Criminal Procedure and Practice in Uganda - SSEKANA

CHAPTER ONE
NATURE OF CRIMINAL PROCEDURE
1.1 INTRODUCTION
Law is generally divided into two main parts i.e. Substantive and Procedural
law. Substantive law defines rights, duties and liabilities while Procedural law
regulates the conduct of proceedings.
Criminal procedure is sometimes referred to as adjectival law in that it
describes the application of the criminal law and regulates the procedure by
which criminal offenders are brought to justice.
The application of Criminal Procedure is wholly dependent on
understanding the general principles of criminal law as a whole such as
definition of a crime, ingredients of an offence or the criminal mind (mens rea).
A crime has no agreed or standard definition; however it can be understood to
mean a wrong committed by an individual in society. The definition of a
crime is a task which has not been satisfactorily accomplished by any legal
writer. That is why no definition of crime has been attempted in the Penal
Code Act which has opted to use the term offence in place of crime.
An offence is defined under the Penal Code to mean “an act, attempt or
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omission punishable by law”.
The essential object of criminal law is to protect society against criminals
and law breakers. For this purpose the law holds out threats of punishments to
prospective law breakers and as well attempt to make the actual offenders
suffer the prescribed punishment for their crimes.
Criminal procedure is composed of the laws and rules governing the series
of proceedings through which substantive criminal law is enforced.
The Ugandan criminal justice system is by its nature an adversarial and
accusatorial model. Criminal procedure must balance the suspect’s/accused’s
rights and the Country’s interests in a speedy and efficient trial with the desire
for justice. Therefore, the rules of criminal procedure are designed to ensure
that the suspect’s/accused’s rights are protected.
1 Section 2(s) Penal Code Act.

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2 Criminal Procedure and Practice in Uganda
The rules of criminal procedure are different from those of civil procedure
because the two areas (Criminal and Civil) have different objectives, standards
of proof and results.
In criminal cases, the state brings the suit/case and must show guilt beyond
reasonable doubt, while in civil cases, the plaintiff brings the suit and must
show the defendant is liable by a preponderance of the evidence.
1.2 PURPOSE OF CRIMINAL PROCEEDINGS

The purpose 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 his/her fundamental right to defend
himself/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;
(e) to acquit the suspect if no sufficient evidence is available to convict.
All the above are rooted in the principle of fairness to both the accused and
the victim. Fair trial is not only a basic human right recognized under
International law, but also essential for the effective prosecution of human
rights violations, the punishment of the perpetuators and the delivery of justice
to the victims.
The principle of fair trial encompasses all that is related to a fair trial before
the trial in court actually occurs, such as the investigation of the crime and
collecting of evidence. It comprises positive and negative obligations. The
positive aspect involves ensuring that all investigations into crimes and
complaints are carried out properly, the necessary charges/indictments filed
and cases prosecuted according to the law. The negative aspect involves not
implicating individuals without sufficient cause, not allowing cases to proceed
in court without sufficient evidence and eliminating any abuse of power
within the prosecution mechanism.
Criminal Procedure is intended to provide for the just, speedy
determination of criminal proceedings without the purpose or effect of
discrimination based upon race, colour, creed religion national origin, sex, and
marital status with regard to public assistance disability, handicap in
communication or age.
The laws of criminal procedure are constructed to secure simplicity in
procedure, fairness in administration and elimination of unjustifiable expense
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Nature of Criminal Procedure 3
and delay. It involves the balancing of the liberty of the citizen against the interests
of the community as a whole.
Criminal prosecutions are always brought in the name of the state because in
criminal trials neither the victim of the criminal act nor his/her individual
sympathizers are taking part in a revenge for the wrong done.
The state on the other hand, is usually the complainant and the prosecutor
because it is the state which through its legislative arm enacts laws; breach of such
laws by any criminal activity is in direct conflict with interests of the state. Thus, as
the custodian of the legal and administrative order, the state becomes a complainant
when her laws are breached.2
The state seeks redress on behalf of the victim by punishing the offender who is
the accused. Since it is the duty of the state to protect the society, and it takes the
responsibility to prosecute those who commit crimes.
The complainant or the person aggrieved usually appears as the prosecution
witness.
In any criminal proceedings the prosecution shall be designated by the word
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“Uganda” . This means that in law every crime is against the state which is the
complainant. Where criminal proceedings were institute in the name of a District
Administration of Uganda, the High Court held that there was no complainant
recognized by law and as such there was no criminal charge before the trial Court.4
Similarly, the Court has further emphasized this importance in two decisions:
Allen J noted that criminal cases prosecuted by the state are designated Uganda v So and
so… and this form must always be used. Therefore the file cover which was inscribed
‘State v Salmon Kaita’ was improper.5
In the case of Uganda v Byaruhanga6 Court noted that it is the duty of the
Magistrates to ensure that their clients use the correct terminology on all Court records.
In criminal cases the proper designation is Uganda v so and so …
Our law of criminal procedure is mainly contained in the following legislations:
(a) The Criminal Procedure Code Act
(b) The Magistrate’s Court Act
2 Uganda v L.P. Ogwang HCCRMA 5 of 1996 [1996] VI KALR 120, PLO Lumumba, Criminal
Procedure in Kenya page 1.
3 Article 250(4) Constitution.
4 Uganda v Kemisa Akula w/o Aganasi H.C Crim. Rev Number 329 of 1973 (unreported) cited by FJ
Ayume in Criminal Procedure and Law in Uganda, LawAfrica Publishing, 2010, page 2.
5 Uganda v Saimon Kaita [ 1978] HCB 24.
6 [1978] HCB 82.
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(c) The Trial on Inductiveness Act

(d) The Evidence Act
(e) The Police Act
(f) The Judicature Act
(g) The Evidence (Statement to Police Officers) Rules
(h) The Police Standing Orders
(i) The Penal Code Act
(j) The Uganda Peoples Defence Forces Act 2005
These legislations provide the machinery for the detection of crime, apprehension
of suspected criminals, of the guilt or innocence of the suspected person, and the
imposition of the suitable punishment of the guilty person.
In addition, the legislations also control and regulate the working of the
machinery set up for the investigation and trial of offences. On the one hand, it has
to give adequately wide powers to make the investigative and adjudicatory process
strong, effective and efficient, on the other hand, it has to take precautions against
errors of judgment and human failures and to provide safe guards against probable
abuse of powers by the police, prosecutors and judicial officers.
1.3 CONCLUSION
In sum therefore, it is important that every citizen should know the procedure to be
followed for enforcing rights. The basic importance of criminal procedure has to be
borne in mind, as it is the procedure that spells much of the difference between rule
of law and rule by the whim and caprice. The law enforcement agencies should
follow the correct procedure when bringing suspects to justice. The courts which
administer criminal justice must do so in accordance with the laid down rules of
procedure.
The importance of the criminal procedure legislations is based on the fact that
they are more constantly used and affects a greater number of persons than any
other law and the nature of its subject matter is such that human values are involved
in it to a greater degree than in other laws.
As the criminal procedure is complementary of the substantive criminal law, its
failure would seriously affect the substantive criminal law which in turn would
considerably affect the protection that it gives to society. Therefore it has been
rightly said that too much expenses, delay and uncertainty in applying the law of
criminal procedure would render even the best penal laws useless and oppressive.
CHAPTER TWO
JURISDICTION
2.1 INTRODUCTION
Criminal jurisdiction is the power which the sovereign authority of the state
has vested in a court and other tribunals established by law to take cognizance
of and determine questions which arise out of crimes committed in that state.
The place of commission of a crime is a determinant factor in deciding
whether the offence is triable by the Ugandan courts. Jurisdiction refers to the
powers and privileges of a court; they are powers to render punishments.
Once there is a successful challenge to the court’s jurisdiction, any
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conviction by that Court is invalid and must be thrown out.
The right to object to jurisdiction is a right that can be exercised anytime
before, during and after trial.
The Penal Code provides that Uganda for the purposes of this Code
extends to every place within Uganda.2
The general rule is that; No country can enforce its laws in another
country. Although the law strongly prefers trying cases where the crime was
committed, sometimes it may not be possible if the offender does not stay or
reside in the country where the offence is committed.
The Penal Code gives an exception to this situation in respect of certain
offences against the state.
… the courts of Uganda shall have jurisdiction to try offences created
under sections 22, 24, 25, 26 and 27 committed outside Uganda by a Uganda
citizen or person ordinarily resident Uganda.3
Where the offence is committed partly within Uganda and partly without,
those persons who participate in the offence while acting within Uganda may
1 Uganda v Bosco Okello [1987] HCB 13 [A Magistrate can only dismiss a case if he/she has
Jurisdiction. The Order of dismissal was illegal].
2 Section 4(1) Penal Code Act.
3 Section 4(2) Ibid.
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be tried in Uganda as if the offence had been committed entirely within

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Uganda.
Thus, like other sovereign states in the International community, Uganda
empowers its Courts to exercise in general plenary jurisdiction over criminal
acts committed in its territory without limited restraints.
There is also a theory that jurisdiction may be based on the nationality of
the offender. However in most cases the criminality of an act depends on the
law of the place where the act is done. Obviously, the courts of Uganda will
not treat as criminal and inquire into acts or omissions which are not done in
Uganda or which have no connection with Uganda.5
However, the Anti-Terrorism Act confers jurisdiction on the Courts of
Uganda to try any offence committed under this Act within and outside
Uganda. Offences committed outside Uganda shall be dealt with as if
committed in Uganda.6
The International Criminal Court Bill/Act which was enacted as a
ratification of the Rome Statute of the International Criminal Court and it
confers jurisdiction for offences committed outside the territory of Uganda
against a person, if:
(a) the person is a citizen or permanent resident of Uganda;
(b) the person is employed by Uganda in a civilian or military capacity;
(c) the person has committed the offence against a citizen or resident of
Uganda; or
(d) the person is ,after the commission of the offence, present in Uganda.7
It is obviously expedient to have suitable territorial units for purposes of
administration whether judicial or otherwise.
The size and number of magisterial units or High Court Circuits depend
on the needs of the administration and society at a given period in time.
The general rule is that every offence must ordinarily be inquired into and
tried by a competent court within the local limits of jurisdiction it was
committed.8 Where an offence is alleged to have been committed partly in
4 Section 5 Ibid.
5 Uganda v Atama Mustapha [1975] HCB 254.
6 Section 4(1), (2) Anti-Terrorism Act 14 of 2002.
7 Section 18 International Criminal Court Bill but Parliament has passed the bill 10 March 2010 and
it is awaiting Presidents Assent to become law.
8 Section 34 Magistrates Courts Act.
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areas in which of several particular areas the offence occurred, the courts in
each of the areas have concurrent jurisdiction to try the offence.
An offence committed while the offender is in the course of performing a
journey, voyage or flight may be inquired into or tried by a court through or
into the local limits of whose jurisdiction the offender or the person against
whom or the thing in respect of which the offence was committed passed in
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the course of that journey, voyage or flight.
Where there is doubt as to which court should try the offence the court
entertaining the doubt may at its discretion refer the matter to the High Court
for a decision.10
There are three reasons for the general principle of ensuring trial within
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the jurisdiction the offence is committed :
(a) Evidence is likely to be available in the area where the alleged offence
occurred.
(b) Once the trial is held in that area, both the prosecution and the defence
will find it convenient to secure witnesses and organise their respective
cases.
(c) If the presiding Judge is familiar with the locality, his/her knowledge may
lead to a more effective supervision of the trial.
Where it appears that a fair and impartial trial cannot be held in the locality
where an offence was committed, or for some other reason the local
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Magistrate’s Court would be undesirable, the High Court may order:
(a) that any offence be tried or inquired into by any court not empowered but
in other respects competent to inquire into or try that offence.
(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.
(c) that an accused person be committed for trial to itself.
9 Section 38 supra.
10 Section 39 supra.
11 A hand book for Magistrate’s (Revised Edition 2004) page 7.
12 Section 41 Magistrate’s Court Act supra, Kabenge and 2 others v Uganda [1971] 1 ULR 20 case
transferred from Kampala to Kabale where money had been withdrawn.
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2.2 HIERARCHY OF COURTS

Judicial power in Uganda is derived from the people and shall be exercised by
the Courts established under the Constitution in the name of the people and
in conformity with law and with values, norms and aspirations of the people13.
The judicial power of Uganda shall be exercised by the Courts of
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judicature which shall consist of:
(a) the Supreme Court of Uganda;
(b) the Court of Appeal of Uganda;
(c) the High Court of Uganda; and
(d) such Subordinate Courts as Parliament may by law establish …
The Supreme Court of Uganda, the Court of Appeal of Uganda and the High
Court of Uganda have been created by the Constitution, and their jurisdiction
and powers including those in respect of criminal matters are well defined in
the Constitution itself.
In addition, the Judicature Act and Criminal Procedure Code make
provision of appeal to Court of Appeal and Supreme Court under certain
circumstances.
2.2.1 The Supreme Court

According to the Constitution and the Judicature Act, the Supreme Court is a
superior Court of record in Uganda and has only an appellant Jurisdiction in
criminal matters.
The Supreme Court shall be the final Court of Appeal and any party
aggrieved by the decisions of the Court of Appeal may appeal to the Supreme
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Court.
Similarly the Judicature Act also provides that an appeal shall lie to the
Supreme Court from such decisions of the Court of Appeal as are prescribed
by the Constitution, this Act or any other law.16
In criminal matters, in offences punishable by death, there is an automatic
right of appeal to the Supreme Court.
13 Article 126 Constitution.

14 Article 129 ibid.
16 Section 4 Judicature Act.
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Jurisdiction 9
For the purpose of hearing and determining the appeal, the Supreme
Court has all powers and authority vested in Court of Appeal and High
Court.
A Supreme Court is duly constituted at any sitting, if it of consists an
uneven number not less than five.
2.2.2 The Court of Appeal

The Court of Appeal is specifically provided for in the Constitution.
“An Appeal shall lie to the Court of Appeal from such decisions of the High
Court as may be prescribed by law.” 17
The powers of the Court of Appeal are regulated by the Judicature Act which
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provides:
“For purposes of hearing and determining an appeal, the Court of Appeal shall
have all powers, authority and Jurisdiction vested under any written law in the
Court from the exercise of the original jurisdiction of which the appeal originally
emanated.”
The Court of Appeal entertains appeals from the High Court.
The Court of Appeal shall be constituted if it consists of an even number
not less than three members of that Court.
2.2.3 The High Court

The High Court is established under the Constitution and is vested with
unlimited original jurisdiction in all matters and such appellate and other
jurisdiction as may be conferred on it by the Constitution or other law.19
The High Court shall have jurisdiction to try any offence under any
written law and may pass any sentence authorised by law; except that no
criminal case 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 with the Magistrate’s Court Act.20
Similarly the High Court may pass any lawful sentence authorised by law
21
as it is termed sentencing jurisdiction.

19 Articles 138 and 139 Constitution.
20 Section 1 Trial on Indictment Act.
21 Section 2 ibid.
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The offences that are currently triable by the High Court include treason
and treason related offences, murder, aggravated robbery, rape, defilement,
kidnap with intent to murder. In practice, the High Court ordinarily hears
only those cases which cannot be tried by the lower court and those which
the DPP considers to be of exceptional importance.
The Constitution and Magistrates Courts Act also vests the High Court
with power to hear any appeals from decisions of any court lower than the
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High Court.
The High Court has several other powers and jurisdiction vested in it by
different legislations;
(a) It has reversionary powers.23
(b) Confirmation of sentences.24
(c) Transfer of cases.25
(d) Power of reservation of questions of law.26
2.2.4 Magistrates Courts

These Courts are in the category of subordinate Courts as provided for by the
Constitution.
They shall be established in such places in each magisterial area as the
minister may after consultation with the Chief Justice, by Statutory Instrument
designate Magistrates Courts to be known as the Magistrate’s Court for the
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area in respect of which it has jurisdiction.
Magistrates shall be of the following grades:28
(a) Chief Magistrate
(b) Magistrate grade I
(c) Magistrate grade II
(d) Magistrate grade III
22 Article 139(2), Section 204 Magistrate’s Court Act.

23 48-50 Criminal Procedure Code Act.
24 Section 173 of Magistrates Courts Act.
25 Section 41 ibid.
27 Section 3 of Magistrates’ Courts Act.
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Jurisdiction 11
However, Magistrate grade III was abolished by the Magistrate’s Court

29
Amendment Act 2007.
The powers and jurisdiction of a Magistrate shall be determined by the
grade of his or her appointment and the power and jurisdiction conferred
upon that grade by this Act and by any written law for the time being in
30
force.
The Minister responsible for justice, may, after consultation with the Chief
31
Justice, by Statutory Instrument divide Uganda into Magisterial areas.
The latest subdivision of magisterial areas was made in September 200732
and it created the following chief magistrate areas:
Kampala, Nakawa, Makindye , Nabweru, Mpigi, Entebbe, Mbale,
Kapchorwa, Pallisa, Tororo, Busia, Moroto, Kotido, Mbarara, Ibanda,
Bushenyi, Jinja, Iganga, Soroti, Fortportal, Kasese, Kabale, Rukungiri, Arua,
Nebbi, Moyo, Gulu, Kitgum, Mubende, Mityana, Kiboga, Luwero,
Nakasongola, Mukono, Masindi, Hoima, Masaka and Lira.
These different chief magisterial area have other lower magisterial areas
created under them of Magistrate grade I and Magistrate grade II.
It is equally important to note that Chief magistrate and Magistrate grade I
are qualified lawyers and are holders of a law degree (LL.B) and a Diploma in
legal practice.
While Magistrate grade II are only holders of a Diploma in law and are not
holders of a law degree and their distinction lies in the qualification.
2.2.4(a) Chief Magistrate

A Chief Magistrate may try cases under written law, other than offences of
treason and other offences against the state, murder and kidnap with intent to
murder.
The jurisdiction extends to attempts, aiding and abetting, incitement and
conspiracies.
A Chief Magistrate may try and offence other than an offence in respect of
33
which the maximum penalty is death. (e.g. manslaughter, Arson and offences
endangering life or health).
29 Section 1 of Act 7 of 2007 assented to on 17 August 2007.

30 Section 4(3) MCA.
31 Section 2 of MCA.
32 The Magistrates Court (Magisterial Areas) Instrument, 2007, 45 of 2007.
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Chief Magistrates have jurisdiction over some offences likely to be

politically sensitive e.g. sedition, participation in an unlawful society,
committing acts intended to alarm, annoy or ridicule the president.
Chief Magistrates have power to pass any sentence authorized by law.34
This means that he/she can pass a maximum sentence of imprisonment for
life.
A Chief Magistrate can hear appeals from decisions of Magistrates grade II
35
and III. He /She has no jurisdiction to hear appeals from Magistrate grade I
In addition, a Chief Magistrate has general supervisory power over all
magistrates within the area of his/her local jurisdiction.36
37
Lastly, a Chief Magistrate may transfer a case from any magistrate to
himself or from one magistrate to another.
2.2.4(b) Magistrate Grade I

The jurisdiction of a Court presided over by a Magistrate grade I is subject to
the same exclusions as that of a Chief Magistrate, with additional exclusion of
cases involving acts intended to alarm, annoy or ridicule the president,
concealment of treason, promoting war on chiefs and manslaughter.
Magistrate grade I has original jurisdiction only and most of the offences
not tried by this Court then punishment is death or life imprisonment.
The maximum sentence a Magistrate grade I may impose is 10 years
imprisonment or a fine not exceeding one million shillings.
2.2.4(c) Magistrate Grade II

The Magistrate grade II may try any offence under any written law except the
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offence and provisions specified in schedule 1 of the Magistrates Court Act.
In general, the more serious felonies, and many crimes of fraud are
excluded from this jurisdiction.

34 Section 162 ibid.
38 Section 161(1)(c) Magistrates Courts Act.
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Jurisdiction 13
The sentencing power of a Magistrate grade II is three years imprisonment

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or a fine not exceeding five hundred thousand shillings or both.
2.2.4(d) Family and Children Court

A family and children court shall have jurisdiction to hear and determine all
criminal charges against a child except:
(a) Any offence punishable by death;
(b) Any offence for which a child is jointly charged with a person over 18
years.40
2.2.4(e) General Court Martial

There is a General Court Martial for the defence forces, which shall be consist
of:41
(a) a chairperson who shall not be below the rank of Lieutenant Colonel;
(b) two senior officers;
(c) two junior officers;
(d) a Political commissar; and
(e) one non-commissioned officer,
All of whom shall be appointed by the High Command for a period of one
year.
The General Court Martial shall have unlimited jurisdiction under the Act
and shall hear and determine all appeals referred to it from decisions of
Division Courts Martial and Unit Disciplinary Committees.42
43
The Act sets out persons who are subject to military law. The General
Court Martial has no judicial power over civilians who do not fall under the
Uganda Peoples Defence Forces Act. Therefore the trial of accused persons
singly or jointly with members of the Uganda Peoples Defence Forces Act
39 Section 162(1)(c) ibid.

40 Section93 Children’s Act.
41 Section 197(1)/(196) The Uganda Peoples’ Defence Forces Act, 2005, Act 7 of 2005.
42 Section 197(2)/196 ibid.
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before the General Court Martial for offences under Uganda Peoples Defence
44
Forces Act is inconsistent with articles 28(1) and 210 of the Constitution.
All appeals from the General Court Martial lie to the Court Martial Appeal
Court.45
2.2.4(f) International Criminal Court

There is established an International Criminal Court. It shall be a permanent
institution and shall have the power to exercise its jurisdiction over persons for
the most serious crimes of international concern and shall be complementary
to national jurisdictions. The jurisdiction and functioning of the court shall be
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governed by the provisions of this Statute.
The jurisdiction of the Court shall be limited to the most serious crimes of
concern to the international community as a whole. The court has jurisdiction
in accordance with this Statute with respect to the following crimes:47
(a) The crime of Genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
The Court has jurisdiction only in respect of crimes committed after the entry
48
into force of the Statute.
The Court shall have no jurisdiction over any person who was under the
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age of 18 at the time of the alleged commission of a crime.
The court shall be composed of the following organs:50
(a) The Presidency;
(b) An Appeals Division, a Trial Division and a Pre-Trial Division;
(c) The Office of the Prosecutor;
44 The Uganda Law Society v The Attorney General Constitutional Petition Number 18 of 2005; [2006]
1 EA 401 (CCU) HCB 80, Attorney General v Uganda Law Society Supreme Court Constitutional
Appeal Number 1 of 2006 decided on 20 January 2008.
45 Section 199(1) Uganda Peoples’ Defence Forces Act.
46 Article 1 Rome Statute of the International Criminal Court refer to Schedule 1 of the ICC
Bill/Act.
47 Article 5 ibid.
48 Article 11(1) ibid.
49 Article 26 ibid.
50 Article 34 ibid.
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(d) The Registry.
2.3(a) Transfer of Cases

The Courts51 (High Court and Chief Magistrate’s Court) are empowered to
transfer cases to other Courts in exercise of their supervisory jurisdiction or to
themselves in order to ensure that the ends of justice are met.
Likewise, the DPP can cause the transfer of a case from a lower Court to a
superior court.52 This is intended to assist Court in avoiding to proceed with
the case without jurisdiction.
Criminal jurisdiction is only exercised by court of competent jurisdiction
53
and any proceedings before a Court without jurisdiction is a nullity. Once a
Court realizes that it lacks jurisdiction, its only possible remedy to this
problem is to transfer the case to a competent Court.
In cases of transfer of cases instigated by a complainant or accused person,
there must be correct reasons that justice will not be done if proceedings are
allowed to commence or to go on with trial before a particular Magistrate.
The duty cast on the Court is to decide whether or not there is an
apprehension not founded on surmises, conjecture and/or unproved
allegations. The test to be used in determining the apprehension is that of
reasonableness.
The court is under an obligation to grant an application for transfer if it is
of the considered view that certain circumstances which are, or tend to have a
nexus with the case or the parties thereto are such that they have the effect of
creating what Trevelyan J called:
“Reasonable apprehension in the applicants or any right thinking person’s mind
that a fair and impartial trial might not be had before the magistrate.”54
2.3(b) Reasons for Transfer of Cases

There may be different reasons to warrant a transfer of a case from one Court
to another. This does not mean that there is a vote of no confidence in one
Court in the administration of justice:
51 Sections 170, 171, 41 Magistrates Courts Act.

53 Uganda v Wanerera [1979] HCB 170, Uganda v Safani Ngobi Alias Malwa [1980] HCB. The Chief
Magistrate had no jurisdiction to try a case of manslaughter and therefore the trial was a nullity.
54 John Brown Shilenje v R Criminal Application Number 18 of 1980 as cited by PLO Lumumba ,
Criminal Procedure in Kenya.
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(a) Where the Court lacks jurisdiction to try the case or pass a sentence.
(b) Where a fair and impartial trial cannot be heard in that particular Court.
(c) Where some question of law of unusual difficultly is likely to arise.
(d) Where it will be convenient to the parties or witnesses in the course of
justice.
(e) Where it appears that an Order for transfer is expedient for the ends of
justice.
2.4 PART-HEARD CASES

One of the greatest problems in our criminal justice system is the time it takes
to decide the case either with an acquittal or conviction.
This problem has also extended to administration of justice and the
different magistrates involved in the particular cases have had to abandon cases
halfway to take transfers to different stations or go for further studies.
In such situations, there has developed a practice which is not supported by
any legal provision through which the outgoing Magistrate retains the file and
continues with the case at convenient times to dispose of the case. This is
supported by the fact that it is desirable that the same Magistrate should
continue with the trial of a case until its conclusion having observed the
demeanour of witnesses.
However, the law makes provision for such situations that allows another
Magistrate to take over a case which is part heard.
Whenever any Magistrate, after having heard and recorded the whole or
any part of the evidence in a trial, ceases to exercise jurisdiction in the trial
and is succeeded, whether by virtue of an order of transfer under this Act or
otherwise, by another Magistrate who has and who exercises such jurisdiction,
the Magistrate so succeeding may act on the evidence so recorded by his or
her predecessor or partly recorded by his or her predecessor and partly by
himself or herself, or he or she may re-summon the witnesses and
recommence the trial except that:
(a) in any trial the accused may, when the second Magistrate commences his
or her proceedings, demand that the witnesses or any of them be re-
summoned and reheard.
(b) The High Court may, whether there is an appeal or not, set aside any
conviction passed on evidence not wholly recorded by the Magistrate
before whom the conviction was held, if it is of the opinion that the
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accused has been materially prejudiced by that evidence, and may order a
new inquiry or trial.55
The successor Magistrate should have jurisdiction to continue with a particular
case and need not be of the same grade as the predecessor Magistrate.56
Therefore a Magistrate grade I can take a case partly heard by a Magistrate
grade II.
The position is different where, for example, the transfer occurs when
Judgment is already delivered but sentence not passed. The successor
Magistrate can proceed to pass any sentence and make any other Orders
he/she may deem necessary.57
However, it must be already understood that jurisdiction is conferred on
the successor Magistrate only after judgment is delivered by the outgoing
magistrate. Before that, he/she has no jurisdiction to take cognizance of a
signed but undelivered judgment of his/her predecessor.
In the case of Uganda v Yusufu Asii58 where judgment was written and
signed by a Magistrate but delivered and sentence passed by his successor,
Russel, Ag. J quashed the sentence of 24 months imprisonment, saying the
irregularity was so grave that the judgment was a nullity.
When a new legislation vests jurisdiction or takes away jurisdiction of a
Court regard should be made to those cases which are part heard.
A case in point is the Magistrates Court (Amendment, Decree 1978
Number 18 of 1978) the Amendment allowed Chief Magistrate to retain the
jurisdiction to try part heard cases pending before them and specifically those
59
in which evidence had commenced to be taken. In as much as the law allows
a Magistrate to continue with a part heard case, there is no similar provision
under the Trial on Indictments Act which applies to trial in the High Court.
The High Court when faced with this problem the successor trial Judge
has this to say:
“Though the Trial on Indictment Decree had no provision analogous to that
contained in the MCA, it nevertheless did not expressly prohibit a Judge of the
Court from starting hearing a part heard case from where it was left by a previous
Judge who had since ceased to have jurisdiction, the legislation was merely silent
on the matter.
55 Section 144(1) Magistrates Courts Act.

56 Uganda v Stubi Juma [1983] HCB 14.
58 [1973] HCB 98.
59 Jackson Ajayi v Uganda [1979] HCB 11.
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This did not mean that the legislature intended to deny judges of the Court
that power as such intention would have been expressly spelt out in the
legislation. The crucial question for consideration in such a case was whether an
accused would be or was likely to be materially prejudiced. Each case would have
to be treated on its own facts60 …”
Even though the Court circumvented the lacuna in the legislation, the
reasoning was highly wanting in addressing this gap in the law for a simple
reason that the Magistrates Courts Act was not intended to legislate for trials
in the High Court. The MCA was enacted first and the T.I.A was enacted
after seven months later. The trial Judge should have referred to the T.I.A
rather than refer to a legislation which is not applicable to trials in the High
Court.
The East African Court of Appeal faced with a similar problem resolved
the issue by finding that’ section 196 is limited to proceedings in subordinate
Courts and the continued trial was nullity61. In this case, the appellant was
convicted by a Judge who took over the conduct of the case from another
Judge after the close of the prosecution case.
It is submitted that this grave lacuna should be addressed by way of an
Amendment to incorporate section 144 of the Magistrates Courts Act into the
Trial on Indictments Act.
2.5 DIPLOMATIC IMMUNITY

Diplomatic Immunity is a form of legal immunity and policy between
governments, which ensures that diplomats are given a safe passage and are
considered not susceptible to law suit or prosecution under the host country’s
laws.
Diplomatic Immunity as an institution developed to allow for the
maintenance of government relations, during periods of difficulties and even
armed conflict.
However, the Vienna Convention is explicit that “without prejudice to
their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the receiving
state.
The effect of the immunity is to take away the jurisdiction of court in
criminal matters on certain persons (diplomats) who are in that country and
60 Uganda v No UD 15876 Sgt James Wanyama and another [1987] HCB 15.
61 Furugence v Republic [1972] EA 161.
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Jurisdiction 19
may have committed an offence. This easily affects the government

enforcement agencies in execution of their duties of ensuring law and order.
So why do we agree to a system in which we are dependent on a foreign
country’s whim before we can prosecute a criminal in our borders? The
practical answer is that because we depend on other countries to honour our
diplomat’s immunity just as scrupulously as we honour theirs.
Formally, diplomatic immunity may be limited to officials accredited to a
host country, or traveling to or from their host country. In practice, many
countries may effectively recognize immunity for those traveling on
diplomatic passports, with admittance to the country constituting acceptance
of diplomatic status.
Nevertheless, in some occasions diplomatic immunity leads to some
fortunate results. Protected diplomats have violated laws of the host country
and that country has been essentially limited to informing the diplomat’s
nation that the diplomat is no longer welcome by declaring him or her persona
non grata.
However, the diplomat is still covered by the laws of his/her home
country, and may be prosecuted under those laws for any crimes he/she
62
commits in the host country. Moreover, the privileges of immunity belong
to the home country and not the individual diplomat.63
The home country may choose to waive immunity for one of its
64
diplomats, leaving him/her open to prosecution by the host country.
Diplomatic Immunity is not an impenetrable shield against the laws of the
land, but more of a courtesy extended to diplomats who cannot afford to be
held up by minor offences or misdemeanours.
Similarly, not every foreign officials or staff member of a consulate or
mission is entitled to full diplomatic immunity.
A recognised foreign diplomat and his or her immediate family enjoy the
most protection through immunity.
Administrators and technical personnel attached to a foreign diplomat are
also protected very well under diplomatic immunity, but service staff members
have no legal protection except when it comes to their performance of official
duties.
62 Article 31(4) Diplomatic Privileges Act (Vienna Convention).

63 Paragraph 4 of the Preamble to Vienna Convention, under Diplomatic Privileges Act.
64 Article 32 ibid.
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The situation changes at the consulate level; unlike the diplomatic corps,
officers and staff assigned to consulates have very little or few protections
under the rules of diplomatic immunity.
In sum, while the concept of diplomatic immunity might appear ripe for
widespread abuse, most diplomats understand and respect the laws of the
countries they visit. But if they committed such crimes of serious nature,
home countries may waive immunity or the host country may declare the
offender persona non grata. Anyone who abuses the privileges of diplomatic
immunity can be recalled by their country’s government and prosecuted
under their system of justice.
Therefore, such diplomats cannot act with virtual impunity.
2.6 PRESIDENTIAL IMMUNITY

The Constitution ousts the jurisdiction of court in respect of the person of the
president.
“While holding office, the president shall not be liable to proceedings in any
65
court.”
Civil or Criminal Proceedings may be instituted against a person after ceasing
to be president, in respect of anything done or omitted to be done in his or
her personal capacity before or during the term of office of that person, and
any period of limitation in respect of any such proceedings shall not be taken
66
to run during the period while that person was president.
The rationale for the grant to the president of the privilege of immunity
from suits is to assure the exercise of presidential duties and functions free
from hindrance or distraction, considering that being the Chief Executive of
the government is a job that, aside from requiring all the office holder’s time,
also demands undivided attention.
Some commentators have taken a view that the successful conduct of the
office of the presidency required immunity from criminal sanctions for official
acts.
The question then becomes whether or not a president who may freely
operate above the law was envisioned and desired by the framers of the
Constitution, and whether this circumstance does not operate to the
detriment of the nation and rule of law.
65 Article 98(4) Constitution, the ICC Bill/Act was passed and it seems questionable whether a sitting
President can stand trial.
66 Article 98(5) Ibid.
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Jurisdiction 21
Should the president be put above the Constitution or laws and on a

higher plane of justice than every other individual in the country?
Supposing we had a president who does or commits a heinous act and
shoots and kills 50 people personally at a rally witnessed by the public, should
such immunity be upheld?
When will justice be met, if the Constitution does not have term limits
and such president holds onto power for fear of prosecution? Can’t such
immunity be lifted by the constitutional court through interpretation of the
entire document?
Did the presidential immunity envisage a Constitution without term limits?
Should the nature and gravity of the crime have to be so severe as to
compel the entire nation to condemn the President?
It is submitted that the removal of term limits from the Constitution of
Uganda then created absolute immunity which is incompatible with the rule
of law and that the very essence of rule of law is that no one is above the law.
Therefore, the immunity should be limited to the minimum level required
in the performance of official duties and for acts which are not criminal in
nature.
Absolute immunity of the President therefore results in legitimating illegal
and unconstitutional acts.
Immunity should extend only to acts in performance of particular functions
of his/her office because immunities are grounded in the nature of the
67
function performed, not the identity of the act or who performed it.
Privilege of immunity from suit pertains to the President by virtue of the
office and may be invoked only by the holder of the office and not by any
other person in the president’s behalf.
Thus an accused in a criminal case in which the president is a complainant
cannot raise the presidential privilege as a defence to prevent the case from
proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the president
from waiving the privilege. Thus, if so minded the president may shed the
protection afforded by the privilege and submit to the court’s jurisdiction.
67 Clinton v Jones 1997 US.

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The choice of whether to exercise the privilege or to waive it is solely the

president’s prerogative. It is a decision that cannot be assumed and imposed by
any other person.
Any claim of presumptive privilege must be considered in light of our
historic commitment to the rule of the law.68
2.7 INHERENT JURISDICTION

The different legislations regulating criminal procedure in Uganda have tried
to be exhaustive and complete in every respect; the law has succeeded in this
attempt. However, if the court finds that the law has not made specific
provision to meet the exigencies of any situation, the court has inherent
power to mould the procedure to enable it pass such orders as the ends of
justice may require. It should be noted that the subordinate courts do not have
any inherent power.69
The Court of Appeal rules have provided for the inherent power of Court
of Appeal and High Court. Nothing in these Rules shall be taken to limit or
otherwise affect the inherent power of the court, or the High Court, to make
such orders as may be necessary for attaining the ends of justice or to prevent
abuse of the process of any such court, and that power shall extend to setting
aside Judgments which have been passed and shall be exercised to prevent
abuse of the process of any court caused by delay.70
In addition, the Supreme Court Rules have equally provided for the
inherent powers of Supreme Court and Court of Appeal. Nothing in these
rules shall be taken to limit or otherwise affect the inherent power of the
court, and the Court of Appeal, to make such orders as may be necessary for
achieving the ends of justice or to prevent abuse of the process of any such
court, and that power shall extend to setting aside Judgments which have been
null and void after they have been passed, and shall be exercised to prevent an
71
abuse of the process any court caused by delay.
With regard to its own procedures and those of the Magistrates courts, the
High Court shall exercise its inherent powers to prevent abuse of the process
of the court by curtailing delays, including the power to limit and stay delayed
prosecutions as may be necessary for achieving the end of justice.72
68 United States v Nixon 418 US 638 (1974).

