CRIMINAL LIABILITY OFFENCES AGAINST THE PERSON

Offences against the Person

The term “offences against the person” refers to a broad array of criminal
offences which usually involve bodily harm, the threat of bodily harm, or other
actions committed against the will of an individual. Those involving bodily
harm (or the threat thereof) include homicides, assaults and kidnapping.

1. Homicide

Homicide is the killing of one person by another, whether intended (murder) or

not (manslaughter).

Homicide is lawful if carried out in:

(i) Execution or advancement of justice. Under Chapter 4, Art 22 of the

Constitution, 1995, no person should be deprived of his or her life except
in execution of a judgment, confirmed as to conviction and sentence by
the Supreme Court.
(ii) In reasonable defence of property and person. Section 15 of the Penal
Code Act;
(iii) As a result of an accident or misadventure except if there is negligence.

1.1 Murder

If the homicide is unlawful, the offence it Murder. Murder is provided under

Section 188 of the Penal Code Act Cap 120 which provides that:

Any person who of malice aforethought causes the death of another person by
an unlawful act or omission commits murder.

The killing must be through an unlawful act. Refer to the following acts:

In Marwa S/ o Robi vs. R [ 1959] EA 660, the appellant had killed the
deceased by spearing him when the deceased had come to collect cattle which
he claimed. The appellant had raised the defence of Defence of property which
for reasons set out in the judgment failed. The unlawful act was the use of
excessive force and the appellant was convicted of murder. In Olendito vs. R
EACA 61, the appellants beat their sister to death using sticks about the
thickness of one’s little finger. She was beaten in accordance with native
custom that allowed chastising women who refused to return to their
husbands. They would have been convicted with murder but for their
“mentality and stage of civilization” which the Court found was not in such a
state as to have enabled them to appreciate that what they were doing was
unlawful.

In Defasi Mugayi vs. R [1965] EA607, the appellants had been incited by a
chief to beat suspected thieves to death. Upholding their conviction for murder,
the Court of Appeal stated that none of the appellants could shelter behind the
invitation or order of a chief which they must have known, was not a lawful
order which they were bound to obey and they must have known as much as
the Chief said that he would be responsible and they knew that what they were
doing was wrong.

In Paul s/ o Mabula Vs. R [ 1953] 20 EACA 207, the appellant killed his wife
as a result of an act intended to kill himself, she endeavoring to save him from
cutting his throat. He alleged that the wound inflicted on his wife was
accidental and therefore there was no malice aforethought. It was held that
where as a result of an act by an accused person intended to kill himself and
another is killed, he was properly convicted of murder even if he did not intend
to kill that other person. In R Vs. Semimi [ 1949] ALLE.R 223, while walking
with a woman, the appellant passed three men one of whom made a remark
about the woman which the appellant resented. He went back, knocked down
one of the men and in the ensuing scuffle, he killed one of them by stabbing
him through the heart with a knife which he was carrying. Three weeks to the
incident, he had showed one Ashley a knife with a blade about 8 inches and
said that he would use it if attached by more than one person. On being
charged with murder of the deceased, he pleaded that the killing was by
chance –medley and amounted to manslaughter not murder. There was
evidence that he had been restrained by standers and being a pugilist,
wretched himself free and drew his knife. It was held that the doctrine of
chance – medley no longer applies in the law of homicide. Appellant was found
guilty of murder, the Court holding that there was not much provocation to
justify the use of such deadly weapon. It was a dreadful and cowardly act of
revenge on a man who had assisted the appellant’s first victim and was
prepared to repel an attack on himself.

Section 189 provides punishment of murder. Any person convicted of murder

shall be sentenced to death.

Ingredients of the offence of murder

The ingredients of the offence of murder are:-

i. Death of a human being;

 ii. That the death was unlawful;
iii. That the death was as a result of malice aforethought.
iv. That the accused is the person who caused the death of the deceased.

Uganda V Kintu Didas Criminal Session Case No.167 Of 2012

Limitation as to time of death

Section 198 (1) provides that a person is not deemed to have killed another if
the death of that person does not take place within a year and a day of the
cause of death.

(2)Such period is reckoned inclusive of the day on which the last unlawful act
contributing to the cause of death was done, and when the cause of death is an
omission to observe or perform a duty, the period is reckoned inclusive of the
day on which the omission ceased.

(3)When the cause of death is in part an unlawful act and in part an omission
to observe or perform a duty, the period is reckoned inclusive of the day on
which the last unlawful act was done or the day on which the omission ceased,
whichever is the later.

The original justification for this rule was to avoid the difficulty of tracing the
cause of death when there is a long interval between the infliction of the injury
and the death. Leading Criminal law authors now submit that in the present
state of medical science, the rule can only be justified on the ground that one
who has injured another should not remain indefinitely at risk of prosecution
for murder. But the rule remains valid both for murder and manslaughter. In
R V Dyson [1908]2 KB 454, the accused inflicted injuries on a child in
November 1906 and again in December 1907. The child died in May, 5 1908.
The accused was indicted for manslaughter. The judge directed the jury that
they could find the accused guilty if they considered death to have been caused
by the injuries inflicted in November 1906. The Appeal Court set aside the
conviction, holding that “it undoubtedly the law of the land that no person, can
be convicted with manslaughter where the death does not occur within a year
and a day after the injury was inflicted, for in that event, it must be attributed
to some other cause.

Time runs not from the date of the accused’s act but from that of the infliction
of the injury where these are different e.g. the accused plants a bomb on
January 2, 2000, the bomb goes off on January 2, 2002 and gravely injures the
victim. The accused is guilty with homicide if the victim dies before January 2,
2003.

Killing a child

In the case of a child, if it is born in a living state, that is when it has

completely proceeded in a living state from the body of its mother, whether it
has breathed or not and whether it has an individual circulation, or not and
whether the naval string is severed or not that is to say, a child to be a victim
of murder, the child must be wholly expelled of the mother’s body and it must
be alive.

Section 197 of the Penal Code Act provides that:

A child becomes a person capable of being killed when it has completely

proceeded in a living state from the body of its mother, whether it has breathed
or not, and whether it has an independent circulation or not, and whether the
navel string is severed or not.

The child, it is commonly said must have an existence “Independent of the

mother”. The tests of individual existence that the Courts have accepted are
that the child should have an individual circulation and should have breathed
after birth. But in Park, J in R.Vs. Brayn 1834 said, “I t is not essential that it
should have breathed at the t ime it was k illed as many children are born alive
and yet do not breath for some time after their birth.”T his appears to be more
consistent with our section 197.

A question that has not engaged the Court’s mind is the moment at which life
ends i.e. is a victim already dead and therefore incapable of being murdered. Is
the victim in a hopeless condition, and only being kept alive by some
apparatus? The current medical view is that the test is one of brain death and
that this can be diagnosed with certainty.

Unlawful Act or omission

(i) Use of excessive force

Reasonable force is permitted in criminal law in form of self defense See

Section 15 of the Penal Code Act (Supra). The Section provides that:

Subject to any express provisions in this Code or any other law in force in
Uganda, criminal responsibility—

(a) For the use of force in the defence of person and property; and
(b) In respect of rash, reckless or negligent acts,

shall be determined according to the principles of English law

In Mumbere Julius V Uganda Criminal Appeal No. 15 of 2014, Justice

Mwondha held that “A defendant is entitled to use reasonable force to protect
himself, others for whom he is responsible and his property…it must be
reasonable force.”

However, where the force used is excessive, then the defendant becomes
criminally liable for any excess. Section 225 of the Penal Code Act provides that
“Any person authorised by law or by the consent of the person injured by him
or her to use force is criminally responsible for any excess, according to the
nature and quality of the act which constitutes the excess.” In Uganda V Bugga
the accused was charged with murder. After a dispute between the deceased
and the accused, the deceased chased the accused and boxed him twice. The
accused tried to escape from the deceased but he was hotly pursued by the
deceased. In retaliation, the accused took a stick and hit the deceased on the
back of the head once. The deceased fell down and died.

