Criminal Procedure Notes by ISAAC C. LUBOGO

SUIGENERIS
FACULTY OF LAW
BACHELOR’S OF LAWS (LLB) 2020/2021 ACADEMIC YEAR
NATURE OF CRIMINAL PROCEEDINGS
LECTURE NOTES:
COURSE DISCRIPTOR
PREPARED BY ISAAC C. LUBOGO
PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

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CHAPTER 1
THE NATURE OF CRIMINAL PROCEEDINGS
Meaning of Criminal Proceedings
Criminal proceedings are the means by which a person who is alleged to have
committed an offence is brought to justice. It is the machinery by which the Criminal
Law is enforced. Criminal Law is a branch of the law which defines the offence and
prescribes the punishments to be imposed against the offender in the event of his
being found guilty. A crime or offence is a public wrong which is prosecuted by the
State for the purpose of punishing the offender. Criminal proceedings can also be
referred to as criminal prosecutions. A criminal prosecution is concerned with the
proof of the charge, but it is not an inquisition.
Purpose of Criminal Proceedings
The purposes of conducting criminal proceedings are, mainly,
a) To give the prosecution an opportunity to prove their case against the

accused;
b) To enable the accused to exercise the fundamental right to defend
him/herself, if he/she so wishes;
c) To ensure that the accused is tried by an independent and impartial court;
d) To punish the accused if found guilty of the charge laid against him/her.
Difference between Criminal Proceedings and Civil Proceedings
a) The object of criminal proceedings is punishment, but the object of civil

proceedings is compensation.
b) Criminal Proceedings are initiated by or on behalf of the State, whereas civil

proceedings are initiated by private individuals, and not necessary by the
State.
c) The State controls criminal proceedings by controlling prosecutions, whereas

civil proceedings are a matter for private individuals.
d) Only the State can ordinarily withdraw or decline to prosecute a criminal case,
but in civil cases the plaintiff is free to withdraw his/her claim anytime.

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CHAPTER 2
INSTITUTION OF CRIMINAL PROCEEDINGS
Mandate and functions of the DPP in Criminal Proceedings:
1. Public Prosecutions:
Section 42(1) of the Magistrates Court Act lays down two ways, in which public
prosecutions may be instituted, namely,
a) By a police officer bringing a person arrested with or without a warrant

before a magistrate upon a charge: or
b) By a public prosecutor or a police officer laying a charge against a person

before a magistrate and requesting the issue of a warrant or summons.
Both of these methods are used in practice. The first is used when an accused
has been arrested by the Police so that he/she can be taken before the
magistrate with the charge laid against him/her. The second method is used
where an accused person has not already been arrested and the process of
the court is invoked to enable the police to apprehend the accused or force
him/her to appear in court. The first method, however, is more often used than
the second one.
2. Private Prosecutions:
Section 42(1)(c) of M.C.A provides that private prosecutions may be instituted

by a person other than a public prosecutor or a police officer, making a
complaint as provided in S.42(3) of M.C.A an applying for the issue of a
warrant or a summons in the manner laid down in the Section.
The detailed procedure for instituting private prosecutions is laid down in

subsection (3), (4), (5) and (6) of Section 41 of M.C.A. By virtue of Section
42(3) any person other than a public prosecutor or a police officer, who has
reasonable and probable cause to believe that an offence has been committed
by any person, may make a complaint thereof of a magistrate who has
jurisdiction to try or inquire into the alleged offence or within the local limits of
whose jurisdiction the accused person is alleged to reside or be. Every such
complaint may be made orally or in writing signed by the complainant, but if

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made orally shall be reduced into writing by the magistrate mid when so
reduced shall be signed by the complainant.
Upon receiving a complaint, the magistrate must consult the local chief of the
area in which the complaint arose and put on record the gist of such
consultation. Where the complaint is supported by a letter from the local chief,
the magistrate may dispense with the consultation and thereafter put such
letter on record. [S.42 (4)(a) of M.C.A].
After satisfying him/herself that prima facie the commission of an offence has
been disclosed and that such a complaint is not frivolous or vexatious, the
magistrate must draw up and sign a formal charge containing a statement of
the offence alleged to have been committed by the accused. [S.42 (4)(a) of
M.C.A].
When the charge has been drawn up the magistrate must issue either a
summons or a warrant as he/she deems fit, to compel the attendance of the
accused person before the court over which he/she presides or if the offence
alleged appears to be one which he/she is not empowered to try or inquire into
before a competent court having jurisdiction [Section 42(5)].
However, notwithstanding the provisions of Section 41(5) above, a magistrate

receiving any charge or complaint, may if they think fit for reasons to be
recorded in writing, postpone the issuing of a summons or warrant and may
direct an investigation or further investigation to be made by the police into
such a charge or complaint and report to the court which issued the direction.
Private prosecutions are mainly conducted in minor offences only. The police
investigate and institute prosecutions in most of the serious offences.
Private prosecutions cannot be conducted before the High Court. This view is
based, inter cilia, on the provisions of Section 136 of the Trial on Indictments
Act which provides,
“All prosecutions before the High Court shall be conducted by a

member of the Attorney General’s Chambers or by such other
person as the Director of Public Prosecutions may, by writing
under his hand, appoint.”
3. Proceedings in the High Court

Section 1 of the Trial on Indictments Act provides that no criminal proceedings
shall be brought under the cognizance of the High Court for trial unless the
accused person has been committed for trial to the High Court in accordance
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with the provisions of the Magistrates Court Act. Under part XIV of the said Act
the accused cannot be committed for trial unless the Director of Public
Prosecutions has complied with his duties under Section 168 of the MCA.
These duties are to:
a) Draw up the indictment in accordance with the provisions of the Trial on
Indictments Act (See Section 26 and 27 of the Act).
b) Prepare a summary of the case in accordance with the provisions of the
Magistrates Courts Act (See Section 168(1).
c) File a signed copy of the indictment and the summary of the case with the
court of Chief Magistrate, S.168(1).
After complying with the above, committal proceedings are held during which the
court commits the accused to the High Court for trial.
4. The Decision to Prosecute
In deciding whether or not to prosecute any person the DPP and the Police
enjoy ample discretion. But this discretion must be exercised judicially i.e.
upon sound reasons after serious consideration of the matter. There are not
set down rules to be followed in the exercise of this discretion to prosecute or
not to prosecute. But in practice the DPP takes into account the functions of
criminal law namely retribution prevention, deterrence, and reformation as well
as the public interest. A part from this policy whether or not to prosecute in a
particular case:
a) Whether the facts contained in a complaint or report disclose a crime or

offence known to the law. The offence must be written or defined and
punishment prescribed;
b) Whether there is sufficient evidence to support these facts to justify the

institution of criminal proceedings;
c) Whether there is legal excuse for the conduct of the accused to negative or
justify the offence and to warrant the abandonment of proceedings against
him/her;
d) Whether the case is more suitable for trial in the civil court for the reason that
the facts raise a question of civil right;
e) Whether the act or omission charged is of sufficient importance to be made a

subject of a criminal prosecution and is not frivolous or trivial;

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f) Whether there is any reason to suspect that the information or complaint is
inspired by malice or ill-will on the part of the informant/or complainant;
towards the accused, and is likely to result in an abuse of the judicial process;
g) Whether there is justification for dealing with the suspect or accused in
another way other than through criminal prosecution.
The decision to prosecute or not is important as it ensures that those reasonably

suspected to have committed offences are brought to trial by an impartial court,
while those suspected upon baseless and unfounded allegations are not put to
unnecessary inconvenience of undergoing the ordeal of a trial.
5. D.P. P’s Consent to Criminal Prosecutions
Quite a number of statutes creating offences provide that no prosecution for

the offence shall be instituted without the consent of the Director of Public
Prosecutions. A common formula is as follows: -
“A person shall not be prosecuted for an offence under this

Section without the written consent of the Director of Public
Prosecutions.”
The Penal Code Act itself has numerous offences which require the consent of
the Director of Public Prosecutions. A list of the statutes creating offences
which require the consent of the DPP is given below.
The necessity for this requirement appears to be based on policy grounds,

namely,
a) To secure uniformity in the Administration of the Act,
b) To prevent vexatious proceedings being instituted to gratify a prosecutor’s
personal feelings, and
c) Because the provisions of the Act are very wide and it might be desirable
for the DPP to act as a kind of sieve to ensure that acts which it was never
intended to bring within the ambit of the law are not made the subject of
serious criminal charges.
The fact that the consent is required to the institution of proceedings does not
mean that an accused person cannot be arrested and charged with an offence
by the Police. This is permissible because the proceedings which require the
consent to their institution are Court proceedings and not police investigations.
Court proceedings begin when the courses provided for in Section 42 of the
Magistrate Courts Act have been set in motion. Generally speaking, therefore,
when an accused person is taken before a court upon a charge, the Director
of Public Prosecutions must have given his/her written consent to the charge

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in order to make the prosecution valid. It is not enough that the prosecution is
conducted by a State Attorney, nor is it sufficient for the State Attorney to state
to Court that the D.P.P has agreed to the prosecution. The consent must be
written and not oral, and the State Attorney has no power to give the consent.
In practice the charge is drawn up and sent to the DPP/who appends his/her
consent just below the charge in these words:
“I consent to the above charge”
Where the consent is required but not obtained before the institution of Court
proceedings, the proceedings are a nullity ab initio and a conviction resulting
from such proceedings cannot be sustained.
Before leaving this question of consent, it may be noted here that the
provisions laying down the requirement for consent show some differences.
For instance, one set of provisions have a proviso to the effect that a person
charged with an offence may nevertheless be arrested or a warrant for his/her
arrest may be issued (mid he/she may be remanded in custody or on bail)
notwithstanding that the consent of the DPP has not been obtained, but no
further proceedings can be taken until his/her consent has been obtained.
(See Section 28 of the Prevention of Corruption Act Cap. 121 and S.12 of the
Official Secrets Act Cap.301. Nevertheless, a trial upon a charge without the
consent of the DPP will be a nullity.
Another variation appears under Section 49(5) of the Penal Code Act which
lays down the requirement for consent for the offence of wrongfully inducing a
boycott created by Section 49(1) of the Penal Code Act. The said Section
49(5) provides that:
“where any person is charged before any court with an offence under
this Section, no further proceedings in respect thereof shall be taken
against him without the consent of the Director of Public Prosecution
except such as the court my dunk necessary by remand whether in
custody or on bail or otherwise to secure the due appearance of the
person charged so, however, that if that person is remanded in custody,
he shall after the expiration of a period of fourteen days from the date
on which he was so remanded be entitled to be discharged from
custody on entering into a recognizance without securities unless within
period the Director of Public Prosecutions has consented to such
further proceedings as aforesaid”.
The main difference of this provision from the others is the limitation on the
period which an accused person can be remanded in custody to fourteen days
where the requisite consent has not been given. The only justification for this
limitation appears to be that the offence of wrongfully inducing a boycott is a
misdemeanor punishable with six months’ imprisonment, and it would be
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unfair to keep an accused in custody with the charge against the accused.
This assurance only comes when the DPP has consented to the prosecution.
Of course, where he/she does not consent, the charge against the accused
will be withdrawn and the accused discharged.
List of some of the Offences Requiring the Consent of the DPP
a) Penal Code Act: (Cap. 120)
Seditious offences S.40, [Consent is under S.43(2)]; Wrongfully inducing

boycott S.49(5); Incitement to violence S.51, [Consent is under S.51(2)]
Incitement to refuse or delay payment of tax S.52, (Consent is under S.52(2)];
Managing unlawful society S.57, [Consent is under S.57 (1)]; Offences relating
to unlawful society S.58, [Consent is under 8.57(1)]; Restrictions on officer
bearers S.56, [Consent is under S.57(1)]; Watching and besetting S.82,
[Consent is wider S.82(2)]; Offences by officers charged with administration of
property of a special character S.85, (Consent is under S.88); Abuse of office
S.87, (Consent is under S.88); False statements in certain judicial proceedings
S.95, [Consent is under S.95(3)]; Incest S.149, (Consent is wider S.151);
Publication of defamatory matter concerning a dead person S.180(1),
[Consent is under S.180(2)].
b) Companies Act: (No.2012)
Certain offences in connection with disposal of shares S.175(5), Consent by

the DPP is provided under S.175(7). Officers of Company failing to account for
loss of company’s property S.325, Consent of the DPP required under Ss(2).
c) Public Service Act (Cap 288)
Improper influence S.7 and 8, Improper disclosure, Consent by the DPP IS

provided for in S.9 of the Act.
d) Official Secrets Act (Cap. 302)
All offences under the Act S.12 provides for consent of the DPP to all
prosecutions under the Act.
e) Exchange Control Act (Cap. 171)
Offences punishable under Part II of the Fifth Schedule. (Para.6(1) to the Act
provides for consent of the DPP to all prosecutions.
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f) Trade Disputes (Arbitration and Settlement Act (Cap. 244)
Breach of termination of certain contracts S.17, (Consent S.23)
g) Animals (Prevention of Cruelty) Act (Cap. 39)

Experiments on living animals under S.11(1). Consent by the DPP is provided
in Ss (3) of S.11.
h) Prevention of Corruption Act (Cap 121)
All offences under the Act S.28 provides for consent of the DPP to all
prosecutions under the Act.
i) Presidential Elections Act 2005 (No.16/05)
All offences under the Act S.80 provides for consent of the DPP in writing. But
a person can be charged or arrested or remanded in custody without the
consent having been obtained first.
j) Parliamentary Elections Act 2005 (No.17/05)
All offences under the Act. Section 87 requires prior consent of DPP in writing
before prosecution. But a person may be arrested, charged or remanded
before the consent is obtained.

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NATURE, DIRECTOR OF PUBLIC PROSECUTIONS
POWER AND CONTROL
1. UGANDA VS SANTINA LAKOT [1986] HCB. 27

Held; Karokora, J:
(i) The case having been initiated by a private person that person ought to have
made a complaint on oath as provided by S.41 93) of the Magistrates’ Court
Act 1970. The complaint must be in writing and must be signed by the
complainant. Where it is made orally, it must be reduced to writing by the
Magistrate and signed by the complainant. This is a mandatory procedure
which must be complied with in all private prosecutions.
(ii) If the trial Magistrate is satisfied that Prima Facie the facts disclosed the
commission of an offence he must draw up or cause to be drawn up a formal
charge containing the statement of the offence alleged to have committed by
the accused and particulars of the offence.
In the instant case, there was no complaint made or it was made orally, it was
never reduced to writing and signed by the complainant. Therefore the
purported charge was drawn in contravention of the mandatory provisions of
S.41(3) of the Magistrate’s Courts Act and was null and void.
(iii) Whether or not the prosecution is private, the parties in Criminal proceedings
are Uganda for the prosecution and accused for the prisoner.
2. UGANDA VS. G. AKUTTI AND 2 OTHERS [1978] H.C. B 20

Held; Allen, J:
(i) When a state attorney writes on behalf of the Director of Public Prosecutions
and instructs the police prosecutor to withdraw the charge, he is not
delegating his powers to Police. The Police prosecutor has no discretion or
choice in the matter and is simply given instructions by the State Attorney and

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required to carry them out by informing the court of the decision to withdraw.
He is thus merely the instrument of the Director of Public Prosecutions via the
State Attorney for this purpose.
(ii)In cases where the Director of Public Prosecutions has decided under his
constitutional powers that a case should not be prosecuted, the court has no
discretion in the matter and it was therefore unnecessary and indeed improper
for the Magistrate in the instant case to write a ruling upon it. His only function
was to discharge the accused without delay.
3. KAMUDINI MUKAMA VS UGANDA CRIMINAL APPEAL NO.36 OF 1995

Supreme Court;
Whether a witness should be called by the prosecution is a matter within the
discretion of the prosecuting State Attorney and an appeal court will not interfere
with the exercise of that discretion unless for example it is shown that the
prosecutor was influenced by some oblique motive, however where the evidence
of an arresting witness is relevant, the prosecution should call that witness.

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CHAPTER 3
STRUCTURE OF COURTS OF JUDICATURE
1. The Hierarchy of Court
There exists in this country a unitary system of courts which have different grades
and powers. When an offence has been committed it must be tried or heard by a
court which has power or judicial system consists of single hierarchy of courts
which stand in this order:
a) The Supreme Court of Uganda,

b) The Court of Appeal of Uganda,
c) The Constitutional Court
d) The High Court of Uganda
e) The Chief Magistrates Courts,
f) The Magistrates Grade I Courts,
g) The Magistrates Grade II Courts,
2. The Supreme Court of Uganda
a) Establishment: This Court was established by the Constitution in Article

129(1)(a). It is the highest court in Uganda, and it is the final Court of
Appeal. (See Article 129-132 of the Constitution). The Judicature Act
No.13/96 provides for matters relating to the court.
b) Composition: The court consists of the following members:

i. The Chief Justice, and
ii. Not less than six Justices of the Supreme Court.
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The Court is duly constituted to hear a case when it is composed of an uneven
number, not being less than five, of the members of the court. (Article 131 of the
Constitution).
3. The Court of Appeal of Uganda
a) Establishment: The Court of Appeal is established by Article 129(b) of the

Constitution. The Judicature provides for matters pertaining to the Court.
b) Composition: The Court consists of the following members:

i. The Deputy Chief Justice, and
ii. Not less than seven Justices of Appeal
The Court is duly constituted to hear an appeal when it is composed of an uneven

number, not being less than three members of the court. (Article 135(1) of the
Constitution).
4. The Constitutional Court
This newly established Court deals with interpretation of constitution. It is part of

the Court of Appeal.
a) Establishment: The Court is created by Article 137 of the Constitution.
b) Composition: The Court is duly constituted when it is composed of five

members.
5. The High Court of Uganda
a) Establishment: The Court is established by Article 138 of the Constitution. It

is a superior Court of record and has unlimited jurisdiction throughout Uganda.
b) Composition: The Court is composed of the Principal Judge, and not less
than six Judges. The court is however duly constituted by a single judge when
hearing criminal cases, although the judge is required to sit with lay assessors
when trying an accused person on an indictment.
6. Magistrate’s Courts

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a) Establishment: The Magistrates Courts are established by Section 3 of the
Magistrates Courts Act. The three grades of Magistrates are Chief Magistrate,
Magistrate Grade I and Magistrate Grade II. Magistrate Grade III Courts were
abolished.
The powers and jurisdiction of a magistrate are determined by the grade of

appointment and the powers and jurisdiction conferred upon such grade by the
M.C.A.
b) Composition: A magistrate’s court is deemed to be duly constituted when

presided over by anyone magistrate lawfully empowered to adjudicate therein
(S.5 of M.C.A).
c) Assignment of Magistrates: Every magistrate is deemed to have been
appointed to, and to have jurisdiction in each and every magisterial area, but
may be assigned to any particular magisterial area or to a part of any
magisterial area by the Chief Justice. (S.6 of M.C.A).
d) Magisterial Areas; The Minister of Justice is empowered, after consultation

Magistrate. (See the Magistrates Courts Act (Magisterial Areas) Instrument
1997 as amended by the Magistrates Courts (Magisterial Areas Instrument
2004).
e) Qualifications of Magistrates: Chief Magistrates and Magistrates Grade I are

professionally qualified lawyers. Magistrates Grade II, are lay persons holding
a Diploma in Law from the Law from the Law Development Centre.
7. Family and Children’s Courts:

a) The Family and Children courts are established under Section 14(1) of the
Children Act. The courts are presided over by a Magistrate from the rank of a
Grade II and above, subject to the jurisdiction and hierarchy of the
Magistrates’ Courts.
8. Local Council Court
a) Establishment: Local Council courts were established by the Resistance

Committees (Judicial Powers) Act 1988, now referred to as (the Executive
Committees Judicial Powers) Act, Cap.8.
b) Composition: An Executive Committee Court consists of the members of the

executive committee of the village, parish and sub-county council, not being
less than five members.
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CHAPTER 4
CRIMINAL JURISDICTION OF COURTS
1. The Supreme Court of Uganda
The Supreme Court is a superior court of record. See Article 129(2) of the
Constitution.
a) Jurisdiction: This is an appellate court that deals with first and second
appeals from (i) The Court of Appeal and (ii) The Constitutional Court (first
appeals) – (Section 5 Judicature Act and Article 132 of the Constitution).
An exception is provided for in relation to third appeals that originate from
a Chief or Grade I Magistrate’s Judgment. The DPP or accused must first
obtain a certificate from the Court of Appeal, to enable him/her lodge a
third appeal with the Supreme Court [Section 6(5) of the Judicature Act].
b) Powers of Court: The court can uphold a decision, reverse or vary it; or give
a declaratory judgement. [Section 6(2) of the Judicature Act]. In addition,
the Supreme Court in hearing and determining an appeal has all powers
and authority of the court of original jurisdiction (Section 8 Judicature Act).
2. The Court of Appeal of Uganda

The Court is a superior court of record [Article 129(2) of the Constitution].
a) Jurisdiction: This is an appellate court dealing with first appeals from the
High Court decisions. (Section II Judicature Act and Article 134(2) of the

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Constitution) The court may also entertain second appeals from the Chief
Magistrates and Grade I Courts.
b) Powers of Court: The court may uphold (confirm) reverse or vary a decision
of the lower court. Furthermore, the court for purposes of determining an
appeal, shall have all powers, authority and jurisdiction of the court of original
jurisdiction (Section 12 Judicature Act).
3. The Constitutional Court
a) Jurisdiction: This is a court of original jurisdiction and (a) determines any

question relating to interpretation of the Constitution or (b) determines any
matter relating to any act or omission, or act of Parliament or any other law or
anything done under the authority of any law, that is inconsistent or in
contravention of any provision of the Constitution. [Article 137(1) and (3) of the
Constitution].
b) Powers of Court: The court can make a declaration, or grant an order for
redress or refer the matter to the High Court for investigation with a view to
determining the appropriate redress [Article 137(4) of the Constitution].
4. The High Court of Uganda
The court is a superior court of record [Article 129(2) of the Constitution].
a) Original Jurisdiction: This is the trial of cases in the first instances. The High
Court has jurisdiction to try any offence under any written law. (S.1 of the
T.I.A, and (Section 16 Judicature Act and Article 139 of the Constitution).
However, no criminal case can be brought under the cognizance of the

court for trial unless the accused has been committed for trial to the High
Court after holding preliminary proceedings. Normally the High Court tries
capital offences of murder, treason, aggravated robbery, rape, kidnapping
with intent to murder etc.
b) Sentencing Powers: The High court may pass any lawful sentence,
combining any of the sentences which it is authorized by law to pass. (S.2
of T.I.A).
c) Appellate Jurisdiction: The Court entertains appeals from decisions of Chief

Magistrates and Magistrates Grade I as well as second appeals from
Chief Magistrates’ Courts.
d) Other powers of the High Court:
i. Revisionary power under Section 48-54 of the C.P.C

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ii. Confirmation of sentences under Section 173 of M.C.A.
iii. Transfer of cases under S.41 of M.C.A.
iv. Reservation of Question of Law under Section 206 of M.C.A.
v. Hearing of Election Petitions [Art.140(1) of the Constitution].
5. Chief Magistrate’s Court:
a) Criminal Jurisdiction: The original jurisdiction of a Chief Magistrates Court

is governed by Section 161 (1) (a) of the M.C.A. This provision is to the
effect that a Chief Magistrate may try any offence other than that punishable
by death. The M.C.A further provides that Chief Magistrates cannot try cases
involving attempts to commit, aiding and abetting or inciting the commission
of that offence [S.161(2) M.C.A].
b) Sentencing Powers: A Chief Magistrate may pass any sentence authorized
by law. This means that he can pass a maximum sentence of imprisonment
for life. There is no limit on the amount of fine he may impose. (See
S.162(1)(a) of M.C.A.
c) Appellate Jurisdiction: A Chief Magistrate hears appeals from decisions of

Magistrate Grade II (S.204 (1) (b) of M.C.A). The court can also hear
appeals from the Family and Children Court [S.106(c) Children’s Act].
d) Supervisory Powers: In accordance with S.221 of M.C.A a Chief Magistrate

has general supervisory power over all magistrates within the area of his/her
local jurisdiction.
e) Transfer Powers: A Chief Magistrate may transfer a case from any

magistrate to him/herself or from one magistrate to another. (S.171 of
M.C.A).
6. Magistrate Grade I
a) Criminal Jurisdiction: A Magistrate Grade I has original jurisdiction and can

try any offence other than that punishable by death or life imprisonment. Such
prohibited offences are contained inSections 23,24,25,26,27,31,45,62,102(1)
(a), 123,129, 187, 188, 207,209,212, 213,214,215, 218,243, 260, 291, 332,
335(2) and 364 of the Penal Code. [S.161(10(b) of the M.C.A].
b) Sentencing Powers: A Magistrate Grade I sentencing powers are ten years

imprisonment or a fine not exceeding 1,000,000/= [One million shillings only]
or both such imprisonment and fine. *Section 162(1)(b) of M.C.A).

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7. Magistrate Grade II
The Magistrate Grade II may try any offence under any written law except the
offences and provisions specified in Schedule I of the M.C.A. The list is long, and
leaves him/her with power to hear mainly cases which are not serious and which
fit in his/her sentencing powers.
The sentencing powers of the Grade II are limited to a sentence of imprisonment

not exceeding three years [S.162(c)M.C. A].
8. Magistrate Grade III
This was the lowest class of magistrates. They used to try any offence under any
written law expect the offences specified in Schedules 1 and 2 of M.C.A and
those for Magistrates Grade II.
This class of magistrates has now been abolished.
9. Family and Children’ Court:
a) Criminal Jurisdiction: The Court has original jurisdiction to hear and determine
cases against children except those punishable by death, or where the
child is charged jointly with an adult. [S.15(1)(a) and 94 of the Children’s
Act]. For the time being the Magistrates’ Courts from Grade II and above
will sit as a Family and Children’s Court, and are subject to the criminal
jurisdiction laid down in S.161 of the MCA. In future, Magistrates will be
appointed specifically to manage these courts. The rules of procedure are
being drafted as well.
b) Sentencing Powers: The Magistrates will follow the jurisdiction laid down in
S.162(1) of the MCA. However, the terms of imprisonment are fixed for
certain age groups of children. Where a child is under 16 years of age, the
maximum sentence of imprisonment is 3 months. Where a child is above
16 years of age, the maximum sentence is imprisonment is 12 months. In
case of an offence punishable by death, the maximum sentence that a
court can give is 3 years imprisonment. [See S.95(g) of the Children Act.].
It is stated categorically, that no child shall be sentenced to corporal
punishment [S.95(9) of the C.A].
c) Appellate Jurisdiction: The court can hear appeals from the sub-county
local council committee court. [S.106(b) of C.A].
d) Remission of Cases: Where a court finds out that the person charged is a
child, that court must remit the case to the Family and Children’s Court.
[S.101(1)(2) of the Act].
e) Procedure:
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1) On conviction, court must first obtain a written report on the social
background of the child before sentencing the child to imprisonment
(detention) or making a probation order. [S.96(1) of C.A].
2) The words “proof of an offence” shall be substituted for “conviction”

and “order” for “sentence” in the court.
3) A child charged with an adult may be tried in the Magistrates court, if

the offence is triable by the Magistrates’ Court. [S.104(ii) of the Act].
Where the child is charged jointly with an adult in respect of an offence
punishable by death, the child shall he tried in the High Court.
[S.105(1) of C.A]. Furthermore, the High Court shall remit the file back
to the Family and Children Court for sentencing or making of an order.
[S.105(2) of C.A].
10. Local Council Courts (Executive Committee Courts):
(a) Criminal Jurisdiction
(i) In general, Local Council courts have jurisdiction over by-laws made by
local councils.
(ii) A village executive committee court has jurisdiction over affray (S.79 PC)
idle and disorderly persons (S.167 PC), common assault (S.235 PC)
actual bodily harm (S.2236), theft (S.254) criminal trespass (S.302) and
malicious damage to property (S.335 PC).
(iii) The village executive committee court is the court of first instance in
respect of those offences committed by children.
(b) Sentencing Powers:
The Court may order reconciliation, compensation, restitution, apology, or

caution.
The Court may order reconciliation, compensation, restitution, apology, or

caution.

text] Page 19
CHAPTER5
PLACE OF CRIMINAL TRIALS
1. General Authority of Magistrates
Every magistrate’s court has authority to cause to be brought before it any

person who is within the local limits of its jurisdiction and is charged with an
offence committed within Uganda, or which according to law may be dealt with
as if it had been committed within Uganda, and to deal with the accused
person according to its powers. (S.31 of M.C.A).
Where an accused person commits an offence in one area and is found in

another, the magistrate’s court within whose jurisdiction the accused is found,
has power to cause him/her to be brought before it, and send him/her in
custody to the court within whose jurisdiction the offence was committed to be
dealt with according to law. (S.32 of M.C.A). The Court should issue a warrant
to enable the offender to be detained conveyed to the court which has
jurisdiction to try the offence (S.33 of M.C.A).
2. Ordinary Place of Trial
Every offence must ordinarily be tried by a court within whose territorial

jurisdiction it was committed, unless transferred by appropriate authority. (S.34
of M.C.A).
text] Page 20
Where an offence is committed in several areas or in an uncertain place, e.g.
partly in one area or partly in another or continuously, the offender may be
tried in any of those areas (Sections 35, 36, 37 of M.C.A). Similarly, where an
offence is committed on a journey, voyage or flight, the offender may be tried
by a court having jurisdiction in any of the areas through which the offender
passed in course of that journey, voyage or flight (S.38 of M.C.A).
In doubtful cases, the High Court has power to decide by which court the
offence should be tried. Any such decision shall be final and conclusive,
except that it shall be open to the accused to show that no court in Uganda
has jurisdiction in the case (S.39 of M.C.A).
3. Court to be Open
The place in which any criminal court is held for purpose of trying any offence
is deemed to be an open court to which the public generally may have access
so far as the same can conveniently contain them. The court has power to sit
in camera or exclude any particular person from remaining in court. (S.40(1).
The court may sit on Sunday or on a public holiday if it is of the opinion that
the omission to do so would cause an unreasonable delay, expense or
inconvenience. [S.40(2) of M.C.A].
4. Power of the High Court to Change Venue (Transfer of Cases)
The High Court has power, under S.41 of M.C.A, to change the venue for trial
of a criminal case where it is made to appear to it, that any of the following
circumstances exist: -
(a) That a fair and impartial trial cannot be held in any magistrates’ court;
(b) That some question of law of unusual difficulty is likely to arise, or
(c) That a view of the place in or near which any offence has been committed
may be
required for the satisfactory inquiry into a trial of the same, or
(d) That an order under this Section will tend to the general convenience of
the
parties or witnesses, or
(e) That such an order is expedient for the ends of Justice or is required by
any
provisions of the M.C.A.
The High Court has power to make any of the following orders:
(a) That any offence be tried or inquired into by the court not empowered
to do so, but in other respects competent to inquire into or try the
offence, or
text] Page 21
(b) That any particular criminal case or class of cases be transferred from a
criminal court subordinate to its authority to any other such criminal
court of equal or superior jurisdiction, or
(c) That the accused person he committed for trial to itself
The High Court may act either on the report of the lower court or on an
application of a party interested or on its own initiative. S.41(2). Every
application for transfer should be made by notice of motion supported by an
affidavit. Where the D.P.P makes such an application, there is no requirement
that he supports the application by affidavit. (S.41(3)).
Any accused person who makes such an application must give to the D.P.P a
written notice of the application, together with a copy of the grounds on which
it is made. No order of transfer can be made unless at least 24 hours have
elapsed between the giving of such notice and the hearing of the application
[S.41(4)]. When the accused person makes any such application, the High
Court may direct him to execute a bond conditioned that he will, if convicted
pay the costs of the prosecutor. [S.41(5) of M.C.A].
5. Sittings of the High Court
For the exercise of its original criminal jurisdiction, the High Court holds
sittings at such places and on such days as the Chief Justice or the Judge
who is to preside may direct. [S.4(1) of T.I.A]. The Chief Registrar of the High
Court does ordinarily give notice before all such sittings commence. The High
Court sits continuously in Kampala and by practice at the headquarters of all
Magisterial areas while on circuit.

text] Page 22
CHAPTER 6
POLICE INVESTIGATIONS
1. Criminal Investigations in General
When a crime or an offence has been committed or is suspected to have been

committed, it is necessary to conduct investigations to ascertain the person
who has committed it and the circumstances under which he/she committed it.
Evidence must be assembled in this regard by the law enforcement agency
concerned or which has the duty to investigate the matter. It is after such
inquiry has been carried out that it is possible to decide,
(a) Whether any offence has been committed;
(b) Whether any person has committed it;
(c) Under what circumstances the offence was committed, and
(d) Whether the suspected person should be charged or prosecuted.
There are various law enforcement agencies which are charged with the duty
to investigate crime. Among these agencies are: the Uganda Police Force, the
text] Page 23
Local Administration Police Forces, the Chiefs, Law Enforcement Officers in
various departments like Customs, Immigration and Urban Authorities.
However, the main responsibility to investigate crime lies with the Uganda
Police Force, especially through its Criminal Investigation Department.
2. The Law Applicable
It should be pointed out at the outset that Police Investigations are conducted
in accordance with well defined rules of law and practice. Such rules are
essential to protect innocent citizens who, may have their rights and liberty
infringed during the course of investigations. Most of these rules are contained
in the enactments which govern criminal procedure in general. Those
specifically dealing with police investigations are, the Police Act (Cap 303), the
Evidence (statements to Police) Rules 1961 (S.1 43-1), the Evidence (Bankers
Books) Act (Cap 7) and the Criminal Procedure Code Act (Cap.116). Police
Standing Orders are also a useful guide to criminal investigations, especially
Volume 2 on crime and the Criminal Investigations Department.
3. General Powers and Duties of Police Officers
The Police are given various powers and duties under the Police Act. Section
21(1) of the Act lays down specific duties in respect of detection and
investigation of crime. It is provided that a police officer shall perform the
following functions of his or her office:
(a) To exercise the powers and perform the duties conferred upon him or her
by law;
(b) To obey and execute all orders and warrants lawfully issued to him/her by
any
(c) To be taken to be on duty at all times;
(d) To collect and communicate intelligence affecting the public peace;
(e) To prevent the commission of offences and public nuisance;
(f) To detect and bring offenders to justice;
(g) To apprehend all persons whom, he/she is legally authorized to apprehend

and for whose apprehension sufficient ground exists.
The other powers and duties are provided for in part V of the Police Act
(Sections 21-42). Some of the powers in respect of investigations are: the
power to search (S.27), power to take photographs or accused (S.30), power

text] Page 24
to institute criminal proceedings (S.31), power to inspect licenses (S.40) and
the duty to take custody of unclaimed property.
4. The commencement of Investigations
The process of investigation is brought into motion when a complaint or report

of a crime or alleged crime is made to the police. The report may be by word
or by letter. It may be made by the complainant or victim, or by his/her relative,
or by the LC official, a Chief or by another person totally unconnected with the
offence. It may also be made by the person who has committed the offence.
This is called “First Information” which is normally recorded on Police Form 86,
in the Police Station Dairy.
The Crime report is then passed on to the O/C CID a particular Police Station
who decides whether or not a case file should be opened and on what charge.
The decision is passed to one of the senior members of staff who is detailed to
investigate the complaint or report. Such officer will normally be the officer-in-
charge of the particular case. It is usual for the case to have under him officer-
in-charge of the case may in fact re-allocate the investigation of the case to
one of the investigating officers, depending on the nature and gravity of the
offence.
5. The Conduct of Investigations

(a) After being allocated the case for investigation, the investigating officer first
proceeds to the scene of crime to gather evidence. At the scene he/she
may: -
(i) Remove the body or take the victim to hospital;
(ii) Search the scene and collect exhibits;
(iii) Arrest the suspect and search his/her home;
(iv) Record statements from witnesses;
(v) Draw rough sketch plan of the scene.
(b) On his/her return to the Police Station the investigating officer submits the
case papers to the O/C CID, together with his/her report either in the dairy
or in a statement. The O/C CID decides whether the suspect should be
charged with any offence and if so what offence. The suspect is then
formally charged and cautioned and he/she may make a statement if
he/she so wishes. A charge sheet is then prepared and the accused is
taken to court for plea or in indictable offences to have the charge read to
him/her.
(c) If the accused pleads not guilty and investigations are complete, a hearing
date is fixed and witnesses are summoned to attend court then. The
accused can be remanded in custody or released on bail.

text] Page 25
(d) If the accused pleads guilty and he/she is convicted, investigations end
here and the case is completed and file put away.
(e) If the accused pleads not guilty and investigations are not complete, the
accused may be remanded in custody or on bail pending the completion of
inquiries. But a date for mention is fixed normally at 14 days interval when
the accused remand or bail may be extended. The police usually are
required to inform the court of the position of investigations let aside their
having to apply for adjournment of proceedings.
(f) The Prosecutor then returns the Police File to the investigating officer with
a minute in the dairy Section. The investigating officer continues to carry
out the investigations with a view to finalizing them as soon as possible.
This is done by recording necessary statements from material witnesses in

order to close up gap in the chain of evidence.
(g) When the investigating officer is satisfied that the necessary and possible
inquiries have been carried out, he/she submits the case papers to the
officer in charge of CID in that area or Police station stating his/her opinion
on the evidence assembled or recommending that the papers should be
submitted to the Director of Public Prosecutions or the Resident State
Attorney, for perusal and directions.
(h) After perusing the case papers the OC/CID decides whether the inquiries
are complete and whether the case requires to be submitted to the D.P.P
for his opinion. If the case does not require the attention of the D.P.P, the
OC/CID will decide on the final charge and subsequent prosecution. A
minute in the diary Section is sufficient to convey such a directive.
(i) Where the case requires the attention of the D.P.P because of its gravity or
complexity, a forwarding letter usually on P.F 16(a), will be drafted and
attached on the file. Such a letter will normally contain the brief facts of the
case, any lacuna in the evidence, and the nature of advice requested for.
(j) On perusing the Police File, the D.P.P or the R.S.A may direct the Police to
carry out further inquiries on specified matters. After those investigations
are completed the Police File may be re-submitted to the D.P.P or R.S.A
as the case may be, or retained by the Police to proceed with the
prosecution. When the file is re-submitted to the D.P.P or R.S.A the file is
perused again and decision on the charge and evidence is made. This
usually marks the end of investigation in the particular case, and
prosecution or preliminary proceedings follows.
6. Types of Criminal Investigation

text] Page 26
There are mainly three types of Criminal investigations conducted by the
Police. These are: -
(a) Investigation of serious crime by the Criminal Investigation Department.
(b) Investigation of minor offences conducted by uniformed Police.
(c) Investigation of traffic offences, conducted by the traffic police.
(a) Investigation of serious crime:
There is no doubt that most of the crime in the country is investigated by

officers of the Criminal investigation Department (CID). Unless the offence
is extremely minor, it is detected by these officers. Such offences are
registered in what is called the Criminal Record Book. It is for this reason
that most Police Files are numbered as CRB No…………………………
(b) Investigation of Minor Offences:
Petty crime is investigated by uniformed Police officers (as opposed to

officers of CID who wear civilian clothes). Such offences do not need much
skill in detection and are usually attached to a Section called MCB.
Examples of offences in this category are: common assault, affray, riots
and offences created by regulations and bye laws like failure to pay
graduated tax or possession of enguliwithout licence. These offences are
registered as MCB (Minor Contravention Book).
(c) Investigation of Traffic Offences:
Sometimes it is not realized that traffic offences have to be detected as

well. It is usually assumed that in committing an offence, there is no need
for further investigation. It is true that in a majority of cases the accused is
actually arrested by the Police while committing the offence. It is also true
that in many of these cases, the accused pleads guilty. But where the
accused pleads not guilty, unless a thorough investigation has been
carried out in the case, a traffic case may well be as difficult to prove as a
murder one. Witnesses have to be interrogated and the scene has to be
visited, and the vehicles concerned examined by the Inspector of Motor
Vehicles for a report as to their mechanical condition. This is in fact a “post-
mortem” report.
7. The Police File
A Police File is a confidential record of case papers pertaining to a case duly

reported to the Police and registered. It contains the relevant information
collected in the course of investigations of a particular complaint or case. This
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information, usually in the form of statements recorded from witnesses
interviewed or interrogated is what is “evidence on record”. The case papers
are usually enclosed or filed in a file cover marked as Police Form 2 or Police
Form 60.
8. Police Interrogations
Police interrogations are regulated mainly by the Police Act and the Evidence
[Statements to Police Officers Rules, 1961. (S.1.43-1)]. These Rules are
similar to what are called “Judges Rules” in England.
A Police officer is given power in the course of investigations to question any

person whether suspected or not, from whom one thinks he/she may obtain
useful information (Rule 1).
Where a Police Officer has decided to charge a person with an offence,

he/she must administer a caution before questioning or continuing to question
them. (Rule 4). A caution must always be administered whenever any
statement is taken from any prisoner. (R.5)1. A prisoner means any person
under arrest or in lawful custody. (R.2)
9. Statements of Witnesses
A statement of a witness is a record in writing taken from him/her giving

information whether useful or not with regard to a particular case being
investigated. The statement may be recorded by the witness him/herself or as
is the usual practice, by the Police. These statements usually contain the main
body of evidence in the particular case. They are usually recorded in narrative
form and in chronological order. The language used depends on the peculiar
facts of the situation in particular the language the witness and the Police
Officer can both understand. Where the Police Officer and witness cannot find
a common of communication then an interpreter is called in. All witness
statements are recorded in English.
10. Recording of Statements from Witnesses
The Evidence (Statements to Police Officers) Rules provide the procedure to

be followed in recording police statements. If a police officer decides that the
statement of any person should be taken down in writing and is likely to be
tendered in evidence in any proceedings then if there is any officer present
who is literate in the language being used by such person, the police officer
literate in that language should write down the statement as nearly as possible
in the actual words used by the person making the statement. [Rule 7 (a)].
If there is no police officer literate in the language being used by such person
the statement should be translated by some person with knowledge of the
text] Page 28
language being used and should be written down by the police officer in the
language into which it is translated, and as nearly as possible, and in so far as
the translation admits, in the words used by the person making the statement
[Rule 7 (b)].
Police statements are usually recorded on Police Form 2B. The statement
should contain the following particulars of the witness: full name, approximate
age, occupation, sex, nationality or tribe, residence, postal address, date and
time statement is made and Police Station where the statement is made.
After this introductory information, then the body of the evidence follows. The
investigator should extract the story from the witness in a simple manner and
preferably in the chronological order in which the events happened. If the
investigating officer is not familiar with the case or the facts of the case, he/she
will ask the witness to go over it again in the order in which he/she thinks
makes the story clear and credible. The recording officer is free to put
questions to the witness to clarify and simplify certain matters which are
material to the case. The recording officer should know why he/she is
recording the statement from the witness so that he/she may ask relevant
questions. A statement should prove or disprove something. It is important that
the recording officer understands correctly what the witness is saying and for
this reason it is preferable for the recording officer to speak to the witness
direct through some common language well spoken and understood by both of
them. Where this is not possible, a good interpreter is necessary.
The Statement should be written in simple language avoiding unspoken or

ambiguous words. Sentences should be recorded in direct speech and in first
person e.g “I saw X beat Y”. The statement should be based on admissible
evidence, cutting out all obvious hearsay evidence based on rumours.
Needless to say, it should contain evidence relevant to the charge or the
matter being investigated. The statement should be complete in the sense that
the witness should have said all that he/she knows about the matter, which is
relevant to the inquiry. If he/she has forgotten something, he/she should be
allowed to say it and it be recorded.
After recording the statement, it should be read over to the witness who
should be asked whether he/she agrees with it. The witness then signs or
thumb marks the statement. [Rule 8 of the Evidence (Statements to Police)
Rules]. The witness’s certificate is usually to this effect:
“Statement taken down, read over to me and it is true and correct”
Thereafter the recording officer counter signs the statement with a certificate
to this effect,

text] Page 29
“Statement recorded from the above witness, read over to
him/her and his/her signature witnessed by me at (Police
Station) on (date) and at (Time)”.
The recording officer should not only sign his/her name but should also print it
so that it is eligible. The officer may be required to prove his/her statement in
court when it desired to tender the statement in Court. Statements should then
be filed in the Police File in the order in which the witness’s evidence fits in the
whole story so that a chronological progression of evidence on record is
preserved. It is good practice to number the statements, and have an index of
witness’s statements at the beginning of the Police File.
Additional statements should be avoided except where the witness is being

asked to clarify an aspect of his/her evidence but not to repeat his/her story as
this might result into two or more inconsistent statements from the same
witness. While credence is normally given to the first statement when it is
presumed that the memory is still fresh, where there are several inconsistent
statements from the same witness on the same matter, it will be difficult to
decide which of the statements to believe, and the credibility of the witness will
be greatly weakened. Therefore, additional statements should be recorded
only on specific aspects of the witness’s story and not the whole story.
Additional statements are also made where a complainant wishes to withdraw
the allegation against the suspect/accused.
It should be noted that a witness who gives evidence inconsistent with his/her
police statement may be treated as a hostile witness (S.129 of M.C.A). The
credibility of any witness may be impeached by proof of his/her former
inconsistent statement [(S.154(c)] of Evidence Act). A previous consistent
Statement may support or confirm a witness’s testimony in Court (S.156 of
Evidence Act). In capital or other serious cases triable by the High Court,
police statements from the basis of the summaries of evidence, prepared by
the DPP which are used for committing the accused for trial by the High Court.
All this emphasizes the need for police officers to record these statements with
meticulous care and accuracy.
11. Chain of Evidence
A case is composed of various pieces of evidence whether direct or

circumstantial, which have to be linked together by proper investigation to
close any gaps that may be left open. One method of filling these gaps is to
complete the chain of evidence on a particular aspect of the evidence.
A good example of illustrate the chain of evidence is with regard to movement

of exhibits from the scene of crime to the Police Station. For instance, if a
spear is used in a homicide case the witness who first found it at the scene
should make a statement to that effect. Then the person who took custody of it
followed by the person who handed it to the Police or Chief for custody as an
text] Page 30
exhibit. The Police Officer or Chief who collected the spear should record
his/her statement to that effect and so should the officer to whom it was
handed at the Police Station for custody. This last officer is the one who
produces it at the trial. The other witnesses will merely identify the spear.
If there is a break in the chain of evidence regarding the movement of exhibits
or other evidence, the exhibit in question will not be admitted in evidence, or if
admitted, it will carry little weight because one cannot be sure that the exhibit
was not interfered with or is not a different one from the one in question.
12. Recording of Confessions
The Police have power to question any person whom they reasonably suspect
to have useful information regarding an alleged offence. This power extends to
suspects and accused persons. The posers of recording such statements are
contained in the Police (Statements to Police) Rules. These rules appear to
have been repealed by Section 24 of the Evidence Act as amended by Decree
25/71 which prohibited the admission of confessions made to Police officers.
Until the Minister makes new ones, the D.P.P directed the Police to follow the
existing rules with necessary modification as relates to recording of
confessions.
However, in 1985, Section 24 (now 23) of the Evidence Act was amended by
Act 2/85, which restored the power of the police to take confessions from
suspects and persons in custody. It is provided that no confession made by
any person whilst he/she is in the custody of a police officer shall be proved
against any such person unless it be made in the immediate presence of a
police officer of or above the rank of Assistant Inspector or a Magistrate.
[S.23(1) of Evidence Act].
It is further provided that a confession made by an accused person is

irrelevant if the making of the confession appears to the court to have been
caused by violence, force, threats inducement or promise calculated to cause
an untrue confession to be made. (S.24). However, if such confession is made
after the impression caused by any such violence force threat inducement or
promise has been fully removed, the confession is relevant. (S.25). Where the
confession leads to a discovery of some other facts or evidence, so much of
the confession or information which relates distinctly to the fact thereby
discovered may be proved against the accused (S.29). An example is where
an accused informs the Police, “I killed X with a gun and hid the gun in the
tree”. The statement that “I had the gun in the tree” will be admissible if the
gun is subsequently discovered in the tree mentioned.
The most important principle which emerges from this law governing the
admissibility of confession is that the confession must be made by the suspect
or prisoner, voluntarily, by his/her own free will, without use of violence or
force or threats of any kind or inducements or promises of concessions.
text] Page 31
During the trial the prosecution has to prove that the confession was made
voluntarily by the accused. Therefore, it is necessary when recording
confessions that the Police ensure that no pressure or inducement is exerted
on the accused. In so doing the Police should bear in mind that provisions of
Constitution of Uganda which provide that no person who is tried for a criminal
offence shall be compelled to give evidence against him/herself at the trial
[Article 28(11)]. No person is to be subjected to torture or inhuman or
degrading treatment (Article 24 of the Constitution).
The Evidence (Statements to Police) Rules which are our version of Judges
Rules have been designed to ensure that the Police record statements from
persons in custody in a manner that renders them voluntary. Failure to comply
with the provisions of these Rules is likely to render the confession
inadmissible in evidence since the Rules have the force of law.
The procedure for recording statements or confessions from persons in

custody can be summarized as follows: -
a) The prisoner should be charged with the offence or informed of the charge
likely to be preferred or the matter the police officer investigating (Rule 9).
b) The prisoner should then be asked if he/she wishes to say anything.
c) The prisoner should then be cautioned, as the Rules require that no prisoner
be questioned unless a caution has first been administered. (Rules 4 and 5).
The caution should be in this form “You need not say anything unless you
wish, but whatever you do say will be taken down in writing and may be given
in evidence.” (Rule 10).
d) The prisoner must not be cross-examined when he/she is making his/her

statement (Rule 6).
e) The Statement must be recorded in the language being used by the prisoner.
It may be his/her mother tongue or other language of his/her choice. It is the
Police officer literate in that language to write the statement in the words used
by the prisoner. If there is no police officer literate in the language being used
by the prisoner, then translation by another person should be employed and
the police officer records it down as translated (Rule 7).
f) It is undesirable for the police officers involved in the investigation to act as

interpreters, as well as recorders of statements from Prisoners.
g) The statement should be read back to the prisoner who should be invited to
make any corrections and to sign or thumb mark it (Rule 8).

