appears as follows:-
"Voire Dire.
Court: |
Questions put to the young witness about whether or not she
understands the nature of oath. She does not.
Court: Questions put to test intelligence of young witness
and capacity to tell the truth. She says that those
who tell lies go to Hell? She understands the duty
of telling the truth.
She will therefore give an unsworn testimony".
The witness then gave her evidence after which Serwanga
counsel for the accused said:
"No Cross-examination".
The learned judge followed the same pattern in conducting the
voire dire in respect of Agila Gabula (PWS). The record appears as
follows:
"VOIRE DIRE.
Court:-
Question put to her. She does not understand the nature
of an oath. So cannot give a sworn testimony.
Court:
Questions put to witness unless she appears to understand
the duty of telling the truth. She knows that people who telllies are burnt. She goes to the mosque every Friday.
She therefore will give an unsworn statement".
We would like to point out that the procedure adopted is not
quite in keeping with the common practice. There are normally two
ways of recording proceedings of the voire dire. The first
method is where the trial judge writes questions down and each
question is followed by the answer to it. The answer is written in the
first person singular in the words spoken by the witness. Questions
and answers are put in a dialogue form. The conclusions of the judge
are made after that dialogue.
The second practice is not to record the questions put by the
judge but to write down in a first person singular and in a narrative
form the answers given by the young witness leaving the questions
out unless a particular question has to be recorded. Thereafter the
trial judge records his conclusions.
The error in the instant case is that neither the questions put
to, nor the answers given by, the child witnesses on the nature of the
oath were recorded, and the answers in the second inquiry were
paraphrased.
Most of the cases which we have come across show that the
common procedure is to record the witness's answers on both
inquiries in a narrative form: See Gabriel S/o Maholi vs. R. (1960) EA.159 at page 160 F to G. See also section 38(3) of the Trial on
Indictments Decree, 1971 (TID) and section 11 of the Oaths Act
(cap.52).
The second point we wish to discuss is whether or not a child
witness who gives evidence not on oath is liable to cross-
examination. There appears to be a wide spread misconception that
a child witness who is allowed to give evidence without taking oath
because of immature age, should not or cannot be cross-examined.
This is reflected in the judgment of the Court of Appeal where the
learned Justices stated (page 5) that:-
Mons ~---we note on the record that the comp-
lainant made an unsworn statement but was later cross-
examined by the defense Counsel. We think that this
was irregular because a witness who gives a statement
Not on oath is not subject to cross-examination as there
is no oath binding him or her".
The learned justices did not refer to any authority in support of
that view which, we think, with the greatest respect, is erroneous.
Neither counsel for the appellant nor the Principal State
Attorney was aware of any authority for the view expressed by the
Court of Appeal. When we drew the attention of the two learned
counsel to the provisions of section 70 of TID 1971 and Ss.133 and
136 of the Evidence Act, they appeared to agree that child witnesseswho give evidence not on oath are liable to be cross-examined. But
both stated that the practice of not cross-examining such child
witnesses is wide-spread. It is because of the widespread
misconception that we make these observations which should in
future be followed by all courts in this country.
Section 38 of the Trial on Indictments Decree, 1971 reads as
follows:
"38. (1) Every witness in a criminal cause or matter before
the High Court shall be examined upon oath and the court
shall have full power and authority to administer the usual
oath.
(3) Where, in any proceedings a child of tender years
called as a witness does not, in the opinion of the
court, understand the nature of an oath, his evidence
may be received, though not given upon oath, if, in the
Opinion of the court, he is possessed of sufficient intel-
ligence to justify the reception of the evidence,
and understands the duty of speaking the truth:"
There is nothing in S.38 (3) to suggest that a child witness
should not be cross-examined on his or her unsworn evidence.
Trials in the High Court are regulated by the TID, 1971. Section
70 thereof reads as follows:-"70. The witnesses called for the prosecution shall be
subject to cross-examination by the accused person or
his advocate and to re-examination by the advocate for
the prosecution" (emphasis added).
Clearly this section does not exclude from liability to cross-
examination any child witness for the Prosecution. This is the
Principal authority for saying that child witnesses who give evidence
Not on oath should be cross-examined to test the veracity of their
evidence.
It would appear that the misconception arises from a view that
because accused persons are not cross-examined whenever they
make unsworn statements in their defense, child witnesses who do
Not take the oath should be treated in the same way. Such a view is
Oblivious of the peculiar protection given to an accused person in the
form of a right to make an unsworn statement with no liability to be
cross-examined.
By section 41 of the TID it is provided:
“Every person indicted for an offence shall be a
competent witness for the defense at every stage
of the proceedings
(a) to(c) -
(d) Nothing in this section shall affect any right
to the accused person to make a statement without
----provided.being sworn”.
The right of an accused person not to be cross-examined when
he makes a statement not on oath was originally enshrined in S$.210
of the Criminal Procedure Code Act as follows: -
"210 (1) At the close of the evidence in support of the
charge, if it appears to the court that a case is made out
against the accused person sufficiently to require him to
make a defense, the court shall again explain the sub-
stance of the charge to the accused and shall inform him
that he has the right to give evidence on oath from the
witness box and that, if he does so, he will be liable to
cross-examination, or to make a statement not on oath
from the dock".