Held: The accused did not retaliate with his bare hands but used a stick which
he used with considerable force. The accused’s retaliation was in excess of
what was necessary to protect himself. The defense of self defense would
therefore not be available. Accordingly the defendant was found guilty of
manslaughter.

For a person, to be convicted of any of the unlawful homicides, there must be

proof of a dead body. A fundamental rule of criminal law and procedure is that
no person shall be called to answer an accusation or be involved in the
consequence of guilt without satisfactory proof of the corpus delicti, either by
direct evidence or irresistible ground of presumption. The facts which form the
basis of the corpus delicti ought to be proved whether by direct testimony or by
presumptive evidence of the most cogent and irresistible ground or by clear
and unsuspected confession of the party. In the Kimweri case – commenting on
the request made by the prosecution to Court to find that the wife was dead,
Court had this to say.

“While death may be proved by circumstantial evidence, without evidence as to

the production of the body of the dead person and without any evidence of the
person who saw the body of the dead person and without confession by a
person accused that he caused the death yet the Court asked to find in a
murder charge that a person is dead in a circumstance which we have stated,
the evidence on which the Court is asked to infer the death must be such as to
compel the inference of death and must be such as to be inconsistent with any
reasonable theory of the alleged deceased being alive with the result that taken
as a whole the evidence leaves no doubt whatsoever that the person in question
is dead. We would give as an example of what we mean the case of a person, on
a ship in the middle of the ocean. Evidence is given that a scream was heard
and a splash was heard, but there is no evidence that any particular person
was seen to go overboard. The ship is searched and subsequently a person to
whom evidence is g iven that that person was a passenger on that ship is found
missing. In those circumstances although there was no evidence of a body,
although no one came forward and said that the body of the alleged deceased
was seen and although there was no confession by anyone, nevertheless those
circumstances are such as to compel the inference of death.

Some confession in cases of murder, are not enough to convict a person.

In R vs. Kersey, 21 Cox 690, the charge was murder of an infant and except
for medical evidence that the accused had recently delivered; there was no
other evidence but an extra judicial confession. The confession alone was not
considered sufficient evidence that the child had a separate existence from its
mother. On these facts, the accused was convicted with the offence of
concealment of birth. Compare the case with that of R vs. Pettagazi 4 WR 19.
The accused was convicted of murder. There had been a confession to a police
magistrate by Petta and 2 others. At the session, Petta made a statement
amounting to homicide altogether. The confession had been made in the first
place to a police officer in consequence of which he had found the grave and a
sign of recent exhumation, but no dead body was found in the grave. In the
grave however, there were two pieces of cloth identified as having been worn by
the deceased on his disappearance. The accused was convicted of murder on
the basis of evidence other than his own confession. In R vs. Oufrejezyk [ 1955]
1 ALL ER 247, the appellant and one S owned a farm in partnership. Their
farming venture was a failure and in need of money. The deceased wanted to
break off his partnership with the appellant.The last occasion when S was seen
alive by anyone other than the appellant was on December 14, 1953 when S
took a horse to the local blacksmith to be shod. Thereafter S disappeared
completely and his body was never found. When the appellant was called to
give an account of the disappearance, he told a story of the departure of S
which was improbable and was inconsistent with the prior account given by
the appellant to the officer who had gone to the farm on December 18, 1953.
The appellant wrote contemporary letters explicable only on the footing that he
never expected S to return and put forward a proposition to one “P” which if
correct out would have involved S being impersonated. Further, the appellant
endeavored to persuade the blacksmith to say that S had taken the horse to be
shod on December 17, 1953. Minute amounts of the blood of S were found in
the walls and ceiling of the kitchen in the house occupied by the appellant. The
appellant was charged with the murder of S. The issue was whether or not
there was proof of what the law calls “corpus delicti”(first a crime has been
committed and the man is dead and that his death has been caused by a
crime.). It was held that at a trial of a person charged with murder the fact of
death leading to one conclusion is provable by circumstantial evidence
not withstanding that neither the body nor any thing of the body has been
found and that the accused has made no confession of any participation in the
crime. Before he can be convicted, the fact of death should be proved by such
circumstances as render the commission of the offence certain and leave no
ground for reasonable doubt. The circumstantial evidence should be so cogent
and compelling as to convince a jury that upon no rational hypothesis other
than murder can the facts be accounted for. S had died not of natural death
and a corpus delicti had been established. The appellant murdered S. The
short principle established by this case is “On a charge of murder, the corpus
delicti may be proved by such circumstantial evidence as leaves open no other
rational hypothesis than murder.”

In Kimweri vs. R 1 E.A 452, the appellant was charged with and convicted of
murdering his wife from whom he had been separated and to whom his petition
for divorce had failed. Appellant was ordered to pay maintenance to his wife
and in the meantime, he had a liason with another woman. The appellant’s
wife had disappeared from her room on a day on which the prosecution alleged
that the appellant had visited her in Moshi (TZ) and a few days earlier,, the
wife’s father received a letter purporting to come from one Kamau and stating
that the appellant’s wife had gone to Nairobi with Kamau, met an accident and
died. No such accident on the contrary had happened. It was held that
although death may be proved by circumstantial evidence, that evidence must
be such as to compel the inference of death and must be such as to be
inconsistent with any theory of the alleged deceased being alive, with the result
that taken as a whole, the evidence leaves no doubt whatsoever that the person
in question is dead. The circumstances in the present case raised considerable
suspicion that the wife was dead but did not compel resistibly the inference of
death.

In the Kimweri case, there were technical problems in the way the evidence of
the relevant circumstances were proved. E.g. the contents of the Kamau letter
were found inadmissible and the source of the letter was doubted. Court said
at Pg 454.

“Earlier we have referred to certain circumstances from which the death is to

be presumed, we have said that even if those circumstances were proved to be
the received a letter and circumstances in existence still we would not consider
that they pointed compellingly and irresistibly to the wife being dead. We would
mention that we are satisfied that some if not all of those circumstances were
proved by evidence which was inadmissible. As far as the evidence of the letter
referring to the accident is concerned, what happened was that a Tanzanian
witness gave evidence of the result of inquiries g iven in Kenya. From these
inquiries, he was informed that no such accident had happened and no such
person is dead. That evidence was inadmissible. The result is that the lack of
truth of the contents of the letter of November 18 upon which the prosecution
so relied in order to prove the guilt of the appellant had not been proved. We
must also mention that the evidence of making the letter of November 18 which
the appellant had proved, to be inadmissible evidence. The evidence was that
the typewriter expert had compared the letter in question with a sample
handed to him which purported to come from the typewriter to which the
appellant have had access. The prosecution did not call the person who typed
that sample. Thus there is no admissible evidence that the letter was typed on
a typewriter to which the appellant have had access. Finally, the letter itself is
to say the least doubtedly admissible. This is a letter which purports to be
addressed to the wife’s father. I t should have been produced in evidence by
the father or at least he should have been called to say that he that he handed
it to somebody else who subsequently produced it ”.

In RV Abdullah 16 KLR 117, the accused was charged with the murder of the
husband of the second accused. It was proved that L had been missing from
the home. The first accused had resided with L and his wife since 1933. Two
brothers of the deceased had made certain inquiries and gave evidence of an
inconclusive character of statements made between the accused to them. L ’s
certificate was found in his hands. No body or part thereof could be discovered
and there was no confession. It was held that where there is no evidence of
corpus delicti and the confession of the accused, such confession in the
absence of evidence of confirmatory circumstances is not sufficient to satisfy a
conviction of murder or manslaughter.

Mens rea of Murder

Mens rea for murder ‘intention to kill or cause really serious ‘grievous’ bodily
harm’. This is traditionally called malice afore thought. This is a technical term
with a technical meaning different from the ordinary or popular meaning of the
two words. The phrase, it has been said “is a mere arbitrary symbol for the
malice may have in it nothing really malicious and need never be really afore
though. Thus a parent who kills a suffering child out of motives of compassion
is malicious for this purpose and there is sufficient aforethought if an intention
to kill is formed only a second before the fatal blow is struck. Neither ill will nor
premeditation is necessary.