text] Page 32
h) Where there are two or more prisoners charged with the same offence and the
statements are taken from them separately, the police officer may read the
statement of one prisoner to the other without inviting a reply. If a prisoner
wishes to make a reply he/she should be cautioned (Rule 11).
The correct procedure to be followed by Magistrates when recording confessions

also called extra judicial statement is prescribed by the Chief Justice vide his circular
dated 2nd March, 1973 can be summarized as follows: -
a) When an accused or suspect is brought to a Magistrate, the magistrate should

ensure that the Police or prisons officer escorting the accused leaves the
Chambers.
b) The Magistrate should ask the court clerk to sit in the Chambers so as to
guard against unnecessary allegations and to act as interpreter where
necessary.
c) The Magistrate should use court paper in recording any statement from the
accused (it has often been found that some magistrates use Police stationery
and allegations have been made by suspects/accused that the statement was
prepared by Police).
d) The accused should be informed of the charge against him/her if in fact has
been charged. If he/she has not been charged before, the Magistrate should
inform him/her of the allegation brought by the police as clearly as possible so
that the accused is in no doubt as to the nature of the charge which he/she is
likely to face and upon which the statement is likely to be adduced as
evidence at the trial.
e) Immediately upon being informed of charge, the magistrate should caution the
accused in the following terms: -
“You need not say anything unless you wish but whatever you do
say will be taken down in writing and may be given in evidence.”
f) Then the accused should be informed that he/she has nothing to fear or hope
for in making a statement before the Magistrates.
g) If the accused volunteers a statement then this should be recorded in the

language used by the accused and an English translation made of it. Both
statements should be read back to the accused who should signify his/her
agreement with the contents with his/her signature or thumb mark. Then the
Magistrate should counter sign both statements and date them.

text] Page 33
h) The accused and the original statements as well their translations, if any,
should be handed back to the Police officer for custody.
13. Reports of Experts

These may consist of:
a) Medical Reports;
b) Government Chemists’ Reports;
c) Government Analysts’ Reports;
d) Government Geologists’ Reports;
(a) Medical Reports
By far the largest number of reports of experts found in Criminal Proceedings

and in the Police, Files are Medical Reports. This is because most offences
today involve some violence and therefore injury to the person. Medical
evidence is normally recorded on Standard Police Forms, in particular, the
following: -
(i) Medical Examination Report: (Police Form 3)- This is used for
examination of accused or victim in cases like assaults, robbery and
rape. The nature of the harm is usually classified e.g. grievous harm.
(ii) Post-Mortem Report (Police Form 48b): This Form is used for
examination of the body in homicide cases. The injuries found on the
body and the cause of death is usually indicated by the doctor who
performs the autopsy.
(iii) Medical Examination of Persons Accused of Serious Crime- (Police

Form 24).
These usually contain finding as to age, injuries, and mental condition

of the accused. They are usually relevant in cases of homicide, rape,
defilement, robbery and assaults.
(b) Government Chemists’ Reports
These reports usually contain findings as to the examination of blood samples

found on persons or exhibits. They give findings as toBenzidine test for blood,
precipitation test for human origin and the blood group. This evidence is
mainly helpful as circumstantial evidence.
Government Chemists’ Reports are also helpful in cases of poisoning,

drunkenness, unlawful possession on Part 1 poisons, unlawful possession of
enguli, etc.
(c) Government Analysts’ Reports

text] Page 34
These reports are concerned with examination of questioned documents,
firearms, ammunition and fingerprints. Most of the questioned documents are
forged and usually the Government Analysts, will give his/her report containing
the findings and opinion, after making his/her examination and comparison.
With regard to firearms and ammunition, the ballistic expert normally gives
his/her report on whether or not the accused has a record of previous
conviction, in almost all cases where the accused is arrested and charged with
an offence. The report is made on Police Form F.P 45.
(d) Government Geologists’ Reports
These reports are rarely found in Police Files, but there are offences where
the reports will be essential. For instance, in a case of illegal mining of
restricted minerals, it will usually be necessary to prove by expert evidence
that the particular stone mined is the particular mineral whose mining is
prohibited.
14. Admissibility of Reports by Government Experts
Reports by Government Experts are admissible in evidence by virtue of

Section 103 of the M.C.A. It is provided therein that any document purporting
to be a report under the hand of a Government Ballistics expert or of any
Government Analyst or Government Geologist upon any matter or thing duly
submitted as to him/her for examination or analysis and report may be used as
evidence in any inquiry, trial or other criminal proceeding under the M.C.A.
The expression Government Analyst included a Senior Pathologist, a

Pathologist and the Government Chemist. The Court is given power to
presume:
i. That the signature or any such report by the expert is genuine and the
person signing it held office while supposed to hold at the time when
he/she held it; and
ii. That any matter or thing to which such report relates has if it is proved
to have been delivered at the office or laboratory specified in the report,
been duly submitted for examination or analysis.
The expert examination or analysis on which the report is based may be made
by the person signing the report or by any person acting under his/her
direction. S.101(3)of M.C.A.
The effect of these provisions is to make reports of Government experts

admissible in evidence without calling them as witnesses in court. In order to
enable the court to accept such reports without calling the experts, it is normal
practice to publish the names of Government experts in the official Gazette or
text] Page 35
to appoint them by Statutory Instrument. (S.1 91/73, S.1 92/73, S.1 33/74, S.1
85/74, S.1 77/71).
Where the expert is required for cross-examination or to explain his/her report,

he/she may be called as a witness instead of relying on his/her report only.
15. Identification Parades
Identification Parades are normally conducted by the Police during

investigations in an attempt to identify the accused or suspect with the offence
for which he/she is charged or suspected. The purpose of the parade is to find
out from the witness who claims to have seen the accused or suspect at the
scene of crime, whether he/she can identify the accused or suspect as the
person he/she saw previously at the scene of crime or actually committing the
offence. The witness must have identified the suspect previously otherwise the
subsequent identification at the parade will be of no evidential value.
Secondly, the witness should not have seen the suspect subsequent totheir
arrest, as his/her identification at the parade may be said to be based on the
latter identification, i.e. having seen the suspect after the arrest and not at the
time the crime was committed.
In order to ensure that identification parades are conducted fairly, the High
Court of Uganda has approved the following rules for conducting identification
parades. The Police officer conducting the parade is required to ensure the
following:
1) That the accused person is always informed that he/she may have an
advocate or friend present when the parade takes place.
2) That the officer in charge of the case, although he/she may be present,
does not carry out the identification.
3) That the witnesses do not see the accused before the parade.
4) That the accused is placed among at least eight persons, as far as

possible of similar age, height, general appearance and class of life as
himself or herself.
5) That the accused is allowed to take any position he/she chooses, and
that he/she is allowed to change his/her position after each identifying
witness has left if he/she so desires.
6) Care to be exercised that the witnesses are not allowed to

communicate with each other after they have been to the parade.

text] Page 36
7) Exclude every person who has no business there.
8) Make a careful not after each witness leaves the parade, recording
whether the witness identifies or other circumstances.
9) If the witness desires to see the accused walk, hear them speak, see
them with his hat on or off, see that this is done. As a precautionary
measure it is suggested the whole parade be asked to do this.
10)See that the witness touches the person he/she identifies.
11)At the preparation of the parade or during the parade ask the accused if
he is satisfied that the parade is being conducted in a fair manner and
make a note of his/her reply.
12)In introducing the witness tell them that they will see a group of people
who may or may not contain the suspected person. Don’t say, pick out
somebody” or influence him/her in any way whatsoever.
13)Act with scrupulous fairness, otherwise the value of the identification, as

evidence will depreciate considerably.
The latest amendments to both the M.C.A (Act 10/98) and the T.I.A (Act 9/98) give
the D.P.P power to obtain copies of any document in the custody of a bank for
purposes of carrying out any investigation into a crime. Bank officials are obliged to
immediately handover the documents to a Police officer not below the rank of
Inspector or the D.P.P [S.225(1) of the M.C.A and S.138(1) of the T.I.A].
Where the original of the document is required to inspection or carrying out of tests
on it, the Bank of officials shall deliver to the DPP or Police officer not below the rank
of Inspector the same without delay [S.225(2) MCA and S.138(2) TID]. All the above
documents shall be signed for the person receiving them. This Section has effect
notwithstanding the provisions of the Evidence (Bankers Books) Act [S225(6)]of
IMCA and S.138(6) of T.I.A.

text] Page 37
CHAPTER 7
INQUESTS
1. An inquest is an inquisition held by a Coroner to inquire into the death of a

person who has died in prison or police custody or under suspicious
circumstances. It is in the nature of a judicial inquiry held to establish the
circumstances under which such death occurred. Where the Coroner’s report
discloses sufficient evidence to incriminate any person into the death of any
person, the offender may be prosecuted. The law governing inquests is
contained in the Inquests Act, Cap.11.

text] Page 38
2. Power to hold Inquest
A coroner is a person empowered under the Inquests Act to hold an inquest

(S.1 of the Act). Every magistrate in Uganda is a Coroner by virtue of his/her
office (S.3(11). The Minister of Justice has power to appoint any fit person to
hold an inquest within any specified area. The appointment has to be made by
notice in the Gazette [S.3(3)].
3. When Inquest Held

Whenever a coroner is credibly informed that a person has died within their
jurisdiction and that there is reasonable cause to suspect that such person has
died in prison or in police custody or while confined in any lock-up or mental
home, he/she is required by S.4(1) of the Act to examine all the police and
other records reasonably available.
If the Coroner is of the opinion that death was due to natural causes or an
accident and was not accelerated by violence or by any culpable or negligent
conduct either on the part of the deceased or any other persons he/she must
record such opinion in the inquest book kept by every magistrates’ court.
[S.4(1)(a) of the Act].
If the Coroner is of the opinion that death might have been caused or
accelerated by the violence or any culpable or negligent conduct of any
person other than the deceased, he/she must hold an inquest, unless he/she
is satisfied that an inquest is not likely to be desired by the relatives of the
deceased and that no public benefit is likely to result from the holding of an
inquest in which case he/she must record such opinion in the inquest book.
[S.4(1)(c)].
In addition to the above instances, an inquest must always be held in the

following circumstances [S.4(2)]:
a) If the deceased died in prison or in police custody or while confined in any

lock-up or mental home;
b) If the deceased died as a result of a road traffic accident;
c) If the deceased died as a result of an accident in a factory or a mine;
d) In any case in respect of which he/she is directed by the High Court to

hold an inquest;
e) In any other class of case in respect of which the Minister by Statutory

Instrument has declared that inquests shall always be held.

text] Page 39
However, if the Coroner is made aware that criminal proceedings have been
or are about to be instituted against any person in respect of any death,
he/she is prohibited from holding an inquest until the proceedings are
concluded. After this the coroner will hold an inquest only if they think that
public benefit will result from so doing. If one is of contrary opinion, he/she will
record such opinion in the inquest book.
4. Place where inquest is held

An inquest must be held where the dead body is lying irrespective of where
death occurred. It is also the Coroner in whose jurisdiction the body is lying
that has power to hold the inquest. If the body in recovered from a river or any
water, the inquest is held by the Coroner within whose jurisdiction the body
was brought to land (S.7 of the Act). Where a corpse has been destroyed by
fire or is otherwise irrecoverable, an inquest can be held by the Coroner within
whose jurisdiction the death took place, notwithstanding the absence of the
body (S.7).
5. Power to order exhumation and to postpone burial

A Coroner has power to order exhumation of the body if it appears to be
necessary in the interest of justice (S.5). He/she has also power to prohibit the
burial or cremation of any body lying within his/her jurisdiction until an inquest
is held (S.8).
6. Power to order post-mortem examination

A Coroner has power to order a post-mortem examination to be conducted by
a government medical officer, or if one is not available, by a medical
practitioner within his jurisdiction. (S.11). The doctor them makes his/her
examination to determine the cause of death and may if he/she thinks
necessary dissect the corpse. He/she then fills in and ~forwards to the
Coroner, a report in the prescribed form (S.3).
7. Duty to notify death

Any person who finds a body in such circumstance as makes it appear that the
deceased’sdeath may have been caused or accelerated by violence or
culpable or negligent conduct of any person (including that of the deceased) is
bound, under penalty, to inform the nearest chief or officer in charge of a
police station, and such chief or officer is required to inform the nearest
Coroner. (S.9).
8. Duty of Police Officer

When a police officer received a report of death, he/she is required to go to
the place where the body in lying and make full investigation into the

text] Page 40
circumstances surrounding the death of the deceased and its probable cause.
He/she may also arrest any person reasonably suspected of having caused
the death. [S.10(1) of the (Act]. He/she is required thereafter, without delay to
send a report in the prescribed form to the coroner. [S.10(2)].
If there is no reason to suspect that the death may have been caused by an
unlawful act or omission, the police officer or chief has power to allow the body
to be buried, otherwise he/she sends the corpse to the nearest hospital or
suitable place [S.11(3)].
9. Procedure at Inquest
At every inquest the coroner is required to record on oath all evidence
available as to the identity of the deceased, and the time, place and manner of
death. (S.13).
The coroner may sit on a public holiday or on a Sunday [S.19(1)] and may
conduct the proceedings in private if he/she thinks it expedient in the interest
of justice so to do. [S.19(2)].
A Coroner is not bound by the law of evidence except those provisions of the
Evidence Act, which relates to the state and professional privilege. (S.18) A
coroner has power to summon witness and to compel their attendance by
warrant of arrest where necessary. [S.15(1)]. A medical practitioner who is
present at the execution of a death Sentence is an essential witness
[S.15(33)]. A Coroner may either record the evidence of a witness in the form
of a deposition or receive the affidavit of a witness duly sworn and attested
[S.17(1) and (2)]. If requested by a properly interested person, the Coroner is
required to summon and examine a particular witness whose affidavit is before
the court. [S.17(2)].
If once an inquest has been opened, the Coroner is of the opinion that
sufficient evidence has been disclosed for instituting criminal proceedings
against any person in connection with the death, he/she must stay further
proceedings until the criminal proceedings are concluded [S.21(1)]. He/she
then resumes the inquest unless he/she is of the opinion that no public benefit
will result thereby [S.21(2)]. If at any stage of an inquest the Coroner considers
that there are sufficient grounds to make a charge against any person in
connection with the death into which he/she is inquiring , he/she has power to
order a summons or warrant of arrest to issue to procure the attendance of
that person, before a Magistrates Court with jurisdiction (S.22 of the Act).
10. Coroner’s Finding
The Coroner is required to record his/her finding after the conclusion of the
evidence. The finding should contain the following, (S.23):
a) The name and sex of the deceased,
text] Page 41
b) The residence and occupation of the deceased,
c) The place where and when the deceased was found and in what
circumstances,
d) The date of the deceased’s death, and
e) The cause of death.
If the Coroner has grounds for believing that an offence has been committed
in connection with the death by a person unknown, he/she sends a report to
that effect to the Inspector General of Police (S.24). If the guilty person
remains undiscovered, the Inspector General reports to the Director of Public
Prosecutions. (S.25).
The finding of the coroner with the record of evidence is forwarded to the High
Court and the Registrar of the High Court is required to take charge of such
finding (S.26).
11. Powers of the High Court

On an application made by the Director of Public Prosecutions in the High
Court has power under S.27 of the Act, if satisfied that it is in the interests of
justice so to do, to make the following orders:
a) Order an inquest to be held touching on the death of any person or
b) Direct any inquest to be re-opened for the taking of further evidence and
the recording of a fresh verdict upon the proceedings as a whole, or
c) Quash any Coroner’s verdict substituting thereof some other verdict which
appears to be lawful and in accordance with the evidence recorded, or
d) Quash any quest with or without ordering a new inquest to be held.
12. Offences
It is an offence for any person to bury or cremate corpses without authority
(S.28). It is also an offence for any person to obstruct medical practitioners,
police officers or chiefs in the execution of their duties under the Act (S.29). All
offences under the Act are punishable by a fine not exceeding Shs.500.
CHAPTER 8
PREVENTION OF OFFENCES
1. Scope and Purpose of the Special Procedure

text] Page 42
Part II of the M.C.A lays down, in Section 12 to 30 the judicial procedure for
prevention of offences likely to be committed by certain persons within the local
jurisdiction of the court. The purpose of the procedure is to enable the law
enforcement agencies to arrest the situation before the offence is actually
committed. The person suspected to be likely to commit an offence is brought
to court and required to enter into a bond to be of good behavior and keep the
peace for a specified period.
2. Applicability of the Procedure
There are four instances when this special procedure for prevention of
offences in invoked. These instances are:
a) Where there is information that a person is likely to commit a breach of the
peace or disturb the public tranquility or do any wrongful act that may
probably cause a breach of the peace (S.12 of M.C.A.);
b) Where there is information that a person orally or in writing disseminates or
attempts to disseminate any seditious matter or any matter that is likely to
be dangerous to peace and order in Uganda or disseminates libel against
a judge. (S.13 of M.C.A.);
c) Where there is information that a person is taking precautions to conceal

his presence within the local jurisdiction with a view to committing an
offence or the person is a vagrant in that he/she has no ostensible means
of subsistence, nor can give a satisfactory account of him/herself (S.14 of
M.C.A.).
d) Where there is information that a person is a habitual offender, in that

he/she is by habit robber, thief, house-breaker, receiver of stolen property
or habitually protects or harbours such criminals, or is so desperate and
dangerous as to render his/her being at large without security, hazardous
to the community (S.15 of M.C.A.).
3. Procedure for Dealing with Suspected Persons

The jurisdiction in these cases is limited to Chief Magistrates and Magistrate
Grade I. The Magistrate will act normally on information given to him/her on
oath by the Police.
When a Magistrate is satisfied that it is necessary for the suspected person to

show cause why he/she should not be ordered to execute a bond for keeping
the peace or maintaining good behavior, he/she makes an order in writing to
that effect. (S.16). The order to show cause should contain,
a) The substance of the information received,
b) The amount of the bond to be executed,
c) The terms for which it is to be inforce and

text] Page 43
d) The number, character and class of sureties, if any required.
If a person in respect of whom the order is made is in court, it should be read

over him/her.
If the person is not in court, the Magistrate should issue a summons or a
warrant requiring him/her to appear before the court. (S.18). The summons or
warrant should be accompanied by a copy of the order to show cause; and
shall be delivered by the officer serving to the person served with or arrested
under the same. (S.19). In certain cases where sufficient cause is shown, the
Magistrate may dispense with the personal attendance of the person called
upon to show cause; and may permit him/her to appear by advocate (S.20).
When the person is brought in court, the magistrate is required to inquire into
the truth of the information (S.21). The magistrate may take such evidence as
may appear necessary. It is expressly provided that such inquiry should follow,
as nearly as practicable, the procedure prescribed in the M.C.A for conducting
trials and recording evidence in trials before magistrates’ courts. The
magistrate must give the person sufficient opportunity to show cause why
he/she should not be required to enter into the bond before the magistrate
decides that the bond is necessary.
If the magistrate decides that the bond is not necessary, he/she should make
an entry on the record to that effect and order the release of the person from
custody. (S.22).
4. Order to Execute bond or give security

If the magistrate finds that it is necessary to execute the bond, he/she should
issue an order to that effect (S.22). However, it is provided that,
a) No person shall be ordered to give security of a nature different from an
amount larger than or for a period longer than specified in the order to
show cause;
b) The amount of every bond shall be fixed with regard to the circumstances
of the case and shall not be excessive;
c) When the person is a minor, the bond shall be executed by his/her

sureties.
5. Contents of the Bond
The bond to be executed binds such a person to keep the peace or be of good
behavior, as the case may be (S.25). The term commences to run normally
from the date of the order for the execution of the bond, but the magistrate
‘nay for good reason, fix a later date, or if the person proceeded against is
serving sentence of imprisonment, the term begins at the expiration of the
sentences (S.24 of M.C.A.).

text] Page 44
6. Breach of the Bond
The bond is breached by such persons commission or attempt to commit or
the aiding, abetting, counseling, or procuring the commission of an offence
punishable with imprisonment wherever it may be committed, or in the case
where a person has been required to enter into a bond because of
disseminating or attempt to disseminate seditious matter, the further
dissemination or attempt to disseminate or the abetting of dissemination of
any seditious matter or any matter which is likely, in the opinion of the court, to
be dangerous to peace and order within Uganda.
When the magistrate receives information that the person who has executed
the bond has committed a breach of such bond he/she should, by summons or
warrant, require such a person and his/her sureties, if any, to appear before
him/her and inquire into the information upon which the summons or warrant
has issued. If the Magistrate is satisfied that there is breach of the bond,
he/she must declare the amount of the bond to be forfeited and adjudge the
persons bound thereby to pay the sum in which they are respectively bound.
The magistrate may remit all or part of the sum due. Payment of the sum
adjudged including any costs may be enforced or collected as if it were a fine
imposed after conviction (S.25).
7. Sureties
The magistrate may refuse to accept any surety offered on the ground that, for
reasons to be recorded, such surety is an unfit person (S.25).
If the person fails to give security he/she may be imprisoned until he/she gives
security or until the term of the bond expires, whichever is shorter (S.27). If the
magistrate imposes a term exceeding one year on a habitual offender and the
latter falls to provide the required security he/she is detained in prison under
warrant pending inquiry and decision of the High Court. The maximum term of
imprisonment for a habitual offender who fails to give security is three years.
Any surety for another person may at any time apply to the Magistrate to
cancel the bond and upon notice to and appearance of the person, for whom
the surety is bound, the magistrate must cancel the bond and order the person
to give a fresh security. (S.30).
8. Cancellation of Bond by High Court

The High Court has power at any time to cancel a bond for sufficient reasons.
(S.29 M.C.A.).
CHAPTER 9

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ARRESTS
1. Meaning of Arrest
An arrest is the deprivation of liberty for the purpose of compelling a person to
appear in court or other authority to answer a criminal charge or to testify against
another person. It usually involves the taking of the person arrested in custody
whereby he/she is detained or confined.
The law of arrest attempts to harmonise the competing social interests based on
the need to enforce the law on one hand and the need to respect individual
liberty on the other. While the need to enforce the law takes precedence over
respect for individual liberty, the law of arrest attempts to balance this
precedence by laying down provisions aimed at preventing abuse of power to
take into custody and emphasizing the desirability of keeping the use of force to
a minimum, as well as the need to make arrests a quick and effective means of
ensuring that those arrested are brought before a court of law to answer the
charges against them. Compensation is payable for unlawful arrest or detention.
[See Article 23(7) of the Constitution].
2. Method of Arrest
Section 12(1) of the C.P.C provides that in making an arrest the police officer
making the same shall actually touch or confine the body of the person to be
arrested, unless there be a submission to the custody by word or action.
If such a person forcibly resists the endeavour to arrest him/her or attempts to

evade the arrest, such police officer or other person may use all means
necessary to the effect the arrest. However, there is an important proviso
qualifying the use of force to the effect that nothing contained in this Section shall
be deemed to justify the use of greater force than is reasonable in the particular
circumstances in which it is employed or is necessary for the apprehension of the
offender. [S.12(2) of C.P.C]. In other words, only reasonably necessary force is
allowed to be used in order to effect an arrest. Excessive or unwarranted force is
unlawful.
The person arrested should not be subjected to more restraint than is necessary
to prevent his/her escape. (S.15 of C.P.C).
Where any person is charged with a criminal offence arising out of the arrest or
attempted arrest, by him/her of a person who forcibly resists such arrest or
attempts to evade being arrested, the court should, in considering whether the
means used were necessary or the degree of force used was reasonable for the
apprehension of such person, have regard to the gravity of the offence which has
been or was being committed by such person and the circumstances in which
such offence had been or was being committed by such person (S.15 of C.P.C).
Before use of force is employed, the arresting person should consider the
seriousness of the offence committed and the manner in which it was committed.
If the offence is grave and violence is involved, the arresting officer may be
text] Page 46
justified to use deadly force like a firearm to arrest the offender, or prevent
him/her from escaping.
3. Use of Firearms by Police Officers in Effecting Arrest

Police officers are authorized to use firearms in effecting arrest in certain
circumstances [S.16(1)] of the Police Act. Any police officer may use any arms
against any of the following persons:
a) Any person in lawful custody charged with a serious offence (felony) when
such person escapes,
b) Any person who, by force, rescues any person from lawful custody,
c) Any person who, by force, prevents the lawful arrest of him/herself or any
other person.
Furthermore, any person who attempts to do any of the above shall be deemed
to have committed the act [S.16(2)].
A police officer is not authorized to resort to the use of such arms to prevent the
escape of a prisoner unless he/she or any other person is in danger of grievous
body harm, and that he/she cannot otherwise effect such arrest or prevent such
rescue. [S.29(3)(C)].
4. Search on Arrest
The law authorizes the search of the person arrested as well as his/her
residence (S.6). The officer or other person making any arrest has power to take
from the person arrested any offensive weapons which he/she has on their
person, which must be delivered to the court or officer before which or whom the
officer or person making the arrest is required by law to produce the person
arrested. (S.29 of C.P.C).
In any person acting under a warrant of arrest or any police officer having
authority to arrest, has reason to believe that the person to be arrested has
entered into or within any place, the person residing in or being in charge of such
place must, on demand of the arresting person, allow him/her free ingress
(entrances) thereto and afford all reasonable facilities for a search therein
[S.3(1) of C.P.C].
If ingress to such place cannot be obtained as provided above, a person acting

under a warrant or a public officer has power to enter such place and search it by
breaking open any outer or inner door or window in order to gain entrance [S.3(2)
of C.P.C].

text] Page 47
5. Power to Break out for purposes of Liberation
Any police officer or other person authorized to make arrest has power to break
out of any house or place in order to liberate him/herself or any other person,
who having lawfully entered for the purpose of making an arrest is detained
therein (S.4 of C.P.C).
6. Powers of Arrest
The Criminal Procedure Code contains the major body of law regulating powers
of arrest. The Code gives powers of arrest to police officers, magistrates and
private persons. The Police Act also gives and regulates powers of arrest by
police officers. The Local Governments Act gives power of arrest to chiefs.
(S.69). Uganda Peoples Defense Forces Act 2005 under S.185 gives powers to
the public or member of the army to arrest any member of the armed forces
committing a service offence. Powers of arrest are spelt out in S.185 Act.
7. Arrest with Warrant
The most solid authority for effecting an arrest is a warrant issued by the court
under Section 56 of M.C.A or S.5 of T.I.A. A warrant of arrest must be in writing,
signed by the judge or magistrate issuing it, bearing the seal of the court, state
the offence charged and order the person to whom it is issued to apprehend the
person against whom it is directed and bring him/her before the issuing court.
[S.56(2) of M.C.A or S.6 of T.I.A].
A Warrant of arrest is issued normally on the ground that a charge has been laid
against any person by a public prosecutor or a Police officer, or has been drawn
up by a magistrate on the basis of a complaint, and that the warrant is required to
secure the appearance of the accused to answer the charge [S.42(5) of M.C.A].
A Warrant may be issued whether or not a summons has been issued, [S.54 of
M.C.A] e.g. to arrest a person who has refused to answer summons. A warrant
may be directed to a specific police officer or a chief, or generally to all police
officers or chiefs [S.58 of M.C.A or S.7 of T.I.A] and in some cases to private
persons (S.57 and S.58 of M.C.A). A warrant remains in forces until it is
executed or cancelled [S.56(3) of M.C.A or S.6(3) of T.I.A], and may be executed
anywhere in Uganda (S.62 of M.C.A or S.11 of T.I.A).
When executing a warrant, the police officer or other person to whom it is

directed is required to inform the person to be arrested of the substance of the
warrant. (S.61 of M.C.A or S.9 of T.I.A). Where the warrant is made outside that
jurisdiction, and more than twenty miles from the court, the arrested person
should be taken before the magistrate within the local limits of whose jurisdiction
the arrest was made (S.63 of M.C.A). The arrested person need not be brought
to court at all and must be released after the arrest, if the issuing magistrate has
text] Page 48
exercised his/her discretion under S.57 of M.C.A to authorize release with
sureties for later appearance, and the arrested person complies with the
conditions for his/her release.
Any invalidity in the warrant or irregularity in the arrest does not affect the validity
of subsequent criminal proceedings. (S.64 of M.C.A or S.12 of T.I.A). Evidence
seized or obtained consequent to an invalid arrest may be admitted in court
though the judge has discretion to reject evidence so obtained to prevent
prejudice or unfairness to the accused.
8. Arrest Without Warrant

Under Section 10 of C.P.C, a police officer is given power to arrest the following
persons without a warrant of arrest:
a) Any person whom he/she suspects upon reasonable grounds of having

committed a cognizable offence (i.e. one punishable with imprisonment for
one year or more or by a fine exceeding Shs.4,000 and offence under any
law provision of Chapter XVII of The Penal Code (Nuisances and offences
against Health and Convenience) or any offence for which under any law
provision is made for arrest without warrant, [S.10(a) of C.P.C],
b) Any person who commits a breach of the peace in his/her presence,
[S.10(b) of C.P.C],
c) Any person who obstructs a police officer while in the execution of his/her
to escape from lawful custody, [S.10(c) of C.P.C].
d) Any person whom he/she suspects upon reasonable grounds of being a

deserter from the Armed Forces of Uganda, [S.10(e) of C.P.C].
e) Any person who he/she finds in any highway, yard, or other place during
the night, and whom he/she suspects upon reasonable grounds of having
committed or being about to commit a felony [S.10(f) of C.P.C].
f) Any person who he/she suspects upon reasonable grounds of having been
concerned in any act committed in or at any place out of Uganda which if
committed in Uganda would have been punishable as an offence and for
which he/she is under the provisions of any written law, liable to be
apprehended and detained in Uganda, [S.10(g) of C.P.C].
g) Any person having in his/her possession without lawful excuse the burden
of proving which excuse shall be on such a person, an implement of
housebreaking, [S.10(h) of C.P.C].
h) Any person whom he/she has reasonable cause to believe a warrant of

arrest has been issued, [S.10(j) of C.P.C].

text] Page 49
i) Any person in whose possession anything is found which may reasonably
be suspected to be stolen property or who may reasonably be suspected
of having committed an offence with reference to such thing.[S.10(k) of
C.P.C].
A police officer in charge of a police station is given additional powers of arrest

without warrant under S.11 of the C.P.C and may arrest the following:
a) A person who is suspected to be preparing to commit a cognizable offence,

b) Any person who cannot give a satisfactory account of him/herself or has no
visible means of subsistence,
c) Any reputed or habitual robber, house breaker, thief or receiver of a stolen

property, or who by repute habitually commits extortion or is in the habit of
putting persons in fear of injury.
When any officer in charge of a police station instructs any subordinate officer to
arrest any person without a warrant, he/she must give the order in writing to the
subordinate officer specifying the person to be arrested and the offence or cause
for the arrest. (S.12 of C.P.C).
A police officer knowing of a design to commit any cognizable offence may

arrest, without orders from a magistrate and without a warrant, the person so
designing, if it appears to such officer that the commission of the offence cannot
otherwise be prevented (S.26 of C.P.C).
9. Arrest on Refusal to Give Name and Residence
When any person who has committed an offence in the presence of a police
officer or has been accused of committing a non-cognizable offence, refuses to
give on demand, his/her name and residence or gives a name of residence
which is false, he/she may be arrested by such officer in order that the name or
residence may be ascertained [S.13(1) of C.P.C].
When the true name and residence of such person have been ascertained,
he/she should be released on his/her executing a bond with or without sureties,
to appear before magistrate if so required [S.13(2) of C.P.C].
Should the true name and residence of such person not be ascertained within
twenty-four hours from the time of arrest, or should he/she fail to execute the
bond or, if so required, to furnish sufficient sureties, he/she should forthwith be
brought before the nearest magistrate having jurisdiction to entertain the case.
[S.13(3) of C.P.C].

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10. Arrest by Magistrates
Any magistrate may at any time arrest or direct the arrest in his/her presence,
within the local limits of his/her jurisdiction, of any person for whose arrest he/she
is competent at the time and in the circumstances to issue a warrant. [S.20 of
C.P.C].
When any offence is committed in the presence of a Magistrate within the local
limits of his jurisdiction, he/she may him/herself arrest or order any person to
arrest the offender and he/she may thereupon commit the offender to custody or
release him/her on bail. [S.19 of C.P.C].
11. Arrest of Army Personnel

Under the National Resistance Army Act No.3 of 1992, S.71 provides for arrest
of soldiers found committing a service offence or capital offences like murder,
treason and rape.
The ordinary arresting officer is the commanding officer of the unit to which the
suspect belongs, although if it is impracticable for him/her to effect the arrest, any
member of the Army of a rank equal or lower to that of the suspect may effect the
arrest [S.71(2)].
The Statute also gives powers of arrest for commission of a service offence to
the general public under S.71 (3).
Where an army officer is wanted to answer to charges of capital offences

specified in the Section, then any soldier may without a warrant, arrest that
person.
12. Arrest by Local Administration Police Officers
The Police Act, Cap.303 provides in S.67 that the Local Administration Police
4tgb Force shall be under the Local Government system but matters of
standardization and training are left to the Inspector General. It does not specify
the powers of arrest.
13. Arrest by Chiefs

The Local Governments Act Cap.243 provides in S.69(3) inter alia that it shall be
the duty of a chief within his/her area of jurisdiction to obey and execute orders
and warrants issued by any court of competent jurisdiction, assist in the
maintenance of law, order and security, assist in the prevention of crime and
public nuisance, and detect, apprehend and bring offenders to justice.
14. Arrest by Private Persons

Private persons have less powers of arrest than police officers. Any private
person may arrest any person who in his/her presence commits a cognizable
text] Page 51
offence (i.e. punishable with imprisonment for a maximum period of one year or
more) or whom he/she reasonably suspects of having committed a felony (A
serious offence punishable with imprisonment for three years or more). [S.15(1)
of C.P.C]. Persons found committing any offence involving injury to property may
be arrested without a warrant by the owner of the property or his/her servants or
persons authorized by him/her. [S.15(2) of C.P.C].
15. Duty of Public to Assist in Arrest

Every person is bound under Section 23 of C.P.C to assist a magistrate or police
officer reasonably demanding his/her aid in the following circumstances:
a) In taking or preventing the escape of any person whom such magistrate or

police officer is authorized to arrest,
b) In the prevention or suppression of a breach of the peace or in the prevention

of any injury attempted to be committed to any railway, canal, telegraph or
public property.
16. Recapture of Person Escaping
If a person is lawful custody escapes or is rescued, the person from whose

custody
He/she escapes or is rescued, may immediately pursue and arrest him/her in any
place in Uganda. [S.21 of C.P.C].
17. Disposal of Persons Arrested
A police officer making an arrest without a warrant must, without unnecessary

delay take or send the person arrested before a magistrate having jurisdiction in
the case or before an officer in charge of a police station [S.14 of C.P.C].
The Police Act also provides in S.13(1) that a police officer arresting a suspect
without a warrant shall produce the suspect, before a magistrate’s court within
48 hours unless earlier released on bond.
If this is not complied with, S.13(3) goes on to provide that any person may
apply to a magistrate within 24 hours, who shall order his/her release unless
charged.
Subsection (4) further provides for a magistrate to investigate any complaint of

torture of a suspect in custody of the allegation is proved to be true, the
magistrate shall order for the examination and treatment of that person and
whoever is responsible for the torture shall be charged. This Section is vital in
helping prevent torture in police cells and during interrogation.

text] Page 52
Any private person arresting any person without a warrant must without
unnecessary delay take or handover the person so arrested to a police officer
or in the absence of a police officer to the nearest police station [S.16(1) of
C.P.C].
It is the duty of the officers in charge of police stations to report to the nearest
magistrate within twenty-four hours the cases of all persons arrested without
warrant within the limits of their respective stations, whether such persons
have been admitted to bail or otherwise. [S.18 of C.P.C].
The Constitution further provides in Article 23 (4)(a)(b) that where a person is

arrested or detained he/she shall if not earlier released, be brought to court as
soon as possible but in any case, not later than forty-eight hours from the time
of his/her arrest.
This in effect amends S.18 of the CPC by giving the police another twenty-four
hours within which to charge the suspect in court or else the continued
detention is illegal; and could lead to civil action for false imprisonment.
18. Detention of Persons Arrested without Warrant

Police officers are given power to release on bond a person arrested without a
warrant, if it is not possible to take the person before a magistrate within
twenty-four hours. In this connection it is provided is Section (17(1) if C.P.C
that when any person has been taken into custody without a warrant for an
offence other than murder, treason or rape, the officer in charge of a police
station to which such person is brought may in any case and must, if it does
not appear practicable to bring such person before an appropriate magistrates
court within twenty four hours after he/she was taken into custody, inquire into
the case, and unless the offence appears to the officer to be of a serious
nature, release the person on his/her executing a bond, with or without
sureties, for a reasonable amount to appear before a magistrates court at a
time and place named hi the bond. Where any person is detained in custody
he/she must be brought before a magistrate as soon as practicable. However,
an officer in charge of a police station has power to discharge any person
arrested on suspicion on any charge when, after due police inquiry, insufficient
evidence is, in his/her opinion, disclosed on which to proceed with a charge.
Where a person has been taken into custody and it appears to the police
officer in charge of the police station to which such a person is brought that
the inquiry into their case cannot be completed forthwith, he/she may release
that person on executing a bond with or without sureties, to appear before a
magistrate’s court at a time and place named in the bond. [S.17(2) of C.P.C].
19. Preventive Action by the Police

text] Page 53
Every police officer may interpose for the purpose of preventing and shall to
the best of his/her ability prevent, the commission of any cognizable offences
(S.24 of C.PC.).
Every police officer receiving information of a design to commit any cognizable

offence shall communicate such information to the police officer to whom
he/she is subordinate, and to any other officer whose duty is to prevent or take
cognizance of the commission of any such offence. (S.25 of C.PC.).
A police officer may on his/her own authority interpose to prevent any injury
attempted to be committed in his/her presence to any public property,
moveable or immovable, or the removal of or injury to any public landmark or
buy or other mark used for navigation (S.27 of C.P.C.).
The Police Act provides under S.24 that a police officer can arrest and detain
person if he/she believes that action is necessary to prevent that person:
a) from causing physical injury to him/herself or any other person,

b) from suffering physical injury,
c) from causing loss or damage to property,
d) from committing an offence against public decency in a public place,
e) from inflicting harm or undue suffering to a child or other vulnerable
person.
Furthermore S.23 of the Act permits a police officer without a warrant or court
order to arrest a person if he/she reasonable cause to suspect that the person
has committed or is about to commit an arrestable offence.
A person arrested without a warrant must be produced before a magistrates’

court within 48(forty-eight) hours unless earlier released on bond. (S.25 of
Police Act).