69 However see section 9 Magistrates Courts Act.
70 Rule 2(2) The Judicature (Court of Appeal Rules) Directions.
71 Rule 2(2) The Judicature (Supreme Court Rules) Directions.
72 Section 17(2) judicature Act Chapter 13.
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Jurisdiction 23
These provisions of the law make it clear that the other provision of
criminal procedure are not intended to limit or affect the inherent powers of
the High Court, Court of Appeal and Supreme Court.
Obviously, the inherent power can be exercised only for either of the
purposes specifically mentioned in the rules. This inherent power cannot
naturally be invoked in respect of any matter covered by the specific provision
of any criminal procedure laws. It cannot also be invoked, if its exercise would
be inconsistent with any specific provisions of the criminal procedure laws. It
is only if the matter in question is not covered by any specific provision of the
criminal procedure laws that the inherent power can come into operation.
In prescribing rules of procedure legislature and Rules Committee attempt
to provide for all cases that are likely to arise; but it is not possible that any
legislative enactment dealing with procedure, however carefully it may be
drafted, would succeed in providing for all cases that may possibly arise in
future. Lacunae are sometimes discovered in procedural law and it is to cover
such lacunae and to deal with cases where such lacunae are discovered that
procedural law invariably recognises the existence of inherent power in courts.
“Inherent jurisdiction” “to prevent abuse of process” “to secure ends of
justice” are terms incapable of definition or enumeration and capable at the
most of rest, according to well established principles of criminal jurisprudence.
“Process” is a general word meaning in effect anything done by the court.
The framers of criminal procedure laws could not have provided which cases
should be covered as abuse of the process of court. It is for the court to take a
decision in particular cases.
The inherent power contemplated under the rules has to be exercised
sparingly, carefully and with caution and only where such exercise is justified
by the tests specifically laid down in the rules themselves.
Ordinary criminal proceedings instituted against an accused person must be
tried under the given provisions of criminal procedure and the High Court,
Court of Appeal or Supreme Court would be reluctant to interfere with the
said proceedings at an interlocutory stage.73 It is not possible, desirable or
expedient to lay down any inflexible rule which would govern the exercise of
this inherent jurisdiction. However, we may indicate some categories of cases
where the inherent jurisdiction can and should be exercised for quashing the
proceedings.
73 Twagira v Uganda [2003] 2 EA 689 (SCU) See also Twagira v Uganda Supreme Court Criminal
Appeal Number 27 of 2003 decided on 2 August 2005 confirming the decision of a single Supreme
Court Justice by a full bench.
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There may be cases where it may be possible for the High Court, Court of
Appeal or Supreme Court to take the view that proceedings against an
accused may amount to the abuse of the process of court or that quashing of
impugned proceedings would secure the ends of justice.
If the criminal proceedings in question is in respect of an offence alleged to
have been committed by an accused person and it manifestly appears that
there is a legal bar against institution or continuance of the said proceedings
the High Court would be justified in quashing the proceedings on that
ground.
A case may also arise where the allegations in the first information report
or the complaint, even if they are taken at their face value and accepted in
their entirety, do not constitute an offence alleged, in such cases no question
of appreciating evidence arises; it is a matter merely of looking at the
complaint or the first information report to decide whether the offence alleged
is disclosed or not. In such cases it would be legitimate for the High Court to
hold that it would be manifestly unjust to allow the process of the criminal
court to be issued against the accused person.
In addition, there may be other cases where the inherent jurisdiction of
court may be invoked. In cases falling under this category the allegations made
against the accused person do constitute an offence alleged but there is either
no legal evidence adduced in support of the case or evidence adduced clearly
and manifestly fails to prove the charge.
In dealing with this class of cases it is important to bear in mind the
distinction between a case where there is legal evidence or where there is
evidence which is manifestly and clearly inconsistent with accusation made
and cases where there is legal evidence which on its appreciation may or may
not support the accusation in question.
In exercising its inherent jurisdiction, the High Court would not embark
upon an inquiry as to whether the evidence in question is reliable or not. That
is the function of the trial magistrate and ordinarily it would not be open to
any party to invoke the High Court’s inherent jurisdiction and contend that a
reasonable appreciation of the evidence the accusation made against the
accused would not be sustained.
Broadly stated that is the nature and scope of the inherent jurisdiction of
the courts.
It is the inadequacy inherent in the criminal procedure laws which fails to
provide for all contingencies which has called for the creation of and saving
the inherent power of the High Court, Court of Appeal and Supreme Court
to act ex debito justitiae. The same also explains why the inherent power is not
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Jurisdiction 25
exercised in matters specially covered by the criminal procedure laws

generally.
The High Court can in the exercise of its inherent jurisdiction expunge
remarks made by it or by a lower court in respect of any conduct of a person
or official if it be necessary to do so to prevent abuse of the process of the
court or otherwise to secure the ends of justice; the jurisdiction is however of
74
an exceptional nature and has to be exercised in exceptional case only.
In considering the expunction of disparaging remarks against persons or
authorities the High Court will take into account:
(i) Whether the party whose conduct is in question is before the court or has
an opportunity of explaining or defending himself/herself;
(ii) Whether there is evidence on record bearing on that conduct justifying the
remarks; and
(iii) Whether it is necessary for the decision of the case, as an integral part
thereof; to animadvert on that conduct.
The Rajasthan High Court ruled that an order made in absence of a party
without hearing him, when such order has been passed on merits and
adversely affecting his rights could be recalled in exercise of inherent powers
under section 482. However, the question in each case would be as to
whether such a principle applies to the facts of a given case or not.75
74 State of UP v Mohd Naim Air 1964 Sc 703 State of Maharashtra v Ramesh Narayan Patil 1991 Supp 2
Scc 704 (1992 Scc (cri) 149) 1991 Cri L J 2187
75 Enforcement Inspector, Civil Supplies Dept V Vimal Kumar 1999 Cri LJ 1521 (Raj. HC) as cited
in R.v Kelkar’s Criminal Procedure (4 ed) revised by Dr. K.N Chandrase Kharar Pillai 2005.
CHAPTER THREE
EXTRADITION
3.1 INTRODUCTION
Extradition is the official process by which one nation or state requests and
obtains from another nation or state the surrender of a suspected or convicted
criminal.
Similarly, extradition involves the surrender of a person by a state to
another state or in some cases, to an international organisation to allow for
trial of that person by the receiving state or organization.
The consensus in International law is that a state does not have any
obligation to surrender an alleged criminal to a foreign state, as one principle
of sovereignty is that every state has legal authority over the people within its
borders.
3.2 JUSTIFICATION FOR EXTRADITION

The historical background to this principle is that friendly countries started to
enter treaties with each other and eventually the network was so large that the
common partners to these extradition treaties standardized its terms to an
international “Multilateral” agreement or convention.
Uganda needs to ensure that criminals cannot evade justice by simply
crossing borders.
This requires a responsive, streamlined extradition system that effectively
combats domestic and transnational crime including currently terrorism with
appropriate safeguards. Uganda’s extradition relationship with other countries
exists to enable Uganda to ensure that effective administration of criminal
justice in this country.
Uganda’s extradition relationships also enable us to fight crime and prevent
Uganda from becoming a refugee and safe haven for persons accused of
serious crime in other countries.
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3.3 LEGAL BASIS

1
The Extradition Act provides Uganda’s legislative basis for extradition. It sets
out a number of mandatory requirements which must be met before Uganda
can make or accept an extradition request.
Those requirements may be supplemented by requirements contained in a
Multilateral or Bilateral Extradition Treaty.
It is worth nothing that in 1990, the United Nations drew up a model
extradition treaty providing framework to assist those member states wishing
to negotiate and conclude bilateral extradition agreements.
The absence of an international obligation to surrender criminals and desire
of the right to demand such criminals of other countries has caused a web of
extradition treaties or agreements to evolve; most countries have signed
bilateral extradition with most other countries.
Generally, an extradition treaty requires that a country seeking extradition
be able to show that:
(a) The relevant crime is sufficiently serious and not of a political nature.
(b) There exists a prima facie case against the individual sought.
(c) The event/act in question qualifies as a crime in both countries
(d) The extradited person can reasonably expect a fair trial in the recipient
country
(e) The likely penalty will be proportionate to the crime.
Many countries such as Canada and European Union Australia will not allow
extradition if the death penalty will be imposed on the suspect unless they are
assured that the death sentence will not subsequently be passed or carried out.
Whenever an extradition treaty is entered into the details as to the
procedure of extradition are provided in the Extradition Act.
It is important to note that usually extradition operates between states
which have reciprocal arrangements either by treaty or other legislation.
However, this may differ with some countries which are super powers
which may demand surrender of criminals even though there is no reciprocal
2
arrangement such as USA.
1 Chapter 117 Laws of Uganda.

2 The case of Van Brink who was taken (abducted) from Uganda by force or abducted in 2006/7.
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Extradiction 29
Uganda adopted the treaties entered into with other countries by the
United Kingdom on its behalf before it attained independence.
Accordingly, a country to which part I of the Fugitive Offences Act. 1881
of the United Kingdom applied will be a country to which part I of the
Uganda Extradition Act applies3 to a list of such countries:- as set out in the
4
statutory instrument include Argentina, Belgium, Bolivia, Chile, Colombia,
Cuba Czechoslovakia, Ecuador, El Salvador, Finland, France, Germany,
Greece, Guatemala, Haiti, Hungary, Iraq, Israel, Italy, Liberia, Luxembourg,
Monaco, Netherlands, Panama, Paraguay, Peru, Poland, Romania, San
Marino, Spain, Switzerland, USA, Uruguay and Yugoslavia.
The countries to which Part II of the Act are Kenya and Tanzania5.What
should be noted however is the fact that Uganda’s partners in extradition were
all made between 1889 and 1932 before we attached independence. None of
our governments since independence have executed any extradition treaties
with any other county.
Similarly it should be noted that none of the countries to which Part I
applies borders Uganda very often fugitive offenders from Uganda have run
into Sudan, Democratic Republic of Congo and Rwanda.
However, recently in 2002, the government of Uganda had signed an
agreement with Rwanda, which is similar to a treaty that allows surrender of
fugitive offender between the countries. This has been done crudely outside
the legal provisions and it is not part of Extradition process since the two
governments only arrest such persons and hand them over at the border which
is done unfairly without a due process of law to prove that they are not
political criminals seeking refugee from political persecution.
In addition, Uganda is able to make an extradition to any country and
Uganda’s treaty partners have an obligation to consider Uganda’s requests.
In absence of a treaty, it is a matter for the domestic law in the foreign
country to determine whether the country can agree to Uganda’s extradition
request.
3 Section4 Extradition Act Chapter 117.

4 SI Extradition (Arrangements) (Enforcement) Instrument SI 117-1.
5 The Extradition (Reciprocal Backing of Warrants) Instrument S. 117-2.
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3.4 PROCEDURE FOR ENDORSEMENT OF WARRANT

A requisition for the endorsement of a warrant shall be made in the first
instance by a diplomatic representative, consular officer or other appropriate
authority of the country concerned to the minister who may transmit it to a
Magistrate.6
Where in a country to which there is an extradition arrangement applies, a
warrant has been issued for the apprehension of a person accused of an offence
punishable by law in that country and he or she is or suspected of being in or
on the way to Uganda, a Magistrate, if satisfied that the warrant was issued by
a person having lawful authority to issue it, may endorse the warrant.7
Once a warrant is endorsed, it shall be sufficient authority to apprehend the
person named in the warrant and bring him or her before the endorsing
8
Magistrate.
However, under the Ugandan system a person is arrested immediately
without summoning him or her which is not the ordinary process.
Generally, requests for extradition in Uganda are usually only received
because another country wants to prosecute that person or to impose or
enforce a sentence already rendered against him or her through a proper trial.
Where the extradition is merely based on a warrant of arrest issued by
another country, it should be subject to a thorough scrutiny and the due
process of such a suspect in Uganda should not be disregarded.
There are some factors that support seeking an arrest of a person to be
extradited before a Magistrate issues a warrant of apprehension/arrest and
these includes:
(a) a basis to believe that the person may flee the jurisdiction or fail to appear
in court if no arrest is made;
(b) previous flight from other jurisdiction;
(c) attempt by the person to keep their presence in Uganda or abroad a secret;
(d) the ability to the possibility that the person will compromise or otherwise
adversely affect the proceedings or the investigation abroad for example; by
intimidating or harming witnesses or destroying physical evidence;
(e) the person’s involvement in crimes in Uganda;
(f) the existence of accomplices abroad or in Uganda;
6 Section 22 Extradition Act.

7 Section 17(1) ibid.
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Extradiction 31
(g) the existence of passports or assets in another jurisdiction;

(h) any other factor suggesting that arrest would be in the public interest.
3.5 RESTRICTIONS ON SURRENDER OF CRIMINALS

9
The Act sets out restrictions which shall be observed before a fugitive
criminal is surrendered.
(a) a fugitive criminal shall not be surrendered if the offence in respect of
which his or her surrender is demanded is one of a political character.
(b) a fugitive criminal shall not be surrendered to any country unless provision
is made by the law of that country, or by arrangement, that the fugitive
criminal shall not, unless he or she has been restored or had an opportunity
of returning to Uganda, be detained or tried in that country for any
offence committed prior to his or her surrender other than the extradition
crime proved by the facts on which the surrender is grounded.
A fugitive criminal who has been accused of some offence within the
jurisdiction of Uganda, not being the offence for which his or her surrender is
asked, or is undergoing sentence under any conviction in Uganda, shall not be
surrendered until after he or she has been discharged, whether by acquittal or
on the expiration of his or her sentence or otherwise.
A fugitive criminal shall not be surrendered until the expiration of fifteen
days from the date of his or her being committed to prison to await his or her
surrender.
3.6 PRINCIPLES OF EXTRADITION LAW

Since there are numerous provisions in legislation and extradition treaties
which deal with extradition, each case has to be considered individually and
according to applicable provisions.
The basic principles which are common to most extradition laws include:
3.6.1 Influence of Nationality

Many countries apply the principle of not extraditing their own nationals in
such cases, a state may undertake to place its nationals on trial under the
conditions laid down in its own laws, in application of the principle of
Auttradere(dedere) aut judicare (either extradite or judge).
9 Section 3 Extradition Act.

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3.6.2 Extradition Offence/Non Political Offence

It is an accepted principle of International extradition law that political
offences may not give rise to extradition. Since no precise definition of a
political offence exists in international law, it’s up to the requested country to
determine whether a given offence is political. Therefore in a bid to get a
clear definition of political offence, certain circumstances which surrounded
the commission of the offence give it a specifically political character.
In a case of more complex offences (offences which are ordinary law crime
by nature but inspired by political motives), the current tendency is to restrict
the definition of a political offence and to allow extradition.
Similarly, whereas earlier treaties contained lists of extraditable offence,
more recent treaties define extraditable offences in general terms, according to
their gravity and penalty which may be incurred.
Acts of a particularly heinous character such as acts of terrorism, genocide,
torture, taking hostages should not be considered political crimes.
Courts have tried to define an offence of a political character as this can as
10
well be a guiding factor. In order to constitute an offence of a political
character, there must be two parties in a state; one struggling to impose a
government on its own over the other and the offence must have been
committed in pursuance of that objective11. Therefore whatever the reason for
committing an offence, it must be proved that it was politically motivated in
order to bring it within the meaning of the Act.
3.6.3 Double Criminality

According to this principle, extraditable offences are only those which are
punishable offences in the requesting country, and would have been
punishable in the requested country if committed there.
By extension this principle, extradition may be refused if the time limit for
prosecution in the requested state has expired.
In sum therefore, no offence is extraditable unless it is criminal in both
jurisdictions. However, it is important to note that this principle as a ground
of extradition is gradually being rendered irrelevant.
10 Re. Castion [1894] 1 QB 149.

11 Re Meunier [1895] 2 QB 415 see also R v Governor of Brixton Prison ex-parte Kolezynki [1955] WLR
116, R v Governor of Broxton ex-parte Gardener [1968] 1 All ER 636.
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Extradiction 33
3.6.4 Non bis in idem/Double Jeopardy

In application of this principle, extradition must be refused if the individual
whose extradition is required has already been tried for the same offence. The
Constitution of Uganda clearly provides:12
“A person who shows that he or she has been tried by a competent court for a
criminal offence and convicted or acquitted of that offence shall not be tried again
for the offence or for any other criminal offence of which he or she could have
been convicted at the trial for that offence …”
Similarly, a person shall not be tried for a criminal offence if the person shows
that he or she has been pardoned in respect of that offence.13
However, if the individual has been pardoned, he or she may under the
terms of some recent extradition treaties be tried again.
There is a possibility of double prosecution due to different labels or
definition of a particular transaction used in different states for the alleged act.
This was illustrated in the case of Yusuf Katana and Edward Kamulegeya v
14
Uganda where an application for a writ of habeas corpus under the Extradition
Act. The applicants were detained in prison facing a charge of receiving
property stolen outside Uganda contrary to section 301 of the Penal Code. An
extradition Order was made against them to face trial in Kenya on the charges
of theft of a motor vehicle or handling the same property in respect of which
the Ugandan was preferred.
The court held that, whereas section 298(i) of the Penal Code deals with
cases of receiving or retaining stolen property, where the offence has been
committed within Uganda, section 301 of the Penal Code deals with the same
offences which are committed outside Uganda. It is therefore not possible to
convict a person of an offence contrary to section 301 of the Penal Code,
when the same person has been convicted of an offence under section 298(i)
of the Penal Code in respect of property since both the facts and subject
matter of receiving or retaining are the same.
The learned Judge (Ntabgoba Ag. J) as he then was, went on to hold that;
since in the instant case, the accused were sought to be extradited to face the
charge of holding stolen property with which the accused were charged in
Uganda, the stand as to the extradition offence was the same as that with
which the accused were charged in Uganda. The application was dismissed.
12 Article 28(9) Constitution 1995.

14 [1979] HCB 36.
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3.6.5 Specificity
The person against whom extradition has been requested may only be
prosecuted, tried or detained for those offences which provide grounds for
extradition and those committed subsequent to extradition. If an individual
has been extradited in application of a Judgment, only the penalty imposed by
the decision for which extradition was granted may be enforced.
This principle limits prosecution in the requesting country to those
extraditable offence established by the facts which extradition has been granted
by the asylum country, an explicit finding must be made regarding-
extraditability of each charge.
The principle further means that an individual may only be tried for the
offences cited in the extradition request, on the basis of the definition of the
offences applicable at that time.
If the requesting state, discovers, subsequent to extradition, that offences
had been committed prior to that date and those offences should give rise to
prosecution, it may ask the requested state for authorization to prosecute the
extradited person for the new offences (this constitutes a request for extension
of extradition).
N.B Extradition presupposes that the individual is to be prosecuted, if he is
merely wanted to give evidence as a witness, the matter must be settled by a
letter of rogatory and not by extradition.
3.7 REFUSAL TO EXTRADITE

The Minister may have discretion not to hand over the person
notwithstanding the result of the extradition hearing based on some of the
following grounds:
(a) Where the surrender would be unjust or oppressive having regard to all
the relevant circumstances.
(b) Where the request for extradition is made for the purposes of prosecution
or punishing the person by reason of their race, religion, nationality, ethnic
origin, language, colour, political opinion, sex, age, mental and physical
disability or status or that person’s position may be prejudiced for any of
those reasons.
(c) Where the person would be entitled, if that person were tried in Uganda,
to be discharged under the laws of Uganda because of the previous
acquittal or conviction.
(d) Where the person was convicted in their absence and could not, on
surrender, have the case reviewed.
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Extradiction 35
(e) Where the person was less than 18 years at the time of the offence.
(f) Where the conduct in respect of which the request for extradition is made
is the subject of criminal proceedings in Uganda against the person.
(g) Where none of the conduct on which the extradition partner bases its
request occurred in the territory over which the extradition partner has
jurisdiction.
15
In the case of Kunga v Republic, the appellant appealed to the High Court
from an order of a Resident Magistrate ordering him to be returned to
Uganda for trial before the Chief magistrate, Gulu, on a charge of stealing by a
person in the public service.
The grounds of appeal were that the Magistrate had nothing before him to
show that there was any sufficient evidence against him, that whether the
charge was serious or trial was not shown that the punishment for the offence
was possible death and that the appellant was unlikely to have a fair trial in
Uganda. The court held that:
1. The court will interfere if there was no evidence on which the Magistrate
could commit.
2. The court will not consider whether the evidence is sufficient.
3. There was no evidence that the appellant would not have a fair trial in
Uganda.
4. The question whether the penalty the offence was death had not been
before the Magistrate and Magistrate would be ordered to consider it.
3.8 PROBLEMS RELATED TO EXTRADITION

The refusal for a country to extradite suspects or criminals to another country
may lead to international relations being strained.
The matters are often complex when the country from which suspects are
to be extradited is a democratic country with a rule of law.
In case where there is a well-founded fear of the violation of the
fundamental human rights of an accused in the territory of the requesting
state, extradition may be refused, whosoever the individual whose extradition
is requested and whatever the nature of the offence of which he is attached.
15 [1975] EA 151.
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3.9 EXTRADITION AND ABDUCTION

Issues of International law relating to extradition have proven controversial in
cases where a state has abducted and removed an individual from the territory
of another state without previously requesting permission or following normal
extradition procedures. Such abductions are usually in violation of the
domestic law of the country in which they occur, as infringements of laws
forbidding kidnapping.
A small number of countries have resorted to use kidnapping /abduction
to circumvent the formal extradition process.
3.10 EXTRADITION AND OTHER MODELS OF SURRENDER

A distinction should be drawn between extradition and:
(a) deportation, which takes place for reasons (often administrative) which are
specific;
(b) refusing a person entry into a country at the border;
(c) repatriation, which does not come within the scope of a penal procedure,
(d) transfer, which is a notion deriving from the statute of the International
Tribunal set up for the prosecution of persons responsible for serious
violations of international humanitarian law committed in the country
which was at war or genocide. This involves transferring to the tribunal a
person who was initially being tried by a national court, in an application
of the principle of the primacy of the tribunal over national courts for the
prosecution of crimes for which it is competent.
(e) Surrender as understood by the European Union within the framework of
the European arrest warrant, which is intended to abolish formal
extradition procedures by accepting the principle of mutual recognition of
judicial decisions.
3.11 DEPORTATION
This should not be confused with extradition; it generally means the expulsion
of someone from a place or country. The term now refers exclusively to the
expulsion of foreigners and the expulsion of natives is usually called
banishment or exile.
Deportation is reserved for foreigners who commit serious crimes, enter
the country illegally, overstay their visa or face trial by another country. It can
also be used on non-criminal visitors and foreign residents who are considered
to be a threat to the country.
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Extradiction 37
Deportation is generally done directly by the government’s executive

apparatus rather than by order or authority of a court, and as such is often
subject to simple legal process (or non), with reduced or no right to trial, legal
representation or appeal save for judicial review.
Deportation often requires a specific process that must be validated by a
16
court or minister.
The deportation order may be set aside if it is made without according the
deportees a right to be heard. A decision arrived at in breach of the Audi
Alteram Partem rule is void absolutely and of no consequence at all. The
deportation orders were thus void and of no consequence.17
3.12 POLITICAL ASYLUM

The UN 1951 Convention relating to the status of refugees and the 1967
protocol relating to the status of refugees guides national legislation
concerning political asylum.
Under these agreements, a refugee is a person who is outside his or her
nationality’s environment who, owing to fear or persecution against his or her
account of a protected grounds based by the prosecuting state fundamental
terms and conditions as a member of that state and is unable or unwilling to
avail or grant himself or herself to or of the protection of his or her state.
The criteria of the protected grounds of one’s own states accounts include
race, nationality, religion, political opinion and membership and/or
participation in any particular social group or social activities.
3.13 EXTRA TERRITORIAL JURISDICTION

This is the legal ability of a government to exercise authority beyond its
boundaries.
Any authority can claim extra territorial jurisdiction over any external
territory they wish. But for the claim to be effective in practice (except by the
exercise of force), it must be agreed by either the legal authority in the
external territory, or with a legal authority which covers both territories.
For example, the United States has Status Forces Agreement which give it
jurisdiction over members of its military.
16 Section 60 Uganda Citizenship and Immigration Control Act.

17 Arinze Emmanuel Chukuma Onuaha & another v the Commandant of Aviation Police Entebbe [2006]
HCB 154.
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Many countries have implemented laws which allow their nationals to be

prosecuted by their courts for crimes such as war crimes and genocide even
when the crime is committed extraterritorially.
For example, Uganda has incorporated the International Criminal Court
into domestic law under the International Criminal Court Act18 and it vests
jurisdiction in our national courts to try such heinous crimes against humanity.
The crime of genocide in domestic law and the domestic prosecution of
persons committing genocide are subjects of international significance.
Correspondingly, the failure of nations to enact laws against genocide, crimes
against humanity and war crimes are matter of international concern.
For example in April 1999 a Swiss Court threw out the charge of genocide
in the trial of a former Rwandan Mayor (Fulgence Niyonteza) because the
crime of genocide was not at time part of the Swiss law.
So the crime of genocide and other related offences of crimes against
humanity, torture need to have extraterritorial jurisdiction so that people that
commit such crimes cannot find protection in any country.
3.14 UNIVERSAL JURISDICTION

Universal jurisdiction or Universality principle is a controversial principle of
international law whereby states claim criminal jurisdiction over persons
whose alleged crimes were committed outside the boundaries of the
prosecuting state, regardless of nationality, country of residence or any other
relation with the prosecuting country.
The country backs its claim on the grounds that the crime committed is
considered a crime against all, which any state is authorised to punish.
The concept of universal jurisdiction is therefore closely linked to the idea
that certain international norms are erga omnes, or owed to the entire world
community, as well as the concept of jus cogens – that certain international law
obligations are binding on all states and cannot be modified by treaty.
Certain crimes pose so serious a threat to the international community as a
whole, that states have a logical and moral duty to prosecute an individual
responsible for it; no place should be a safe haven for those who have
committed genocide crimes against humanity, extra judicial killings,
executions ,war crimes, torture and forced disappearance.
18 This bill was passed into law by the Parliament on 10-03-2010 but the president is yet to assent to
it.
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Extradiction 39
However, this jurisdiction is criticized for being a breach on each country’s

sovereignty and yet all states are equal in sovereign, as affirmed by the UN
Charter, no state has authority to try a crime, no matter how heinous, in
another state’s jurisdiction, if it has no sovereign interest in the matter.
Countries can also exercise jurisdiction on crimes committed by their
nationals abroad even if the act the national committed was not illegal under
the law of the territory in which an act has been committed.
States can also in certain circumstances exercise jurisdiction over acts
committed by foreign nationals on foreign territory.
A country can exercise jurisdiction over acts which affect the fundamental
interests of the state such as spying, even if the act was committed by foreign
nationals on foreign territory. For example, Belgium in 2007, four Rwandan
citizens were convicted and given sentences from 12 to 20 years for their role
in genocide in Rwanda in 1994.
Similarly, in 2005 September, Chad’s dictator, Hissene Habre was indicted
for crimes against humanity, torture and other human rights violations by a
Belgian court.
However, Belgium was criticized by countries like United States of
America after it was flooded with cases across the whole world and
accordingly they have back tracked in respect of most cases.
3.15 INTERNATIONAL TRIBUNALS

Examples of such international tribunals include: International Criminal Court
(2002) International Criminal Tribunal for Rwanda (1994) International
Criminal Tribunal for the former Yugoslavia (1993). Special Court for Sierra
Leone.
In these cases criminal jurisdiction is exercised by an international
organisation not by a state.
The legal jurisdiction of an international tribunal is dependent on powers
granted to it by states which established it i.e. the International Criminal
Court was established in the Hague as an International tribunal empowered
with the right to prosecute state-members’ citizens for genocide, crimes
against humanity and war crimes.
CHAPTER FOUR
CONSTITUTIONAL CRIMINAL PROCEDURE
4.1 INTRODUCTION
The law of procedure is an important indicator of the type and character of a
legal system. Criminal procedure entails the methods that the government uses
to detect, investigate, apprehend, prosecute, convict and punish criminals. The
procedure is also understood broadly as all the rules governing proceedings
with which the substantive criminal law is enforced.
Procedural protections for accused persons, as constitutional right, are a
measure of the extent to which the country places itself under the restraint of
law and limits the arbitrary power which it could wield against the individual.
It is procedure that spells much of the difference between rule by law and rule
by whim and caprice. Procedural justice, while it does not ensure substantive
justice, it is sine qua non, and in promoting substantive justice. It at the same
time can be seen to promote efficiency in the administration of criminal
justice. Stead fast adherence to strict procedural safeguards is the main
assurance that there will be equal justice under the law.
The basis for Constitutional Criminal Procedure is noted in the Supremacy
clause which provides that:
This Constitution is the supreme law of Uganda and shall have binding force on
all authorities and persons throughout Uganda.1
In additional, there are other provisions in the Constitution which buttress the
2
principle Constitution Criminal Procedure like equal protection of the law,
3 4
protection of right to life , protection of personal liberty and majorly the
5
right to a fair hearing.
In the field of criminal procedure, the whole idea of equal protection is all
about process, not product, and its caught up in rather impersonal sets of rules
2 Article 21 ibid.
3 Article 22 supra.
4 Article 23 supra.
5 Article 28 supra.
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and tests involving not any grand balancing acts, but rather callous calculations
of competing needs and interest.
There is a similarity between equal protection and substantive due process
in the idea of more rigorous judicial security being necessary when significant
liberty issues are at stake, but this is really just a restatement of the principle of
objectivity.
The difference between equal protection and substantive due process is
that no substantive rights are created by the equal protection clause.
Equal protection does not mean that everybody must be treated alike. It
means that they cannot arrest, prosecute convict or punish people according
to unacceptable criteria, particularly, those based on political, economic, social
and cultural life.
Equal protection is the concept that requires the government to have a
natural and reasonable basis for putting forth such classifications between
people.
The general fair hearing Article in the bill of rights is followed by a
number of sub-articles provisions which are taken to constitute the elements
of a fair criminal hearing or trial. The question immediately posed is whether
the rights spelt out are exhaustive of the concept of a fair hearing.
The bill of rights impacts on the criminal justice system in four principle
ways:
1. The right to freedom of the person along with other fundamental rights,
dictate when and how a person may be deprived of freedom. These rights
also deal with the substance of criminal offences, placing limits on the
types of conduct which may be criminalised.
2. The right to privacy, along with right to freedom and security and the
right to human dignity, has a bearing on the investigation of crime.
3. The rights of arrested and detained persons regulate the process of
depriving persons of their freedom for the purpose of charging them with
criminal offence. The rights of accused persons deal with the fairness of the
criminal trial itself.
4. The right not to be subjected to cruel, inhuman or degrading treatment or
punishment deal with conditions under which a person may be detained or
imprisoned and prevents the state from using constitutionally unacceptable
forms of punishment.
In sum, the court while applying the Bill of Rights to the accused, must bear
in mind that it has a duty to society as a whole and that the right to a ‘fair trial’
embraces fairness not only to the accused but also to society as a whole.
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Constitutional Criminal Procedure 43
4.2 THE RIGHT TO A TRIAL WITHIN A REASONABLE TIME

The Constitution provides that:
“In determination of civil rights and obligations or any criminal charge, a person
shall be entitled to a fair, speedy and public hearing before an independent and
impartial court or tribunal established by law.6
The courts have inherent jurisdiction to prevent a trial which would be
7
oppressive because of unreasonable delay. However, it is argued that the
right to a speedy trial is vague and amorphous, as it is impossible to be precise
as to “how long is too long in a system where justice is supposed to be swift
but deliberate”.
While it is true that justice delayed is justice denied, it must also be true
8
that to rush justice is to deny justice. The right to a speedy trial promotes, as
do other rights, both the interests of the individual and of society, though;
these interests may be in opposition to each other, as in the tactical use of
delay by the defence.
9
In the case of Musoke v Uganda the court found that the Constitutional
right of the appellant to be brought to trial within a reasonable time or
released had been infringed. The court further noted that it is only in
complicated cases that could not be brought to trial within 6 months.
However, the tendency has been to make “within a reasonable time”
susceptible to one of the two meanings. The time elapsed between charge and
the commencement of the trial or the duration of the hearing from its
commencement to conclusion. The unreasonableness of delay, depends on the
circumstances of each case and weighing certain factors against each other.
The length of the delay is perhaps that of greatest difficulty as its weight
and impact vary with duration and because of its interaction with other factors
such as prejudice caused to the accused by the challenged delay itself. The
constitutional guarantee of a speedy trial places a duty on the state to expedite
and conclude criminal proceedings against accused persons.
Complexity of a case which permits great delay, itself illustrates the
interrelation of the length of delay with other factors, such as the prosecution’s
justification for delay.

7 Bell v D. P.P and A.G [1985] 2 All ER 585, 589.
8 Criminal Revision Number 47 of 1980 [1981] HCB 6.
9 [1972] EA 137.
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Ultimately, it can only be said that the greater the delay the more likely a
recognition of the presumptive prejudice which will trigger a weighing of the
other factors to determine whether the delay is unreasonable.
The trial court has powers to dismiss a case where it takes such
unreasonable time to commence with a hearing or trial. Court dismissed a case
in which the prosecutor had continuously appeared without the police file
saying it was at C.I.D. Headquarters and inquiries had been incomplete for
10
over six months.
Usually a reason given by the prosecutor to justify the delay is a
determinant factor as to whether there is a breach or not. Obviously,
deliberate delaying factors by the state weigh heavily for breach of the right
whilst a reason such as a missing witness could serve to create appropriate
delay.
The responsibility of the accused to assert his right is one of importance
and some difficulty. On one hand, an accused may, in the particular
circumstances of his or her case, be perceived as having seen an advantage in
delay and not protested against it. On the other hand, an accused is given an
affirmative right to a speedy trial, a right which must place an affirmative duty
on the state. This duty cannot be totally contingent on action taken to assert
the right and an accused’s earlier failure to do so should not be put in the
balance against his subsequent assertion of the right.
The issue that arises is whether the accused could be presumed to have
waived his or her right to speedy trial. The validity of any waiver is dependent
upon it being clear and unequivocal that the person is waiving the procedural
safeguard and is doing so with full knowledge of the rights procedure was
enacted to protect and of the effect the waiver will have on those rights.
Waiver is subject, as are all, other matters of procedure to over all surveillance
of the court and in addition the presumption against waiver of constitutional
rights is to be borne in mind.
The challenge to criminal proceedings on the ground of unconstitutional
delay, involves the raising, as a constitutional issue, of the ‘validity’ of
litigation already before the court.
Delays which occur before an accused is arrested or served with summons,
the courts stated, may indeed be more prejudicial to the accused than a delay
11
which occurs thereafter.
The right to a speedy trial seeks to protect three interests namely:
10 Uganda v RA 14839 Mawanda Stephen [1996] HCB 40.

11 Du Preez v A.G of the Eastern Cape 1993 (3) BCLR 329.
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(a) The right seeks to protect the security of the person by seeking to
minimize anxiety, concern and stigma of exposure to criminal proceedings.
(b) The right to liberty is protected by seeking to minimise exposure to the
restrictions on liberty which result from pre-trial incarceration and
restructure bail conditions.
(c) The right to a fair trial is protected by attempting to ensure that
proceedings take place while evidence is available and fresh.
Therefore, the right to a speedy trial protects both trial and non trial related
interest. The nature of the prejudice suffered by the accused is a factor to be
considered in determining whether the delay is unreasonable. The right to a
trial within a reasonable time should tend to compel the state to prioritise
cases in a rational way.
The nature of the case is also an important consideration. The degree of
complexity or simplicity must be determined with reference to all the
circumstances of the case, including the personal circumstances and nature of
the witnesses.
4.3 THE RIGHT TO BE PRESUMED INNOCENT UNTIL PROVED

GUILTY
The purpose of the presumption of innocence is to minimize the risk that
innocent persons may be convicted and imprisoned. It does so by imposing on
the prosecution a burden of proving the essential elements of the offence
charged beyond a reasonable doubt, thereby reducing to an accepted level the
risk of the error in courts overall assessment of evidence tendered in the
course of a trial.
This presumption is attributed as a Constitutional right under a fair trial
procedure to persons charged with a criminal offence in the bill of rights. The
constitutional issue raised by the article is the meaning and effect of provision,
the nature of the burden of proof which may be constitutionally imposed and
the standard of proof the accused has to meet.
Every person who is charged with a criminal offence shall be presumed to be
innocent until proved guilty or until that person has pleaded guilty.12
However, there are laws placing a burden on the accused/defendant and are
described as ‘reverse-onus clauses’ and occur in two forms. In one, the
defendant must bring himself within the ambit of some circumstance, usually
12 Article 28(3)(a).
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set out as an exception or provision occurring in the formulation of the

offence.
The other device for reversing the ordinary incidence of the burden of
proof is to create a presumption, or deem a certain conclusion, once certain
facts are proved. For example The Fire Arms Act provides that:13
In any prosecution under this Act the burden of proof that any accused person is
entitled to purchase, acquire or have in his or her possession any fire arm or
ammunition by virtue of any exemption shall lie on the accused person.
It appears, too, that in absence of one or other form of onus clause, a court
may so read a statutory provision creating an offence as to place the burden of
proof (or disproof) on an accused in certain legislation when it is established
for a specified purpose.
The reasons for the existence of reverse-onus clauses, a matter which
frequently surfaces in a discussion of their constitutionality include; the relative
ease with which the accused can often prove or disprove the presumed fact;
the difficulty for the prosecution of proving the presumed fact when
compared to the ease with which the accused might disprove it.
The settled common law position is that any burdens on the defence
(insanity excepted) merely require the defence to produce sufficient evidence
raising an issue in relation to proof or disproof of the fact concerned.14. This is
the evidential burden, and the legal or persuasive burden remains on the
prosecution. Discharge of the evidential burden is not a pre-requisite to an
acquittal.
This provision presupposes that it is a constitutional guarantee, whereby a
law shall not be invalidated by reason only that it places on the accused the
burden of proving particular facts, does not automatically validate all reverse-
onus clauses.
The Constitution provides for such situations where the law imposes a
burden.
“Nothing done under the authority of law shall be held to be inconsistent
with clause 3(a) of this article, to the extent that the law in question imposes
upon any person charged with a criminal offence, the burden of proving
15
particular facts.”
13 Section 40 The Fire Arms Act Chapter 299.

14 Woolmington v D.P.P. [1935] AC 462-481-482.
15 Article 28(4)(a) Constitution.
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In assessing the constitutionality of a reverse-onus law against a

presumption of innocence as a constitutional right, a court must make
distinctions between the types of presumption and even in the case of one
stated to be rebutted, determine whether it is capable of rebuttal.
In the Canadian case of R v Oakes16 Dickson CJC describes the importance
of the presumption of innocence as follows:
“The presumption of innocence protects fundamental liberty and human dignity
of any and every person accused by the state of criminal conduct. An individual
charged with a criminal offence faces grave social and personal consequences,
including potential loss of physical, liberty, subjection to social stigma and
ostracism from community, as well as other social, psychological and economic
harms.
In light of the gravity of these consequences, the presumption of innocence
is crucial. It ensures that the state proves an accused’s guilt beyond all reasonable
doubt, he or she is innocent. This is essential in a society committed to fairness
and social justice. The presumption of innocence confirms our faith in human
kind; it reflects our belief that individuals are decent and law-abiding members of
community until proven otherwise”.
There are some presumptions which are called evidential or factual
presumptions. These presumptions merely give prosecution evidence the
status of prima facie proof. An evidential or factual presumption merely requires
the accused to raise a reasonable doubt as to the presumed fact’s existence and
it does not affect the burden of proof.
The law may create a reverse-onus presumption which in turn may affect
the presumption of innocence. This inevitably impairs the presumption of
innocence because it relieves the prosecution of the overall onus to prove the
guilt of the accused beyond a reasonable doubt.17
Despite the legitimate and indeed compelling interest served by reverse-
onus presumptions in many instances, it is difficult to justify the use of a true
reverse-onus provision as part of the criminal justice machinery since the
reverse onus inevitably impairs the presumption of innocence, the state will
have to justify, the need for a provision which allows for the conviction of a
person on a criminal charge despite the existence of a reasonable doubt as to
his/her guilt.
16 (1986) 26 DLR (4th ) 200.

17 S v Bhulwana 1996(1) SA 388 (CC).
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4.4 THE RIGHT TO REMAIN SILENT AND TO REFUSE TO TESTIFY

The right to remain silent reinforces the statutory provisions and the common
law notion that a person should not be penalized for remaining silent at trial.
The state must prove the guilt of an accused person.
Under the Constitution any person being tried cannot be compelled to
18
give evidence which therefore means that such person has every right to
remain silent at the trial and refuse to testify.
Although the right to remain silent has many facts,19 the basic idea is that
an accused person is not expected to assist in the proving or disproving of his
or her guilt.
The right to silence merely protects the accused from being compelled to
speak. The accused’s failure to testify could not have any evidential value, but
ordinary logic dictates in certain circumstances, a failure to testify would entail
adverse consequences for the accused.
A failure to testify could therefore not be indicative of guilt. However, as
long as the accused was made aware that in certain circumstances the failure to
testify would entail the possibility of adverse consequences that prima-facie
proof would ripen into conclusive proof, the accused has no room for
complaint.
It is necessary to inform the accused that consequence of the election not
to testify would be that the prima-facie case made out by the state would be
left uncontroverted; that the case would then have to be decided on the basis
of the state’s version alone in the absence of any version put forward by the
accused, and that this would entail an adverse consequence for the accused.
The fact that an accused person is under no obligation to testify, does not
mean that there are no consequences attaching to a decision to remain silent
during the trial. If there is evidence calling for an answer, and an accused
chooses to remain silent in the face of such evidence, a court may well be
entitled to conclude that the evidence is sufficient in the absence of an
explanation to prove the guilt of the accused. Whether such a conclusion is
justified will depend on the weight of evidence.20
In sum therefore, once there is prima-facie proof of a fact, the failure to
cross-examine or to adduce contrary evidence may be taken into account in
reaching the conclusion that the fact is proved beyond a reasonable doubt.

19 R v Director of Serious Fraud Office Ex. Parte Smith [1993] AC 1 (HL).
20 S v Boesak CC December 2000 unreported (South Africa).
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4.5 THE RIGHT TO LEGAL REPRESENTATION

The bill of rights requires that the state permit the criminally accused to be
represented in the terms reflected in the Constitution.
Every person who is charged with a criminal offence shall be permitted to appear
before the court in person or at the person’s own expense, by a lawyer of his or
her own choice.21
The words “of his or her own choice” hint at the fact that the state has no
duty under the Article to supply or assign counsel and it does not contemplate
a system of state financed legal aid as in other jurisdictions.
However, the Constitution further provides for mandatory legal
representation in certain circumstances:
Every person who is charged with a criminal offence shall in case of any offence
which carries a sentence of death or imprisonment for life, be entitled to legal
representation at the expense of the state.22
The relationship between the right to legal representation and a distinct and
broad right to a fair hearing suggests that the demands of the latter may well
not be satisfied by a search for a fair hearing after the denial of representation,
though court may satisfy itself that a particular trial has been fair or not fair.
The obligations imposed on courts by the narrowly defined right to
counsel, have not been detailed, but it might be supposed that it includes a
duty to inform a person charged that he/she is entitled counsel of his/her
choice in non capital offences, and to ascertain whether or not the accused
does have a legal representative, and no doubt to accord an adjournment or
23
adjournments for the purpose of securing legal representation. In addition,
the right to representation must include the right to have the legal
representative act in an effective manner in the proceedings on behalf of the
accused. It is possible to breach the guarantee while formally complying with
it in a case where, for example, counsel appears after prosecution witnesses
have testified, but the court refuses to call them for cross-examination on
behalf of the accused.
The right to representation by counsel must also be exercised like other
rights in the Constitution. There is a duty on the accused and the counsel
21 Article 28(3)(d) Constitution.