The meaning of the term is of utmost importance for it is the presence or

absence of malice afore thought with determines whether unlawful killings is
murder or manslaughter. In R vs. Cunningham [ 1957] 2 Q B 396 It was
stated that malice is either an actual intention to do the particular kind of
harm or recklessness as to whether such harm will occur or not.

Under Section 191of the PCA

Malice aforethought shall be deemed to be established by evidence providing

either of the following circumstances:

(a)an intention to cause the death of any person, whether such person is the
person actually killed or not; or

(b) knowledge that the act or omission causing death will probably cause the
death of some person, whether such person is the person actually killed or not,
although such knowledge is accompanied by indifference whether death is
caused or not, or by a wish that it may not be caused.

Malice now consists of an intention to kill any person whether such person is
the person actually killed or not i.e. express malice. It also Comprises of
Knowledge that the act or omission, causing death will probably cause the
death of some person whether such person is the person actually killed or not
although such knowledge is accompanied by indifference whether death is
caused or not or by a wish that it may not be. This is what is referred to as
implied malice.
The Supreme Court has had opportunity recently to determine the scope of
section 191 of the Penal Code Act, in the case of Nanyonjo Harriet and Anor vs.
Uganda. Crim. Appeal No 24 of 2002, decided in 2007. The Court speaking
through, Mulenga JSC criticized the Court of Appeal for basing a conviction for
murder on unproved evidence suggesting an intention to cause grievous bodily
harm. In a characteristically robust judgment, Mulenga JSC, held that the
judicial precedents of DPP vs. Smith [ 1961] AC 290 and R vs. Tubere [ 1945]
EACA 63, which held that malice aforethought is defined as an intention to
commit an unlawful act to any person , foreseeing that death or grievous bodily
harm is the natural and probable result were irrelevant to the instant case
because, unlike the UK and Kenya from which the precedents originate,
Uganda amended its code in 1970 and removed from the relevant section 186,
(now 191) any reference to an “intention to cause grievous harm”and
“knowledge that grievous harm will probably be caused”.

Courts have also been very clear, that in cases of homicide, the intention and
knowledge of the accused person at the time of committing the offence is rarely
proved by direct evidence. The Court finds it necessary to deduce the intention
or knowledge from the circumstances surrounding the killing, including the
mode of killing, the weapon used and the part of the body assailed.

See cases

 Nanyonjo Harriet vs. Uganda Criminal Appeal No. 24 of 2002

 Uganda vs. Dr. Aggrey Kiyingi and two others. Criminal Session Case
No. 0030 of 2006

Express malice

This describes an intention to kill. Provided such an intention is proved it

matters not whether the person killed is the one intended or some other
person. Thus if robbers lie in wait for A with the intention of killing him, it is
still murder in fact if they kill not A but B. Similarly where a husband gives a
poisoned apple to wife and the wife hands the apple to the child, the further is
guilty of murder. Where a person intending to kill himself and kills another it is
still murder. See Paul s/ Mabula Vs R Paulo S/O Mabula v Republic [1953] 20
EACA 207 where the Court of appeal gave two reasons for this view.

a) Suicide is a felony even though it cannot be prosecuted so that the killing

is a killing in the course of committing a felony entailing violence.

b) It is treated as transferred malice resulting into transferred murder.

If there is a fight with many participants and one man dies, each of the
participants will be guilty of murder if it can be proved that each had the
common intention to kill. Common intention may be formed at the outset of the
crime expedition or it may arise spontaneously on the spur of the moment.

The Court of Appeal for East Africa has held that common intention generally
implies premeditated plan, but this does not rule out the possibility of a
common intention during the course of events though it might not have been
present to start with. See Wanjiru vs. R Vol. 22 EACA 521. Thus where a
gang sets out together to kill and a person is killed by one member of the gang,
all members of the gang are guilty of murder, where three persons set out
armed with lethal weapons with a common intention of stealing goats and
on,j,k/ e of them in order to fulfill their purpose kills the custodian of the
goats, all are liable to be convicted of murder..

It is murder to kill in the course of a felony but it is uncertain whether a

common intention to steal makes a gang of thieves all responsible for death
caused by one its members. What is certain is that there must be at least a
common intention to offer violence in pursuit of the common intention to steal.
This common intention to use violence may be inferred from the fact that a
gang is armed with lethal or dangerous weapons even if one of them is so
armed. Where there is an intention to kill that intention can be presumed to
continue throughout the course of the action. See R vs. Ojambo s/ o Nambio R
11 EACA 97 The deceased was caught stealing in the appellant’s shamba and
tied up the appellant and beat the deceased so severally that on being untied
he fell down and seemed to be dead. Appellant believing he was dead removed
his body to a swamp. The deceased in fact was alive and died of asphyxia
resulting from the immersion in the muddy water. The immersion in water was
so closely connected with the beating as to constitute one continuous
transaction, the cumulative effect of which was to cause death. Accordingly,
appellant’s offence was Murder. It would have been no defense to argue that
the immersion in water was not accompanied by malice aforethought for the
beating and the immersion in water together constituted the malice
aforethought. In Thabo Meri vs. R [ 1954] 1 ALL E.R 377, the appellant had
a pre-arranged plan, they took a man to a hut and gave him beer and he
became partially intoxicated. Later, they struck his head and believing him to
be dead took his body and rolled it over a cliff with an intention of making the
murder look accidental. In fact at the time, the man was not dead but died a
few minutes in exposure during his unconscious state of mind at the foot of the
cliff. The question was whether these accused were guilty of the offence of
murder. Lord Reed held that there were two acts done separately, the first in
the hut and another by placing the body out. While the first was accompanied
by malice aforethought, it was not the cause of death. The second act caused
death. It was difficult to separate the two acts which formed a series of acts
because the accused set to do all the acts to achieve a plan. Therefore it is
wrong to say that because they were of mistaken belief at one stage, their
purpose thought had been achieved before it was and cannot escape the
penalties of law.

Implied Malice

It is murder where a person does an act causing death that is intrinsically

likely to kill and which he knows is likely to kill although there is no evidence
of express malice. Thus if a person sets fire to a house knowing or having
reasonable grounds for believing that a person is asleep inside, he is guilty of
murder for the death, for he knows that the probable consequence of his act
will be to cause death. See Hyam vs. DPP Hyam v DPP [1975] A.C. 55 and
R. vs. Tirugurwa 10 EACA 44. It is immaterial whether the person against
whom the act has been directed is the person actually killed or whether it is
somebody else provided that there was foresight of the consequences of his
acts. It is also immaterial that the accused did not want to cause death.

In Hyman vs. DPP, the appellant set fire to a dwelling house by deliberately
pouring about ½ gallons of petrol. The house contained four persons
presumably asleep. She did nothing to alert them of the danger she had put
them in. Her act was that of jealousy against the owner of the house whom she
believed to be engaged to a man, she had temporally discarded. Two girls died
due to the fire. Her defence was that she intended to frighten the lady off the
village and she did not intend to cause death or bodily harm. The issue was
whether death resulted from the direct intention to kill or willful doing of an act
of which death is a probable consequence. It was held that the appellant was
guilty of murder when she set fire to a house, she should have realized that it
was highly probable that one or more of the inmates would suffer serious
bodily harm in consequence of her act not limited to harm of such nature as to
endanger life.

In R vs. Serne, ( 1887) 16 Cox 331, it was held that a person who sinks a ship
at sea of his own does not escape liability for the drowning of passengers by
hoping that they will be picked by a passing vessel. This is because a man is
presumed to know the natural and probable consequences of his acts unless
the contrary is proved. In Hull vs. R 1664, a workman, after shouting, ‘stand
clear”, threw down a piece of timber from a house two stories high. All the work
men, below moved except for one who was killed. It was held that “when a
workman flings down a stone or piece of timber into the road and kills a man,
this may either be misadventure, manslaughter or murder, according to the
circumstances under which the original act was done. If it were in country
village where there are a few passengers and he calls out all people to take care
it is a misadventure only but if you were in London or other popular towns
where people are continually passing it is manslaughter, though he gives loud
warning and murder if he knows of their passing and gives no warning at all”.
Knowledge that death is likely to result is enough.