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CHAPTER 10
SEARCHES
1. Definition of Search
A search may be defined as an inspection made on a person or in a building
for the purpose of ascertaining whether anything useful in criminal
investigation may be discovered on the body of the person or in the building
searched.
A search is carried out for the purpose of collecting evidence and exhibits
which may be used in a criminal trial. A search may be carried out in any place
whether it may be within premises or outside, or in a vehicle.
Normally, searches are carried out on the authority of search warrants issued
by the court, but police officers are empowered to search without warrant in
certain cases.
2. Search of Arrested Person
A police officer has power to search any person who has been arrested and to
take possession of anything found on such a person, which might reasonably
be used as evidence in any criminal proceedings. (S.16(2) of C.P.C.).
Whenever a person is arrested without a warrant, by a private person under a

warrant, and the person arrested cannot be released on bail, the police officer
making the arrest or re-arrest has power to search such a person and place in
safe custody all articles other than necessary clothing, which are found on
him/her. (S.16(1)(b) of C.P.C.).
A police officer or any person making the arrest has power to seize any
offensive weapons found with an accused person (S.9 of C.P.C.).
Whenever it is necessary to search a woman, the search must be carried out

by another woman with strict regard to decency. (S.8 of C.P.C.).
3. Search of Premises of Arrested Persons

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When a police officer has reason to believe that material evidence can be
obtained in connection with an offence for which an arrest has been made or
authorized, he/she may search the dwelling or place of business of the person
arrested, or of the person for whom the warrant of arrest has been issued, and
he/she has power to seize anything which might reasonably be used as
evidence in any criminal proceedings. (S.69 of M.C.A). If the person to be
arrested enters any building or place, the arresting officer or person has power
to enter the premises and search them (S.3 of C.P.C.).
4. Power to Stop and Search Persons and Vehicles

Any police officer has power to stop, search or detain any vessel, boat, aircraft
or vehicle where he has reason to suspect that anything stolen or unlawfully
obtained may be found. A police officer has similar powers in respect of any
person who may be reasonably suspected of having in his possession or
conveying in any manner anything stolen or unlawfully obtained. The police
officer is authorized to seize such a thing. (S.7(1) of C.PC.).
5. Search by Police Officers during Investigations
The Police Act provides the following in relation to searches:

Under S.26, a police officer may detained search a person or vessel, boat,
aircraft or vehicle in which he/she has reasonable grounds to believe that
stolen or unlawfully obtained property may be found; and may seize that
property. This is without prejudice to S.7, Criminal Procedure Code and 315 of
the Penal Code.
Where a police officer of the rank of Sergeant and above believes that
anything necessary for investigations in a case he/she is investigating may be
found in a place and must be secured immediately, he/she may search for that
thing after recording those reasons. Where practicable, he/she should conduct
the search in person: S.27(1) and (2) of the Police Act.
Where one is unable to carry out the search in person he/she can authorize (in
writing) an officer subordinate to him/her to carry out the search. However,
reasons must be recorded for delegating this job. The provisions of the CPC
that relate to searches apply to this Section: [S.27(3) and (4)]. Copies of the
record made under Sub sections (1) and (3) shall be sent to the nearest
magistrate and owner or occupier of the place searched, (Sub section 5).
Local leaders and the occupant of the place to be searched shall be permitted
to attend the search, (Sub section 6).
Notwithstanding the provisions of this Section or provisions of the CPC, no

police officer shall search any premises unless he/she has a search warrant
text] Page 56
issued under provisions of the CPC or has a warrant card in such form as shall
be prescribed by the Inspector General, (Sub section 7 of S.27).
The police officer must show his/her warrant card on request by the
owner/occupier of the premises to be searched, (Sub section 8). The search
shall be conducted in a humane manner with avoidance of unnecessary
damage or destruction to property, (Sub section 9).
Furthermore, a police officer lawfully on any premises or any other place may
seize anything he/she believes might be used as an exhibit in relation to an
offence being investigated [S.29(1)(a)] and he/she shall record this fact (of
seizure) as well as a description of the property and sign this record, together
with the occupant. A copy shall be retained by the owner [S.29(2) Police Act].
6. Search Warrant
A search warrant is a written authority given by a court ordering the search of
the premises, place or vessel named in the warrant for the purpose of seizing
anything therein which is required or material in the investigation of an
offence.
A search warrant must be signed by the magistrate issuing it, and must bear
the seal of the court. [S.56(1) and S.74 of M.C.A]. Every such warrant remains
in force until it is executed or until it is cancelled by the court which issued it
[S.56(3) of M.C.A].
7. Power to Issue Search Warrant

If it is proved on oath to a magistrate court that anything which is necessary to
the conduct of investigation into any offence is in a building, vessel, carriage,
box, receptacle or place, the court has power to issue a search warrant
authorizing the person whom it is directed to search such place for such a
thing. The place to be searched for is found, the person carrying out the
search is empowered to seize and carry it to the court which issued the search
warrant or some other court to be used as an exhibit. (S.70 of M.C.A).
8. Execution of Search Warrants

A search warrant may be directed to one or more police officers or chiefs
named therein or generally to all police officers and chiefs. However, where
the immediate execution of search warrant is necessary and no police officer
or chief is available, the issuing court may order any other person to carry out
the search. Where a search warrant is directed to more than one officer or
person, it may be executed by all or any one of them (S.58 of M.C.A).
A search warrant directed to a police officer may also be executed by any

other police officer whose name is endorsed upon the warrant by the officer to
text] Page 57
whom it is directed or endorsed. The position is the same as regards chiefs.
(S.50 of M.C.A).
Every search warrant may be issued and executed on a Sunday. It must be
executed between the time of sunrise and sunset, although the court has
power to authorize the police officer or other person to whom it is directed to
execute it at any hour. (S.71of M.C.A
9. Search of Closed Places
Whenever any building or other place liable to be searched is closed, any

person residing in or being in charge of such building must, on demand of the
officer or person executing the search warrant, and on production of the
warrant, allow him/her free entrance and exit from the building. The person in
charge of the building is also required to afford the person searching all
reasonable facilities for the search. (S.72 of M.C.A).
If entrance or exit is not allowed, the person executing the warrant is

authorized to break in or break out of the building [S.72(2) of M.C.A and
Section 3 and 4 of C.P.C].
If any person is found in or near the building to be searched, and is reasonably

suspected of concealing on his body any article for which a search should be
made, such person may also be searched. If the person is a woman, she must
be searched by another woman. [S.72(3) of M.C.A and Section 8 of C.P.C].
10. Detention of Property Seized
When anything is seized and brought before a court, it may be detained until
the conclusion of the case or the investigation. Reasonable care must be
taken for its preservation. [S.73(1) of M.C.A].
If any appeal is made, or if any person is committed for trial, the court may
order it to be further detained for the purpose of appeal or the trial, S.72(2). If
no appeal is made, or if no person is committed for trial, the court must direct
such thing to be restored to the person from whom it was taken, unless the
court sees fit, or is authorized, to dispose of it otherwise. [S.73(3) of M.C.A].

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CHAPTER 11
EXTRADITION
1. Meaning Extradition:
Extradition is the process by which a fugitive offender may be surrendered
from the country of his refuge (the requested state) to the country of trial
where he is alleged to have committed the offence (the requesting State). The
process is based on diplomatic relationship between the states concerned.
Normally extradition is based on an Extradition Treaty between the two States.
It is also generally governed by principles of international law.
2. Types of Extradition:
In Uganda extradition is governed by the Extradition Act, Cap.117. Under this
Act, extradition may be granted under two categories. The first category is
under Part 1 of the Act where extradition agreement exists and the second
category is under Part II which is based on reciprocal backing of warrants,
mainly for neighbouring country in East Africa.
3. Countries where Extradition Applies:

Where an arrangement has been made with any country to surrender any
fugitive criminal, the Minister may by statutory instrument, order that Part I of
the Act shall apply in case of that country S.2 (1). The countries to which this
Part applies are listed in the Extradition (Arrangements) (Enforcement)
Instrument 1996 (S.103/66). A country to which Part 1 of the fugitive offenders
Act 1881 of the United Kingdom applied immediately before the
commencement of this Act shall be a country to which Part 1 applies. (S.4(I).
4. Commencement of Extradition Proceedings:

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A requisition for surrender of a fugitive criminal of any country who is in or
suspected of being in Uganda shall be made to the Minister by diplomatic
representation or consular officer of that country. The Minister may upon a
requisition being made signify in writing to a magistrate that the requisition has
been made and require the magistrate to issue warrant for the arrest of the
fugitive criminal. The Minister may refuse to make the order if the offence is
one of political character. (S.8).
5. Procedure before the Magistrate:
When apprehended, the fugitive offender must be brought before the

magistrate within twenty-four hours. (S.9(30)). When a fugitive criminal is
brought before a magistrate, he or she must hear the case in same manner
and have the same jurisdiction and powers as nearly as possible as in the
case of criminal jurisdiction. (S.10(1).
If the magistrate finds sufficient evidence, which would justify the committal for
trial of the prisoner accordingly to Uganda law, i.e a prima facie case, then the
magistrate shall commit him for trial. Where the magistrate is not satisfied with
the evidence, he or she must order the prisoner to be discharged.
6. Right to apply for Habeas Corpus:
A prisoner is not to be surrendered until after the expiration of 15 days as he

has a right to apply for an order to habeas corpus. After the expiration of 15
days or after decision of magistrate on application for habeas corpus, the
Minister may by warrant order the fugitive criminal to be surrendered to a
person authorized to receive him or her on behalf of the country from which
the requisition was received. (S.12).
7. Restrictions on surrender of Criminals:
There are the following restrictions on surrender of fugitive criminals:
a) A fugitive criminal cannot be surrendered if the offence in respect of which

his surrender is demanded is one of political character (the political offence
exception). (S.3(a));
b) A fugitive criminal cannot be tried in a country where he is surrendered

except for the offence for which he was extradited. (The specialty rule).
(S.3(b);
c) A fugitive offender who is undergoing trial for an offence other than the one
for which his surrender is requested or who is serving sentence in Uganda
shall not be surrendered until after his acquittal or expiration of sentence.
(S.3 (c)).
text] Page 60
d) A fugitive offender shall not be surrendered until after the expiration of
fifteen days after his committal (S.3(a);
e) A fugitive of criminal shall not be surrendered unless the offence allegedly

committed in the requesting country also constitutes an offence in Uganda
(the double criminality rule);
f) A fugitive criminal can only be surrendered for an extraditable, offences

listed in the Schedule to the Act which include murder, wounding, rape,
kidnapping, drug offences, falsification of currency, forgery, embezzlement,
fraud, bribery, piracy and slave dealings. (See Schedule).
8. Reciprocal Backing of Warrants:
The second category of extradition is governed by Part II of the Act under

“Reciprocal Backing of warrants.” This part applies to any country in respect of
which the Minister, having regard to reciprocal provisions under the law of that
country, he orders by Statutory Instrument that this Part will apply to that
country subject to conditions specified the order. (S.16 of Extradition Act).
The Minister specified countries under the Extradition (Reciprocal Backing of

Warrants) Order S.1 235/64 (See S.I 114-1) which applied Part I to Kenya and
Tanzania. (See also S.I 60/67 and SI 129/69).
9. Commencement of Extradition Proceedings under Part II:
The process of extradition under this Part commences with a warrant being
issued for the apprehension of a person accused of an offence punishable by
law in that country who is suspected of being in Uganda. (S.17(1)).
Thereafter a requisition for endorsement of the warrant is made in the first

instance by a diplomatic representative, consular officer or other appropriate
authority of the country concerned to the Minister who transmits it to a
magistrate to proceed with the process of extradition (S.22).
The Minister must not transmit a requisition and a warrant shall not be issued
where the offence committed was one of a political character. (S.23).
10. Endorsement of Warrant:
If the magistrate in Uganda is satisfied that the warrant was issued by the
proper authority, he or she will endorse the warrant by signing it. The warrant
authorizes all persons named in the endorsement and all those to whom the

text] Page 61
warrant was originally directed and every police officer, to execute the warrant
by arresting the person named in it, and bringing him or her before that or any
other magistrate (S.17).
11. Provisional Warrant:
A magistrate may also issue a provisional warrant for the arrest of any person
before the endorsement of a warrant issued by a requesting state. A person
so arrested must be discharged unless the original warrant is produced and
endorsed within a specified time. (S.19).
12. Return of Prisoner:
A magistrate may order the prisoner to be returned to the country in which the
warrant was issued if he or she is satisfied:
a) That the warrant is duly authenticate and was issued by lawful authority;
and
b) On oath that the prisoner is the person named in the warrant.
The magistrate will order the prisoner to be delivered to the custody of the
persons to whom the warrant is directed, and conveyed to that country where
the warrant was issued. (S.18).
13. Discharge of the Prisoner:
Where a prisoner is not conveyed out of Uganda within one month after the
order of his return, a magistrate may upon application by the prisoner, where
no sufficient cause is shown, order that the prisoner be discharged from
custody. Such an order or refusal to make it, is appealable to the High Court.
(S.20).
14. Refusal to Return Prisoner:
The magistrate has also power to refusal to order the return of the prisoner, if
it appears to him or her that due to the trivial nature of the offence or the
application for return is not made in good faith or in the interests of justice, and
having regard to the distance, the facilities of communication and all the
circumstances of the case, it would be un just and oppressive to return the
prisoner until after the expiration of a certain period. The magistrate may
discharge the prisoner or grant him bail so that the prisoner is not returned
until the expiration of a period named in the order. Such an order is also
subject to appeal. (S.21).

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CHAPTER 12
CHARGES AND INDICTMENTS
1. A charge is a written statement containing the accusation against a person

alleged to have committed an offence. When a charge is filed for trial before
the High Court it is called an indictment. The difference between a charge and
an indictment is one of form and not substance. Both charges and indictments
must contain a statement of the offence committed and the particulars of the
offence. The legal provisions for framing of charges and indictments are
identical under the Magistrate Courts Act and Trial on Indictments Act
respectively.
A charge or indictment is necessary in every proceeding and a trial without it is

bad in law because an accused would be prejudiced in his/her defense if they
did not know what case they are facing.
The Primary responsibility for the correctness of the charge or indictment lies
on the prosecutor, but it is the duty of the trial magistrate or judge to ensure
that charge or indictment is correctly prepared and laid.
2. Contents of Charge or Indictment
The basic requirement as regards content of a charge or indictment is that it

must contain a statement of the specific offence or offences with which the
accused person is charged, together with such particulars as may be
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necessary for giving reasonable information as to the nature of the offence
charged i.e. contents (Section 85 of M.C.A or S.22 or T.I.A). S.88 M.C. A and
S.24 T.I. A provide rules for the framing of charge sheets and indictments
respectively.
3. Title of Criminal Proceedings
In all criminal proceedings the prosecution must be designated as “Uganda”

since a crime is a wrong against the State and the proceedings are instituted
in the name of the State. Hence if John Mukasa is charged with an offence,
the title to proceedings will be “Uganda = Versus= John Mukasa”.
4. Form of Charge
The rules governing the form of a charge are set out in S.88 of M.C.A. The
main rules are as follows:
a) A count of a charge must commence with a statement of the offence

charged, called a statement of offence;
b) The statement of offence must describe the offence briefly in ordinary
language, avoiding as far as possible the use of technical terms, and
without necessarily stating all the essential elements by an enactment e.g.
statute. It should contain a reference to the Section of the enactment
creating the offence;
c) After the statement of the offence particulars of such offence should be set
out in ordinary language in which the use of technical terms is not
necessary; and
d) Where a charge contains more than one count, the counts should be
numbered consecutively.
A charge should be signed by the officer preferring the charge before filing it in
court as a means of authenticating it. After it has been presented to court, the
Magistrate should sign it before calling upon the accused to plead it.
An ordinary Police charge sheet with one count would be in this form:
UGANDA POLICE
Police Form 53
Station: CPS, Kampala
Date: 30/7/05
CRB: 1345/05
CHARGE:
UGANDA ______________________
PROSECUTOR
text] Page 64
VERUS
JOHH MUKASA, 25 years, Muganda, Cleaner at John Supermarket, Old

Kampala, resident Kalerwe in Kampala District.
STATEMENT OF OFFENCE
ASSAULT OCCASIONING ACTUAL BODILY HARM, contrary to Section 236

of the Penal Code Act.
PARTICULARS OF OFFENCE
JOHN MUKASA, on the 29th day of July 2005, at Capital Bar, in Wandegeya
Trading Centre, in Kampala District, unlawfully assaulted Mary Akello thereby
occasioning her actual bodily harm.
_______________________________
__________________________
Signature of Officer Preferring Charge Signature of Magistrate
5. Form of Indictment
All indictment must be made in the name of the DPP and must be signed by
him/her or the Deputy DPP, or a State Attorney, or State Prosecutor as
authorized by S.135 of T.I.A. (See S.25 of T.I.A).
In accordance with S.65 of T.I.A, every indictment must bear the date when it
is signed. It should commence in the following form, making any modifications
as may be necessary to adapt it to the circumstances of each case:
“In the High Court of Uganda at
The …………….day of…………………..2005…………… At the

sessions holden at…………………….. on the ……………..day
of……………………..2005……………..
The court is informed by the Director of Public Prosecutions that

……………………….....is charged with the following offence ( or
offences)”
6. Summary of the Case
This is a document which accompanies the indictment and contains

information relevant to particulars of the offence. It is merely an outline and
text] Page 65
replaces the old summary of evidence which was a detailed layout of the
evidence of all the prosecution witnesses; as per their police statements as
well as details of exhibits.
Summary of the case is provided for in S.168A (1) and (2) of MCA and shall
contain such particulars as are necessary to give the accused person
reasonable information as to the nature of the offence with which he/she is
charged. Summaries of the case are presented at committal in the
Magistrates’ Court and are accompanied by the indictment. The heading
therefore is in the Chief Magistrates’ Court of the area.
A duly prepared indictment would be in the following form:
THE REPUBLIC OF UGANDA
INDICTMENT
IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA
The 30th day of August 2005
HIGH COURT CRIMINAL SESSION CASE NO………………..
At the Sessions holden at…………….……on the …………..day of

……………..,
The court is informed by the Director of Public Prosecutions that JOHN
MUKASA is charged with the following offence:
STATEMENT OF OFFENCE
Murder contrary to Section 183 of the Penal Code.
PARTICULARS OF OFFENCE
text] Page 66
JOHN MUKASA on or about the 20th day of January 2005 at Naguru village, in
the Kampala District, unlawfully killed one PETER KAFERO.
F.M.WAMANYI
Senior State Attorney
For: DIRECTOR OF PUBLIC
PROSECUTIONS
TO: JOHN MUKASA
TAKE NOTICE that you will be tried on the above indictment on

the………….day of…………..at the session holden at…………………at 9:00
O’clock in the afternoon or soon thereafter.
_____________________
DEPUTY REGISTRAR
A duly prepared summary of the case would be in the following form:
THE REPUBLIC OF UGANDA
IN THE CHIEF MAGISTRATE’S COURT OF BUGANDA ROAD

SITTING AT BUGANDA ROAD
COURT CRIMINAL CASE NO………..
UGANDA ::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR

VERSUS
JOHN MUKASA :::::::::::::::::::::::::::::::::::::::::::::
ACCUSED
SUMMARY OF THE CASE

(Under S.168A MCA)
The Director of Public Prosecutions will adduce evidence to show that:

On or about the 20 th day of January 2005 at Naguru Village in Kampala
District, the deceased PETER KAFEERO was seated at a bar called
Nalongo’s, drinking beer, at 5:00p.m. When the accused JOHN MUKASA
came and joined him. He ordered the deceased to buy him beer but the
deceased said he had no money.
text] Page 67
The accused got angry and started abusing the deceased calling him a miser.
People gathered around including STELLA NALONGO, BURHAN WASSWA
and JOSEPH ONEN. The accused then boxed the deceased, jumped on him
and started strangling him. WASSWA and ONEN tried to pull him off but the
accused over powered them. Eventually with the help of a mob that had
gathered, they managed to pull off the accused. The deceased was breathing
faintly. He was rushed to Mulago Hospital but was pronounced dead on
arrival.
Medical evidence will be adduced to show that a post mortem was carried out
and the cause of death was asphyxia by strangulation.
The prosecution will contend that the accused was properly identified as it was
broad day light and he was well known before.
Where upon the prosecution will pray the accused person be convicted as
charged.
Dated at Kampala this............................day of……………..20…..
F.M.WAMANYI
Senior State Attorney
7. Offences of Doing or omitting to do different Acts in the alternative etc
Where an enactment creating the offence states the offence to be the doing or
omission to do any one of any different acts in the alternative, or doing any
act in different acts in the alternative, or doing any act in different capacities or
with any one different intentions or rates, any part of the offence in the
alternative act, or intentions or other matters stated in the indictment may be
stated in the alternative in the count charging the offence [S.88(b)(i) of M.C.A;
25(b)(i) T.I.A].
It is not necessary to negative any exception or exemption or qualification to

the operation of the enactment creating the offence when drafting the
particulars of the charge [S.88(b)(ii) of M.C.A; 25(b)(ii) T.I.A].
8. Description of Property
By virtue of Section 86(c)(i) of M.C.A, the description of property mentioned in

the charge should be in ordinary language so as to indicate with reasonable
clearance the property referred to, and it is necessary to name the person to
whom it belongs, or the value of the property [See .25(c)(i) of T.I.A].

text] Page 68
But in practice, it is usual to state the owner of the property concerned and its
value. The ownership helps to identify the article and the value assists the
court in assessing the appropriate sentence.
Property belonging to a public establishment or department may be described

as the property of the Government [S.88(c)(iii) or S. 25(c)(iii) of T.I.A]. Coins,
bank notes and currency notes may be described as “money” [S.88(c)(i)v of
M.C.A or 25(c)(iv) of T.I.A].
9. Description of Accused Person
The description of an accused person or a person to whom a reference is

made in the charge sheet or indictment should be such as is reasonably
sufficient to identify him/her without necessarily stating the correct name if
such a person is unknown (e.g. of the victim) such a person may be described
as “a person unknown”. [S.88(d) of M.C.Aor S.25(d) of T.I.A].
In practice, however, the full details of the accused person are stated in the
charge if they are known. Where some of the accused persons are unknown,
the accused may be charged with them and the particulars may state that “A B
with others unknown” of “CB with others still at large”. The particulars of
accused are not given in the indictment.
10. Particulars as to Date and Time
It is sufficient to describe any place, time, thing, matter, act or omission in a

charge in ordinary language and in such a manner as to indicate with
reasonable clearness the place, time, thing, matter, act or omission referred to
[S.88(f) of M.C.Aor S.25(f) of T.I.A].
The time of the offence need not be stated unless the time is relevant to the
commission of the offence. For instance, in charge of burglary the time must
be stated because it can only be committed at night.
If the date is unknown the practice is to specify a date as being on a day

unknown between two dates, rather than merely between those dates. This
could be stated as follows: “On a date unknown, between 1 st July, 2005 and
30th August, 2005.”
However, where a person is charged with any offence i.e.embezzlement,

causing financial loss, stealing by agent under Sections 268, 269 and 271 of
the P.C., it is sufficient to specify the gross amount of the property in respect
of which the offence is alleged to have been committed, and the dates
between which the offence is alleged to have been committed without
specifying particular items or exact dates. [S.88(c)(v) of M.C.A or S.25(c)(v) of
text] Page 69
T.I.A]. For instance, the particulars would read as follows: “SY between the
20th June, 2005 and the 31 st December, 2005, being a servant of A.B, at
Kololo Super Market, in Kampala District, stole a sum of Shs.550,450 the
property of A.B.”
11. Statement of Intent
It is not necessary to state in the charge, intent to defraud, deceive or injure

any particular person where the enactment creating the offence does not
make such an intent to defraud, deceive, or injure a particular person an
essential ingredient of the offence. [S.88(g) of M.C.Aor S.25(g) of T.I.A].
12. Documents
Where a document or instrument is referred to, it may be described in the

particulars of the offence by any name or designation by which it is usually
known, without setting out a copy thereof [S.88(e) of M.C.Aor S.25(e) of T.I.A].
Therefore, it is sufficient to refer to a document as “a cheque leaf” or “a driving
permit” etc.
13. Age of Accused or Victim
The age of the victim is normally irrelevant and need not be stated in the
particulars of the offence. However, the age of the accused should be stated
in the particulars, if known.
It is necessary to indicate the age of the victim in the particulars in the
following instances: -
a) In a charge of defilement (S.129 of PC), procreation (S.131 of PC) and
child stealing (S.159 PC) the age of the victim should be stated in the
particulars.
b) Where the victim and indecent assault is a girl under the age of
eighteen years, her age should be stated in the particulars because it is
no defense under S.128(2) of the PC that she consented to the act of
indecency.
14. Marital Status
It is not normally necessary to state the marital status of the accused or the
victim. But marital status should be indicated in the particulars of the following
offences:
a) Adultery by a man under S.154(1) of P.C: the woman with whom a man
has sexual intercourse must be a married woman, and this fact must be
stated;

text] Page 70
b) Adultery by a woman under S.154(2) of P.C: the woman with whom a
man has sexual intercourse must be a married woman, and this fact
must be stated;
c) Elopement by a man or a woman [Under S.127(a)(1) and (2)] cannot be
committed unless the accused elopes with a married woman or a
married man, and this fact of marital status should be stated.
15. Previous Convictions
Where a previous conviction of an offence is stated in a charge, it should be

stated at the end of the charge by means of a statement that the accused
person has been previously convicted of the offence at a certain time and
place without stating the particulars of the offence. [S.88(h) of M.C.A or
S.25(h) of T.I.A]. This will be necessary in cases where there is an enhanced
punishment in the event of the subsequent conviction e.g. under S.273 of P.C
or S.168(a) of P.C.
16. Figures and Abbreviations

Figures and abbreviations may be used for expressing anything which is
commonly expressed thereby [S.88(l) of M.C.A or S.25(l) of T.I.A].
17. Specimen Charges

There are no particulars forms prescribed in the Magistrates Courts of Act
which are required to be used in drafting charges. But there are several
publications, which contain specimen charges for guidance in framing
charges. Some of these books are Specimen charges for Common
Offences in Uganda by F.M.Ssekandi and Police Standing Order Vol.2 and
criminal investigations and Prosecution, by Justice B.J.Odoki.
18. Joinder of Counts
Any offences, may be charged in the same charge if the offences charged are
founded on the same facts or form or are a part of a series of offences of the
same or similar character [S.86(1) of M.C.A or S.23(1) of T.I.A].
Where more than one offence is charged in a charge, a description of each

offence so charged should be set out in a separate paragraph of the charge
called a “count” [S.86(2) of M.C.A or S.23(2) of T.I.A].
Where before or during the trial the court finds that the accused person may
be embarrassed in his/her defense by being charged with more than one
offence in the same charge, or it is so desirable for another reason, the court
may direct that any of the offences be tried separately by separate trials of any
such counts. [S.86(3) of M.C.A].

text] Page 71
It is a rule of practice that no other count should be joined to a count of murder
or manslaughter except where the additional count is based precisely on the
same facts as the more serious charge.
19. Joinder of Persons
This is sometimes referred to as joinder of offenders under S.87 of M.C.A or

S.24 of T.I.A., the following persons may be joined in one charge or indictment
and may be tried together:
a) Persons accused of the same offence committed in the course of same

transaction;
b) Persons accused of an offence and persons accused of assisting or

attempting to commit such offence;
c) Persons accused of more offences than one of the same kind (i.e
offences punishable with the same amount of punishment under the
same Section of the Penal Code or any other written law) committed by
them jointly within a period of twelve months;
d) Persons accused of different offences committed in the course of the

same transaction;
e) Persons accused of any offence under Chapters XXXVI to XXX of the

Penal Code (which refer to offences of stealing, robbery, burglary and
false pretenses) may be charged with persons accused of receiving or
retaining such property stolen
f) Persons accused of any offence relating to counterfeit coins wider
Chapter XXXVI of the Penal Code and persons accused of any other
offence under that chapter relating to the same coin, or of abetment or
attempting to commit any such offence.
20. Duplicity of Charges
A charge which is duplex is defective and may be bad in law if the defect
cannot be cured by correction or otherwise. If two or more offences are
included in one count, the charge is bad for duplicity because only one offence
can be charged in a count, the charge is bad for duplicity because only one
offence can be charged in a count. Two or more offences may be charged in
one charge provided they are contained in separate counts. For instance, if
an accused has assaulted two persons at the same time, the accused may be
charged with the assault of the two persons, but the assault on each person is
to be charged in a separate count because assaulting any person is a
complete and separate offence even, if committed in the same transaction.
Similarly, if two accused persons assault a person on two different occasions,
text] Page 72
they cannot be charged in one count or same charge sheet, but in separate
charge sheets so that each accused will be tried separately. Similarly, in cases
of rape or defilement, where 2 or more persons rape or defile a girl or woman,
they will be charged in separate counts.
It is therefore clear that a charge is bad for duplicity if it contains a misjoinder

of counts or offences, or a misjoinder of persons or offenders.
21. Alternative Charges
An alternative charge is an additional count laid against the accused in the

same charge where the prosecutor is not certain which offence the facts of the
case will support. The matter is then left into the hands of the court to decide
which of the two counts the evidence supports. An accused cannot be
convicted on both the main count and its alternative; it has to make a choice
on one of them if a conviction is to be entered and then no finding is made on
the other count. The accused can of course be acquitted of both if the
prosecution fails to prove any of them.
The commonest example of alternative charges is found in cases of theft with

alternative count of receiving stolen property.
22. Unnecessary Charges
(a) Attempts: Where a person is charged with having committed an offence it

is not necessary to add a count for attempt to commit the same offence
since he/she can be convicted of attempt. [S.146 of M.C.A or S.23(2) of
T.I.A].
(b) Accessory after the fact: When a person is charged with an offence
he/shemay be convicted of being an accessory after the commission of the
offence without being so charge, in accordance with (S.147 of M.C.A and
S.89 of T.I.A).
(c) Minor and cognate offence: where a person is charged with an offence
and facts are proved which reduce it to a minor cognate offence, though
he/she was not charged with it. [Section 145 of M.C.A and S.87 of T.I.A].
The offence must be both “minor” that is of less gravity mid “cognate”,
that is, of the same kind, nature, genus or species.
For instance, a person charged with murder may be convicted of

manslaughter, a person charged with robbery may be convicted of theft,
and a person charged with assault occasioning actual bodily harm may be
convicted of common assault.

text] Page 73
(d) Substituted convictions: Substituted conviction arises where a court
convicts or finds the accused guilty of an offence different from the one
with which he/she was charged. The M.C.A lays down instances in which
such convictions may be made. In such situations it is not necessary to
include in the charge the offence for which the accused can be convicted
even if not charged with it, provided it is proved against him/her. The
relevant provisions are contained in Section 150-155 of M.C.A and Section
90-93 of T.I.A.
Person Charged with Can be convicted of
1. Rape c/s S.124 P.C - Indecent assault- S.128 of PC

(S.150) MCA - Defilement of girl-S.129 of PC
S.132 P.C – Procuring defilement by threats
S.149 of P.C – Incest
2. Incest-149 P.C - Defilement of idiots S.130 PC

(S.151) MCA - Defilement of girl-S.129 of PC
3. Defilement 123 P.C - Indecent assault- 122 PC

(S.152) MCA - Procuring defilement by threats
4. House breaking and entering - Entering dwelling house with intent to

commit
a felony – S.296
- Breaking into a building and committing

a felony – S.296
- Breaking with intent – S.2987
- Persons found armed with intent- S.300
- S.153 MCA any of these offences though

not
charged
5. S.154 [(1) MCA] Stealing - receiving or retaining stolen property

- 314 PC
- Obtaining by false pretense – S.305 P.C
- Possession of suspected stolen property-
S.315 P.C
- Unlawful possession of government stores-
S.316P.C

text] Page 74
6. Receiving stolen property - retaining stolen property
[S.154(2) MCA]
7. Retaining stolen property - receiving stolen property

[S.154(3) MCA]
8. Obtaining by false pretence - offence of stealing.

[S.155(1) MCA]
23. Amendment of Charges
A magistrate is given power under Section 132 of M.CA to amend the charge if
he/she is satisfied that no injustice or prejudice will be caused to the accused.
The power may be exercised under any of the following circumstances:
(a) Where the evidence discloses an offence other than the offence with which
the accused is charged;
(b) Where the charge is defective in a material particular;
(c) Where the accused desires to plead guilty to an offence other than the
offence with which the accused is charged.
The accused is protected with certain rights where such alteration or

amendment is made. The court is required,
(a) To call upon the accused to plead to the altered charge;
(b) To give the accused an opportunity to further cross examine any

prosecution witness who will be recalled;
(c) To allow the accused an opportunity to give further evidence on his/her

behalf if he/she so wishes.
Normally, the amendment of the charge is made at the request or application

of the prosecutor and the court has discretion to permit the amendment or not.
Where amendment is allowed, it may be made by altering the charge sheet
already filed in court or by tendering in a fresh one called an “Amended
Charge”.
The High Court has power to amend a defective indictment as the

circumstances of the case require [S.56(2) of T.I.A]. (For further details
regarding the alteration of Indictments, see chapter 24).

text] Page 75
CHAPTER 13
PLEAS
1. Meaning
A plea is an answer to a charge. It may be an admission or a denial of the

charge. It may be a defence or objection to the charge being brought against
the accused. That being so, there are various types of pleas, which an
accused may raise at the time or pleading, or during trial.
2. Kinds of Pleas
As an answer to a charge, the accused may raise any of the following pleas,

text] Page 76
i. Plea of guilty;
ii. Plea of not guilty;
iii. Plea of autorefois acquit or convict
iv. Plea of pardon
3. Plea of Guilty
A person charged with an offence is presumed innocent until he/she has been
proved guilty or has pleaded guilty. This is contained in Article 28(3)(a) of the
Constitution. An accused person therefore has a right to voluntarily admit the
charge and he/she should not be force or induced to do so.
It is provided under Section 124 of M.C.A and S.60 T.I. A dial after the
substance of the charge has been explained to the accused by the court, the
accused shall be asked whether he/she admits or denies the truth of the
charge. The choice and decision are entirely in the hands of the accused.
Where one is represented by an advocate, the accused may take the advice
of his/her advocate on how to plead. Once the accused has admitted the truth
of the charge, there is this admission.
Proper procedure must be carefully followed in recording a plea of guilty.

Section 124(2) of M.C.A and S.63 T.I. A requires that if the accused admits the
truth of the charge, the admission should be recorded as nearly as possible in
the words used by him/hr. It is not enough to record merely words like “I admit
the charge”, or “I plead guilty”. The accused should be required to plead to
all the elements of the offence and the answer recorded on all such aspects.
The answer should be brief but complete.
The proper procedure for recording a plea of guilty as laid down by the Court
of Appeal in Adan Vs Republic (1973) EA 445, is as follows:
i. When a person is charged, the charge and particulars should be read

out to the accused person so far as possible in his/her own language,
but if that is not possible, then in a language which he/she can speak or
understand.
ii. The Magistrate/Judge should then explain to the accused person all the
essential ingredients of the offence charged.

text] Page 77
iii. If the accused admit all the essential elements, then the
magistrate/judge should record what the accused has said as nearly as
possible in his/her own words and then formally enter a plea of guilty.
iv. The court should then ask the prosecutor to state the facts of the
alleged offence and, when the statement is complete he/she should
give the accused an opportunity to dispute or explain the facts.
v. If the accused does not agree with the statements of the facts or
asserts additional facts which if true might raise a question as to guilt,
the court should record a change of plea to no guilty mid proceed to
hold a trial.
vi. If the accused does not deny the alleged facts in any material respect,
the court should record a conviction and proceed to hear any further
facts relating to sentence.
vii. The statement of facts and the accused reply must be recorded.
viii. In the case of a capital offence, court must explain the ingredients of
the offence and the sentence in great detail.
4. Plea of not guilty
The accused is entitled to deny the truth of the charge and allow the
prosecution to prove their case against him/her. It is therefore provided under
S.124(3) M.C.A that if the accused does not admit the truth of the charge, the
court shall record a plea of not guilty, and proceed to hear the case.
When a plea of not guilty has been recorded, whatever the accused said when
pleading to the charge cannot be taken against him/her, for a court is not
allowed to derogate from the accused plea in this respect.
5. Change of Plea
An accused person is free to change his/her plea at any time during the
proceedings provided he/she does so before sentence is passed. Therefore, a
person convicted on his/her own plea of guilty may change their plea to not
guilty even after a conviction has pleaded not guilty may also change their
plea at any stage of the proceedings but before sentence.

text] Page 78
6. Plea of previous Conviction or Acquittal
An accused may plead that he/she should not be tried again because he has
already been convicted or acquitted of the offence charged. The plea is
provided for in S.124(5)(a) of M.C.A and S.61(1)(a) of T.I.A.
Article 28(9) of the Constitution provides that any person who shows that he or
she has been tried by a competent court for a criminal offence and either
convicted or acquitted shall not be tried for that offence or for any other
offence which he/she could have been convicted at the trial for that offence
save upon the order of a superior court in the course of appeal or review
proceedings relating to the conviction or acquittal. The provision hays down
what are generally known as the doctrines of autrefois convict and
autrefoisacquit. More detailed rules on the application of these doctrines are
contained in Section 89-93 of M.C.A and Sections 28-32 of the T.I.A.
The basic principle is that a person who has been once tried by a court of
competent jurisdiction for an offence and convicted or acquitted of such
offence shall not, while such conviction or acquittal has not been reversed or
set aside, be liable to be tried again on the same facts for the same offence.
(See S.89 of M.C.A, S.28 of T.I.A).
There are three qualifications to this principle. The first is that a person
convicted or acquitted of any offence may afterwards be tried for any offence
with which he/she might have been charged on the former trial by way of
joinder of counts wider S.86(1) of M.C.A or 23(1) of T.I.A, (See S.90 of M.C.A
and S.29 of T.I.A).
Secondly a person convicted or acquitted of any act causing consequences

which together with such act constitute a different offence from that for which
such person was convicted or acquitted may be afterwards tried for such last
mentioned offence, if the consequences had not happened or were not known
to the court to have happened at the time when he/she was convicted or
acquitted (S.19 of M.C.A and S.30 of T.I.A).
Thirdly, a person convicted or acquitted of any offence constituted by any acts

may, notwithstanding such conviction or acquittal, be subsequently charged
with and tried for an offence constituted by the same acts which he/she may
have committed, if the court by which he/she was first tried was not competent
to try the offence with which he/she is subsequently charged. (S.93 of M.C.A
and S.31 of T.I.A).

text] Page 79
There are two ways laid down in S.93 of M.C.A and S.32 of T.I.A by which
previous convictions or acquittal may be proved. These are;
a) By an extract, certified, under the hand of the officer having records of the
court in which such conviction or acquittal was had, to be a copy of the
sentence or order, or
b) In case of conviction, either by a certificate signed by the officer –in-charge of

the prison in which the punishment was inflicted or by production of the
warrant of commitment under which the punishment was suffered.
A certificate by a fingerprint expert who compared the finger prints of the

accused person and those of the person previously convicted or acquitted
shall be prima facie evidence of the facts set out therein, provided it is
produced by the person who took the finger prints of the accused.
A previous conviction in any place outside Uganda may be proved by the

production of a certificate purporting to be given under the hand of a police
officer in the country where the conviction was had, containing a copy of the
sentence or order, and the fingerprints or photographs of fingerprints of the
person so convicted, together with evidence that the fingerprints of the person
so convicted are those of the accused person. Such a certificate is prima fade
evidence of the information contained therein, without proof that the officer
purporting to sign it did in fact sign it and empowered to do so. [S.93(3) of
M.C.A and S.32(3) of T.I.A].
Where a plea of autrefois convict or autrefois acquit is raised, the court is

required to inquire whether such a plea is true in fact or not and if the court
holds that the facts alleged by the accused do not prove the plea, or if it finds
that it is false in fact, the accused must be required to plead to the charge.
[S.124(5) of M.C.A and S.61(2) & (3) of T.I.A].
7. Plea of Pardon
By virtue of Article 28(1) of the Constitution, no person can be tried for an
offence if he/she shows that they have been pardoned for that offence. Under
Article 121(4) of the Constitution, the President can exercise his/her
prerogative of mercy by granting to any person concerned or convicted of any
offence, a pardon either free or subject to lawful conditions.
Section 124(5)(b) of M.C.A and Section 61(1) (b) of T.I.A permit an accused to
plead in answer to a charge that he/she has obtained a pardon for his/her
text] Page 80
offence, once the plea is raised, it is for the court to try the issue in order to
ascertain its truth. If the court finds that the facts alleged by the accused do
not prove the plea, or if it finds that it is false, the court will require the accused
to plead to the charge. If the court is satisfied that the plea is true in fact, the
accused will not be requested to plead to the charge and the charge will be
dismissed. Presidential pardons are normally granted for political offences.
8. Refusal to Plead
If the accused refuses to plead to the charge/indictment the court records a

plea of not guilty against him/her. [S.124(4) of M.C.A and S.62 T.I. A].
9. Unfitness to Plead
When it is found that the accused is unfit to plead to the charge because of
insanity or other reasons, the court proceeds as provided for wider Sections
113-118 of M.C.A or Section 45 and 49 of T.I.A which provide for procedure in
case of the insanity or other incapacity of an accused person. (See Chapter
22).
CHAPTER 14
BAIL
1. Nature of Bail
Bail is an agreement or recognizance between the accused (and his sureties,

if any), and the court that the accused will pay a certain sum of money fixed by
the court should he/she fail to appear to attend the trial on a certain date. This
text] Page 81
is a constitutional right given under Article 23(6)(a) of the Constitution for the
accused to apply for bail.
The object of bail is to ensure that the accused person appears to answer the
charge against him/her, without being detained in prison on remand pending
trial. The effect of bail is therefore to temporarily release the accused person
from the custody of the court or police.
Bail may be granted with or without sureties. A surety is a pledge by another

person guaranteeing that if the accused person does not appear before the
court at the specified time mid date, he/she will pay a certain sum of money to
the court. The amount of money, which the accused or a person standing
surety for him/her will be required to pay should the accused person default, is
called security.
2. Who may Grant Bail
a) Bail is normally granted by the court. The High Court has power to grant bail in
any case and normally deals with applications where the accused is charged
with an offence punishable with death. (S.14 of T.I.A).
b) A Magistrates Court has power to release an accused person on bail in any

case except where the accused is charged with the following offences:
i. An offence triable only by the High Court,

ii. An offence under the Penal Code relating to acts of terrorism,
iii. An offence under the Penal Code relating to cattle rustling.
iv. An offence under the Firearms Act punishable by a sentence of
imprisonment of not less than ten years.
v. Abuse of office contrary to S.83 of the Penal Code,
vi. Rape contrary to S.123, defilement contrary to S.129, 130 of the Penal
Code,
vii. Embezzlement contrary to S.268 of the Penal Code,
viii. Causing financial loss contrary to S.269 of the Penal Code,
ix. Any other offence in respect of which a magistrate’s court has no
jurisdiction to grant bail.
(See S.75 of M.C.A).
c) A Police Officer in charge of a Police Station has power to release a person

who has been taken into custody without a warrant, on that person executing
text] Page 82
a bond, if it is not practicable to bring such a person before a court within 48
hours of arrest, unless the offence appears to be of a serious nature. Upon
arrest in similar circumstances, such police officer may release a person on
bail pending inquiries. This is normally called Police Bond (S.16) of the
Criminal Procedure Code. Notice is required for police bond. (See S.38 of
Police Act).
d) A justice of the Peace has the same power as a magistrate to release a
person on bail under S.3 of the Justice of the Peace Act (Cap.15).
3. When bail may be granted
a) Stage at which granted:

Bail may be granted by the court at any stage of proceedings by the court
having jurisdiction. (S.14 of T.I.A or S.57 of M.C.A).
b) Bail pending revision by High Court:
A chief Magistrate may release a person on bail wider the following

circumstances:
i. Where the offender has been committed for sentence by a Magistrate
Grade I or II, to his/her court and he/she considers that the conviction is
improper or illegal and forwards the record to the High Court for
revision: [S.164(1) of M.C.A].
ii. Where he/she forwards a record to the High Court in the exercise of
his/her supervisory powers contained in S.221 of the M.C.A, if the
magistrate is of the opinion that it is in the interests of justice so to do.
[S.221(4) of M.C.A].
iii. Where a lower court has refused bail to the suspect (S.74(3) M.C.A.
c) No bail pending sentence on committal sentence
A Magistrates court has no power to grant bail in the following instances,

i. Where a court considers that it has inadequate sentencing powers and
commits the offender for sentence to a higher court [S.164(1) of M.C.A].

text] Page 83
ii. Where a person accused of an offence triable by the High Court is
remanded to appear before a magistrate with jurisdiction to conduct
preliminary proceedings (S.1662 of M.C.A).
d) No Bail after committal for trial
A magistrate’s court has no power to release the accused on bail after

committing him/her to the High Court for trial (S.76 of M.C.A). Only the High
Court may grant bail after committal.
e) Restrictions on Pre-trial remand

There are two important pieces of legislation relating to this. The first is the
Constitution Article 23(6)(b) which provides that where an offence is triable by
both the High Court and the Magistrates’ Court, a person shall be released on
bail if he/she has been on remand without trial for 120 days. This restricts the
remand period for such offences to 120 days.
Article 23(6) (c) refers to capital offences and those offences that are only
triable by the High Court. Where a person has been remanded in custody for
360 days before committal to the High Court for trial, the person shall be
released on bail.
The previous position S.76 (a) MCA, where the maximum remand period for a
capital offence is 480 days and for any other offence [S.76(b) MCA] is 240
days are inconsistent with the Constitution and must be deemed to have been
modified accordingly.
A similar provision exists in S.16 of the T.I.A. However, in practice, the courts
have adopted the position for granting bail contained in the Constitution since
it is the Supreme law of the land.
f) Bail in Capital and other Serious cases
However, S.15 of T.I.A, the court may refuse to grant bail to a person accused
of an offence specified if he/she does not prove to the satisfaction of court;
i. Exceptional circumstances
ii. That he/she will not abscond when released on bail.
The offences specified are contained in sub section 2 and include: an

offence triable by the High Court, terrorism or cattle rustling, an offence

text] Page 84
under the Firearms Act 1970 punishable by a sentence of imprisonment
of not less than 10 years, abuse of office, rape, embezzlement, causing
financial loss, corruption, bribery of a member of a public body and any
other offence in respect of which a magistrates’ court has no jurisdiction
to grant bail.
Exceptional circumstances are defined in S.15(3) of T.I.A to consist of the

following:
i. Grave illness certified by a medical officer of the prison or other

institution or place where the accused is detained as being incapable of
adequate medical treatment while the accused is in custody.
ii. A certificate of no objection under his/her hand from the Director of
Public Prosecutions, or
iii. The infancy or advanced age of the accused.
In considering whether or not the accused is likely to abscond, the court

is required to take into account the following factors:
a) Whether the accused has a fixed abode within the jurisdiction of the court
or is ordinarily resident outside Uganda,
b) Whether the accused has sound sureties willing to undertake that the
accused shall comply with the conditions of bail,
c) Whether the accused has on a previous occasion when released on bail
failed to comply with the conditions of bail, and
d) Whether there are other charges pending against the accused.
Given the wide discretion given to the court by Article 23[6(a)] in considering
an application for bail, these circumstances must be taken as grounds for
exercise of discretion.
g) Bail pending appeal:
Bail may also be granted to a convicted person pending the determination of

his/her appeal. [S.205(1) of M.C.A]. The High Court and Supreme Court have
power to grant bail to an appellant except where he/she is sentenced to death.
(See Judicature Act and Supreme Court Rules). It is a necessary requirement
that the accused should have filed an appeal in a competent court before
he/she can apply for bail pending appeal. In other words, one must be an
appellant.

text] Page 85
It is a rule of practice that bail pending appeal will be granted only in
exceptional circumstances. The following considerations should be
considered:
i. The likelihood of success of the appeal;

ii. The likelihood of a delay in hearing the appeal;
iii. The length of the sentence imposed, and
iv. The complexity of the case.
The application may be made to the appellate court only.
4. Application for Bail
In Magistrate’s Courts, application for bail may be made orally or in writing

amid if in writing, must be supported by affidavit. (Applications to the High
Court should usually be in writing (e.g. by motion) and where the evidence in
necessary, b supported by affidavit. Notice of an application to the High Court
must be given to the DPP and to the Police in Magistrate’s Court. The notice
should give the DPP or the police sufficient time to permit them to be present at
the hearing of the application. Notice may be dispensed with in urgent cases by
special leave of the court. (See Rules 2,3,4 of the Criminal Procedure
(Applications) Rules, S.141-1).
5. Considerations for Bail
When an application for bail is made before a Magistrate, the Court is required
to consider the following matters in deciding whether bail should be granted or
refused [S.77(2) of M.C.A].
a) The nature of the accusation;
b) The gravity of the offence charged and the severity of the punishment which
the conviction may entail,
c) The antecedents of the applicant so far as they are known,
d) Whether the applicant has a fixed place of abode within the area of the
courts’ jurisdiction, and
e) Whether the applicant is likely to interfere with any prosecution witnesses.
a) The nature of the accusation;

text] Page 86
This phrase seems not to have been judicially interpreted. It may refer to the
nature of evidence which the prosecution has in possession against the
accused. This may reveal whether it is a domestically motivated offence, or
committed after think or is an offence affecting the security of the State. It may
also indicate whether the evidence is cogent, for instance if there are eye
witnesses to the offence amid whether it was committed in broad daylight.
b) The gravity of the offence:
The court should consider the gravity or seriousness of the offence, and the
severity of the sentence on conviction. If the offence is very grave, bail may be
refused since the temptation to jump bail in order to escape punishment is
great.
c) The antecedents of the applicant:
The background and character of the accused are relevant considerations to

be considered before granting bail to an accused person. If the accused is a
habitual criminal with previous convictions, this suggests that he is likely to
commit more offences when released and therefore bail may be refused for
this reason.
d) Whether the applicant has a fixed place of abode:
If the accused has no fixed abode or permanent residence within the court’s
jurisdiction the court may be reluctant to release him/her since it may be
difficult to trace him/her once he/she leaves the area of jurisdiction and returns
home or finds another residence. Where the applicant has a fixed abode
within the jurisdiction of the court, he/she may be granted bail since unless the
charge is a grave one a person is not likely to abandon his/her home and
family.
e) Whether the applicant is likely to interfere with witnesses:

If the court is satisfied that the accused is likely to interfere with prosecution
witnesses when released on bail, it may refuse bail. It is for the prosecutor to
satisfy the court of this ground, and if necessary adduce evidence of prior
interference or attempts or threats to do so. The relationship between the
accused and the witness may indicate likelihood to interfere with witnesses,
e.g. where they are related, and the investigations are not complete.

text] Page 87
6. Recognizance
It is provided under Section 75(1) of M.C.A that court may release the accused
on bail on taking from him/her a recognizance consisting of a bond, with or
without sureties, for such an amount as is reasonable in the circumstances of
the case, to appear before such a court, on such a date and at such a time as
in named in the bond. [See S.14(1) of T.I.A].
The normal practice is for the court to fix the amount of the recognizance,
which must be reasonable, and which may be cash or not cash. The court
should have regard to the gravity of the case as well as the means of the
accused. It is unreasonable to fix a cash amount, which the accused cannot
afford so that he is unable to benefit from the grant of bail.
7. Sureties
A recognizance may be entered into with or without sureties. In minor cases

sureties may not be necessary. The court should inquire into the worth and
social position of the sureties. The sureties must have the means to answer for
the sum involved and should be persons of some social standing in the
community. It is improper for the Advocate appearing for the accused to stand
surety or the trial magistrate.
A surety is bound to pay the amount specified in the bond if the accused does
not appear to be relieved of his/her responsibilities [S.80 of M.C.A and S.18 of
T.I.A]. On such an application being made for discharge of surety, the court is
required to issue a warrant of arrest directing that the person released be
brought before it. When the accused person appears, the court is bound to
discharge the surety and call upon the accused to find other sufficient sureties
[S.80(3) of M.C.A or S.18(3) of T.I.A].
If through mistake, fraud or otherwise, insufficient sureties were accepted, or if

they afterwards become insufficient, the court has power to order the accused
person find sufficient sureties [S.79 of M.C.A or S.17 of T.I.A].
Where a surety dies before the bond is forfeited, his/her estate is discharged
from all liability in respect of the bond, but the party who gave the bond may be
required to find a new surety. [S.81 of M.C.A or S.19 of T.I.A].
8. Deposit instead of Recognisance
A magistrate’s court has power to allow an accused person to deposit a

specific article or property or a sum of money fixed by the court, instead of

text] Page 88
executing a bond. (S.78 of M.C.A). This provision does not seem to be
normally used by courts, but it could be used to a great advantage if adequate
arrangements could be made for the safe custody of the articles deposited
under this Section.
9. Reduction or Increase of Bail
A chief Magistrate or the High Court may order the amount required for bail
bond to be reduced [S.75(2) of M.C.A]. But only the High Court can direct that
the amount required for bail be increased [S.75(3) of M.C.A and S.14(2) of
T.I.A].
10. Forfeiture of Recognisance
A recognizance may be forfeited if it is proved to the satisfaction of the court,

by evidence given on oath, that the bond has been breached. The court is
required to record the evidence constituting the proof, and then call upon the
person concerned to pay the penalty or show cause why it should not be paid.
[S.83(2) of M.C.A and S.21(1) of T.I.A].
If sufficient cause is not shown and the penalty not paid the court may proceed
to recover the amount by issuing a warrant of attachment and sale of movable
property or the estate if he/she is dead [S.83(2) of M.C.A and S.21(21) of
T.I.A]. If such penalty is not paid and cannot be recovered by such attachment
amid sale, the person so bound is liable by order of the court to imprisonment
for a period not exceeding six months. [S.83(4) of M.C.A].
The court has power to remit any portion of the penalty and enforce payment in
part only [S.83(5) of M.C.A or S.21(5) of T.I.A].
Where the accused has failed to comply with the conditions of his/her bail, it
may be cancelled in addition to forfeiting his recognizance.
11. Application to the High Court or Chief Magistrates where Bail refused
Where bail is refused by a magistrate other than a Chief Magistrate, an

application (not an appeal) may be made to the Chief Magistrate of the area for
bail to be granted. The court has power to reduce the amount of bail bond or be
released on bail. [S.75(3) of M.C.A as amended]. The High Court has power to
direct that bail be granted in any case or that the amount of bail bond be
reduced or increased [S.75(4) and (5) of M.C.A as amended]. It follows that if
bail is refused by a Chief Magistrate, the accused may apply to the High Court
for bail.
text] Page 89
It is permissible to reapply for bail before the same court after lapse of time or
when conditions under which bail was refused have changed.
CHAPTER 15
CONDUCT OF CRIMINAL PROSECUTIONS
1. Kinds of Criminal Prosecutions
There are two type of criminal prosecutions namely:

a) Public Prosecutions
b) Private Prosecutions
This classification is based on the nature of the person who initiates or

conducts the prosecution. If the prosecution is initiated or conducted by a
public prosecutor or a public official, the prosecution is called a public
prosecution, whereas if the prosecutor is a private person then the prosecution
is said to be a private prosecution. For practical purposes there is no major
difference between a private prosecution and a public prosecution. The same
procedure is followed in both cases during the hearing.
2. Definition of Public Prosecutor

Public prosecutions are conducted by a public prosecutor. A public prosecutor
is defined as the Director of Public Prosecutions, the Deputy Director of Public
Prosecutions, a State Attorney, a State Prosecutor and any person appointed
by the Director of Public Prosecutions under Section 223 of the Magistrates
Courts Act. (See S.1 of the Criminal Procedure Code).
3. The Conduct of Public Prosecutions
There are four levels at which public prosecutions are conducted. The first and
highest level is where cases are conducted by State Attorneys who are legally
qualified lawyers. These appear in court and conduct prosecutions by virtue of
their appointment. State attorneys appear only is serious and important cases
before Magistrate Courts and all criminal cases before the High Court.
The second category of prosecutors is that of Police Prosecutors. By far this is

the largest category of public prosecutors. They prosecute most of the cases in
Magistrates Courts. Police Prosecutors can appear in any magistrate’s courts
but they do not appear before the High Court. Only Police officers of or above
the rank of Assistant Inspector of Police have been appointed Public

text] Page 90
Prosecutors, generally. Police officers of lower ranks may be appointed
prosecutors on individual basis.
The third category of state prosecutors are lay persons holding a Diploma in
Law from the Law Development Centre and a Diploma in Prosecutions from the
same institution.
These police prosecutors are appointed by the DPP and are part of that office.
They work under the supervision of Resident State Attorneys in the districts
and conduct prosecution in Magistrates’ Courts only.
The last category is that of the prosecutors appointed by the DPP under
Section 223 of the M.C.A, either generally or for specified cases in any area.
The Section provides that,
1) The Director of Public Prosecution may appoint generally or in any case or

for any specified class of cases in any local area, one or more persons to
be called public prosecutors.
2) The Director of public prosecutions by writing under his/her hand may
appoint any advocate or any person employed in the public service to be a
public prosecutor for the purpose of any case.
3) Every public prosecutor shall be subject to the express directions of the

Director of Public Prosecutions.
It is under this Section that the Director of public prosecutions appoints persons
other than officers of this Department to be public prosecutors. The largest
group of these appointed under this Section are Police prosecutors of the rank
of Assistant Inspector or above. Other public officers usually appointed public
prosecutors are Enforcement officers in Local and Urban Authorities, Labour
Officers, Custom Officers, Inspector of Weights and Measures and Local
Administration Police officers, to mention but a few. The appointment may be
made in general to cover a category of officers or personal in individual cases.
(See GN 128/84 Uganda Gazette 17th August, 1984).
4. Powers of a Public Prosecutor
Section 224 of M.C.A lays down in general terms the powers of a public
prosecutor. He/she may appear and plead without any written authority before
any court in which any case of which he/she has charge is under trial or
appeal. If a private person instructs an advocate to prosecute in any such case,
the public prosecutor may conduct the prosecution, and the advocate so
text] Page 91
instructed acts under his/her instruction. The advocate is said to be holding a
“watching brief”.
A public prosecutor has complete control of the prosecution in court. He/she

can at any stage close the case and call not further evidence. He/she decides
which witnesses to a call and what evidence to lead and can withdraw the case
or apply for adjournment.
5. The Duty of a Public Prosecutor

A public prosecutor is an officer of the court. He/she has the grave duty to
assist the court arrive at a just decision. He/she must not mislead the court and
should not conceal evidence which might be prejudicial to the accused. He/she
should not press for conviction of the accused if the evidence does not justify
this course of action. He/she must prosecute but not persecute the accused.
Public interest demands that only the guilty be convicted while the innocent is
acquitted and set at liberty.
If a prosecutor has in his/her possession a statement made by the witness

which is inconsistent with the evidence given in court, the prosecutor should
inform the court or the accused’s advocate. He/she should make the statement
available to the defence for cross-examination.
Similarly, if the prosecutor has some witnesses whom he/she does not wish to
call, but who may have material evidence to give e.g in favour of the accused,
the prosecutor should offer such witnesses to the defence and make them
available for the defence to call if they so wish. The prosecutor should first
show the police statement of the witness to the defence so that they decide
whether to call that witness or not.
Where the prosecutor does not call a material witness without any reasonable
explanation, the court may infer that the evidence the witness would have given
would have been unfavorable to the prosecution.
6. Conduct of Private Prosecution
A private person is required to obtain permission of the court before conducting

a prosecution. Under Section 226 of M.C.A any magistrate trying any case may
permit the prosecution to be conducted by any person but no person other than
a public prosecutor or other officer generally or specially authorized may do so
without permission. Any person conducting the prosecution may do so
personally or by an advocate.

text] Page 92
A considerable number of prosecutions in this country are private prosecutions.
In most courts of Magistrates Grade II and Grade III, prosecutions are
conducted by complainants or private prosecutors due to the inadequacy of
Police and other public prosecutors.
CHAPTER 16
CONTROL OVER CRIMINAL PROSECUTIONS
1. The Director of Public Prosecutions
The Director of Public Prosecutions (DPP) is the public officer in whose charge
is place the control of all criminal prosecution in the State. The office is a
constitutional one, and is established by Article 120 of the Constitution. This
Person heads the Directorate of Public Prosecutions, which is an independent
body. The legal officers who manage the Directorate of Public Prosecutions
are called State Attorneys. Their lay counterparts who work under them are
called State Prosecutors.
2. Constitutional Powers of the DPP
Article 120(3) of the Constitution provides for the functions of the DPP which
gives him/her power to do any of the following:
a) Direct the police to investigate any information of a criminal nature and report
to him/her directly;
b) Institute criminal proceedings against any person or authority in any court of

competent jurisdiction other than a court martial;
c) To take over and continue any criminal proceedings instituted by any other
person or authority;
d) To discontinue at any stage before judgment is delivered, any criminal

proceedings instituted by him/herself or any other personal authority except
such proceedings shall not be terminated except with the consent of court.
3. Other Duties and Powers of the DPP:
The DPP is given powers and duties under various statutes. The main ones
are:
a) To prosecute offences tried by the High Court;

text] Page 93
b) To prepare indictments and summaries of the case as required by Part XIV
Ss.165A of the M.C.A in cases triable by High Court;
c) To give advice and directions to the Criminal Investigation Department (C.I.D)

in particular and other Government Departments on the conduct of criminal
investigations or decisions to prosecute and on what charge.
d) To enter nolle prosequi in cases before the High Court (S.134 of Trial on
Indictments Act as a means of withdrawing charges before the High Court;
e) To consent to charges requiring his consent to prosecute e.g. sedition,

corruption etc;
f) To give his views in cases undergoing revision by the High Court, before
revisional orders are made;
g) To appeal in cases where an accused is acquitted by a court if such an

acquittal is erroneous in law;
h) To represent the State in Criminal Appeals in all courts;
i) To appoint public prosecutors in accordance with S.223 of M.C.A.
4. Exercise of the Powers of the DPP
By virtue of Article 120(4) (a0 – the functions in paragraphs (a) – on

investigations, (b) – on institution of criminal proceedings and (c) taking over
of proceedings of Clause (3) Article 120, may be exercised by the DPP or
officers authorized by him/her in accordance with general or specified
instructions.
However, the functions in paragraph (d) of Clause 3 relating to discontinuation

of criminal proceedings at any stage, is exercised exclusively by the Director.
In practice, this power is exercised under S.121 of the M.C.A where upon
instructions of the DPP a prosecutor may withdraw from the prosecution of any
person. The DPP writes a letter addressed to the Chief Magistrate of the
relevant Magisterial area giving the police file number and court case
reference and informing court that the Director is withdrawing charges against
the accused and giving reasons for doing the same. The letter bears his/her
personal signature and stamp/seal.

text] Page 94
Under Clause 5, Article 120 DPP the Director in the exercise of the functions
conferred on him/her shall not be subject to the direction or control of any
person or authority. This gives that office the autonomy and independence
desired for the impartial decisions to be taken.
5. Resident State Attorneys
Several offices of the Resident State Attorneys have been established in the
major towns in the country. The offices are situated at Fort Portal, Mbarara,
Kabale, Masindi, Tororo, Lira, Soroti, Mukono, Entebbe, Mpigi, Mubende,
Masaka, Jinja, Mbale, Gulu and for Kampala: Buganda Road Court, Makindye
and Nakawa among others. The purpose of establishing the upcountry
stations was that the Resident State Attorneys could deal with the criminal
cases occurring in their areas, on the spot. This would cut down delays in the
prosecutions process as well as reduce the time and expense spent by State
Attorneys from the Headquarters going around the country prosecuting cases.
More offices of this nature are being established from time to time, at district
level.
6. Control over Public Prosecutions
The powers given to the DPP under the Constitution and the statute enable
him/her to exercise effective control over all public prosecutions. These
powers are wide and considerable. But the powers are only used in the Public
interest. For instance, the Director of Public Prosecutions will not intervene
and take over a prosecution or discontinue it unless it is desirable in the public
interest to do so. If the prosecution is being instituted or conducted by a
private person or authority merely as an abuse of the criminal process to
gratify the prosecutor, the Director of Public Prosecutions will intervene, take
over the case and discontinue the prosecution. He/she enjoys ample
discretion in his/her decision to prosecute or not prosecute. But this discretion
is not exercised arbitrarily. It is exercised after serious discussion and
deliberation among those concerned with the process of prosecution. It is the
duty of the DPP to ensure that there is uniformity in the prosecution policy and
conduct of prosecutions throughout the country and that the prosecution
machinery is effective in contributing to the efficient administration of criminal
justice.
These safeguards are contained in Clause 5 of Article 120 that provides that in
the exercise of his/her powers, the DPP is expected to have regard to public

text] Page 95
interest, interest of the administration of justice and the need to prevent abuse
of legal process.
7. DPP’s Control over Private Prosecution

Although the title appears to indicate that the DPP has control over public
prosecutions only, the powers given to him/her by the Constitution are general
and cover even control over private prosecution. For avoidance of doubt
Section 43(1) of M.C.A expressly gives the DPP such powers.
The Section provides that where criminal proceedings have been instituted by
a person other than a public prosecutor or a police officer under the provisions
of Section 41 of M.C.A, the Director of Public Prosecutions may,
a) Takeover and continue the conduct of such proceedings at any stage

before the conclusion thereof;
b) Discontinue the prosecution of such proceedings at any stage of an inquiry

or trial before a magistrate’s court, and
c) Require such a person in relation to such proceedings:
i. To give him/her all reasonable information or assistance;
ii. To furnish him/her with any documents or other matters and things in
his possession or under his control.

text] Page 96
CHAPTER 17
CONSTITUTIONAL RIGHTS OF AN ACCUSED PERSON
Article 28 of the Uganda Constitution lays down provisions which are aimed at
securing the protection of law for a person accused of any criminal offence. These
provisions prescribe fundamental human rights, which are safeguarded in all nations
where the rule of law exists. These rights must be observed and maintained by the
prosecuting authorities as well as the courts.
1. Fair and Impartial Hearing
Any person charged with a criminal offence must be afforded a hearing by an

independent and impartial court or tribunal established by law. [Article 28(1)].
This provision may be said to embody the principles of natural justice, namely,
that no person shall be judge in their own cause and secondly no one shall be
condemned unheard. Therefore, an accused in entitled to object to being tried
by a magistrate or judge whom he/she considers to be biased against them.
On the other hand, if the magistrate knows that he/she is likely to be biased
e.g. where the accused is a relative or friend, he/she should disqualify
him/herself from trying that case. As to the right to be heard, an accused
person must be present while he/she is being tried and must be given
opportunity to cross-examine all the prosecution witnesses who testify against
him/her as well as give evidence in his/her defence if he/she so wishes.
With regard to trial by an independent court, it should be noted the

independence of the judiciary is enshrined in the Constitution (See Article
128). In practice this independence of the judiciary is not interfered with by the
Executive.
2. Trial within reasonable time

text] Page 97
An accused person is entitled to trial within a reasonable time. This means that
once he/she is charged with a criminal offence the trial must commence as
soon as possible and when commenced, should be completed without undue
delay. This principle is based on the idea that ‘Justice delayed is justice
denied’, See also Article 126(2)(b) which provides that “justice shall not be
delayed”.
3. Presumption of Innocence
Every person who is charged with a criminal offence shall be presumed to be

innocent until he/she is proved or has pleaded guilty. [Article 28(3)(a)]. The
presumption of innocence is a fundamental principle not only of our law but of
most legal systems in the world. It means that the burden of proof lies on the
prosecution to prove their case beyond reasonable doubt. There is no such
burden on the accused to prove his/her innocence. If at the end of the case
against the accused there is any reasonable doubt as to the guilt of the
accused, that benefit must be given to the accused. It would have been too
harsh if these was a presumption of guilt for it would have been the duty of the
accused to prove their innocence and as it is generally accepted that it is more
difficult to prove a negative than a positive.
Under Clause (11) of the same Article, no person nor the spouse of that
person who is tried for a criminal offence shall be compelled to give evidence
against that person at the trial.
4. Information of the Nature of the Charge

Article 28(3)(b) requires that every person accused of an offence shall be
informed as soon as reasonably practicable in a language that he/she
understands, of the nature of the offence charged. When a person has been
arrested for having committed an offence, it is only fair that they should be
informed of the particulars of the charge against him/her as soon as possible.
While the police will no doubt formally charge them with the offence, it is also
necessary that the accused should be brought before a magistrate within 48
hours of arrest so that he/she can formally plead to the charge by denying it or
pleading guilty to it. Usually detention of a suspect, or any person for over 48
hours without bringing him/her before a court of law is unlawful imprisonment
which is a civil wrong (tort) for which the victim may sue for damages.

text] Page 98
5. Right to adequate facilities for preparation of defence and right to legal
representation
By virtue of Article 28(3)(c) and 28(3)(d) every person accused of an offence

must be given adequate time and facilities for the preparation of their defence,
and they must also be permitted to defend him/herself before the court in
person or at his/her own expense by a legal representative of choice.
It is not clear what adequate time and facilities for the preparation of the
defence can be given to the accused. What it may amount to may be to give
an accused person reasonable notice of the offence against him/her as well as
when the trial will begin. If this is done the accused can then prepare how
he/she is going to defend him/herself, prepare his/her witnesses and have
them summoned.
It also enables the accused to engage an advocate to defend him/her and also
gives the advocate sufficient time in which to prepare the defiance of their
client as well as schedule engagements accordingly.
But this right to legal representation is not absolute. A trial cannot be held up
indefinitely merely to allow an advocate to find his suitable time to appear and
represent the accused. Courts cannot sit at the convenience of advocates.
(See further Section 55 of the Trial and indictments Decree and Section 158 of
the Magistrates’ Courts Act).
6. Right to Cross-examine Prosecution witnesses and rights to call and

examine his own Witnesses
Article 28(3)(g)provides that every person charged with a criminal offence shall
be afforded facilities to examine in person or by his/her legal representative
the witnesses called by the prosecution before the court and to obtain the
attendance and carry out the examination of witnesses to testify on his/her
behalf before the court on the same conditions as those applying to witnesses
called by the prosecution.
The right to cross-examination is fundamental. At least the accused or their

Counsel must be given an opportunity to cross-examine the prosecution
witnesses. Cross-examination is a powerful instrument of testing the veracity

text] Page 99
and reliability of a witness and it is a useful tool in helping the court arrive at
the truth as far as it can be humanly ascertained.
The accused is given the right to have his/her witnesses summoned by the
due process of the court just as the prosecution witnesses are summoned.
Defence witness must also be treated in the same way as the prosecution
witness. For instance, if they refuse to come to court when properly served,
they can be arrested (See Section 95 of the Magistrates Courts Act). Or if the
witness refuses to be sworn, give evidence or produce any document which
he/she is required to produce, he/she may be dealt with as a refractory
witness (See S.102 of the M.C.A).
7. Right to be present during trial and to have assistance of interpreter
An accused person has a right to be present during the trial. A person should
not be tried in their absence unless it is with their own consent or they have so
conducted themselves as to render the continuance of the proceedings in their
presence impracticable and the court has ordered them to be removed and
the trial to proceed in their absence [Article 28(5)].
The right to attend the trial is necessary for the accused because without
hearing the evidence against him/her, he/she cannot exercise their right to
cross-examination effectively nor can he/she present the defence adequately.
The right to interpretation in the language he/she understands is necessary to
enable the accused to exercise most of the rights, like cross-examination and
presentation of the defence. [See Article 28(3)(b) and also S.137 of M.C.A and
S.54 of the T.I.A].
The need for interpretation arises because whereas the official language of
the courts is English (Article 6 of Uganda Constitution) the majority of the
population in Uganda do not understand or speak English. Most witnesses
and accused persons speak only their vernaculars. The vernaculars
themselves are as diverse as there are tribes. It is not unusual, therefore to
find an accused person not being able to understand the language used by
the witnesses if they belong to different tribes. Also, where witnesses testify in
English, the accused person will require the assistance of an interpreter to
follow the court proceedings. (See Sections 56 of the T.I.A and Sections 139
of the M.C.A).
In the case of a deaf-mute accused, attempt must be made to obtain a person

who can communicate to the accused by way of signs. If the accused cannot

text] Page 100
be made to understand the proceedings then the provisions of Section 118 of
the M.C.A and S.49 of the T.I.A apply. Those provisions empower the court to
hear the evidence available both from the prosecution and the defence and if
satisfied that the accused is guilty of the offence charged, order him/her to be
detained in safe custody, pending an order of the Minister regarding the
disposal of the accused.
8. Right of copy of Proceedings and Judgment
When a person is tried for a criminal offence the accused person or any
person authorized by him/her in that behalf, has a right, if he/she so requires,
and subject to the payment of such reasonable fee as may be prescribed by
law to be given within a reasonable time after judgment, a copy of the
proceedings made by or on behalf of the Court [Article 28(6) of the
Constitution]. The right is essential especially where the accused intends to file
an appeal against the conviction or sentence. The record and judgement
enable the accused or their advocate prepares a sound memorandum of
appeal. The copy of proceedings is availed to the accused upon payment of a
fee prescribed by law.
9. Rule against Retrospective Penal Laws
It is provided by Clause (7) of Article 28 of the Constitution that no person shall

be held to be guilty of a criminal offence on account of any act or omission that
did not, at the time it took place, constitute such an offence, and no penalty
shall be imposed for any criminal offence that is severer in degree or
description than the maximum penalty that might have been imposed for that
offence at the time when it was committed.[Article 28(8)].
It is a fundamental rule of our law that no statute shall be construed to have a

retrospective operation unless such a construction appears very clearly in the
terms of the Act or arises by necessary and distinct implication. But in penal
statutes there is no need to invoke the common law presumption against
retrospectively. The Constitution expressly establishes the rule against
retrospectively as far as criminal offences are concerned.
It is a well-established rule of statutory construction that penal statutes must

be strictly construed. Thus, the principle applied in construing a penal act is
that if there is a reasonable interpretation which will avoid the penalty in any

text] Page 101
particular case, it must be adopted. If there are two reasonable constructions,
the court must give the most lenient one.
10. The Rule against double jeopardy
Article 28(9) of the Constitution provides that no person who shows that
he/she has been tried by a competent court for a criminal offence of which
he/she could have been convicted or acquitted at the trial shall be tried again
for that offence save upon the order of a superior court in the course of appeal
or review proceedings relating to the conviction or acquittal. This provision lays
down what are generally known as the doctrines of ‘autrefois convict’ and
‘autrefois acquit’. The rationale for this rule is that a person should not be put
in peril twice for the same offence or the offence for which he/she could have
been tried at the previous trial.
11. The rule against unwritten Criminal Offences
Article 28(12) of the Constitution provides in clear terms that no person shall
be convicted of a criminal offence unless that offence is defined and the
penalty thereof is prescribed in a written law. The only exception to this
important principle of legality is that the courts are permitted to punish any
person for contempt of court even if the act constituting the contempt is not
defined in a written penal law. Unwritten customary criminal offences cannot
be the subject of criminal proceedings. Adultery and elopement, both
customary criminal offences, have been incorporated in the Penal Code Act
and that is why they are enforceable by the Criminal process. [See S.154A
and 127A of the Penal Code for adultery and elopement respectively].
This rule is essential to give a degree of predictability and certainty to the

criminal law.
12. Right to Public Trial
Except with the agreement of all the parties concerned, all criminal
proceedings in every court must be held in public. [Article 28(1)]. The trial must
be held in open court except where the interests of justice, national safety,
public order and public morality dictate otherwise. [Article 28(2)]. The
requirement for a public trial is based on the principle that justice must not only
be done, but it must be seen to be done.

text] Page 102
In practice, all criminal proceedings are held in public in open court and it is
rare to see a criminal trial held in camera. (See also S.40 M.C.A and S.137
T.I.A).
Open court does not mean court-house. It means any place where the trial
takes place provided the public have access to it. The public must be free to
attend the trial. If the trial is held in an office or chambers, the doors should be
left open so that the public have the right of ingress and egress.
CHAPTER 18
ATTENDANCE OF WITNESSES
1. Competent and compellable witnesses
A competent witness is a person who is permitted by law to give evidence in

court. A compellable witness is one who can be forced or is legally obliged to
give evidence, and if he/she refuses to testify, can be sent to prison. It follows
that an incompetent witness is not a compellable witness. However, a witness
may be competent but not compellable, e.g. a wife or husband of an accused
person.
The general rule is that all persons are competent to testify unless the court
considers that they are prevented from answering questions by reason of
tender years, old age, disease of mind or body, or oilier cause of the same
kind. (S.117 of Evidence Act).
2. Incompetent Witnesses
a) Young Children: Young children are incompetent witnesses because of their

immature intellect. Because of this immaturity, they may not be able to
observe and report physical facts rationally and have ability to understand the
nature of the oath or the duty to speak the truth. Where a child of tender years,
that is below the age of fourteen years, does not understand the nature of the
text] Page 103
oath, he/she cannot be allowed to testify unless he/she is possessed of
sufficient intelligence to justify the reception of his/her evidence, and
understands the duty of speaking the truth. It the child gives unsworn evidence
of the prosecution the accused cannot be convicted unless such evidence is
corroborated [S.101(3) of M.C.A].
b) Insane Persons: An insane person is not a competent person if he/she is

mentally incapacitated to such an extent that he/she is unable to understand
the subject in reference to which he/she is called as a witness. The
explanation to Section 117 of the Evidence Act, provides that a lunatic is not
incompetent to testify, unless he/she is prevented by the lunacy from the
understanding the questions put to him/her and giving rational answers to
them. An insane person may therefore be competent when he/she is in his/hr
moments of lucidity when he/she is temporarily sane.
c) Deaf-mute Person: A dumb person is incompetent if he/she cannot

communicate to the court by writing or signs. Under Section 118 of the
evidence Act, a witness who is unable to speak may give his/her evidence in
any manner in which he/she can make it intelligible, as by writing or by signs.
But such writing must be written and the signs made in open court. Such
evidence is deemed to be oral evidence.
d) Aged Persons: Persons of extreme age may be incompetent witnesses

because of their physical and mental disabilities. Such persons may be
incapable of understanding and answering questions put to them due to old
age. Some of their senses of sight, hearing, memory and judgment may be
seriously impaired. They may also lack the physical strength to undergo the
rigorous examination in court.
3. Competent but not Compellable Witnesses
a) Husband and Wife (Spouses): A husband or wife of the accused is a

competent but not a compellable witness for the prosecution without the
consent of the person accused. But a husband or wife is both a competent
and compellable witness for the defence whether the accused person is
charged alone or jointly with another person. [S.120(1) of Evidence Act. Under
this provision, husband and wife means, respectively, the husband and wife of
a subsisting marriage recognized as such by any written law or customary law.
It is no longer a requirement that the marriage be monogamous, the only

text] Page 104
requirement being that it must be a marriage valid under the law of Uganda
whether monogamous or polygamous. When a spouse appears in court to
give evidence for the prosecution he or she should be asked whether he or
she is willing to give evidence against the partner and if he or she declines to
do so, he or she cannot be compelled to testify.
b) Accused Person: An accused person is competent but not a compellable

witness against him/herself. He/she cannot be compelled to give evidence
against him/herself even if there is a case for him/her to answer. [Article
28(11) of the Constitution]. The same applies to spouse of that person.
But an accomplice (person who has participated or assisted in the commission

of the offence) is a competent and compellable witness and a conviction is not
illegal merely because it proceeds on uncorroborated evidence of an
accomplice (S.132 of Evidence Act). As a matter of practice, however,
corroboration is always looked for before basing a conviction on such
evidence.
4. Privileged Witnesses
The law of evidence gives protection from disclosure or production in court of

certain communication or documents received by certain person in their
official, professional or private capacity. This protection is called privilege, and
a witness who enjoys this privilege cannot be compelled to disclose the
privileged communication in court. Persons who enjoy this privilege include
judges, magistrates, police officers, public officers and advocates.
a) Judges and Magistrates: A judge or magistrate cannot be compelled to

answer questions as to his/her own conduct in court unless directed to do so
by special order of a superior court. He may however be examined as to other
matters which occurred in his/her presence while he/she was acting in his/her
judicial capacity. (S.119 of Evidence Act). This privilege is intended to protect
the dignity and prestige of these officers in the performance of the judicial
duties.
b) Public Officers: A public officer cannot be compelled to disclose official

communication made to him/her in the course of his/her duty when he/she
considers that the public interest would suffer by the disclosure. (S.123 of
Evidence Act). In addition, no one can be compelled, to give any evidence

text] Page 105
derived from unpublished official records relating to any affairs of the State
except with the permission of the head of the department concerned, who has
power to give or withhold such permission as he/she thinks fit. (S.122 of
Evidence Act). These provisions have to be read subject to Article 41 of the
Constitution which gives every citizen a right of access to information in
possession of the State except where the release of the information is likely to
prejudice the security or sovereignty of the state or interfere with the right to
privacy of any person. (See also Freedom of Information Act).
c) Police Officers: A police officer cannot be compelled to disclose where he got

any information as to the commission of the offence. The same privilege
applies to magistrates and revenue officers as regards information relating to
commission of offences. (S.124 of Evidence Act).
d) Advocates: Advocates enjoy what is called “professional privilege”. No

advocate can at any time be permitted to disclose any communication made to
him/her by a client unless the client has given express consent. The advocate
may not also disclose any advice given to his/her client. This protection
against disclosure extends to clerks, and other servants of the advocate. But
the privilege does not extend to information made in furtherance of illegal
purpose, or any fact observed by the advocate in the course of his/her
employment, showing that a crime or fraud has been committed since the
commencement of his/her employment. (S.125 of Evidence Act). However, if a
person offer him/herself as a witness, they may be compelled to disclose to
court any confidential communication between him/herself and his/her
advocate. (S.127 of Evidence Act).
5. Summons
A summons is an order of the court requiring the person named therein to

appear in court on the day and time specified in the summons. A criminal
summons is issued to order the attendance of an accused person. A witness
summons is for the purpose of calling a person to attend court and testify as a
witness.
6. Form and Content of Summons
Every summons issued by a court must be in writing, in duplicate, signed and

sealed by the magistrate or such other officer as the Chief Justice may direct
e.g a Registrar [S.44(1) of M.C.A].

text] Page 106
A summons must be directed to the person summoned and it must require
him/her to appear before a court dealing with the complaint or charge, at a
time and place specified. A summons should state briefly the offence with
which the accused person is charged. [S.44(2) of M.C.A].
7. Power to issue Witness Summons
The High Court and a magistrate’s court have power to issue summons
requiring the attendance of a person before the court or to bring and produce
any document or thing in their possession if it is made to appear to the court
that material evidence can be given by or is in possession of any person.
8. Power of issue Warrant instead of Summons
The court has power to issue a warrant of arrest at any time before or after the
time appointed in the summons for the appearance of the accused. [S.54(1) of
M.C.A and S.5 of T.I.A].
As regards a witness, if the court is satisfied by evidence on oath that such

person will not attend unless compelled to do so, it may at once issue a
warrant for the arrest and production of the witness before the court at a
specified time and place. [S.96 of M.C.A and S.35 of T.I.A].
Where the witness is in prison the court has power to issue a production
warrant to the officer-in-charge of such prison, requiring him/her to bring the
prisoner to attend court for examination, at a time specified in the warrant.
However, where the warrant or order is directed to an officer in charge of the
prison outside the local jurisdiction of the issuing court, the warrant must be
sent for endorsement by a magistrate within the local jurisdiction where the
warrant is to be executed. Such endorsement is sufficient authority to the
officer in charge of the prison to whom the order is directed to execute the
warrant. [S.98(1) of M.C.A and S.37(1) of T.I.A].
It is the duty of the officer-in-charge to execute the warrant and provide for the
safe custody of the prisoner while being taken to answer the warrant. [S.98(2)
of M.C.A and S.37(2) of T.I.A].
9. Service of Summons

text] Page 107
a) Mode of Service: A summons is served by a police officer or an officer of the
court issuing it (process server), or another public servant (e.g. chief). It
should, if practicable, be served personally on the person summoned by
delivering to him/her the duplicate of the summons. [S.45(1) of M.C.A].
Every person on whom summons is served must sign acknowledging service

or receipt of the summons on the back of the original summons, if required to
do so by the serving officer [S.45(2) of M.C.A].
b) Service when person cannot be found: If the person summoned cannot be

found, the summons may be served by leaving a duplicate copy with an adult
member of his/her family or with his/her servant or employer. The person with
whom the summons is left may be required to sign at the back of the original
summons as evidence to service [S.46 of M.C.A].
c) Procedure when service cannot be effected: If service cannot be effected

as above, the serving officer is required to affix the duplicate summons to
some conspicuous part of the house or home in which the person summoned
ordinarily resides. The summons is deemed to have been duly served thereby
[S.47 of M.C.A].
d) Service of Public Officer: Where a person summoned is in the service of the

government, the court issuing it should ordinarily send it, in duplicate, to the
head of the office in which such person is employed. It is the duty of such
head to serve the summons on the person summoned and return it to the
court with his/her signature and the endorsement of the person summoned.
[S.48 of M.C.A].
e) Service on Company: Service of a summons on an incorporated company or

other body corporate may be effected by serving on the Secretary, local
manager, or other principal officer of the corporation. Service may also be
effected by registered letter addressed to the Chief Officer of the corporation
at the registered office of the Company. Service by registered letter is deemed
to have been effected when the letter would arrive in the ordinary course of
post (S.49 of M.C.A).
10. Proof of Service
When the officer who served the summons is present in court, he/she may
testify in court to prove service of the summons. Where the officer who served
the summons is not present at the hearing of the case, proof of service is
text] Page 108
effected by an affidavit sworn before a magistrate that such summons have
been properly served, and attaching to the original copy of the summons
which is returned to the court. Such affidavit and the original summons are
admissible in evidence, and the statements made in the affidavit are deemed
correct until the contrary is proved (S.51 of M.C.A).
11. Disobedience of summons by accused
If the accused person, other than a corporation, does not appear at the time
and place specified in the summons and his/her personal attendance has not
been dispensed with, the court has power to issue a warrant to apprehend
him/her and cause him/her to be brought before such court. [(S.55(1) of
M.C.A].
12. Disobedience of Summons by Witness
If a witness does not appear in obedience to the summons without sufficient

excuse, and it is proved that the summons was served properly and
reasonable time was given to the witness to attend, the court has power to
issue a warrant of arrest to bring him/her before the court at such time and
place specified in the warrant. [S.95 of M.C.A and S.34 of T.I.A].
When any witness is arrested under a warrant of the court, he/she may be
released on bail on furnishing sufficient security for his/her appearance at the
hearing of the case. If he/she fails to furnish such security, he/she is ordered
to be detained in custody for production at the hearing. [S.97 of M.C.A and
S.36 of T.I.A].
13. Penalty for Non-attendance of Witnesses
Any person summoned to attend as a witness who fails to attend as required,

or having attended departs without the permission of the court, or fails to
attend after adjournment when ordered to attend, without lawful excuse, is
liable by order of the court to fine not exceeding Shs.400/- [S.99(1) of M.C.A
and S.38(1) of T.I.A].
Such fine may be recovered by attachment and sale of movable property of

the witness. If that fails, the witness may be imprisoned as a civil prisoner for a
period of fifteen days unless such fine is paid before the end of that period.
[S.99(2) and (3) of M.C.A and S.38(2) and (3) of T.I.A].

text] Page 109
The High Court has power to remit or reduce any such fine imposed by a
magistrate’s court. [S.99(4) of M.C.A].
CHAPTER 19
CONDUCT OF TRIALS AND HEARING BEFORE
MAGISTRATES COURT
1. Outline of Trial Procedure:
Broadly the procedure at hearings which is laid down under Section 119-160
of M.C.A is as follows:
The accused is arraigned or informed of the charge against him/her and in

asked to plead. (S.124). It he/she pleads guilty, the prosecutor outlines the
facts upon which the charge is founded and then the accused is convicted on
his/her own plea of guilty. He/she may then be sentenced after the prosecutor
has informed the court about the accused’s character especially the record of
previous convictions.
If the accused pleads not guilty, the provision of Section 126 come into play.
The prosecutor opens the case and calls witnesses to testify against the

text] Page 110
accused. The witnesses are examined-in-chief by the prosecutor, they are
then cross-examined by the accused or his/her advocate, and the prosecutor
may lastly re-examine them. After they have testified, the court will rule
whether there is a prima facie case mad out against the accused to justify
being put on his/her defence. If there is no sufficient case made out then the
court must dismiss the case and acquit the accused forthwith (S.127).
If there is a prima facie case then the accused is informed to his/her rights
namely, to remain silent, to give evidence on oath from the witness box in
which case he will be liable to be cross examined or to make an unsworn
statement without being cross examined by the prosecution. Whatever the
accused chooses to do, he/she is entitled to call witnesses (S.128). The right
to remain silent is not provided for in this Section, rather it is a constitutional
human right contained in Article 28(11) namely, a person shall not be
compelled to give evidence against themselves.
The court then hears the defence case after which the prosecutor and defence
may address the court on the evidence and the law in regard to their
respective cases.
After the hearing of the case, the magistrate may give the judgment or reserve
it for another date. The court may acquit the accused having found him/her not
guilty and order their release from custody, or it may convict the accused. The
judgement must be pronounced in open court (Section 135).
After delivering judgment the court then invites the prosecutor to give a record
of the accused to enable it to access the sentence. After hearing the
prosecutor, the accused should be given a chance to say something in
mitigation of sentence. Finally, the magistrate determines the sentence and
passes it in open court.
2. Mention and fixing Hearing date
While investigations are being conducted against the accused, the accused
may be remanded in custody or on bail. It is the normal practice of the courts
to remand the accused for two weeks. After two weeks the accused appears in
court to be informed of the position of the case and to be further remanded.
This is what is known as mention of the case.
When the prosecution is ready to produce evidence against the accused, a

hearing date is fixed. A hearing date should be convenient for both the

text] Page 111
accused and the prosecution so that both can be able to appear and proceed
with the hearing.
After the hearing date has been fixed, the prosecution applies for issue of
witness summons to enable them to call their witnesses. The prosecution
normally serves the summons through the Police, Process Server and the
Chiefs.
If the hearing date fixed is found to be unsuitable for either party or the
witnesses cannot attend court on that date, an application for adjournment to
another hearing date, should be made and it is upon the discretion of the court
to grant or refuse such application.
3. Non-appearance of the Complainant
The court is given power to dismiss the case if the prosecutor does not appear
on the date fixed for hearing. This power is given by Section 119 of M.C.A. It is
provided that if the accused person appears in obedience to the summons
served upon him/her to appear at a place and time appointed in the summons
for hearing of the case or is brought before the court under arrest, then if the
prosecutor having had notice of the time and place appointed for the hearing
of the charge does not appear unless for some reason, the court if it thinks it
proper may adjourn the hearing of the case to some other date. The court may
then remand the accused in prison or admit him/her on bail.
4. Withdrawal from Prosecution
In any proceeding before a magistrate’s court, the prosecution may, with the
consent of the court, or on the instructions of the Director of Public
Prosecutions, at any time before judgement is pronounce, withdraw from the
prosecution of any person (Section 121 of M.C.A).
If such withdrawal is made before the accused person is called upon to make
his/her defence, he/she shall be discharged, but such discharge shall not
operate as a bar to subsequent proceedings against him/her on account of the
same facts. [Section 121(a)of M.C.A]. Under this provision, the prosecution
may withdraw the charge for some reason or another e.g. insufficiency of
evidence or unavailability of witnesses, but if they obtain more and adequate
evidence or the witnesses become available, they can re-institute proceedings
against the accused based on the same facts.