22 Article 28(3)(e) ibid Kawooya Joseph v Uganda SCCA 59 of 1999.
23 Zakary Kataryeba and others v Uganda [1996] HCB 16 see also Seremosi Rwamukaaga v Uganda [1998]
V KALR 61.
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who has been instructed to exercise due diligence. In case of Leonard Muyingo
24
v Uganda court noted:
It is clear from the record that counsel for the accused did not take trouble to find
out the progress of the case, and yet he was aware that his client’s application for
bail was not on. Counsel for the accused had ample time to contact his client in
between the adjournments. There is nothing to show counsel tried to visit his
client while on remand, and there is no evidence that he was refused access to his
client. The appellant also had enough choice not to. Accordingly, the fault lay
squarely on counsel and his client. In the circumstances, the ground of appeal that
there was procedural irregularities and that the appellant was denied legal
representation is dismissed.
The right to be informed of the right to legal representation is particularly
important because the constitutional provisions relating to state paid lawyers is
still relatively unknown and difficult to understand. Particular care must
therefore be taken to explain this right to the accused.
Where the accused cannot afford legal representation, the court must also
inform the accused of the right to seek legal aid from available legal aid
providers in Uganda if it is possible and depending on the gravity of the
offence. The accused must be afforded a reasonable opportunity to obtain
legal assistance after which, if the failure to do so is the fault of the accused,
the court may proceed without legal representation.
The right to be defended by a lawyer or the accused to have a counsel of
his/her choice is fundamental and essential to fair trial. The right is recognized
because of the obvious fact that ordinarily an accused person does not have
the knowledge of law and the professional skill to defend himself before a
court of law wherein the prosecution is conducted by a competent and
experienced prosecutor. This has been eloquently expressed by the Supreme
Court of America in Powell v Alabama.25 The court observed:
“The right to be heard would be, in many cases, of little avail, if it did not
comprehend the right to be heard by counsel. Even the intelligent and educated
layman has small and sometimes no skill in the science of law. If charged with
crime, he is incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of Evidence. Left
without the aid of counsel he may be put on trial without a proper charge, and
convicted upon incompetent evidence, otherwise inadmissible. He lacks both the
skill and the knowledge adequately to prepare his defence, even though he has a
perfect one. He requires the guiding hand of counsel at every step of the
proceeding against him. Without it, though he is not guilty, he faces the danger
of conviction because he does not know how to establish his innocence. If that
24 [1995] 11 KALR 63.

25 287 US 45 1932 pages 68-69.
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be true by men of intelligence, how much more true is it of the ignorant and
illiterate, or those of feeble intellect.
The reasons as to why advocates are hired on behalf of an accused person who
is charged with an offence (punishable by death) are not difficult to find.
Quite a number of people in this country have no skills in science of law. The
majority of them are incapable of determining for themselves whether the
indictment is good or bad. They are unfamiliar with rules of evidence.
Therefore if they are left without the aid of an advocate they may be put to
trial without a proper charge and convicted upon incompetent evidence or
26
evidence irrelevant to the issues or otherwise inadmissible.
4.6 THE RIGHT UNDER THE PRINCIPLE OF DOUBLE JEOPARDY

The term ‘double jeopardy’ refers to the ‘danger’ of a second punishment
whenever an individual is brought to trial again for the same crime. The
Constitution provides that:
A person who shows that he or she has been tried by a competent court for a
criminal offence and convicted or acquitted of that offence shall not again be tried
for the offence or for any other criminal offence of which he or she could have
been convicted at the trial for that offence, except upon the order of a superior
court in course of appeal or review proceedings relating to the conviction or
acquittal.27
The rationale for the notion that persons should be protected from double
jeopardy has been that the state with all its resources and power should not be
allowed to make repeated attempts to convict an individual for an alleged
offence. Such attempts would moreover enhance the possibility that an
innocent person could finally be convicted.
The challenge is determining what constitutes the ‘same’ crime for double
28
jeopardy purposes.
The other challenge is whether the double jeopardy law prohibits
simultaneous prosecution for the same offence in the ordinary courts and
military courts. It is submitted that once a person is charged before any court
on the facts then no other charge on the same facts can stand in any other
court without being in breach of the principle of double jeopardy. Even if the
prosecution opts to withdraw one charge from one of the courts, it is upon
the accused to decide which court he/she prefers to stand trial.
26 Mwanga Francis and two others v Uganda C.A. Cr.App Number 88 of 1999 (unreported).
28 Samuel Esunget v Uganda [1998] 11 KALR 66 see also Muiruri v Republic [1973] EA 86.
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The double jeopardy principle was given expression in various phrases in

the common law, the two most prominent being those of autre fois acquit and
autre fois convict. But the use of ‘autrefois’ interchangeably with ‘double
jeopardy’ has obscured and confused the analysis of the double jeopardy idea
itself.
The court correctly asserted that the object of the plea of autrefois was to
29
ensure that a man is not placed in double jeopardy. It follows from this
assertion that the law of autrefois cannot, logically, define limits of double
jeopardy as legal principle but that concept should determine the operation of
autrefois acquit.
The Article contemplates by their use of the word ‘tried’, a proceeding
aimed at final (subject to right of appeal or revision) disposal of the issue. This
means that double jeopardy does not protect where the proceedings have
ended with a discharge or withdraw or in some way ‘not proceeded with’.
However, the principle of fairness, particularly where the circumstances are
aggravated by inordinate delay, allows courts to strike out proceedings,
whether or not by calling in aid the principle of double jeopardy or inherent
jurisdiction of court. Subject to considerations of fairness and the like, nolle
prosequi should not bar fresh proceedings.
The Ugandan Courts have long enjoyed powers to order a re-trial and the
practice is to exercise the power whenever there is an irregularity reflecting a
determination to ensure convictions. It is also noted that while the provision
for retrial refers to retrial on appeal from conviction, the Constitution refers
both to acquittal and conviction.
On a literal view, the order of a retrial breaches the notion of autrefois.
Likewise, the principle is equally applicable to situations where a person
claims to have been pardoned. The Constitution provides that:30
No person shall be tried for a criminal offence if the person shows that he or she
has been pardoned in respect of that offence.
29 D.P.P. v Nasralla [1964] 2 AC 238 at 249.

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4.7 THE RIGHT NOT TO BE CONVICTED UNDER RETROACTIVE

PENAL LAW/RIGHT TO THE LESSER PENALTY
The principle of non retroactivity in penal laws is stated as a fundamental right
in our Bill of Rights.
No person shall be charged with or convicted of a criminal offence which
is founded on an act or omission that did not at the time it took place
31
constitute a criminal offence.
No penalty shall be imposed for a criminal offence that is severer in degree
or description than the maximum penalty that could have been imposed for
that offence at the time when it was committed.32
The provision embodies and transforms into fundamental and substantive
right the presumption against retroactivity in penal legislation. As a
fundamental right, the legislature is bound not to enact retrospective
legislation and the courts, while they will no doubt in the first instance
construe a challenged Act so as not to give it retrospective effect, must declare
an Act unconstitutional where it is not possible to construe it so as to give
effect to the constitutional prohibition.
A penal retroactive law penalises that which was not criminal at the time
the action was performed, increases the punishment or, in relation to the
offence or its consequences, alters the situation of a party to his/her
disadvantage.
The constitutional prohibition must also extend to changes in the
definition of the offence which would add a new element to an existing
offence retroactively. Thus to add an element of intent where not previously
requested, might be seen to lighten the severity of the offence. The retroactive
removal of mens rea had been an element of the crime at the time of its
commission.33
Defences to a criminal offence go in principle to the nature and substance
of the offence; therefore whatever the state of existing case law, the removal
of a defence with retrospective operation should fall foul of the constitutional
right.
The presumption against retroactivity has long been held not applicable to
34
rules of procedure. A possible rationale for the exclusion of procedure rules
31 Article 28(7) see also Naama Coffee Factory v Uganda [1998] IV KALR 119.
32 Article 28(8).
33 Waddington v Miah [1974] 2 All ER 3777.
34 Maxwell on the Interpretation of Statutes (12 ed) 222 Re Althumney [1898] 2 QB 551 at 552.
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from the prohibition is that procedure does not go to, or constitute part of the
criminal behaviour of which persons ought to be aware so as to conform to
the law. The difficulty is to differentiate between the situations in which a rule
which may be regarded as ‘procedural’ only, and one that does impact upon
the substantive.
Difficult situations which can arise from the above analysis include:
(a) Changes in rules relating to corroboration, to the prejudice of the accused;
(b) Reversal of the onus of proof, including the creation of a presumption of
guilt;
(c) The lightening of the burdens on the prosecution.
(d) The creation of a distinct penalty or a new offence, in the case of the
repeated commission of a given offence. The question here is whether a
second offence or subsequent offences can set that law in operation by
references to the past conviction.
(e) A change in composition of the court or tribunal or in the manner of its
selection.
The immediate circumstance to which the other Article of the Constitution
refers is a change in the penalty to be inflicted on conviction. The meaning of
‘penalty’ should in most cases present little difficulty but may do so in relation
for example to the loss of certain rights consequent upon conviction, or in
relation to a alternations in the terms on which the penalty is to be
undergone. The recognition of a severe penalty may again be obvious in the
case of an increase in the length of imprisonment, but less so for increase in
the possible length of sentence, occasioned by an increase in the maximum
period imposable.
Penalties are in principle attached to offences and not offenders and so the
constitutional provisions refer to the penalty which might have been imposed
at the time the offence was committed. But in fact penalties are imposed on
offenders.
Further, where the statement of the law does modify the penalties on the
offender or certain categories offenders, a change in categorization may raise
an issue as regards penalty under the non-retroactivity principle i.e. change
35
from juvenile to adult.
In addition, this constitutional provision is denied from the common law
principle of nullum crimen sine lege which forms part of the principle of legality
in criminal law.
35 Bakers and another v The Queen [1975] AC 774 (P.C).

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However, our Constitution does not make reference to which type of

offences whether national or international usually the national offences are
known as contained in the penal code and other legislations, but the
international law offences need to be clarified. Since the World war and the
Nuremberg and Tokyo Tribunals, individual criminal liability for war crimes,
crimes against humanity and crimes against peace have been recognized.
In principle, international law allows states to prosecute such offences, but
domestic legislation would have to be passed.
The Constitution seeks to protect an accused against harsher sentences than
the one that applied when he or she committed the offence.
4.8 NON COMPELLABILITY OF ACCUSED PERSONS

This is the right which bars an accused person from being compelled to be a
witness in proceedings against himself/herself. It is distinguished from the
privilege against self incrimination as the specific right of a witness not to have
his/her evidence used to incriminate him/her in any proceedings (other than
prosecution for perjury).
It should be noted however, that the terms “non compellability”, “the
right to silence” the privilege against self-incrimination” have long been used
interchangeably.
Non-Compellability of the accused at his/her trial derives no doubt from
the notion that it is unjust to compel a person to convict himself/herself and is
embodied in the Latin maxim nemo debet se ipsum prodere. It is related to the
fundamental assumption of the common law that it is for the prosecution to
prove the guilt of the accused and that an accused is assumed innocent until
proved guilty.
In Uganda, the accused still has the three-fold choice of testifying on oath,
keeping silent and making unsworn statement. The last option is a very
common feature in criminal trials as an aspect of no-compellability. However
in some jurisdiction, unsworn statements are abolished and had long been
considered anachronistic in England and Wales. The Privy Council addressed
itself to “the objective value of an unsworn statement” by an accused and
concluded that the jury should give the accused’s statement “only such weight
36
as they may think it deserves”.
But this conclusion was prefaced by the observation that where the accused
sought in his statement to contradict factual evidence against him, or inference
36 D.P.P. v Walker (1974) 21 WIR 406 (PC).

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that could be drawn therefore, the Judge while making it clear to the jury that
the accused was not obliged to testify, could properly as the jury to consider
whether or not the accused was reluctant to put his evidence to the test in
cross examination and, if so, why. These comments sanction an express
invitation to draw inferences of guilt from the failure to give sworn evidence.
Consequently, if unsworn statements were considered part of the exercise of a
right not to be compelled to give evidence, their use could be penalized by
the sanction of inference of guilt and their value in practice made insignificant.
In the case of Hau v Public Prosecutor37 the Privy Council held that the
removal of an existing right to make unsworn statements (leaving a choice
between literal silence and sworn evidence) not to constitute ‘legal
compulsion’ in effect compelling a person to testify.
The duty on the state, as well as the non literal meaning of non-
compellability, consists in the ability not to testify. But the affirmative content
which might have been given to non-compellability, by the practice of
making of unsworn statements gives some; so to speak, positive content to the
non-compellability right, a distinct question is posed as to whether or not it is
a feature of a fair trial and an aspect of fundamental justice at all.
It is also established that under this clause an accused has a right to silence
before the trial and that persons arrested or charged with an offence are not
required to answer questions or make statements. The pre-trial non-
compulsion has a close function relation to any right to non-compellability at
the trial and the basic issue is as to the effect which pre-trial silence should
38
have on the establishment of guilt.
Finally, the rule against non-compellability is also the foundation of the
rule that a confession made before trial, by an accused person, is inadmissible
unless voluntary. However, there is some discretion in a Judge to exclude
even voluntary confessions.39
4.9 THE RIGHT AGAINST SELF INCRIMINATION

The right against self-incrimination precludes the admission of self-
incriminating evidence obtained before trial. In simple terms it means that
self-incriminating evidence may not be used against the accused in a criminal
trial.
37 [1981] 2 All ER 14 at 21.

38 Rex v Christie [1914] AC 545; [1915] All ER Rep. 63, H, Hall v R [1971] 1 WLR 298 (PC) R v
Chandler [1976] 1 WLR 585.
39 R v Sang [1979] 2 All ER 1222.
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This rule against self-incrimination is not merely a rule of evidence but a

constitutional right that is intended to ensure the protection of the general
right to a fair criminal trial. If the right to a fair trial is not threatened, the rule
against self-incrimination has no application.
The protection against self-incrimination is accrued at state compulsion. It
is only when a legislation or state conduct compels a person to speak prior to a
criminal trial and then criminal proceedings that the right to a fair trial is
violated.
4.10 THE RIGHT TO A PUBLIC HEARING

40
This article that allows a public trial applies both to civil and criminal
proceedings, though it’s most necessary in the latter proceedings, since
somebody’s rights to personal liberty are at stake.
As open proceedings are thought to be protective of persons charged, the
court is allowed to exclude the press or the public from all or any proceedings
before it for reasons of morality, public order or national security, as may be
41
necessary in a free and democratic society.
The problem is whether the determination of the existence of the bases for
closed proceedings can be made by a given law itself, in advance, so to speak
or whether the law can empower or require the court to close proceedings on
the court’s determination that the grounds exist, on a case-by-case assessment
of the issue.
In cases of defilement, the court is to consider the need in the interest of
the child to exercise its power under the Constitution (Article 28(2)) for
reasons of morality and to protect the victim of the offence. 42
The issue that is unresolved is whether writing submissions and filing them
in court instead of making oral submission in open court in presence of the
43
accused also violates the right to a public trial .
The public nature of trials ensures the legitimacy of the criminal justice
system and is an important safe guard of impartiality.
40 Article 28(1) Constitution, Section 137 Trial on Indictment Act, section 40 MCA.
42 Section 2(1a) Magistrates Courts (Amendment) Act 2007 see also Scott v Scott [1913] AC 417 at
482; [1911-1913] All ER Rep. I, Hinds v The Queen [1977] AC 195(PC), [1976] 1 All ER 353.
43 Akhuya v Republic [2002] 2 EA 323.
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The law only provides for public ‘trial’, but there is no express
constitutional requirement that the appeal itself be heard in public. The
practice has always been to hear appeals in public.
4.11 RIGHT OF THE ACCUSED TO BE PRESENT AT TRIAL

The Constitution requires physical presence of an accused person at the trial
Except with his or her consent, the trial of any person shall not take place
in the absence of that person unless the person so conducts himself or herself
as to render the continuance of the proceedings in the presence of that person
impracticable and the court makes an order for the person to be removed
44
and the trial to proceed in the absence of that person.
Although a duty in terms is placed on the state, the possibility of a waiver
by the accused, suggests that there is an existing right to a public trial in the
person charged. As open proceedings are thought to be protective of persons
charged, it is assumed that the waiver contemplated in this Article is to be
exercised subject to close supervision by the court and that it must be made by
an accused in full consciousness of what it entails. The court has to make an
order to the effect that the trial proceeds in absence of an accused, and this
serves to show the peculiar nature of a right to an open trial resulting from the
fact that the conduct of trials is, inescapably in the hands of the courts and
subject to judicial discretion.
45
In the case of Matsiko v Uganda: The court visited the locus but the
accused was not taken and was not present at the scene of crime. It was found
that since the appellants’ absence had not been ordered by the court, his
absence was a violation of his constitutional right and a retrial was ordered.
Similarly, there is a practice that allows counsels to make written
submissions in criminal cases, but this has been attacked for being a violation
of an accused’s right to be present at the trial. In the Kenyan case of Akhuya v
46
Republic, at the close of the defence case and at the request of his advocate,
the magistrate directed that the prosecution and defence file written
submissions at the court registry. It was held that final submissions in criminal
trials must be made orally in open court in the presence of the accused. In this
case the appellant did not get a fair hearing.
44 Article 28(5).
45 [1999] 1 EA 184.
46 [2002] 2 EA 323.
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4.12 THE RIGHT TO HAVE ADEQUATE TIME AND FACILITIES TO

PREPARE A DEFENCE
The Constitution provided that:
“Every person who is charged with a criminal offence shall be given adequate
time and facilities for the preparation of his or her defence.”47
The accused may invoke the right to justify a postponement or adjournment if
more time is required for purposes of preparing a defence.
The facilities that are required to facilitate an accused in preparing his/her
defence may vary but usually it may be related to calling of his/her witness,
reasonable time to consult with them, provision of a consulting area which
cannot be compromised.
4.13 THE RIGHT TO BE GIVEN DETAILS OF THE OFFENCE

CHARGED
“Every person who is charged with a criminal offence shall be informed
immediately, in a language that the person understands, of the nature of the
offence.48
It should be noted that the accused must be informed of the act or acts
constituting the offence and not merely of the legal tag by which the offence
is known. The information that has to be given must be such which enables a
defence to be made on answering a charge before a court of law.
This article never the less emphasizes the need to have an accused know
exactly what case he/she is to meet and is essential to the concept of fairness
and equality in the criminal process.
The question of whether the right to a fair trial includes the right of access
to a police file depends on the circumstances of each case. The test is usually
whether the information in the police file is necessary to enable the accused to
prepare a proper defence.
This will involve asking whether , for example, the defence will be able to
effectively exercise the constitutional right to properly ‘adduce and challenge
evidence’ without access to the file. It is not sufficient merely to furnish
enough particulars to enable the accused understand the charge. The accused
must at least be entitled to the statements of prosecution witnesses. However,
47 Article 28(3)(c) Constitution.

48 Article 23(3)(b).
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in relatively simple cases, if sufficient particulars are furnished in the charge

sheet, access to the police file will be denied.
The state is usually worried of giving the police file to the accused because
of the fear that the disclosure of some witness statements may reveal state
secrets, methods of police investigation, the identity of informers or
communications between legal advisors and their client. However, the
prosecution must demonstrate that it has a reasonable fear that the disclosure
will result in the consequences earlier mentioned. If it accepts the
prosecution’s fear as well-grounded, the court must exercise discretion by
balancing the risk described by the prosecution against the risk that the
accused will be denied a fair trial if not afforded access to the statements.
49
In the case of Juma and others v A.G the Kenyan court noted that; The
accused must be given and afforded opportunities and means so that the
prosecution does not gain an undeserved or unfair advantage over the accused;
and so that the accused is not impeded in any manner and does not suffer
unfair advantage and prejudice in preparing his defence, confronting his
accusers and arming himself in his defence and so that no miscarriage of justice
is occasioned.
50
The court further noted:
“In an open and democratic society based on freedom and equality with the rule
of law as its ultimate defender such as ours, the package constituting the right to a
fair trial contains in it the right to pre-trial disclosure of material statements and
exhibits. In an open and democratic society of our type, courts cannot give
approval to trial by ambush and in criminal litigation the courts cannot adopt a
procedure under which an accused person will be ambushed subject to the rights
of every person entrenched in the Constitution of Kenya and including the
presumption of innocence until proved guilty beyond reasonable doubt, the
fundamental rights to a fair hearing by its nature requires that there be an equality
between contestants in litigation. There can be no true equality if legal process
allows one party to withhold material information from his adversary without just
cause or peculiar circumstances of the case.”
The Constitutional court on a reference,51 agreed with the above case to the
effect that:
The right to a fair hearing contains in it the right to a pre-trial disclosure of
material statements and exhibits. Courts cannot approve of trial by ambush. The
right to a fair hearing envisages equality between contestants in litigation.
49 [2003] EA 461.
50 Ibid.
51 Soon Yeon Kong Kim and Kwang Mao v A.G Constitutional Reference Number 6 of 2007 decided
March 2008.
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52
The disclosure is not limited to reasonable information only.
However, the right to disclosure may not be absolute. Such disclosure is
subject to some limitation to be established by evidence by the state on
grounds of state secrets; protection of witnesses from intimidation, protection
of identity of informers from disclosure or that due to simplicity of the case,
disclosure is not justified for purposes of a fair trial.
This means that the accused is prima facie entitled to disclosure but the
prosecution may by evidence justify denial on any of the above grounds. It is
the trial court that has discretion whether the denial has been established or
not.
In the case of an unrepresented accused, the trial court should explain the
allegations against the accused and the nature of evidence required to refute
the allegations. This becomes particularly important if there is a burden on the
accused in respect of an element of the offence. Unrepresented accused should
also be informed of other competent verdicts on the charge and this should be
done before the accused is asked to plead.
Finally, the accused should also be informed of the right to remain silent.
Similarly in relation to the above, the accused must be informed in a
language that the accused understands. In Uganda the official language is
English53 and it is as well the language of court though the Constitution allows
the use of other language for judicial purposes.54
It is important to note that the accused does not have a right to have a trial
in the language of his or her choice. The article merely confers a right to be
tried in a language he or she understands in order to ensure that the accused
understand, the proceedings, the court provides an interpreter who must be
competent so as to enable the accused understand. The interpretation should
take place simultaneously with the testimony being given by the witness or by
what the court, prosecution or counsel say at the trial.
It is further presumed and presupposed that the interpretation will be in a
language which the accused fully understands and not merely into a language
which he/she partially understands.
However in exceptional circumstances if the native language cannot be
understood or spoken by any person in court, then even if the applicants
understanding of a language is partial it may be used.
52 Col.(Rtd) Dr Kiiza Besigye and 22 others v A.G Constitutional Petition Number 12 of 2006.
53 Article 6(1).
54 Article 6(3).
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Above all, the accused is entitled to a legal representative who is capable of

communicating with him in his own language where it is practicable.
4.14 THE RIGHT TO CALL, EXAMINE AND CROSS-EXAMINE

WITNESSES
Equality in making defence:
‘This right guarantees to the accused, facilities for the examining of prosecution
witnesses, for obtaining process to call witnesses and to defend himself/herself on
the same condition as those applying to witnesses called by the prosecution. The
Constitution provides that:
Every person who is charged with a criminal offence shall be afforded
facilities to examine witnesses and obtain the attendance of other witnesses
before the court’55.
This article confers a clear duty on the trial court to inform the accused of this
right before the prosecution witnesses leave the witness dock. The court
should enquire of the names and addresses of the accused’s witnesses so that
witness summons can be issued in good time. This is a good measure of
ensuring justice, since most criminals are usually unrepresented at trial and are
not conversant with the court procedure.
In the same vein, an accused is entitled to access to information, if he/she
requests for prosecution witness statements or exhibits. While considering the
issue of whether or not refusal to give witness statements or exhibits violated
the accused’s Constitution right. The court held that the provisions of the
Constitution under consideration can only have life and practical meaning
only if accused persons are provided with copies of statements made to police
by persons who will or may be called to testify as witnesses for the prosecution
as well as the copies of exhibits which are to be offered in evidence for the
56
prosecution.
The court retains the power and discretion where necessary to define the
issues before it and as a consequence to limit the calling of witnesses
An unrepresented accused must be assisted by the court to exercise the
right to challenge evidence. Where an unrepresented accused fails to cross
examine a witness on a material issue, the presiding officer should question the
witness
Apart from practice, there is no rule of law on procedure or evidence that
requires potential witnesses for either the prosecution or the defence not to sit
55 Article 28(3)(g).
56 Juma and others v Attorney General [2003] 2 EA 461.
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in court and listen to the evidence of other witnesses prior to giving their own
57
testimony.
However, this rule of practice is based on the principles of fairness that the
same witness should not hear what another witness says in court as it may
prejudice the evidence of other witnesses.
The lapse that may lead to the presence of a witness in court while others
are testifying is a mere irregularity and the court should in considering this
evidence warn itself and give itself due allowance for this fact in deciding what
58
weight to give to her evidence.
4.15 NO CONVICTION EXCEPT WHEN OFFENCE IS DEFINED

The Constitution provided that:59
“Except for contempt of court, no person shall be convicted of a criminal
offence unless the offence is defined and penalty for it is prescribed law.”
The law that creates an offence and the offence should be ascertained from the
provision or section to be referred to in a charge sheet.
In the case of Naama Coffee Factory Ltd v Uganda,60 the appellant was
charged with failure to pay Cess. The appellant refused to plead to it
contending that it was defective, since the law creating offence did not
categorise who should pay the tax and no penalty was prescribed.
The court found that Regulation 13(j) and 18(i) of the 5th schedule to the
Local Government Act did not create the offence, failure to pay cess tax nor
did it provide for a punishment. The charge sheet was therefore defective for
being unlawful and unconstitutional.
The offence of contempt of court is derived from the inherent powers of
court to punish all types of contempt whether committed in or outside court.
It does not violate article 28(12) and the right to be informed of the charge.
The accused was charged with contempt of court contrary to section
101(i)(a) of the Penal Code the particulars of the charge were that while the
accused was in a Grade II court, he ‘showed’ disrespect in speech with
reference to the proceedings and the Magistrate presiding. The complainant
57 Semande v Uganda [1999] 1 EA 321 (SCU).

58 Ibid.
59 Article 28(12).
60 [1998] IV KALR 119.
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magistrate went ahead and tried the case because there was likelihood of delay
in getting another Magistrate to try the accused.
The court on revision found that inter alia:61
(a) The particulars of the charge were insufficient as the words uttered should
have been spelt out.
(b) The complainant magistrate was aware of the need for the accused to be
tried by another magistrate but decided to try the case because there was a
likelihood of delay in getting another magistrate to try the accused.
The proceedings in this case amounted to travesty of justice and were a
complete nullity.
It can be deduced from this case that contempt of court offences equally
require compliance with the Constitution provisions save for article 28(12).
4.16 EXCLUSION OF UNCONSTITUTIONALLY-OBTAINED

EVIDENCE
This is an area which the Uganda Constitution is silent about, but which is of
interest in our judicial system. Under the English system, the rule is that
evidence was admissible no matter how it was obtained.
In the United States, on the other hand, the courts favour the exclusionary
approach in Elkins v United States62 the court held that the purpose of
excluding evidence is as follows:
to deter and compel respect for the constitutional guarantee in the only effective
way by removing the incentive to disregard it.
The Canadian Charter of Rights and Freedom Constitution under section
24(2) thereof provides for the exclusion of evidence if it is established that the
admission of the evidence would bring the administration of justice in
disrepute.
It can be deduced that the court has a general discretion to exclude
evidence unlawfully-obtained evidence if there are compelling considerations
of public policy which require the evidence to be excluded.
The basis for this reasoning is derived from the general principle that a
court of law cannot sanction an illegality or something done in contravention
of the constitution. As a court of justice the court is obliged to ensure a fair
trial.
61 Criminal Revision Number 47 of 1980 [1981] HCB 6.

62 364 US 206 (1960) 217.
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Therefore, if the evidence was obtained in breach of a constitutional right,

it must be excluded unless the breach is justified in terms of the constitution.
While the public requires that crime should be detected and punished, it was
undesirable that individual’ constitutional rights be violated and that the state
should not be permitted to combat crime through the use of unconstitutional
means and methods.
4.17 CONCLUSION
The specific rights of the accused as discussed herein are component parts of
the right to a fair hearing, but nothing in the general Article suggests that they
exhaust the concept of a fair hearing or represent its maximum content. The
guarantees stated in the Constitution cannot be exhaustive of a right to a fair
hearing.
Certain features of appeals do not envisage some of the procedures of a
trial. But protections such as requiring the accused to be given full
opportunity to present his/her case should apply to appeals so as to make
unfair the introduction by one party of new evidence not brought to the
attention of the other.
The conduct of a fair trial is a matter squarely in the hands of the trial court
and the notion of fairness in this context is one which transcends the rules
embodied in protections accorded under the Constitution. If the Judge is the
guardian of fair proceedings it follows that this officer must control his or her
behaviour so as to ensure fairness.
An appellant court can only set aside a conviction when it has found an
irregularity or defect, which in fact results in a ‘failure of justice’.
Where there are general irregularities, the court must decide whether there
is sufficient untainted evidence to prove guilt beyond a reasonable doubt.
While in exceptional irregularities, the court takes it that they are so serious in
nature and degree that public policy requires them to be fatal to the
proceedings. Any infringement of a fundamental right is regarded as fatal
irregularity, vitiating the proceedings as a whole.
However, not every constitutional irregularity committed by the trial court
will justify setting aside the conviction. Whether or not there has been a fair
trial must ultimately be answered having regard to the particular circumstances
of the case.
In the practical realization of the right to a fair criminal trial it is judiciary
an arm of the state on whom is imposed the primary obligation correlative to
the right to a fair trial?
CHAPTER FIVE
INSTITUTION OF CRIMINAL PROSECUTIONS
5.1 INTRODUCTION
Prosecutors are responsible for the enforcement of all existing law as well as
proposing new laws or amending old one when necessary. If the law defines
crimes but persons who violate that law are not prosecuted, then the law itself
has no meaning Equality before the law and equal treatment by law is one of
the fundamental human rights under our Constitution and the prosecutors
must ensure it is upheld, and all those who violate the law must be held
accountable, be they police officers, government officials or ordinary citizens,
just as all those who seek redress before the law must be treated equally.
The prosecution mechanism is rooted in mainly maintaining the rule of
law and upholding a fair trial. This is only attainable with complete
independence and accountability, based solely upon legal principles. For
prosecution to successfully occur there must be competent officers with legal
power to prosecute.
The prosecutor’s role of upholding the rule of law goes further than just
the prosecution since it extends from the time of investigation to the time of
conviction or acquittal.
The maintenance of rule of law must be done without the influence from
the three arms of government or the police. The prosecution must make its
own decisions guided only by the law and it must ensure that other justice
mechanisms are doing the same. This unique position of the prosecutor within
the criminal justice system necessitates a working relationship with other
parties of the system; the better the relationship the better the working of the
system as a whole.
A criminal proceeding is mainly concerned with providing the accused
with an opportunity to have a fair trial by an impartial and independent court
established by law. The principle of fair trial encompasses all that is related to a
fair trial before the trial in court such as the investigation of the crime and the
collecting of evidence.
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5.2 THE DIRECTOR OF PUBLIC PROSECUTIONS

The office of the Director of Public Prosecutions is established by the
Constitution1and is headed by a public officer in whose charge is placed the
control of all criminal prosecutions in Uganda.
The functions of the Director of Public Prosecutions as set out in the
2
Constitution are the following:
(a) To direct the police to investigate any information of a criminal nature and
report to him or her expeditiously.
(b) To institute criminal proceedings against any person or authority in any
court with 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 to which this article relates, instituted by himself or herself or
any other person or authority; except that the Director of Public
Prosecutions shall not discontinue any proceedings commenced by another
person or authority except with the consent of the court.
The directorate of public prosecutions has developed a vision and mission
derived from their functions. The vision is “CRIME FREE SOCIETY”,
the mission is “TO HANDLE AND PROSECUTE CRIMINAL CASES
IN ORDER TO REDUCE CRIME IN THE COUNTRY”.
The state is therefore the prosecutor in all whether the proceedings have
been initiated by a complaint and the prosecution conducted by a private
individual.
A crime is a wrong not only against the individual victim but also against
society at large. It is because of this consideration that the state, representing
the people in their collective capacity, participates in a criminal trial as a party
against the person accused of crime.
The Director of Public Prosecutions is State Counsel in criminal matters in
the country. He/she can give advice to the police or other Government
departments with regard to the prosecution of any person.
1 Article 120(1).
2 Article 120(3).
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Institution of Criminal Prosecutions 69
5.3 THE ROLE OF THE PROSECUTOR

There is no law that specifically mention about the spirit in which the duties
of the prosecutor are to be discharged.
However, the role of the prosecutor could be deduced from the
constitutional principles of fairness and justice.
The object of a criminal trial is to find out the truth and to determine the
guilt or innocence of the accused. The duty of the prosecutor in such a trial is
not merely to secure conviction at all costs but to place before the court
whatever evidence is possessed by the prosecutor, whether it be in favour of
or against the accused, and leave the court to decide upon all such evidences
whether the accused was or was not guilty of the offence alleged.
There should not be on the part of the prosecutor any unseemly eagerness
for or grasping at conviction. It is not part of the prosecutor’s duty to obtain
convictions by hook or crook.
The role of the prosecutor was summarized in respect of the duties in
relation to making available police statements to the defence and drawing the
attention of the court to material discrepancies in the case of Amisi Musungu
3
and others v Uganda [1970] 1 EA 662
“The practice and procedure to be followed in the use of police statements has
been the subject of numerous articles and directions from various authorities and
also judgments of the court. Basically in criminal cases, the police, the advocate
appearing for the Director of Public Prosecutions, the advocate for the defence
and the court all have the same object and that is to discover the truth and in
particular whether the accused person committed the offence for which he or she
is charged.
A great deal depends on the prosecutor who in the Magistrate’s court would
most likely be a police officer and in the High Court the advocate appearing for
the Director of Public Prosecutions, and in his ability and integrity and his
understanding of his duty to assist the court arrive at the truth …”
The prosecutor plays a very important role in the administration of justice.
The last thing he/she would desire to secure a wrongful conviction or even
secure a conviction in a doubtful case.
A public prosecutor should be personally indifferent to the result of the
case. Where the accused is represented by an advocate, the prosecutor should
inform him or her of the discrepancy and may also address court so as to make
the court aware of such contradictions or discrepancies.
3 Cr. App Number 31 of 1971 (EACA) quoted in A handbook for Magistrates (Revised Edition 2004)
page 197.
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In cases where the accused is not represented and would not be able to
take advantage of any discrepancies so as to establish that the witness is not
telling the truth, the proper approach would be to assist the accused person
take the benefit and have their interests protected. In the case of Yerimia
Kalimedo v Reginam4 Court noted:
“We think it right, however, to say that we deprecate any practice whereby a
trial Judge calls for the whole of such statements at the beginning of the trial. If
during the course of trial, a Judge has cause to believe that there may be material
discrepancy between a witness’s testimony and the statement made in the course
of investigation and the accused is not legally represented, we see no objection to
the Judge calling for the statement in question and using it as material to test the
credibility of the witness. But it is well known that such statements often contain
inadmissible and prejudicial matter and the Judge might well, as a matter of
precaution, first inquire of crown counsel whether any embarrassment is likely to
follow from his seeing such a statement”.
The role of the prosecutor should consist only in placing all available evidence
irrespective of the fact whether it goes against the accused or helps him/her
before the court, in order to aid the court in discovering the truth.
It would be seen in the machinery of justice that a public prosecutor has to
play a responsible role and the impartialty of his/her conduct is as vital as the
impartiality of the court itself.
The prosecutors play a crucial role in the administration of justice, and
rules concerning the performance of their important responsibilities should
promote their respect for and compliance with the above mentioned
principles, thus contributing to fair and equitable criminal justice and the
effective protection of citizens against crime.
A prosecutor must be knowledgeable and thoroughly familiar with the
rules relating to criminal law and procedure in order to effectively execute
5
his/her duties i.e. he/she is responsible for the correctness of a Charge Sheet.
A great deal of time and expense will be saved if the prosecutor checks the
content and form of a charge sheet as soon as he/she is assigned to the case.
An error in the charge sheet may cause injustice to the accused or may result
in a guilty person having his/her conviction quashed on appeal or in revision.
Therefore the prosecutors should have appropriate education or training
and should be made aware of the ideals and ethical duties of their office, of the
4 (1956) 23 EACA 503 at 504.

5 Chimulo s/o Bankunda v R (1951) 18 EACA 160 Henry Kayondo v Uganda [1992-1993] HCB 41,
Uganda v Emmanuel Yang [1984] HCB 25.
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constitutional and statutory protections for the rights of the suspect and the
victim, and of human rights and fundamental freedoms.
The accused is entitled to a speedy trial6 within a reasonable time the
prosecutor has an important role to play in the attainment of this
Constitutional right. The interests of justice demand that a criminal
prosecution should commence as soon as possible and once the trial begins, it
7
should continue and be concluded without unnecessary delays.
The prosecutor should not make a recommendation to the magistrate or
Judge as to what the sentence should be. This is a matter entirely within the
discretion of the trial court. Sometimes prosecutors may feel that their
effectiveness is measured by the severity of the sentences that are imposed in
the courts before which they appear, this, of course, is not so. The prosecutor
should ensure as far as possible that the court has all the necessary information
before it, upon which to make a decision as to the appropriate sentence.
There may be cases in which it is perfectly proper to urge the court to take a
serious view of the case in view of its prevalence or for any other specific
reason.8 The prosecutors must not address the court on extraneous matters in
relation to sentence except only in those circumstances which the court may
9
seek at the time of passing the sentence.
Where the prosecutor considers that a person has been wrongly acquitted
in a case which he/she has prosecuted either as a result of a successful
submission of “no case to answer” or at the conclusion of full trial, he or she
must make sure that judgment or ruling and necessary court papers are sent
through the appropriate channels to the Director of Public Prosecutions
without delay in order to take an appropriate decision of appeal or not to
appeal within the prescribed time.
Similarly, where the prosecutor considers the sentence imposed by the
court in all circumstances of the case was so inadequate as to amount to a
miscarriage of justice, he/she should see that the DPP is fully informed about
the case at once, so that a decision is taken whether to invoke the revisional
powers vested in the High Court.
In the performance of their duties, prosecutors must:
(a) carry out their functions impartially and avoid political, social, religious,
racial, cultural, sexual or any kind of discrimination;

7 Section 18 Judicature Act, section 122 of Magistrate’s Court Act.
8 Hand Book for Magistrates (Revised Edition 2004) page 195.
9 Section 133(2) Magistrate’s Courts Act.
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(b) protect the public interest, act with objectivity, take proper account of the
position of the suspect and the victim, and pay attention to all relevant
circumstances, irrespective of whether they are to the advantage or
disadvantage of the suspect;
(c) keep matters in his or her possession confidential, unless the performance
of duty or the needs of justice require otherwise;
(d) consider the views and concerns of victims when their personal interests
are affected and ensure that victims are informed of their rights set out in
the Constitution or any other legislation.
When prosecutors come into possession of evidence against suspects that they
know or believe on reasonable grounds was obtained through recourse to
unlawful methods, which constitute a grave-violation of the suspect’s human
rights, especially involving torture or cruel, inhuman or degrading treatment
or punishment, or other abuses of human rights, they shall refuse to use such
evidence against anyone other than those who used such methods, or inform
the court accordingly, and shall take all necessary steps to ensure that those
responsible for using such methods are brought to justice.
5.4 POWERS OF THE DIRECTOR OF PUBLIC PROSECUTION

The Director of Public Prosecution is vested with power to carry out any of
the functions set out in the constitution. However, the same power may be
exercised by him or her in person or by officers authorised by him or her in
10
accordance with general or specified instructions.
In exercising of his or her powers under the constitution, the Director of
Public Prosecutions shall have regard to the public interest, the interest of the
administration of justice and the need to prevent abuse of legal process.11
The decision and discretion to prosecute or not to prosecute is a two
pronged test; the evidential test and the public interest.
The evidential test: requires an assessment of whether “there is enough
evidence to provide a realistic prospect of conviction” against the accused on
the charge or indictment. By “Realistic Prospect of Conviction” it is meant
that “a court properly directed in accordance with the law, is more likely than
not to convict the accused of the charge alleged.
The public interest test: is considered only if the evidential test is passed. It
involves the prosecutor balancing factors for and against prosecution. It is
assumed that the more serious the offence, the more likely it is the
10 Article 120(4) of the Constitution.