In Mongola Vs. R [ 1963] R and N 291,the appellant abandoned his seven

months child in a thicket sufficiently far from the village so that its cries could
not be heard and in such a place that a search would not readily discover it. In
upholding his conviction for murder, the Court applied the principle in RVs.
Ward. In this case the judge had directed a jury that when the prisoner did the
acts he must as a reasonable man have contemplated that death or grievous
harm was likely to result. He was guilty of murder. In the case, the appellant
as a reasonable man must have known that death or grievous harm would
probably befall a child abandoned in such a remote area.

Constructive malice

There is also constructive malice, which is probably covered under section

191(b). Any reference to intention inferred from the fact that the accused were
taking part in the commission of another crime was equally removed by the
1970 amendment. The law is not clear, where this type of malice aforethought
falls. Nevertheless, authorities establish that where it is killing in the course of
burglary it is immaterial that a minor blow which caused the deceased’s death
was inflicted.

In Sentali vs. R Vol. 20 EACA. 230, the appellant was convicted of the murder
of a woman as a result of violence inflicted on her by the appellant in the
furtherance of his committing a felony in her house. It was held that by virtue
of S. 186 (c) of the Penal Code Act, if death is caused by an unlawful act or
omission done in the furtherance of an intention to commit a felony, malice
afore though is established. Court said.,”in our opinion, the possession, by the
appellant of cloth belonging to the deceased coupled with a broken door and
the disorder in the house all lend irresistibly to the conclusion that the
appellant ’s purpose in entering the deceased’s house that night was to
commit a felony if, then it was with this felonious intention or purpose of
his mind that the appellant offered violence to the deceased, it matters not
what degree of violence was used if the violence did in fact however
unexpectedly or unintentionally cause death……..I n Uganda it is sufficiently
if death be caused by an unlawful act or omission done in furthermore of an
intention to commit any felony”.

Causing death

Section 191 elaborated on causing death. It provides that:

A person is deemed to have caused the death of another person although his or
her act is not the immediate or sole cause of death in any of the following
ncases: (a)if he or she inflicts bodily injury on another person in consequence
of which that person undergoes surgical or medical treatment which causes
death. In this case it is immaterial whether the treatment was proper or
mistaken, if it was employed in good faith and with common knowledge and
skill; but the person inflicting the injury is not deemed to have caused the
death if the treatment which was its immediate cause was not employed in
good faith or was so employed without common knowledge or skill;

(b)if he or she inflicts a bodily injury on another which would not have caused
death if the injured person had submitted to proper surgical or medical
treatment or had observed proper precautions as to his or her mode of living;

(c)if by actual or threatened violence he or she causes such other person to

perform an act which causes the death of such person, such act being a means
of avoiding such violence which in the circumstances would appear natural to
the person whose death is so caused;

(d)if by any act or omission he or she hastened the death of a person suffering
under any disease or injury which apart from such act or omission would have
caused death;

(e)if his or her act or omission would not have caused death unless it had been
accompanied by an act or omission of the person killed or of other persons.

This section is relevant where the accused acts are not the only or immediate
cause of the death of the deceased. In a clear cut case of immediate killing by
an act of the accused, this section has no relevancy.

Under the section a person is deemed to have caused death under the following
circumstances:
1. If he inflicts bodily injury on another person in consequence of which
that other person, undergoes surgical or medical treatment which causes
death. It is immaterial whether the treatment was proper or mistaken, if
it was employed in good faith with common knowledge and skill. In R vs.
Mwagambo 8 EACA 28, the appellant inflicted two deep and serious
wounds upon the deceased who died as a result of sepsis from those
wounds. The wounds had been stitched by a medical dresser. The
medical evidence was to the effect that the wounds should have been
drained instead of being stitched, but even if they had been drained,
there would still have been a risk of sepsis setting in. It was held that
what the dresser did wasn’t unreasonable in the circumstances and
didn’t relive the appellant of the responsibility for causing death.
However, the person inflicting the injury is not responsible for the death
if the treatment was not employed in good faith or was employed without
common knowledge or skill. In R vs. Jordan 1956 Criminal App cases
152,the Court quashed a convicted of murder in a charge of causing
death by stabbing after taking the exceptional step of admitting fresh
medical evidence which went to show that death was not caused by the
injury but negligent medical treatment. The stab wound pierced the
intestine but this was mainly healed at the time of death. The immediate
cause of death was pneumonia caused by the administration of antibiotic
to which the deceased was shown to be intolerant and intravenous
introduction of wholly abnormal quantities of liquid. Both treatments
were stated to be palpably wrong by medical witnesses.
2. A person is responsible for the death of another if he inflicts bodily injury
on that other person which would not have caused death if the injured
person had submitted to proper surgical or medical treatment or had
observed proper precaution as to his mode of living. In R vs. Holland
1841, the deceased refused to surrender the injured finger in time for
amputation which caused lockjaw that resulted into his death. The
medical evidence was that if the amputation had been done early, the
deceased would probably have survived. The Court directed the Jury
that, if the accused had inflicted the wound son the finger, he was
responsible for the death.
3. A person is responsible for a homicide if by action or threatened violence,
he causes that other person to perform an act which causes the death of
that other person, such act being a means of avoiding such violence
which in the circumstances would appear natural to the person whose
 death is so caused. In R vs. Pitts 1842, the deceased threw himself into a
river to avoid acts of intentional violence against himself by the accused.
The deceased drowned and the accused was held guilty of murder.
4. A person is responsible for a death if by any act or omission he hastens
the death of a person suffering from any disease or injury, which apart
from such acts or omission would have caused death. In R vs. Enyaju 12
EACA 42, During a tribal dance, T willfully gave the deceased a violent
poke on the head with the sharper end of his heavy dancing stick
piercing the skull and causing the deceased’s brain to protrude. The
deceased fell to the ground and almost immediately E, beat him violently
on the other side of the head fracturing the skull. The trial judge
specifically found that the deceased was alive at the time of E’s blow.
Each injury would inevitably have caused the deceased’s death. Both T &
E were convicted of murder. The case of R vs. Okute 8 EACA 78,
demonstrates the effect of successive but separate beatings causing
death. The deceased was first beaten up by four men and made to dig up
some stolen meat. Sometime later as the deceased, in a very weak
condition was being taken to the chief was assaulted by another man X.
The deceased died of shock resulting from the cumulative effect of his
injuries. It was held that the four men could not be responsible for
causing the deceased’s death as on the evidence, it was possible that
injuries inflicted by them might not have caused death but for the
subsequent assault by X. There was no evidence of any common intent
between them and X but X was guilty of murder for he had with intent to
cause grievous harm assaulted one who was already in a very weak
state. It was no defence for X to say that the injuries that he inflicted
upon the deceased would not have caused death but for the prior
assault. Generally an assailant must take his victim as he finds him.
5. A person is deemed to have caused death of another if his act or
omission would not have caused death unless it had been accompanied
by an act or omission of the person killed or of other persons. This
principle also includes a rule that where A, voluntarily walks into an
obvious situation of danger created by an unlawful act of B, B is not
responsible for A’s death, since here, the principle of violent non fit
injuria applies(voluntary assumption of risk). In R vs. Horsey 1862, the
accused who had unlawfully set fire to a stockyard in which the deceased
was burnt to death was acquitted of murder because the jury found that
the deceased had entered the yard after it was set on fire. However, in R
vs. Katunzi 13 EACA 154, The accused set fire to a hut made of millet
stalks with only one door with the intention to cause death or grievous
 harm to the occupants Z, K and four helpless children were in the hut at
the time. Z with K’s help evacuated the children. Then Z under the
mistaken belief that one of the children was still in the hut re-entered it
and sustained burns from which died the next day. Accused was
convicted of murder.