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If such withdrawal is made after the accused is called upon to make his/her
defence, he/she shall be acquitted: [Section 121(b) of M.C.A]. If the
prosecution withdraws the case after hearing what the accused has to say in
his/her defence, it means that they concede that they have no case. In such
situation the accused is not merely discharged but acquitted of the charge so
that no subsequent charges can be brought against him/her on the same
facts. The acquittal gives an absolute or complete discharge and he/she can
plead at a subsequent trial that he/she has previously acquitted of the charge.
The normal practice is for the prosecution to withdraw the charge before the
hearing of the case after completing their investigations or to do so during trial
but before the close of the case for the prosecution.
It should be noted that unless the prosecutor has written instructions from the
DPP contained in form signed and stamped personally by the DPP to withdraw
the charge, he/she should seek the permission of the court to withdraw the
charge by proper application to that effect in court. Where the prosecutor has
received instructions from the DPP to withdraw the charge, he/she should so
inform the court, and in this instance, the court has no discretion to refuse the
withdraw because the DPP would be exercising his constitutional powers,
under Article 120(3)(d).
5. Adjournments
The court has power to adjourn (postpone) the hearing of the case if sufficient
cause is shown. The application has to be made in open court for such
adjournment. (Section 122 of M.C.A) An application by letter is not proper.
It is required by the same Section that where the evidence has first begun, the
trial shall be continued from day to day until it is concluded, unless the court
finds the adjournment of trial beyond the following day to be necessary for
reasons to be recorded.
Where a hearing is adjourned the court should appoint a time and place for
the resumption of the proceedings and in the meantime the accused is either
released on bail or remanded in custody. No such adjournment should be for
more than thirty clear days and if the accused is committed to prison, he/she
should not be so remanded for more than fifteen clear days, the day following
that on which the adjournment is made being counted as the first day.
It is improper for a magistrate to adjourn the case indefinitely or sine die.

He/she must always fix a date for the subsequent hearing. Adjournments

text] Page 113
should be applied for and granted only in the interests of justice and not as
delaying tactics.
6. Non-appearance of Parties after adjournment
If the accused does not appear before the court on date fixed for further
hearing then the court may proceed to hear the case as if the accused was
present, unless the accused is charged with a felony. [Section 123(1) of
M.C.A].
If the accused is charged with a felony and does not appear at the resumed
hearing a warrant of arrest is issued against him/her [S.123(4)].
If the court convicts the accused in his/her absence, it may set aside the
conviction on being satisfied that the absence was from causes over which
he/she had no control and that he/she had a probable defence on merits.
On the other hand, if the complainant does not appear on the date adjourned
for hearing, the court may dismiss the charge with or without costs as the court
thinks fit [S.123(1) of M.C.A]. It seems that the word complainant means
prosecutor whether private or public and not necessarily the victim or
aggrieved party where the prosecution is a public prosecution. It also appears
that the dismissal does not amount to an acquittal of the accused, and
therefore is not a bar to subsequent proceedings for the same offence.
7. Reconciliation
The court is given power under Section 160 of M.C.A to promote reconciliation
and encourage and facilitate the settlements, in an amicable way, of
proceedings for assault, or for any offence of a personal or private nature, not
amounting to a felony or not aggravated in degree. The court may reconcile
and settle such cases by ordering payment of compensation or other terms it
may approve. Upon such settlement the court may order the proceedings to
be stayed.
It should be noted that this procedure for settling criminal cases is confined to
simple cases of a personal or private nature, which do not amount to a felony.
An offence is a felony if it is so declared by the Penal Code or one, which if not

text] Page 114
declared as misdemeanor is punishable on conviction with death or
imprisonment for three years or more. (Section 2 of the Penal Code).
8. Reservation of question of law
A magistrates’court is given power to reserve a difficult question of law arising

during the course of trial for determination by the High Court. This power is
given by Section 206 of the M.C.A. It is provided there under that a
magistrate’s court presided over by a Chief Magistrate or a Magistrate Grade I
may, at any stage of the proceedings and before judgment, reserve a question
of law arising during the trial of any accused person for the opinion of the High
Court. The court is bound to reserve the point of law on application of the
DPP.
Where a question of law has been reserved, the magistrate should make a
record of the question reserved with the circumstances under which it arose
and then transmit a copy of the record to the Chief Registrar of the High Court.
The accused should in the meantime be remanded in custody or released on
bail, and the proceedings adjourned. [S.206(2) of M.C.A].
No party has a right to be heard before the High Court when determining the
question of law reserved, but the High Court may, if it thinks necessary, hear
any party either personally or by advocate. [S.206(4) of M.C.A].
The High Court is required to consider and determine the question reserved
and then remit the case to the magistrate’s court with its opinion on the
question reserved. The Magistrate must dispose of the case in accordance
with the opinion of theHigh Court.
Chief Magistrates and Magistrates Grade I who are professional lawyers
should not readily resort to this procedure of deciding preliminary points of
laws. They should decide them according to their understanding of the law,
and where one party is not satisfied he/she should appeal to the High Court. If
this procedure is adopted all too often it will slow down the process of deciding
criminal cases which should be completed within a reasonable period. The
power to reserve a question of law should be invoked in what cases may be
decided in accordance with the authoritative opinion of the High Court. It is
also appropriate to exercise the power where the point of law involved is one
of the general or public importance.

text] Page 115
There is no particular form prescribed for magistrates to adopt in reserving the
point of law. But the High Court has approved a form more or less as follows:
“In the High Court of Uganda
Uganda :::::::::::::::::::::::::::::::::::::Prosecutor
= Versus=
XY ::::::::::::::::::::::::::::::::::::::::::::Accused
(Criminal Case No…………………..)
RESERVATION OF QUESTION OF LAW
Question of law reserved by A.B Chief Magistrate/Magistrate Grade I, of the

Magisterial Area of………………under Section 218 of the M.C.A in respect of
a point of law arising in proceedings before him/her.
Facts of the Case
1. On the …………………day of……………20…….., the accuse appeared before

me charged with……………(State offence and particulars therefore).
2. I heard the case against the accused on………………and found the following
facts (Set out in separate lettered paragraphs).
3. In the courts of hearing (or before the hearing) a point of law was raised
by…………that……………(state point of law).
4. It was contended by (the party which raised the point) that……………..
5. It was contended by (the other party) that……………..
6. I was referred to the following cases……………
The Question of Law Reserved
7. The question of law for the opinion of the High Court is………………………
Dated the……………..day of……………………20…..
Signed…………………………………………….
Chief Magistrates/ Magistrates
Grade I

text] Page 116
9. Opening Address
An opening address is a statement to court by the prosecutor or the accused

(normally through his/her advocates) at the start of hearing the case. The
purpose of the address is to give the court the brief facts of the case so that it
may follow the evidence adduced.
It is provided under Section 133(1) of M.C.A that the prosecutor and the
accused person shall be entitled to address the court at the commencement of
their respective cases. In practice, however, the right is exercised mainly by
State Attorneys when they appear fir the prosecution especially in the High
Court. But it is a good practice for the prosecutor to outline the facts of the
case before calling the first witness, particularly where the case is complicated
and the court might not follow easily the evidence given by witnesses without
such prior outline. An opening address is not necessary in simple cases.
10. Prosecution Case
After opening the case, the prosecutor adduces evidence in support of the
charge laid against to accused. Witnesses are called one by one and
examined by the prosecutor to elicit the evidence from them and are cross-
examined by the defence to test their credibility.
It is upon the prosecutor to call as many witnesses as he/she has a hopeless

or weak case due to the poor performance of the witnesses, the prosecutor is
entitled to offer no further evidence and in such case the court will normally
acquit he accused after finding that the accused has no case to answer on the
basis of evidence adduced by the prosecution.
The graver the charge, the heavier the burden of proof and the prosecutor
should endeavour to adduce cogent and convincing evidence to satisfy the
court about the quilt of the accused beyond any reasonable doubt.
11. No case to answer and Prima Facie case
A finding of no case to answer is made at the close of the case for the
prosecution. In accordance with Section 127 of M.C.A, if at the close of the
evidence in support of the charge it appears to the court that a case is not
made out against the accused sufficiently to require him/her to make a
defence, the court shall dismiss the case and shall acquit him/her forthwith.

text] Page 117
When a court finds that there is a case to answer at this stage, it is said that
the court has found prima facie (an arguable case, convincing on the face of it
against the accused).
A prima facie case been defined to mean such a case on which a reasonable
tribunal properly directing its mind to the law and the evidence could convict if
no explanation is offered by the defence. [See Bhaattv.R. (1957 (EA 322].
It should be noted that a prima facie case does not mean a case proved
beyond reasonable doubt, it is less than that. Secondly, the court is not
required at this stage to decide fully whether the evidence is worthy or credit,
or whether if believed is weighty enough to prove the case conclusively
because such final determination can only properly be made when the case
for the defence has been heard. Wibiro alias Musa V.R (1960) EA 184.
A court may hold that there is no case to answer or that there is no prima facie
case made out by the prosecution, when any of the following conditions exist:
a) When there has been no evidence to prove an essential element in the
alleged offence, or
b) When the evidence adduced by the prosecutor has been so discredited as
a result of cross examination, or is so manifestly unreliable, that no
reasonable tribunal could safely convict on it.
See Practice Note (1962)1 ALLER 448
A submission of no case to answer may be made by the accused or his/her

advocate. The prosecutor is entitled to reply by way of argument. The court
must make a ruling on the matter. If it rules that there is a case to answer,
court must give reasons for so holding in the final judgment. If the court holds
that there is no case to answer, it must write a detailed ruling amounting to a
final judgment giving its reasons for so holding since the resultant acquittal of
the accused is an absolute discharge, and the accused cannot be tried on the
same facts subsequently, unless the acquittal is set aside by an appellate
court.
12. Defence Case
After the court has ruled that there is a case against the accused to answer,
the provisions of Section 128 of M.C.A come into play. The court is required to
do the following: -

text] Page 118
a) Explain to the accused the substance of the charge;
b) Inform the accused that he/she has the right to given evidence on oath
from the witness box and that if he/she does so, they will be liable to cross-
examination, or to make a statement not on oath from the dock;
c) Ask the accused if they have any witnesses to call or other evidence to
adduce in their defence;
d) Hear the accused and his/her witnesses and other evidence;
e) Adjourn the hearing and summon the witnesses for the accused, if they are
not present in court.
Where there are more than one accused person, the court may either hear
each accused person and his/her witnesses, if any, in any turn or if appears
more convenient, will hear all the accused persons and then hear all their
witnesses.
If the accused person adduces evidence in his/her defence introducing new

matter which the prosecution could not by the exercise of reasonable diligence
have foreseen, the court may allow the prosecutor to adduce evidence in reply
to contradict the said mater. Such evidence is called evidence in rebuttal.
(S.130 of M.C.A).
It should be noted that although the accused has a right to give evidence on
his/her behalf, he/she does not have any burden of proving his/her innocence
by disproving the charge. Even where he/she raises a defence (except
insanity) he/she doesnot assume the burden of proving it. For instance, if
he/she raises in alibi a defence that he/she was somewhere and not at the
scene of crime when it was committed he/she has no duty to prove it. It is for
the prosecution to disprove it by evidence.
13. Final Addresses (Submissions)
Section 131(2) of M.C.A gives the prosecutor and the accused a right to
address the court after the accused has closed his/her case. The order of the
speeches is as follows: -
a) Where accused gives evidence but calls no witness, the prosecutor

addresses the court first and then the accused replies;

text] Page 119
b) Where the accused does not give evidence nor call any other evidence,
the prosecutor begins and the accused replies;
c) Where the accused gives evidence or makes statement and calls

witnesses, the accused begins the address to the court and the prosecutor
replies. The same order applies where accused does not give evidence but
calls witnesses.
The court has power to vary the above order of address in certain cases. The
right of address may be exercised by an advocate representing the prosecutor
or the accused. [S.131(4) of M.C.A].
The purpose of the final addresses, (also known as final submission) is to

enable the party to present to the court a comprehensive summary of his/her
case as presented in court, the law applicable to the facts, and try to persuade
the court to believe and accept the party’s case. The address should appeal to
reason not emotion. It should be persuasive but not dramatic or an exercise in
oratory and present a favourable picture of the party’s case.
14. Trial by Succession of Magistrates
Section 144(1) of MCA provides that when a magistrate after hearing and
recording evidence in whole or in part ceases to exercise jurisdiction in the
trial and is succeeded by another. The successor may act on the evidence so
recorded, and may re-summon witnesses and recommence trial if the
circumstances so demand.
Similarly, a successor magistrate may pass sentence after his predecessor

has ceased to have jurisdiction [S.144(2)] the Court of Appeal in Eustace Vs.
Rep. 1970 E.A 393 held that a trial cannot be conducted by a succession of
magistrates, except one successor magistrate. The Supreme Court of Uganda
has now refused to follow that case and held that any number of successor
magistrates can complete the case so long as the accused is not prejudiced.
CHAPTER 20
EXAMINATION OF WITNESSES
1. Examination of witnesses in general

text] Page 120
a) Nature of Examination
Examination of witnesses is the process by which the prosecution or the

accused produce their evidence in court to establish their respective cases. It
is the means of proving or disproving the charge.
It is therefore the duty of the party calling the witnesses to examine him/her so
as to elicit the evidence they have in their possession. The order of
examination of witnesses is laid down in Section 137 of the Evidence Act. It is
provided in this Section that 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.
b) Witnesses Examination upon oath or affirmation
Every witness is required to be examined upon oath administered by the

court [S.101(1) of M.C.A]. If the witness objects to being sworn on religious
grounds, he/she is permitted to make his/her solemn affirmation is taken to
be of same effect as the taking of oath A child of tender years may give
evidence not on oath if the court is satisfied that he/she does not understand
the nature of the oath but that is possessed or sufficient intelligence and
know the duty of speaking the truth.
c) Presentation of Evidence
For each side, whether prosecution or defence, it is better practice to lead

evidence in such a way that the court is given a broad picture of the case at
the beginning of the case. There should be a frame-work provided in which
the evidence adduced later can be fitted in without too much confusion. That
is why it is normal practice to call the key or star witness first. He/she may be
complainant or the eye witnesses witnessed the incident. This practice also
helps the prosecutor to gauge the likely strength of their case. Formal
witnesses should normally be called at the end of the case. But they can
also be disposed of at the beginning if it is necessary.
It is normal practice for witnesses who have not given evidence to be asked
to wait outside the court so that they do not hear what other witnesses have
been saying in court. If a witness gives evidence after sitting in court and
hearing what other witnesses from his/her side have testified, his/her
evidence may be given less weight. Therefore, before the hearing begins, all

text] Page 121
witnesses should be asked to leave the court, and will be called one by one.
After giving evidence, witnesses are free to sit in court.
2. Choice and order of calling witnesses
There is no hard and fast rule governing the choice and order in which
witnesses may be called by the party calling them. These are matters within
the discretion of the prosecutor or the accused as the case may be. Witnesses
who have direct evidence are preferred to those who can only give indirect
evidence, and those who have primary evidence are preferred to those who
have secondary evidence, on the same issue. The basic principle in choice of
witnesses is that those who can give best evidence are given priority. Adults
are of course preferred to children of tender year whose evidence requires
corroboration. Independent witnesses are also much better than those who
have an interest in the matter or who have collaborated with the accused,
namely accomplices.
As regards the order of calling witnesses, Section 134 of the Evidence Act
provides that 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, and in the absence of such law, by the discretion of the
court. It is provided in Section 137 that the prosecution calls its witnesses first
and thereafter the accused may call his/her evidence if there is a case for
him/her to answer (S.128 of M.C.A).
The court is required to record the sex and approximate age of each witness
and may also record such remarks if any as it thinks material respecting the
demeanor of such witnesses whilst under examination. (See S.141 of M.C.A).
3. Examination-in-Chief
The examination of a witness by a party who calls him/her is called

examination-in-chief [S.136(1) of Evidence Act]. The witness is called in order
to support the party’s case. The aim of examination-in-chief is therefore to
obtain from the witness a complete orderly story told by the witness in his/her
own natural way. The story should be given in the right order usually the order
of time and it there are different topics or incidents he/she should finish one
before embarking on the next.

text] Page 122
The prosecutor should know the main lines of evidence so that he/she
understands what he/she is seeking to prove. Then the prosecutor should use
his/her words skillfully to guide the witness in the right direction. Leading
questions must not be asked in examination-in-chief. (Section 141 of Evidence
Act). A leading question is defined as any question suggesting the answer,
which the person putting it wishes or expects to receive. (Section 140 of
Evidence Act).
Leading questions may be allowed by the court in examination-in-chief on

matters which are introductory or undisputed or which have in the opinion of
the court been sufficiently proved.
While the prosecutor or the accused may not lead a witness, he/she must
guide the witness and assist them to remember what they have forgotten and
to appear a credible witness to court.
4. Cross-examination
The examination of a witness by the adverse (opposite) party is called cross-

examination [Section 136(2) of the Evidence Act].
The aims of cross-examination are mainly the following:

i. To destroy the material part of the evidence produced during
examination-in-chief;
ii. To weaken the evidence where it cannot be destroyed;
iii. To elicit new evidence helpful to the party cross-examining;
iv. To undermine the witness by shaking their credibility and showing that
he/she cannot be trusted to speak the truth.
To achieve the above aims, it is necessary for the witness to be examined on

all the material facts, which are disputed, otherwise the court may assume that
his/her evidence is not contested. It is also necessary to use the opportunity to
put forward the case of the party cross-examining. Leading questions may be
asked in cross-examination (S.142 of Evidence Act). Cross-examination is not
limited to facts, which the witness has testified in his/her examination-in-chief.
The techniques used in cross-examination are, namely, confrontation, probing,

insinuation and undermining:

text] Page 123
i. Confrontation consists in confronting the witness with damaging facts
which they cannot deny and which are inconsistent with their evidence.
ii. Probing consists in inquiring thoroughly into the details of the story to
discover the flaws or weakness.
iii. Insinuation consists in the building up of a different version of evidence

by bringing out new facts and possibilities so that while helping to
establish a positive case in ones favour at the same time it weakens the
evidence-in chief by drawing out its sting.
iv. Undermining involves cross-examination as to credit. The object is to

show that the witness cannot be relied upon to tell an accurate or
truthful story.
5. Re-examination
Re-examination is the examination of a witness subsequent to the cross-

examination, by the party who called him/her. [S.136(3) of Evidence Act].
Re-examination must be directed to the explanation of matters referred to in

cross-examination, and if a new matter is by permission of the court
introduced, the adverse party may further cross-examination upon the matter.
(S.137 of Evidence Act). Leading questions may not be asked in re-
examination.
The purpose of re-examination of a witness is to explain or quality admissions
made by the witness when cross-examined which may be damaging to the
party’s case. If there is nothing to explain away then there is no need for re-
examination.
Re-examination is limited to matters raised in cross-examination. New matters

may only be introduced with the permission of the court.
The techniques used is one of insinuation of facts or possibilities which give a

different turn to the answers given in cross-examination.
6. Power of Court to call or recall material witness
The court has power to call or re-call any person as a witness at any stage of
proceedings. The court has a duty to call or re-call and examine such a person
if the evidence appears to be essential to the just decision of the case (S.100
of M.C.A).
The prosecutor or the accused must be given a right to cross-examine any

such person called or recalled as a witness.

text] Page 124
The point to note is that the court has power,
i. To summon or call any witness whom it thinks may give material

evidence where such a witness is not called by either party.
ii. To recall any witness who has already given evidence to give further
evidence.
Either party may apply for re-calling a witness especially where the evidence
intended to be adduced was not in the possession of the witness, or the party
had no knowledge about it, or it is required to rebut or counteract evidence
adduced by the other party.
7. Hostile witness
A hostile witness is one who deliberately turns against the party which called
him/her, while giving evidence in examination-in-chief. He She turns against
him/her by giving unfavourable and destructive evidence against the case. Not
everyone who gives unfavourable or unhelpful evidence is hostile witness.
Such a witness may be forgetful or stupid and may not be giving unfavourable
evidence with view to assisting the opposite party.
One example where the witness may be treated as hostile is where the
evidence given in court deliberately conflicts with any statement he/she made
during police investigations.
Where a party finds that the witness has turned hostile, he/she may apply to
the court under Section 129 of M.C.A to declare such a witness hostile. If the
court declares that the witness is hostile to that party, it may allow the party to
conduct the examination-in-chief as if it were a cross-examination and may
determine the order of his/her examination by other parties. Therefore, the
party calling him/her cross-examine him/her to undermine him/her and destroy
his/her evidence.
Once the witness has been declared by the court to be hostile, the evidence
cannot be relied on by either party or by the court, for it is inherently
unreliable.
8. Refractory witness
A refractory witness is a person who when called to attend court by summons

or warrant refuses to be sworn or answer questions or to produce any
document or to sign his/her deposition without sufficient excuse. [Section
102(1) of M.C.A]. He/she is an obstinate witness.

text] Page 125
Where a witness conducts him/herself as such, the court has power to adjourn
the case for a period exceeding eight days, and may in the meantime commit
such a person to prison unless he/she sooner consents to do what is required
of him/her. If such a person upon being brought before the court at or before
such adjourned hearing again refuses to do what is required of them, the court
may against adjourn the case and commit him/her for the like period, and so
on again from time to time until such person consents to do what is so
required of them.
9. Trial within a trial
A trial within a trial is a trial of an issue within the main trial. It normally
happens when the admissibility of a confession by the accused is disputed by
the accused.
Where the prosecution wishes to put in evidence a confession made by the

accused (S.23 Evidence Act) the accused is free to object to its production in
evidence. The commonest ground for objecting to the admissibility of a
confession is that it was obtained involuntarily i.e. through force, threats or
inducement by persons in authority especially those recording the statement.
Sometimes, the accused alleges that he/she never made the confession at all,
and was merely forced to sign the statement.
The prosecution will of course argue that the confession was made voluntarily.
A confession which is made involuntarily or in contravention of the law, is
inadmissible in evidence so the court has to hear evidence on how the
confession was recorded in order to determine whether the confession should
be admitted in evidence.
The procedure for a trial within a trial in the High Court and in the
Magistrates‘Courts is as follows:
i. When it appears to the court that the prosecution intends to prove a

confession against the accused, the court should find out from the
accused or his/her advocate if he/she objects to the admissibility of the
confession.
ii. If the accused has no objection and the confession is admissible in law,
then the confession can be allowed and there will be no trial within a
trial.
iii. If the accused objects to the admissibility, the prosecution has to call
witnesses to testify only on the issue of the confession. These would be
persons who had custody of the accused and those who recorded the
statement from him/her. These witnesses will be cross-examined by the
accused.

text] Page 126
iv. The accused will then give evidence and call witnesses on this issue, if
he/she so wishes. They will be cross-examined by the prosecution.
v. The prosecution or the accused may address the court by way of

submission on the issue of admissibility of the confession.
vi. In the High Court the assessors should not be asked to leave the court
during trial within trial, and judge may seek their opinions on any fact
relevant to the issue, but the decision on admissibility is for the judge
alone (S.81 of T.I.A).
vii. The court will then give a ruling whether the confession is admissible or
not, and that will be the end of the trial within a trial.
viii. If the statement is inadmissible, the prosecution will not produce it in

court.
ix. If the statement is held admissible, the main trial will resume and the
prosecution will call the witnesses to produce the confession in
evidence. The witnesses who were called during a trial within a trial will
be called again because what they said in a trial within a trial is not
evidence for the main trial.
The requirement to hold a trial within a trial is purely a rule of practice and not
a rule of law, but it must be observed. The law governing the admissibility of
confessions is found in Section 23-29 of the Evidence Act. [See
KinvorisioKiridutu Vs R (1956) EACA 48, Richard Vs Rep.(1969)EA 138,
Ezekia Vs Rep (1972)EA 429).
10. Child evidence and Voire Dire Procedure
Under Section 101(3) of M.C.A where in any proceeding any child of tender
years called as a witness does not in the opinion of the court understand the
nature of an oath, if his/her evidence may be received, though not given upon
oath, if in the opinion of the court, he/she is possessed of sufficient intelligence
to justify the reception of the evidence and understands the duty of speaking
the truth.
However, where the evidence of a child is admitted not on oath on behalf of
the prosecution, the accused cannot be convicted unless such evidence is
corroborated by some other material evidence in support of it implicating the
accused.
There provisions concern children of tender years i.e. children under the age
of 14years. Therefore, the court has to assess the age of the child or indoor to
decide whether the child is one of tender years. If the child is old enough that
is about 14 years he/she can give evidence on oath without further inquiry as

text] Page 127
to his/her knowledge about the oath and his/her intelligence which will be
presumed.
It is the duty of the Magistrate to carry out the investigation and make definite
findings on the capacity of the child to give sworn or unsworn evidence. The
inquiry the Magistrate makes in this connection is called a voire dire. The
procedure followed is as follows:
a) The court should first find out whether the child understands the nature of an
oath. In this connection the child should be questioned about his/her
religious beliefs and the purpose of swearing.
b) If the child understands the nature of oath, he/she can be sworn, and give
evidence on oath.
c) If the child does not understand the nature of the oath, the child cannot be
sworn, and the court must carry out more inquiry as to whether the child;
i. Possesses sufficient intelligence and

ii. Understands the duty of speaking the truth.
For this purpose,the court should put questions to test the child’s general
knowledge and perception and find out if he/she knows the difference between
truth and lies and the need to tell the truth.
d) If the child does not possess sufficient intelligence nor understands the duty
to speak the truth, his/her evidence cannot be received in court. He/she
cannot give even unsworn evidence.
e) If the child is possessed of sufficient intelligence and understands the duty to
speak the truth, he/she will be permitted to give evidence not on oath. (see
KibangenyArapKolil Vs R (1959) EA 92).
Although it is a legal requirement that unsworn evidence of a child requires

corroboration to support a conviction, in practice even a child’s evidence on oath
requires corroboration by some other independent evidence implicating the
accused.
It should be noted that even a child who gives evidence not on oath is liable to
cross-examination just like any other witness.
11. Commission for Examination of Witness

A commission is a request by a court sent to another court for examination of
a witness who resides within the local jurisdiction of the latter court. The

text] Page 128
evidence thus recorded is then returned to the court which issues the
commission for use in the trial pending before that court.
The power to issue a commission is given to a Chief Magistrate (Sections 105

and 107 of M.C.A). If in the course of any proceedings a Chief Magistrate is
satisfied that the examination of a witness is necessary for the ends of justice,
and the attendance of the witness cannot be procured without any amount of
delay, expense or inconvenience which under the circumstances of the case
would be unreasonable, the Magistrate may issue a commission to any
magistrate, within the local limits of whose jurisdiction such witness resides, to
take the evidence of such witness. [S.105(1) of M.C.A]. The magistrate to
whom the commission is issued is requested to proceed to the place where
the witness is, or summon the witness before him/her, and then take down
his/her evidence in the same manner as if it were a trial. (S.105(2) of M.C.A).
The parties to the proceedings, namely the prosecution and the defence, have
a right to forward any written interrogatories (questions) which the court
directing the commission may think relevant to the issue. The magistrate to
whom the commission is directed must examine the witness upon such
interrogatories. Any part may appear before such magistrate by advocate, or if
not in custody in person, and may examine, cross-examine or re-examine the
witness. (S.106 of M.C.A).
If a magistrate other than a chief magistrate finds it necessary to have a

commission issued, he/she should apply to the chief magistrate of the area
who may either issue of commission or reject the application. (S.107 of
M.C.A).
After the commission has been duly executed it should be returned together
with the deposition of the witness examined to the court which issued the
commission. The commission, the return and the deposition should be open at
reasonable times for inspection of the parties, and may be read in evidence on
behalf of either party and should form part of the record. (S.108(1) of M.C.A).
12. Evidence by Commission for foreign tribunals
The examination of witness whose evidence is required in foreign tribunals is
governed by the Foreign Tribunals Evidence Act, (Cap.10) and the Foreign
Tribunal Evidence Rules (S.1 41-5). The Act regulates the taking of evidence
within or outside Uganda in relation to proceedings before courts within or
outside Uganda.
If there is a witness in Uganda whose evidence is required in proceedings in a
foreign country, this evidence may be recorded here and sent to the
requesting foreign country. Similarly, if there is a witness outside Uganda
whose evidence is required here in criminal proceedings, his/her evidence

text] Page 129
may be taken in the country and forwarded to the court conducting the
proceedings.
The Foreign Tribunal Evidence Act provides that where in any criminal
proceedings a mandamus or order for the examination of any witness or
person is addressed to a court of competent jurisdiction beyond the jurisdiction
of the court ordering the examination, it shall be lawful for such a court, to take
the examination of such witness or person. (S.2(1) of the Act).
Any deposition or evidence so taken is admissible in evidence to the same
extent as if it had been taken by or before a court or judge to whom the
mandamus or order was addressed (S.2(2) of the Act).
Only the High Court, and a court of Chief Magistrate or Magistrate Grade I
have jurisdiction under the provisions of the Foreign Tribunal Evidence Act
(S.10 of the Act).

text] Page 130
CHAPTER 21
SUMMARY PROCEDURES
1. Procedure in case of Minor Offences
A court presided over by a Chief Magistrate or Magistrate Grade I have power

to try, in a summary manner, certain minor offences listed under Section
142(2) of the M.C.A. The object is to expedite trials in such cases.
The court is given power to try such offences without recording the evidence
of but the court must record the following particulars (S.142(1) of M.C.A).
a) The serial number;

b) The date of commission of the offence;
c) The date of the complainant
d) The name of the complainant
e) The name, parentage and residence of the accused;
f) The offence complained of and the offence proved, and in cases involving
property, the value of the property in respect of the offence committed;
g) The plea of the accused;
h) The finding and where evidence has been taken, a judgement embodying the
substance of evidence;
i) The sentence or other final order;
j) The date on which the proceedings terminated.
The offences which can be tried in the above manner are as follows:
a) Offences punishable with imprisonment for a period not exceeding six months
or a fine not exceeding Shs.1,000/- or both,
b) Offences against the Weights and Measures Act (Cap.103);
c) Common assault under S.235 of Penal Code;

text] Page 131
d) Theft under Chapter XXVI of Penal Code where the value of the property
stolen does not exceed Shs.1,000.
e) Receiving or retaining stolen property under Chapter XXXI of the Penal Code
where the value of such property does not exceed Shs.1,000.
f) Malicious injury to property where the value of such property does not exceed
Shs.1,000.
g) Any other offence which the Minister may, by Statutory order, permit to be
offences;
h) Aiding, abetting, counseling or procuring the commission of any of the above
offences;
i) Attempting to commit any of the foregoing offences.
When in the course of a trial it appears to the magistrate that the case is of a
character which renders it undesirable that it should be so tried, the magistrate
must recall any witnesses and proceed to rehear the case in the normal manner
provided for hearing cases under the M.C.A.
No sentence of imprisonment for a period exceeding three months and no fine of

an amount exceeding Shs.1,000 can be passed or inflicted in the case of any
conviction under the above provisions except where the accused person has
pleaded guilty. [S.142(4) of M.C.A].
2. Procedure in Trial of Petty cases
Under Section 143 of M.C.A a Chief Magistrate, Magistrate Grade I or a Petty

Sessional Magistrate may, with the consent of the prosecution, try an offence
without recording the evidence of the witnesses.
Any fit person may be appointed a Petty Sessional Magistrate and a magistrate
so appointed shall have such jurisdiction only as is necessary to hear and

text] Page 132
determine cases in the magisterial area to which he/she has been appointed, in
accordance with the procedure laid down in Section 143 of M.C.A.
The magistrate hearing the case must record the following particulars:
(a) The serial number of the case;
(b) The name of the accused;
(c) The date on which the accused first appeared before the court in answer to
the charge;
(d) The date on which the proceedings terminate;
(e) The offence charged;
(f) The plea of the accused;
(g) The finding and sentence or other order.
On conviction for any offence tried under the above procedure, the court has no
power to pass any of the following sentences:
(a) Imprisonment exceeding 14 days, or

(b) A fine exceeding Shs.100 with or without imprisonment in default thereof, or
(c) Corporal punishment, or
(d) Forfeiture.
A magistrate may, if he/she thinks fit, and must if requested by the accused or
his/her advocate, or by the prosecutor, record a sufficient note of any question of
law which may arise during the trial, and any relevant evidence thereto. The
magistrate must transmit the note to the High Court if required to do so by the
Chief Registrar of the High Court. [S.143(4)].
No appeal lies against any finding, sentence or order in a case tried under the
above procedure. [S.143(7) of M.C.A].

text] Page 133
CHAPTER 22
PROCEDURE IN CASE OF INSANITY OR

OTHER INCAPACITY OF ACCUSED PERSON
1. Unfitness to Plead
When in the course of atrial or preliminary proceeding, the court has reason to
believe that the accused is of unsound mind and consequently incapable of
making his/her defence, it should inquire into the fact of such unsoundness
[S.113(1) of M.C.A and S.45(1) of T.I.A]. If the court finds that the accused is
of unsound mind, it must postpone the trial, [S.113(2) of M.C.A and S.45(3) of
T.I.A].
If the accused is charged with an offence for which bail may be granted, the
court has power at this stage to release him/her on bail provided sufficient
security is given that proper care will be taken of him/her and he/she will be
prevented from doing injury to him/herself or to any other person [S.113(3) of
M.C.A]. In a case where the charge is for an offence for which bail cannot be
granted (or if no sufficient security is forthcoming) the court is bound to order
the accused to be detained in safe custody in any suitable place and to
transmit the court record to the Minister [S.113(4) of M.C.A and S.45(4) of
T.I.A].
The Minister then decides where the accused should be detained. He/she may
by warrant directed to the court, order that the accused be confined as a
criminal lunatic in a mental hospital or other suitable place of custody
2. Resumption of Trial
If a medical officer in charge of the hospital or other institution in which the

accused is detained certifies him/her to be capable of making a defence,
text] Page 134
he/she forward the certificate to the DPP. The DPP decides whether the trial
or other proceedings should continue or not. Where the proceedings are to
continue, the court will order the accused to appear before it, and if not to
continue, the court will order his/her immediate release from custody. The trial
or proceedings may continue either where they ended or commence de novo
[S.114 and S.115 of M.C.A or S.46 and 47 of T.I.A]. If the court considers the
accused still to be incapable of making his/her defence, it shall act as if the
accused were brought before it for the first time [S.115(3) of M.C.A or S.47(3)
of T.I.A].
3. Defence of insanity at Preliminary Proceedings
When the accused appears to be of unsound mind at the time of a preliminary

proceeding, the Court must commit him/her for trial by the High Court,
notwithstanding that it is alleged that at the time the offence was committed
he/she was legally insane (S.116 of M.C.A).
4. Defence of insanity at Trial
Where it is proved that the accused committed the act or omission charged
and that he/she was insane at the time when the act was committed, the court
must make a special finding to the effect that the accused is not guilty of the
act or omission charged by reason of insanity. [S.117(1) of M.C.A or S.48(1) of
T.I.A].
When such special finding is made, the court should report the case for the
order of the Minister and should meanwhile, order the accused to be kept in
custody as a criminal lunatic in such place and in such manner as the court
shall direct [S.117(2) of M.C.A or S.48(2) of T.I.A]. The Minister may order
such person to be confined in a mental hospital, prison or other suitable place
of safe custody. [S.115(3) of M.C.A or S.46(3) of T.I.A].
The superintendent of the institution of custody is required to make a report to

the Minister on the condition, history, and circumstances of every such
criminal lunatic at the expiration of a period of three years from the date of the
Minister’s order, and thereafter at the expiration of periods of two years from
the date of last report, [S.117(4) of M.C.A or S.48(4) of T.I.A].On consideration
of such report the Minister may order that the criminal lunatic be discharged or
otherwise dealt with.
The Commissioner of Prisons or the Chief Medical Officer may also make a
special report to the Minister upon which the Minister may act as above.
[S.117(6) of M.C.A or S.48(6) of T.I.D]. The Minister has power to order, at any
time, that a criminal lunatic be transferred from a mental hospital to prison, or
text] Page 135
from prison to a mental hospital, or from any place in which he/she is detained
to either a prison or a mental hospital. [S.117(7) of M.C.A or S.48(a) of T.I.A].
5. Procedure when accused unable to understand proceedings:
Where the accused cannot be made to understand proceedings though

he/she is not insane, the court should proceed to hear all the available
evidence both for the prosecution and the defence, and decide whether the
case is proved or not. If the court finds him/her guilty, it must order that the
accused be detained in safe custody in such place as it thinks fit pending an
order of the Minister. [S.49(1) of T.I.A or S.118(1) of M.C.A].
After the trial of the case the court should transmit the court record or copy of it
to the Minister. Upon consideration of the record, the Minister may order that
the person convicted be detained in such a prison or other place of custody as
he/she may specify in his/her order or that such person be released. The order
may be varied or discharged at any time by the Minister [S.118(3) and (4) of
M.C.A or S.49(3) and (4) of T.I.A].
The procedure approved by the High Court for dealing with a case in which
the accused is a deaf-mute is as follows:
a) The court should establish by medical evidence or otherwise the fact that it
is dealing with a deaf-mute. Having established this fact, it should record
this finding as well as that the accused is mute by visitation of God.
b) The court should next decide whether the deaf-mute is of unsound mind or
not.
c) If the accused is found to be sound-minded, the court should decide after

due inquiry from relatives and friends of the accused whether sufficient
contact can be made with the accused by signs or otherwise for him/her to
understand the charge and adequately to conduct his/her defence.
d) If such contact can be made, the court should proceed to try the case
without reference to Section 118(1)(a).
e) If no such contact can be made but the court is nevertheless satisfied that
the accused, apart from his/her affliction, is of sound mind, then, and only
then should the procedure under Section 118(1)(a) of M.C.A be followed.

text] Page 136
CHAPTER 23
PRELIMINARY PROCEEDINGS IN CASES
TO BE TRIED BY THE HIGH COURT
1. Application of the Procedure