11 Article 120(5).
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prosecution will be needed in public interest and, therefore in case of any

seriousness, a prosecution will usually take place unless there are public interest
factors tending against the prosecution which outweigh those tending those in
favour. A case may be committed for ”impact” purposes, consideration of complexity,
convenience, resources available, widespread interest of the public.
Prosecutors perform an active role in criminal proceedings, including
institution of prosecution and, where authorised by law and consistent with
local practice, in the investigation of crime, supervision over the legality of
these investigations, supervision of the execution of court decisions and the
exercise of other functions as representatives of the public interest.
The Director of Public Prosecution should prosecute wherever it appears
that the offence or the circumstances of its commission are or are of such a
character that a prosecution in respect thereof is required in the public
interest.
It is difficult to express with exactitude every public policy factor that
might be involved in an individual case. But some of the most common
include:
(a) the seriousness of the alleged offence or conversely that the offence is of a
technical nature;
(b) the staleness of the offence;
(c) the likely effect of prosecution on the public order or morale;
(d) the youth, age, intelligence, physical health, mental of the alleged witness
or a victim;
(e) the degree of culpability of the offender especially in relation to other
allegations to the offence;
(f) the personal circumstances of the accused, including his or her criminal
record;
(g) the obsolescence or obscurity of the law;
(h) the prevalence of the offence and the need for deterrents;
(i) the wish of the victim as to whether the prosecution should proceed or
continue;
(j) the length and expense of the trial when considered in relation to the
seriousness or triviality of the offence or the likely sentencing of the
offender;
(k) the availability and efficacy of any alternatives to prosecution;
(l) the necessity to maintain public confidence in public institutions.
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In the exercise of the functions conferred on him or her by the constitution,

the Director of Public Prosecutions shall not be subject to the direction or
12
control of any person or authority.
In order to enable the DPP to exercise these powers effectively, specific
provisions have been made in different legislations i.e. power to enter nolle
13 14
prosequi, power to appoint prosecutors, power to transfer a case to superior
15
court, to consent to prosecution, to appeal in criminal appeals and to
represent the state in criminal appeals.
The Magistrate’s Court’s Act lies down in general terms the powers of
public prosecutors and provides that:
A public prosecutor may appear and plead without any written authority before
any court in which any case of which he or she has charge is under trial or appeal;
and if any private person instructs an advocate to prosecute in any such case, the
public prosecutor may conduct the prosecution and the advocate so instructed
shall act in the case under his or her directions.16
A public prosecutor is therefore presumed to have authority to prosecute by
virtue of holding a public office.
In court, a public prosecutor exercises extensive power for example
amendment of charges and accepting pleas to a lesser charge. In the case of
Uganda v Frank Mulenge. Duffus V.P noted that:
“The first elementary principle is that he is the person who decides what
witnesses to call and that he at any rate at the trial, has complete control of the
prosecution in court. He can at any state of the prosecution close his case and call
no further evidence, and it is from this power that the practice has arisen for a
prosecutor who does not desire to proceed with prosecution against the accused
person to offer during the course of the trial “no evidence” or “no further
evidence.”17
Conclusively, the role of the prosecutor extends to generally advising and
supervising the investigation.

13 Section 134(1) Trial on Indictments Act.
17 [1970] EA 269.
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5.5 DECISION TO PROSECUTE

The Director of Public Prosecutions enjoys ample discretion to prosecute any
person. However, this prosecutorial discretion must be exercised judicially. A
formal accusation is universally regarded as an indispensable pre-requisite for a
criminal trial. It is typically the public prosecutor who on the basis of the
results of investigation, determines whether to file a complaint and for which
offence to bring charges.
Although there are rules set down to guide the DPP in the exercise of this
discretion, in practice, the DPP takes into account the functions of criminal
law such as retribution, prevention, deterrence, reformation as well as public
interest.
In addition to these policy considerations, the DPP is also guided by the
following factors in deciding whether to prosecute in a particular case:
(a) Whether the facts contained in the complaint or reported disclose a crime
or offence known to the law. This is to the effect that the offence must be
written or defined and the punishment must be prescribed because no
person shall be prosecuted for a crime, which is not defined under the law.
(b) Whether there is sufficient evidence to support these facts to justify the
institution of criminal proceedings. The prosecution should bring an
accusation only if he/she thinks that the available evidence, discounted by
probable defence evidence, is so strong that the defendant is likely to be
convicted after trial.
(c) Whether there is sufficient evidence 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 there is reason to suspect that the information or complaint is
inspired by malice, 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.
(f) Whether there is justification for dealing with the suspect or accused in
another way other than through criminal prosecution.
In sum, the decision to prosecute or not is vital in ensuring that those
reasonably suspected of committing offences are brought to trial before an
impartial court. Those suspected upon baseless or unfounded allegations
should not be put to unnecessary inconvenience of undergoing through the
ordeal of trial.
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5.5.1 Evaluation of Evidence

When evaluating evidence the following factors should be taken into
consideration:
(a) Strength of the case for the prosecution; this will entail ascertaining whether the
evidence is strong enough to prove all the elements of the offence.
Whether the evidential material is sufficient to meet other issues in
dispute? Whether there is a likelihood of getting other evidence?
(b) Admissibility of evidence; whether the evidence will be excluded because of
the way in which it is acquired or because it is irrelevant or because of
some other reason.
(c) Credibility of witnesses; what sort of impression are they likely to make? Are
there any matters which might properly be put by the defence to attack
the credibility of witnesses? If there are contradictions in accounts of the
witnesses, do they go beyond the ordinary and expected thus materially
weakening the prosecution case?
(d) Credibility of evidence; whether the evidence will generally be credible in
respect of the different principles of the law i.e. identification,
corroboration circumstantial evidence.
(e) Availability of evidence; are the necessary witnesses available, competent,
willing and, if necessary, compellable to testify, including those outside the
country.
(f) Strength of the case for defence; whether the probable defence of the accused if
known is likely to lead to his/her acquittal in light of the facts of the case.
5.6 CATEGORIES OF PROSECUTORS

Prosecutions are conducted by two categories of prosecutors: Public
Prosecutors and Private Prosecutors.
5.6.1 Public Prosecutors

A Public Prosecutor is defined as a public official appointed to represent the
State in criminal case. Public prosecutors include the D.P.P., Deputy D.P.P. a
State Attorney, prosecutor, Police Prosecutor and any person appointed by the
D.P.P.
5.6.2 State Attorneys

These are lawyers appointed by the Director of Public prosecutions and Public
Service Commission as representatives of government in criminal matters.
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They should have attained a Bachelor of Laws (LL.B) degree and a diploma in
Legal practice.
The State Attorneys can prosecute matters in any Magistrate Courts, High
Court, Court of Appeal and Supreme Court. They are usually assisted by
Police Prosecutors or other Prosecutors who are not lawyers but are holders of
a diploma in law.
Where the case is so complicated and serious, the state cannot entrust the
prosecution into the hands of the police prosecutors or other prosecutors. In
such cases, State Attorneys have the duty to conduct such prosecutions.
The situations which warrant the State Attorney taking over prosecution
include the following:
(a) Where the case involves the Head of State,18 Minister, the Government or
other important persons and bodies in the country.
(b) Where the case involves difficult points of law. State attorneys are persons
qualified to practice law and therefore have knowledge of the legal issues
and points of law. They are therefore capable of handling cases involving
difficult points of law which cannot be handled by any other public
prosecutor.
(c) Where the subject matter of the offence is large. For example in cases
where lots of money is involved in the charge, the state attorneys are
appropriate persons to prosecute. This is to ensure security and minimize
the risks involves which other public prosecutors would not adequately
handle.
(d) Where the case involves the security of the state is no small matter to be
left to any prosecutor. Therefore, since state attorneys are required to have
practiced and gained necessary experience, they are capable of ensuring the
security of the state in any criminal proceeding.
(e) Where the case is generally of a grave nature. Offences like murder,
kidnap, treason defilement and rape contain technicalities that require the
professional skills of a State Attorney as opposed to other public
prosecutors in assembling witnesses and collecting evidence.
(f) Where the case is against a police officer. This is done to save the police
embarrassment of prosecuting themselves.
(g) In practice, State attorneys carry out the same roles as the D.P.P. and in
absence of the D.P.P. they take over his/her functions as controller of

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criminal prosecutions. They may exercise any of the powers vested in the
D.P.P except the power to enter a nolle prosequi.19
The D.P.P. has opened up several offices presided over by Resident State
Attorneys throughout the country and include the following:
Arua, Buganda Road-Kampala, Busia, Bushenyi, City hall-Kampala, Entebbe,
Fort portal, Gulu, Hoima, Iganda, Jinja, Kabale, Kasese, Kiboga, Kumi, Lira,
Lugazi, Luwero, Makindye, Masaka, Masindi, Mbale, Mbarara, Mityana, Mpigi,
Mubende, Mukono, Mwanga II- Kampala, Nabweru-Kampala, Nakawa-
Kampala Nakasongola, Nebbi, Pallisa, Rakai, Rukungiri, Soroti and Tororo.
5.6.3 State Prosecutors

It will be a long time before Uganda will have enough qualified lawyers to
conduct all the prosecutions taking place before all courts in Uganda.
Therefore the persons who hold a diploma in law have been appointed as
State Prosecutors and accordingly do prosecute most of the criminal cases in
the Magistrates Courts.
They rightly supplement the few state attorneys that the department of
D.P.P. has and in some areas around Uganda they are solely in charge of the
stations (courts) or assist the Resident State Attorneys. The Resident State
Prosecutors are still in the following areas:
Adjumani, Apac, Busunju, Buwama, Kagadi (Kibaale), Kajjansi, Kakiri,
Kamwenge, Kanungu, Kapchorwa, Kasangati, Katikamu, Kayunga, Kiira,
Kisoro, Kitgum, Kotido, Kyenjonjo, Malaba, Mateete, Mayuge, Moroto,
Moyo, Njeru, Ntungamo, Nsangi, Ssembabule, Sironko and Wakiso.
5.6.4 Other Public Prosecutors

The D.P.P may appoint generally, or in any case, for any specified class of
20
cases, in any local area, one or more persons to be called public prosecutors.
In addition, the D.P.P may appoint any advocate or any person employed
in public service to be a public prosecutor for the purpose of any case or
cases.21
In exercise of the powers vested in him the D.P.P appointed the following
22
to be public prosecutors:
19 Section 135 Trial on Indictment’s Act.

20 Section 223(1) Magistrates Court Act.
21 Section 223(2) ibid See also Uganda v Besigye and 22 others 2006-Treason case at High Court
prosecuted by a private law firm- Kampala Associated Advocates.
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(a) all police officers of and above the rank of assistant inspector in all cases
before Magistrate’s Court in Uganda.
(b) The superintendent of Weights and Measures and Inspectors of Weights
and Measures for the purpose of prosecuting offences against the Weights
and Measures Act;
(c) The Registrar General, Registrars and Assistant Registrars for the purposes
of prosecuting offences against the Births and Registration Act and
(d) The Official Receiver and Deputy Official Receiver for the purposes of
prosecuting offences against the Companies Act and the Bankruptcy Act.
5.6.5 Police Prosecutors

These are public prosecutors appointed by the D.P.P to prosecute cases in
magistrate courts and therefore they do not appear in the High Court. As
noted earlier, for purposes of instituting proceedings, only police officers of
and above the rank of Assistant Inspector of Police can be appointed as a
public prosecutor.23 It is advisable to appoint only such officers who have
undergone an administrative course in law and prosecution.
The police officer can only prosecute a case where he/she has been
directed to do so by the D.P.P. This is done where there is sufficient evidence
to support a charge, and where the offence is one that can safely be prosecuted
by police. The police officers are usually directed to prosecute minor offences,
where a charge is complicated or a bit technical, he/she is directed or guided
on the matters which he/she should rely on for prosecution.
Police prosecutors are not employees of the D.P.P; they retain their status
as police officers and are only appointed by the D.P.P to assist in the
administration of justice.
The appointment of police officers as prosecutors may sometimes be risky
to the administration of justice since they are prone to overlook gaps in
evidence, mistake procedures or charge suspects with wrong offences. Their
appointment is normally discouraged by the D.P.P because of their limited
skills in the prosecution process.
It is important to note that the police officer who investigated or who took
part in the investigating the case should not prosecute it. In the case of
22 Rule 2 Magistrate’s Court (Appointment of Public Prosecutors) Instrument- SI 16-2 (See also Plant
Manager Tanzania Breweries Ltd Mbeya Deport v Republic [1999] EA 239.
23 Nyakundi and another v Republic [2003] 2 EA 647.
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24
Gamalalieri Mubito v R, it was held that such a practice was irregular and
undesirable and might avoid the trial if prejudice to the accused resulted.
There is good reason for this rule (against investigating officer prosecuting),
since as the investigating officer will usually be a material witness and an
awkward situation will arise if he/she is also prosecuting; but more important
than this the prosecutor would find it difficult to demonstrate that he/she is
acting impartially in an effort to assist the court to reach a just decision,
whatever that decision will be.
The police prosecutors like any other prosecutors have a duty to inform
court of the material discrepancy in the evidence and statements made at the
police. In the case of Mukasa v R,25 the Chief Justice noted:
“I should like it brought to the notice of all police officers who conduct
prosecutions that it is their duty, in a case where the accused is not defended by
an advocate, to bring to the notice of the trial magistrate any serious discrepancy
to the decision of the case, between the statement of a witness made to the police
and his evidence in court”.
Sir Udo Udoma CJ noted that:
Criminal prosecutions were matters of great concern to the state and such trials
must be completely within control of the police and the D.P.P. It is the duty of
prosecution to make certain that a police officer who has investigated and charged
the accused person appears in court as a witness to testify as to the part they
played and circumstances under which they had decided to charge an accused
person. Criminal prosecutions should not be treated as if they were contests
26
between two private individuals.
5.6.6 Private Prosecutors

A private person other than the D.P.P. may also institute criminal proceedings
with the permission of the court.
The right of a private citizen to lay information and the right and duty of
the D.P.P. to supervise criminal prosecutions are both fundamental parts of
criminal prosecutions are both fundamental parts of criminal justice system. It
would be a lacuna in the law if the ordinary citizen at no given time was
empowered to institute criminal proceedings.
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
24 [1961] EA 224.
25 MB 69 of 1959.
26 Twaha Baanera v Uganda Criminal Appeal Number 936 of 1966 (unreported).
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by any person may make a complaint of the alleged offence to 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 made orally shall be reduced into writing by the magistrate
and when so reduced shall be signed by the complainant.27
This type of prosecution by private persons is supported by the
Constitution which confers upon the D.P.P. the function of taking over and
continues any criminal proceedings instituted by any other person or
authority.28
The power of private prosecution is undoubtedly right and necessary in
that it enables the citizen to bring even the police or the government officials
or cronies of DPP before the criminal courts when they commit wrongs
against citizens and the D.P.P. or government is unwilling to make the first
move.
A system of private prosecution can be justified in terms of both society’s
interest in increased law enforcement and the individual’s interest in
vindication of personal grievances.
Full participation by the citizen as a private prosecutor is needed to cope
with the serious threat to society posed by the public prosecutor’s improper
action or inaction.
The right of the citizen to institute prosecution for breach of the law is a
valuable constitutional safeguard against inertia or partiality on the part of the
authority.
However, the power to institute the private prosecution can only be
exercised after the magistrate has granted the complainant leave. The court has
the discretion to grant permission or deny the same but the discretion of the
magistrate must be exercised judicially, sparingly and only on extreme good
grounds. This is intended to avoid misuse of the right to private prosecution
for personal vendetta and vengeful intentions.
The importance of private prosecution was emphasized in the case of
Richard Kamani and M. Maina v Nathan Kahara.29
27 Section 42(1)(c) and Section 42(3) Magistrate’s Court Act.

29 Kenya High Court Criminal Revision Number 11 of 1983 cited in Criminal Procedure in Kenya by
PLO Lumumba page 3.
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“… the right of private prosecution is essential to counteract attempts by wealthy

and influential people to stifle prosecutions when offences by them are alleged in
reports to police.”
The magistrate should also verify and ascertain how the complainant is
involved in the case, what is his/her locus standi, whether he/she has suffered
injury, damage, is he/she motivated by malice and political considerations.
The right to private prosecution has been said to be “a useful constitutional
safeguard against capricious, corrupt or biased, failure or refusal of police
forces and the office of Director of Public Prosecutions to prosecute offenders
against the criminal law”.30
Justice and reason would suggest that such private persons should not only
be allowed but also be given all facilities to move the machinery of law against
the alleged culprits. In fact, as it is in the general interests of the society that
offenders are detected and punished, the legal system should encourage the
citizens to invoke the legal process towards this end.
Here the criminal process is invoked at the instance of the victim of the
crime or any other person. The invocation is completely discretionary at the
instance of such person. However, if the process is once invoked, it is then the
responsibility of the complainant to collect evidence and to produce it in
court.
This means that the complainant will have to spend his/her time and
resources for the conduct of the case. In many cases the complainant may not
have the necessary means, nor skill and capacity required for the job.
Therefore this arrangement by itself will not be adequate to make the
administration of criminal justice really effective.
It deliberately minimizes the individual’s interest in vindication of personal
grievances as an element of punishment; this interest nonetheless has a place in
our criminal justice system. It may be unwise for a society to ignore this
elemental fact of human personality, since individuals frustrated by the law,
may seek unlawful means.
Clearly the injured or aggrieved party has a valid interest in exacting of
justice. It is no answer to respond to this contention by saying that the victim
has a remedy in the civil courts, because his/her injuries are not really
measurable in monetary damages. Also, the accused will almost invariably be
judgment proof.
In the spirit of Abraham Lincoln “with malice towards none, with charity
towards all.” In the context of a private prosecution, there is neither malice nor
30 Gouriet v Union of Post Office Workers [1978] AC 435 at 477.

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any personal gratification but simply a desire to seek justice. Thus this is to say
that a private prosecution is a serious step and one that must be done with
honesty knowing legal procedures and knowing the law is an essential part of
the entire process, thus any one with good intention need to come from a
high place, for no Judge will be favourable to an informant who has done
his/her home work.
5.6.7 Procedure for Private Prosecution

Upon receiving a complaint, the magistrate shall consult the local chief of the
area in which the complaint arose and put on record the gist of that
consultation; but where the complaint is supported by a letter from the local
chief; the magistrate may dispense with consultation and thereafter put that
31
letter on record. Where a magistrate places the letter of the local chief on
court file without writing out the contents or the fact that it has been received
in the hand written record in the court file, the magistrate would have
sufficiently complied with the law.32 After satisfying himself or herself that
prima facie the commission of an offence has been disclosed and that the
complaint is not frivolous or vexatious, the magistrate shall draw up and shall
sign a formal charge containing a statement of the offence or offences alleged
33
to have been committed by the accused.
The magistrate shall issue either summons or a warrant, as he or she shall
deem fit, to compel the attendance of the accused person before the court
over which he or she presides issued in the first instance unless the charge is
34
supported by evidence on oath, either oral or by affidavit.
A magistrate receiving any charge or complaint may, if he or she thinks 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 that charge or complaint, and a police officer receiving such
a direction shall investigate or further investigate the charge or complaint and
35
report to the court issuing the direction.
Similarly, a private person may engage services of private investigators at
his/her expense to investigate the circumstances of the offence and have the
relevant evidence collected and preserved for a possible trial.

32 Rubarema Godfrey v Uganda [1997] HCB 4.
34 Section 42(6) Supra.
35 Section 42(7) Supra.
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5.6.8 Control over Private Prosecution

It is the duty of the D.P.P. 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.
Therefore, the Constitution empowers the D.P.P. to take over and
36
continue any criminal proceedings instated by any other person or authority .
The D.P.P. can with leave of court discontinue any proceedings
commenced by another person or authority.37
The above provisions of the Constitution are buttressed with the
38
Magistrate’s Court Act which provides:
“Where criminal proceedings have been instituted by a person other than a
public prosecutor or a police officer, the Director of Public prosecutions may:
(a) take over and continue the conduct of those proceedings at any stage
before the conclusion of the proceedings.
(b) discontinue the prosecution of the proceedings at any stage of an inquiry
or a trial before a Magistrate’s Court.
(c) require such person in relation to those proceedings:
(i) to give him/her all reasonable information and assistance; and
(ii) to furnish him/her with any documents or other matters and things
in the person’s possession or under his or her control.
It is sometimes important and necessary for the D.P.P. to intervene and
conduct or stay the prosecution to prevent harms that may flow from such
prosecution, for example the harm suffered by an accused who is factually
innocent or the harm to the court system caused by a frivolous prosecution.
However, should private prosecution be taken over by the D.P.P., when
the state attorneys or public prosecutors have proven themselves in that case to
be incapable of doing justice to the aggrieved person or victim.
It is submitted that, if the process is issued by court which hears and sees
evidence of criminal wrongdoing, it should be their duty and obligation and
the D.P.P. should only ensure that justice is done by authorizing the release of
the truth.

37 Article 12O(3)(d) Ibid.
38 Section 43(1) of Magistrates Court Act.
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The D.P.P. only takes over private prosecution for fear that the
government, those holding position of trust, including police officers,
ministers and other high ranking officials would themselves be prosecuted to
the full extent of the law.
The essence of democracy and in particular the rule of law, is the
limitation of the discretion of officials, and providing a process by which
errors, wrongs, omissions or abuse of discretion can be corrected.
Ideally, the office of the D.P.P. should be mutually consistent and
interchangeable, in making similar decisions in similar cases in regard to the
exercise of discretion to take over private prosecutions to all manner of
persons without discrimination as it is seen in some cases.
There should be rules and guidelines to enhance fairness and consistency of
approach in taking decisions in the prosecution process especially on
institution and waiver of prosecution. Should the decision of the DPP not to
prosecute be subjected to judicial review? In case the DPP refuses to prosecute
can he/she later take over the private prosecution even if he is empowered by
the Constitution? Can’t such a decision be challenged in courts of law?
The D.P.P. should in such cases only appear on a watching brief for
purposes of guiding a private prosecutor instead of taking over the whole case
and later frustrate its prosecution up to its conclusion. The person aggrieved or
falsely accused will have a remedy in civil courts under the tortuous liability of
false imprisonment should the case be dismissed or acquitted.
5.6.9 Compensation in case of Frivolous or Vexatious Charge

If on the dismissal of any private prosecution by a magistrate’s court, the court
shall be of the opinion that the charge was frivolous or vexatious, the court
may order the private prosecutor to pay the accused person, in addition to his
or her costs, a reasonable sum as compensation for the trouble and expense to
39
which the person may have been put by reason of the charge.
5.7 NOLLE PROSEQUI

Nolle prosequi is a Latin phrase meaning “do not pursue” or “we shall no
longer prosecute”.
It is the term used in many common law criminal jurisdictions to describe
a prosecutor’s application to discontinue criminal charges before trial, or up
until but before judgment.

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It is also used to describe the prosecutor’s voluntary dismissal of criminal

charges.
This principle is derived from the Constitution provisions which allow the
D.P.P. to discontinue any criminal proceedings.40
The Trial on Indictments Act also provides:41
In any case committed for trial to the High Court, and at any stage thereof before
verdict, the Director of Public Prosecutions may enter a nolle prosequi, either by
stating in court or by informing the court in writing that the state intends that the
proceedings shall not continue, and thereupon the accused shall be at once
discharged in respect of the charge for which the nolle prosequi is entered, and if
he/she has been committed to prison shall be released, or if on bail his or her
recognisances shall be discharged, but such discharge of a person shall not operate
as a bar to any subsequent proceedings against him/her on account of the same
facts.
The prosecution’s application to withdraw the criminal case means that the
prosecution knows it does not have enough evidence (any evidence) that a
crime has been committed, and therefore must consider the accused innocent.
The charges can be reinstated if new information comes to light or the
circumstances of the case change during a given period.
The power to enter a nolle prosequi must be exercised by the D.P.P
exclusively42 and it seems such power is not delegable. A central feature of
nolle prosequi is that it overrides control, generally, no reasons are in law
required for its entry in any particular proceeding and in practice no reason is
seldom given. However, the courts of justice as custodians of justice can
43
question the entering of nolle prosequi.
The ability of the D.P.P. to seek a nolle prosequi is therefore most important
because it provides a check to vexatious prosecutions and protects human
rights.
The entry of the nolle prosequi does not discharge proceedings at the
preliminary inquiry so as to preclude the filing of another charge based on the
facts disclosed at the preliminary hearing.44
Similarly, where the citizen prefers criminal charges as a private
prosecution, the state (D.P.P.) has the right to review the evidence in advance

41 Section 134(1).
42 Article 120(4)(d).
43 Chrispus Karanja Njoka v A.G High Court of Kenya Criminal Application Number 39 of 2000.
44 Peter Harold Richard Poole v Republic [1960] EA 644(PC) see also PHR Poole v R [1960] EA 62 (CA).
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of the trial and to determine whether the case should be allowed to go

forward.
The D.P.P. has a supervisory role over the prosecutorial system and he/she
will decide whether the evidence is sufficient to justify a prosecution and
provides an automatic check and balance to prevent cases of little merit
proceeding.
The prosecution can only withdraw a case of a living person. Thus a dead
person cannot be discharged and a nolle prosequi cannot be entered. In such
circumstances the case abates when an accused dies.45
The modern practice in such cases is to proceed by way of discontinuance.
5.8 WITHDRAW FROM PROSECUTION

This is directly related to nolle prosequi except that for it occurs in magistrate
courts.46
In any proceeding before a magistrate’s court the prosecutor, may, with the
consent of the court or on the instructions of the D.P.P., at any time before
judgment is pronounced, withdraw from prosecution of any person;
A withdrawal has the same problem and effect as nolle prosequi since it
should mainly arise where there is not enough evidence to sustain charges
against the suspects.
It should be noted that all this arises out of haphazard investigation of the
criminal cases by the police. In most cases the police excitedly arrest the
suspects before they have gathered any evidence and in addition refuse to
release the suspects on bond, which forces them to produce them before court
after 48 hours and later fail to gather the evidence within a shorter period. It
should be emphasized to the investigating officers that by the time the suspect
is to be produced before courts of law, the investigations must be complete
and evidence must be ready for prosecution.
The effect of withdrawal of prosecution takes two forms:
(a) if it is made before the accused is called upon to make his or her defence,
he or she shall be discharged but the discharge of an accused person shall
not operate as a bar to subsequent proceedings against him or her on
47
account of the same facts.
45 Msiwa and another v Republic [1999] 2 EA 190.

46 Section 121 Magistrate’s Court Act.
47 Section 121(a) Ibid.
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This means that the charges can be reinstated if new information (evidence)
comes to light or the circumstances of the case change during a reasonable
period.
(a) If it is made after the accused person is called upon to make his or her, he
or she shall be acquitted.48
A withdrawal cannot be made before a court without jurisdiction. The
49
procedure of a withdrawal should be made before a competent court.
5.9 CONSENT TO PROSECUTE

There are some cases which require consent before charges are preferred
against the accused person. This is also one of the ways of control of
prosecutions by the D.P.P.
Many offences which require the consent of D.P.P. for the institution or
continuation of proceedings are set out in different enactments and there
seems to be no criterion for requirement of the consent.
The legislations which require the consent of the D.P.P. merely state as
thus:
“No person shall be prosecuted for an offence under this Act except with the
consent of the D.P.P.”50
Examination of these multifarious statutory provisions fails to reveal any
identifiable theme underlying the limitations. Indeed the suspicion arises that
51
in some instances precedent was followed rather blindly.
The timing of the consent is important in cases requiring consent. If the
case is submitted for sanctioning (pre-charge advice) and a decision is made to
prosecute, consent should be obtained and given at that stage.
Consent to prosecute cannot be implied merely because a senior officer in
the D.P.Ps office is conducting the prosecution. The provisions requiring the
consent seems to be couched in mandatory terms through the usage of ‘shall”
48 Section 121(b) Ibid.

49 Uganda v Yowana Wanerera [1979] HCB 170.
50 Section 3 Anti-terrorism Act 14 of 2002 See also Penal Code sections 43(2), 49(5) 51(2) 61(1)
82(2), 88, 95(3), 151, 180(3) and other Acts of Parliament including Presidential Elections Act
(Section 80) Act 16 of 2005, Parliamentary Elections Act section 87 Act 17 of 2005 Local
Government’s Act section 159 Chapter 243 Exchange Control Act Chapter 71 Companies Act
Parliament (Power and Privileges) Act Chapter 258 Judicial Service Act. Public Service Act,
Official Secrets Act Section 28 Parliament (Powers and Privileges) Act Chapter 258,International
Criminal Court Act 2010.
51 A handbook for Magistrates (Revised Edition 2004) page 201.
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and should not be bent or interpreted otherwise. Modern drafting technique

has provided for the usage of ‘must’ in case of such provisions to reduce any
benefit of doubt.
However in the case of Abdul Suleiman el Harthi and others v R52 court
noted:
“That although consent must be in writing but were the sanctioning authority
preferred and appeared to prosecute the amended charges, the objection that his
consent was not expressed in writing becomes a mere technicality”.
The High Court of Uganda on the same issue held in the case of Uganda v
Ndondo Bernard53 that:
“Where proceedings require D.P.P’s consent the accused is not to be charged and
tried before such consent is obtained otherwise proceedings are a nullity.”
54
Similarly, the High Court of Kenya in the case of Kinyua v Republic also
noted where the consent of the Attorney-General to a prosecution for
corruption was not given until six weeks after the initiation of the
prosecution; any subsequent consent could not operate retrospectively to
make the prosecution an authorised one.
The consent of the D.P.P. must be in writing and signed. This would
require a form to be issued for this purpose setting out the Act under which it
is issued, accused’s name and address, date of consent and signature of the
consenting person. In Uganda, no such form is used, but the D.P.P. merely
endorses on the Charge sheet:
“I Consent to this Charge”
Which I believe is too informal and leaves a lot to be desired.
Some provisions requiring consent of the D.P.P. expressly provide that a
person to be charged with an offence requiring the D.P.P’s consent may
nevertheless be arrested or a warrant for his/her arrest may issued and he or
she may be remanded in custody or released on bail not withstanding that the
consent of the D.P.P. has not been obtained but no further proceeding shall
be taken until his/her consent has been obtained.
In the case of Abubaker Kakyama Mayanja v R,55 the appellant was arrested
on 9 November 1959 and charged by a police officer with contravening the
Ordinance on 17 November the appellant pleaded not guilty. The sanction of
52 (1955) 22 EACA 404 see also Abdul Aziz Suleiman v R [1958] EA 31.
53 [1985] EA 3.
54 [1972] EA 54 see also Reuben Wambwa Kisiagani v R (1955) 22 EACA 470.
55 [1960] EA 23.
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the Attorney General was dated 11 November and it was argued at the trial
that since, the appellant was arrested and charged before the necessary sanction
had been obtained, the prosecution was unlawful.
The appellant was convicted and on appeal, Mc Kisack, CJ held that; for
purposes of section 29 of the Ordinance the institution of a prosecution meant
the commencement of proceedings and “proceedings” referred to court
proceedings did not begin until one or other of the courses provided for in S.
85 of the CPC (plea taking) had been set in motion. The court proceedings in
respect of the charge in question had begun on the 17 November when the
appellant was charged before the magistrate, and therefore the prosecution was
lawful and the conviction unassailable on that ground.
In case of inchoate offences, consent is needed for the prosecution of an
attempt or conspiracy to commit an offence which itself requires consent.
Similarly, consent is needed for aiding, abetting, counseling or procuring
an offence which requires consent.
Incitement to commit an offence does not require consent unless stated in
the legislation.
In sum therefore, the D.P.P. has a duty to control prosecutions and must
specifically consider the case and decide whether or not the proceedings
should be instituted or continued.
However, what is not clear is the remedy available to an aggrieved person
against the decision of the D.P.P. not to prosecute or refusal to prosecute.
Whether mandamus might be available to order the D.P.P. to prosecute or to
give his/her consent for others to prosecute. It is my submission that since this
is an administrative decision it can be challenged by way of judicial review in
the High Court compelling the D.P.P. to perform his/her duty to prosecutor
or give reasons for his/her refusal to prosecute.
In addition, is the requirement of the consent of the D.P.P. or it being in
writing a mere technicality which can be addressed under of the Constitution
which provides that:
“In adjudicating cases both civil and criminal nature, the courts shall, subject to
the law apply the following principles.
(e) substantive justice shall be administered without undue regard to
technicalities.”56
56 Article 126(2)(e).
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5.10 LIMITATION OF TIME TO PROSECUTE

An accused person is entitled to a speedy trial and it must as well be brought
within a reasonable time. Usually under criminal there is not limitation period
within which a charge may be brought against a suspect.
However the legal maxim justice delayed is justice denied has an important
aspect that regulates criminal trials.
The absence of time limit notwithstanding, criminal prosecution must be
initiated- promptly and without undue delay. This is because, any criminal
prosecution is generally presumed to have the object of harmonizing the
society and ridding it of activities perilous to social good. It would therefore
defeat the intention of good government to bring in prosecution founded on a
57
crime whose peril has waned due to the passage of time. In the case of
Uganda v Yusuf Gowan, the accused was charged before the courts of law in
1990’s for murder which was allegedly committed in 1972 after a period of
over 20 years. The prosecution did not take off since the prosecution could
not gather the necessary evidence and the prosecution was bound to fail since
some of the prosecution witnesses had died and others could hardly remember
what actually happened.
There are specific legislations or penal provisions which require
prosecution to be conducted within a specified period after the commission of
the offence and failure of which they cannot institute the criminal charges.
“No person shall be tried for an offence of (treason) sections 23, 24, 25 or 37
unless the prosecution is commenced within five years after the commission of
the offence.”58
“No prosecution for an offence under section 40 shall begin except within six
months after the offence is committed; except where a person:
(a) commits such offence from outside Uganda or
59
(b) leaves Uganda within six months of committing such an offence.”
Proceedings against a person in respect of any offence under this Act shall be
commenced within three months after the offence which is alleged to have
57 Criminal Procedure in Kenya page 5 See also R v Gray Justices ex parte Graham [1982] 3 All ER
653.
58 Section 28 of Penal Code Act.
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been committed or within one month after court finds, on trial of a petition,
60
that an offence may have been committed.
In addition, the Magistrate Courts Act provides:
“Except where a longer time is specially allowed by law, no offence, the
maximum punishment for which does not exceed imprisonment for six months
or a fine of one thousand shillings, shall be triable by a magistrate’s court, unless
the charge or complaint relating to it is laid within twelve months from the time
when the matter of the charge or complaint arose.61
In Kenya, the court found that a period of 11 years was an unreasonable
period to prefer charges or prosecute.62
Prolonged delay in starting or conducting criminal proceedings may be an
abuse of process as, for example, when substantial delay has been caused by
some improper use of procedure by, or inefficiency on the part of, the
prosecution and the accused himself/herself caused or contributed to it and
has been prejudiced by it, in which case the court may stay proceedings for
abuse of process.63
In criminal proceedings mere delay which gave rise to prejudice and
unfairness might by itself amount to an abuse of the process; and in some
circumstances prejudice would be presumed from substantial delay; but in
absence of a presumption, where there was substantial delay, it would be for
the prosecution to justify it.
Court must consider whether a fair trial is possible and not whether the
64
delay is justifiable.
Where there has been no unjustifiable delay, manipulation or misuse of
process by the prosecution, court should first inquire into full facts of the delay
from both the prosecution and the defence. Where the conduct of the accused
is alleged to have contributed to a delay, such conduct must be taken into
65
consideration.
The right to a fair trial public hearing and speedy trial includes a reasonable
time requirement which may result in proceedings being stayed, but only if a
60 Section 81 Presidential Elections Act See also, S. 88 of Parliamentary Elections Act. However the
Local Government Act omitted a similar provision for similar offences but section 172 could be
applied for purposes of such offences.
61 Section 159 Magistrate’s Courts Act.
62 Githunguri v R [1986] KLR.
63 Bell v DPP [1985] AC 937, Bell v DPP of Jamaica [1985] All ER 585.
64 R v Telford Justices, ex parte Badhan [1991] 2 Q B 78, [1991] 2 All ER 854.
65 A-G’s Reference (Number 1 of 1990) [1992] QB 630 at 643-644.
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fair trial is no longer possible, or it is for any compelling reason unfair to try
66
the accused. Likewise, there is no principle of law that where the
prosecution of a criminal offence has failed twice, it is necessarily an abuse of
process to hold a third trial.
The major considerations for prescribing limitation for criminal cases are as
follows:
(a) As time passes the testimony becomes weaker and weaker because of lapse
of memory and evidence becomes more and more uncertain with the
result that the danger of error becomes greater.
(b) For the purpose of peace and repose it is unnecessary that an offender
should not be kept under continuous apprehension that he/she may be
prosecuted at any time particularly because with multifarious laws creating
new offences many persons at some time or the other commit have no
peace of mind if there is no period of limitation even for petty offences.
(c) The deterrent effect of punishment is impaired if prosecution is not
launched and punishment inflicted before the offence has been wiped off
the memory of the persons concerned.
(d) The sense of social retribution which is one of the purposes of criminal law
loses its edge after expiry of a long period.
(e) The period of limitation would put pressure on the organs of criminal
prosecution to make every effort to ensure the detection and punishment
of the crime quickly.
66 A-G’s Reference (Number 2 of 2001) [2004] 1 All ER 1049 [2004] AC 72.

