Qn.

Corroboration is purely a creature of statute” Discuss

The term corroborative evidence was defined in the land mark case of R v Baskerville1 where
Lord Reading CJ stated that: “we hold that evidence in corroboration must be independent
testimony which affects the accused by connecting or tending to connect him with the crime. In
other words, it must be evidence which implicates him, that is, which confirms in some material
particular not only the evidence that the crime has been committed, but also the prisoner
committed it”. In Uganda vs. George Wilson Simbwa2, it was held that “Corroboration affects
the accused by connecting or tending to connect him with the crime”.

In other words it must be evidence which implicates him, which confirms in some material
particular not only the evidence that the crime has been committed but also that the defendant
committed it. For example, Grace, a witness, testifies that she saw Amos break in a shop at night.
Meanwhile, Allen a business woman in Kikuubo, another witness, states that she saw Amos later
in the day selling goods by the road side. Allen’s testimony confirms in some material particular
that Amos indeed obtained the goods he was seen selling from the shop he broke into. In short,
corroboration is evidence from other sources which supports the testimony of the complainant
and connects or tends to connect the accused person to the commission of the crime.

Section 1553 on evidence tending to corroborate evidence of relevant fact, states that when a
witness whom it is intended to corroborate gives evidence of any relevant fact, he or she may be
questioned as to any other circumstances he or she observed at or near to the time or place at
which the relevant act occurred, if the court is of the opinion that if the circumstance if proved,
would corroborate the testimony of the witness as to the relevant fact to which he or she
testifies”.

To some extent it is true that corroboration is a creature of the statute as I explain here under.
Perhaps, I should also state here that as a matter of judicial prudence, there are situations where
courts will demand evidence to be corroborated even where the law states otherwise. In that case
therefore it is not completely true that corroboration is purely a creation of the statute.

1
. (1916)2 KB 658 
2
. 1995 (SC) Criminal Appeal No. 37
3
. Evidence Act cap 6
Nonetheless a number of statutes make corroboration in certain instances a must. In this case,
courts must always get corroboration and as such cannot convict without it.

Section 104 provides: “No person shall be convicted or judgment given upon the uncorroborated
evidence of a person who shall have given his or her evidence without oath or affirmation”.
Section 12 requires all evidence in court to be sworn. Section 40(3) of the Trial on Indictment
Act cap 23 also provides that where in any proceedings any child of tender years does not in the
opinion of the court understand the nature of an oath, his evidence may be received provided that
the accused shall not be liable to be convicted unless such evidence is corroborated by some
material evidence in support thereof implicating him.

Under the Penal code Act cap 120, (PCA) there are a number of offences where evidence must
be corroborated before a conviction can be made. For example, Treason section 23, “No person
charged with treason or any such felony may be convicted except on his own plea of guilty or on
the evidence in open court of two witnesses at least to one overt act of the kind of treason or
felony charged or alleged5”. In Perjury under section 98, a person cannot be convicted of perjury
on the evidence of a single witness unless the evidence is corroborated.

Under the law court cannot grant a judgment on the basis of evidence from a Child of tender
years. Under section 1016 and section 40(3)7, the court must first establish whether the child is
possessed of sufficient intelligence to justify the reception of that evidence and understands the
duty of speaking the truth. In case the child is intelligent enough to give evidence but does not
understand the duty of speaking the truth, his or her evidence may be taken without taking the
oath but no conviction can follow unless, such evidence is corroborated by some other material
evidence in support of it implicating the accused. This position however was reviewed in
Uganda v Ngaswireki & Anor8 where court stated that “Whereas it is important for the trial
court to always warn and caution itself and of the dangers of relying on evidence of a child of
tender age, each case involving children should be considered based on its peculiar

4
. Oath’s Act cap 19
5
. PCA cap 120
6
. Magistrates court Act cap 16
7
. Trial Indictments Act cap 23
8
. (2018) (Criminal Appeal Number 3/2017) UGHCCRD 182
circumstances to avoid mistakes that can occasion a miscarriage of justice and injustice to
children who are victims of crime.