Preliminary proceedings are held where any person is charged with an offence
not triable by a Magistrate’s Court and therefore triable by the High Court.
The purpose of the procedure is to enable the accused to know the nature of
the evidence that will be adduced against him/her in the High Court so that
he/she adequately prepares his/her defence. It was meant to be an improved
procedure on the old preliminary inquiries where all witnesses for the
prosecution were called and the magistrate had to find a prima facie case
before committing the accused for trial by the High Court. The present
procedure is quicker and less expensive and was intended to expedite trials of
serious cases in the High Court.
Magistrates of any grade except Magistrate Grade III have power to conduct
preliminary proceedings.
2. Duties of the DPP with regard to preliminary proceedings

Where a person is charged with an offence triable by the High Court, the DPP
is required to do the following: -
a) Thaw up an indictment in accordance with the provisions of the Trial on
Indictments Decree.
b) Prepare a summary of the case in accordance with the provisions of
S.168(1) of the M.C.A;

text] Page 137
c) File a signed copy of the indictment and the Summary of the case with the
court of competent jurisdiction.
The summary of the case must according to S.168(2) of M.C.A contain, such
particulars as are necessary to give the accused person reasonable
information as to the nature of the offence with which he/she is charged. The
summary of the case has replaced the summary of evidence which used to
contain the substance of the evidence the prosecution intends to adduce at
the trial. The summary of the case is a shorter statement and does not
normally include the names of witnesses.
3. Procedure at Preliminary Proceedings

When an accused person is brought before the court for the purpose of
preliminary proceedings, the court is required to proceed under S.168(3) as
follows:
a) Give the accused person a copy of both the indictment and summary of the
case.
b) The magistrate (or court clerk) shall read out the indictment and summary
of the case to the accused and explain the charges and evidence in a
language he/she understands and inform the accused that he/she is not
required to plead to the indictment.
4. Committal for Trial
After complying with the above procedure, the court shall commit the accused
person for trial at the next convenient sessions of the High Court, and must
remand the accused in custody. If the accused person had earlier been
granted bail by any court, the bail shall lapse and the magistrate shall remand
the accused in custody pending the trial in the High Court. [S.168(3) (c) and
(4)].
5. Transmission of the Record

When an accused has been committed for trial, the indictment, the summary
of the case and the record of proceedings before the court duly signed and
authenticated by the Magistrate, should be forwarded to the Registrar (Crime)
of the High Court. The record must contain a certificate signed by the
Magistrate that the relevant provisions of the Act have been complied with
[S.168(3) (c)M.C. A].
6. Notice of Trial
When the hearing of the case has been fixed by the High Court, an officer of
the court, normally a Registrar (Crime), is required to endorse or annex to

text] Page 138
every indictment filed, a notice of trial, specifying the particular sessions of the
High Court at which the accused is to be tried. [S.25(2) T.I.D].
“To TAKE NOTICE that you will be tried on the indictment at the
sessions of the High Court to be held at……………..onthe…………day
…………of 20……..
…………………
REGISTRAR
This notice is normally annexed at the bottom of the indictment for

convenience, but it can be appended on a separate sheet.
Both the DPP and the accused/his/her advocate shall then be duly notified of
the date on which the case will be heard, by the Registrar. At least one
month’s notice is given, to allow both sides adequate time to prepare for their
case.
CHAPTER 24
CONDUCT OF TRIAL PROCEEDINGS BEFORE THE HIGH COURT
1. Trial Procedure in general
The conduct of trial proceedings before the High Court is governed by the Trial
on Indictment Act Cap.23. The procedure for hearing and determining cases
before the High Court is basically the same as in Magistrates Courts save for a
few aspects which are peculiar to trials before the High Court. These peculiar
aspects include the participation of assessors in the High Court, and the
holding of preliminary hearings. Courts Act. It is therefore not necessary to
deal with all the stages and aspects of the trial procedure as these have
already been covered. Below are the most important aspects of the
proceedings.
2. Summary of trial procedure
After the case has been called and the accused has been taken to the dock,
counsel appearing for the prosecution and the accused will introduce
themselves to the court. The judge will then choose the two assessors who will
sit with him/her to hear the case, from a list of assessors submitted to him/her.
The Judge will ask the accused if he/she has any objection to any of the
assessors and if the accused has an objection which is substantial, another
assessor will be chosen. The State Attorney will likewise be asked the same
question, and the same result will obtain. The assessors will take up their
seats besides the judge.

text] Page 139
The indictment will then be read to the accused who will be required to plead
to it. If the accused pleads guilty, he/she may be convicted on their own plea
and sentenced (S.63). If he/she pleads not guilty, the State Attorney appearing
for the prosecution will open the case by outlining briefly the facts of the case,
and start calling and examining the prosecution witnesses (S.65). The
prosecutor will close the prosecution case after examining all the prosecution
witnesses he/she considers necessary. Any other witnesses on the summary
of the case not called by the prosecutor will be offered to the defence to be
called, if they so wish.
After the close of the case for the prosecution, counsel for the defence may
submit that there is no case made out for the accused to answer. The
prosecutor will reply. The Judge will give a ruling as to whether or not there is
a prima facie case made out against the accused, if the defense’s submission
is overruled, the accused will be called to make his/her defence. Even where
no submission of no case to answer is made, the court is duly bound to decide
whether a sufficient case has been made out against the accused requiring
him/her to be put upon their defence. [S.73(1) T.I.A].
The accused is then informed of his/her right to give evidence on his/her own
behalf, to make unsworn statement, and to call witnesses in his/her defence.
[S.74(2)]. The accused then makes unsworn statement, or gives evidence on
oath whereby he/she is subjected to cross-examination. Witnesses for the
defence, if any, are called and examined, until the defence case is closed.
(S.74).
After the final submission, the judge will sum up the evidence and the relevant
law to the assessors (S.82). The assessors will then give their opinions
(separately) either immediately or after retiring for some time. The judge will
record their opinion.
After the assessors have given their opinions the case will be adjourned to
enable the judge to write his/her judgement taking into consideration the
opinion of assessors although he/she is not bound by them. Judgement will
then be pronounced on the adjourned or notified date.
If the accused person is convicted, he/she must be given an opportunity to say

why the sentence should not be passed upon him/her according to law(S.94).
The court may also hold an inquiry to inform itself on the character and
antecedents of the accused to enable it to assess proper sentence where
such sentence is not fixed by law. (S.98). Thereafter, the court will pronounce
sentence, and inform the accused of his/her right to appeal to the Court of
Appeal against conviction and sentence. (S.100).
3. Objection to indictment

text] Page 140
At the commencement of the trial before the accused is called upon to plead
to the indictment, the accused’s advocate may raise an objection regarding
the indictment. This objection must be raised at the earliest opportunity. To
this end Section 50(1) of the T.I.A requires that every objection to an
indictment about any formal defect on the face thereof shall be taken
immediately after the indictment has been read over to the accused person,
and not later. The objection may be based on misjoinder of persons or
misjoinder of courts. It may also be based on a material defect in the
particulars of the offence. If the objection is upheld, the court may order that
the indictment be altered or amended.
The accused may also object to the indictment on the ground of want of
service thereof if he/she was entitled to service of a copy of the indictment.
The accused shall not be required to plead instantly to the indictment if the
court finds that he/she was not duly served therewith (S.60).
4. Alteration of indictment
The High Court is given power at any stage to amend to a defective indictment
as the circumstance of the case and the interests of justice require. Therefore,
where it is made to appear to the High Court that the indictment is defective or
otherwise requires amendment, the court may make such order for the
alteration of the indictment (by way of its amendment, or by substitution or
addition of a new count) as the court thinks necessary to meet the
circumstances of the case and the required alterations cannot be made
without injustice. However, no alteration to an indictment is permitted by the
court to charge the accused person with an offence which, in the opinion of
the court, is not disclosed by the evidence set out in the summary of the case
upon which the accused was committed for trial [S.50(2) of T.I.A].
Where an indictment is, altered, a note of the order of alteration should be

endorsed on the indictment, and the indictment is then regarded for the
purpose of all proceedings in connection therewith as having been filed in the
altered form. An application for alteration need not be in writing, but an oral
application is sufficient.
After the indictment has been altered the court should call upon the accused
to plead to the altered indictment. The accused may demand the recall of the
witnesses for the prosecution for further cross-examination. The accused has
also the right to give or call further evidence on his/her behalf. Where the court
is of the opinion that the alteration of the indictment has prejudiced the
accused, it may adjourn the hearing for such a reasonable period, as it
considers necessary. The court may also make any orders as to payment by
the prosecution of any costs incurred due to the alteration of the indictment as
it thinks fit. (S.51 of T.I.A).

text] Page 141
5. Quashing of indictment
If any indictment does not state and cannot by any alteration be made to state
any offence of which the accused has had notice, it shall be quashed either on
a motion made before the accused pleads or on a motion made in arrest of
judgment. A written statement of every such motion shall be delivered to the
Chief Registrar or other officer of the court by or on behalf of the accused and
shall be entered upon the record (S.58 of T.I.A).
6. Pleading to indictment
The accused should be placed in the dock unfettered, unless the court orders
otherwise, while the indictment is read and explained to him/her by an officer
of the court or interpreted by a court interpreter. The accused should then be
required to plead to the indictment instantly, unless he/she raises any valid
objection. (S.60).
The accused is entitled to raise the following pleas as a bar to his/her trial on
the indictment:
a) That he/she has been previously convicted or acquitted, as the case may
be, of the same offence, or
b) That he/she had obtained the President’s pardon for that particular offence.
If the court finds that the plea is false, the accused will be required to plead to
the indictment. (S.61). If the accused person refuses to plead by standing
mute of malice, neither by will nor by reason of infirmity, the court should enter
a plea of not guilty and proceed to try the case (S.60). Similarly, where the
accused pleads not guilty a plea of not guilty is entered and the court then
proceeds to try the case. (S.65).
7. Plea of guilty of offence charged
The accused has a right to plead guilty to the indictment and the court has
power to convict on such a plea. Section 63 of T.I.A provides that if the
accused pleads guilty the plea shall be recorded and he/she may be convicted
thereon.
The normal procedure for recording a plea of guilty should be followed (See
Chapter 13). In capital cases however, more caution must be exercised in
accepting a plea of guilty. It is well settled that while there is no general rule
that a plea of guilty should not be accepted in capital cases, and in fact the
T.I.A expressly permits it, stringent precautions must be taken. The actual
words used by an accused person when pleading to the charge should be
recorded verbatim. If a discussion follows and the accused is intending for any
reason to amend his/her plea, he/she should be recharged before doing so.
Where counsel appears for the accused, the judge may be entitled, if the plea
text] Page 142
is unequivocal in terms, to accept counsel’s assurance that he/she has
advised his/her client fully as to the elements of the offence charged and the
nature of the consequences of a plea of guilty, and thereupon of accept the
plea.
However, it is generally inadvisable for the trial judge, particularly in a case of

a person who does not speak or understand English, to accept what he/she
says when arraigned on a capital charge as a plea of guilty. It is far better
even though the words of the plea may clearly indicate that the accused
person has no defence, that the court should hear the evidence before
convicting.
8. Plea of guilty to offence other than charged
Where the accused is arraigned on an indictment for any offence, and can
lawfully be convicted on such indictment of some other offence not charged in
such indictment, he/she may plead not guilty to the offence charged in the
indictment, but plead guilty to such other offence. The court cannot accept a
plea of guilty to another offence unless the advocate for the prosecution
consents. (S.64 of T.I.A).
The T.I.A provides instances when a person may be convicted for the offence,
which he was not charged with. Among the instances are:
a) Minor and cognate offence to the one charged (S.87),

b) Attempt to commit the offence (S.88),
c) Accessory after the fact to the commission of the offence charged (S.89),
d) Convictions is respect of charges relating to death of child where person is
charged with murder, manslaughter, killing unborn child etc. (S.90).
The accused may offer to plead guilty to any of the above minor or lesser
offences than the one charged, and if the prosecution accepts the offer, a plea
of guilty to the lesser offence may be accepted by the court. The normal and
best example of this situation is when an accused person offers to plead guilty
to manslaughter when charged with murder. This is admissible because
manslaughter is a minor and cognate offence to murder. The accused cannot
plead guilty to any other offence, which does not come under the above
categories. In practice, it is permissible for the prosecutor to indicate to the
accused or his/her advocate that he/she would be prepared to accept a plea of
guilty to a lesser specified offence. It is then upon the accusedto consider the
offer and accept or reject it. This procedure is something called plea
bargaining or plea negotiation. The practice has the advantage of expediting
the disposal of cases as well as providing a mitigating ground for the accused
in assessing sentence.

text] Page 143
However, it should be noted that the court cannot accept a plea of guilty to a
minor offence if the prosecutor wishes the proceed on the major charge. Nor
can the prosecutor insist on a plea being accepted if the court considers that
the accused should be tried on the major charge. If the court is of the opinion
that on the facts as indicated to it there is no material which could reduce the
offence from murder to manslaughter, it is right to reject the plea of guilty of
manslaughter, and proceed with the charge of murder. The State could,
however, enter a nolle prosequi, on the murder charge, and proceed later on
a charge of manslaughter. This would need fresh committal proceedings to
commence in the Magistrate’s Court.
9. Nolle Prosequi
A nolle prosequiis information or a statement presented to the High Court by

the DPP, informing the court that the State intends to discontinue the
proceedings against the accused. It is the method by which the DPP
withdraws the indictment before the High Court. The power is given to the
DPP for the control of criminal prosecutions. Once the DPP enters a nolle
prosequithe court has no power to refuse to discharge the accused.
The power to enter a nolle prosequiis given under Section 134 of the T.I.A. In
any case committed for trial to the High Court, at any stage before judgement,
the DPP may enter a nolle prosequi either by stating in court in person or by
informing the court in writing that the State intends that proceedings shall not
continue. Thereupon, the accused must be at once discharged in respect of
the charge for which a nolle prosequi has been entered. If the accused has
been committed to prison, he/she must be released, or if he/she is on bail, the
recognizance must be discharged. However, such discharge of an accused
person shall not operate as a bar or stop to any subsequent proceedings
against him/her on account of the same facts. The case against the accused
can be re-instituted if the DPP considers it necessary and desirable.
If the accused is not before the court when such a nolle prosequi is entered
the Chief Registrar or other responsible officer of the court must forthwith give
a written notice of such entry to the officer in charge of the prison where the
accused is detained. A similar notice should be given if the accused has been
committed for trial, to the Magistrate’s court by which the accused has been
committed, which court should notify the witnesses summoned to give
evidence, and accused’s sureties, if he/she was released on bail.
The power to enter a nolle prosequi cannot be exercised by any other person
except the DPP (S.135 of T.I.A). It is normally exercised where the accused is
dead or key prosecution witnesses cannot be found after several
adjournments. In most cases, a written nolle prosequi duly signed by the
DPP is entered by presenting the same to the presiding judge, but it can also
be filed with the Registrar.
text] Page 144
This procedure defers from that of offering no further evidence in that when no
further evidence is offered by the prosecution, the accused may be acquitted
and not merely discharged and this acquittal is a bar to subsequent
proceedings.
10. Preliminary Hearing
The procedure of holding preliminary hearings is restricted to trials before the

High Court. It was introduced by Section 66 of T.I.A. A preliminary hearing is
held for the purpose of recording any matters, facts or documents admitted or
agreed by both parties, as requiring no further proof.
The Section provides that if any accused person who is legally represented
pleads not guilty, the court shall as soon as is convenient hold a preliminary
hearing in open court in the presence of the accused and his/her advocate
and of the advocate of the prosecution to consider such matters as will
promote a fair and expeditious trial. The prosecutor and the defence counsel
should confer and discuss together what evidence they are prepared to admit
to be put on record without calling witnesses. Either the defence counsel or
the advocate for the prosecution should then inform the Judge of the matters,
facts or evidence admitted or agreed upon.
The court is required to prepare a memorandum of the matters agreed (called

Memorandum of agreed facts) and the memorandum must be read over and
explained to the accused in a language that he/she understands. The
memorandum should be signed by the accused, his/her advocate and the
advocate for the prosecution, as well as the judge and then filed in the record.
Any fact or document admitted or agreed (Whether such fact or document is
mentioned in the summary of evidence or not) in a memorandum filed, shall
be deemed to have been duly proved. However, if during the course of the
trial, the court is of the opinion that the interests of justice so demand, it may
direct that any fact or document admitted in the memorandum be formally
proved. It is desirable that the accused be tried during the session at which
he/she is arraigned, but if this is not possible for some reason and the case is
adjourned to the next session, it is not possible for some reason and the case
is adjourned to the next session, it is not necessary that the same judge who
held the preliminary hearing presides at the trial.[S.66(4)].
When preparing the memorandum, the facts agreed upon should be set out in
the memorandum. If a document is admitted or agreed on them this document
should be admitted in evidence and form part of the record of trial. Any facts or
documents admitted or agreed on, must of course be read over to the
assessors as these form part of the evidence in the trial.

text] Page 145
These provisions are an advantage in the due administration of justice. They
provide for a more expeditious and efficient criminal trial by providing for the
admission of facts not in dispute. However, they must not be used
indiscriminately except for formal evidence. For instance, courts have held that
it is undesirable to admit evidence of a postmortem examination when the
doctor is available, as he/she might be helpful to the court in explaining the
findings and how he/she reached that opinion.
11. Assessors
All trials before the High Court must be held with the aid of assessors the
number of whom must be two or more as the court thinks fit. [S.3 of T.I.A).
Assessors are lay persons selected in the locality by Chief Magistrates. They
must be persons of integrity and good reputation in their areas. Their
selection qualifications, summoning and attendance are governed by the
Assessors Rules, which are contained in the Scheduling to the T.I.A.
It is the duty of Chief Magistrates, before the first day of March in each year, to
prepare lists of suitable persons in their magisterial areas to serve as
assessors. (Rule 1).
All citizens of Uganda, who are not exempted, and who are between the ages
of 21 and 60 years, and who are able to understand the language of the court
with a degree of proficiency sufficient to be able to follow the proceedings, are
liable to serve as assessors at any trial held before the High Court (R.2).
The following persons are exempted from liability to serve as assessors,

a) Persons actively discharging the duties of priests or ministers of their
respective religions;
b) Medical practitioners, dentists and pharmacists in active practice;
c) Legal practitioners in active practice;
d) Members of the Armed Forces on full pay;

e) Persons exempted from appearance in court under the provisions of any
written law relating to civil procedure;
f) Persons disabled by mental or bodily infirmity;
g) Persons exempted from liability to serve assessors by statutory instrument

made by the Minister.

text] Page 146
Assessors are summoned by the Magistrate of the area on notification by the
Chief Registrar seven days before the holding of a particular sessions of the
High Court. An assessor who fails to attend as required by the summons or
having attended departs without the permission of the court is liable by order
of the judge of the High Court to a fine not exceeding four hundred shillings
(Rule 9).
At the commencement of the trial and after holding a preliminary hearing

where necessary each assessment must take an oath impartially to advise the
court to the best of his/her knowledge skill or ability on the issues pending
before the court (S.67 of T.I.A).
The accused, his/her advocate, and the prosecutor have a right, before the
assessor is sworn, to challenge the assessor for cause on any of the following
grounds: -
(a) Presumed or actual impartiality;

(b) Personal cause, such as infancy, old age, deafness, blindness or infirmity;
(c) His/her character, in that he/she has been convicted of an offence which in
the opinion of the judge renders him/her unfit to serve as an assessor;
(d) His/her inability to adequately understand the language of the court.
When a challenge or objection is disputed, the issue must be tried by the

judge and the person challenged may be examined on oath if necessary,
(S.68).
If in the course of the trial, at any time before verdict, an assessor is prevented
from attending throughout the trial by sufficient cause, or absents him/herself
and it is not practicable immediately to enforce his/her attendance, the trial
should proceed with the aid of the remaining assessor, even if he/she is one.
An assessor who has been absent and missed part of the evidence cannot be
allowed to return and take part in the proceedings. But if more than one of the
assessors are prevented from attending or absent themselves, the
proceedings must be stayed and a new trial shall be held with the aid of
different assessors (S.69).
Assessors are required to attend the entire trial proceedings. Therefore, they
are no longer required as in the past, to leave the court while the issue of
admissibility of a confession is being tried, and the judge may seek their
opinions on any fact relevant to such issue. However, it is for the judge alone
to decide on any question of fact or law upon which the admissibility of a
confession depends. A “Confession” is defined for purposes of this Section to
include any statement the admissibility of which is challenged. (S.81).

text] Page 147
12. Summing up to Assessors
When the case on both sides is closed, the judge is required to sum up the
law and the evidence in the case to the assessors (S.82). The judge must
make a note of his/her summoning up to the assessors. The importance of
summoning up notes to the Appellate court and the appellant cannot be over
emphasized. Submissions are frequently made on ground of misdirection that
the summing up did not contain some important issues for consideration. It is
only when notes appear on the record that the submissions can be maintained
or answered.
As far as summing up on, the law is concerned it should be done in simple

language and the judge should restrict his/her observation strictly to what is
required by the case in hand. A long and detailed lecture on the niceties of
legal problems is more likely to confuse than assist the assessors in arriving at
a correct opinion.
Some of the matters, which the judge should direct the assessors on, are:
a) The contradictions and inconsistencies in the evidence of the prosecution

witnesses, and their effect on credibility, etc.
b) The weight to be given to certain pieces of evidence e.g of a hostile

witness or an accomplice;
c) The need for corroboration in case of unsworn evidence of a child of tender

years, and other instances where corroboration is required as a matter of
practice e.g. in sexual offences, and the nature of corroboration required;
d) When a court may base a conviction on identification by a single witness;
e) When a court may act on circumstances evidence;
f) The alternative defences that are open to accused if they emerge from the
evidence even if not raised by the accused;
g) Any other offence the accused may be convicted of if the main charge is
not proved e.g. a minor cognate offence;
h) On which party the burden of proof lies and standard of proof required in
the case.

text] Page 148
It has been said that opinion of assessors can be of great value and
assistance to a trial judge, but only if they filly understand the facts of the case
before them in relation to the relevant law. If the law is not explained and
attention drawn to the salient facts of the case, the value of assessors’
opinions is correspondingly reduced.
13. Opinion of assessors
After the summing up the judge must require each assessor to state his/her
opinion orally, and then record such opinion. The assessors may retire to
consider their opinions after summing up if they so wish, and during such
retirement or at any time during the trial they may consult one another. The
judge is not bound by the opinions of assessors but where he/she does not
conform with the opinions of the majority of the assessors in his/her decision,
he/she must state reasons for departing from their opinions in the judgment.
The opinion of each assessor should be recorded separately but where a

single opinion is given for both of them the other assessor should be asked to
confirm it.
Assessors should not be asked specific questions to answer, but their

opinions should be taken on the case generally. Where opinions of assessors
are taken inform of answers to specific questions, they must be asked to state
their opinion on the case as a whole and on the general issue of the guilt or
innocence of the accused.
Where the assessors indicate in their opinions a mistaken view of the facts or
the law, it is the duty of the Trial Judge to correct such view in his/her
judgment.
14. Additional Material facts
It is provided under S.79 of the T.I.A that no additional material fact which
does not form part of the summary of the case against an accused person
shall be alleged by the prosecution unless the prosecution has given
reasonable notice in writing to the accused person or his or her advocate of
the intention to allege that fact, but no such notice need be given if the
prosecution first becomes aware of it on the day on which it is alleged in
evidence during the trial.
15. Evidence in reply
If the accused person adduces evidence in his/her defence introducing a new

matter which the prosecution could not by the exercise of reasonable diligence
have foreseen, the court may allow the prosecution to adduce evidence in
text] Page 149
reply to contradict the said matter. This is normally known as calling evidence
in rebuttal. (S.76 T.I.A).
16. Power of Court to Summon material witness
The High Court has power at any stage to summon or call any person as a
witness or examine any person in attendance though not summoned as a
witness, or recall and re-examine any person already examined. The court is
duty bound to summon and examine or recall and re-examine such a person if
his/her evidence appears to it to be essential to the just decision of the case.
Both prosecution and the defence must be accorded the opportunity to cross-
examine such a person. (S.39).
The High Court has additional powers under S.80 of T.I.A to summon and
examine any person qualified, in the opinion of the court, to give evidence
regarding:
a) Any custom prevalent in any area or

b) The way of life of any community or
c) The background against which the alleged offence was committed.
This power is exercised where the court considers that such evidence may
assist the court in arriving at a just decision or in assessing in the event of
conviction, the appropriate sentence to be imposed. Where such a witness is
called, the prosecution and the defence must be given an opportunity to cross-
examination the witness, if they so wish.
17. Motion in arrest of Judgment
The accused has a right, at any time before sentence, whether on his/her plea
of guilty or otherwise, to move a motion in arrest of judgment on the ground
that the indictment does not, after any alteration which the court is willing and
has power to make, state any offence which the court has power to try (S.95).
The Court may either hear and determine the matter during the same sitting or
adjourn the hearing of the motion to a future time fixed for that purpose. If the
Court decides in favour of the accused, he/she might be discharged from that
indictment.
18. Substituted Conviction
a) When a person is charged with an offence and facts are proved which
reduce it to a minor cognate offence, he/she may be convicted of the minor
offence although he/she was not charged with it. (S.87).

text] Page 150
b) When a person is charged with an offence, he/she may be convicted of
having attempted to commit the offence although he/she was not charged
with the attempt. (S.88).
c) When a person is charged with an offence they may be convicted of being

an accessory after the fact to the commission of such offence although
he/she was not so charged. (S.89).
d) When a woman is charged with the murder of her child who is under the
age of twelve months, she may be convinced of infanticide although she
was not charged with it. [S.90(1)].
e) When a person is charged with murder or manslaughter of any child or with

infanticide or with an offence relating to abortion (Sections 141 and 142 of
P.C), he/she may be convicted of killing an unborn child [S.90(2].
f) When a person is charged with killing an unborn child, he/she may be

convicted of the offence relating to abortion. [S.90(4)].
g) When a person is charged with murder or infanticide of any child, or with

killing an unborn child, he/she may be convicted of the offence relating to
abortion. [S.90(4)].
h) When a person is indicted for any offences mentioned in 149, 150, 151,
152, 153, 154 or 155 of M.C.A, those Sections shall be construed as if
references to a court included references to the High Court. [S.91 of T.I.A].
In other words, the High Court has the same powers for substituted
conviction as given to magistrates under those Sections of the M.C.A.
i) Where a person is charged with a misdemeanor, he/she may be tried and

convicted for a felony although he/she was not charged with it. [S.93].
19. Judgment
After the assessors have given their opinions, the Judge is required to deliver
his/her judgment. [S.82(2)]. The mode of delivering judgment [S.85] and the
contents of judgment (S.86) are similar to those before Magistrates Courts.
(See Chapter 25). If the accused is acquitted he/she shall be immediately
discharged from custody, unless he/she is acquitted by reason of insanity. If
the accused is convicted, the judge shall pass sentence on him/her according
to law.
20. Objects cured by verdict

No judgement shall be stayed or reversed on the ground of any objection
which if stated after the indictment was read over to the accused person, or
during the progress of the trial, might have been amended by the court, nor for
any informality in swearing the witnesses or any of them. [S.97].

text] Page 151
21. Copy of proceedings
If any person affected by any judgement or order passed in any trial

proceedings desires to have a copy of the judgement or order or any part of
the record he/she shall on applying for such a copy be furnished therewith
provided he/she pays for the same, unless the court for some special reason
thinks fit to furnish if free of cost. [S.142 of T.I.A].
22. Practice of the High Court in its Criminal jurisdiction
Where no express provision is made in the T.I.A, the practice of the High
Court in its criminal jurisdiction shall be assimilated as nearly as
circumstances will admit to the practice of the High Court of Justice in its
criminal jurisdiction and of courts of Oyer and Terminer and General Goal
Delivery of England [S.141 of T.I.A]. This provision gives the High Court power
to apply the practice used by the High Court of England in administering
criminal justice, where there is no local legislation or practice.
CHAPTER 25
JUDGMENT
1. Definition
A judgment may be defined as a reasoned pronouncement by a judge on a

disputed legal question, which has been presented before him/her by the
parties. It may be said to be a reasoned decision by a court. A judgment may
be in a form of a ruling or an order.
2. Decision
After the court has heard the evidence called by the prosecution and the
accused, it is required to make a decision either finding the accused guilty and
text] Page 152
convicting him/her, or finding the accused not guilty and acquitting him/her.
[S.133(1) of M.C.A and S.82(5) and (6) of T.I.A].
3. Form of Judgment
A judgment should be written down by the judge or magistrate who heard the
case or by another person under the judge’s or magistrate’s personal direction
and supervision. It should be written in English language, which is the
language of the court. It should be dated and signed by the judge or
magistrate on the date on which judgment is delivered in court. [S.136 of
M.C.A and S.86 of T.I.A].
A judgment is like a literary composition but subject to certain requirements. It

possesses its own form, characteristics and standards. The art of composing a
judgment is not taught but acquired by practice and study of the judicial
decisions by superior courts found in law reports.
A good judgment should follow some logical framework or order. Most

judgments follow a framework, which is more or less along the following
outline:
a) An opening paragraph describing the parties and stating the charges

against the accused or the nature of the case.
b) A brief statement of the essential facts of the case.
c) The questions to be decided
d) The evidence adduced by both sides and findings of the court.
e) A direction on or discussion of the relevant law.
f) The application of the law to the facts as found, and determination of the
issues raised.
g) The final finding or decision.
As regards language, the judge or magistrate should aim at clear expression

with short sentences and common words instead of unfamiliar ones, and the
use of active rather than passive verbs. Good paragraphing and punctuation
are essential.
4. Contents of judgment
Section 134 of M.C.A and S.85 of T.I.A provide that a judgment should contain
the following:
a) The points for determination;

b) The decision on the points;
c) The reason for decision;

text] Page 153
d) In case of conviction it should specify the offence of which and the Section
of the Penal Code or other law under which the accused is convicted.
e) In case of acquittal the judgment should state the offence of which the
accused is acquitted, and must direct that he/she be set at liberty.
f) In case of conviction, the judgment shall be followed by a note of the steps

taken by the court prior to sentence and by a note of the sentence passed
together with the reason for passing a particular sentence.
These provisions are mandatory and every court should comply with them.
5. Reasoned decision
It is important that a judgment should amount to a reasoned decision. Unless it

is so, the parties or an appellate court may not understand how a particular
decision was arrived at.
It is useful for the judge or magistrate to identify the issues for determination,
make clear and precise findings of fact on those issues, and apply the law to
those facts in order to reach a sound decision.
It is useful for the judge or magistrate to identify the issues for determination,
make clear and precise findings of fact on those issues, and apply the law to
those facts in order to reach a sound decision.
The judge or magistrate should review the evidence, evaluate it and make
definite findings of fact on important aspects of the case. He/she must deal
with contradictions and inconsistencies in evidence and attempt to resolve
them. He/she should assess the credibility of witnesses, and give reasons for
disbelieving a witness.
It is normal for the judge or magistrate to state the law applicable to the case
both in regard to the criminal law and the law of evidence. The magistrate
should know the ingredients of the offence and discuss whether they have
been proved. He/she should also direct him/herself on the law of evidence
particularly the burden of proof and apply it to come to the conclusion whether
the prosecution has discharged the burden to the required standard.
6. Mode of delivering judgement
The court is required to pronounce the judgment or to explain the substance of

such a judgment, in open court, either immediately after the termination of the
trial or at some subsequent time of which notice must be given to the parties
or their advocates. The whole judgment must be read out by the court if either
party requests so. [S.135 of M.C.A or S.85 of T.I.A].

text] Page 154
The accused is entitled to be present when judgment is delivered except
where his/her personal attendance has been dispensed with. But no judgment
delivered by any court shall be deemed invalid by reason of the absence of
any party on the day notified for delivery. [S.85 (3) of T.I.A and S.135 of
M.C.A].
Once pronounced, the judgment cannot be altered by the same judge or

magistrate. The judgment can only be varied or altered on appeal or revision
by an appellate court.
7. Conviction Order
Where the judgment involves a conviction or order, such conviction or order

may, if required, be drawn up afterwards and be signed by the court making
the conviction or order or by the clerk or other officer of the court. [S.134 (1) of
M.C.A or S.83 of T.I.A].
The production of a copy of an order or acquittal certified by the clerk or other

officer of the court shall without proof be a bar to any subsequent proceedings
for the same matter against the same accused person [S.132 (2) of M.C.A or
S.84 of T.I.A].
8. Accused’s right to copy of judgment
Any person tried of a criminal offence is entitled to be given a copy of the

judgment if he/she so desires within a reasonable time after judgment has
been delivered, on payment of such reasonable fees as may be prescribed.
[Article 28(6) of the Constitution and S.142 of the T.I.A].
CHAPTER 26
SENTENCING PROCESS
1. Basic sentencing procedure
After the judgment has been pronounced it is the duty of the court to
determine the appropriate sentence or punishment and pass the same on the
accused in the event of conviction. The court will normally first hear the
prosecutor giving information regarding character and other background of the
accused as well as the prosecutors’ submissions, if any, about the nature of
the sentence that should be imposed on the accused and his/her advocate
may address the court usually in mitigation of sentence. The accused person
text] Page 155
may also be allowed to say something personally on his/her own behalf before
the court passes the sentence.
When both the prosecutor and the accused have addressed the court on
sentence, the court will determine the suitable sentence taking into account
what the prosecutor and the accused have said, as well as having regard to
the general principles of sentencing. When the appropriate sentence has been
determined, the court will write it down giving reasons for passing that
sentence. Then court will pronounce the sentence and the reasons for the
same. The sentence should be pronounced in the presence of both the
accused and the prosecutor. It should be signed on the date upon which it is
pronounced. The Accused should be informed of the right of appeal.
2. Inquiry before sentence
The court is given power to make such inquires as are necessary to enable it
to determine the appropriate sentence to be imposed on the accused. [S.133
(2) of M.C.A and S.98 of T.I.A].
Therefore, the court, before passing sentence, may make such inquiries as it
thinks fit in order to inform itself as to the proper sentence to be passed. For
this purpose, the court may inquire into the character and antecedents of the
accused, and take them into consideration either at the request of the
prosecution or the accused person in assessing the proper sentence to be
passed. The court may also take into account any offences admitted by the
accused, whether or not he/she has been convicted of such offences.
However, the accused person must be given an opportunity to confirm, deny

or explain any statement made about him/her and in case of doubt the court
should, in the absence of legal proof, ignore such statement. Secondly, no
offence of which the accused has not been convicted should be taken into
account in assessing sentence unless the accused person specifically agrees
that such offence should be taken into consideration and a note of such
request is recorded in the proceedings. Thirdly, if for any reason, the sentence
passed by the court is subsequently set aside, the accused shall not be
entitled to plead autrefois convict in respect of any offence taken into
consideration in assessing the sentence that was set aside.
3. The Role of the Prosecutor in the Sentencing Process
It is the duty of the prosecutor to bring to the attention of the court any
information he/she may have in his/her possession concerning the accused’s
character and background to enable the court assess the proper sentence. In
so doing the prosecutor must be alive to the principles of sentencing as well
as have sufficient information regarding the accused.

text] Page 156
The prosecutor should bring forward all the material information in his/her
possession that is relevant to sentence, whether it is in favour or against the
accused. The prosecutor should not be shy to tell the court that the accused is
a first offender or that he/she used no violence or that all the property stolen
was recovered, or that he/she has been helpful in assisting the Police in their
inquiries factors which would tell in favour of the accused. On the other hand,
the prosecutor should find out whether the accused has any previous
convictions and so inform the court or ask the court to take a serious view of
the case having regard to the gravity of the offence and the manner in which
the accused committed it. Where the accused disputes previous convictions,
they must be proved in court by calling the fingerprint Expert who has
submitted the record of previous convictions.
However, prosecutors must not address the court on extraneous matters in

relation to sentence. A matter is extraneous if it is not strictly relevant to the
offence convicted and has not been proved in evidence during the trial. For
whatever allegations made by the prosecutor the accused must be given an
opportunity to admit or challenge them.
It is a rule of practice that a prosecutor should not suggest the actual sentence
to be passed upon the accused. This is a matter entirely within the discretion
of the court. The prosecutor may however request the court to impose a
deterrent or lenient sentence depending on the circumstance of the offence.
4. Committal for sentence
A magistrate’s court is given power to commit an accused person to a higher

court for sentence, if it is of the opinion that a higher or severer sentence than
it can impose according to its sentencing powers, should be imposed on the
accused. Magistrates Grade I, II and III commit their cases to Chief
Magistrates for Sentence. (S.164 of M.C.A).
Therefore, where a court presided over by a magistrate Grade I, II or III

convicts a person of any offence, and on obtaining information about his/her
character and antecedents the court is of the opinion that there are such that
greater punishments should be inflicted than the court has power to impose,
the court may, instead of dealing with him/her in any other manner, commit
him/her in custody to a court presided over by a Chief Magistrate of the area,
for sentence. [S.164(1) of M.C.A].
However, if the Chief Magistrate considers that the conviction is improper or

illegal, he/she may forward the record of the proceedings to the High Court,
and postpone passing sentence pending the decision of the High Court. In the
meantime, the Chief Magistrate may, pending such decision, release the
offender on bail or remand him/her in custody, as he/she thinks fit.

text] Page 157
Similarly, if the Chief Magistrate convicts a person of any offence and on
obtaining information regarding the character of the accused, he/she is of the
opinion that greater punishment than he/she can impose, should be inflicted
on the accused, he/she may commit the accused in custody to the High Court
for sentence. [S.164(2) of M.C.A].
When an offender has been committed for sentence, the warrant of the
committing court shall be sufficient authority to the officer in charge of any
prison for his/her detention in custody. The record of the proceedings should
be transmitted without delay to the relevant Chief Magistrate or the Chief
Registrar of the High Court as the circumstances may require.
The accused and the prosecutor should be given an opportunity to appear

before the court to which the accused is committed for sentence. It is at this
court that the sentencing process is finalized. In fact, the court to which the
accused is committed for sentence is required to inquire into the
circumstances of the case, and has the same powers to deal with the offender
as if he/she has been convicted by that court [S.165(1) of M.C.A]. However,
while the court can exceed the sentencing powers of the committing or trial
court by exercising its own sentencing powers, it cannot exceed the maximum
sentence provided for by law for the offence with which the accused is
convicted.
5. Confirmation of sentence
The following sentence passed by a Magistrate Court other than a Chief
Magistrates Court require confirmation by the High Court. (S.173 of M.C.A).
a) A sentence of imprisonment for a period of two years or over;

b) A sentence of preventive detention imposed under the Habitual Criminals
(Preventive Detention) Act, Cap.118.
The court has power to release the accused on bail pending confirmation of
sentence [S.168(1) of M.C.A], although this power is rarely resorted to
because of the danger in releasing the accused. However, the High Court has
power to order the convicting court to release accused on bail, the term of
imprisonment shall run from the date upon which he/she is received in prison
after confirmation or other order imposing imprisonment made by the
confirming court.
Where the accused is not released on bail, he/she must start serving his/her
sentence pending confirmation, as from the date upon which he/she is
sentenced in the magistrates’ court unless he/she elects to postpone serving
the sentence until it is confirmed. If the accused elects to postpone serving
sentence, the court should remand him/her to prison pending confirmation of

text] Page 158
sentence. In such case, the term of imprisonment shall run from the date upon
which the confirming court makes its order.
The procedure for confirmation of sentence is that the trial magistrate forwards
the record of proceedings in the case of the Chief Registrar of the High Court
normally through the Chief Magistrate of the area. The Chief Registrar would
then place the case before a judge who would peruse the record of
proceedings including the judgment and sentence, to ensure that not only is
the sentence proper but that the conviction too is proper. If the judge
considers that the sentence is proper, he/she will pass an order confirming it,
and the record will be remitted back to the trial court. If the judge finds that
either the conviction or the sentence cannot be maintained, he/she is
empowered to invoke revisionary powers under S.50 of the C.P.C. [See
S.174(4) of M.C.A] and will make a revisional order after seeking the views of
the DPP. While revising the case, the judge may quash the conviction and set
aside the sentence or he/she may order a retrial. The judge may also reduce
the sentence if it is manifestly harsh, or excessive, or may enhance it after
hearing the accused, if he/she finds that the sentence is so lenient as to
amount to a miscarriage of justice.
This procedure enables the High Court to exercise important supervisory

powers over the sentences imposed by magistrates’ courts to ensure a
measure of uniformity and legality in the sentencing process.
6. Combination of sentences
The High Court and Magistrates Courts may pass any lawful sentence,
combining any of the sentences which each court is authorized by law to pass.
[S.2(1) of T.I.A and S.172 of M.C.A respectively].
7. Sentences in cases of conviction of several offences at one trial
Where a person is convicted at one trial of two or more distinct offences, the
court may sentence him/hr for such offences, to several punishments
prescribed for them which the court is competent to impose. Each offence
must have a separate sentence. Such punishments which consist of
imprisonment shall commence one after the expiration of the other, in such
order as the court may direct, unless the court directs that such punishments
shall run concurrently. [S.175(1) of M.C.A].
In case of consecutive sentences, it is not necessary for the court to send the
offender for trial before a higher court, by reason only of the aggregated
punishment, which is competent to impose on conviction of a single offence.
[S.175(2) of M.C.A].

text] Page 159
For the purpose of appeal or confirmation, the aggregate of consecutive
sentences imposed in case of convictions for several offences at one trial is
deemed to be a single sentence. [S.175(3) of M.C.A].
8. Sentencing Co-accused
The M.C.A or T.I.A do not contain provisions regulating the sentencing of co-
accused convicted for committing the same offence. The general principle
implicit in this absence of specific provisions is that no disparity in sentences is
justified unless there are special circumstances calling for different sentences.
Where all things are equal, the co-accused should be sentenced to the same
punishment.
Some of the considerations to be taken into account in sentencing co-accused

persons are:
a) In an offence which involved a great deal of planning, was one of the

accused the brain, or ring leader, or were all the accused roughly equal in
degree of participation?
b) Were all the accused equal in age, intelligence, experience, etc.?
c) Was there any intimidation of one of the co-accused or was there one who
was the tool or the dupe of others?
d) Did one of the co-accused show more remorse than the others, say by
admitting his/her part in the offence right away and by co-operating with
the police?
Where one accused jointly charged with others pleads guilty, he/she should
not be sentenced until after the trial of the others is concluded (expect where
accused is to give evidence in the trial of the co-accused in which case he/she
should be sentenced first so as to avoid his/her testimony being affected by
his/her anticipation of its likely effect upon sentence), when their respective
roles and relatives degrees of guilt can be assessed.
9. Sentences cumulative unless otherwise ordered
The normal rule is that sentences imposed are served cumulatively unless
otherwise ordered by the sentencing court.
Where a person after conviction for an offence is convicted of another offence

either before sentence is passed upon him/her under the first conviction, or
before the expiration of that sentence, any sentence of imprisonment which is
passed upon him/her under the subsequent conviction shall be executed after
the expiration of the former sentence, unless the court directs that it shall be
text] Page 160
executed concurrently with the former sentence or any part of it. [S.192(1) of
M.C.A and S.122(1) of T.I.A].
But it is not lawful for a court to direct that a sentence of imprisonment in

default of payment of a fine or any part of it should be executed concurrently
with a former default sentence imposed under Section 192(c)(i) of M.C.A or
s.109(c)(i) of the T.I.A.
Where a person is convicted of more than one offence at the same time, and
sentenced to pay a fine in respect of more than one of such offences, then the
court may order that all or any of such fines may be non-cumulative.
10. Sentence on escaped convicts
When a sentence is passed on an escaped convict, such sentence, if a fine or

corporate punishment, shall take effect immediately, but if it is of
imprisonment, it shall not take effect until the convict, when recaptured, has
served the period of imprisonment that remained unexpired at the date of
his/her escape from prison. [S.193 of M.C.A and S.123 of T.I.A].
11. Mitigation of penalties
Courts have been given power to impose less severe punishments than the
maximum provided in the relevant penal provisions. Hence, a person liable to
imprisonment for life or any other period may be sentenced to any shorter
term [S.178(1) of M.C.A and S.108(1) of T.I.A] and a person liable to
imprisonment may be sentenced to pay a fine in addition to or instead of
imprisonment. [S.178(2) of M.C.A and S.108(2) of T.I.A].
However, these provisions do not apply where the sentence to be imposed is

fixed by law by providing a mandatory maximum or minimum sentence (S.121
of T.I.A). In such cases the court has no discretion to mitigate sentences.
Examples of this limitation on the discretion of the court are found is Section
268 of the Penal Code Act. It provides for a minimum sentence of
imprisonment of three years on conviction.
12. Sentencing young offenders
Under the Children Act, Cap.59, young offenders (i.e below the age of
eighteen, can only be tried in a Magistrate’s Court or in the High Court in the
following circumstances:
a) In a Magistrate’s Court where a child is charged jointly with an adult i.e a

person above the age of eighteen years- (S.104 Children Act).

text] Page 161
b) In the High Court, where a child is jointly charged with an adult for an
offence for which only the High Court has jurisdiction. (S.105(1) Children
Act).
In the case of a trial in the High Court, where the child is found guilty, the High
Court shall remit the file back to the Family and Children’s Court for an
appropriate order-S.105(2) Children Act.
CHAPTER 27
GENERAL PRINCIPLES OF SENTENCING
1. Definition of punishment
text] Page 162
Punishment may be defined as the intentional infliction of pain and suffering
either physically or mentally or both upon the offender by the State basically
for the sake of making the offender suffer for his/her wrongs or desist from
similar conduct.
Punishment consists of the following characteristics or elements:
a) It must involve pain or other consequences normally considered

unpleasant;
b) It must be levied for an offence against legal rules;
c) It must be given to an actual or supposed offender for his/her offence;
d) It must be intentionally administered by human beings other than the
offender;
e) It must be imposed and administered by an authority constituted by a legal
system against which the offence is committed.
2. Aims of punishment
Aims of punishment are sometimes referred to as theories of punishment.