CHAPTER SIX
POLICE AND CRIMINAL INVESTIGATIONS
6.1 INTRODUCTION
The Police force plays a primary role in the administration of criminal justice
through the prevention and detection of crime. Therefore it is the duty of the
police to interrogate suspects, witnesses and carry out arrests and seizures.
In Uganda’s criminal justice system, the police perform investigation on
their own authority in order to execute their functions as enshrined in the
Constitution.
There are various agencies which are charged with the duty to investigate
crime in different government departments i.e. Inspectorate of Government,
Uganda Revenue Authority, Immigration Department, National Bureau of
Standards and National Drug Authority. However, the major responsibility to
investigate crime in respects of general offences under the Penal Code Act lies
with the Uganda Police under its investigatory department known as Criminal
Investigation Department (CID).
The Investigation Department must therefore employ due diligence, skill
knowledge, good judgment, observe statutory laws and regulatory operational
guidelines in the due performance of their investigative functions in order to
assist the state prosecute the right offenders, adduce the right evidence so as to
enable the courts administer justice effectively.
A crime is a wrong not only against the individual victim but also against
the society at large. It is because of this consideration that the state should be
responsible for the investigation of any crime committed in Uganda for and
on behalf of the victim. The police are vested with the power to enforce law
and order, by preventing and detecting crime.
The enforcement of the criminal law demands some encroachment on the
personal freedom of the individual by the police in order that the safety and
security of society at large may be maintained. Without that safety and security
cannot continue as a viable entity. However, the individual liberty of the
citizen should be restricted no more than is necessary to ensure law and order
within the community.
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The Uganda Police Force is established under the Constitution and it is

supposed to be organized and administered in such a manner as Parliament
1
may by law prescribe.
The structure and administration of the Uganda Police Force is under the
command of the Inspector General of Police2 assisted by the Deputy Inspector
General of Police assisted by Directors in Charge of various departments in the
police force.
6.2 FUNCTIONS AND POWERS OF THE POLICE FORCE

The Constitution provides for the functions of police to include the
3
following:
(a) To protect life and property;
(b) To preserve law and order;
(c) To prevent and detect crime; and
(d) To co-operate with the civilian authority and other security organs
established under the Constitution and the population generally.
The above functions are buttressed by the Police Act that sets out the
functions of the Police Authority as follows:4
(a) To protect life, property and other rights of the individuals;
(b) To maintain security within Uganda;
(c) To enforce the laws of Uganda;
(d) To ensure public safety and order;
(e) To prevent and detect crime in society;
(f) To perform the services of a military force.
(g) To perform any other function assigned to it under the Act.
The police officer is vested with wide powers to facilitate the execution of
his/her duties and functions. Section 21 provides that:5
A Police Officer shall in the performance of the functions of his office:

2 Article 213(3)
4 Section 4 Police Act.
5 Police Act Chapter 303.
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Police and Criminal Prosecutions 97
(a) exercise the powers and perform the duties conferred upon him/her by
law;
(b) obey all lawful directions in respect of the execution of his office issued by
a competent authority;
(c) be taken to be on duty at all time;
(d) be willing to serve in any station to which he may be assigned;
(e) promptly obey and execute an order or a warrant lawfully issued by a
competent authority;
(f) collect and communicate intelligence affecting the public peace;
(g) prevent the commission of offences and public nuisances;
(h) detect and bring offenders to justice;
(i) apprehend all persons whom he is legally authorized to apprehend and for
whose apprehension sufficient grounds exist.
The primary objective of an efficient police as can be derived from the
functions is the prevention of crime, the next is that of detention, the
punishment of offenders if crime is committed to these ends all efforts must be
directed to protection of life and property, the preservation of public
tranquility and of crime will alone prove whether those efforts have been
successful and have been attained.
6.3 INITIATION OF CRIMINAL PROCEEDINGS

The process of initiating the criminal process is usually by the victims of crime
or the persons feeling offended or aggrieved by the crime. The person sets
criminal law in motion by making a report to the police or local authority or
the magistrate in the area.6 However even the suspect (as a responsible citizen)
can report a commission of offence by himself/herself.
Access to justice principle demands that any person should be allowed and
given all the facilities to move the machinery of law against the alleged culprits
in order to detect and punish such offenders. The initiation of the criminal
proceeding should be encouraging the citizens to invoke the legal process at
the police which is facilitated to achieve the duty of keeping law, order and
peace.
Likewise, as noted herein above a party may initiate the criminal process
by reporting to the magistrate if in the opinion of the magistrate there is
sufficient ground for proceeding into the case, the magistrate would issue a
6 Section 42(1)(c) Section 42(3) Magistrate Court’s Act.

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summons or warrant for securing the attendance of the accused person for
7
his/her trial.
Under this mode of initiating a criminal process, such invocation is
completely discretionary at the instance of such person.
This usually arises, where the state or the police have refused to take on
the case or arrest such a suspect. However if the process is invoked, it is then
the responsibility of the complainant to collect evidence and to produce it in
court. This would mean that such complainant will have to spend his/her
time and money for the conduct of the case.
In many cases the complainant may not have the necessary means, nor the
skill and capacity required for the prosecution of such suspect.
Therefore this process by itself will not be adequate to make the
administration of criminal justice really effective and that is why the office of
Directorate of Public Prosecution is allowed to take over and continue any
criminal proceedings instituted by any other person or authority.8
Any person aggrieved by the commission of any offence need not
necessarily go to the police for redress. He/she can, directly approach a
magistrate with a complaint.
This procedure is useful particularly when the police officers for one reason
or the other are indifferent or likely to be indifferent towards the
investigations or are colluding with or shielding the offender.
However, great discretion is necessary when the police have no personal
knowledge of the alleged offence. In many cases it is better to apply for a
warrant or summons.
Likewise, whenever police take action on the complaint or information of
a private person, a signed statement should be obtained from him/her if
possible, so that the grounds for police action may be readily substantiated if
their conduct is subsequently called into question.
This is a safeguard against haphazard arrests without sufficient evidence to
justify arrests innocent person who may be victims of mere misunderstandings
without any criminal element.
In general terms, it should be the duty of every citizen to report to the
authorities any crime which he/she knows to have been committed. This
7 Section 42(5.
8 Article 120(3)(c).
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would considerably facilitate the detention of crime and enable the authorities
to combat crime more effectively.
However, it is obviously neither necessary nor advisable to insist on such a
duty in case of every minor offence. It is not, at the same time quite easy to
suggest precisely in respect of what offences such a duty should be imposed.
The scope of such duty in relation to the number and nature of offence has
varied from time to time.
Under the laws of Uganda, there is no specific provision that requires any
person to give information of specific offences. Like in other jurisdiction such
as India which creates a duty to every citizens, aware of the commission of, or
of the intention of any other person to commit certain offences to forthwith
give information to nearest magistrate or police officer of such commission or
9
intention.
The nearest that exists to a similar provision could be seen under the
Constitution under the duties of a citizen which is to the effect that;
It is the duty of every citizen of Uganda to co-operate with lawful agencies
10
in the maintenance of law and order.
The Criminal Procedure Code only obliges a person to render assistance to
magistrate or police officer to be arrested or in preventing or suppressing of a
breach of the peace or in the prevention of any injury to any railway, canal,
telegraph or public property.11
6.4 CONDUCT OF INVESTIGATIONS

When a criminal offence has been reported, the competent authority
commences the criminal process by investigating the circumstances. In this
phase, relevant evidence is collected and preserved for a possible trial.
It should be noted that the suspect equally has the right to collect evidence
in his/her favour.
The investigation of an offence should generally consist of:
(a) Proceeding to the spot/scene of crime
(b) Ascertaining of the facts and circumstances of the case;
(c) Discovery and arrest of the suspected offender;
9 Section 39 the Criminal Procedure Code 1973-India.

10 Article 1(1)(f).
11 Section 23 Criminal Procedure Code.
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(d) Collection of evidence relating to the commission of the offence which

may consist of:
(i) the examination of various persons (including the accused) and the
reduction of their statements into writing.
(ii) the search of places or seizure of things considered necessary for the
investigation or to be produced at the trial
(e) Formation of the opinion as to whether on the materials collected there is
a case to place the accused before court for trial.
An investigation should be deemed complete only when all possible offences
in a case have been investigated.
However, the police should not evolve its own mechanism of inflicting
punishment by summoning unnecessarily of persons as witnesses. Although an
investigating police officer can require the attendance of persons acquainted
with the facts and circumstances of the case under investigation.
Different crimes call for different skills in their investigation; however there
are general principles which are normally followed in the investigation of
crimes. An investigating officer collects evidence through witnesses or
collecting exhibits. The Investigating officer shall:
(a) Interview any eye witnesses who saw the crime being committed and later
request them to make statements to that effect.
(b) Interview persons who may know about the commission of the offence.
(c) Interview persons who heard the offence being committed.
(d) Interview victims of the crime.
The police evidence statements must be recorded on Police Forms PF-2(a)
and PF-2(b).
In recording statements of victim(s) and witnesses, the investigating officer
should ensure the following:
(a) Names, occupation and address of the person making the statement;
(b) Date and place where the statement is done;
(c) Statement should disclose time, place, date and when the crime was
committed;
(d) Statement should as much as possible disclose the ingredients of the crime
charged;
(e) Statement should identify the offender, if known;
(f) Statement should identify possible witnesses.
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The criminal Investigation Department of Uganda Police Force under the

leadership of the Directorate of the criminal investigation are tasked with a
responsibility of carrying out the investigations of offences and make an
effective and efficient instrument for criminal investigations.
6.4.1 First Information Report

Any person can give information to the police relating to the commission of
an offence. This information is usually recorded in the criminal record book
before a statement is made to give the full facts surrounding the occurrence of
the offence.
This information may be followed with more facts surrounding the
commission of the offence in a ‘first hand’ information in form of a statement.
(a) The information is to be given to an officer in charge of receiving such
complaint at the police station (front desk).
(b) When such information is given orally to any such officer, it must be
reduced to writing by the officer himself.
(c) This information, if given in writing, or if reduced to writing as aforesaid,
shall be signed by the person making the statement (informant).12
(d) The information as taken down in writing shall be read over to the
informant.13This is intended to ensure that what has been reduced into
writing is true and faithful version of the information given to the police
officer.
The police officer is obliged to record this information in order to set the
criminal law in motion. The police officer cannot refuse to register the
complaint. Such information availed at the police must not be vague and must
be definite enough to enable the police to start investigation.
The allegations made in this first report to police are taken at their face
value and even if they are accepted in their entirety do not constitute an
offence.
The information taken in by the police should be cautiously investigated
before criminal proceedings are instituted on the basis of such information.
This information is not substantive evidence and it is not evidence of the
facts which it mentions.
12 Rule 8 The Evidence (Statements to police officers) Rules S 16-1

13 Ibid.
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In order to corroborate the testimony of a witness, the first statement made

by such a person relating to the same fact at or about the time when the fact
took place, or before any authority legally competent to investigate the fact
may be proved.
The first information surrounding the commission of the offence should be
lodged with the police as soon as possible after the occurrence of an offence.
The object of insisting upon prompt lodging of the report to the police is to
obtain early information regarding the circumstances in which the crime was
committed.
Any delay in lodging the first information with police quite often results in
embellishment which is a creature of afterthought and on account of delay,
the information not only gets bereft of the advantage of spontaneity, but
danger creeps in of the introduction of coloured version, exaggerated account
or concocted story as a result of deliberation and consultation.
Therefore, in any circumstances where there has been a delay in lodging
the first information should satisfactorily be explained.
6.5 POLICE INVESTIGATION
6.5.1 Witnesses
A police officer in the course of investigations may question any person,
whether suspected or not, from whom he or she thinks he or she may obtain
14
useful information.
An investigating police officer can require the attendance before
himself/herself of any person, where such person is one who appears to be
acquainted with the facts and circumstances of the case.
It is a duty of every person to attend if so required by the investigating
officer. However, there is no corresponding legal duty to answer the
questions. Whilst the person questioned is under a strong moral duty to
answer he/she may generally refuse to give any information, even his/her
own name and address.
The witnesses, who are summoned by the investigating police officer,
usually give an oral statement arising from guiding questions by the police
officer, who thereafter make statements of the witnesses.
14 Rule 3 of Evidence (Statement to police officers) Rules.

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These statements once made at the police become public documents and
they are wholly intended to be used as evidence at trial. Before the trial, such
copies of statements which are made at police must be availed to the accused
on request. This is intended to ensure fair trial so that the accused is able to
know before his/her trial the nature and volume of evidence against him/her.
Such a statement of a person recorded by the police may under certain
circumstances be used for purposes of the first information will have better
corroborative value if it is recorded before there is time and opportunity to
embellish or before the informant’s memory fails.
Whenever, there is undue or unreasonable delay in lodging the first
information, it inheritably gives rise to suspicion which puts the court on
guard to look for possible motive and the explanation and consider its effect
on the trustworthiness or otherwise of the prosecution version.
Upon making the first information in form of a statement, a police file will
be opened.
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 information is usually in the form of statements recorded from
witnesses interviewed or interrogated.15
The different types of police files are:
(a) MCB (Minor Contravention Book)-these are minor crimes usually
investigated by uniformed police e.g. common assault
(b) CRB (Crime Record Book)-these are serious offences investigated by the
Criminal Investigations Department
(c) TAR (Traffic Accident Records)-these are traffic offences investigated by
the traffic police
Contradiction, if such Person is Called as a Prosecution Witness

Where person is being examined by a police officer for purposes of making a
statement, he or she is required to answer truly all questions put to him/her by
such officer. However, such person is not bound to answer such questions, the
answers of which would have a tendency to expose him/her to a criminal
charge or to a penalty.
15 Page 18 of A guide to Criminal Procedure in Uganda (2 ed) by B.J Odoki.

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It is quite important for effective investigations that every person

questioned by the police officer must furnish and must be under a legal duty
to furnish, all information available within him/her to the police.
It is submitted that the law should require that a person be legally bound to
answer truly all questions relating to such cases, and should be liable to a
punishment once it is discovered that he or she gave false information to the
police. In sum the statement made to the police should be made under oath.
However, any person who gives false information to the police on which
the police take action or to a police inquiry commits an offence and is liable
on conviction to imprisonment not exceeding one year. The prosecution is
only with consent of the DPP.16
6.5.2 Evidentiary Value of Statements.

A statement recorded by police officer during investigation is neither given on
oath nor is it tested by cross-examination. Under the Law of Evidence, such
statement is not evidence of facts stated therein and therefore it is not
considered as substantive evidence.
However, in practice when the person making a statement is called as a
witness at the time of trial, his or her former statement, according to normal
rules of evidence could be used for corroborating his/her testimony in court
or for showing how his or her former statement was inconsistent with his
deposition in court with view to discredit him or her.
An omission to state a fact or circumstance in the statement may amount to
a contradiction if the same appears to be significant and otherwise relevant
having regard to the context in which such omission occurs and whether any
omission amounts to a contradiction in particular context shall be a question
of fact.
Statements made to police during investigation should not be used for
corroboration since the police cannot be trusted for recording statements
correctly and that the statements cannot be relied on by the prosecution for
corroboration of their witnesses as statements recorded are of self serving
nature.
In addition, such statements recorded by the police during the course of
investigation are usually taken down in a haphazard manner in the midst of
confusion.

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When a person is called in trial as a defence witness, his/her former

statement before the police cannot be used for contradicting him/her. The
rationale appears to be rooted in the fact that it would be improper to allow a
witness to be contradicted by a record prepared by the opposite party.
6.5.3 Recording Statements

A potential witness conversant with the facts of the case/offence may record
his/her statement personally.
The statements usually contain the main body of evidence in the particular
case.
They are usually recorded in narrative form and in chronological order and
must be in English which is the language of court in Uganda.
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:
(a) if there is present any police officer literate in the language being used by
that person, the police officer literate in that language shall write down the
statement as nearly as possible in the actual statement; or
(b) if there is not present any police literate in the language being used by that
person, the statement shall be translated by some person with a knowledge
of the language being used and shall be written down by the police officer:
(i) in the language into which it is translated; and
(ii) as nearly as possible, and in so far as translation admits, in the words
used by the person making the statement.17
Fair investigation requires that statements made to the police or other
authorities in the course of investigation should be true and unbiased.
The investigating authorities should not use any inducement, threat or
promise to the maker of the statement which might influence his or her mind
and lead him or her to suppose that thereby he/she would gain any advantage
or avoid any evil in reference to his/her conduct as disclosed in the
proceedings.
It bears emphasis that witness statements should be taken in all cases where
there is a likelihood of a conflict of evidence or any complaint against the
police or where from the character and position of the persons concerned or
other reasons, complications may arise.
17 Rule 7 of the Evidence (Statement to police officers) Rules.

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They should also be taken when there is suspicion that witness will be
interfered with, or that the complaint is bogus.
The major objects for witness statements are:
(a) To convey all the facts to higher authority.
(b) To determine what action should be taken.
(c) To assist in the examination of witnesses in court and
(d) To justify any action taken by the police.
As far as possible, the convenience of the witness should be consulted,
especially as regards the place and time. He is assisting the police and his/her
wishes should be met with every consideration.
If the taking of a statement occupies a long period of time, care should be
taken that the witness is not caused to suffer fatigue; an interval for rest or
possibly refreshment may be necessary.
Police statements are supposed to be recorded on Police Form 2B,
however due to logistical problems the police usually improvise and write
statements on any ordinary papers.
The statement must contain the particulars of the witness i.e. full names,
age, sex, tribe or nationality, occupation, residence, postal address, telephone
contact, date, time and the police station.
After the introductory information, then the body of the evidence follows.
The investigating officer should record the statement from the witness, so that
he/she is able to extract the relevant evidence for purposes of prosecution.
The witness statement should prove something or disprove some fact or
evidence. The statement should be written in simple language avoiding vague
or ambiguous words or sentences.
The statement should be recorded in direct speech and in first person. The
evidence contained in the statement should be based on admissible evidence
only and any hearsay evidence based on rumours should not be contained in
the statement. It must be clear whether the witness is speaking from personal
knowledge or whether he/she is repeating information received from other
persons.
The recording officer should countersign the statement with his/her full
names. Such police officer may be required to tender the statement in court
and has to prove that it was recorded by him/her. Even when the statement is
self recorded by a witness, the officer receiving such statement should
countersign and record his/her name.
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It is important to note that a witness can make additional statements on

specific aspects of the witness’s story, if there is an important matter of fact
which could have skipped the mind of the witness in order to bring about
clarity. Where the additional statement has the effect of retelling the whole
story with inconsistencies, then the credence of the witness will be doubted
and the credibility will be greatly weakened.
It is necessary to take a further statement from a witness, to explain or
amplify what he/she said in his/her original statement, or upon some aspect
which he has not mentioned or which was not previously put to him. In this
circumstance it is not necessary to take down the whole story a fresh, but a
further statement should be taken covering the new matter only. It should be
clearly headed “ADDITIONAL STATEMENT” so that the reader will
clearly know that there is an earlier statement.
In addition, when a witness makes any statement and wishes to make
amendments or additions, such amendments must be initiated by the officer
and the witness.
If more than one sheet of paper is used, each used must be signed by
witness and the officer.
The investigating officer should ensure that all relevant witnesses have
made a statement before handing over the file to the Resident State Attorney
for sanction.
It was noted by the Ssebutinde Commission (Commission of Inquiry on
Uganda Police) that sometimes statements are never recorded from vital
witnesses, which greatly affects the prosecution case and that is how justice is
deliberately compromised by the police officers.
A good police investigator is such is one who misses nothing which he/she
may have a clue to the detection of the criminal. The experienced detective
will notice many things in connection with the crime which even the most
intelligent outsider would over look.
6.5.4 Accused/Suspect
Rule 3 which form the basis for the examination of any person whether
suspected or not, allow the police to question any person who may be accused
18
of the crime subsequently.
The accused person, even after his/her remand to judicial custody, can
subject to his/her right to silence, be questioned by the police.
18 The Evidence (Statements to police officers) Rules S1 6-1.

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However, where a police officer has decided to charge a person with an

offence, he or she shall administer a caution before questioning or as the case
19
may be continuing to question that person.
Though the law requires that the person who is giving information to
police is required to answer truly all questions put to him/her by such officer,
he/she is however, not bound to answer questions to which would have a
tendency to expose him/her to a criminal charge.
Whenever a police officer is recording a statement of a suspect, such
suspect shall not be cross-examined.20
It must be borne in mind, however, that what an accused person says
when first accosted, before he/she has had time think up spurious excuses is
often the most revealing thing he/she ever says.
The police officer should inform the court of such oral statements when
giving evidence in court to show the weight of evidence that sparked off the
investigation in the entire matter.
The Constitution of Uganda gives protection to a suspect or person
charged against questions the answers to which would have a tendency to
21
expose him/her to a criminal charge. The accused person may remain silent
or may refuse to answer when confronted with incriminating questions.
The accused person should not be forced to answer questions merely
because the answers thereto are not implicative when viewed in isolation and
confined to that particular case. He/she is entitled to keep his/her mouth shut
if the answer sought has a reasonable prospect of exposing him/her to guilt in
some other accusation actual or imminent even though, the investigation
underway is not with reference to the tendency to expose a criminal charge
wider than the actual exposure of such charge.22
However, fanciful claims, unreasonable apprehensions and vague
possibilities cannot be the hiding ground for an accused person. He/she is
bound to answer where there is no clear tendency to criminate.
In determining the incriminatory character of an answer the accused is
entitled to consider the setting, the totality of circumstances, the equation,
personal and social, which have a bearing on making the answer substantially
innocent but in effect guilty in import.
19 Rule 4 Ibid.
20 Rule 6 supra.
22 Blunt v Park Lane Hotel Ltd [1942] 2 KB 253 at 257.
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It is important to note that a statement made by accused person to the

police in the course of investigation is totally inadmissible in evidence and it is
immaterial whether the statement amounted to a confession or admission.
6.5.5 Procedure of Administering Caution

Before administering a caution to a prisoner (person to be charged) a police
officer shall:
(a) charge him/her with an offence; or
(b) inform him or her of the nature of
(i) the charge which is likely to be preferred against him/her.
(ii) the act or acts in respect of which it is contemplated taking
proceedings against him or her; or
(iii) the matter which the police officer is investigating; and
(c) ask him or her if he or she wishes to say anything about the matter.23
The caution to be administered under the rules shall be in the following
words:
“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.”24
Where two or more prisoners (persons suspected of committing offences) are
charged with the same offence and statements are taken separately from those
persons, a police officer may read the statement of one prisoner to the other
25
prisoner or prisoners but nothing shall be said or done to invite a reply.
If a prisoner desires to make a reply, a caution shall be administered.26
The significance of the caution is that it indicates to the person cautioned
that the police are no longer making enquiries to determine who the author
of the crime is but rather they are seeking legal proof against him/her as the
one they believe to be responsible.
Perhaps the caution serves no useful purpose; professional criminals do not
need to be reminded of their legal rights, and the innocent, well capable of
offering a satisfactory explanation of their conduct, may say nothing.
23 Rule 9 of the Evidence (Statement to police officers) Rules.

24 Rule 10 Ibid.
25 Rule 11(4) Supra.
26 Rule 11(2) Supra.
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However, the caution reminds a suspect of his/her right to remain silent;

hence it gives “formal effect to the privilege against self incrimination”.
6.5.6 Duty of Police Officer Taking Statement

When a statement has been written down, the person making the statement
should be invited to read it over and alter it if he/she wishes. The statement
should in all cases be read over to him or her, and he/she should be asked to
sign it and to initial each page and any alterations.
The police officer taking the statement should immediately below the
statement and the signature of the person making it, write and sign a note that
the statement was taken by him, that he has read it over to the person making
it and (if it be the fact) that it has been read over by that person.
This note should also be signed by any other person who was present at
the taking of the statement.
Interrogation of suspects and taking statements from suspects and witnesses
calls for great thoroughness and circumspection to ensure that the evidence
shall be admissible and withstand cross-examination and is often the decisive
factor in an important investigation.
When the police officer himself is a witness in the case he should make out
a statement of what he can prove, confining the statement to the facts of
which he can speak of his/her own knowledge. Every police officer who has
been involved in the investigations of the case must make a statement which
should form part of the police file.
Police officers who carry out the investigations of any case have a duty not
only to investigate the case and assemble the evidence in that case but must
also testify in courts of law upon their findings by giving reasons for arresting
the accused and establish the scene of crime and the role it played in pinning
the accused to the commission of the crime. Where exhibits were recovered
by him/her, they shall be tendered in court through him as the person who
recovered and exhibited the item at police for the purpose of evidence in
court.
The police investigating officer must possess essential qualities such as good
communication skills, strong ethical values, must be resourceful and
compassionate and must ensure that due diligence and reasonableness are used
in order to ensure effectiveness.
Hence, the responsibility of an investigating officer includes not only
completing the preliminary and following up investigations but also to
understand the importance of physical evidence in criminal investigations.
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6.6 CONFESSIONS
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.27
A confession must be made by the suspect voluntarily in his/her free will,
without use of violence or force threats of any kind or inducements or
promises of concessions. At the trial the persecution must prove that the
confession was made voluntarily by the accused.
The first of the exclusionary rules is that a confession is not admissible in
evidence unless it is “voluntary”. The term does not denote that the
confession must be “volunteered” or even that it is a statement the accused
“desires” to make; rather, it means a statement made “in exercise of a free
choice to speak or be silent”.
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, forceful
28
threat or promise calculated to cause untrue confession to be made.
However, if such confession is made after the impression caused by any
such violence, forces, threat inducement or promise has been fully removed,
the confession is relevant.29
The rationale for a voluntary statement or confession is noted in the
Constitution which bars a person from giving evidence against him or
30
herself.
There are several ways in which physical threats or violence may be
exerted on the witness/suspect i.e. by psychic torture, atmospheric pressure,
environmental coercion, tiring interrogative prolixity, overbearing and
intimidatory methods and the like.
Similarly, frequent threats of prosecution if there is a failure to answer may
take on the complexion of undue pressure.
Legal penalty may itself not amount to duress but the manner of
mentioning it to the victim of interrogation may introduce an element of
tension and tone of command perilously hovering near compulsion.
27 Section 24 Evidence Act.

28 Section 25 Ibid
29 Section 26 Ibid.
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The best way to obviate the fact that the confession/statement is not taken
under threats is to allow the suspect or accused to have his/her lawyer by
31
his/her side when the police interrogate him/her.
In carrying out their duties in connection with the questioning of suspects
and others the police must, above all things be scrupulously fair to those
whom they are questioning, and in giving evidence about the circumstances
in which any statement was made or taken down in writing they must be
absolutely frank in describing to the court what occurred and then it will then
be for the court to decide whether or not the statement tendered should be
admitted in evidence.
The mode of recording a confession is not the same as in the case of
recording a statement.
The mode of recording a confession is much more elaborate so as to
ensure that free and voluntary confessions alone are recorded under the law.
If the person making the statement would prefer to write out the statement
himself/herself, and his/her degree of education is sufficient to enable him to
do so, he/she should be encouraged to do so and supplied with writing
materials.
A person making a voluntary statement must not be cross-examined and
no questions should be put to him/her except for removing any ambiguity in
what he/she has said.
The police officer above the rank of Assistant Inspector of Police (AIP)
shall before recording any confession, explain to the person making it that he
or she is not bound to make a confession and that if he/she does so, it may be
used as evidence against him/her.
By and large the police are not as yet considered trustworthy. It is
apprehended that any power given to the police is confined to very senior
officers to record confessions who may more likely or not misuse the same,
since other overzealous police officers might in the apparent exercise of
power, extort or fabricate confessions.32
31 Article 28.
32 Wasswa v Uganda [2002] 2 EA 667 (SCU), Bogere Charles v Uganda [1998] LLR 8 (SCU).
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Therefore the act of recording a confession is a solemn act, and in

discharging his or her duties AIP police or magistrate must take care to ensure
that the requirements of the law are fully followed to the letter.
6.6.1 Salient Features of Confessions

(a) A confession or a statement can be recorded only by a police officer of a
rank of Assistant Inspector of Police or by a magistrate. The basic object to
entrust the serious business of recording confession upon specific officers is
that by virtue of their training, experience and wisdom they can find out
whether it is voluntary or not.
(b) Confessions can be recorded either in the course of an investigation, or at
any time afterwards before the commencement of an investigation.
(c) Before making any such confession, the police officer of a rank of Assistant
Inspector of Police or magistrate is required to explain to the person
making the confession that he/she is not bound to make such a confession
and if he/she does so it may be used as evidence against him/her.
“You need not say anything unless you wish but whatever you do will be
taken down in writing and may be given in evidence”
The person taking a confession should see to it that the warning is
brought home to the mind of the person making the confession.
It is necessary that the police officer (AIP) or Magistrate should
disclose his/her identity to such person so as to assure him/her that the
confession is made before the proper person.
After giving warning (caution) to the person making a confession, the
police should give him/her adequate time to think and reflect. No hard
and fast rule can be made in this connection, but it is of utmost importance
that the mind of such a person is completely freed from any possible
influence by anybody.
However, how much time for reflection should be allowed to an
accused person before recording his or her confession is a question which
depends on the circumstances in each case.
(d) Every enquiry must be made from the accused as to the custody from
which he/she was produced, the custody to which he was to be consigned
and the treatment he/she had been receiving in such custody in order to
ensure that there is no scope for any sort of extraneous influence
proceeding from a source interested in the prosecution still lurking in the
accused’s mind. If marks or injuries are found on the person of the
accused, he/she should be asked how he received them. This is a major
safeguard against recording a confession based on torture of the victim by
complainants, police or other security organs.
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(e) The accused should be assured, in plain terms, of protection from such
extraneous agents as the police or the like in case he declines to make a
statement.
(f) The accused should particularly be asked the reason why he is going to
make a confession which would surely go against his self interest in course
of trial and he should further be told in order to remove any lurking
suspicious in his mind that even if he contrives subsequently to retract the
confession, it will be evidence against him still.
(g) The police officer recording the confession must appreciate his function as
a senior police officer and must apply his mind to the task of ascertaining
that the confession the accused is going to make is of his own accord and
not on account of any influence on him. The police officer must put
questions to the accused in order to ascertain the voluntariness of the
confession.
(h) If the accused knows how to write, he may be asked to write out his/her
confessional statement. This ensures that the accused was mentally capable
of translating his thoughts into writing as well.
(i) It is imperative for the police officer to explain to the accused his or her
constitutional right i.e. to consult a lawyer before recording his/her
confession.
6.7 SCENE OF CRIME

A scene of crime is any place where an offence is committed whether wholly
or partially. Whenever a serious crime (felony) is committed police officers
must ensure that the first police officer at the scene of crime will cordon it
pending the arrival of the most senior investigating officers. A scene of crime
ceases to be a scene once the investigating officer is satisfied that all the
evidence required to be collected from the scene has been taken into safe
custody. A scene can extend to a wide area depending on the possibility of
presence of evidential exhibits.
6.7.1 Duty of an Investigating Officer at Scene

Whenever a senior investigating officer arrives at the scene, he/she will
automatically take over management of the scene by doing the following;
(a) Determine whether the cordon is sufficient.
(b) Extend or narrow down the cordon after determining the direction of
entry exit from the scene by the subject.
(c) Determine the witnesses to make statements.
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(d) Search the scene carefully in order to establish any pieces of evidence that
may be used as clues such as weapons, personal property, documents and
any other material of evidential value.
(e) Draw up a sketch plan of the scene.
(f) Where necessary call for other technical support/personnel such as the
photographers, finger print experts.
(g) Enter his or her findings in a crime record known as Criminal Report
Book (CRB).
(h) Inform the CID headquarters by wireless transmission (WT) within 24
hours of the incident.
(i) After 7 days of the incident, the investigating officer through the district
CID officer submits to CID headquarters the summary of the facts of the
case and the preliminary investigations carried out on Police Form 16.
(j) Within 30 days thereafter the investigating officer will submit a progress
report on Police Form PF 16 a.
(k) If there are any finger print marks or any other exhibits lifted from the
scene of the crime, then the investigating officer must submit for analysis
by the relevant experts on police form PF 17.
(l) In the case of an injured victim of crime the investigating officer will issue
PF3 so that the police Surgeon can give his opinion on the nature of
injuries sustained.
(m) Where there are other specimen samples like blood, fluids etc then the
Investigating officer sends them to the Chief Government Chemist using
PF 17.
(n) Where there is death involved then the investigating officer must deliver
the body to the pathologist for an autopsy and produce report on PF 48.
6.8 TECHNICAL EVIDENCE

Crimes today are being committed with increased sophistication requiring
scientific methods of crime investigation. Modern investigating officers do rely
on technical evidence to prove technical aspects of crime. Experts will
normally be summoned to guide court on such technical aspects of the crimes
committed. These experts include pathologists, ballistic experts, government
analysts, fingerprint experts, bomb experts, photographers, DNA experts etc
Particular police forms are used for submission of relevant requests for
technical analysis and the Investigating Officer should submit relevant police
forms to the experts on which to return their technical opinions.
Types of police forms include the following:
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Subject form used by expert

Police statements PF 2a and 2b
Personal inquiry PF 3 PF 3
Rape/Defilement PF 3/Annex PF 3/Annex
Finger prints (previous record) PF 20 PF 45 N.R
Finger prints (women) PF 21 PF 45(a) N.R
Finger prints (Elimination) PF 20 Report
Post-mortem PF 48 PF 48(a)
Inquest PF 48 PF 48(b)
Post-mortem (at scene) PF 48 PF 48(c)
Examination of inquiry PF 24 PF
24Chemical/ballistic/QDA/MVS/Blood/DNA PF 17 PF 17(a)/Report
Record of previous conviction PF 45(a)
Police Charge Sheet PF 53
6.9 HANDLING OF EXHIBITS

Police exhibit recovered at the scene of the crime must be handled in a
systematic manner since exhibits form part of the evidence. All exhibits in a
case must be entered in the police exhibit book of the relevant police station
(PB) and an exhibit slip issued and kept in the case file. The exhibits must be
securely kept under lock and key by the officer-in-charge of the police exhibit
store. This is the officer who will finally hand over the exhibits in court
during the trial.
The chain of handling of police exhibits is so crucial that if any doubt is
created as to the source of the exhibit or that there was a break in the chain of
handling, then the evidential value of such exhibits maybe challenged by
objection to their tendering.
(a) Exhibits must be properly marked and labeled by the Investigating officer
showing the case file number.
(b) Exhibits which are likely to decay or decompose must be sent to the Chief
Government Chemist as soon as possible.
(c) Where there is a need for a forensic examination or analysis of both the
exhibit and the specimen samples, the exhibits and samples must be
sealed/packed separately, labeled and submitted to the expert with relevant
investigation on PF 17.The expert’s opinion will be returned in form of
experts’ report.
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(d) The integrity and identity of exhibits and specimen samples must be
ensured.33
6.10 SKETCH PLAN

This is an investigating officer’s graphic or visual representation of the scene of
crime. It helps the court and other law officers to visualize the nature and
appearance of the scene of crime at the time when the investigating officer
visited the scene. Everything of importance including positions and distance
must be shown. Relative distances between the different objects must be
indicated. Symbols or alphabetical letters should be used on the plan to show
places, and key locations of importance without explanations on the sketch
plan.
Explanation may be added on a separate page but the letters should be used
as a key to the plan. The sketch plan should be prepared in triplicate and will
form part of evidence in the case.
6.11 CONCLUSION
The disparity between law and practice in the police operations in execution
of their duties is a matter of great concern to the public over many years. A
police force operates efficiently only to the extent that it inspires public
respect and confidence and thereby receives the support of the community in
the solution of crimes. If law enforcement officers are generally perceived as
acting illegally that respect and confidence will be quickly eroded. Therefore,
it is submitted that what the police do and what they are lawfully entitled to
do should be reconciled. Thus the fundamental problem of the legislature and
courts is to prescribe restrictions that will provide an acceptable degree of
security without unduly infringing upon individual freedom.
33 Uganda v Christopher Musisi [1977] HCB 289, Uganda v Albino Ajok [1974] HCB 176.
CHAPTER SEVEN
SUMMONS, ARREST AND DETENTION
7.1 SUMMONS
7.1.1 Introduction
There are two methods of procuring the attendance of the accused at trial,
either by issuing a summons to him/her, or by his/her arrest. The principle of
fairness demands that the trial proceedings are conducted in the presence of
the accused and that he /she is given a fair chance to defend himself or herself.
In case the accused is found guilty at the conclusion of the trial, he/she
must be available in person to receive the sentence passed on him/her.
The recourse of arrest and detention of a suspect should not be resorted to
in every case, though it is apparently simple and expedient. If the presence of
the accused at the trial can be reasonably ensured otherwise than by his/her
arrest and detention, the law ought not to deprive him/her of his or her
liberty.
The detention of the accused prior to or pending trial is likely to cause
direct or indirect obstructions in the preparation of his/her defence and would
not therefore be quite conducive to a fair trial.
The Constitution provides for the presence of an accused person at the trial
as thus:
Except with his or her consent, the trial of any person shall not take place in the
absence of that person unless the person so conducts himself or herself as to
render the continuance of the proceedings in the presence of that person-
impracticable and the court makes an Order for the person to be removed and
the trial to proceed in the absence of that person.1
Consequently, the provisions regarding the issue of summonses or arrest are all
aimed at ensuring the presence of the accused at his/her trial without
unreasonably depriving him or her of his/her liberty.
1 Article 28(5) Constitution see also section18 Magistrate’s Court’s Act.

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However, the law does not classify what offences are for issuance of
summons or arrests, so it remains a discretionary decision to be taken by the
responsible police officer.
Obviously the basis of the classification is the seriousness of the offence to
which the case relates. Therefore a case for issuance of summons relates to a
comparatively less serious crime and status or position in life of the suspect.
7.1.2 Criminal Summons

It is a legal document presented to someone telling them what date to appear
at police or in court.
A criminal summons is a simple document issued by a court containing a
number of facts justifying an inquiry into a complaint against an accused
2
person and requiring him/her to attend the inquiring.
Where an accused person is not present in court, the Magistrate shall issue
a summons requiring him or her to appear.3
The Magistrate’s Court’s Act provides that:
Every summons issued by a Magistrate’s court shall be in writing in duplicate,
signed and sealed by the Magistrate or by such officer as the Chief Justice may
from time to time direct.4
Every summons shall be directed to the person summoned and shall require
him or her to appear at a time and place to be appointed in it before a court
5
having jurisdiction to inquire into and deal with the complaint or charge.
It shall state shortly the offence with which the person against whom it is
issued is charged.6
It can be deduced from the above provision that a criminal summons
consists of a statement of crime or infraction of which the person to be
summoned is accused, and an order directing that the person so accused
appear and answer to the charges made against him/her.
No criminal summons is invalid because of any technicality of pleading if
the statement is sufficient to identify the crime or infraction. The sole purpose
2 Page 29 Criminal Procedure and Law in Uganda by FJ Ayume, LawAfrica Publishing, 2010.
3 Section 18 Magistrate Courts Act.
5 Section 44(2) supra.
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Summons, Arrest and Detention 121
of the summons is because the accused is entitled to know the complaint or

charge he/she is being compelled to answer.
The summons must order the person named therein to appear in a
designated place or court or police station at a designated time and date and
answer to the charges made against him/her.
7.1.3 Service of Summons

Service of court process is effected by personal service.
Every summons shall be served by a police officer or by an officer of the
court issuing it or by other public servant and shall if practicable, be served
personally on the person summoned by delivering or tendering to him/her
7
the duplicate of the summons.
Every person on whom a summons is so served shall, if so required by the
serving officer, sign a receipt for it on the back of the original summons.8
(a) Service when persons summoned cannot be found

Where the person summoned cannot by the exercise of due diligence, be
found, the summons may be served by leaving the duplicate for the person
with some adult member of his/her family or with his or her servant residing
with him or with his or her employer; and the person with whom the
summons is so left shall, if so required by the serving is so left shall be required
by the serving officer, to sign a receipt for it on the back of the original
9
summons.
(b) Procedure when service cannot be effected

If service in the manner provided by sections 45 and 46 cannot by the exercise
of due diligence be effected, the serving officer shall affix the supplicate of the
summons to some conspicuous part of the house or homestead in which the
person – summoned ordinarily resides, and thereupon the summons shall be
deemed to have been duly served.10
7 Section 45(1) op.cit.

9 Section 46 op.cit.
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(c) Service on Government Servant

Where the person summoned is in active service of the Government or of the
East African Community; the court issuing the summons shall ordinarily send
it in duplicate to the head of the office in which that person is employed, and
the head shall thereupon cause the summons to be served in the manner
provided by section 45, and shall return it to the court under his or her
11
signature with the endorsement required by that section.
12
The signature shall be evidence of the service.
(d) Service of summons on corporate bodies

Service of a summons on an incorporated company or other body corporate
may be affected by serving it on the secretary, local manager or other principal
officer of the corporate or by registered letter addressed to the Chief Officer of
the corporation at the registered office of the company or body corporate in
Uganda. In the latter case service shall be deemed to have been effected when
the letter would arrive in the ordinary course of post.13
(e) Where summons may be served?