When the TID was enacted in 1971, the above provisions were
Modified and re-enacted in sections 71 and 72 of the TID. In the
Process of the modification, and re-enactment, and for unknown
reasons, the expressions-----"from the witness box and that, if he
does so, he will be liable to cross-examination-----~ “and "-
the dock ----
the TID.
from
" were omitted in the present sections 71 and 72 of
Thus by section 71 (2) of the TID, it is provided: -
"when the evidence of the witnesses for the Prosecution
has been concluded and the statement or evidence, if
any, of the accused person before the committing court
has been given in evidence, the court, if it considers thatthere is sufficient evidence that the accused person or any
‘one or more of several accused persons committed the
offence, shall inform each accused person of his right,
(a) _ to give evidence on his own behalf;
(b) to make an unsworn statement;
(c) _ to call witnesses in his defense."
The relevant part of $.72(1) reads:-
Monn. --, the accused person may then give
evidence on his own behalf or make an unsworn
statement -----.
In spite of the absence of the expressions referred to above, it
is within our experience that the long established procedure
previously set out in S.210 of the Criminal Procedure Code is followed
in trials in the High Court. We may add that section 126(1) of the
Magistrates’ Courts Act, 1970 still retains provisions identical to those
in $.210 of the Criminal Procedure Code (supra). This clearly
illustrates the point.
Moreover in the provisions (section>41,71,72) it is clear that
evidence given on oath by an accused Person is distinguished from
his "unsworn statement” which is not described as evidence. On the
other hand, the unsworn testimony of a child witness is described as
evidence in all the relevant provisions.By virtue of S.116 of the Evidence Act and S.38 (3) of TID,
1971 children are competent witnesses and as such section$133 and
136 of the Evidence Act apply to them. They read as follows:-
By S.133, "The order in which witnesses are produced
and examined shall be regulated by the law and practice
for the time being relating to civil and criminal
procedure respectively, and, in the absence of any such
law, by the discretion of the court.
"136. (1) Witnesses shall be first examined-in-chief, then
(if the adverse party so desires) cross-examined, then
(if the party calling them so desires) re-examined".
We may add that the Oaths Act augments the view that the
unsworn statement in court by a child is evidence.
Sections 11 of the Oaths Act reads as follows:-
"11. (1) Anything to the contrary herein above in this
Act notwithstanding, if it shall appear to a court or
officer before whom an oath other than @ promissory
oath--
~-- iS to be taken or affirmation other than
@ promissory affirmation is to be made that the person
about to take the oath or make the affirmation ought not:-
(a) _ by reason of immature age; or
(b) for any other sufficient cause,to be allowed to take the oath or make the affirmation
as aforesaid, it shall be lawful for the court or officer,
if the court or officer shall in its or his free discretion so
think fit, to allow such Person, in lieu of taking the oath
or making the affirmation, to give evidence ------- a
without oath or affirmation.
(2) It shall be a requirement of the law in any case
falling within the provisions of the preceding subsection for
the court or officer to enter in the minutes of the proceed-
ings as the case may be, a note of the fact of the evidence
having been given or made without oath or affirmation,
and of the reasons therefor".
Furthermore in Uganda, all trials of cases are subject to the
Provisions of article 28 of the Constitution. This article is about fair
hearing. The virtue of fair hearing is that a Party in a cause should
be in a position to controvert his or her opponent either by contrary
evidence or by cross-examining a witness who gives evidence against
him so as to test the veracity of the witness who testifies, The article
Provides in part:-
"28. (1) In the determination of civil rights and obligations
Or any criminal charge, a person shall be entitled to a
fair, speedy and public hearing before an independent
and impartial court or tribunal established by law.(3) Every person who is charged with a criminal offence
shall:-
(a) tof) a
(g) be afforded facilities to examine witnesses and to
obtain the attendance of other witnesses before the
These provisions are intended to ensure that an accused
Person receives a fair trial. There can be no fair trial if an accused is
denied the right to cross-examine witnesses who are Produced to
testify against him or her. The essence of Cross-examining a witness
of the opposite Party is to test the Credibility of that witness.
We direct that all courts in this Country must follow the
guidelines we have given in this judgment. We also direct that the
Registrars and all officials Concerned should ensure that these
guidelines are circulated to all Courts and to the Director of Public
Prosecutions.
_—
Dated at Mengo this A2LE day of - |
J. W. N. Tsekooko.
JUSTICE OF THE SUPREME COURT
a RA AL OP2
A. N. Karokora.
JUSTICE OF THE SUPREME COURT.J. N. Mulenga.
JUSTICE OF THE SUPREME COURT
inyeihamba.
usmrce OF THE SUPREME COURT.
ELM. oo Kikonyogo,
JUSTICE OF THE SUPREME COURT.