They attempt to explain the justification for punishment and what is intended to
be achieved. Generally speaking, punishment may be said to serve four main
goals namely, retribution, prevention, deterrence and reformation.
a) Retribution: According to the retributive theory, punishment is justified

because the offender is treated in the manner he/she deserves by being
punished. It involves concepts of vindication, denunciation and
proportionality. Punishment satisfies the victim’s desire for vengeance or
revenge. Punishment is also said to be an expression of society’s
disapproval of the accused’s court.
b) Deterrence: The deterrent theory is that by punishing the offender, both

the offender and the public are discouraged from committing similar
offences. Individual deterrence aims at giving the offender such an
unpleasant treatment that through fear of a repetition of punishment,
he/she does not repeat his/her criminal conduct. There is also general
deterrence whereby the general public is discouraged from committing
crimes by threat of punishment, the accused being used as an example.
c) Prevention: According to this theory the aim of punishment is the
incapacitation of the offender from committing further crimes. Society has
to be protected from the offender’s injurious conduct by confining him/her
and keeping him/her away from the public. The main object here is the
text] Page 163
protection of society. But the offender is also rendered incapable of
committing further offences, by confinement.
d) Reformation: The reformative theory of punishment is the rehabilitation of

the offender. Punishment is believed to bring remorse, repentance and
reform.
All these classic goals of punishment are important and a court should take
them into consideration when determining the appropriate sentence in a
particular case. There may be circumstances in a particular case, which call
for the emphasis of a particular principle of sentencing to achieve a desired
objective. But there may also be circumstances, which require several of the
goals of punishment to be considered and incorporated in the sentence.
3. Classification of sentences
Sentences may be classified into the following four groups:
a) Punitive sentences;
b) Compensatory sentences;
c) Custodial sentences;
d) Rehabilitative sentences.
Punitive sentences are aimed at punishing the offender. They inflict upon the
offender loss of liberty, pain, or financial loss. Among the punitive sentences
are imprisonment, fine, corporal punishment, disqualification from driving etc,
and forfeiture e.g. of firearms, motor vehicles, etc.
Compensatory sentences are aimed at compensating the victim for whatever

material loss they have suffered. Compensatory sentences include costs and
restitution.
Custodial sentences involve the detention of the offender in prison or in some

other institution. The aim could be punitive as in imprisonment, or rehabilitative
as when a young offender is detained in an approved school. The non-
custodial sentences include fines, suspended sentence, binding over and
probation.
Rehabilitative sentences are intended to give the offender a chance to reform

and become a good person. Such include probation, suspended sentence,
and security for keeping the peace and police supervision.
4. The Role of maximum sentences

text] Page 164
Every offence must have its punishment prescribed. The normal practice is for
the legislature to lay down only the maximum punishment to which the
offender is liable, thus giving the court discretion to impose a lesser
punishment. But in some instances, the legislature has prescribed minimum
sentence as well as fixed sentences. The effect of providing a minimum
sentence is to tie hands of the court so that it does not impose a sentence
lower than the minimum. Where the sentence is fixed by law e.g. death for
murder, the sentence is mandatory and court has no discretion to impose a
lesser or severer sentence, but the one fixed by law.
A maximum sentence is intended to reflect the gravity of the offence, although

the maximum penalty cannot be the only criterion for judging the gravity or
seriousness of the offence. The circumstances under which the offence is
committed are relevant in assessing the gravity of the offence.
Courts normally refer to the maximum sentence in assessing sentence. They

are duty bound to have regard to the maximum sentence provided because
they cannot impose a sentence higher than the maximum prescribed, even if
they think that circumstances justify such sentence. But in taking into account
the maximum sentence, a court must bear in mind that the maximum sentence
should be reserved for the worst examples of the kind of the offence in
question. Therefore, the maximum penalty should be imposed only rarely and
particularly in shocking cases.
5. Determination of proper sentence
Unless the sentence is one which is fixed by law, it is the duty of the court to
assess the appropriate sentence to be imposed in a particular case, within the
maximum sentence prescribed. This duty involves an exercise of judicial
discretion.
The determination of the proper sentence may be said to involve two distinct
decisions, the primary decision and the secondary decision:
a) The Primary Decision: The primary decision involves a decision on two

basic questions, namely;
i. Whether the factors are such that the interests of the public as well
as of the individual can best be served by a rehabilitative sentence,
or
ii. Whether they are such that the public interest can only be served by
a deterrent or retributive sentence or one which will ensure the
protection of society.

text] Page 165
The primary decision is a positive choice rather than a process of elimination.
It is wholly governed by public policy. For instance, public policy may be seen
as justifying a deterrent or retributive sentence in certain offences like robbery
or for certain classes of offenders like professional criminals, public officers
guilty of breach of trust, or certain offence in certain localities where a
particular offence has suddenly become prevalent. It is for this reason that the
primary decision is less predictable than the secondary decision which is
usually governed at least in part by reasonably settled principles. It is
dangerous to generalize on questions of primary policy as this may change
very rapidly in response to sudden developments in the general pattern of
criminal behavior as it appears to the judge, or may be governed by a
response to the problems of a particular locality at a particular time.
It is however possible to identify certain stable trends of policy, for instance,

certain offences and certain categories of offenders who tend to attract
deterrent sentences. Offences where deterrent sentences are mostly imposed
include robbery, unlawful wounding, grievous bodily harm, rape, defilement
and offences involving fraud like forgery. Offences where individualism or
reformation of the offender is considered include offences committed by young
offenders and mentally impaired offenders. In the case of young offenders,
there can hardly ever be any conflict between the public interest and that of
the offender. The public has no greater interest than that he/she should
become a good citizen. The difficult task of the court is to determine what
treatment gives the best chance of realizing that object. That realization is the
first and by far the most important consideration.
Where the court decides that the public interest can best be served by a
rehabilitative sentence, it will then choose between one of a number of
methods of disposal available. Where the court decides that deterrence,
retribution or protection of the public must be employed, it may decide whether
it should pass the sentence or commit the offender to a higher court to do so.
If it decides to pass sentence, the court must calculate the tariff or the length
of sentence.
b) The Secondary decision: The secondary decision is the calculation of the

length of sentence. Once the court decides that public policy demands a
tariff sentence then there arises the problem of determining how the length
of that sentence in imprisonment should be calculated. The secondary
decision is governed mainly by retributive concepts and in particular the
principle that the severity of the sentence must not be out of proportion to
the gravity of the offence.
Even where a firm policy in favour of deterrence is applied in respect of a

general category of crime, sentences in particular cases must reflect the

text] Page 166
different degrees of gravity within that group. Thus the more serious offences
must be distinguished from the less serious.
For each of the more common offences it is possible to identify a scale or

range within which sentence will normally fall. The secondary decision in tariff
sentencing involves placing the particular offender at an appropriate point
within the range, by reference to the gravity of the offences as an example of
its species and such mitigating factors as may be relevant.
It is generally held that an emphasis on deterrence does not justify a sentence

at a higher point on the range or that category of offences than the particular
offence justifies in relation to other more serious offences.
The process of determination of the appropriate length of sentence can be

carried out in three stages, namely:
i. The determination of the general range of the category of offence;

ii. The preliminary placing of the particular offence within that intrinsic
seriousness;
iii. The calculation of allowances for mitigating factors.
The determination of the general range of sentence for the particular offence
is based on the normal or average range of sentences previously imposed by
the courts for similar offences. It involves the determination of the two
extremes, the low and upper limits for the sentences normally imposed. It is
advisable for magistrates’ courts to have regard to the sentences passed or
approved by the High Court as a guideline. It should then be possible to
identify from judicial decisions a structure or ranges for each major division of
the criminal law e.g. crimes of violence, against property, sexual offences etc.,
or ranges for specific offences.
Once the extremes have been determined, then the particular case under
hand must be placed at an appropriate point within the established range. This
process is governed primarily by concepts of proportion, the relative
seriousness of the offence as an instance of its kind. What may be considered
the average offence of its kind is placed near the middle of the range. As in
the case of statutory maximum, room must be left within the effective range to
deal with the most serious examples likely to be encountered. From the middle
of the effective range it is possible to work towards an initial placement. At this
initial placement, the record of the record of the offender must be left out of
account at this stage.
At the final stage, allowance must be made for mitigating factors from the
initial placement arrived at. Among the mitigating factors are: accused’s
text] Page 167
previous good record (e.g. first offender), young or old age, loss of self control,
plea of guilty, etc. These tend to tell in favour of the accused and to reduce the
severity of the sentence.
After taking into account all the above circumstances, the court will determine
the proper sentence within the normal range of sentences, usually given for
the offence. If the case is a particularly bad one, the court is free to go beyond
the normal range and impose a higher sentence, which is justified in the
circumstances.
6. The principle of proportionality
This principle is a legacy of the Law of Moses, namely, “an eye for an eye” and
is noted in the retributive theories of punishment. The essence of the principle
is that the punishment passed must be commensurate with the offence
committed. The offender should receive a sentence, which he/she deserves,
no more no less. In other words, the quantity of the punishment must reflect
and be related to the heinousness or wickedness of the offence.
In determining the right proportion of sentence to be imposed, the court must

first assess the gravity of the offence that includes the circumstances of the
offence and the circumstances of the offender. After assessing the
seriousness of the offence committed the court must decide in relation to
similar offences, how grave or wicked this particular offence is. This is both a
moral and social question. Thereafter the court will be able to decide whether
a serious or lenient view should be taken in sentencing, or whether a nominal,
medium or severe sentence should be imposed. For instance, theft of one
goat deserves a lesser sentence than theft of one hundred head of cattle if all
the circumstances of the offence and the offender(s) are similar.
The idea that a court should pass a sentence which proportionate to the
offence committed is so much enshrined in the principles of sentencing that a
higher court on appeal or revision will only set aside a sentence which is
patently inadequate or manifestly harsh and excessive, as to amount to a
miscarriage of justice.
7. The Gravity of the offence
The legislature has graded offences according to gravity by prescribing the

maximum penalties. But is a general grading which is contained in the statute.
When the court is faced with assessing the gravity of the particular offence
committed, it has to resort to other factors outside the statute to determine the
relative gravity of the offence under consideration.
The factors to be taken into consideration are the nature of the offence, the
circumstances of the offence and the circumstances of the offender. In
text] Page 168
considering the nature of other offences, it is pertinent to have regard to
matters such as:
a) Whether the offence poses a special social danger or menace to society;

b) Whether it causes more alarm to the public, e.g by being too prevalent;
c) Whether it causes great social disapproval; and
d) The degree of wickedness involved in the commission of the offence.
On the other hand, the circumstances of the offence include the manner in
which the offence was committed, against whom it was committed, the actual
loss or injury inflicted on the victim and prevalence of the offence.
The third consideration is the circumstances of the offender i.e. social position
and character. The total sum of the above factors adds up to the gravity of the
offence. It is only after taking into account all these factors that it is possible to
make a reasonable determination of the gravity of an offence. These
considerations enable the court to determine the gravity of the offence by
comparing it with other imaginable instances of the same or related offence.
8. The principle of equality
The principle of equality in sentencing is that other things being equal,

offences of equal gravity deserve sentences of similar severity. If any
differentiation is to be made between two offenders convicted of the same
offences, it must be on the basis of other factors, which are recognized as
legally relevant. Differentiation on any other basis, say on race, sex or wealth,
is discrimination and is a wrong principle of sentencing.
Therefore, where co-offenders are convicted for committing the same offence,
they should receive similar or comparable sentences, unless there are valid
reasons for alike is fundamental and someone who has received a sentence
of imprisonment whereas his/her co-accused was fined, or a much heavier
prison sentence than received by his/her co-accused is not likely to be readily
perceptive of differences. There is need to avoid the offender and the public
entertaining a sense of injustice. The offender will not benefit much if he/she
harbours a sense of injustice, and the public’s respect for the criminal law will
diminish if it is thought to be unjustly administered.
The principle of equality has the effect of standardizing sentences imposed on

offenders convicted of similar crimes. The result of this is to establish a
measure of uniformity and consistence in the sentencing process.
9. Mitigating factors

text] Page 169
Mitigating factors are circumstances of the offence and of the offender which
reduce the seriousness of the offence and consequently the severity of the
punishment. These mitigating circumstances may indicate the blamelessness
of the offender or his/her reform ability. Some of the factors which show the
blamelessness of the offender are ignorance of the law, good motive,
drunkenness, necessity, loss of self control and lesser degree of participation.
Factors which indicate the reform ability of the offender include youthful age,
absence of previous record, pleas of guilty, show of remorse, and co-operation
with the police. We shall briefly examine each of these factors:
a) Ignorance of law: ignorance of law is not a defence to a criminal charge

unless knowledge of the law is expressly declared to be an element of the
offence. (Section 7 of the Penal Code). Public policy presumes every
person to know the law. But it is well known that not everyone knows all the
laws of land which govern them. Therefore, if a person commits an obscure
offence of which he/she was not aware, this may afford him/her a ground
for the court to be lenient because of the reduced moral blame-worthiness.
b) Good motive: Motive is generally an irrelevant consideration in

determining criminal responsibility [Section 9(3) of the Penal Code]. But it
is sometimes considered when determining the intention of the accused in
committing the crime. When an offence is committed with a good motive,
this may be a mitigating factor. For instance, where a wife commits perjury
to save her husband, or where a person drives a motor vehicle without a
license to take a child to hospital to save its life.
c) Necessity: Necessity is also not generally speaking a defence to a

criminal charge. But in certain circumstances, it may be a mitigating factor.
The accused may commit the offence because he/she is faced with two
conflicting duties, one to obey the master or to survive. For instance, a
driver may be forced to drive a vehicle, which is in Dangerously Mechanical
Condition (DMC) on instructions of the master for fear of losing the job. If
he/she is convicted of the offence, one may plead necessity, as he/she had
no better alternative than to breach the law.
d) Drunkenness/Intoxication: Drunkenness/Intoxication does not constitute

a defence to a criminal charge unless it amounts to insanity (S.13 of the
Penal Code). It can be taken into account in determining whether the
accused had a specific intent required in the commission of the offence.
However, drunkenness may be a mitigating factor where the offence is
committed under influence of drink to amounting to insanity. The degree of
blameworthiness is reduced unless there is premeditation followed by drink
to give one “Dutch” courage to commit the crime.

text] Page 170
e) Loss of Self-control: A person who commits a crime when he has lost his
self –control deserves leniency because of the reduced moral
blameworthiness. Self-control may be lost through intoxication,
provocation, sudden temptation, emotional distress etc.
Provocation is not a general defence to a criminal charge except in murder

cases where it reduces it to manslaughter. But an offender who acts under
the sudden provocation offered by the victim deserves some leniency for
committing a provoked offence. The reverse is also true that where one
commits an unprovoked crime, this constitutes an aggravating
circumstance. Where a person commits an offence under strong
temptation, this may be taken as a mitigating factor if it is clear that he/she
could not have otherwise fallen into crime. Mental disorder causing
emotional distress and other mental deficiencies may lead a person to
commit a crime. Sometimes the defence of diminished responsibility is
available in limited cases like murder. But generally, while such mental
deficiencies may lead a person to commit a crime. Sometimes the defence
of diminished responsibility is available in limited cases like murder. But
generally, while such mental deficiencies may not amount to defence to the
crime committed, they may in appropriate cases provide mitigating factors.
A person who commits an offence under an irresistible impulse (a strong
urge to commit a crime) may not have a defence to the offence, but may
have that factor taken into account as mitigating blameworthiness. Similarly
a person who attempts to commit suicide deserves to be treated leniently
as such persons act under some mental impairment.
f) Less Degree of participation: Where the offence has been committed by

several offenders, the fact that one of them participated less in the
Commission of the offence or was merely persuaded or tricked into the
crime, is a relevant mitigating circumstance in his favour.
g) Co-operation with the Police: Co-operation with the police sometimes
indicates a degree of acceptance of participation in the crime. It assists the
Police in carrying out their investigation of the offence. It is a factor in
favour of the offender an it is in the public interest that he/she should
receive an allowance for leniency on this score to encourage others to
assist the Police in their inquiries.
h) Plea of guilty: Where an accused person readily pleads guilty to the

charge, and he/she is hereby convicted, this is a valid consideration to take
into consideration in his/her favour. A plea of guilty indicates acceptance of
blame and normally reflects remorse on behalf of the accused. This is an
indication that the accused realizes his/her fault and may reform in future.
But a Court is not entitled take into consideration the fact that the accused
has chosen to plead not guilty because the accused is entitled to do so, as
of right if he/she chooses to do so.
text] Page 171
i) Good previous record: The that an accused person is a first offender or
has had a previous good record is a valid mitigating factor. Courts are
usually reluctant to send to prison first offenders or if they do so, for long
periods, unless the circumstances of the case compel them to do so. The
courts aim at offering first offenders a chance to reform without the need
for a long prison sentence where they might mix with hardened criminals
and learn better methods of committing crime.
On the other hand, the court should take into account the lapse of time
after an earlier sentence was imposed. This might indicate that the
accused has been trying to go straight and therefore requiring more
opportunity for reformation.
j) The remand period: The fact that an accused person has on remand for a
long period is a mitigating factor. The court is required to take into
consideration the period the accused has been in custody pending trial.
Although the accused does not serve a prison sentence while on remand,
it is clear that he/she is kept more or less like a prisoner since much of
his/her liberty and privileges are curtailed while in prison custody. The
sentence of the court should therefore reflect this period, which is normally
deducted from the sentence when the court is determining the proper
sentence. [See Article 23(8) of the Constitution]. While the consideration
does not require mathematical calculation, the failure to reflect in the
sentence that due regard was had to the period of remand in custody will
render the sentence irregular.
k) The age of offender: The age of the offender is a relevant mitigating factor
in cases of extreme young age and extreme old age. The general principle
is that young offenders should be given more treatment than punishment.
Therefore, young age is considered as providing lenient treatment to the
offender. On the other hand, extreme old age is taken as a mitigating factor
in that generally, courts are reluctant to send a very old man or woman to
the/in prison. Such a man/woman may need care just as a child.

text] Page 172
CHAPTER 28
SENTENCES ON CONVICTION
1. Death Sentence
(a) Capital offences
The High Court must impose a sentence of death (mandatory capital

punishment) where the accused is convicted of any of the following offences:
i. Treason, contrary to S.23(1) and (2) of the Penal Code,

ii. Murder, contrary to S.188 of the Penal Code,
iii. Robbery with aggravation contrary to S.285 and S.286(2) of the Penal
Code,
A death sentence may also be imposed by the High Court for the following
offences:
i. Treason and offences against the State, contrary to S.23(3) and (4) of
the Penal Code,
ii. Kidnapping with intent to murder, contrary to S.243 of the Penal Code.
However, the Constitutional Court has recently held mandatory death

sentence is unconstitutional and that the death sentence is discretionary.
There is an appeal pending before the Supreme Court against this decision.
(b) Execution of sentence of death
A sentence of death shall be carried out by hanging in accordance with the

provisions of the Prisons Act. [S.99(1) of T.I.A]. When any person is sentenced
to death the sentence shall direct that he/she shall suffer death in the manner
authorized by law[S.99(2) of T.I.A]. The death sentence is executed only after
the President has issued a death warrant directing the sentence to be
executed [S.102(3) & (4) of T.I.A].

text] Page 173
(c) Authority for detention
A certificate under the hand of the judge by whom any person has been
sentenced that sentence of death has been passed and naming the person
condemned shall be sufficient authority for the detention of such person
[S.101 of T.I.A].
(d) Record and report to Minister
The High Court is required to forward to the Minister of Justice a copy of the
proceedings and judgement with a report signed by the presiding judge
containing any recommendations or observations on the case as he/she may
think fit. The copy of proceedings and judgment should be sent as soon as
conveniently possible after the sentence has been pronounced, if no appeal is
preferred. Where an appeal is preferred and the sentence is upheld by the
Court of Appeal, the documents should be forwarded soon after the decision
of the Supreme Court. [S.102(1) of T.I.A].
The Minister then summons the committee on the Prerogative of Mercy which
meets and advises the President on the exercise of his/her prerogative of
mercy in respect of the case so that the court enters the substance of the
President’s decision in its records.
The President is required to issue a death warrant or an order for the sentence
of death to be commuted or a pardon, under his/her hand and the public seal,
to give effect to the said decision. If the sentence is commuted to any other
punishment the order shall specify that punishment. If the person sentenced is
pardoned, the pardon shall state whether it is free, or to what condition, if
any, it is subject. [S.102(3) of T.I.A].
The warrant or order, or pardon of the President shall be sufficient authority in

law to all persons to whom the same is directed to execute the sentence of
death or other punishment awarded, and to carry out the directions therein
given in accordance with the terms thereof. [S.102(4) of T.I.A].
(e) Sentence of death on pregnant woman
A death sentence cannot be imposed on a pregnant woman. Where a woman

convicted of an offence punishable with death is found to be pregnant, the
sentence to be passed on her shall be a sentence of imprisonment for life
instead of a sentence of death. [S.103 of T.I.A]. The object of this provision is
to avoid executing the innocent unborn child.
The court is required to make appropriate inquiries to enable it to determine

the issue whether or not the woman is pregnant. This question is to be
determined by the court on such evidence as may be laid before it on behalf of
text] Page 174
the woman or the DPP, and the court shall find that the woman is not pregnant
unless it is proved affirmatively to its satisfaction that she is pregnant. In other
words, the court must be satisfied or convinced that the woman is pregnant.
Where the court finds that the woman is not pregnant, the woman has a right
to appeal to the Supreme Court which court may set aside the finding of the
trial court and pass a sentence of imprisonment for life [S.103 of T.I.A].
(f) Sentence of death on person under 18 years
No sentence of death can be passed against a young person who committed

the offence while under the age of 18 years. Section 105(1) of T.I.A provides
that a sentence of death shall not be pronounced on or recorded against a
person convicted of an offence if it appears to the court that at the time when
the offence was committed he/she was under the age of 18 years, but instead
the court shall order such a person to be detained in safe custody, in such
place and manner as it thinks fit, pending an order of the Minister of Justice.
The court should then transmit the court record together with any report of the
presiding judge, to the Minister.
After considering the record and report forwarded to him/her, the Minister may
make an order under his/her hand directing that the person convicted shall be
detained in such prison or other place of custody as may be specified in the
order. [S.105(2) of T.I.A]. The order may be varied or discharged by the
Minister at any time. See also S.105 of the Children Act.
(g) Sentence of death on two counts
Where a person is convicted of two or more offences punishable with a death

sentence, the High Court should pass a death sentence for each offence and
not postpone passing sentence for the other offences until the first sentence of
death is set aside. The rationale for this practice is that if the only sentence
imposed is set aside he there is no other existing sentence to either confirm or
set aside. Moreover, it is a requirement that the accused must be sentenced
on each count of which he/she is convicted. The fact that a sentence of death
can only be executed once should not affect these basic sentencing principles.
2. Imprisonment
a) Jurisdictional limitations
Where the statute creating the offence provides for imprisonment, a

magistrate’s court may impose such a sentence provided it does not exceed,
i. The maximum sentence provided by the law creating the offence, or

text] Page 175
ii. The sentencing powers of the magistrate.
The sentencing powers of Magistrates are as follows, (S.162 of M.C.A):
i. Magistrate Grade I: Max. Imprisonment of 10 years.

ii. Magistrate Grade II: Max. Imprisonment of 3 years.
iii. Magistrate Grade III: Max. Imprisonment of 1year.
A Chief Magistrate may pass any sentence authorized by law.
b) Mitigation of penalties
A person liable to imprisonment for life or any other period may be sentenced
to any shorter term. [S.178(1) of M.C.A]. A person liable to imprisonment may
be sentenced to pay a fine in addition to or instead of imprisonment [S.178(2)
of M.C.A].
These provisions give the courts discretion to impose a lesser sentence than
the maximum provided for the offence unless the sentence is fixed by law and
therefore mandatory. They also empower the courts to impose a fine instead
of imprisonment even where the only penalty mentioned in the Section
creating the offence is imprisonment.
c) Consideration to be taken into account before imposing a prison

sentence
The court has power to make an important decision whether or not to send the
offender to prison. The court must consider whether a deterrent or
rehabilitative sentence should be imposed. Having decided that a deterrent
sentence is appropriate to punish the offender, and then it has to consider
whether the sentence should be a term of imprisonment or a fine.
The choice between a fine or imprisonment is governed by such factors as the

intrinsic gravity of the offence e.g. whether it is a felony or misdemeanor, its
prevalence, and the presence or absence of aggravating factors. If the offence
is so serious that there is need for a deterrent sentence and one which will
ensure the protection of society, then a prison sentence should be imposed.
There are other special considerations, which should be taken into account
before imposing a prison sentence. In cases involving first offenders, it is a
principle of sentencing that a sentence of imprisonment should not be
imposed on a first offender except where the offence is particularly grave or
aggravated or prevalent in the area. The emphasis on sentencing first

text] Page 176
offenders is on the reformative effect, unless the offence requires a severe or
deterrent punishment.
With regard to youthful offenders, the sentencing policy is to keep them out of
prison because of the bad effects which confinement and sustained contact
with older criminals may have on them. Young persons under the age of
eighteen years cannot be sentenced to imprisonment. Similarly, a lenient view
should be taken of young persons though above the age of eighteen,
especially if they are first offenders.
In domestic offences, where parties are closely related, a prison sentence is

not likely to benefit both parties. The sentence is not likely to promote
harmony in the family and the complainant or the victim may in the process get
punished, for instance where the breadwinner is imprisoned leaving behind a
helpless family. In such cases, unless the offence is a felony, the court should
promote and encourage reconciliation or impose a fine.
d) Short prison sentences
There is some controversy as to whether a short prison sentence serves any

useful purpose. The arguments against short prison sentences are that:
i. They are too brief to be either reformative or deterrent.

ii. A first offender associates with more experienced criminals and is not
likely to learn anything to his/her moral advantage. The friends and
experience gained are undesirable.
iii. There is not enough time for the prisoner to learn anything useful to
him/her upon release.
iv. The cost of keeping an unskilled person in jail is far greater than the
value of work that can be extracted from them.
The argument s in support of short prison sentences are as follows:
i. There is no cogent evidence that longer sentences are more

reformative than short ones.
ii. The contrary view fails to take account of the fact that people are sent
to prison as a punishment.
iii. Humanitarian grounds demand that the period of incarceration should
be as short as it can be compatible with the requirements of retribution
and deterrence.
iv. There is protection of the public by incapacitating the offender from
committing further crimes.
text] Page 177
Because of the strong arguments in favour of the short prison sentences, they
still persist. There can be no doubt that a short prison sentence is a deterrent,
but it may not offer adequate opportunity for reformation. What should be
avoided is an absurdly short sentence of a few weeks, save in default of
payment of a fine.
e) Warrant of commitment to prison

The sentencing court is required to issue a warrant under the hand of the
magistrate or judge who passed the sentence, ordering that the sentence shall
be carried out in any prison within Uganda. Such warrant is full authority to the
Officer-in-Charge of such a prison and all other persons for carrying into effect
the sentence described in such a warrant. Every sentence is deemed to
commence from and to include the whole of the day of the date on which it
was pronounced or if there is delay or postponement in serving sentence, on
the date when the offender is first received in prison. (S.176 of M.C.A and
S.106 of T.I.A).
f) Prisons in which sentences may be served
Every sentence of imprisonment passed by the High Court or a Magistrates

Court must normally be served in a prison administered by the Government or
by the District Administration. (S.107(1) of T.I.A and S.177(1) of M.C.A).
But where the court sentences a person to imprisonment for a period not
exceeding 14 days whether awarded as a substantive sentence or in default of
payment of money, the court may, as it thinks fit, order the sentence to be
served in any suitable place. [S.107(2) of T.I.A and S.177(2) of M.C.A].
3. Preventive detention
This High Court and a court presided over by a Chief Magistrate or Magistrate
Grade I has power to impose a sentence of preventive detention, which is a
sentence of imprisonment, in accordance with the provisions of the Habitual
Criminals (Preventive Detention) Act, Cap.118 (See S.163 of M.C.A).
Preventive detention can be imposed only to a limited kind of persons. Under

S.2(1) of the Preventive Detention Act, for the offender to qualify for the award
of this punishment, the person must be:
a) Not less than 30 years of age;

b) Convicted of an offence punishable with imprisonment for a term of two
years or more;

text] Page 178
c) Convicted on at least three previous occasions since reaching the age of
16 years of offences punishable with imprisonment, and was on at least
two of those occasions sentenced to imprisonment.
If these conditions are fulfilled and the court is of the opinion that it is
expedient for the protection of the public that the offender should be detained
in custody for a substantial time, the court may pass, in addition to or in lieu of
any other sentence, a sentence of preventive detention for such a period of
not less than 14 years as the court may determine. However, where a
sentence of preventive detention is passed in addition to any other
imprisonment it shall not exceed fourteen years.
Under S.163(2) of the M.C.A where a Chief Magistrate passes a sentence of

preventive detention, the total term of preventive detention and any additional
sentence of imprisonment that may be imposed shall not exceed ten years.
Where a Magistrate Grade I passes a sentence of preventive detention, no
additional sentence of imprisonment may be imposed.
A sentence of preventive detention cannot be imposed except on application

of the DPP. The application may be made by the DPP in person or in writing.
The court has discretion to impose the sentence or not. [S.2(2) of the
Preventive Detention Act]. At least three days’ notice in writing should be given
to the offender that it is intended to prove his/her previous convictions, and
service of notice must be proved. The previous convictions must be proved
and admitted by the offender.
The court has no power to order that a sentence of preventive detention shall
run concurrently with a sentence of imprisonment imposes at the same time.
In this connection Section 4 of the Preventive Detention Act provides that a
sentence of preventive detention shall take effect immediately on the
determination the sentence of imprisonment, whether that is determined by
effluxion or by order of the President.
A sentence of preventive detention passed by a magistrate’s court requires

confirmation by the High Court (S.173 of M.C.A). But a court which passes to
imposition of the such a sentence has no power to commit the offender to a
higher court with a view to preventive detention.
Sentence of preventive detention should be imposed only on persistent or

habitual offenders against whom society needs to be protected by detention to
the offender for a substantial period. The long period of detention is intended
to give the offender sufficient time for correction. But a sentence of preventive
detention should not be imposed except as a last resort. Where the offender
has been going straight without committing any offence for a considerable
period e.g. three years, he/she should not be sentenced to preventive
detention, but given appropriate sentence of imprisonment only.
text] Page 179
4. Fines
a) Sentencing powers
The sentencing powers of Magistrates’ courts with regards to fines are

provided for under Section 162(1) of M.C.A as follows:
i. Chief Magistrate: Any fine authorized by law.

ii. Magistrate Grade I: Maximum fine of one million shillings
(Shs.1,000,000/=).
iii. Magistrate Grade II: Maximum fine of five hundred thousand
shillings (Shs.500,000/=).
iv. Magistrate Grade III: Maximum fine of two hundred fifty thousand
and five hundred shillings (Shs.250,500/=).
The High Court may pass any fine authorized by law (S.2 of T.I.A).
The Court is limited in its power to award sentence by the sentence or

fine provided for the offence under the statute creating the offence, and
secondly the court cannot impose a fine, which is beyond its sentencing
powers.
The provisions of Section 178(2) of M.C.A and S.108(2) of T.I.A should

be borne in mind. A person liable to imprisonment may be sentenced to
pay a fine in addition to or instead of imprisonment.
b) General principles Governing fines
The principles governing the use and fixing of fines are generally the same
as those governing sentences of imprisonment. But a strong element of
individualization is represented by the general principle that the amount of
a fine must be related, among other things, to the offender’s ability to pay
(S.180 of M.C.A and S.110 of T.I.A).
Fines are generally used in cases where a deterrent sentence is

considered necessary but the offence is not sufficiently grave to justify a
sentence of imprisonment usually because the offence is not particularly
serious or occasionally because there are particularly strong mitigating
factors.
The main principle governing the use of fines is that the offence concerned
must be one for which a sentence of imprisonment is not required. It is held
text] Page 180
to be wrong in principle to impose a heavy fine on a wealthy person in a
case where a person of less substantial means would normally be
sentenced to imprisonment. It is equally wrong to impose a fine merely
because the accused can afford to pay it.
The ability of the offender to pay is relevant only as a mitigating factor,

reducing the amount, which might be fixed by reference to the gravity of
the offence alone. It would be inconsistent with basic tariff principles to
impose a fine out of proportion to the offence on the grounds of the
offender’s wealth.
In minor offences which are misdemeanors or regulatory offences, where

both imprisonment and a fine are provided for, the general principle is that
a fine should normally be the appropriate sentence, unless there are
circumstances aggravating the offence, e.g. where the accused causes
death by dangerous or reckless driving.
c) Considerations to be taken into Account before imposing a fine
Section 180 of M.C.A (and S.110 of T.I.A) provided that when a fine is
imposed by the court in fixing the amount, the court shall take into
consideration among other things, the means of the offender so far as they
are known to the court. The court should make some inquires as to the
financial standing of the accused, income and property and the information
obtained should form part of the record. This investigation is important to
enable the court to decide whether the accused will be able to pay the fine,
as there is no point in imposing a fine, which will instead lead the accused
to prison. The object of imposing a fine is to keep the offender out of
prison.
d) Imprisonment in default of fine
Section 180(d) of M.C.A (and S.110(d) of T.I.A) requires the court to fix a
sentence of imprisonment to be served in default of payment of the fine
imposed, in accordance with the scale of sentences contained in the
section. The Scale is as follows:
Amount of Fine Maximum

Period
 Not exceeding Shs.2,000 7

days
 Exceeding Shs.2,000/= but not exceeding Shs.10,000 1
month

text] Page 181
weeks
months
 Exceeding Shs.100,000/= 12
months
The imprisonment, which is imposed in default of payment of a fine, shall

terminate whenever the fine is paid or levied by process of law.
e) Power to allow time to pay a fine
The sentencing court is given power to allow the offender time to pay the
fine. (S.181 of M.C.A and S.111 of T.I.A). The court must allow the
offender at least thirty days in which to pay the fine or the first installment.
The accused must be allowed to find the money to pay unless any one of
the following conditions as set out in S.181(2) of M.C.A (or S.111(2) of
T.I.A) is satisfied that the accused:
i. Appears to the court to have sufficient means to pay the fine forthwith,
or
ii. When being asked by the court whether he/she wishes to have time to
pay, the accused does not ask for time, or
iii. Fails to satisfy the court that he/she has a fixed abode, or
iv. Has pleaded special circumstances (relating to the gravity of the

offence or the character of the offender) appearing to the court to
justify immediate committal.
If the court finds itself able to commit the offender to prison for non-payment
on the occasion when the fine is imposed, the court must state in the warrant
of commitment the reasons for not allowing the offender to pay.
The Court has power under S.181(3) of M.C.A [and S.111(3) of T.I.A] to allow
the fine to be paid by installments. If the offender is in receipt of a salary from
employment, the court may issue an attachment order directed to his/her
employer to deduct the fine from the salary. No attachment order can direct
the deduction of more than half of the offender’s salary in one month. A bond
may be employed in these circumstances to ensure that the offender comes to
court so that the court can deal with the matter further if the fine is not paid
text] Page 182
[S.181(4) of M.C.A and S.111(4) of T.I.A]. It should be noted that a person
who has been ordered to pay a fine cannot be committed to prison in default
unless there has been an inquiry into his/her means. Upon making such
inquiry, the court may instead of issuing a warrant of commitment to prison
make an order extending the time allowed for payment or varying the amount
of the installments and the times at which they are paid. [S.181(7) and (8) of
M.C.A and S.111(7) and (8) of T.I.A].
f) Enforcement of payment of fine
The court is given, power to ensure payment of a fine by distress or by

imprisonment in default of distress (S.194 and S.195 of M.C.A) and S.111
and S.112 T.I.A. These provisions may be used where the offender has
some property but refuses to pay the fine.
When the whole of the fine is paid an offender, who has been committed to
prison for default, must be released at once (S.183 of M.C.A and S.114 of
T.I.A). If an offender pays part of the fine after committal, the sentence in
default will be reduced in proportion to the amount paid. (S.185 of M.C.A
and S.115 of T.I.A).
5. Corporal punishment
The High Court and a court of Chief Magistrate or Magistrate Grade I had
power to impose a sentence of corporal punishment. This power is given
under S.109 of T.I.A in case of the High Court and S.162(30 and S.179 of
M.C.A in case of Magistrates courts. Note that the Children’s Statute prohibits
imposition of corporal punishment on children. (Schedule 3 S.7). However, the
Constitutional Court has ruled that corporal punishment is unconstitutional as
it contravenes Article 24 which prohibits torture, cruel, inhuman or degrading
treatment or punishment. The various provisions of the Penal Code Act and
other laws imposing corporal punishment, therefore, seem to be
unconstitutional and void, e.g Section 125, 128, 129 and 288 of ‘P.C’, (See
Kyamanywa Simon Vs. Uganda, Const. Reference No.10/2000, December
2001).

text] Page 183
CHAPTER 29
ORDERS ON CONVICTION OR ACQUITTAL
1. Costs
A magistrate’s court has, under S.195 of M.C.A, power to order the payment of
costs in any of the following circumstances:
a) To the prosecutor, whether public or private, a by a person convicted of

any offence by such court;
b) To any person acquitted of any offence by such court, by the prosecutor, if

the court considers that the prosecutor had no reasonable grounds for
prosecuting such person;
c) To the respondent by an appellant whose appeal fails if the appellate court

considers that the appellant had no reasonable grounds on which to
appeal;
d) To an appellant by a respondent on the success of an appeal if the appeal

court considers that the respondent had no reasonable grounds for
contesting the appeal at the hearing thereof;

text] Page 184
e) To any person in any matter of interlocutory nature, including a request for
an adjournment if such person has been put to any expense when in the
opinion of the court, the applicant had no grounds for making the
application;
f) To any accused person where the prosecution against him/her has been
withdrawn under the provisions of Section 121 of M.C.A, by the prosecutor
if the Court considers that the prosecutor had no reasonable grounds for
prosecuting such person.
Under Section 125(1) of T.I.A, the High Court may award costs in only three of
the above circumstances, namely those circumstances listed in paragraphs
(a), (b) and (c).
In order that a prosecutor may have reasonable grounds for prosecuting the
accused, the following conditions must exist:
a) the prosecutor must believe that the accused is probably guilty.
b) The belief must be founded upon information in the possession of the

prosecutor pointing to such guilt, and not upon mere imagination or
surmise.
c) The information whether it consists of things observed by the prosecutor or

of things told to him/her by others must be believed by him/her to be true.
d) The belief must be based upon reasonable grounds.
e) The information possessed by the prosecutor and reasonably believed by

him/her to be true must be such as would justify a person of ordinary
prudence and caution in believing that the accused is probably guilty.
If the above conditions are not fulfilled, the prosecutor has no reasonable
grounds for prosecuting the accused. The prosecutor has to form a provisional
opinion about the credibility of the witnesses on whom he/she is relying.
The amount of costs awarded by the High Court may not exceed three
thousand shillings, whereas that awarded by a magistrate’s court may not
exceed two hundred thousand shillings. The costs awarded by a magistrate’s
court may be in addition to any compensation awarded under S.196 of M.C.A.
The amount of costs must be specified in the order.
Where a magistrate’s court awards costs of over ten thousand shillings an

appeal lies to the High Court against such order. But no appeal shall lie

text] Page 185
against refusal to award costs. An appeal lies to the Supreme Court against
any order awarding costs by the High Court.
2. Compensation to accused
It is provided under S.196 of M.C.A that if on the dismissal of any private

prosecution by a magistrate’s court, the court is of the opinion that the charge
was frivolous or vexatious such court may order the private prosecutor to pay
to the accused person, in addition to the costs, a reasonable sum as a
compensation for the trouble and expense to which such person may have
been put by reason of such a charge.
A charge is said to be frivolous or vexatious if it shown that there was

blameworthy failure to devote any serious thought or any thought at all to the
situation, or that there was stupid or mischievous harassment of the accused.
In other words the charge must be too trivial and based on bad faith in order to
annoy or harass the accused, and to amount to an abuse of the judicial
process.
It should be noted that a public prosecutor (e.g the DPP or the Police) cannot
be ordered to pay compensation under this section.
3. Compensation to the victim
Both the High Court and Magistrates Courts are given powers to award
compensation to victims of crime. (S.197 of M.C.A and S.126 of T.I.A).
When any accused person is convicted by the court of any offence and it
appears to the court that some other person whether or not he/she is the
prosecutor or witness in the case, has suffered material loss or personal injury
in consequence of the offence committed and that substantial compensation
is, in the opinion of the court, recoverable by that person by a civil suit, such
court may, in its discretion and in addition to any other lawful punishment,
order the convicted person to pay to the other person such compensation as
the court deems fair and reasonable. The amount of compensation which the
High Court can award is unlimited but the amount must be specified in the
order.
When any person is convicted of any offence under Chapter XXVI to XXXI of
the Penal Code, the court is given power, to award compensation to any bona
fide purchaser of any property in relation to which the offence was committed
for the loss of such property if the same is restored to the possession of the
person entitled thereto. [S.197(2) of M.C.A and S.126(2) of T.I.A].

text] Page 186
The award of compensation by a court is mandatory where the offender is
convicted of the following offences:
a) Robbery Contrary to Section 285 and 286(1) of the Penal