Defences to Murder

These are categorized into partial and complete defences. A complete defence is
one which if successfully raised leads to the acquittal of the accused of the
offence of murder. A partial defence has the effect of reducing the offence to
manslaughter. Generally the defences to murder include diminished
responsibility, under section 194 of the Act, Mistake of fact under section 9,
and Intoxication under section. 12, Provocation under sections 192, and 193
and defence of person and of property under section 15. With the exception of
diminished responsibility and insanity which must be proved by the accused, ,
all other defenses must be disproved by the state. The Court must avail the
accused any defence that appears on the evidence even if the accused has not
specifically raised the same. See Kiyengo vs. Uganda [ 2005]2 E.A 106

Diminished Responsibility

The British equivalent of S. 194 of our PCA was considered in case of R vs.
Byrne [ 1960] ALL ER The appellant admitted strangling a girl in a hostel and
mutilating her dead body. Medical evidence showed that the killing was under
the influence of his perverted sexual desires. He would suffer from violent
sexual desires such that he would find it difficult to control his desires he
would be a normal person when under those sexual desires. At the time the
accused killed the girl he was suffering from perverted sexual desires. It was
important to consider whether the accused was insane in the sense as laid
down in the McNaghten case or as a case of psychopathy and could be properly
described by partial insanity. The defence has also been considered in several
other cases such as R vs. Dunbar [ 1958] 1 QB 1, R vs. Morris [ 1961] 2 QB
237, R vs. Bathurst [ 1968] 2 QB 99 and R vs. Walden [ 1959] 1W.L .R 1008.
The key difference in the application of this defence in Uganda and in the
United Kingdom is that in the latter jurisdiction, the accused is convicted of
manslaughter , where as in the former jurisdiction, the accused is convicted of
Murder but with diminished responsibility.

In the Byrne case, the issue in court was whether the accused at the time of
killing was suffering from any abnormality of mind. Court reduced the charge
to manslaughter. The Court in passing the Judgment held that ‘Abnormality
of mind’, which has to be contrasted with the time honored expression in the
McNaghten Rules ‘defect of reason’ means a state of mind so different from that
of ordinary human beings that the reasonable man would term it abnormal. I t
appears to us to be wide enough to cover the minds activities in all its aspects,
not only the perception of physical acts and matters, and the ability to form a
rational judgment as to whether an act is right or wrong, but also the ability to
exercise the will power to control physical acts in accordance with the rational
judgment. The expression ‘mental responsibility for his acts’ points to a
consideration of the extent to which the accused’s mind is answerable for his
physical acts which must include a consideration of the extent of his ability to
exercise will power to control his physical acts. Whether the accused was at the
time of the killing suffering from any ‘abnormality of k ind’in the broad sense is
a question of fact for the jury. On this question medical evidence is no doubt of
importance, but the jury is entitled to take into consideration all the evidence,
including the acts or statements of the accused and his demeanor. They are
not bound to accept medical evidence if there is other material before them
which, in their good judgment, conflicts with it and outweighs it . The aetiology
of the abnormality of mind ( namely whether it arose from a condition of
arrested or retarded development or any inherent causes, or was induced by
disease or injury) does, however, seem to be a matter to be determined by
expert evidence…”

This defence is related to insanity, it applies to murder and it was developed

because t here are many people who have mental problems but who cannot
satisfy the strict interpretation of insanity. Imbeciles and idiots are not legally
insane and thus fall under this category. In a trial for murder, it is for the
accused to show that he/ she comes under S. 194 of the Act and where such a
defence is raised successfully, a person shall never the sentenced to death but
is to be convicted of murder but with diminished responsibility meaning the
convict will not be sentenced to death but put in safe custody and dealt with
under section 105 of the Trial on Indictment Act. The Supreme Court has had
opportunity to consider this defence in the case of Rukarekoha vs. Uganda
[ 1999] E.A. 303 where Mulenga, JSC, gave some guidance to the application
of the defence and also disapproved some commentary made on the defence by
Collingwood, in his book, Criminal Law of East Africa and effectively overruled
Uganda vs. Kankuratire [ 1975] HCB134.
Provocation

A killing that would normally constitute murder done in the heat of passion
caused by sudden provocation and before there is time for the passion to cool
amounts to manslaughter under section 192 of the PCA. Provocation means
any unlawful act or insult of such nature as to be likely when done or offered
to an ordinary person or in his presence to the person within specified degree
of relationship, as to deprive him of the power of self-control and to cause him
to commit an assault of the kind which the person charged committed upon
the person by whom the act or omission is done.

It is not for the accused to establish provocation as a defence. If there is any

evidence of provocation the court cannot convict him of murder unless satisfied
that the prosecution has proved beyond reasonable doubt either that there was
no provocation or if there was provocation that what was done in the assault
could not be recognized or what an ordinary person in the community who had
lost control of himself might have done.

The reasonable retaliation is gauged according to circumstances and

community of the accused. It must be shown that the killing was in the heat of
passion and there was no time for it to cool. The law in this area has just been
restated by the Court of Appeal in the case of Kato v. Uganda [2002]1 E.A 101.

In R vs. Hope 14 EACA 105, the appellant killed a man under the honest belief
that he was responsible for the death of a relative. It was held that provocation
was not available because the appellant had held this belief for several days
before the killing.

Provocation must be sudden

R vs. Jezalani 14 EACA 70, the husband /appellant knew of his wife’s
misconduct and unfaithfulness with her former husband. When the wife told
the husband that she wanted to leave him for her former husband, he killed
her. The defence of provocation did not succeed on a charge of murder because
the alleged provocative act was not sudden.

Provocation should consist of a wrongful act

A lawful act cannot amount to a legal provocation. The following acts have been
held wrongful acts which together with the other elements of defense may
amount to legal provocation; the homicide of the accused’s father , R vs.
Wasonga 15 EACA , an attack on0 an accused’s wife, Matendekyera, trespass
to property, Marwa’s case and a verbal insult of a gross nature .
In R vs. Mwanyi EACA 40, it was held that to use a panga in a negligent
manner thereby causing harm to the person struck may be wrongful act. For a
wrongful act to constitute legal provocation, it need not be more than a tortious
one. As such it is sufficient to constitute legal provocation if the person, struck
honestly and reasonably but mistakenly believes that he is the victim of the
wrongful act and in that belief kills the person who striked him.

Generally, vulgar abuse or refusal of sexual intercourse is not sufficient

provocation unless contained with other circumstances. Accordingly it is a
question of fact whether a vulgar abuse or refusal of sexual intercourse will
provide a defense on the charge of murder.

The provocation must be such as to deprive an ordinary person, of the class to

which the accused belongs of his power of self-control. Again this is a question
of fact and the test of the reasonable man is so much applicable. See King V
Lesban [1914] 3 KB 116

The provocative act must be done in the presence of the accused. See Gaboyes
case 16 EACA 140. The appellant’s half-brother, K, had been rendered
unconscious by the blow delivered by the deceased. The appellant asked K
whose face was covered with blood who had beaten him and K replied it was
the deceased. The appellant thereupon went to the deceased’s hut and
delivered on his head a fatal blow fracturing his skull. It was held that
although the sight of his brother’s bleeding must have angered the appellant;
there was no provocation according to section 202 of the TZ Penal Code Act as
the wrongful act was not done in the presence of the appellant.

The provocative act done in the presence of the accused will be a provocative
act when it is done either towards the accused or towards a person to whom
the accused stands in specified relationship including master and servant
relationship. The retaliation must bear a reasonable relationship to the
provocation. In Obielo vs. R 16 EACA 139, the appellant killed her former
mistress by inflicting four blows on her head with a panga. The woman who
was suspected by the appellant of having made of a considerable sum of money
had slapped him and spat at him. It was held that the appellant was liable for
murder as his mode of resentment was out of relation to the provocation.