As noted earlier, corroboration is not purely a creature of the statute. In some situations, as a
requirement of judicial practice, there are a number of circumstances that require judicial
prudence. Courts have the discretion to decide if the evidence is reliable but must always caution
itself of the requirement for corroboration. For example, in case of accomplice evidence, court
can proceed and convict on the basis of uncorroborated evidence under section 1329. There is no
requirement for corroboration of accomplice evidence. However, in practice, court take
accomplice evidence as the worst form of evidence and hence require that it be corroborated
before it can be relied upon for judgment. The rationale for this is because accomplices are
regarded as untrustworthy by courts and hence can tell lies in order to shift guilt from her/him. In
Wilson Kinyua & another v R10, the court of appeal held that the confession of the second
appellant was accomplice evidence which needed corroboration. Court further held that
repudiated confession should not form the basis of conviction without corroboration. In
Rwebangira v Republic11 the Court of Appeal held that as a matter of established practice
accomplice evidence should not be acted upon in the absence of corroboration unless the court
has first satisfied itself as to the credibility of the witness.

Under sexual offences is another area where Courts require corroboration before judgment can
be given. This rule was laid in Chila v R12, where it was held that the judge should warn
assessors and himself of the danger of acting upon the uncorroborated evidence of the
complainant. Having done so, he may not convict in the absence of corroboration if he is
satisfied that there has been no failure of justice. The rationale for this according to Glanvill
William13, is that there is sound reason for this requirement because sexual offences are
particularly subject to the danger of deliberately false charge resulting from sexual neurosis,
fantasy, jealousy, spite, or simply a girls refusal to admit that she consented to an act of which
she is now ashamed. Corroboration under sexual offences can be on form of medical report,
state of the complainant such as distressed condition, injuries and torn cloths among others. In
9
. Evidence Act cap 6
10
. (1980) KLR
11
. (1975) 1 EA 94 (HTC)
12
. (1967) EA 722
13
. (1962) CLR 662
Ngobi v R14 the victim was found to be infected with the same strain of STD as the accused.
Court held that the medical evidence was good corroborative evidence that the accused had
defiled the girl.

This position has however also been reviewed and it is no longer mandatory that courts must
corroborate the evidence of a sexual offence victim before they can convict the accused. In
Ntambala vs Uganda15 the supreme court held that the draconian law that requires
corroboration of evidence of the victim in sexual offences portrays women as liars and untruthful
in relation to men which is centrally to Article 21, 31, and 33 of the Constitution of the Republic
of Uganda 1995 as amended. That the evidence of a victim in a sexual offence must be treated
and evaluated in the same manner as the evidence of a victim of any other offence as it is in other
cases. The test to be applied to such evidence is that it must be cogent. Consequently, a
conviction can be solely based on the testimony of the victim as a single witness, provided the
court finds her to be truthful and reliable. As stated by this court in Sewanyana Livingstone vs.
Uganda16 “what matters is the quality and not quantity of evidence.

The other area where courts demand corroboration as a matter of judicial prudence is in cases
involving a dying declaration. In Terikabi v Uganda17 the accused was convicted of murder on
the basis of a dying declaration. On appeal, it was contended that the dying declaration was
inadmissible as it did not deal with the cause of death. It was held that that there must be
satisfactory corroboration of dying declaration on which to determine a conviction.

In conclusion, the value of corroboration is rooted in the legal standard under criminal law of proof
beyond reasonable doubt that must be met by the prosecution in order to secure a conviction.
Consequently, the prosecution may find it necessary to adduce evidence from more than one witness in
order to prove their case beyond reasonable doubt. The test applicable to determine the nature and
extent of corroboration is the same whether it falls within the class of offences for which
corroboration is required under the statutes or the rule under judicial practice. Nevertheless,
section 133 of the Evidence Act provides that: “Subject to the provisions of any other law in force, no
particular number of witnesses shall in any case be required for the proof of any fact. Consequently, a
conviction can be solely based on the testimony of the victim as a single witness, provided the court finds
14
. (1953) 20 EACA 56,
15
. [2018] (Criminal Appeal No. 34 OF 2015) UGCA 83
16
. SCCA No. 19 of 2006)
17
. (1975) 1 EA 60 (CAK)
it to be truthful and reliable as stated by this court in Sewanyana Livingstone vs. Uganda. What matters
is the quality and not quantity of evidence.