A summons may be served at any place in Uganda.14
(f) Proof of service when serving officer not present

Where the officer who has served a summons is not present at the hearing of
the case, and in any case where a summons issued by a court has been served
outside the local limits of its jurisdiction, and affidavit purporting to be made
before a Magistrate that the summons has been served, and the original of the
summons purporting to be endorsed in the manner hereinbefore provided by
the person to whom it was delivered or tendered or with whom it was left,
shall be admissible in evidence; and the statements made in the affidavit shall
15
be deemed to be correct unless the contrary is proved .
If the original is not endorsed in the manner hereinbefore provided, the
affidavit shall be admissible in evidence if the court is satisfied from the

13 Section 49 op.cit See also Stephen Obiro v R [1962] EA 61 Court noted that the charge against the
society was bad in law because criminal proceedings could not be against unincorporated body.
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statements made in it that service of the summons has been effected in

16
accordance with the foregoing provisions of this Act.
The affidavit mentioned in this section may be attached to the original of
the summons and returned to the court.17
7.1.4 Disobedience of Summons

Effect of non appearance after service of summons will automatically result in
issuance of a Warrant of arrest.
If the accused person, other than a corporation, does not appear at the time
and place appointed in and by the summons, and his or her personal
attendance has not been dispensed with under section 52; the court may issue
a warrant of arrest to apprehend the accused person and cause him or her to
18
be brought before the court.
A warrant shall not be issued under this section for the arrest of any person
unless the court is satisfied by evidence on oath that the summons directed to
19
that person was duly served.
7.2 ARREST
7.2.1 Introduction
Arrest means the deprivation of a person of his/her liberty by legal authority
or at a least by apparent legal authority. The deprivation of liberty under such
circumstances is for the purpose of compelling such a person to appear in
court to answer a criminal charge or prevent a person from causing injury or
danger to himself or herself or to testify against another person.
Arrest consists the seizure or touching of a person’s body with a view to
his/her restraint; words may, however, amount to arrest if, in the
circumstances of the case, they are calculated to bring, and do bring, to a
person’s notice that he/she is under compulsion and he/she thereafter submits
to the compulsion.
Every compulsion or physical restraint is not arrest but when the restraint is
total and deprivation of liberty is complete, that would amount to arrest.

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Where a person apprehends another with a view to extract ransom, that

person is not arresting that person but is wrongly confining that person.
Therefore, if a person suppresses or over powers the voluntary action of
another and detains him/her in a particular place and compels him/her to go
in a specific direction, he/she is said to imprison that other person. If such
detention or imprisonment is in pursuance of any legal authority or apparent
legal authority, it would amount to arrest.
Preventing a person from making his/her movements and from moving
according to his/her will amount to arrest of such a person.
The right to personal liberty of every individual is a basic human right
recognized in our Constitution as a fundamental right.
20
“No person shall be deprived of personal liberty except for the” purpose of
bringing that person before a court in execution of the order of court or is about
to commit a criminal offence under the laws of Uganda.”
Where the arrest has no basis and it is not for a proper purpose then it
becomes improper and it is actionable in tort as false imprisonment and
likewise if not done by a person authorized, it may amount to a criminal
21
offence of abduction or kidnapping or wrongful confinement.
The law of arrests embraces several competing interests and harmonizes
these interests based on the need to enforce the law on the one hand and the
need to respect the individual respect of the other. While the need to enforce
the law takes precedence over respect for individual liberty, the law of arrests
attempts to balance this precedence over respect for individual liberty by
setting out a proper procedure where a person is to be arrested.
There is need to prevent abuse of the power to take into custody; the
desirability of keeping the use of force to a minimum; the desirability of
making arrests a swift and simple matter.22
Arrest means apprehension of a person by legal authority resulting in
deprivation of his/her liberty. The law contemplates two types of arrests (a)
arrest made in pursuance of a warrant issued by a Magistrate; and arrest made
without such warrants but made in accordance with some legal provision
permitting such arrest based upon reasonable suspicion of committing a crime.
20 Article 23(1) Constitution see also Universal Declaration of Human Rights and African Charter on
Human Rights.
21 Sections 239–248 Penal Code Act.
22 A Handbook for Magistrates (Revised Edition 2004) page 177 .
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The police typically want to arrest suspects to facilitate investigation and

prosecution, but to what extent should they be allowed to infringe the
freedom of the individual in this way?
7.2.2 Privilege from Arrest
(a) President
No person except the President is privileged from arrest on a criminal charge.
“While holding office, the President shall not be liable to proceedings in any
court.”23
However, “Civil and Criminal Proceedings may be instituted against a person
after ceasing to be a president, in respect of anything done or omitted to be
done in his or her personal capacity before or during the term of office of that
person; and a period of limitation in respect of any such proceedings shall not
be taken to run during the period while that person was President”.24
Under International Law, a President may be arrested, if he/she is indicted
for crimes against humanity or war crimes, crimes of aggression or genocide at
the International Criminal Court to which Uganda is a signatory:
“At any time after the initiation of an investigation, the pre-trial chamber shall on
the application of the prosecutor, issue a warrant of arrest of a person if, having
examined the application and the evidence or other information submitted by the
prosecutor, it is satisfied that:
(a) There are reasonable grounds to believe that the person has committed a
crime within the jurisdiction of the court.”25
(b) Members of Parliament

Members of Parliament are not privileged from criminal process and can as
well be arrested if they have committed any offence even if they are in the
compound of parliament.
The Members of Parliament are however protected from arrest for civil
debts.

25 Article 58 (1) of Rome Statute of the International Criminal Court e.g. the Prosecutor of court
(Louis Ocampo) sought a warrant of arrest for a sitting president of Sudan (Omar-el- Bashir) 2008.
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No member shall be liable to arrest for any civil debt, except a debt the
contraction of which constitutes a criminal offence, while going to, attending
26
at, or returning from a sitting of parliament or any committee”.
(c) Diplomats
The person of a diplomatic agent shall be inviolable. He shall not be liable to
any form of arrest or detention. The receiving state shall treat him with due
respect and shall take all appropriate steps to prevent any attack on his person
or dignity.27
However, it is possible for the diplomatic agent’s home country to waive
immunity and in such circumstances he/she would be arrested and prosecuted.
In practice, a diplomatic agent may be arrested by any person when he/she
is not at the premises of the mission or residence of the mission or traveling in
the motor vehicle of the mission. This simply means that the arresting
authority would effect arrest without knowledge of the status of such
diplomatic agent and it would only be upon identification as a diplomatic
agent that such person may be released immediately.
No place affords any protection from arrest except embassy premises of
missions.
“The premises of the mission shall be inviolable. The agents of the receiving State
may not enter them, except with the consent of the head of the mission.28
The receiving state is under a special duty to take all appropriate steps to
protect the premises of the mission against any intrusion or damage and prevent
any disturbance of peace of the mission or impairment of its dignity.”29
In addition, the private residence of a diplomatic agent shall enjoy the same
inviolability and protection as the premises of the mission.30
26 Section 3 Parliament (Powers and Privileges) Act.

27 Article 29 Diplomatic Privileges Act (Vienna Convention on Diplomatic Relations). Diplomatic
agent is defined to mean the head of mission or a member of staff of the mission.
28 Article 22(1) Diplomatic Privileges Act (Vienna Convention on Diplomatic Relations) 1961.
30 Article 30(1) supra.
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7.2.3 Method and Manner of Arrest

The manner in which the arrest can be effected by any such person is
provided in the Criminal Procedure Code which is as follows:
In making an arrest the police officer or other person making it shall
actually touch or confine the body of the person to be arrested, unless there is
31
a submission to the custody by word or action.
It can be deduced from the above provision that arrest being a restraint of
the liberty of a person can be effected by actually contacting or touching the
body of such person or by his/her submission to the custody of the person
making arrest. The submission to custody may be by express words or may be
indicated by conduct.
An oral declaration of arrest without actual contact or submission to
custody will not amount to an arrest. However, there may be an arrest by the
words “I arrest you, without any touching, provided that the person submits
to the compulsion. Indeed, an arrest is constituted when any form of words is
used which, in the circumstances of the case, is calculated to bring to the
person’s notice that he/she is under compulsion and he/she submits to that
compulsion.
However, submission is not essential to constitute an arrest, provided that
the physical contact and the words spoken would indicate to a reasonable man
that he is being arrested.
Where a person submits to a police officer to make a statement after
he/she is accused of having committed an offence, he/she would be
considered to have submitted to the custody of the police officer. Likewise,
where the accused proceeds towards the police station as directed by a police
officer, he/she would be held to have submitted to the custody of the police
officer.
In case there is forcible resistance to or attempt to evade arrest, the person
attempting to make arrest may use all necessary means for the same as
provided by the law.
If a person forcibly resists the endeavour to arrest him or her or attempts to
evade the arrest, the police officer or other person making arrest may use all
32
means necessary to effect the arrest.
31 Section 2(1) Criminal Procedure Code Act.

Section 5 ibid Beard and another v Republic [1970] EA 448 the complainant was made to sit down
and was tied to a tree with shares. Court held that the complainant had made no attempt to escape
and he should not have been tied up.
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In other words, there is no need to touch the person being arrested if

he/she agrees to go with the person effecting arrest without resistance or
argument.
It is even unnecessary to handcuff or tie him/her if he/she behaves himself
and intends to cause no trouble. In addition, an arrested person should not be
subjected to more restraint than is necessary to prevent his or her escape.
Whether the means used for arrest were necessary or not would depend
upon whether a reasonable person having no intention to cause any serious
injury to another would have used to effect his or her arrest.
Nothing shall be deemed to justify the use of greater force that was reasonable in
the particular circumstances in which it was employed or was necessary for the
apprehension of the offender.33
Therefore, the necessary means to prevent escape will depend on the
circumstances of the particular case and this may justify the degree of force
applied.
In considering whether the amount of force was reasonable, regard has to
be made 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.
Where the offence is grave and violence is involved, the person arresting
may be justified to use a dangerous weapon like a fire arm to arrest the
offender or prevent him/her from escaping.
The Police Act allows the use of fire arms by police officers in special
34
cases.
A police officer may use a fire arm against:
(a) a person charged with or convicted of a felony who escapes from lawful
custody;
(b) a person who through force, rescues another person from lawful custody;
(c) a person who, through force, prevents the lawful arrest of himself or of any
other person.
35
In the case of Byarugaba v Uganda. The appellant, a police inspector was
convicted of unlawfully wounding two men who had been arrested but not
charged with any offence. They were handcuffed and unarmed, and the

34 Section 28(1) Police Act.
35 [1973] EA 234.
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appellant was armed with a revolver. Court held that; the suspects were
already under arrest and that a person escaping from lawful custody may be
pursued and arrested, but greater force may not be used than is reasonable. It
was held further that it was not reasonable to shoot at unarmed, handcuffed
men whose homes were known to the police.
Therefore, though persons making arrests can use all necessary means for
the purpose of arrest, they have not been given any right to cause death or
grave injury to persons to be arrested.
Resort shall not be had to the use of arms under the Police Act36 unless:
(a) the police officer has reasonable grounds to believe that he cannot
otherwise prevent an escape or otherwise effect the arrest; or
(b) the police officer has issued a warning to the offender that he/she is going
to resort to the use of arms and that the offender did not heed that
warning; or
(c) the police officer has reasonable grounds to believe that he/she or any
other person is in danger of grievous bodily harm if he/she does not resort
to the use of arms save that only such force as is reasonable in the
circumstances may be used.
Similarly, other laws equally provide for the use of force in effecting arrest.
Where any person is charged with a criminal offence is charged with arrest,
or attempted arrest, by him or her of a person who forcibly resists the arrest or
attempts to evade being arrested, the court shall, in considering whether the
means used were necessary, or the degree of force used was reasonable, for the
apprehension of that person, have regard to the gravity of the offence which
had been or was being committed by the person and the circumstances in
which the offence had been or was being committed by the person.37
Where a security officer has reason to believe that any person has or is
about to commit the offence of robbery within the meaning section 285 of
the Penal Code Act (Robbery) and that person refuses or neglects to submit to
arrest by any person or does any act calculated to evade arrest, then the
security officer may use any force he or she may deem necessary to prevent
escape of that person.38

37 Section 16 Penal Code Act.
38 Section 2 The Robbery Suspects Act a security officer is defined to mean any member of UPDF,
Uganda Police Force and Prisons.
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39
In case of Uganda v Jonail Kisegerwa and another, Court held that the law
permits use of force to effect an arrest where the situation warrants but this
force must be carefully exercised. It is not reasonable to cause death unless it is
necessary to so and the evil which would result from failure to effect the arrest
is so great that a reasonable person would feel justified in taking another life to
avert that evil. The accused were found guilty of manslaughter and sentenced
to 15 years imprisonment.
40
In the case of M’Ibui v Dyer, court noted that there is no destruction
between the power of the police officer and of a private person to arrest
without a warrant on suspicion of a felony; and so long as there are reasonable
grounds for the suspicion, a private person is entitled to arrest and in doing so
to use such force as is reasonable in the circumstances or is necessary for the
apprehension of the offender.
The defendant was negligent in firing the third shot in the direction of the
plaintiff and was not protected by any of the provisions of the criminal law as
the amount of force used in the particular circumstances was neither
reasonable nor necessary.
41
Similarly in the case of Bukenya v Attorney General, Members of the
Armed Forces shot the plaintiff and contended that it was done in order to
effect arrest. Court held that neither the police, soldiers nor private citizens
when lawfully entitled to arrest without a warrant may shoot anyone in cold
blood.
42
In the case of Uganda v Muherwa, the Judge found that the accused had
killed the deceased by cutting his leg with a panga when he was trying to
escape after having been found by the accused stealing his beans, court held
that any person exercising power of arrest cannot exceed this power by doing
an unlawful act. If one cannot apprehend the thief physically then he cannot
prevent the thief’s escape by incapacitating him by cutting his legs or shooting
him. In other words, the right of arrest of a private person, if it cannot be
otherwise exercised, does not justify incapacitating the thief with a weapon.
In line with the above, some law enforcing agencies or persons effecting
arrest especially the police, have the tendency and great temptation of
assaulting persons in their lawful custody soon after arrest. It is a temptation
39 [1978] HCB 137.

40 [1967] EA 315, Stephen Oporocho v Uganda [1991] HCB 8.
41 [1972] EA 326 see also Gawera v East Mengo District Administration [1972] EA 145 person arrested
should be brought to magistrate within 24 hours except when it is a public holiday.
42 [1972] EA 466.
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that ought to be overcome because they are fully aware that that is unlawful
43
and attracts penal sanctions as provided under the Magistrate’s Court Act.
“Where a complaint of torture of a suspect in custody is made to a magistrate,
the magistrate shall order investigation into the allegation and if the allegation is
proved to be true, the magistrate shall order for the examination and treatment of
the person affected at the expense of the state and any person responsible for the
torture shall be charged.”
It bears emphasis that the power given to law enforcing agencies, such as
police, are given exclusively for lawful purposes from which the public is
entitled to benefit and these powers must be used reasonably and in public
interest.
Resistance to unlawful arrest is not unlawful per se, even killing in
resistance to unlawful arrest, but may become unlawful if disproportionate.
The rationale to this rule is that unlawful interference with a person’s liberty is
so reprehensible that resistance to it is justifiable.
By contrast, if a person resists a lawful arrest he may be convicted of
assaulting, resisting or obstructing a police officer in execution of his duty,
even if he did not know the arresting officer was a policeman or that he was
acting in execution of his duty.
Clearly, there are remedies available both in our civil and criminal courts
to the victims of unlawful arrests and acts of high-handedness on the part of
those wielding powers of arrest. The powers vested in them are sometimes
open to abuse because of human facility and experience has shown that very
often these powers are deliberately misused to the detriment of members of
the public.
A police officer who arrests without knowing the definition of the offence
for which he/she is arresting is likely to commit the offence of false
imprisonment.
Apart from inconveniencing and embarrassing his/her victim, he/she is
likely to put the government to great expense in defending a suit arising out
of this tort since it is vicariously liable for the police officer’s wrongful actions.
No doubt, if a police officer is left unquestioned in the law courts every
time he exceeds his/her powers and unlawfully arrests or assaults any person in
the course of his/her duties, the image of the police, government and our
legal system will be tarnished in the eyes of the people whom the law seeks to
protect.44
43 Section 25.
44 Page 36 Criminal Procedure and Law in Uganda by FJ Ayume, LawAfrica Publishing, 2010.
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7.2.4 Additional Power for effecting Arrest

An occupier of a house is under a legal duty to afford to the police all the
facilities to search the house for the purpose of making arrests.
If 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
that place shall, on demand of the person acting under the warrant or such
police officer, allow him/her free ingress to the place and afford all reasonable
facilities for a search in it.45
Where such facilities are denied or obstructions are put in the way of the
police officer, then such officer may use force for getting entry into the house.
If ingress to such place cannot be obtained, it shall be lawful in any case for
a person acting under a warrant and in any case in which a warrant may issue,
but cannot be obtained without affording the person to be arrested an
opportunity to escape, for a police officer to enter the place, to break open
any outer or inner door or window of any house or place, whether that of the
person to be arrested or any other person; if after notification of his or her
authority and purpose, and demand of admittance duly made, he or she
46
cannot otherwise obtain admittance.
The law allows the police officer to use force for getting entry into the
house for search and also for liberating himself or herself in case he/she is
47
detained in the house.
7.2.5 Stop and Arrest

Frequently, the police will observe somebody who needs to be checked or
stopped and upon reasonable suspicion the police may swing into action and
48
stop the person or if he/she refuses then arrest.
A stop by definition is a type of seizure with two subtypes; show of force
and show of authority. It is a seizure of the person or specifically, a
deprivation of their liberty.
Innocent contacts or police-citizen encounters; such as stopping to ask for
directions, do not constitute a stop.

47 Section 4 supra.
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The officer must physically lay hands on the individual with the intent of
detaining them or show-of-authority stop which does not involve any
touching, but the officer by their look, demeanour, and display of authority
persuades the person to submit or at least acquiesce to that authority.
A required element of a show-of-authority stop is that persons submit to
the show of authority, believe they have been arrested, feel compelled to
cooperate and feel unfree to leave.
In determining legality, a stop must meet the totality of circumstances’ test,
looking at the whole picture, from the perspective of both the officer and the
suspect. The length of the stop must also be reasonable, stops of 20-30
minutes have been considered reasonable.
The duration, location, invasiveness, and freedom to walk away are all
factors to be considered in the totality of circumstances’ test.
A stop is justified in any combination of the following circumstances:
(a) the suspect does not seem to ‘fit’ the time and place.
(b) the suspect fits a description of a wanted person in a flyer/newspaper.
(c) the suspect is acting strangely, emotional, angry, frightened, or intoxicated.
(d) the suspect is loitering, hanging out, or looking for something.
(e) the suspect is running away or engaging in furtive movements.
(f) the suspect is present in a crime area.
(g) the area is a high crime area.
7.2.6 Arrest with Warrant

A warrant of arrest is a written order issued and signed by a magistrate and
addressed to a police officer or some other person specifically mentioned or
named, and commanding him/her to arrest the body of the accused person
named in it.
Where the accused person, other than a corporation does not appear at the
time and place appointed in and by the summons, and his or her personal
attendance has not been dispensed with, the court may issue a warrant to
apprehend the accused person and cause him or her to be brought before the
49
court.

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Notwithstanding the issue of summons, a warrant of arrest may be issued at

any time before or after the time appointed in the summons for the
50
appearance of the accused.
Ordinarily a warrant of arrest is issued 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 a warrant
is required to secure the appearance of the accused to answer the charge.
The decision to issue or not to issue a warrant involves a balancing of
social interests with those of the individual accused. Where the accused person
is likely to abscond and disobey summons, social interests would demand that
he/she be arrested and detained so that he can be effectively put on his/her
trial.
When criminal proceedings have been commenced by a police officer or a
public prosecutor first laying a charge in court, the court may issue a warrant
for the apprehension of the suspect. Usually, when the accused person has
been released on bail and fails to honour his/her bail conditions, a warrant of
arrest will issue against him or her. Similarly a warrant will issue against
witnesses who fail to turn up to give evidence.
The accused person risks going through the humiliation of being put under
arrest and probably in handcuffs. This could be in addition to a possible
prosecution for contempt of court or cancellation of bail. However before
such proceedings are commenced, court will satisfy itself by evidence that the
accused’s failure was deliberate and without reasonable excuse.
7.2.6(a) Form and Contents of a Warrant of Arrest

A warrant of arrest it written authority given by a competent magistrate for
the arrest of a person.
The warrant of arrest must be in writing and must have been signed and
51
sealed by a magistrate or court.
Every warrant shall state shortly the offence with which the person against
whom it is issued is charged and shall name or otherwise describe that person,
it shall order the person or persons to whom it is directed to apprehend the
person against whom it is issued and bring him or her before the court having
50 Section 54 ibid.
51 Section 56(1) Magistrate Court’s Act.
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jurisdiction in the case, to answer to the charge mentioned in it and to be

52
further dealt with according to law.
The warrant of arrest may also include a direction that if the person
arrested under a warrant executes a bond and gives security for his/her
attendance in court, he/she shall release the person from custody.53
Warrant to whom directed - A warrant of arrest may be directed to one or
more police officers or chiefs named in it or generally to all police officers or
54
chiefs.
Any court issuing such warrant may, if its immediate execution is necessary
and no police officer or chief is immediately available, direct it to any other
55
person, and that person shall execute the warrant. When a warrant is directed
to more officers or persons than one it may be executed by all or by any one
56
or more of them.
A Chief Magistrate may direct a warrant to any landholder, farmer or
manager of land within the local limits of the magistrate’s jurisdiction for the
arrest of any escaped convict, proclaimed offender or person who has been
57
accused of a cognizable offence and has eluded pursuit.
Procedure of execution of warrant of arrest – A warrant directed to any
police officer can also be executed by any other police officer whose name is
endorsed upon the warrant by the officer to whom it is directed or endorsed.
The police officer or other person executing a warrant of arrest shall notify
the substance of the warrant to the person to be arrested, and if so required,
shall show him or her warrant and shall without unnecessary delay bring the
person arrested before the court before which he /she is required by law to
produce that person.58
A warrant of arrest may be executed at any place in Uganda59 and it
remains in force until it is executed or withdrawn or it ceases to have effect in
accordance with the rules of court.

54 Section 58(1) Magistrate’s Court Act.
56 Section 58(3) op.cit see also section 60.
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Irregularities in warrant – Any irregularity or defect in the substance or

form of a warrant, any variance between it and the written complaint or
information, or between either and the evidence produced on the part of the
prosecution at any inquiry or trial, shall not affect the validity of any
proceedings at or subsequent to the hearing of the case; but if any such
variance appears to the court to be such that the accused has been deceived or
misled by the variance, the court may, at the request of the accused, adjourn
the hearing of the case to some future date and in the mean time remand the
60
accused or admit him/her to bail.
The issuing officer/magistrate must be satisfied that the grounds
substantiate the request for the arrest otherwise the warrant will be unlawful.
In addition, the warrant will also be unlawful where it does not name or
otherwise describe the person to be arrested or give particulars of the offence
alleged.
7.2.7 Arrest without Warrant

In case of arrests without a warrant, the decision to arrest is no doubt made by
persons other than courts i.e. by police officers, private citizens. These persons
may not have the judicious mind and detached outlook, and yet because of
the exigencies of certain situations the law (code) allows them to make the
arrest decisions themselves without obtaining warrants of arrests from
magistrates.
Where a serious crime has been perpetrated by a dangerous person and
there is every chance of the person absconding unless immediately arrested, it
would be certainly unwise to insist on the arrest being made only after
obtaining a warrant from court.
Most arrests are effected by the police officers as part of their duty of
maintaining law and order. Preventive action may sometimes be necessary in
order to avert the danger of sudden outbreak of crime, and immediate arrest
61
of the trouble-maker may be an important step in such preventive action .
Even in case of a less serious crime immediate arrest without a warrant may
become necessary to ascertain the name and address of the offender
perpetrating the crime.
Arrests without warrants by police officers are equally necessary as a
preventive – measure for forestalling of impending crimes, and for enabling
the police to discharge their duties effectively.
60 Section 64 see also section 12 Trial on Indictments Act.

61 Sections 24, 26, 27 Criminal Procedure Code Act.
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Sometimes, the police officer may not arrest the main accused due to
influence even though his/her co-accused might be arrested. The discretion of
the investigating agency to arrest does not mean whim, fancy or wholly
arbitrary exercise of discretion.
7.2.8 Arrest by Police

A police officer may, without a court order and without a warrant, arrest a
person if he/she has reasonable cause to suspect that the person has committed
or is about to commit an arrestable offence.62
Any police officer may, without an order from a magistrate and without a
63
warrant, arrest.
(a) any person whom he or she suspects upon reasonable grounds of having
committed a cognizable offence, an offence of the provisions of Chapter
XVI of the Penal Code Act or any offence for which any law provision is
made for arrest without a warrant.
(b) any person who commits a breach of the peace in his or her presence;
(c) any person who obstructs a police officer while in execution of his or her
duty, or who has escaped or attempts to escape from lawful custody;
(d) any person whom he or she suspects upon reasonable grounds of being a
deserter from the Uganda People’s Defence’s Force;
(e) any person whom he or she finds in any highway, yard or other place
during the night and whom he or she suspects upon reasonable grounds of
having committed or being about commit a felony;
(f) any person whom he or she suspects upon grounds of having been
concerned in any act committed at any place out of Uganda which, if
committed in Uganda, would have been punishable as an offence, and for
which he or she is, under the provisions of any written law, liable to be
apprehended and detained in Uganda;
(g) any person having in his or her possession without lawful excuse, the
burden of proving which excuse shall lie on that person, any implement of
house breaking;
(h) any person for whom he or she has reasonable cause to believe a warrant
of arrest has been issued;
(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 that thing.
62 Section 23 Police Act see also Article 23(1)(c).

63 Section 10 Criminal Procedure Code Act.
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Any police officer may arrest without a warrant any person whom he or she
suspects on reasonable grounds of having committed or being about to
64
commit an offence against the Act (Fire Arms Act).
Arrest of vagabonds, habitual robbers-65 Any officer in charge of a police
station may in like manner arrest or cause to be arrested:
(a) any person found taking precautions to conceal his or her presence within
the limits of that station under circumstances which afford reason to
believe that he or she is taking the precautions with a view to committing
a cognizable offence;
(b) any person within the limits of that station who has no ostensible means of
subsistence or who cannot give a satisfactory account of himself or herself.
(c) any person who is by repute an habitual robber, house breaker or thief or
an habitual receiver of stolen property knowing it to be stolen, or who by
repute habitually commits extortion or in order to commit extortion
habitually puts or attempts to put persons in fear of injury.
It should be noted that the above power to arrest is strictly vested in an officer
in charge of a station and not ordinary policemen. An officer in charge of
police means Inspector appointed by the Inspector-General to be in charge of
66
a police or a police unit in an area.
Arrest for refusal to give name and resident- When any person who in the
presence of a police officer has committed or has been accused of committing
a non-cognisable offence refuses on the demand of the officer to give his or
her name and residence, or gives a name or residence which the officer has
reason to believe to be false, he or she may be arrested by the officer in order
67
that his or her name or residence may be ascertained. A person is at liberty to
refuse to give his name and address until he is satisfied that it was lawfully
required of him.68
69
In the case Onyango v Uganda the court held that a mere failure to
produce a receipt could not itself afford a reasonable ground for suspicion that
the radio was stolen and that an explanation offered by the appellant that he
bought the radio in Kisumu was sufficiently reasonable to have warranted its
acceptance as satisfactory.
64 Section 37 Fire Arms Act.

66 Section 1 Police Act (Interpretation Section).
68 Ibrahim Sadrudin v R [1958] EA 518, Mulji Ratanji v R [1957] EA 866.
69 [1967] EA 386 Wachangira Kuria v Republic [1957] EA 808.
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The courts have emphasised that the power of arrest without a warrant, is a
grave invasion on liberty of the individual, and is one that must be exercised
circumspectly and only when there is reasonable suspicion which must be
based on reasonable grounds and this requirement is limited in the sense that
police are called upon before acting to have anything like a prima facie
conviction.70
The arrest by a police officer of a person on suspicion that he has
committed an offence or that he is about to commit an offence will be
unlawful unless the suspicion is ‘reasonable” In making his decision to arrest
the police officer may rely on information supplied by others but his/her
belief or suspicion must be shown to be reasonable. Where his/her belief is
not shown to be reasonable the arrest will be unlawful, even though he had an
honest belief. The legality of the arrest is determined objectively, the
reasonableness of the police officer’s suspicion being what a court considers
reasonable.
Therefore reasonable suspicion or belief must be shown on arrest, the
legality of the arrest being judged by the information available to the police
officer at the time of arrest and not by what happens afterwards. Thus, an
arrest will be lawful where a police officer’s suspicion was reasonable at the
time of arrest, even though the charge was dismissed, a different charge was
preferred or no charge was preferred.
Whether there are reasonable grounds for suspecting a person to be guilty
of an offence is to be determined objectively. The police officer need not have
in mind the specific statutory provision, or mentally identify specific offences
with technicality or precision, but he must reasonably suspect the existence of
facts amounting to an offence of a kind which he has in mind.
The police officer’s suspicion need not be based on his/her own
observations but can be based on what he has been told, or on information
given to him/her anonymously; it is not necessary for him/her to prove what
was known to his/her information or that any of the facts on which he/she
based his suspicion were in fact true; whether such information provided
reasonable grounds for the police officer’s suspicion depends on the source and
context, viewed in the light of surrounding circumstances.
However, the mere fact that an arresting police officer has been instructed
by a superior officer to effect arrest is not capable of amounting to reasonable
grounds for necessary suspicion.
70 Bennet Nvule v A G and 3 others [1978] HCB 31.

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The power of arrest without a warrant is subject to limitations. The

requirement of reasonability and credibility would hopefully prevent the
misuse of such powers. What is a reasonable complaint or suspicion or what is
credible information must depend upon the facts and circumstances in each
case.
The test of reasonable suspicion leaves much to the officer’s individual
judgment and this is in general justified by the special training an officer has
received, the experience he or she accumulates in the field, and the social
desirability of not hedging his actions with so many restrictions as to make
him timid in the exercise of his/her duty.
The power of arrest must be exercised for a proper purpose and where the
arresting constable knows that there is no possibility of a charge being made,
the arrest is unlawful because the constable has acted on an irrelevant
consideration or for an improper purpose.
Rule 24 of the Disciplinary Code of Conduct of Police provides that:
A police officer is guilty of unlawful or unnecessary exercise of authority if
he or she
(a) Without good or sufficient cause makes any unlawful or unnecessary arrest.
7.2.9 Arrest by Magistrate

As Magistrates are relatively responsible executive and judicial officers with
detached outlook, they have been given wider powers of arrest.
Any Magistrate may at anytime arrest or direct the arrest in his or her presence,
within the local limits of his or her jurisdiction, of any person for whose arrest he
or she is competent at the time and in the circumstances to issue a warrant.71
If any offence, irrespective of its nature and seriousness, is committed in the
presence of any magistrate, such magistrate can himself or herself or with the
help of others arrest the person committing the offence, even if no such
offence is committed in the presence of such magistrate, but if the magistrate
is competent to issue a warrant for the arrest of any person, and the person is
present before him or her, he or she can arrest such person.
Considering the general principle of impartiality and bias under the
Constitution, a magistrate involved in the arrest process is deemed to be
personally interested in a case and should not try it otherwise it may be a
mockery of justice.

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7.2.9(a) Assistance to Magistrate or Police Officers

Every person is bound to assist a magistrate or police officer reasonably
demanding his or her aid:
(a) in the taking or preventing the escape of any other person whom that
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.72
Where the assistance given under the above provisions is lawful, no civil or
criminal proceeding could lie against the person rendering such assistance.
7.2.10 Arrest by a Private Person

It is in the general interest of the society that a person committing a very
serious offence should be immediately arrested and expeditiously dealt in
accordance with the law. The powers of the police to arrest without a warrant
are to an extent helpful for this purpose but they may not in themselves prove
adequate in all situations.
When a serious offence has been committed in presence of several private
persons and no police officer is in sight near the scene of the offence, it would
be unreasonable to tell the private person witnessing the crime that they
cannot arrest the offender without first obtaining a warrant from court or to
wait for police to take steps for the arresting the suspect.
The Code therefore empowers a private citizen to make arrest without a
warrant:
(a) Any private person may arrest any person who in his or her view commits
a cognisable offence, or whom he or she reasonably suspects of having
committed a felony.73
(b) Persons found committing any offence involving injury to property may
be arrested without a warrant by the owner of the property or his or her
servants or persons authorized by him or her.74
While the police are allowed to arrest without a warrant for any offence
committed in his/her presence, this provision in relation to private persons
only allows them to arrest without a warrant for cognisable offences.
72 Section 23 Magistrate Court’s Act.

73 Section 15(1) Criminal Procedure Code Act, Stephen Oporocha v Uganda [1991] HCB 9.
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75
A cognisable offence is defined under the Code to mean any offence:
(i) which on conviction may be punished by a term of imprisonment for one
year or more.
(ii) which on conviction may be punished by a fine exceeding Four Thousand
Shillings.
If the private person making arrest fails to follow the law and it turns out that
no offence was in fact committed, and no felony was reasonably suspected, he
or she may be liable for false imprisonment or assault and battery.
Therefore the right of arrest by a private person under this section must be
exercised simultaneously with the commission of the offence.
This law on arrest by private citizens has been criticized by some legal
scholars as being impractical to some degree as it is unrealistic and
unnecessarily complex.
Ordinary persons cannot be expected to know the difference between
cognisable and non-cognisable offences that are felonies and those that are
only misdemeanours. Nor does it seem sensible to hold a private person liable
for a reasonable mistake in making an arrest in a society where there are
relatively few police officers and consequently active public cooperation in the
suppression of crime is urgently needed.76
If the person arrested is subsequently acquitted of the alleged offence for
which he/she was arrested, an arrest will not have been lawful for these
77
purposes because no offence has been committed.
7.2.11 Procedure following Arrest without a Warrant

Though the persons arresting have been given various powers from facilitating
the making of arrests, the powers are subject to certain restraints. These
restraints are primarily provided for the protection of the interests of the
person to be arrested, and also of the society at large. The imposition of the
restraints can be considered, to an extent as the recognition of the rights of the
arrested persons.
A person arrested without a warrant has a right to know why he/she is
being arrested. It is precondition of lawful arrest that the person arrested
75 Section 1 Criminal Procedure Code Act (Interpretation).

76 Page 181 A hand book for, Magistrates supra.
77 R v Seif [1992] 3 All ER 476.
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should know the nature of the charge or suspicion for which he/she is
78
arrested.
It is the duty of the person arresting to inform the arrested person the
reasons for the arrest unless of course, the arrested person creates a situation
whereby it would be impossible to inform him i.e. by counter attack or by
running away.
The right to be informed of the grounds of arrest is a precious right of the
accused person. Timely information of the grounds of arrest serves him/her in
many ways. It enables him/her to move the proper court for bail or in
appropriate circumstances for a writ of habeas corpus or to make expeditious
arrangements for his or her defence.
Where a person is arrested, otherwise than by being informed that he/she
is under arrest, the arrest is not lawful unless the person arrested is informed
that he/she is under arrest as soon as is practicable after his/her arrest.
Arresting persons are required to inform the person arrested of the relevant
circumstances of the arrest in relation to that person’s involvement, suspected
involvement or attempted involvement in the commission of an offence and
in relation to the reasonable grounds for believing that the person’s arrest is
necessary.
An arrested person must be given sufficient information to enable him/her
understand that he/she has been deprived of his/her liberty and the reason
he/she has been arrested. For example when a person is arrested on suspicion
of committing an offence, he must be informed of the suspected offences
nature, when and where it was committed.
The suspect must also be informed of the reason or reasons why arrest is
considered necessary. While conveying this information, vague or technical
language should be avoided.
An arresting officer is under a duty to maintain arrest until it is possible to
inform the person arrested of the ground of arrest, but subsequent failure to
give this information does not retrospectively make the officer’s acts in the
intermediate period unlawful79. Arrest which is unlawful because no reason has
been given may subsequently become lawful arrest from the moment that
80
reasons are given.
78 Christie v Leachinsky [1947] AC 573.

79 DPP v Hawkins [1988] 3 All ER 673.
80 Lewis v Chief Constable of the South Wales Constabulary [1991] 1 All ER 288.
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Officers in charge of police station shall report to the nearest magistrate

within twenty four hours the cases of all persons arrested without a warrant
within the limits of their respective stations and whether the persons have
been admitted on bail or otherwise.81
This provision seems to be intended to be a check on the police against
detention of suspects beyond the mandatory 48 hours; however, in practice
this provision is never enforced and has been breached with impunity at
different police stations.
7.2.12 Arrest by Local Administration Police

The Local Administration Police Force shall be under the Local Government
System but matters of standardization and training shall be the responsibility of
82
the Inspector General.
These police officers of a local administration have the same powers, duties
and responsibilities as those conferred or imposed on police officers generally;
and shall exercise all such powers and perform and discharge all such duties
and responsibilities concurrently with officers of the Uganda Police Force.
7.2.13 Arrest by Chiefs

There shall be a Chief in each sub-county and in each parish who shall be
appointed by the district service commission.83
84
It shall be the duty of a chief within his/her area of jurisdiction to:
(a) Obey and execute orders and warrants issued by any court of competent
jurisdiction;
(b) Assist in the maintenance of law, order and security;
(c) Assist in the prevention of crime and public nuisance;
(c) Detect, apprehend and bring offenders to justice.
In the case of Byansi andanother v Busoga District Local Administration85 the court
noted that the Askari who accompanied the Gombolola Chief was for all
intents and purposes a police officer for purposes of effecting arrest and in

83 Section 69(1) Local Government Act.
84 Section 69( 3) Local Government Act.
85 [1975] HCB 286.
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addition the Local Administration Act 167 empowers Chiefs to effect arrest of
any person suspected of having committed a cognisable offence in their areas.
When arresting a person a chief does so in that capacity and exercises his
powers of arrest as a chief and not the powers of arrest of a policeman.86
7.2.14 Arrest by Prison Officers

Within a prison and while in charge of prisoners and for the purpose of
conveying any person to or from a prison or for the purpose of apprehending
any prisoners who may have escaped from a prison or who may have escaped
while being conveyed to or from a prison, every prison officer shall have all
87
the powers, protection and privileges of a police officer.
Any prison officer may, on reasonable suspicion that any person is a
deserter from the service, arrest the person without a warrant and shall
forthwith take him or her before a magistrate.88
Where a prisons officer or person employed in the service commits or
attempts to commit an aggravated offence against the code, he or she may be
89
arrested with or without a warrant by a prison’s officer higher in rank.
Where upon a search, a person other than a prisoner, is found in the
unlawful possession of a prohibited article or any property belonging to or
used by the Service, the prison officer having made the search may arrest that
person and as soon as practicable hand him or her to the nearest police
90
station.
7.2.15 Arrest by an Officer of Parliament

An Officer of parliament may arrest without a warrant:
(a) any person who commits in his or her presence any offence contrary to
section 17 or 18.
(b) Any person within the precincts of parliament whom he/she reasonably
suspects about to commit, any offence contrary to either of those
sections.91
86 Franswa Kizza v Uganda [1983] HCB 12, Uganda v Ojoba [1976] HCB 84.
87 Section 37(1) Prisons Act 2006.
88 Section 37(2) Prisons Act 2006.
89 Section 54 ibid.
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The Act defines Officer of parliament to mean:- The clerk or any other officer
or person acting within the precincts of parliament, other than when serving a
summons under the orders of the Speaker, and includes any police officer on
duty within the precincts of parliament.92
The offences for which an officer of parliament may arrest are offences and
93
penalties relating to admittance to parliament.
Any person who:
(a) being a stranger, enters or attempts to enter the precincts of Parliament in
contravention of any order of the Speaker;
(b) being a stranger, fails or refuses to withdraw from the precincts of
parliament when ordered to withdraw from those precincts by the
Speaker;
(c) being a stranger, contravenes any order made under this Act by the
Speaker regulating the admittance of strangers to the precincts of
parliament or any rule made by the Speaker under the standing orders; or
(d) attends any sitting of Parliament as the representative of any journal after
the general permission granted under any order made under this Act or
under the standing orders to the representative or representatives of that
journal has been revoked.
Commits an offence and is liable on conviction before a court to a fine not
exceeding five hundred shillings or to imprisonment for any term not
exceeding three months or to both such fine and imprisonment.
94
Any person who:
(a) disobeys any order made by Parliament or a committee for attendance or
for production of papers, books, documents or records, unless that
attendance or production is excused as hereinbefore provided;
(b) refuses to be examined before, or to answer any lawful and relevant
question put by parliament or a committee unless that refusal is excused as
hereinbefore provided;
(c) Offers to any member or officer of parliament any bribe, fee,
compensation, gift or reward in order to influence him or her in his or her
conduct as such member or officer, or for or in respect of the promotion
of or opposition to any bill, motion, matter, rules or thing submitted to or
intended to be submitted to Parliament or a committee;
92 Section 1 (Interpretation Section) ibid. It should be noted that no prosecution be made without
written sanction of the Director of Public Prosecution.
94 Section 18 ibid.
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(d) Assaults, obstructs, molests or insults any member coming to, being within,
or going from the precincts of Parliament, or endeavours to compel any
member by force, insult or menace to declare himself or herself in favour
of or against any proposition or matter pending or expected to be brought
before parliament or a committee;
(e) Assaults, interferes with, molests, resists or obstructs any officer of
Parliament while in the execution of his or her duty or while proceeding
to or from Parliament;
(f) Creates or joins in any disturbance which interrupts or is likely to interrupt
the proceedings of Parliament or a committee while Parliament or the
committee is sitting;
(g) Presents to parliament or a committee any false, untrue, fabricated or
falsified document with intent to deceive Parliament or the committee; or
(h) Publishes any false or scandalous libel on Parliament.
Commits an offence and is liable on conviction before a court to a fine not
exceeding for thousand shillings or to imprisonment for any term not
exceeding two years or to both such fine and imprisonment.
7.2.16 Arrest by Military/Army

A person who has committed, is found committing, is suspected of being
about to commit, or is suspects of or charged under this Act with having
95
committed a service offence, may be placed under arrest.
For the avoidance of doubt, the ordinary arresting officer shall be the
commanding officer of the Unit to which the suspect belongs but in cases
where it is impracticable for him or her to do so, any member of defence
forces may, without warrant, in the circumstances mentioned in subsection,
conduct the arrest of a suspect of equal or lower rank.96
A member of the defence forces or the public may, without warrant
conduct the arrest of any member of the defence forces found committing or
97
suspected of being about to commit a service offence.
A soldier may, without warrant, conduct the arrest of a member of the
defence forces of any rank who is wanted to answer charges in respect of any
of the following offences: murder, treason; mutiny; rape; defilement;
95 Section 184(1) Uganda Peoples Defence Forces Act.