It has also been held that an accused is not deprived of the defense of
provocation if when provoked by A, he mistakenly or accidentally kills B in
attacking A. see Nyanya vs. R 23 EACA 593 and R vs. Alayina [1957] R&N 536,
where the accused went after dark in search of her husband. She found him
under blanket with a young girl. The accused immediately attacked the girl and
in the course of the struggle in the darkness of the hut at night, the girl’s
grandmother who was also in the hut was fatally stabbed her. It was held that
there was provocation sufficient to reduce murder to manslaughter

Where an accused is involved in a fight, the defense of both provocation and

self-defense may be open to him or her.

Legal provocation will operate to reduce Murder to manslaughter even where

there has been an intention to kill. Provocation is only a defense to murder not
to any other charge. In the other charges, it may operate to mitigate sentence.
The test in provocation is whether an ordinary member of the accused
community would have been provoked in retaliation in the same manner as the
accused did.

R vs. Maziku 8 EACA 55, a watchman was baited by a gang of young men
who also called him a term of vulgar abuse. The watch man who was an
irritable old man then threw a spear at the youth killing the deceased. The
watch man was convicted of murder. On appeal, the Court said that the test
was not whether an irritable old man would have been deprived of his self-
control but rather an ordinary member of the watchman, class would have
been so deprived.

The provocative act must be done in the presence of the accused and there
must not be time for the passion to cool. In Maina Thuku vs. R [1966] E. A
496, the appellant arrived home one night in a drunken state and found his
step father (deceased beating his mother) When the appellant tried to
intervene, his step father hit him twice with a stick and told the appellant not
to interfere. The appellant entered into the house and slept for a few hours
until he was awakened by the deceased calling him. Ongoing outside the
house, the appellant found his mother dead with a severe wound on the back
of the head and the deceased standing nearby. The appellant removed his
mother’s body in the shed, fetched a panga from the house and chased the
deceased about 300 yards. The appellant and the deceased then exchanged
words which apparently made the appellant angrier. Both men started walking
back to where the body lay when the appellant attacked the deceased with the
panga and killed him. The Court of Appeal for E.A held:

1. The events were so continuous as to make the acts of killing the mother
so proximate to the appellant as constructively to have been done in his
presence.
2. In considering whether there is time for passion to subside the degree of
provocation offered is a relevant factor.

3. In the instant case, the appellant killed the deceased when he was still
acting in the heat of passion without regaining his self-control. Provocation
therefore reduced murder to manslaughter.

Witchcraft as Provocation

In Galikuwa V R 18 EACA 175, Court laid down the rules inter alia relating to
defence of provocation in witchcraft cases.

i. The act causing death must be shown to be done in the heat of passion
that is to say in anger. Fear of immediate death is not sufficient.
ii. If the facts establish that the deceased was performing some acts in the
presence of the accused which he believed and an ordinary member of
his community would generally believe was an act of witchcraft against
him and the accused was so angered as to be deprived of self-control, the
defense of grave and sudden provocation is open to the accused.
iii. Belief in witchcraft per se does not constitute a circumstance of excuse of
mitigation for killing a person believed to be a witch or wizard where
there is no immediate provocative act.
iv. The provocative act must amount to an offence under criminal law.

In the Galikuwa case, a witchdoctor threatened the appellant with death unless
he paid him shs1000. Later the appellant being unable to pay the said sum
killed the witch doctor in an honest belief that he was saving his life from
witchcraft. It was held that this was murder. There was no immediate
provocative act. “A mere threat to cause injury to health or even death in the
near future cannot be considered as a physical provocative act”

An overt physical act of witchcraft may amount to provocation. In R vs.

Fabiano Kinene 8 EACA 96, the appellants appealed from conviction of murder.
The deceased had died from shock resulting from the forcible insertion into his
bowel through the anus of urine bananas by the appellant immediately they
had caught him. Immediately they had caught him crawling about naked in
their compound. They believed the deceased was a wizard who had caused the
death with their relatives by witchcraft and had caught him in the act as they
thought of bewitching them and therefore killed him in the way in which the
older times was considered proper for the killing of a wizard. Put the other way,
the appellant believed that the witch doctor had caused the death which many
people/ relatives by witchcraft. One night they found the witch doctor crawling
naked in the compound and believed to be in the act of bewitching themselves,
they fell upon him and killed him in a gruesome manner considered fitting for
the death of the witch doctor in olden days. The Convictions for murder
substituted with manslaughter because of the deceased’s provocative acts.

The belief that the person is presently causing the death of a relative by
supernatural means is not a reasonable one in law. In R vs. Kajuna 12 EACA
104, the appellant killed his father in the honest belief that he was causing the
death of his child by witchcraft. He had set out on a long journey with the
express intention to kill his father. It was held that this was murder. Similarly
in Rauben Bagamuhunda vs. Uganda, Criminal Appeal No 2 of 1987, it was
held that once he found as a fact that the appellant had killed the deceased by
burning he had tied him up and beaten him very badly, the learned Ag. Judge
could have convicted the accused of murder. Whereas the appellant suspected
the accused of having bewitched his brother to death, that alone could not
sustain the provocation. In any case the appellant attacked the deceased long
after the death of the appellant’s brother so that there was no provocation
within the meaning of the section of the Penal Code.

In Victory Kigora vs. Republic, E.A.C.A Crim Appeal 161-DSM-75 1977 LRT
N.45, the appellant killed the deceased, his father, by cutting the latter to
death with a panga. The deceased was reputed to be a wizard in the village.
The appellant genuinely believed that the deceased, by means of sorcery and
witchcraft, had caused the deaths of the deceased’s own father and those of his
sons and daughters. Not long before the killing, according to the appellant, the
deceased had caused the deaths of the deceased’s own father and those of his
sons’ and daughters. Because of his notoriety as a wizard and his evil deeds,
the deceased was sent out of the village. After sometime however, he managed
to get permission to return to the village. Not long after his return to the village,
the deceased met the appellant in a pombe shop and the deceased abused the
appellant. The appellant tried to avoid the deceased by leaving the pombe shop,
but the deceased followed the appellant and continued to abuse him. He told
the appellant that he was going to kill the appellant and the appellant’s wife in
the same way as he had killed the others, that as he was an old man he was
not afraid of death and since he had even killed his own father, he was sure he
would vanquish the appellant. The appellant said that he was so angered by
the torrent of abuse and words that he lost control of himself and in his
passion attacked and killed the deceased. It was held:
(i) A belief in witchcraft per se will not constitute circumstances of excuse
or mitigation when there is no provocative act.

(ii) A provocative act is not confined to an act of witchcraft being practiced

against the appellant at the material time.

(iii) A genuine belief by the appellant that the deceased had by witchcraft
caused the deaths of his relatives coupled by words an insults by the deceased
against the appellant in such circumstances as to cause any reasonable person
of the appellant’s community and actually causes the appellant sudden and
temporary loss of self-control amount legal provocation.

(iv)When it has been established that legal provocation exists, the fact that a
number of wounds have been inflicted does not prevent the offence from being
one of manslaughter.

Attempt to Attempt to murder

Section 204 of the Penal Code provides that:

Any person who attempts unlawfully to cause the death of another; or(b)with
intent unlawfully to cause the death of another, does any act or omits to do
any act, which it is his or her duty to do, such act or omission being of such a
nature as to be likely to endanger human life commits a felony and is liable to
imprisonment for life.

Ingredients

The main ingredients actus reus (attempts to unlawfully kill another) and mens
rea (intent unlawfully to kill another). Thus, to constitute attempt, the act must
be immediately connected with the commission of the particular offence
charged and must be something more than preparation for the commission of
the offence.

In Deo Metsnga Vs Uganda 1996 Volume 6 KALR 97 Kania J held that the
essential ingredients of offence of attempted murder are that the assailant
intended to maim or disfigure the complainant and that the intention was to be
carried out with the weapon and that the assailant started to execute the said
intention. So in this case there was a shooting at the car and the accused was
guilty of attempted murder

In Teopista Tusungire & Amor Vs Uganda HCCC 5/ 96, 1996 Volume 6

KALR 75 It was held that attempt to commit is an act done with intent to
commit that crime, and forming part of a series of acts which would constitute
it’s actual commission if it were not interrupted. Therefore to support the
charge of attempted murder the prosecution must prove the full intent to
murder, i.e. with malice aforethought which intent to murder, while being
prosecuted, is interrupted before the death results. In the present case the
complainant’s hands and legs were burnt by the appellant who left her to go
with the injuries. It cannot be said that the appellants had formed the
intention to kill the complainant but were interrupted in their effort to do so.
Therefore the trial magistrate was right to find that offence had not been
proved.