Code,
Compensation is payable, where, the offender is not
sentenced to death, to any person who has suffered injury
or loss as a result of the robbery. The order for
compensation is deemed to be a decree, which can be
executed under the Civil Procedure Act. There is no limit
to the amount of compensation which the court can
award, but the sum has to be just in the circumstances.
[S.286(3) of P.C].
b) Adultery Contrary to Section 154 of PC a man convicted of adultery

must
be ordered to pay compensation of Shs.600/- on first
conviction, and a sum not exceeding Shs.1,200/- on
subsequent conviction, to the aggrieved party, who must
show to the court that he is so aggrieved. A woman is not
liable to pay any compensation.
c) Elopement Contrary to Section 127 of P.C a man or a woman

convicted of
elopement must be ordered to pay compensation of
Shs.600/- to the aggrieved party and a sum not exceeding
Shs.1,200/- on a subsequent conviction.
Any order for compensation under this Section is subject to appeal. No

payment of compensation should be made before the period allowed for
presenting the appeal has elapsed or, if an appeal has been presented, before
the determination of the appeal.
At the time of awarding any compensation in any subsequent civil suit relating
to the same matter, the court hearing the civil suit must take into account any
sum paid or recovered as compensation under this Section.
If the person who has been ordered to pay costs or compensation fails to pay,
a warrant of distress may be issued in accordance with S.182 of M.C.A (or
S.112 of T.I.A) and in default of distress, the court may issue such process as
may be necessary for his/her appearance and may sentence him/her to
imprisonment in accordance with the provisions of S.183 or S.186 of M.C.A
(and S.113 or 116 of T.I.A).

text] Page 187
Whenever the court imposes a fine or other sentence of which a fine forms
part, the court may, when passing judgement, order the whole or any part of
the fine recovered to be applied as follows: -
a) In defraying expenses properly incurred in the prosecution (costs),
b) In the payment to any person of compensation for any loss or injury

caused by the offence when substantial compensation is in the opinion of
the court, recoverable by civil suit. (See S.199 of M.C.A and S.128 of
T.I.A).
4. Restitution
The court has power to order restitution or restoration of stolen property when
found or recovered, to the owner. (S.201 of M.C.A and S.130 of T.I.A). The
power is exercisable only where the accused person has been convicted of
any offence relating to stealing, taking, obtaining, extorting, converting or
disposing of, or knowingly receiving any property. The court is given power to
restore the property recovered to the owner or his/her representative. The
order for restitution is made in a summary manner.
There are two exceptions to the rule permitting restitution of property. These
are as follows:
a) Where goods as defined in the Sale of Goods Act (Cap.82) have been
obtained by fraud or other wrongful means not amounting to stealing, the
property in such goods shall not revert in the person who was the owner of
the goods or his personal representative, by reason only of the conviction
of the offender.
b) The section does not apply to the case of any valuable security which has
been paid in good faith or discharged by some person liable to payment
thereof or being a negotiable instrument has been taken in good faith or
received by transfer or delivery by some person for a just and valuable
consideration without any notice or without any notice or without
reasonable cause to suspect that the same has been stolen.
The word ‘property’ under these provisions is given a wide meaning. It

includes not only such property as has been converted or exchanged and
anything acquired by such conversion or exchange whether immediately or
otherwise.
On the restitution of any stolen property, if it appears to the court from the
evidence that the offender has sold the stolen property to any person, that
such person has had no knowledge that the same was stolen, and that any
text] Page 188
money has been taken from the offender on arrest, the court is given
power, on application by the innocent purchaser, to order that out of such
money a sum not exceeding the amount of the proceeds of such a sale be
delivered to the said bona fide purchaser. (S.201(3) of M.C.A and S.130(3)
of T.I.A).
Where there is no dispute as to the ownership of the property in question,

the order of restitution should take immediate effect so that the
complainant or any owner may, take possession of his/her property. Where
the title to the property is in dispute, the operation of the restitution order
must be stayed until the time of appeal has lapsed (14 days). If no appeal
has been filed, the stay order should be removed and the owner allowed to
recover his/her property. If an appeal has been filed, then the restitution
order remains stayed until the appeal has been determined (S.213(4) of
M.C.A and S.130(4) of T.I.A).
The courts are also given power to restore property found on the accused
on arrest to the person who appears to be the owner or entitled thereto
(S.200 of M.C.A, S.129 of T.I.A and S.42 of the Police Act Cap.303).
Where on the arrest of an accused person, any property is taken from

him/her, the court before which he/she is charged may order,
a) That the property or a part of it be restored to the person who appears

to be entitled to it, and if it be the accused person that it be restored
either to him/her or any person he/her or any person he/she may
appoint, or
b) That the property or part thereof be applied in payment of any fine or

any costs of compensation directed to be paid by the accused.
5. Forfeiture
The High Court and Magistrates’ Courts have power to order the forfeiture or
confiscation of any property held as an exhibit by the prosecution. (S.2012 of
M.C.A and S.131 of T.I.A). The power may be exercised under two situations
namely, where the property has been produced in court or where the property
is not in court but the accused has been convicted of the offence.
In the first instance, during or at the conclusion of any trial, a court has power
to make an order for the disposal, either by way of forfeiture or confiscation or
destruction of any property produced before it regarding which any offence
appears to have been committed or which has been used for the commission
of any offence. [S.202(1) of M.C.A and S.131 (1) of T.I.A].

text] Page 189
In any other case where no evidence has been called, if the prosecutor wishes
any property to be disposed of, the prosecutor should after the conviction of
the accused person, produce such property before the court which may
thereupon make an order for disposal of such property. [S.202(2) of M.C.A
and S.131 (2) of T.I.A].
If the court makes an order for disposal of property, it may direct that the
property be kept or sold if the order does not direct the delivery of the property
to any specific person, or its destruction. If the property is sold the proceeds
must be held under the courts discretion until someone establishes to the
courts satisfaction, a right thereto. If no one does so within six months the
property or its proceeds must be ordered to be paid into the consolidated fund.
[S.202(3) of M.C.A and S.131 (3) of T.I.A].
This power of disposal is to be exercised subject to any special provisions

regarding forfeiture, confiscation, destruction, detention or delivery contained
in the written law under which the conviction is had or any other law applicable
to the case. [S.202(4) of M.C.A and S.131 (4) of T.I.A].
Before an order for disposal is made under the above provisions, if it appears
to the court that the accused was no the owner of the property, the owner
must be given an opportunity of being heard as the question of ownership is
relevant and has to be determined.
Where an order of disposal of property is made, in a case in which an appeal

has been lodged, such order shall not, except where the property is livestock
or is subject to speedy and natural decay, be carried out until the period
allowed for filing such an appeal has passed, or when the appeal is entered,
until the determination of the appeal.
The following are some of the statutes which contain provisions for forfeiture
or confiscation of the property involved in the commission of an offence:
a) The Penal Code Act (Cap.120): Under Sections 35(2), 36(2), 40(3), 164(4),
170(4), Chapter XXXV, Chapter XXXVI, S.303, S.319(3), 375, 359,
Chapter XXIX.
b) The Firearms Act Cap.299 Under Sections 32(1), 32(2)

c) The Fish Act (Cap.197), Section 41(2)
6. Security for coming up for judgment
Under S.191 of M.C.A (and S.120 of T.I.A), the court is given power to bind
over the accused to be of good behaviour instead of passing sentence upon
him/her over the accused to be of good behaviour instead of passing sentence
upon him/her.
text] Page 190
Accordingly, where a person is convicted, the court may instead of passing
sentence, discharge the offender upon entering into a recognizance (bond)
with or without sureties, in such sum as the court thinks fit. The bond should
require the accused to comply with the following conditions, namely that,
a) He/she shall appear and receive judgement when called upon so to do

within a period of 12 months from the date of such discharge, and
b) During such period, he/she shall keep the peace and be of good behavior.
If at any time the court which convicted the offender is satisfied that the
offender has failed to observe any of the conditions of his/her recognizance, it
may issue a warrant for his/her arrest [S.191(2) of M.C.A and S.120(2) of
T.I.A].
An offender when apprehended on any such warrant shall be brought forthwith

before the court by which the warrant was issued, and the court may either
remand the offender in custody until the case is heard or admit him/her on
bail. Such court may after hearing the case pass sentence.
7. Discharge of Offender without punishment
Any court has power to discharge an accused person without punishing

him/her. (S.190 of M.C.A and S.119 of T.I.A). It is provided that where in any
trial, the court thinks that the charge against the accused person is proved, but
is of opinion that, having regard to the character, antecedents, age, health or
mental condition of the accused, or to the extenuating circumstances in which
the offence was committed, it is inexpedient to inflict any punishment, the court
may,
a) Without proceeding to conviction make an order dismissing the charge; or
b) Convict the accused person and caution him/her.
When an order is made by the court under the above provision dismissing the
charge, that order is deemed to be a conviction for purposes of awarding
costs, compensation and restitution.
8. Police supervision
Where the High Court or a court presided over by a Chief Magistrate or

Magistrate Grade I, convicts a person of the offence of robbery contrary to
Section 285 of PC and the offender is sentenced to a term of imprisonment for
less than life, the court must, at the time of passing sentence, order that the
offender be subject to police supervision for any period not exceeding five

text] Page 191
years, from the expiration of the prison sentence. [S.194(1) of M.C.A and
S.124(1) of T.I.A].
Every person subject to police supervision must, upon discharge from prison,
be furnished with an identity card in the prescribed form. While he/she is at
large in Uganda, he/she is required to comply with the following:
a) To report personally at such intervals of time, at such place and to such

person as shall be endorsed on the card, and
b) To notify the place of his/her residence and any change of it in accordance

with the Police Supervision Rules. (Statutory Instrument No.143/69).
Any person subject to police supervision who fails to comply with the above
requirements is guilty of an offence punishable by a maximum term of two
years imprisonment, unless he/she proves to the satisfaction of the court that
he/she did his/her best to act in conformity with the law. [S.194(3) of M.C.A
and S.124(3) of T.I.A].
The Minister is given power under the same sections to declare, by Statutory
Instrument, any other offence to be an offence to which a person convicted
shall be subject to police supervision.
9. Orders relating to Children
Under the Children Act Cap 59, once charges have been proved against a
child, the Family and Children Court has power to make any of the following
orders under S.94:
a) Absolute discharge
b) Caution
c) Conditional discharge for not more than 12 months
d) Binding over for good behavior (max:12months)
e) Compensation, restriction or a fine provided no order of detention shall be
made in default of payment of a fine.
f) A probation order for not more than 12 months.
g) Detention for a maximum of 3 months for child under 16 years of age and
maximum of 12 months for a child above 16 years of age and in cases of
an offence punishable by death, three years for any child.
Under S.96 of the Children Act, children shall be detained at Kampiringisa

Boy’s Approved School (known as the National Rehabilitation Centre for
Children) pending the establishment of other such centres. The aim is to
rehabilitate and re-train children.
10. Community Service orders

text] Page 192
Community service orders were introduced by the Community Service Act
(Cap 115) in 2000 to provide one of the alternatives to imprisonment. Some of
the objects of the reform were to promote the rehabilitation of the offender,
and the reconciliation with the victim and the community, and to decongest
overcrowded prisons with petty offenders.
Community service means non-custodial punishment by which after conviction

the court, with the consent of the offender, makes an order for the offender to
serve the community, rather than undergo imprisonment [S.2(a)].
A community service order means an order made under the Act requiring an
offender to perform work (within the community for a specified period [S.2(b)].
Community service orders are available only in minor offences, which are
offences for which the court may pass a sentence of not more than two years
imprisonment [S.2(g)].
Therefore, where a person is convicted of a minor offence, the court may

instead of sentencing that person to prison make a community service order.
[S.3(1)]. Before passing a community service order, the curt is required to
consider the circumstances, character and antecedents of the offender and
ask him or her whether he or she consents to the order [S.3(2)].
Community service orders must be performed for a period not more than six
months, and the offender should not work for more than eight hours a day.
The offender shall be under the supervision of the supervising officer named in
the community service order. (S.4).
If during the community service period, the offender fails to comply with
requirements of the community service order the court may issue summons or
warrant of arrest requiring him to appear before it. If it is proved to the
supervising court that the offender has failed to comply with the requirements
of the order, the court may vary the order, or impose a fine, or cancel the order
and impose a sentence which the court could have imposed for the offence
(S.5)
Where an offender has been ordered to undergo community service for a

period of more than four months, the supervising officer is required to give a
report to the supervising court concerning the offender’s performance and
general conduct. The supervising court may reduce the period of community
service by not more than one third where the offender is of good conduct. The
supervising officer is required to make a report to the court on the termination
of a community service order. (S.8).
The Community Service Programme is supervised by the National Community

Service Committee chaired by a judge of the High Court. The Committee is
text] Page 193
assisted by the District Community Service Committees. The Minister is
empowered to make regulations prescribing the duties of supervising officers,
composition and functions of District Service Committees and forms necessary
for the purpose. The Minister may also issue guidelines on the nature of work
considered suitable for Community Service (S.11).
CHAPTER 30
APPEALS
1. Nature of appeal
An appeal is an application by an aggrieved party to a criminal case, to a

higher court to review the decision of a lower court where the party considers
that the lower court came to a wrong decision on the evidence or in law. The
purpose of the appeal system is to enable higher courts to correct mistakes of
lower courts which have caused a miscarriage of justice.
text] Page 194
In order for a person to appeal against a decision of any court, he/she must
have a right of appeal granted by law, as a right of appeal is a creation of
statute. The normal rule is that an appeal lies only against a final order of the
court determining the case.
Although an appeal is in the form of re-hearing the case, proceedings in the

appellate court are restricted to an examination and review of the evidence
adduced at the trial and the judgement of the lower court. Therefore,
witnesses are not recalled to give evidence, although the court may allow the
parties to call additional evidence under special circumstances.
2. Right of appeal from High Court to the Court of Appeal
A person who has been convicted and sentenced by the High Court may
appeal to the Court of Appeal from the conviction and sentence of the High
Court as or right, on a matter of law, fact or mixed law and fact. [ S.132(1)(a)
T.I.A].
An accused person further, may with leave of the Court of Appeal, appeal to
the Court of Appeal against the sentence alone other than a sentence fixed by
law e.g. the death sentence. [S.132(1)(b) T.I.A].
The Director of Public Prosecutions may appeal to the Court of Appeal against
an acquittal as a right, on a matter of law, fact, or mixed law and fact [S.132(1)
(c) T.I.A]. In such circumstances the Court of Appeal may do one of the
following:
i. Confirm, vary or reverse the conviction and sentence;
ii. In the case of an appeal against sentence alone, confirm or vary be

sentence or
iii. Confirm or reverse the acquittal of the accused. Where the Court of
Appeal reverses an acquittal under Sub-section (1) it shall order the
accused person to be convicted and sentenced according to the law.
[S.132(2)(c) T.I.A].
Where an accused person pleaded guilty during the trial before the Chief
Magistrate or Magistrate Grade I, or on appeal to the High Court, and was
convicted on that plea, no appeal shall be allowed except as to the legality of
the plea or extent or legality of the sentence [S.132(3)T.I.A].
The rules of procedure applicable and relevant documents to be drafted for

appeals in the Court of Appeal are contained in the Court of Appeal Rules

text] Page 195
Directions, 1996 made under S.51(2)(b) of the Judicature Act, Cap 13 (See
Legal Notice No.11 of 1996).
A person in whose case a special finding has been made (not guilty by reason
of insanity) has a right of appeal against such special finding to the Supreme
Court on a question of law or of fact or of mixed law and fact. [S.133(1) T.I.A].
There is no right of appeal against conviction in case of person who has

pleaded guilty in his/her trial in the High Court or Magistrates’ Court and has
been convicted on such plea. He/she may only appeal against the legality of
the plea or the extent or legality of the sentence. [S.6(6) Judicature Act].
3. Right of Appeal from the Court of Appeal to the Supreme Court
A person aggrieved by a decision of the Court of Appeal may appeal to the

Supreme Court. (S.5 Judicature Act). S.6 of the Judicature Act provides for
appeals in cases of offences punishable by death. [S.6(1)(a) and (b)]. It also
allows the DPP to appeal against an acquittal for a declaratory judgement on a
matter of law, mixed law and fact or a matter of great public importance.
[S.6(1)(c) and (d) Judicature Act].
Under Sub-section 2 of the same section it is provided that Sub-section (1)

shall apply to appeals to the Supreme Court from decisions of the Court of
Appeal in cases of offences not punishable by death, except in such cases,
the appeal shall only lie on a matter of law only. [S.6(2) Judicature Act].
A person who has been convicted and sentenced to imprisonment for 12

months or less, or to a fine exceeding Shs.200 has a right of appeal against
his conviction if he obtains leave of the Supreme Court or if the trial judge
certifies that it is a fit case for appeal.
The rules of procedure and relevant documents to be drafted for appeals in

the Supreme Court are contained in the Supreme Court Rules Directions 1996
made under S.51(2)(a) of the Judicature Act (See Legal Notice No.13 of
1996).
3(1) Second appeals from High Court to Supreme Court
A second appeal is an appeal from a decision of an intermediate appellate

court, which has heard a first appeal from a trial court. A party may appeal to
the High Court and if dissatisfied with the decision of the High Court; he/she
may further appeal to the Supreme Court. The appeal to the High Court is a
first appeal while the one to the Supreme Court is a second appeal.

text] Page 196
Either party to an appeal from a Magistrate’s Court may appeal against the
decision of the High Court in its appellate jurisdiction, to the Supreme Court on
a matter of law, not including severity of sentence, but not on a matter of fact
or of mixed fact and law. [S.45(1) of C.P.C].
Where an appeal lies against a sentence and an order other than one fixed by
law, the accused person may appeal to the Supreme Court against the
sentence or order on a matter of law only. [S.6(3)(c) Judicature Act].
The Supreme Court has powers to confirm, vary or reverse a conviction and
sentence appealed against or confirm or reverse the acquittal of the accused
person.
The rules of procedure and relevant documents to be drafted in the Supreme

Court are contained in the Supreme Court Rules Directions 1996 made under
S.48(1)(a) of the Judicature Act.
3(2) Third Appeals to the Court of Appeal

Where an appeal emanates from the judgment of a Magistrate Grade II and
either the accused person or the DPP has appealed to the Chief Magistrate
then to the High Court, either party above may lodge a third and final appeal to
the Court of Appeal with a certificate of the High Court that the matter raises a
question of great importance or if the Court of Appeal in its overall duty to see
that justice is done considers that the appeal should be heard. (S.46 C.P.C).
The Court of Appeal can only give a declaratory judgment.
Likewise under the Judicature Act, where an appeal emanates from the
judgment of a Chief Magistrate or Grade I Magistrate exercising original
jurisdiction and either party (accused or DPP) has appealed to the High Court
and Court of Appeal, then either party may lodge a third appeal to the
Supreme Court with a certificate of the Court of Appeal that the matter raises
questions of law of public or general importance or the Supreme Court will in
its duty consider that such appeal should be heard. [S.5(5) Judicature Act].
4. Right of Appeal from Magistrates Court to High Court
A person convicted by a Chief Magistrate or a Magistrate Grade I have a right

of appeal to the High Court on a matter of fact as well as a matter of law.
[S.204(1) and (2) of M.C.A].
The DPP has a right of appeal or may authorize an appeal to the High Court,
where the accused has been acquitted by a Chief Magistrate or a Magistrate
Grade I, on the ground that the acquittal is erroneous in law. [S.204(5) (a) of
M.C.A].

text] Page 197
Any party to an appeal determined by a Chief Magistrate has a right of appeal
to the High Court on a matter of law but not a matter of fact. [S.204(6) of
M.C.A]. This is a second appeal.
The DPP has a right of appeal against the a decision of a Chief Magistrate to
the High Court, following his/her appeal against acquittal on the ground that
the decision is erroneous in law. [S.204(7) of M.C.A]. This too is a second
appeal.
There is no right of appeal where the accused has pleaded guilty and has
been convicted on such plea by a magistrate’s court. The accused has a right
of appeal as to the legality of the plea or to the extent or legality of the
sentence. [S.204(3) of M.C.A].
There is no right of appeal to the High Court in case where a Chief Magistrate
or a Magistrate Grade I has passed sentence of imprisonment not exceeding
one month only, or a fine not exceeding Shs.100 only. [S.204(4) of M.C.A].
5. Right of Appeal from Magistrates’ Court to Chief Magistrates’ Courts
A person convicted by a Magistrate Grade II or Grade III has a right of appeal

to a Chief Magistrate on a matter of fact as well as a matter of law. [S.204(1)
(b) and (2) of M.C.A].
The DPP has a right of appeal or may authorize an appeal where the accused
has been acquitted by a Magistrate Grade II or Grade III, to the Chief
Magistrate, on the ground that the acquittal is erroneous in law. [S.204(5)(b) of
M.C.A].
6. Commencement of Appeal: Notice of Appeal and Record of Appeal
Every appeal must be commenced by a written notice, signed by the appellant

or his/her advocate, and lodged with the registrar of the appellate court, within
14 days from the date of judgment or order appealed against. [S.28(1) of
C.P.C]. See also rules 58-60 of CA Rules, and rules 55-57 of SC Rules.
Every notice of appeal must comply with the following:
a) State, briefly, the effect of the judgement or order appealed against;

b) Contain a full and sufficient address at which any notices or documents
connected with the appeal may be served on the appellant or his/her
advocates; and
c) State the general grounds upon which the appeal is preferred, except
where the appellant or his/her advocate indicates at the time of filing the

text] Page 198
appeal that he/she wishes to peruse the judgment before formulating the
grounds of appeal [S.28(2) and (3) of C.P.C].
Where the appellant or his/her advocate indicates that she/he wishes to

peruse the judgement or order appealed against, he/she is entitled to be
supplied with a copy of such judgement, free of charge. He/she must then
lodge the grounds of appeal with the registrar within 14 days of the date of
service on him/her of the copy of such judgement or order [S.28 (3) of C.P.C].
After filing a notice of appeal, the appellant must file a record of appeal, which
should contain the following documents, otherwise the appeal will be
incomplete:
a) The memorandum of appeal

b) The record of proceedings
c) The judgment
d) The order if any
e) The notice of appeal
f) In case of third appeals, a certificate from the High Court or Court of
Appeal
7. Memorandum of Appeal
A memorandum of Appeal is a petition or statement by the appellant outlining

the grounds upon which the appeal is based. The memorandum of appeal
should set out concisely and under district heads numbered consecutively,
without argument or narrative, the grounds of objection to the decision
appealed against, specifying, in the case of a first appeal, the points of law, or
fact and, in the case of any other appeal, the points of law which are alleged to
have been wrongly decided. (See Rule 61(2) of Supreme Court Rules 1996 or
Rule 65 of Court of Appeal Rules 1996).
A memorandum of appeal should bear an intelligent relationship to the facts

as revealed by the evidence and should not degenerate into a stereotyped
form of a memorandum. A supplementary memorandum of appeal may be
lodged to the Supreme Court with leave of the Court [R.62(1)].
The Registrar should, as soon as practicable, cause a copy of the

memorandum of appeal to be served on the respondent. See Rule 61(3) and
65(3) respectively].
8. Bail pending appeal

text] Page 199
Any appellate court has power to release the appellant on bail pending the
determination of the appeal (S.205 of M.C.A and S.47 of C.P.C). However,
such bail is granted only in exceptional circumstances.
A magistrate’s court which convicted the appellant therefore has no power to

admit him/her on bail pending the hearing of the appeal.
Before bail is granted, the appellant must have filed an appeal, and must show
exceptional or unusual circumstances. Exceptional circumstances include the
likelihood of success of the appeal.
It is sufficient if the appellant demonstrates a probability of success on appeal

rather than an overwhelming probability of success. However, it is sufficient if
all the grounds advanced considered together constitute exceptional
circumstances although each of them considered separately does not.
9. Time in which to file an appeal

The time allowed within which to file any appeal is 14 days from the date of
judgement or order appealed against. [S.28(1) of C.P.C].
However, the appellate court may, for good cause shown, extend the above
period [S.28(6) of C.P.C].
An application to extend time for lodging a notice of appeal or grounds of
appeal, must be made in writing to the registrar of the appellate court, and
must be supported by an affidavit specifying the grounds for the application.
[S.31(1) of C.P.C]. [See also Rule 4 of the CA Rules and Rule 4 of the S.C
Rules 1996].
The appellate court has power to dismiss the application summarily without
hearing the applicant or his/her advocate, if on perusing the supporting
affidavit, it is of the opinion that no grounds for granting the application are
disclosed. [S.31(2) of C.P.C].
The power to extend time can only be exercised for sufficient reason. It has
been held that this relates to the inability or failure of the application to take a
particular step. The matter being one of discretion, it is not possible to lay
down an invariable rule, but it is necessary that time limits should be treated
with respect. In considering whether a time limit should be extended, one has
to have regard to the circumstances of the case and the merits of the excuse
put forward for not adhering to the original time limit in the first instance.
Ignorance of the law governing appeals cannot be regarded as a sufficient
reason for exercising discretion in appellant’s favour. To do so would be to
open the door wide to the reception of appeals months out of time, and would
clearly give rise to abuse.

text] Page 200
The most persuasive reason the appellant can show is that the delay has not
been caused or contributed to by dilatory conduct on his/her part. One does
not necessarily have to show that the appeal has a reasonable prospect of
success or even that there is an arguable case, but the application is likely to
be viewed more sympathetically if he/she can do so.
10. Summary dismissal or appeal

An appellant court has power to dismiss the appeal summarily without hearing
the appellant after perusing the record of appeal of the trial court. [S.32(1) of
C.P.C].
The court may exercise this power in case of an appeal against sentence only,
where it considers that the sentence is not excessive. It may also exercise this
power where it considers that no question of law is raised properly for
consideration by it, or that there is no material in the circumstances of the case
which could raise a reasonable doubt whether the conviction was right or lead
the court to consider that the sentence ought to be reduced. The court has
power to order that the appeal against conviction be dismissed summarily but
direct that it be heard as regards sentence only.
However, no appeal can be summarily dismissed where the notice or grounds
of appeal has been signed by an advocate, unless such advocate has had an
opportunity of being heard in support of the same. [S.32(1), proviso(ii)].
11. Loss of Court Record

A record of proceedings and judgement of the lower court is absolutely
necessary for the proper determination of appeal. Therefore, where such a
record is lost the appellate court cannot proceed to hear and determine the
appeal on the merits, but it must order a retrial to be carried out by the lower
court.
It is undesirable that the retrial should be carried out by the same magistrate
or judge who heard the case. The retrial should be carried out by a different
magistrate or judge to avoid a pre-conceived conclusion, which will leave the
appellant with a sense of injustice.
12. Withdrawal of appeal
There are no specific provisions under the C.P.C or M.C.A for withdrawal and
restoration of appeals in the High Court and in Chief Magistrates’ Courts.
However, it is submitted that these courts have inherent powers to permit
withdrawal and restoration of appeals. But both the Court of Appeal Rules
(R.69) and Supreme Court Rules (Rules 65) make provisions for withdrawal of
appeals.
13. Abatement of Appeals

text] Page 201
Every appeal from a magistrate’s court except an appeal from a sentence of a
fine, shall finally abate or lapse on the death of the appellant. [S.43(1) of
C.P.C]. If after a diligent search, any document relevant to an appeal cannot
be served upon the appellant, the appellate court may order that the appeal be
deemed to be abated, or may give such other directions as it thinks fit.
[S.43(2) of C.P.C]. See also Rules 70 of CA Rules and Rule 66 of the
Supreme Court Rules.
14. Dismissal of Appeals for Want of Prosecution
The Appellate court has power to dismiss an appeal for want of prosecution.
[S.44(1) of C.P.C]. This power is exercised if any of the following conditions is
fulfilled:
a) If the appellant, at any time before the appeal is determined, escapes from
custody or fails to appeal after being released on bail, or
b) If the appellant fails to take any necessary step in prosecuting the appeal
within the time allowed and has not made an application for extension of
time.
The court may also dismiss the appeal for non-appearance of the appellant or
his advocate. See Rule 72(6) of CA Rules. But the court has power to restore
the appeal if satisfied that the appellant was prevented by sufficient reasons
for not appearing at the hearing.
The court has power to determine the appeal in the absence of the appellant
and make any necessary order, notwithstanding the absence of the appellant.
[S.44(2) of C.P.C].
15. Additional Evidence on Appeal

An appellate court has power, when dealing with an appeal from a lower court,
to take additional evidence itself or direct the lower court to do so, if it thinks
that such additional evidence is necessary. [S.41(1) of C.P.C].
When additional evidence is taken by a lower court, such court is required to

certify the evidence to the appellate court which issued the direction which
shall then proceed to dispose of the appeal. [S.41(2) of C.P.C]. Unless the
appellate court otherwise directs, the accused person or his/her advocate
should be present when additional evidence is taken. [S.41(3) of C.P.C]. The
appellate court has also power to call for and receive from the lower court, a
report on any matter connected with the appeal.

text] Page 202
Fresh evidence may be admitted on appeal only if the following conditions are
fulfilled:
a) The evidence was not available at the trial,
b) The evidence is relevant to the issue,
c) The evidence is credible, and
d) It should be such evidence as must have caused reasonable doubt.
16. Hearing of Appeal

If the appellate court does not dismiss the appeal summarily it should cause
notice to be given to the appellant and the respondent or to their advocates, of
the time and place at which the appeal will be heard, and should furnish the
respondent with a copy of the proceedings and the grounds of appeal.
[S.33(1) of C.P]. An appellant is entitled to be present at the hearing of the
appeal. [S.34(1) of C.P.C].
At the hearing of an appeal the appellate court is obliged to hear the appellant
and the respondent or their advocates. [S.34(1) of C.P.C]. Although an appeal
is in the form of rehearing, both parties and the court are bound by the record
of proceedings and judgment of the trial court. It is not normal practice to recall
witnesses or adduce fresh evidence when hearing an appeal. Both parties are
expected to make arguments or submissions for or against the decision of the
court appealed against. Written submissions may also be filed before the
hearing. See Rule 67 of C.A. Rules and R.93 of the Supreme Court Rules).
In an appeal from a conviction, the onus of proof is upon the appellant who
must satisfy the court that there exists some good and strong ground apparent
on the record for interfering with the finding of the lower court.
The finding of the lower court is presumed to be correct and the party who
seeks to impeach it must satisfy the court that good grounds exist for believing
that it is one, which having regard to the evidence and the procedure followed,
is unreasonable in point of fact, or erroneous in point of law. (See further Rule
69 of S.C Rules, and Rule 73 of C.A Rules).
17. Duty of first appellate court
An appellant on a first appeal is entitled to expect the evidence as a whole to

be submitted to a fresh and exhaustive examination, and to the appellate
courts own decision on the evidence. The first appellate court must itself weigh
conflicting evidence and draws its own conclusions. It is not the function of a
first appellate court merely to scrutinize the evidence to see if there was some
evidence to support the lower courts’ findings and conclusions. Only then can
it decide whether the magistrate’s finding should be supported. In doing so, it
should make allowance for the fact that the trial court has had the advantage

text] Page 203
of hearing and seeing the witnesses, and being in a better position to assess
their demeanor and credibility.
18. Powers of Appellate Court on Appeals from convictions
The appellate court on any appeal against conviction has power to allow the
appeal if it thinks that the judgement should be set aside on any of the
following grounds:
a) That it is unreasonable or cannot be supported having regard to the

evidence, or
b) That it should be set aside on the ground of a wrong decision on any
question of law if such decision has in fact caused a miscarriage of justice,
or
c) Any other ground if the court is satisfied that there has been miscarriage of
justice.
The court is required to dismiss the appeal in any other case. Even where the
court is of opinion that the point raised in the appeal might be decided in
favour of the appellant, it is required to dismiss the appeal if it considers that
no substantial miscarriage of justice has actually occurred. [S.34(1) of C.P.C].
In addition, an appellate court has the following powers: [S.34(2) of C.P.C]:
a) To reverse the finding and sentence, and acquit or discharge the appellant
order him/her to be tried or retried by a court of competent jurisdiction.
b) To alter the finding and find the appellant guilty of another offence
maintaining the sentence, or with or without altering the finding, reduce or
increase the sentence by imposing any sentence provided by law for the
offence.
c) To alter the nature of the sentence with or without reduction or increase in

the sentence, and with or without altering the finding.
Where an appellate court maintains or imposes a sentence of imprisonment

not exceeding three years, it has power to order that the sentence be
suspended during the term of imprisonment. The appellant has to satisfy the
court that there are special reasons, having regard to the nature of the
offence, his/her age or antecedents justifying the suspension of the sentence.
[S.34(3) of C.P.C]:
The effect of a suspension order is that the sentence of imprisonment is

suspended and does not continue to have effect unless the appellant commits
an offence punishable by a substantive sentence of imprisonment without the
alternative of a fine within a period of two years next following the date upon
text] Page 204
which such sentence would have expired. Where the offender commits such
an offence the court will order that he/she be committed to prison to serve the
sentence which was suspended. [S.34(7)-(10) of C.P.C].
19. Order for Retrial
In general, a retrial will be ordered only when the original trial was illegal or
defective. It will not be ordered where the conviction is set aside because of
insufficiency of evidence, or for the purpose of enabling the prosecution to fill
up gaps in its evidence at the trial. Even where a conviction is vitiated by a
mistake of the trial court, for which the prosecution is not to blame, it does not
necessarily follow that a retrial should be ordered. Each case must be
considered on its particular facts and circumstances and an order for retrial
should only be made where the interests of justice require. It should not be
ordered where it is likely to cause injustice to the accused person.
20. Power of Appellate Court on Appeals from Acquittal
On an appeal from an acquittal or dismissal, an appellate court may enter

such decision or judgment on the matter as may be authorized by law and
makes any necessary order(s). (S.35 of CPC).
21. Power of Appellate Court on Appeal from other Orders
The appellate court is given power, on any appeal against any order other
than a conviction acquittal or dismissal, to alter or reverse any such order.
(S.36 of CPC).
22. Powers of Appellate Court on Second Appeal
On a second appeal the Supreme Court has power to make any order which
the Magistrate’s Court or the High Court could have made if it thinks that the
judgement of such court should be set aside or varied. The Supreme Court
may remit the case together with its judgement or order, to the High Court or
to the Magistrate’s Court for determination, whether or not by way of
rehearing, with such directions as the court may think necessary. [S.45(2) of
CPC].
However, where the Supreme Court dismisses the appeal and confirms the
conviction appealed against, it should not increase or reduce or alter the
nature of the sentence imposed in respect of that conviction, unless it thinks
that such sentence is illegal. In such a case the court may substitute a
sentence it thinks proper. The Supreme Court may also substitute a conviction
for any other offence for which the lower court could have convicted of the
appellant, and pass appropriate sentence. [S.45(4) of CPC].

text] Page 205
The Supreme Court is given power to dismiss the appeal, if it considers that
no substantial miscarriage of justice has occurred, notwithstanding that it may
be of opinion that the point raised in appeal may be decided in favour of the
appellant. [S.45(5) of CPC]
CHAPTER 31
REVISION
1. Nature of Revision
Revision is the judicial procedure whereby the High Court examines and
corrects the mistakes of lower courts which appear on the face of the record.
Revision differs from appeals in that the court may act on its own motion
whereas in appeals one party has to move the higher court to review a
decision of the lower court. In general, revision is resorted to by a party where
there is no right of appeal. However, like in appeals, only the record of the
lower court is considered and parties are not normally permitted to adduce
fresh evidence, nor does the court usually call for such evidence before an
order in revision is made. The law regulating revision is contained in Section
48-54 of C.P.C.
2. Power of High Court to Call for Records
The High Court has power under S.48 of the C.P.C to call and examine the
record of any criminal proceedings before any Magistrate’s Court to satisfy
itself as to the correctness, legality or propriety of any findings, sentence or
order and as to the regularity of any proceedings of any such Magistrate’s
Court. The High Court normally calls for such records when inspecting returns
from Magistrate’s Courts and finding errors on the face of the record.
3. Power of Magistrates’ to examine Records of Inferior Courts
Any magistrate has power to examine the records of any criminal proceedings
before a Magistrate’s Court inferior to the Court of which he/she is empowered
to hold, and situated within the local limits of his/her jurisdiction for the
purpose of satisfying him/herself as to the correctness, legality or propriety of
any finding or order recorded or passed, and as to the regularity of any
proceedings of such inferior magistrate’s court. [S.49(1) of CPC].
If such magistrate considers any finding, sentence or order to be illegal or

improper or that the proceedings have been irregular, he/she must forward the
record to the High Court with such comments as he/she thinks proper. [S.49(2)
of CPC].

text] Page 206
4. Application or Petition for Revision
Like appeals, revision can only be founded on a final order or judgment of the
court. It cannot be made against a preliminary or interlocutory order or ruling
which does not determine the case.
The right to petition the High Court is given to any person aggrieved by any
finding sentence or order made or imposed by a Magistrate’s court. [S.50(5) of
CPC].
However, where an appeal lies from any finding sentence or order and no
appeal has been bought, no proceedings by way of revision can be
entertained at the instance of the party who could have appealed. Even when
an accused has delayed to appeal beyond the time allowed for appeal out of
time has been refused, no right of petition arises.
The DPP has a right to petition the High Court for revision where he/she
considers that the decision or order of the lower court has caused a
miscarriage of justice. Where the DPP makes an application to the High Court
to make an order to the prejudice of the accused, such an application must be
lodged with the registrar within 30 days of imposition of such sentence, unless
the High Court extends time on proof of good cause. [S.50(8) of CPC].
A Chief Magistrate may apply for revision since he/she has no right of appeal.
The application for revision should be by way of petition indicating the effect of
the order petitioned against and specifying the grounds of objection or
dissatisfaction. It is normally substantially similar to a memorandum of appeal.
5. Hearing the DPP or the Accused before Revision
The High Court must give the DPP an opportunity of being heard before a
revisional order is made. [S.50(2) of CPC]. The practice is for the record of the
lower court to be sent to the DPP for perusal and comments before the judge
makes his/her revisional order.
Where the order by the High Court may be prejudicial to the accused, he/she
must be given an opportunity to be heard either personally or through his/her
advocate. [S.50(2) of CPC].
Except a stated above, no party has any right to be heard either personally or
by advocate before the High Court, when exercising its powers of revision.
However, the court has power, if it thinks fit, to hear any party personally or by
advocate when exercising its revisional powers. It may also deal with the
petition as if it were an appeal.

text] Page 207
6. Bail pending revision
The High Court has power to release any convicted person on bail pending
the final determination of the case. [S.50(6) of CPC]. The Chief Magistrate
also has power to release on bail a person serving sentence of imprisonment
if he/she thinks that such sentence is illegal or improper. And if the convicted
person is ultimately sentenced to imprisonment the time he/she has spent on
bail is excluded in computing the period for which he/she is sentenced.
(Proviso to Section 50(6) of C.P.C).
7. Powers of the High Court on Revision
In case of any proceedings in a Magistrate’s Court the record of which has

been called for or which has been reported for orders, or which otherwise
comes to its knowledge, when it appears that in such proceedings an error
material to the merits of the case has occurred, the High Court has the
following powers:
a) In the case of conviction, it may exercise any of the powers conferred on it

as appellate court by Sections 331 and 334 of C.P.C), and may enhance
the sentence. [S.50(1)(a) of CPC].
b) In the case of any order, other than an order of acquittal, alter or reverse
such order. [S.50(1)(b) of CPC].
c) Where a sentence passed by the magistrate’s court is increased by the

High Court, such increase shall not exceed the sentence which could have
been imposed by the court which originally imposed the sentence.
[S.50(3)C.P.C].
d) Where there has been an acquittal, the High Court may not convert it into a
conviction. However, where any person has been acquitted of the offence
with which he/she was charged, but was convicted on another offence
whether charged with such or not, the High Court may, if it reverses the
finding of conviction, convert the finding of acquittal on the original offence
into a conviction. [S.50(4) of CPC].
e) The High Court has power, when dealing with revision, if it thinks fit, to call
for and receive from the Magistrate’s Court before which the case was
heard, a report on any matter connected with the case. [S.50(7) of CPC].
8. Revisional Order
After the judge has perused the record of the lower court, and received the
required views or arguments, he/she writes out his/her decision embodied in

text] Page 208
what is called an “Order in Revision” or “Revisional Order”. This forms the
ruling or judgment of the court.
Normally such order is not as detailed as a judgement on appeal where there

have been arguments in open court. A revisional order is usually brief but
deals with all the errors on the face of the record that have been committed by
the lower court. It should as far as possible conform to the requirements of a
judgement. (See S.86 of T.I.A). It should contain the points for determination,
the decision on those points and the reasons for the decision. It should be
signed by the Judge and dated.
9. Certificate of Decision
When a case has been revised by the High Court, it must certify its decision or
order to the court by which the sentence or order so revised was recorded or
passed, and the court to which the decision or order is so certified must there
upon make such orders as are conformable to the decision so certified, and if
necessary, the record should be amended in accordance with the revisional
order. [S.53 of CPC].

text] Page 209

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BACHELOR’S OF LAWS (LLB) 2020/2021 ACADEMIC YEAR

NATURE OF CRIMINAL PROCEEDINGS

PREPARED BY ISAAC C. LUBOGO

PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

THE NATURE OF CRIMINAL PROCEEDINGS

Meaning of Criminal Proceedings

Purpose of Criminal Proceedings

The purposes of conducting criminal proceedings are, mainly,

a) To give the prosecution an opportunity to prove their case against the

Difference between Criminal Proceedings and Civil Proceedings

a) The object of criminal proceedings is punishment, but the object of civil

b) Criminal Proceedings are initiated by or on behalf of the State, whereas civil

c) The State controls criminal proceedings by controlling prosecutions, whereas

PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

INSTITUTION OF CRIMINAL PROCEEDINGS

Mandate and functions of the DPP in Criminal Proceedings:

a) By a police officer bringing a person arrested with or without a warrant

b) By a public prosecutor or a police officer laying a charge against a person

Section 42(1)(c) of M.C.A provides that private prosecutions may be instituted

The detailed procedure for instituting private prosecutions is laid down in

PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

However, notwithstanding the provisions of Section 41(5) above, a magistrate

“All prosecutions before the High Court shall be conducted by a

3. Proceedings in the High Court

4. The Decision to Prosecute

a) Whether the facts contained in a complaint or report disclose a crime or

b) Whether there is sufficient evidence to support these facts to justify the

e) Whether the act or omission charged is of sufficient importance to be made a

PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

The decision to prosecute or not is important as it ensures that those reasonably

5. D.P. P’s Consent to Criminal Prosecutions

Quite a number of statutes creating offences provide that no prosecution for

“A person shall not be prosecuted for an offence under this

The necessity for this requirement appears to be based on policy grounds,

PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

“I consent to the above charge”

List of some of the Offences Requiring the Consent of the DPP

a) Penal Code Act: (Cap. 120)

Seditious offences S.40, [Consent is under S.43(2)]; Wrongfully inducing

b) Companies Act: (No.2012)

Certain offences in connection with disposal of shares S.175(5), Consent by

c) Public Service Act (Cap 288)

Improper influence S.7 and 8, Improper disclosure, Consent by the DPP IS

d) Official Secrets Act (Cap. 302)

e) Exchange Control Act (Cap. 171)

g) Animals (Prevention of Cruelty) Act (Cap. 39)

i) Presidential Elections Act 2005 (No.16/05)

j) Parliamentary Elections Act 2005 (No.17/05)

PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

1. UGANDA VS SANTINA LAKOT [1986] HCB. 27

2. UGANDA VS. G. AKUTTI AND 2 OTHERS [1978] H.C. B 20

PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

3. KAMUDINI MUKAMA VS UGANDA CRIMINAL APPEAL NO.36 OF 1995

PREPARED BY ISAAC C. LUBOGO LECTURE GUIDE NOTES FOR LEGUM BACCALAUREUS[Type

STRUCTURE OF COURTS OF JUDICATURE

1. The Hierarchy of Court

a) The Supreme Court of Uganda,

2. The Supreme Court of Uganda

a) Establishment: This Court was established by the Constitution in Article

b) Composition: The court consists of the following members:

3. The Court of Appeal of Uganda

a) Establishment: The Court of Appeal is established by Article 129(b) of the