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desertion; breaking concealment; careless shooting of a fellow soldier or

98
civilian or any other offence carrying maximum death sentence.
It is submitted that a soldier like any private person can also arrest anybody
who commits an offence in his/her presence and the only obligation to such
arresting officer is to report the arrest of a person to a magistrate within 24
hours and then for the person arrested to be brought to a magistrate’s court as
soon as practicable.
A person effecting an arrest under this Act shall immediately commit the
person arrested to civil custody or service custody or to take him or her to the
unit or formation with which he or she is serving or to any other unit or
formation of the defence forces and shall, at the time of committal, or as soon
as practicable after that, but in any case not later than twenty-four hours,
deliver to the officer or militant in whose custody that person is committed, a
statement in writing, signed by himself or herself stating the nature of the
offence the arrested person is alleged to have committed and the particulars of
offence.99
It is important to note that certain categories of civilians are subject to
military law and the provisions of the Uganda People’s Defence’s Act equally
apply to them.
Every person, not otherwise subject to military law, while serving with the
defence forces under an engagement to be subject to military law.100
Every person, not otherwise subject to military law, who aids or abets a
101
person subject to military law in the commission of a service offence.
Every person found in unlawful possession of arms, ammunition or
equipment ordinarily being the monopoly of the defence forces; or other
classified stores as prescribed.102
Irregular Detention in Army- A person subject to military law who, when
another person subject to military law is under arrest, fails to release or effect
the release of that person when it is his/her duty to do so, commits an
offence.103

99 Section 187 Uganda Peoples Defence Forces Act.
100 Section 118(1)(f) Uganda People’s Defence’s Act.
101 Section 118 (1)(g) ibid.
102 Section 118 (1)(h) ibid.
103 Section 188(1) supra..
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A person subject to military law, who; having committed a person to the

custody of any officer or militant, fails without reasonable cause to deliver:
(a) at the time of committing; or
(b) if it is not practicable so to do, at the time of the committal, then within
24 hours thereafter.
To the person whose custody the person was committed, a statement in
writing signed by himself or herself of the nature of the offence which the
arrested person is alleged to have committed and the particulars of the
offence, commits an offence.104
Where the president orders a person’s release, that person shall not be
subject to re-arrest for the offence for which he or she was originally
105
arrested.
7.2.17 Arrest of Children

Where a child is arrested, the police shall under justifiable circumstances
106
caution and release the child.
The police shall be empowered to dispose of cases at their discretion
without recourse to formal court hearings in accordance with criteria to be
laid down by the Inspector General of Police.107.
As soon as possible after arrest, the child’s parents or guardians and the
secretary for children’s affairs of the local government council for the area in
108
which the child resides shall be informed of the arrest by the police.
The police shall ensure that the parent or guardian of the child is present at
the time of the police interview with the child except where it is not in the
best interests of the child.109
Where a child’s parent or guardian cannot be immediately contacted or
cannot be contacted at all, probation and social welfare officer or an
authorized person shall be informed as soon as possible after the child’s arrest
so that he or she can attend the police interview.110

106 Section 89(1) Children Act.
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Where a child is arrested with or without a warrant and cannot be

immediately taken before a court, the police officer to whom the child is
brought shall inquire into the case and, unless the charge is a serious one, or it
is necessary in the child’s interests to remove him or her from association with
any person, or the officer has reason to believe that the release of the child will
defeat the ends of justice, shall release the child on bond on his or her own
recognizance or on a recognizance entered into by the parent of the child or
111
other responsible person.
Where release on bond is not granted, a child shall be detained in police
custody for a maximum of twenty-four hours or until the child is taken before
a court, whichever is sooner.112
113
No child shall be detained with an adult person.
A female child shall, while in custody, be under the care of a woman
officer.114
7.2.18 Disposal of Persons Arrested

A person arrested or detained:
(a) for the purpose of bringing him or her before a court in execution of an
Order of a court; or
(b) Upon reasonable suspicion of his or her having committed or being about
to commit a criminal offence under the laws of Uganda shall, if not
released, be brought to court as soon as possible but in any case not later
than 48 hours from the time of his/her arrest.115
A police officer on arresting a suspect without a warrant shall produce the
suspect so arrested before a magistrate’s court within 48 hours unless earlier
released on bond.116
The above provision is buttressed by the Criminal Procedure Code which
also provides:
A police officer making an arrest without a warrant shall, without unnecessary
delay and subject to provisions of the code as to bail, take or send the person

112 Section 8 (7) Children Act.
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arrested before a magistrate having jurisdiction in the case or before in-charge of a

police station.117
Any private person who arrests any person without a warrant shall without
unnecessary delay take over the person so arrested to a police officer, or in the
absence of a police officer shall take the person to the nearest police station.118
119
A person detained as a preventive active shall be released:
(a) once the peril, risk of loss, damage or any injury or obstruction has been
sufficiently removed.
(b) on the execution of a bond with or without surety where provision is
made for him/her to appear at regular intervals before a senior police
officer, if so required; or
(c) upon any other reasonable terms and conditions specified by the Inspector-
General in writing.
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 the police
station to which the person is brought may in any case and shall, if it does not
appear practicable to bring the person before an appropriate magistrate’s court
within twenty-four hours after he or she was so 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 or her executing a bond, with or without
sureties for a reasonable amount to appear before a magistrate’s court at the
time and place to be named in the bond; but where any person is retained in
custody, he or she shall be brought before a magistrate’s court as soon as
120
practicable.
An officer, in charge of a police station may discharge a person arrested on
suspicion on any charge, when after due inquiry, insufficient evidence is in his
or her opinion disclosed on which to proceed with a charge.121
The police officer or other person executing a warrant of arrest shall
122
without unnecessary delay, bring the person before the high court.

120 Section 17(1) Criminal Procedure Code.
122 Section 10 Trial on Indictments Act see also section 61 of Magistrate’s Court Act.
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7.2.19 Non – Compliance with Provisions Relating to Arrest

A trial will not be void simply because the provisions relating to arrest have
not been complied with. If the court has jurisdiction to try an offence, any
illegality or irregularity in arrest will not oust the jurisdiction of the court to
try the case.
Any irregularity or defect in the substance or form of a warrant, and any
variance between it and the written complaint or information, or between
either and the evidence produced on the part of the prosecution at any
inquiry or trial, shall not affect the validity of any proceedings at or subsequent
to the hearing of the case, but if any such variance appears to the court to be
such that the accused has been deceived or misled by the variance, the court
may, at the request of the accused, adjourn the hearing of the case to some
future date and in the meantime remand the accused or admit him or her to
123
bail .
The question whether the police officer making the arrest was acting
within or beyond his/her powers in effecting the arrest, does not affect the
question whether the accused person was guilty or not guilty of the offence
with which he/she is charged.
Though the illegality or irregularity in making an arrest would not vitiate
the trial of the arrested person, it would be quite material if such person is
prosecuted on a charge of resistance to or escape from lawful custody.
Where a private person attempts to make an illegal arrest, the person
against whom such attempt is made has every right to protect himself/herself
and to exercise his/her right of private defence. However, if a person making
an illegal arrest is a police officer or a public servant, then the right to private
defence against such police officer or public servant will not be as wide as it is
against a private person and would be subject to provisions of the Penal Code.
If a public servant having authority to make arrests, knowingly exercises
that authority in contravention of law and effects an illegal arrest he/she can
124 125
be prosecuted for offences of kidnapping or abducting wrongful
126
confinement.
If the arrest is illegal, it is a sort of false imprisonment and the person
making such arrest exposes himself to a suit for damages in a civil court.
123 Section 64 Magistrate Courts Act see also section 12 Trial on Indictment Act. Re: E-S Lumu and 4
others Misc. Criminal Appeal Number 31-35 of 1966.
124 Sections 242 – 245 Penal Code Act.
125 Sections 241- 244- 245 Penal Code Act.
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7.2.20 Safeguards against Abuse of Accused’s Rights

In order to safeguard the infringement of rights of accused person, the
Supreme Court of India has issued the following instructions:127
(a) The police personnel carrying out the arrest and handling the interrogation
of the arrested person (arrestee) should bear accurate, visible and clear
identification and name tags with their designations. The particulars of all
such police personnel who handle interrogation of the arrested person
must be recorded in a register.
(i) That the police officer carrying out the arrest shall prepare a memo
of arrest at the time of arrest and such memo shall be attested by at
least one witness who may either be a member of the family of the
arrestee or a respectable person of the locality from where the arrest
is made. It shall also be countersigned by the arrestee and shall
contain the time and date of arrest.
A person who has been arrested or detained and is being held in custody in a
police station or interrogation centre or other lock-up, shall be entitled to
have one friend or relative or other person known to him or having interest in
his welfare being informed, as soon as practicable, that he has been arrested
and is being detained at the particular place, unless the attesting witness of the
memo of arrest is himself or herself such a friend or relative of the arrestee.
(j) The time, place of arrest and venue of custody of an arrestee must be
notified by the police where the next friend or relative of the arrestee lives
outside the district.
(ii) The person arrested must be made aware of this right to have someone
informed of his or her arrest and detention as soon as he is put under arrest
or is detained.
(iii) An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall disclose the name of the next friend of the
person arrested and names and particulars of the arrestee is.
(iv) The arrestee should, where he/she so requests, be also examined at the
time of his or her arrest and major or minor injuries, if any present on
his/her body, must be recorded at that time.
(v) The arrestee should be subjected to medical examination by a trained
doctor every 48 hours during his or her detention in custody.
(vi) Copies of all documents generated in the process of arrest must be sent to
the magistrate for courts record.
127 D.K Basu (1997) 6 SCC 642 reproduced at page 79 in Criminal Procedure (4 ed) Eastern Book
Company.
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(vii) The arrestee may be permitted to meet his/her lawyer during interrogation
throughout the interrogation.
(viii) A police control room should be provided at all districts and police
headquarters, where information regarding the arrest and the place of
custody of arrestee shall be communicated by the officer causing the arrest
within 12 hours of effecting the arrest and at the police control room it
should be displayed on a conspicuous notice board.
7.3 DETENTION
A person arrested, restricted or detained shall be kept in a place authorized by
law.128
The recognized detention canters are usually gazetted and known to the
general public. The prisons and police cells are some of the gazetted detention
centres/areas.
Declaration of Prisons-The Minister (in-charge of internal affairs) may by
statutory instrument, declare any building, enclosure or place or any part of a
129
building, enclosure or place to be a prison.
Every prison shall include the grounds and buildings within the prison
enclosure and also any other grounds or buildings belonging or attached
thereto and used by prisoners or the staff of the prison.130
In addition, the Commissioner with approval of the Minister may direct
131
for the shelter and safe custody in temporary prisons.
7.3.1 Safe Houses

In law enforcement and intelligence jargon agencies the police force secures a
safe house is a secured location, suitable for hiding witnesses, agents or other
persons perceived to be in danger.
It is alleged that Uganda security and military agencies routinely take
suspects to unacknowledged and ungazetted places of detention including safe
houses and army barracks.

129 Section 27(1) Prison Act 2006.
131 Section 28.
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The law requires military, security and intelligence agencies to promptly

132
turn suspects over to police for detention. However safe houses are used as a
means of incommunicado detention for the sole purpose of interrogation.
Safe houses are used to wear people down, both physically and mentally, to
extort information, confess crime or until suspects become so instilled with
fear that they are no longer considered a threat.
There is also a tendency of ordinary person detaining or confirning persons
at their residences or premises. This is highly discouraged as it could amount
to illegal detention or wrongful confinement, since such places are not
gazetted places.
7.4 ENTRY
No person shall be subjected to unlawful entry by others of the premises of that
person.133
When a power of entry exists it does not automatically follow that there is a
right to use force to effect an entry for purposes of arresting or searching.
Some statutory powers specifically allow for the use of force ‘if necessary’
while others are silent on the matter.
7.4.1 Use of Force

There are circumstances in which force may be used in support of the power
of entry. It is clear that forcible entry could mean entry where no permission
has been obtained from the occupier. It seems to be generally accepted that at
common law the exercise of entry powers could only be effected by force
134
where permission to enter had been sought and refused.
The law in this area is not entirely coherent or consistent. It is suggested,
however, that the following represents the current situation as to when force
may be used to effect an entry on to the premises. In each of the following
categories force will only be available ‘if necessary’. This is purely a question
of fact and the burden is on the entrant to justify the use of force in particular
circumstances.
132 Section 187 Uganda People Defence Forces Act any person effecting arrest shall immediately
commit the person arrested to civil custody within 24 hours.
133 Article 27(1)(b) Constitution.
134 Swales v Cox [1981] 1 QB 849 at 853.
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(a) Where the entrant is relying on the general law on powers of entry there
must be a request and refusal before force may be used-except perhaps in
an emergency.
(b) Where a statutory power, under warrant or otherwise, does not refer to
force, force may nevertheless sometimes be used as a last resort. If there is
someone present on the property, permission to enter may be sought.
Only if permission is refused may force be used. Even then, if there is an
alternative procedure available, such as obtaining a warrant, that should be
followed. If there is no one on the premises whose permission can be
sought, then force may be used, unless, again, there is an alternative
procedure.
(c) Where a statutory power specifically refers to the use of force, no prior
request or refusal is needed, even if there is someone on the property.
Where force is permitted, only “reasonable” force is allowed. This again is a
question of fact to be judged in the light of all the circumstances, including
the reason for seeking entry.
A higher level of force, for example, would be reasonable for a police
constable entering premises to arrest an escaped murderer armed with a gun,
than for an officer for National Bureau of Standards investigating weights and
measures offences.
7.4.2 Reasonable Grounds

There are three situations related to entry powers where the question of
whether someone involved in the exercise of a power had reasonable grounds
for action may arise:
(a) Where a warrant is issued the court will generally have to be satisfied that
the person seeking the warrant has reasonable grounds for doing so;
(b) A person executing a warrant, having gained entry to premises under it,
may be required to have reasonable grounds for suspicion before taking
further action such as arresting a person, or seizing property, found on the
premises.
(c) Where a police officer or other official takes action under power which
does not require a warrant, again there will generally be a requirement that
reasonable grounds for suspicion exist, before the action is taken.
In all three situations it now seems to be settled law that the question of
whether or not there were grounds at the time is an objective one. The test
whether there was a reasonable and probable cause for the entry, arrest or
prosecution is an objective one, namely, whether a reasonable man, assumed
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to know the law and possessed of the information possessed by the witness,
would believe that there was a reasonable and probable cause.
It must be emphasized that what we are considering here is simply
‘reasonable grounds of suspicion’ of a person’s guilt or of the existence of
certain circumstances. The amount of information required before such a
suspicion may be said to be based on reasonable grounds is obviously at a fairly
low level.
Certain factors which would not be admissible in evidence in establishing a
prima facie case, such as the suspect’s known character and previous
convictions, may be taken into account in establishing the existence of
reasonable grounds for suspicion. It is not enough simply to allege that the
suspects behaviour was ‘suspicious’; some basis of the suspicion must be
shown, of a kind capable of evaluation by an objective third person.
There are no hard and fast rules as to what is reasonable; each case must
depend on its own circumstances and it is suggested that different, and
presumably lower, standards of reasonableness apply to a policeman as opposed
to the ordinary private citizen.
CHAPTER EIGHT
SEARCHES AND SEIZURE
8.1 INTRODUCTION
A search is by definition an invasion of privacy. It involves an inspection made
on person or building for the purpose of ascertaining whether anything useful
in criminal investigations may be discovered on the body of the person or in
the building searched.
No person shall be subjected to unlawful search of the person, home or other
property of that person.1
The Constitution seems to recognize that a person’s privacy ought not to be
interfered with except for compelling reasons. This is justified together with
the protection of a person’s property and possession from unwarranted
interference; an occupier of premises may generally forbid entry on his/her
premises to anyone, police officer or not.
Documents and other material objects relevant for any investigation,
inquiry or trial should be available to the agencies conducting such
proceedings. Where any person in possession or control of any such relevant
documents or things does not co-operate with the investigating officers and
fails to produce things required, the law has to devise- coercive methods of
obtaining these material objects for the purpose of any inquiry or trial.
A search of any nature is an encroachment upon the rights of the person.
However, even in a democratic state, such encroachments will have to be
tolerated in the large interests of the society.
A seizure is by definition the deprivation of liberty, or the enjoyment in
exercising dominion or control over a thing, be it property or person.
8.2 JUSTIFICATION OF A SEARCH

A search is always justified in the following circumstances:
(a) where there are concerns of safety for the officer and others.

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(b) there is suspicion that the suspect is armed and dangerous.

(c) where there is suspicion that the suspect is about to commit a crime and a
weapon is commonly used.
(d) where the officer is alone and back-up has not yet arrived.
(e) the number of suspects is large and their physical size.
(f) the emotions, behaviour and look of the suspect.
(g) the suspect gave evasive answers (that did not dispel fear) during the initial
stop.
(h) time of day and the geographical surroundings.
8.3 SEARCH OF ARRESTED PERSON

Whenever a person is arrested the police officer making the arrest or when the
arrest is made by a private person, the police to whom he or she makes over
the person arrested, may search that person and place in safe custody all
2
articles, other than necessary apparel, found upon him or her.
A police officer may search any person who has been arrested and may take
possession of anything found on the person which might reasonably be used as
evidence in any criminal proceedings.3
Whenever a police officer, not being lower in rank than a sergeant, has
reasonable grounds for believing that anything is necessary for the purposes of
an investigation into any offence which he/she is authorized to investigate
may be found in any place and that such a thing cannot in his/her opinion be
otherwise obtained without undue delay, such officer may, after recording in
writing the grounds of his or her belief and specifying in such writing, so far as
possible, the thing for which search is to be made, search and cause search to
4
be made, for such thing.
The law has recognized that in certain exceptional emergencies it is
necessary to empower responsible police officers to carry out searches without
first applying to the courts for authority.
Any police officer may stop, search and detain any vessel, boat, aircraft or
vehicle in or upon which there is reason to suspect that anything stolen or
unlawfully obtained may be found and also any person who may be reasonably

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Searches and Seizure 161
suspected of having in his or her possession or conveying in any manner

5
anything stolen or unlawfully obtained, and may seize any such thing.
Whenever a police officer has reasonable cause to suspect that any person
has contravened any of the provisions of this Act (Fire Arms Act), he or she
may:6
(a) enter any premises or place and search the premises or place and every
person and any package, container, vehicle, aircraft or boat found in, at or
on the premises or place; and
(b) seize and detain any person, firearm or ammunition found in, at or in the
premises or place in respect of which he or she has reasonable cause to
suspect that an offence under the Act has been committed.
In our daily life, police or intelligence/security agencies do carry out routine
searches on a person abruptly or while entering specific offices or premises
during this era of global terrorism. This generally involves what is known as a
frisk, which is the type of search that requires a lawful stop. A frisk is a search
for concealed weapons, necessarily involving an invasion of privacy and it
involves contact or patting of the outer clothing to detect any sense of touch if
a concealed weapon is being carried.
The law of frisk is based on the “experienced police officer” standard.
Police by their experience, are able to read more into circumstances
surrounding complex criminal behaviour than the average layman. Police are
expected, for example, to know which crimes and what kinds of criminals
usually involve weapons or such crimes that involve violence.
Searches of this nature are only permissible when there are articulable facts
(reasonable suspicion or probable cause) which indicate the person is armed or
dangerous.
In some jurisdictions, they have opted to use a probable cause standard
than reasonableness. The probable cause requirement is, in many ways, more
important than the reasonableness standard.
The Supreme Court in United Stated States has interpreted warrantless
searches and seizures as unreasonable unless preceded by probable cause.
This therefore means as a general rule, most searches and seizures require
probable cause. It protects persons from arbitrary intrusions into liberty and
privacy, but on the other hand, it gives sufficient lee way to government
officials by not being as strong of a standard as proof beyond reasonable
5 Section 7 Criminal Procedure Code.

6 Section 34 Fire Arms Act.
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suspicion and reasonableness under all circumstances. Probable cause is

understood to mean “accumulated wisdom of precedent and experience”.
Rumour, mere suspicion, and even ‘strong reason to suspect’ are not
equivalent to probable cause.
Probable cause may arise in the following circumstances: probable cause is
where known facts and circumstances of a reasonably trust worthy nature, are
sufficient to justify a man of reasonable caution or prudence in the belief that a
crime has been or is being committed.
Probable cause is what would lead a person of reasonable caution to
believe that something connected with a crime is on the premises of a person
or on persons themselves.
Lastly, probable cause is the sum total of layers of information and synthesis
of what police have heard, know, or observe as trained officers.
The exercise of the power by the police to search requires reasonable
grounds for suspicion which depends on the circumstances in each case.
There must be an objective basis for that suspicion based on facts,
information and/or intelligence which are relevant to the likelihood of finding
an article of a certain kind.
Reasonable suspicion can never be supported on the basis of personal
factors alone without reliable supporting intelligence or information of some
specific behaviour by the person concerned; searches are more likely to be
effective, legitimate and secure public confidence when reasonable suspicion is
based on accurate intelligence and information.
8.4 PERSONAL SEARCHES

The law which gives the police power of search will not generally specify the
type of search which may be made, or place any limits on its extent. All
searches must be carried out with courtesy, consideration and respect for the
person concerned. Every reasonable effort must be made to reduce to the
minimum the embarrassment that a person being searched may experience.
The type of search which may be used in case of a personal search in any
particular situation will depend primarily on the nature of the offence which is
being investigated, and place where the search is taking place.
There are four main categories of search as applied in United Kingdom are,
superficial, full, strip and intimate searches.7
7 Page 133 Entry, Search and Seizure. A Guide to Civil and Criminal Powers of Entry by Richard Stone
( 3 ed).
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8.4.1 Superficial Search

Searches in public must be restricted to superficial examination of outer
clothing. This only requires a person to remove any clothing in public other
than an outer coat, jacket or gloves.
In other words, a superficial search is one that is carried out without the
suspect being asked to remove any indoor clothing. This will also allow the
officer to feel for concealed items and to empty pockets.
In addition, this type of search will also extend to the search of articles in
possession of the suspect, so that the officer may, for example, search a bag or
container in possession of a suspect.
The superficial search will not however permit removal of head gear. The
basic reason for this restriction is the need to take account of those groups for
whom head gear is part of religious observance, for example Sikh men or
some Moslem women.
8.4.2 Full Search

This type of search refers to a search which may involve the removal of outer
clothing, such as a shirt, dress or footwear. This search may involve removal of
head gear and it should not be carried out in the public.
8.4.3 Strip Search

A “strip Search” is one which involves the removal of more than outer
clothing and it relates in particular to searches of detained persons. It is only
where a person is required to remove some or all of their underwear.
Although, as its name implies, a strip search may involve the removal of all
clothing, as far as possible this should be done in a way which does not mean
that the person is at anytime completely undressed;
For example, a man shall be allowed to put on his shirt before removing
his trousers, and a woman shall be allowed to put on her blouse and upper
garments before further clothing is removed.
In sum, the search should be conducted as quickly as possible, and the
person concerned allowed to dress as soon as it is completed.
It is clear that a strip search allows the visual inspection of the bodily
orifices. To this end the person being searched may be required to hold
his/her arms in the air, or to stand with his/her legs apart and bend forward.
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8.4.4 Intimate Search

This means a search which consists of the physical examination of a person’s
body orifices other than the mouth.
The rationale for carrying out such a search is to enable the police to
extract the drugs and other suspected substances from suspects body.
An intimate search is thus an examination involving a physical intrusion, in
relation to any bodily orifices.
The cooperation of the person to be searched must be sought in every case
even if the person initially objects to the search. A forcible search may be
made only if it has been established that the person is unwilling to co-operate
or resists.
Where the exercise of the power requires reasonable suspicion, the
thoroughness and extent of a search must depend on what is suspected of
being carried and by whom.
In all cases, police should exercise their powers courteously and with
respect for persons and property and only use reasonable force when this is
considered necessary and proportionate to the circumstances.
8.4.5 Medical Examination

A search may also extend to medical examination of an arrested. Such medical
examinations confined to obtaining evidence pertaining to a specific offence
the nature and extent of the search obviously depends upon the type of
offence for which the person has been arrested. This may entail furnishing of
blood, hair, urine, stomach and other body samples.
A police officer’s belief that the medical examination will produce some
evidence must be ‘reasonable’ and, if not an action may lie for assault and
battery.
8.4.6 Finger Printing

A physical examination may also include the finger printing or photographing
of the person arrested. This is permissible to the police in the course of their
investigations. The decision to finger print may only be made under the
authority of or by designated officers. Reasonable force may be used to enable
finger prints to be taken.
Finger printing must be considered necessary, not merely thought desirable
and it should be done for the sole purpose of identification and not done as a
matter of routine.
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Identification purposes may be intended to determine whether a

suspect/prisoner is the offender in the instant case; to assist in finding those
responsible for future offences; to confirm the prior record of a convicted
person as a basis for sentence.
8.5 MODE OF SEARCHING WOMEN

Whenever it is necessary to cause a woman to be searched, the search shall be
8
made by another woman with strict regard to decency.
A female person shall only be searched by an authorized woman.9
8.6 SEARCH OF PLACE AND PROPERTY

However, in the large interest of the administration of justice it becomes
necessary that public officers engaged in investigations and inquiries relating to
offences or suspected offences should be afforded fair and reasonable facilities
for searches. The decision as to whether a search of a person’s house is
essential in the larger interests of society ought to be basically a judicial
decision.
Therefore the duty of balancing the two conflicting considerations in
diverse circumstances has been vested in the court.
The law has further recognized that in certain exceptional emergencies it is
necessary to empower responsible police officers (not being lower in rank of
sergeant) to carry out searches without first applying to the courts for
authority.
Whenever a police officer, not being lower in rank than a sergeant, has
reasonable grounds of believing that anything necessary for the purposes of an
investigation into any offence which he/she is authorized to investigate may
be found in any place and that such thing cannot in his/her opinion be
otherwise obtained without undue delay. Such officer may, after recording in
writing the grounds of his or belief and specifying in such writing, so far as
possible, the thing for which search is to be made, search, or cause search to
be made, for such thing.10
Any police officer may stop, search or detain any vessel, boat, aircraft or
vehicle in or upon which there is reason to suspect that anything stolen or
unlawfully obtained may be found and also any person who may be reasonably

9 Section 23(2) Police Act, section 39(6) Prisons Act 2006.
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suspected of having in his/her possession or conveying in any manner

11
anything stolen or unlawfully obtained, and may seize any such thing .
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, any police officer may search the dwelling or place of business of
the person so arrested or of the person for whom the warrant of arrest has
been issued and may take possession of anything which might reasonably be
12
used as evidence in any criminal proceedings.
A person should have in his/her house and property total privacy as well as
a full and free life undisturbed by the state operatives. The Constitution
guarantees a right to privacy of person, home and other property:
(1a) No person shall be subjected to unlawful search of the person, home or
other property of that person.13
No person shall be subjected to interference with the privacy of that
person’s home, correspondence, communication or other property.14
The above provisions that empower the police to carry out searches have
attempted to restrict and limit the powers of the police and have provided the
concerned persons safeguards in order to prevent the abuse of these powers.
The integrity of the man’s home should be preserved, expressed in Lord
Coke’s aphorism that “the house of everyone is to him his castle and fortress”.
The power to search a place under the provisions of the law can be
exercised only by a police officer above the rank of a sergeant. Such officer
15
must if practicable conduct the search in person.
If he/she is unable to conduct the search in person, and there is no other
person competent to make the search present at the time, he/she, after
recording in writing his/her reasons for so doing, require any officer
subordinate to him/her not below the rank of corporal to make the search;
and he/she shall deliver to such officer an order in writing specifying the place
to be searched and, so far as possible, the thing for which search is to be made
and such officer may thereupon search for such thing in such place.16

12 Section 69 Magistrates Court Act.
16 Section 27(3).
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However, this rule may be interpreted reasonably. Where a police officer

remains outside the office while the search is being conducted inside by a
subordinate, the search is not illegal. A search by a subordinate officer without
authority is illegal and any authorization to a subordinate must always be in
writing.
In addition, the search under these circumstances must be for a particular
thing or documents, or specified materials, necessary for the purposes of the
investigation. The section does not permit a general search. Where the police
officer searches a house for stolen articles generally and not for any articles or
things specified before the search or as mentioned by the complainant as
having been stolen from him/her, the search would be considered as a general
17
search and not having legal authority under the section. The word ‘thing’ as
used in the provisions does not include a configuration of a wall or the
inspection of any place inside a house for the purposes of investigation.
The police officer has to have reasonable grounds for believing and not just
reasonable suspicion. The expression ‘reasonable grounds for believing’ is
equivalent to “has reason to believe”. It means a belief based on some definite
facts. This is intended to ensure that the searches by the police officers are not
arbitrary and are genuinely required in cases where there is no time to
approach court for a search warrant.
In the case of Kityo v Uganda18 the appellant was charged with being in
possession of parts of motor vehicle suspected of having been stolen. On
stopping the vehicle the police officer told the appellant that he was suspicious
about the way the appellant had been moving around Kampala and wanted to
check his car. His Morris Minor was searched and motor vehicle parts
suspected of having been stolen were found fitted on his vehicle. Prior to the
stopping all the police stations in Kampala had been alerted to watch the
movements of this particular car. It was noted that at every place frequented
by the appellant’s car, there was always theft of Morris Minor cars or their
parts. The appellant was charged and convicted. On appeal, it was argued on
his behalf that he was not stopped and searched on any particular suspicion
and that if there was any suspicion at all it was not a reasonable one.
Dismissing the appeal Sir Udo Udoma CJ said that:
“it was not necessary that at the time of the stopping and searching the police officer
must have in mind a precise suspicion about anything stolen or unlawfully obtained
provided the circumstances are such that there is reason for suspicion.”
17 Chic Fashions (West Wales) Ltd v Jones [1968] 1 All ER 229.

18 [1967] EA 23.
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Another procedural safeguard against arbitrary searches or general searches is

set out in the sections which insists that the police officer before proceeding to
search a place must record the grounds of his belief as to the necessity of such
search and must specify in writing the things for which the search is to be
conducted. This would obviate the possibility of a police officer manipulating
and choosing his grounds of belief after having in fact a general search.
By requiring the police officer to specify beforehand the thing for which
the search is to be made, it would also limit the extent of search and would
consequently restrict the encroachment upon the privacy of the premises.
The recording of reasons is an important step in the matter of search and to
ignore it is to ignore the material part of the provisions governing searches.
The non-recording of the reasons for search would make the search illegal.
The law obliges a police officer to forthwith send to the magistrate the
grounds of his /her belief and the thing to be searched for and the owner or
occupier of the place searched.19 This would ensure that these reasons/grounds
are not conveniently fabricated after the search to enable the police to justify
their conduct suitably.
No police officer shall search any premises unless he/she is in possession of
a search warrant issued under the Criminal Procedure Code Act or is carrying
a warrant card in such form as shall be prescribed by the Inspector- General.20
A search conducted by a police officer shall be carried out in a humane
21
manner and unnecessary damage or destruction to property shall be avoided.
In all cases, police should exercise their powers courteously and with
respect for persons and property, and only use reasonable force when this is
considered necessary and proportionate to the circumstances.
Powers of search and seizure should be fully and clearly justified before use
because they may significantly interfere with the persons’ privacy. Police
officers should consider if the necessary objectives can be met by less intrusive
means.
8.6.1 Procedure of Search without a Warrant

The proper procedure for conducting a search by the police where the
premises of a suspect are searched without a warrant is as follows:
(a) Area local authorities are invited.

20 Section 27(7) ibid
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(b) The premises are searched in presence of local authorities and the suspect.22
(c) A certificate of search is made by the officer making the search which must
include;
(i) The place, date and time.
(ii) Names of those present during the search
(iii) Signature of the officer conducting search
(iv) Signatures of the local authorities witnessing the search.
(v) Signature of the suspect; in case of refusal, comment by the
investigating officer
(d) A copy of the certificate retained by the suspect.
The officer must record any recovered items/objects in a search certificate.
The diary of investigations and such fact must be included in his or her police
statement as the investigating officer. The items/objects may be entered in the
police exhibit book (PB) and an exhibit slip issued and kept in the case file.
8.7 SEARCH WITH A WARRANT

A search warrant is a written authority to a police officer or other person by a
competent magistrate or authority for the search of any place, or property
either generally or for specified things or documents or for persons wrongfully
detained.
Before an application for a search warrant is made, the officer must take
reasonable steps to check that the information is accurate, recent and has not
been provided maliciously or irresponsibly. Certain provisions applicable in
respect of warrant of arrest have been by general rule been made applicable
Mutatis Mutandis to search warrants.23
Power to issue Search Warrant- Where it is proved on oath to a
magistrate’s court that in fact or according to reasonable suspicion anything
upon or in respect of which an offence has been committed or anything
which is necessary to the conduct of an investigation into any offence is in any
building, vessel carriage, box receptacle or place, the court may by warrant
(called a search warrant) authorize the person to whom the warrant is directed
to search the building, vessel, carriage, box receptacle or place (which shall be
named or described in the warrant) for any such thing and, if anything

23 Section 74 Magistrates’ Courts Act.
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searched for is found, to seize it and carry it before the court issuing the
24
warrant or some other court to be dealt with according to law.
A person who makes an application has a duty to state on oath (by way of
affidavit) the ground on which he/she makes the application for a search
warrant and also to specify certain prescribed matters relating to the premises
which it is desired to enter and search, and all the things that are being
searched for.
A search contemplated under the criminal procedure code must be one for
production of some specific object and did not empower a general search. The
search warrant for “other suspected stolen property” was invalid.25 Unless an
article specified in a search warrant was found there could be no conviction
for the offence of being found in possession of stolen property.
A search is a coercive method and involves invasion of the sanctity and
privacy of the person’s home or premises. It is therefore submitted that the
power to issue a search warrant should be exercised with all the care and
circumspection.
An application for a search warrant must be made ex-parte and supported
by any relevant information in writing in support of the application.
The person making an application for a search warrant must appear before
the magistrate and must answer on oath any question that the magistrate
hearing the application asks him/her.
Where an application is refused, no further application may be made for a
warrant to search those premises unless supported by additional grounds. The
court is not bound to issue a search warrant whenever it is asked for; it may
direct investigation by the police before issuing the process or search warrant.
8.8 EXECUTION OF SEARCH WARRANT

A search warrant may be directed to one or more police officers or chiefs
26
named in it or generally to all police officers or chiefs.
Any court issuing such a warrant may, if its immediate execution is
necessary and no police officer is immediately available, direct it to any other
27
person and that person shall execute the warrant.
24 Section 70 ibid.
25 John Okello v Uganda Criminal Appeal Number 198 of 1965 (unreported).
26 Section 58 (1) See section 74 Magistrate Courts Act.
27 Section 58(2).
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When a warrant is directed to more officers or persons than one, it may be

28
executed by all or by any one or more of them.
Every search warrant may be issued and executed on a Sunday, and shall be
executed between the hours of sunrise and sunset, but the court may, by the
warrant, in its discretion, authorize the police officer or other person to whom
29
it is addressed to execute it at any hour.
It bears emphasis however, that unless a warrant specifies that it authorizes
multiple entries, a warrant authorizes an entry on one occasion only. Where
the warrant specifies that it authorizes multiple entries, it must also specify
whether the number of entries is unlimited or limited to a specified
maximum.
The information supporting a search warrant application should be as
specific as possible, particularly in relation to the things or articles or persons
being sought and where in the premises it is suspected they may be found.
The words ‘reason to believe’ used in the section30 should be construed to
mean as “sufficient cause to believe” positively, in other words, the court must
satisfy itself that there is necessity for the search warrant to be issued.
Those words also contemplate an objective determination based on
intelligent care and deliberation involving judicial review as distinguished
from a purely subjective consideration.
In addition, the usage of the word ‘may’ in the section confers discretion
on court to issue a search warrant. This discretion is not unfettered. Discretion
when applied to a court of law is sound discretion guided by law; it must be
governed by rule, not humour; it must not be arbitrary, vague and fanciful;
but legal and regular.
Issuance of Search Warrant being in the discretion of the magistrate it
would be reasonable to expect of the magistrate to give reasons which swayed
his discretion in his/her favour of granting the request.
Whenever any building or other place liable to search is closed, any person
residing in or being in charge of that building or place, shall, on demand of
the police officer or other person executing the search warrant, and on
production of the warrant, allow him or her free ingress to it and egress from
31
it and afford all reasonable facilities for a search in it . If ingress to such place
28 Section 58(3).
29 Section 71 ibid.
31 Section 72(1) Magistrate’s Court Act See also section 3 CPC Act.
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cannot be obtained it shall be lawful in any case for a person acting under a
warrant, and in any case in which a warrant may issue, but cannot be obtained
without affording the person to be arrested an opportunity to escape, from a
police officer, to enter the place, to break open any outer or inner, door or
window of any house or place, whether that of the person to be arrested or of
any other person, if after notification of his or her authority and purpose, and
demand of admittance duly made, he or she cannot otherwise obtain
32
admittance.
The person who is to execute a search warrant must first try to
communicate with the occupier or any other person entitled to grant access to
premises, explain the authority under which entry is sought and ask the
occupier to allow entry, unless the premises to be searched are known to be
unoccupied; the occupier and any other person entitled to grant access are
absent; or there are reasonable grounds for believing that alerting the occupier
or any other person entitled to grant access would frustrate the object of
search or endanger officers or other people.
On request of the owner or occupier of any premises being searched by a
police officer, the police officer shall show the owner or occupier the search
33
warrant authorizing the search of the premises or his/her warrant card.
A search under a warrant may only be a search to the extent required for
the purpose for which the warrant was issued, having regard to the size and
nature of whatever is sought. A search may not continue under the authority
of that warrant once all the things specified in it have been found, and a search
may not continue under any other power once the object of the search has
been achieved.
Searches must be conducted with due consideration for the property and
privacy of the occupier of the premises searched, and with no more
disturbance than necessary. Reasonable force may be used when necessary34
and proportionate because the cooperation of the occupier cannot be obtained
or is insufficient for the purpose.
Where premises or property (vessels) have been entered into by force, the
officer in charge of the search must, before leaving them, make sure that they
are secure by arranging for the occupier or his/her agent to be present or by
any other appropriate means.