In order to convict of an attempt it must be shown that the accused intended to

consummate the particular crime, or rather (since knowledge of the law is not
required) intended to procure the consequences that in law amounts to crime. .
The requisite mens rea in attempt may be proved circumstantially by the
evidence of what the accused did. It may be that his acts are consonant only
with the intention of committing a crime, and if so they will supply evidence of
mens rea. Alternatively, the mens rea may be proved by a confession on the
part of the accused, or other direct statement of intention.

1.2 Manslaughter

Under section 187 and 190 PCA, a person who by an unlawful act or omission,
causes the death of another person commits the felony of manslaughter and on
conviction is liable to be imprisoned for life meaning that imprisonment for life
is the maximum sentence available and therefore anything less than life
imprisonment may be imposed depending on the circumstances of the case.

For the purposes of manslaughter, unlawful omission is an omission

amounting culpable negligence to discharge a duty tending to the preservation
of life or health whether such omission is not accompanied by an intention to
cause damage or grievous harm. According to Smith and Hogan, Criminal Law,
manslaughter is a diverse crime, covering all unlawful homicides which are not
murder.

A wide variety of types of homicide fall with this category, but it is customary
and useful to divide manslaughter into two main groups which are designated
‘voluntary ‘ and “ involuntary” manslaughter respectively. The distinction is
that in voluntary manslaughter. D may have the malice afore thought of
murder, but the presence of some serious grade of homicide, where these
circumstances are present, and then D. may actually intend to kill and do so in
pursuance of that intention yet not be guilty of murder.
  See AG vs. Ceylon Perera (1953) 1 ALLE R 73,
 Parker vs. R (1964) AC 1363, (1964) 2ALLER 6441.
 Holmes vs. DPP (1946) AC 588 at 598.

At common law voluntary manslaughter was confined to circumstances of

provocation, but under the penal code, it is voluntary manslaughter in
circumstances of a suicide pact. See s. 195.

Involuntary manslaughter includes all varieties of unlawful homicides which

are committed without malice afore thought. There is a vague borderline
between manslaughter and accidental death. In Andrews vs. DPP [1937] AC 76
at 581, [1937] 2 ALLER 552 Lord Atkin said.

“Of all crimes, manslaughter appears to afford most difficulties of definition, for
it concerns homicide in so many and so varying conditions. The law recognizes
murder on the one hand based mainly, though not exclusively, on an intention
to kill, and manslaughter on the other hand, based mainly, though not
exclusively on the absence of intent to kill, but with the presence of an element
of “unlawfulness” which is the elusive factor.

This “elusive factor” is obviously difficult to define: but it would seem to

comprise at least two, and perhaps three, varieties of fault.

(i) An intention to do an act which, whether D knows it or not, is unlawful

and dangerous in the sense that it is likely to cause direct personal injury ,
though not necessarily serious injury.

(ii) Where D does an act which creates an obvious and serious risk of
causing personal injury to another-

a. Not giving thought to the possibility of there being any such risk or

b. Having recognized that there was some risk involved, going on to take it.

(iii) An intention to do an act, or to omit to act where there is a duty to do so

being grossly negligent whether death or serious personal injury is caused.

Manslaughter is generally distinguished from murder by the absence of malice

afore thought. Cases establish that killing will be unlawful amounting to
manslaughter if:

i. There is such provocation as decreases murder to manslaughter.

ii. There is excessive use of force in defence of person or property.
iii. The unlawful act which causes death is directed against the person of
another and involves considerable risk of injury to that person which no
reasonable man would foresee as likely to cause death or grievous bodily
harm.
iv. There is an intention or negligent omission to perform a duty recognized
by the law of homicide.
v. There is criminal negligence.

It is manslaughter where death results from an unlawful act directed against

the person and involving a considerable risk of injury but where no reasonable
man would foresee as likely to cause death or grievous harm.

See R vs. Larkin 1943 Vol. 29 Cr. App 18 and R vs. Church (1965)2 WLR 1220,
the Court stressed that proof of mens rea is essential to manslaughter in
regard to dangerous acts against the person. Edmund J. said that for a verdict
of manslaughter to follow, the unlawful act must be such as all sober and
reasonable people would inevitably recognize must subject the other person to
at least the risk of some harm resulting there from although not serious harm.

It is manslaughter to intentionally or negligently omit to perform a legal duty

tending to the preservation of life or health so that death results. It is
immaterial whether such an omission is or is not accompanied by an intention
to cause death or bodily harm. Indeed Chap. 19 of the PCA imposes duties and
responsibilities upon specified persons aimed at preservation of life and health
e.g. the responsibility is imposed on a person who has charge of one to provide
for necessities of life – S. 199.

A duty is imposed on the head of family to provide all necessities of life to

children under 18 years (S.200) a duty is imposed on masters to provide for
students under 16 years the necessities (S.201), a duty is imposed on doctors
and other persons doing dangerous acts to exercise reasonable care and skill in
performing their duties so as to preserve life and health (S.203) and a duty is
imposed on persons in charge of dangerous things to ensure that they don’t
cause danger. In R vs. Laximidas 1957 R & N 73, the Court said that in a
charge of manslaughter by omission, it is necessary for the prosecution to
prove three things.

(i) That the accused owed a duty to the deceased;

(ii) That the accused omitted to carry out that duty and that the omission
amounted to criminal negligence;
(iii) That the omission caused the death of the deceased and for this purpose,
it is sufficient to prove that the omission hastened the death.

Such persons who have a duty to preserve life of others include:

(i) Persons having charge of another who is unable by reasons of age,

sickness, unsoundness of mind, detention or any other cause to withdraw from
such charge.

(ii) Heads of family having charge of children under 14 years

(iii) Employers

(iv) Medical workers and similar persons in relation to their patients.

Persons in charge of dangerous things have a duty to undertake reasonable

care and precaution to avoid danger to life, safety or health. Dangerous things
may include machinery and animals.

For purposes of manslaughter, the omission may take a variety of forms. In R

vs. Instan (1893) 1 Q B 450, it took the form of denial of food and nursing
during the last days of the life of an elderly relative. However where the
evidence clearly shows an intention to cause death the willful withholding of
food would be murder.

The omission may be failure to provide skilled medical care or negligent

medical care.

In R vs. Watson (1959) Q B 134,the child of the two accused suffered severe
harm from scalding and died three days later. The parent lived only three doors
away from the doctor’s surgery but didn’t send for the doctor until the child
was dead. They were convicted of manslaughter.

In Tipezenji vs. R [1960] R & N 504, the appellant gave birth to a child which
was accidentally precipitated into a pit latrine. Although the appellant knew
the baby was alive in the latrine, she did nothing to save the child with the
result that it died. It was held that the accused’s mother had a duty to try and
save the life of a child and the failure to act amounted to manslaughter.

It was observed that if the mother had willfully abandoned the child with the
intention to kill it the charge might well have been murder although would be
infanticide if the balance of her mind was upset by the effects of child birth.
1.3 Infanticide

Under S. 213 of the PCA, where a woman by any willful act or omission causes
the death of her child being a child under the age of 12 months but at the time
of the act or omission the balance of her mind was disturbed by reason of her
not having fully recovered from the effect of giving birth to the child or by
reason of the effect of lactation consequent upon the birth of the child, then,
notwithstanding that the circumstances were such that but for the provisions
of this section the offence would have amounted to murder, she commits the
felony of infanticide and may for such offence be dealt with and punished as if
she had been guilty of the offence of manslaughter of the child.

It is only a woman who can be charged under the section or who can raise the
defense of infanticide and the child killed should be the child of that woman
offender and affected by the very circumstances in the section i.e. not having
fully recovered from the effect of giving birth or by reason of the effect of
lactation. The standard of proof in section 213 is not as high as that required
for insanity because the defense of insanity leads to acquittal whereas
infanticide has the effect of reducing the charge of murder to manslaughter.
The burden of proof of loss of mind is upon the offender.

In R vs. Namayanja Vol. 20 EACA 204, the appellant an unmarried girl of

about 20 years was convicted of murder of her newly born child. The appellant
had never told her parents with whom she lived of the pregnancy and neither
did they know of it. On 5th February 1952 at about 5:30 p.m. the father on
going to the latrine heard a child crying in the pit under him. He and his wife
dug out the new born child still alive who died in hospital at 7:20 a.m. the
following day. At her trial, the appellant alleged that she felt unwell on 4th
February and worse on the following day. About 4 p.m. she went to the latrine
in order to pass faeces. She did not know she was going to deliver and whether
she had extruded the child or not but that when she was told of the child in
the latrine, she realized that it was hers. It was held that where a newly born
child has been abandoned the issue of a homicidal intent is a matter of
inference but the inference must be one beyond any reasonable doubt before a
conviction of murder can be entered. The standard of proof required to show
disturbance of the balance of the mind can’t be so high as in the case of a
defence resting on insanity and taking into account the girl’s age, the fact that
it was her first baby, the fact that pregnancy was unknown by the parents, her
act of leaving the child without calling for help was due to panic, fear and
despair. She was acquitted and set free.

In R vs. Soanes [1948] ALL E.R 489, a day or two after she had been
discharged from the hospital where after a normal confinement she had given
birth to the child, the prisoner killed the baby by fracturing the skull in two
places and threw it into a canal. She had stayed in hospital for a longer time
than normally and indeed from first to last, there was nothing to suggest that
she was otherwise than normal and in possession of all her faculties. At her
trial she pleaded guilty to the lesser offence of infanticide which the crown
counsel accepted but which the judge refused on the ground that there was no
indication on the deposition that the circumstances existed which must exist
before a verdict of infanticide can be returned. It was held that there was
nothing disclosed on the deposition which would have justified a reduction of
the charge of murder to infanticide and accordingly the appeal was refused, the
Court holding that the judge rightly insisted on murder.

1.4 Non- Fatal Assaults

1.4.1 Common assault

Section 235 provides that:

Any person who unlawfully assaults another commits a misdemeanour, and, if

the assault is not committed in circumstances for which a greater punishment
is provided in this Code, is liable to imprisonment for one year. In the
Ugandan context, common assault occurs when unlawful physical force is
applied on someone e. a slap or kick and no bodily harm results from it. As
such no medical evidence would have to be adduced.

1.4.2 Assaults causing actual bodily harm

Section 236 of the Penal Code Act states that any person who commits an
assault occasioning actual bodily harm, commits a misdemeanour and is liable
to imprisonment for five years.

Section 2 defines grievous harm” means any harm which amounts to a maim
or dangerous harm, or seriously or permanently injures health or which is
likely so to injure health, or which extends to permanent disfigurement, or to
any permanent or serious injury to any external or internal organ, membrane
or sense. Uganda V S/O Emeu [1979] H.C 169
1.4.3 Unlawful wounding S. 222

Any person who—(a)unlawfully wounds another; or(b)unlawfully, and with

intent to injure or annoy any person, causes any poison or other noxious thing
to be administered to or taken by any person,commits a misdemeanour and is
liable to imprisonment for three years.

1.4.4 Kidnapping

Kidnapping means taking away a person against his/her will by force, threat or
deceit. Usually, the purpose of kidnapping is to get a ransom, or for some
political or other purposes etc.

Section 239 defines kidnapping from Uganda as when any person who conveys
any person beyond the limits of Uganda without the consent of that person or
of some person legally authorised to consent on behalf of that person is said to
kidnap that person from Uganda.

Kidnap with Intent to Murder

Under Section 243 Kidnapping or detaining with intent to murder occurs when
any person who by force or fraud kidnaps, abducts, takes away or detains any
person against his or her will—(a)with intent that such person may be
murdered or may be so disposed of as to be put in danger of being murdered;
(b)with knowledge that such person will probably be murdered; or(c)with intent
to procure a ransom or benefit for the liberation of such a person from the
danger of being murdered, commits an offence and is liable on conviction to
suffer death.

In the case of Mukombe Moses Bulo Vs Uganda, Criminal Appeal No. 12 of

1995, the appellant was convicted by the High Court of the offence of
kidnapping Sandra Bulo, a baby with intent to murder contrary to section
235(1) and ()2) of the penal code, and sentenced to fourteen years
imprisonment. He appealed against both the conviction and sentence.

The fact as found by the trail judge were that the appellant was a cousin
brother of the complainant, Nakazi Harriet (PW3). The appellant had an affair
with the complainant as a result of which she gave birth to a baby girl named
Sandra Bulo. The appellant rented a house for the complainant at Namumera
village where she stayed with the child for one and a half years while the
appellant was maintaining them. After that period, the complainant returned to
her home in Bugerere with the child.
In May 1992, the child fell sick and the complainant took her to the appellant’s
home to seek for money for her treatment. The appellant assaulted her and
took away the child Sandra from her. The complainant went and reported the
matter to the R.C.I Chairman who summoned the appellant but the latter
refused to go. After the R.C.I Chairman had gone to the appellant’s home to
inquire about the matter, he gave the complainant a letter referring her to
Mukono Police Post. When the complainant returned home she found her
father sick at Kayunga Hospital and she attended to him for five months. Later
she sent her brother Moses Nkuki (PW6) to the appellant’s home to collect the
child to attend the last funeral rites of her grandfather. The appellant refused
to hand over the child saying that the complainant was a fool to release the
child to him.

After five months, the complainant went to the appellant’s home but did not
find the child there. In January 1993, the appellant told the complainant that
he had taken the child to Nsambya Sanyu Babies Home with the child’s
photograph. She was told that the child had never been taken there. She was
referred to the Mukono Probation Officer who summoned the appellant to his
office. The appellant came and claimed that he had given the child to the
complainant, which the complainant denied. The probation officer referred the
matter to police. The appellant was arrested for failing to five a satisfactory
explanation as the whereabouts of the child Sandra. He was charged and
subsequently tried for the offence of kidnapping with intent to murder. It was
held

(i) It is now well established that the offence of kidnapping with intent to
murder comprises of two key elements, namely the prohibited conduct of
kidnapping on taking away by force or fraud and the specific intent to cause
the victim to be murdered. [See Ibrahim Bilal Vs. Uganda Criminal Appeal No.5
of 1983 (UCA)]

(ii) As regards the second element of the offence, namely the specific intent,
it is also well established that on a charge of kidnapping with intent to murder,
it is necessary for the prosecution to establish that at the time of kidnapping
there was a contemporaneous intent that the victim be murdered or be put in
danger of being murdered. [See Godfrey Tinkamirwa & Another Vs. Cr. App.
No.5/88 (sc) (1988 – 1990) H.C.B.5]

(iii) That intention can be presumed if the victim has not been seen or heard
of within a period of six months or more. This presumption is provided for
under section 235 (2) of the penal code Act.
(iv) Once it is proved that the appellant forcefully took away the child from
her mother, and the child has not been seen or heard of for six months or
more, then the appellant is presumed to have had the contemporaneous intent
the child would be murdered or be put in danger of being murdered.

(v) Section 235 (2) of the penal code casts a burden on the appellant to
prove that he did not have the contemporaneous intent that the child would be
murdered or be put in danger of being murdered. The appellant failed to rebut
the presumption. On the contrary there was sufficient evidence to prove that
the appellant had guilty knowledge of what happened to the child. This can be
evidenced by the fact the appellant lied that he had taken the child to Nsambya
Sanyu Babies Home, and when the child was not found there he claimed that
the mother had taken away the child from his home after a few months.