33 Section 27(8) Police Act, R v Longman [1988] 1 WLR 619.
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In order to prove to the court that the articles/items seized were from the
accused, it is necessary to prove the contents of the warrant.
In the case of Mohanlal Trivedi v R35 the appellant was convicted by the
district court of Busoga or being in possession of property reasonably
suspected of having been stolen and failing to give a satisfactory account of his
possession. The police acting on information received, searched the house and
shop of the appellant for a camera. They did not find the camera but found an
exposure meter which was the subject matter of this charge. On appeal, it was
contended that the conviction ought not to stand as no search warrant was
produced and there was no evidence to show that the appellant’s house and
shop were the buildings named in the warrant. The officer who conducted
the search gave evidence to the effect that he obtained a search warrant and
searched the premises of the appellant named in the warrant. It was held:
“that it was impossible to establish that the search was conducted under the
authority of a warrant without proving the contents of a warrant and evidence
that the house searched was the one named in the warrant cannot be proved by
secondary evidence in section 63 of the Evidence Act. Thus for the prosecution
to succeed, it is imperative to prove the contents of the search warrant by actually
producing it in evidence.”
A search should be conducted under a witness of a neutral person. Though
our law does not provide for this, it is an important safeguard against abuse of
the search exercise. A search witness should actually accompany the police
officers or other person making a search.
Prudence also demands that the person carrying out a search or police
officer must be searched before they are allowed to enter the premises so that
the owner should not have reasonable grounds for suspecting that one of the
police officers had planted anything surreptitiously in his/her house. Failure to
take this precaution would give to the defence a strong argument against the
credibility of search evidence.
It is preferable that a search is carried out during sunrise and sunset but the
court may order a search to be conducted at any hour. A search at night may
be flawed since there could be room for unfair practices like ‘planting’ articles.
35 [1957] EA 355.
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8.9 CONSTITUTIONALITY OF SEARCH WARRANTS

An issue might arise as to the constitutional validity of a search warrant where
it relates to the documents or things in possession of the accused person or
where the warrant is for a general search or inspection of the premises or
occupation of the accused person.
The Constitution embodies the principle of protection against compulsion
36
of self incrimination.
Where a person is being tried for a criminal offence, neither that person
nor the spouse of that person shall be compelled to give evidence against that
person.
This article could be construed to mean that an accused person or his/her
spouse cannot be compelled to disclose any document or thing or property
which are incriminating and based on his/her knowledge.
However, a search warrant issued in respect of any particular property or
person in possession or custody of the accused person, cannot be taken to be
in violation of the Constitution provision which gives protection to the
accused person against testimonial compulsion.
In these cases the search and consequent seizure of documents or other
things are not the acts of the accused person at all, much less his/her
testimonial acts amounting to self-incrimination.
A search warrant is addressed to an officer of the government, generally a
police officer.
Neither the search nor seizures are acts of the occupier of the searched
premises. They are acts of another to be which he/she is obliged to submit
and are, therefore, not his/her testimonial acts in any event.
The Constitution could not have intended to be a charter for the lawless
by concealing or hiding evidence in order to defeat the intention of providing
peace and tranquility in society.
Searches to this extent conducted with view to the human rights principles
are lawfully allowed under the Constitution supported by the legal provisions
under the Criminal Procedure Code and Magistrate Courts Act.

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8.10 CONSEQUENCES OF NON-COMPLIANCE WITH SEARCH

PROCEDURE
A Search Warrant for a search of a place suspected to contain stolen property
can only be issued under the hand of a magistrate with jurisdiction or such
police officer who may issue an inspection card. If however, such a search
warrant or warrant card is issued by any other person lower in rank
erroneously and in good faith, such a warrant shall not be ineffective merely
on the ground that such person was not empowered to issue the same.
A search warrant for persons wrongfully confined will be illegal and any
entry into the house or place in consequence of such illegal warrant would be
without any legal authority.
Search by a police without a warrant is subject to limitation, as in effect
that such officer shall not be lower in rank than a sergeant.
A search conducted by any other officer or other person would be illegal,
and entry into the house or place for such search is unlawful. Similarly, a
search by a police officer outside the limits of his/her police station and in the
circumstances in which he/she is not authorized to do so, is without legal
authority and is illegal.
In general, any contravention of the provisions on search would make the
search illegal or at least irregular. Whether such contravention would vitiate
the trial or its effect would depend upon the question of prejudice caused to
the accused based on principles of fairness and whether it occasioned a
miscarriage of justice.
The non compliance with some of the provisions on searches and seizure
would affect the weight of evidence in support of the search. The court in
such a case may be circumspect to closely scrutinize the evidence and may
refuse to act upon the solitary evidence of the police officer.
In addition, where the police officer fails to comply with the provisions of
the Police Act, the occupant of the place of search can obstruct with impunity
the police officer attempting to search the place.
Lastly, the non compliance with the search – procedure would make the
entry into the house as one without lawful authority, the police officer or the
other person making the search could be liable to pay damages for trespass in a
civil suit or action.
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37
In State of Maharashtra v Natwarlal the Supreme Court of India has quoted
with approval the following observations made in its earlier decision in Radha
38
Kishan v State of U.P:
So far as the alleged illegality of the search is concerned, it is sufficient to say that
even assuming that the search was illegal the seizure of articles is not vitiated. It
may be that where the provisions of the Criminal Procedure Code are
contravened the search could be resisted by the person whose premises are sought
to be searched. It may also be that because of the illegality of the search the court
may be inclined to examine carefully the evidence regarding the seizure. But
beyond these two consequences, no further consequence ensues.
8.11 PRIVILEGE FROM SEARCH

The premises of the mission, their furnishings and other property thereon and
the means of transport of the mission shall be immune from search,
requisition, attachment or execution.39
The premises of the mission shall be inviolable. The agents of the receiving
40
State may not enter them, except with consent of the head of the mission.
The receiving state is under a special duty to take all appropriate steps to
protect the premises of the mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission or impairment of its
dignity.41
In addition, the private residence of a diplomatic agent shall enjoy the same
42
inviolability and protection as the premises of the mission.
His or her papers, correspondence and, property, shall likewise enjoy
inviolability.43
8.12 SEARCH AND SEIZURE IN THE ARMY

If it appears to a member of a court martial from information on oath that
there are reasonable grounds for suspecting that there is with any officer or
militant or upon or at any premises which are occupied by military personnel:
37 (1980) 4 SCC 669 (1981) SCC (Cri) 98 at 102.

38 AIR 1963 SC 822; 824.
39 Diplomatic Privileges Act.
40 Article 22(3).
41 Article 22(1).
42 Article 22(2).
43 Article 30(1).
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(a) stolen property or anything with respect to which any offence under the
Act has been or is on reasonable grounds suspected to have been or is on
reasonable grounds suspected to have been committed; or
(b) anything as to which there are reasonable grounds for believing that it will
afford evidence as to the commission of; or that it is intended to be used
for the purpose of committing any offence under this Act.
he or she may, in writing authorize the search by any officer or militant of
44
such person or premises and seizure of any such property or thing.
Any officer or militant authorized to carry out any search or to seize any
property or thing shall:
(a) be superior in rank to the officer or militant whose person is to be
searched or in whose charge or control the premises are; and
(b) deliver safely to the commanding officer of the officer or militant referred
to above any property or thing seized.45
If an officer of the rank of Major or above believes on reasonable grounds that
the delay in obtaining written authority under the Act would defeat or
prejudice the object of a search, he or she may authorize the search without
46
the written authority.
Any search carried out shall be conducted in the presence of the officer or
militant in whose charge or under whose control the premises which are
being searched are, except that if:
(a) the delay in securing the presence of the officer or military is likely to
prejudice of the search or
(b) having regard to the exigencies of military operations, his or her presence
cannot readily be secured;
The search may be made in the officer’s or militant’s absence but in the
47
presence of at least two other members of the defence forces.
The searching officer’s or militant’s authority is limited to seizing those
48
articles which he or she is lawfully authorized to seize.
A search may be conducted in any place, vehicle, vessel aircraft, or
receptacle whether similar to the foregoing or not.49
44 Section 185(1) Uganda People’s Defence Forces Act.

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This form of search is only for serving officer and does not apply to a
50
member of the reserve forces unless he has been mobilized.
8.13 SEARCHES FOR PERSON UNLAWFULLY DETAINED FOR SEX

If it appears to a magistrate, on information made before him or her on oath
by any person who, in the opinion of the magistrate, is acting bona fide in the
interests of any other person that there is reasonable cause to suspect that
person is unlawfully detained for immoral purposes in any place within the
jurisdiction of that magistrate, the magistrate may issue a warrant authorizing
the person names in it to search for, and, when found, to keep in a place of
safety the person unlawfully detained until he or she can be brought before a
magistrate; and the magistrate before whom a person unlawfully detained is
brought may cause that person to be delivered up to the parents or guardian
51
or otherwise dealt with as the circumstances may permit and require.
Any person authorized by warrant to search for a person unlawfully
detained for immoral purposes may enter, if need be by force, any house,
building or other place mentioned in the warrant, and may remove that
52
person from it.
8.14 SEIZURE
Any police officer searching any building, vessels, carriage, box, receptacle or
place who finds in that building vessel, carriage, box, receptacle or place
anything which he or she reasonably suspects to have been stolen or
unlawfully obtained may seize that thing, not withstanding that it is not
anything for which he or she is searching by virtue of the warrant.53
A police officer who is lawfully on any premises or any other place may
seize anything there if he/she has reasonable grounds to believe.
(a) that the thing might be used as an exhibit in relation to an offence which
he/she is investigating; and
(b) that it is necessary to seize that thing in order to prevent it from being
concealed, lost, tampered with or destroyed.54

53 Section 7(2) Criminal Procedure Act.
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In addition, a search warrant should authorize a person conducting the search

55
to seize it and carry it before the court issuing a warrant.
Where any such thing is seized and brought before a court, it may be
detained until the conclusion of the case or the investigation, reasonable care
being taken for its preservation.56
Where a search warrant is issued for the search of any particular things, the
police officer or other person making the search has been empowered to seize such
things if recovered during such search.
The police officer under the Police Act has far wider powers to seize any
incriminating things other than these specified things for which the search is made.
Such powers are necessary for the effective discharge of police functions.
The wide power given to a police officer to seize property is only available to
police officers who are investigating cases.
The word ‘seize’ has to be construed to mean taking physical possession as in the
case of taking actual possession of movable property.
The police should hold property only for the purposes authorized; and they owe
a duty to maintain the confidentiality of materials seized, subject only to their power
to use them for police purposes.
Where the property is seized, the police officer responsible for the seizure shall
record the fact and description of the said property in duplicate and cause the record
to be signed by himself/herself and the occupant and a copy shall be retained by the
57
said occupant.
In addition, where a person exercises such power of seizure, it is his/her duty on
doing so, to give written notice to the person from whom the seizure is made.
Where it appears to the person exercising such a power of seizure that there is
no one present on the premises to whom he/she may give a notice; he/she must
instead, before leaving the premises, attach such a notice in a prominent place to the
premises.
The Fire Arms act allows the police officer to seize any fire arm or ammunition.
It provides as follows:58
Whenever a police officer has reasonable cause to suspect that any person has
contravened any of the provisions of this Act, he/she may:
55 Section 70 Magistrate Court’s Act.

58 Section 34(b) Fire Arms Act.
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(a) seize and detain any person, firearm or ammunition found in, at or on the
premises or place in respect of which he or has reasonable cause to suspect that
an offence under this Act has been committed.
The Prisons Act allows a prison officer to seize any prohibited article or property
found on person who is being subjected to a search.59
N.B See also Entry and Use of force in the chapter seven.
59 Section 39(5) Prisons Act.

CHAPTER NINE
BAIL
9.1 DEFINITION/MEANING
Bail is a recognizance taken by a duly authorized person to ensure that an
accused person appears to answer a charge against him/her, at an appointed
place and time.
1
In the case of Uganda v Lawrence Luzinda Okello J as he then was noted:
“Bail is an agreement between the court and an applicant consisting of a bond
with or without a surety for a reasonable amount as the circumstances of the case
permit conditioned upon the applicant appearing before such a court on a date
and time as named in the bond to start his trial. This agreement can only be
lawfully cancelled when it is proved to the satisfaction of a court by which the
agreement was made that there is a breach of the same or that it is about to be
breached”.
Byrnes Law Dictionary defines bail as follows:2
“An accused person is said at common law to be admitted to bail when he is
released from custody of officers of the law entrusted to the custody of persons
known as sureties, who are bound to produce him to answer at a specified time
and place, the charge against him and who in default of so doing are liable to
forfeit such sum as is specified when bail is granted.”
Originally bail meant security given to court by another person that the
accused will attend his/her trial on the day appointed. But now it includes
recognizance entered into by the accused himself – conditioning him to
appear, and failure of which may result in the forfeiture of the recognizance.
Bail is taken away from people of some substance if they do not fulfill their
bail conditions.
Bail has been defined in the Law Lexicon as security for the appearance of
the accused person on giving which he is released pending trial or
investigation.
1 [1986] HCB 33 (Cr. Rev. Number 17 of 1986).

2 Honourable Justice Twinomujuni, JA in a paper delivered on 2 - 4 September 2007 at Entebbe on
the subject. The Right to bail as a fundamental right: Practical challenges
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What is contemplated by bail is to ‘procure the release of a person from

legal custody, by undertaking that he/she shall appear at the time and place
designated and submit himself/herself to the jurisdiction and Judgment of the
court.3
Archbold defines bail as:4
“… a security in the form of a bond required in respect of the release of an
accused person, and conditioned for his appearance at a specified time and place
to answer the charge. If the terms of the bail require a surety or sureties the
defendant is placed in custody of such sureties, who, at common law could re-
seize him.”
It can be deduced from the above definitions that bail represents a
compromise between conflicting interests; the accused is given his freedom on
conditions designed to ensure his attendance at court when required.
The value that society places on personal liberty gives to bail its primary
importance, but there are other, tangible reasons why it is preferable to
remand in custody.
9.2 OBJECT OF BAIL

Bail is granted to an accused person to ensure that he or she appears to stand
trial without the necessity of his/her being detained in custody in the
meantime.
The object of arrest and detention of the accused person is primarily to
secure his or her appearance at the time of the trial and to ensure that in case
he/she is found guilty he is available to receive the sentence. However, if
his/her presence at the trial could be reasonably ensured otherwise than by
his/her arrest and detention, it would be unjust and unfair to deprive the
accused of his/her liberty during the pendency of the criminal proceedings
against him/her.
Where an accused person is remanded in custody and is subsequently
acquitted, he or she may have suffered a gross injustice. When release on bail
is denied to the accused, it would mean that though he/she is presumed to be
innocent till the guilt is proved beyond reasonable doubt, he/she would be
subjected to the psychological and physical deprivations of jail life. The
criminal justice system should allow people who are charged to be let out
before the case comes to court or is finally determined if such persons are not
a menace to society.
3 Black’s Law Dictionary (4 ed) page 177.

4 (24 ed) (1961) paragraph 291.
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Bail 183
The incarceration of the accused person results in socio-economic

problems to the society as the jailed accused losses his job and is prevented
from contributing effectively to the preparation of his/her defence. Equally
important, the burden of his/her detention frequently falls heavily on the
innocent members of his/her family. Besides, by keeping him out of remand it
must be saving for the government not only financially but also by easing the
burden on prison accommodation.
The general effect of bail is to temporarily release the accused person from
custody of the court or police. Where there is risk involved in the release of
the suspect on bail (such as jumping bail or absconding in order to avoid trial
or sentence or tempering with witnesses or destroying evidence or a possibility
of committing more offences during the period of his/her release on bail) it
would be cruel and unjust to deny the accused/suspect bail.
The law on bail has two conflicting demands, namely on one hand, the
requirements of the society for being shielded from the hazards of being
exposed to the misadventures of a person alleged to have committed a crime;
and on the other; the fundamental cannon of our criminal justice system of
the presumption of innocence of an accused until he is found guilty.
The accused is presumed to be innocent. Therefore he/she needs time and
facilities to prepare for his or her defence in order to get a fair trial. It is
usually not easy for a person in detention to prepare for his/her defence. Some
of the evidence needed for such a defence cannot be easily assembled while
one is in prison or detention. That is why if such a person guarantees that
he/she will not abscond or interfere with witnesses; he needs to be released on
bail so that he/she can prepare for his or her defence.
In order to attain the above objectives, the legislature in its wisdom has
given some precise directions and guidelines for granting and not granting bail
where the legislature allows discretion in the grant of bail, the discretion is to
be exercised according to the guidelines provided by law; in addition the
courts have evolved certain norms for the proper exercise of such discretion.
The basis for bail is premised on the delay the trial takes and there has to
be a balance between the rights of the suspect and protection of society. The
freedom of the accused during the criminal process is regarded as desirable
because of the value society places on individual freedom, particularly where a
person remains unconvicted as a result of the principle of presumption of
innocence. On the other hand, society has an interest in ensuring that an
accused takes his/her trial. If every accused were allowed to go free during
criminal process there would be obvious dangers that many would not appear
at court when required.
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5
In the case of Mpuuma K. Leonard v Uganda; the right to apply for bail
accrues after a person has been remanded into custody or has been arrested
and is brought in court in connection with a crime. Such a person, would at
the time of application, be in some form of custody. She/he would be
experiencing restriction on freedom of movement for the application for bail
to make sense. “Appear” or “person appearing before court” in section 75(1)
and (4) MCA must mean personal appearance by the accused, not appearance
by advocate. In this case since the Applicant had never appeared before the
magistrate’s court nor had he been charged with any criminal offence (at the
stage of the application), his application for bail was found premature and
incompetent
9.3 THE RIGHT TO BAIL

Under the Constitution of Uganda, the right to bail flows from the provisions
of article 28 which provide as follows:
“Every person who is charged with a criminal offence shall, be presumed to be
innocent until proved guilty or until that person has pleaded guilty”6
It is because of the presumption of innocence enshrined in the Constitution
that the provision for court bail is part of our law.
This clearly means that every person arrested for an alleged offence is
entitled to be presumed innocent until his/her guilt has been provided beyond
reasonable doubt or until he/she has pleaded guilty to the offence charged.
The object of bail is to ensure that the accused appears in court to answer
the charge(s) pending against him without being detained in prison on
remand. At this stage, the presumption of innocence contained in Art.
7
28(3)(a) continues to apply. In Adimola v Uganda, the Court was mindful
of the fact that the accused faced a very serious charge of treason. But it
found that in the eyes of the law, the Accused is innocent and remains so
until the court decides otherwise.
Therefore the person must not be treated like a convict.
It would, however, be a negation of the rights guaranteed under the
presumption of innocence in the Constitution, if such a person (suspect) was
to be kept under custody indefinitely or for very long periods.
The right to bail is a fundamental right. It is a fundamental right because it
operationalises the all important right to liberty and right to a fair trial.
5 High Court Misc. Apn. Number 325 of 2006 (unreported).

7 High Court Misc. Apn. 9/92.
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Bail 185
The right to bail is made a constitutional right under article 23(6) which
8
provides:
Where a person is arrested in respect of a criminal offence:
(a) the person is entitled to apply to the court to be released on bail, and the
court may grant that person bail on such conditions as the court considers
reasonable;
(b) in the case of an offence which triable by the High Court as by a
subordinate court, if that person has been remanded in custody in respect
of the offence for sixty days before trial, that person shall be released on
bail on such conditions as the court considers reasonable;
(c) in the case of an offence triable by only the High Court, if that person has
been remanded in custody for one hundred and eighty days before the case
is committed to the High Court, that person shall be released on bail on
such conditions as the court considers reasonable.
In the case of Joseph Tumushabe v The Attorney General9 Justice Twinomujuni
Amos J.A. observed:
“The right to bail is a fundamental right guaranteed by article 23(6) of the
Constitution. Its basis is to be found in article 28 of the Constitution which states
that an accused person is to be presumed innocent until he/she is proved or
he/she pleads guilty. It also provides that an accused is entitled to a fair and
speedy trial before an independent and impartial court or tribunal established by
law. Those two principles are part of the right to a fair hearing which is declared
to be inviolable by article 44 of the Constitution. The idea is that a person
presumed to be innocent and who is entitled to a speedy trial should not be kept
behind bars for unnecessarily long before trial. That is the rationale of article
23(6) of the Constitution.”
The person’s right to bail must, however, be exercised in accordance with the
law and taking into account measures and circumstances necessary to combat
crime.
As noted in other Chapters, generally the police make an arrest on
suspicion of a crime having been committed. The collection of the necessary
evidence may take time depending on the nature, gravity and complexity of
the particular crime under investigation.
All these matters should be borne in mind when a court interprets the
provisions of the law relating to bail.

9 Constitutional Petition Number 6 of 2004.
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9.4 AUTOMATIC AND DISCRETIONARY BAIL

Under article 23(6)(a) of the Constitution: discretion is conferred upon the
court whether to grant or not to grant bail. Therefore in such circumstances
bail is not automatic.
This was deduced by the constitutional court from the usage of the word
10
‘may’ which implies permissive, optional or discretionary and not mandatory.
In addition the usage of the words under article 23(6)(a), “the accused is
entitled to apply for bail”. The word ‘entitled’ creates a ‘right’ to apply for bail
and not a right to be granted bail. Therefore the word ‘may’ creates discretion
for the court to grant or not to grant bail.
Bail is a matter of right, but the discretion to grant it depends upon the
various considerations. The scope of the discretion varies in inverse
proportion to the gravity of the crime. As the gravity of the offence increases,
the discretion to release the accused on bail gets narrowed down. A High
Court has far wider discretion than the lower courts (magistrates).
While considering the scope of the discretion one important thing should
always be kept in mind. Whether the discretion in granting bail is wide or
narrow, it is not to be used in an arbitrary manner.
Discretion’ when applied to a court of law, means sound discretion guided
by law. It must be guided and governed by rule, not by humour; it must not
be arbitrary, vague and fanciful, but legal and regular. The discretion to grant
bail has to be exercised according to certain rules and principles laid down
under the law and judicial decisions.
The major object of detention pending criminal proceedings is not
punishment and that the law favours allowance of bail, which is the rule, and
refusal is the exception. While considering the question of bail, there cannot
be very rigid and inflexible rules, however, the courts (magistrate) can for
11
their guidance have regard to the following matters:
(a) the nature of the accusation;
(b) the gravity of the offence charged;
(c) the severity of the punishment which conviction might entail;
(d) the antecedents of the applicant so far as known;
(e) whether the applicant has a fixed abode within the area of court
jurisdiction;
10 Uganda (DPP) v Col. (Rtd) Dr. Kizza Besigye Constitutional Reference 20 of 2005.
M Ssekaana
Bail 187
(f) whether the applicant is likely to interfere with any of the witnesses for the
prosecution or any of the evidence to be tendered in support of the
charge;
(g) the protracted nature of the trial;
(h) opportunity to the applicant for preparation of his/her defence and access
to his/her counsel;
(i) the health, age and sex of the accused;
(j) the nature and gravity of the circumstances in which the offence is
committed;
(k) the position and status of the accused with reference to the victim and the
witnesses;
(l) the probability of the accused committing more offence, if released on bail.
Since bail is discretionary under these circumstances under article 23(6)(a),
there are also other considerations and the above list is by no means an
exhaustive catalogue of factors which should weigh with the courts:
The High Court and the subordinate courts have wide discretionary
powers to set bail conditions which they deem reasonable though this must be
12
done judicially.
Simply because a co-accused has been granted bail an accused cannot be
granted bail. The court has to examine whether on the facts the case of the
applicant before the court is distinguishable from the other released co-accused
and the role played by the applicant in the commission of the crime.
However, in some jurisdiction like Kenya the discretion in the grant of bail
has been abolished by the Constitution (Amendment) Act Number 20 of
1987. The effect of the amendment was abolition of bail for offences
punishable by death.
This has been criticized by different legal scholars who have argued that it
has prejudicial consequences for the accused, as it inhibits unrestricted constant
consultation with counsel and the ability to gather evidence and consult with
his/her witness. This has a direct bearing and effect on the general right to a
fair trial.
It is also submitted that it can be subject to abuse by some bad
regimes/leaders to stifle opposition by framing its members as it has been
13
observed in Uganda.
12 Uganda (DPP) v Col. (Rtd) Dr. Kizza Besigye supra.

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This position of the law is unfair to an accused who may later be acquitted.
This would have been an unfair treatment as there is no compensation to
such person who may later be set free. The accused may stay long on remand
without the case taking off. It is submitted that if such person is not entitled to
bail, then the law should set a time frame within which the trial must be
concluded.
The denial of bail equally negates the presumption of innocence which is a
cardinal principle of our criminal justice system.
There are other situations or circumstances under the Constitution when
bail becomes an automatic right.
Under article 23(6)(b) and (c), the court has no discretion to grant or not
to grant bail after the accused has shown that he/she has been on remand for
60 days before trial or 180 days before committal to the High Court.
Under article 23(6)(b), where the accused has been in custody for 60 days
before trial for an offence triable by the High Court, that person shall be
released on bail on such conditions as the court considers reasonable. In this
provision, the court has no discretion. It has to grant bail because of the use of
the phrase “shall be released on bail” appearing therein.
The word ‘Shall’ is imperative or mandatory. It denotes obligation.14
As regards to article 23(6)(c), where the accused have been in custody for
180 days on an offence triable by the High Court only and has not been
committed to the High Court for trial, that person shall be released on bail on
reasonable conditions. Like in the above the court has no discretion to refuse
to grant bail to such a person.15
However, in both situations where bail is an automatic right, the court has
discretion to determine the conditions and terms for the grant of bail.
16
Justice Amos Twinomujuni JA has noted in his paper that the imposition
of “reasonable conditions” as required by the article appears to pose
derogation to the automatic right to bail after an accused has served the
mandatory period prescribed by the constitution.
13 Okumu Reagan and Michael Ocula v Uganda Cr. Misc. Application Number 23 of 2005. Two
opposition Member of Parliaments were indicted for murder but later they were acquitted with no
evidence against them.
14 Uganda (DPP) v Kizza Besigye supra, Foundation for Human Rights Initiative v Attorney General
Constitutional Petition Number 20 of 2006 decided on 26 March 2008.
15 Ibid.
16 Honourable Justice Amos Twinomujuni JA. A paper entitled the right to bail as a Fundamental
Right : Practical challenges presented on 2-4September 2007.
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Bail 189
17
The Constitutional Court in Uganda (DPP) v Col (Rtd) Dr. Kizza Besigye
commented on the matter as follows:
“We, however, feel constrained for the sake of completeness of the exercise, to
offer some general observations on the ‘reasonable conditions’ the court should
keep in mind when deciding to grant bail or to refuse to grant bail. While
considering bail the court would need to balance the constitutional rights of the
applicant.
The needs of society to be protected from lawlessness and the considerations
which flow from people being remanded in prison custody which adversely
affects their welfare and that of their families and not least the effect.
Bail could also be refused according to the status of the offence and the stage
in the proceedings. The extent to which evidence pointing to proof of guilt or
innocence of the applicant would seem to be one of the degree in the
circumstances of a particular case. There is no rule that such evidence cannot be
placed before court. An Investigations Officer giving evidence of arrest often is to
connect the applicant sufficiently with the offence, as much as to claim that he or
she may fail to surrender for trial.
While the seriousness of the offence and the possible penalty could be meted
out are considerations to be taken into account in deciding whether or not to
grant bail, applicants must be presumed innocent until proved guilty or until that
person has pleaded guilty. The court has to be satisfied that the applicant will
appear for trial and would not abscond. The applicant should not be deprived of
his/her freedom unreasonably and bail should not be refused merely as a
punishment as this would conflict with the presumption of innocence. The court
must consider and give the applicant on prison remand conditions if large
numbers of unconvicted people are remanded in custody.
In this respect various factors have to be born in mind such as the risk of
absconding and interference with the course of justice.
Where there is a substantial likelihood of the applicant failing to surrender for
turn up for trial bail may only be granted for less serious offences. The court must
weigh the gravity of the offence and all the other factors of the case against the
likelihood of the applicant absconding. Where factors come to light and it appears
that there is substantial likelihood of the applicant offending while on bail, it
would be inadvisable to grant bail to such a person.
Similarly where there is substantial likelihood of interference with witnesses,
this is normally relevant when the alleged offence is comparatively serious and
there is some other indication of violence or threatening behaviour by the
accused, this would be a very strong ground for refusing bail the full benefit of
17 Supra.
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his/her constitutional rights and freedoms by exercising its discretion

judicially.
Bail should not be refused mechanically simply because the State wants such
orders. The refusal to grant bail should not be based on mere allegations.
The grounds must be substantiated. Remanding a person in custody is a
judicial act and as such the court should summon its judicial mind to bear on the
matter before depriving the applicant of their liberty what we have outlined
above is by no means exhaustive. The court should consider all other relevant
circumstances.
However, a condition tantamount to refusing the bail will not be considered
18
as a condition authorized by law. Nor can a condition be imposed in
derogation of any fundamental right of the accused guaranteed under the
Constitution.
Therefore, the conditions which are to be imposed must be such as are
linked up with the preventing the escape of the accused or prevention of
future crime or otherwise as required in the interests of justice.
The genesis of the right to bail is the protection of the right to liberty. The
right to liberty is among the universally recognized fundamental human rights
and freedoms, which every human being is entitled to enjoy.
The purpose and effect of the provisions under article 23(6)(b) and (c) is
not to identify or distinguish the courts empowered to grant bail but it is to
set maximum periods for which persons awaiting trial for criminal offences
can be kept on remand in custody.
The provisions specify different periods for mandatory release on bail in
respect of two classes of criminal offences, namely offences triable by the High
Court only, which are also known as indictable offences, and offences that are
triable by both the High Court and by subordinate courts. The major reason
for different periods is rooted in the fact that more time is required for pre-
trial procedure for criminal cases triable in the High Court than for criminal
cases to be tried in the subordinate courts. Pre-trial procedure in respect of
cases indictable offences involves preparation of a summary of the case on an
indictment and submission of the same to the magistrate’s court for committal
proceedings at the end of which the accused person is committed for trial by
the High court.
On the other hand, there are no pre-trial proceedings in respect of cases to
be tried in a subordinate court. The framers of the Constitution must have
18 Charles Onyango Obbo and Andrew Mwenda v Uganda HCMA 145 1997 [1997] V KALR 25. Bail
bond of 2 Million each before a Magistrate was found excessive reduced UShs 20 000.
M Ssekaana
Bail 191
had that difference in contemplation when they prescribed the different

maximum periods for which persons awaiting trial can be held on remand in
19
custody.
9.5 BAIL IN MAGISTRATES COURT

Bail may be granted by a magistrate in any case except where the accused
person is charged with an offence excluded by law.
A magistrate’s court before which a person appears or is brought charged
with any offence, other than the offences specified in subsection 2 may, at any
stage in the proceedings, release the person on bail, on taking from him or her
a recognisance consisting of a bond with or without sureties, for such an
amount as is reasonable in the circumstances of the case appear before the
20
court, on such a date and at such a time as is names in the bond.
The offences excluded from the grant of bail in the magistrate’s court are as
follows:21
(a) an offence triable only by the High court;
(b) an offence under the Penal Code Act relating to acts of terrorism;
(c) an offence under the Penal Code Act relating to cattle rustling;
(d) an offence under the Fire Arms Act punishable by a sentence of
imprisonment of not less than ten years;
(e) abuse of office contrary to section 87 of the Penal Code Act,
(f) rape and defilement;
(g) embezzlement under the Penal Code Act;
(h) causing financial loss under Penal Code Act;
(i) corruption contrary to section 2 of the prevention of Corruption Act;
(j) bribery of a member of a public body contrary to section 5 of the
prevention of Corruption Act; and
(k) any other offence in respect of which a magistrate’s court has no
jurisdiction to grant bail.
Where any person appears before a magistrate’s court charged with an offence
for which bail may be granted, the courts shall inform the person of his or her
22
right to apply for bail.
19 Attorney General v Joseph Tumushabe Supreme Court Constitutional Appeal Number 3 of 2005.
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A Chief magistrate may, in any case other than in the case of an offence
specified in subsection 2, direct that any person to whom bail has been refused
by a lower court within the area of his or her jurisdiction, be released on bail
or that the amount required on any bail bond be reduced.23
It is imperative to note that these provisions on bail are meant to
operationalise the constitutional right to bail in respect of cases triable by
magistrate’s court. However, since these provisions were enacted before the
current Constitution (1995) came into force, there is need to harmonise them
with the requirements of the Constitution as the supreme law.
9.6 BAIL PENDING APPEAL

An appellant may, at any time before the determination of his or her appeal,
apply for bail to the appellant court and the appellant court may grant the
bail.24
The accused should have filed an appeal (notice of appeal) in the
competent court before he/she can apply for bail pending appeal.
It is a rule of practice that bail pending appeal will be granted only in
exceptional circumstances. The following considerations should be taken into
account:
(a) likelihood of success of the appeal.25
(b) the likelihood of a delay in hearing the appeal.26
(c) the length of the sentence imposed, and
(d) the complexity of the case.
Sickness of whatever nature cannot be a ground for releasing a person on bail
pending appeal. The burden of proof that an appeal has a good chance of
27
success lies on the applicant for bail pending appeal.
It should be noted that bail pending appeal is particularly important in
magistrate’s court because any custodial sentence imposed is necessarily short,
so if not granted bail the appellant may have served much of his/her sentence
by the time the appeal is head.

24 Section 205 ibid Chemuswa v Uganda [1973] HCB 193.
25 Christopher Lubale v Uganda HCMSA 2/95 [1995] IV KALR 48.
26 Kilanda and others v Uganda [1984] HCB 18.
27 Christopher Lubale v Uganda (supra). See also Lamba v R [1958] EA 337, Sudhir Ruperalia v Uganda
[1992-93] HCB 52.
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Bail 193
The essential difference between bail prior to conviction and bail pending
appeal is that, in the former case, there exists a prima facie presumption in
favour of bail, whereas after conviction the onus is reversed and the
accused/convict must show why he/she should be released. Therefore bail
upon conviction will only be granted upon proof of special circumstances.
9.6.1 Bail Pending Confirmation

Whenever a magistrate’s court passes a sentence which requires confirmation,
the court imposing the sentence may, in its discretion, release the person
sentenced on bail pending confirmation.28
9.6.2 Bail Pending Revision

Where a court presided over by a magistrate grade I and II convicts a person
of any offence and on obtaining information about his or her character and
antecedents the court is of the opinion that they are such greater punishment
should be inflicted for the offence than the court has power to inflict, the
court may, instead of dealing with him or her in any other manner, commit
him or her in custody to a court presided over by a chief magistrate having
jurisdiction for sentence; but the chief magistrate may if he/she considers the
conviction is improper or illegal forward the record of proceedings to the
High court, not withstanding any such committal, and postpone passing
sentence pending the decision of the High Court and may, pending that
decision, release the offender on bail or remand him or her in custody as
29
he/she thinks fit.
The grade I magistrate has no power to release on bail pending a revision.
This power is only vested in chief magistrate.30
9.7 CONDITIONS FOR BAIL

When an application is made court should have regard to those matters set out
in the Magistrates Court Act and other case law to guide it on whether bail
should be granted or refused.
A close study of these provisions makes it clear that the factors to consider
in relation to bail are:- The offence, the applicant; and police investigations.

30 Uganda v Kahira [1988-1990] HCB 30.
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9.7.1 The Gravity of the Offence

The court considers the weight or seriousness or explosiveness of the offences
together with the severity or level of sentence on conviction. This is relevant
because the sentences in serious offences are heavy and the applicant is likely
to abscond and often these offences are of public concern.
The courts should exercise more caution before the grant of bail where the
offence is a serious one or rampant. In minor cases the possibility that the
accused shall report back for trial is higher.
The severity of the punishment that may be imposed is clearly an
important consideration. The court may consider the maximum sentence
fixed by law for the offence charged and, if so, the possible sentence is an
independent criterion affecting bail decision. Generally, however, the court
will consider the maximum sentence in conjunction with other factors, and
assess the severity of the penalty that may be imposed in the case at hand.
Thus, an offence carrying a substantial term of imprisonment may be of
particular significance where there is an overwhelming case against the
accused.
9.7.2 The Antecedents of the Applicant

This entails the antecedents of the applicants so far as known, which may
include past or previous conduct and character of the accused. Whether or not
is a habitual criminal or not and whether he/she has ever jumped bail or
escaped from lawful custody.
The criminal record of an applicant for bail has an important bearing on
the success or otherwise of his/her bail application. A criminal record is
important because of its relevance to the sentence that may be imposed should
the applicant be convicted. Undoubtedly, the seriousness of the applicant’s
past criminal record will take even more significance if he/she is charged with
a serious offence and the case against him/her is a strong one.
In R v Armstrong the English Court of Criminal Appeal said:31
“It is clear that it is the duty of the justices to inquire into the antecedents of the
man who is applying to them for bail, and if they find he has a bad record-
particularly, a record which suggests that he is likely to commit similar offences
while on bail-that is a matter which they must consider before granting bail.”
In addition, the court should consider whether the accused has a fixed place of
abode within the jurisdiction. Fixed abode implies identifiable and known
31 [1951] 2 All ER 219.

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Bail 195
place of abode (residence). It does not necessarily mean having a permanent

house. Having a fixed place of abode in the court jurisdiction gives a
likelihood that it could be difficult for the accused to abscond unless the
charge is a grave one, since a person is not likely to abandon his/her home
and family. However, in the case of Livingstone Mukasa and 5 others v Uganda32
Saied CJ noted as follows:
“The fact that accused persons may be married or have permanent abodes within
the jurisdiction of Uganda court are not by themselves cogent reasons for
granting bail. I take the view that where the consideration is concerning the
liberty of the person involved, courts must equally bear in mind the interests of
justice and neither ought to be sacrificed at the expense of the other.”
What appears to be the most important factor for consideration in a bail
application is:- whether or not the accused if released on bail shall report back
to the court for trial. Where the answer is in the affirmative the accused
should be released on bail unless the other considerations combined do
outweigh this consideration.
9.7.3 The Police Investigations

There is a possibility of the applicant interfering with the police investigations
of the charge against him/her, either through interference with the intended
witnesses or the intended evidence. This is a reason commonly used by the
prosecution, while objecting to the grant of bail. The prosecution has a duty
to establish that factor in court before the court denies the accused bail on that
ground.
The prosecution should give court a reasonable explanation why he/she
believes that the applicant is likely to interfere with the prosecution evidence
if released on bail.
33
In the case of Panju v Republic it was noted:
“If the courts are simply to act on allegations, fears, or suspicions, then the sky is
the limit and one can envisage no occasion when bail would be granted
whenever such allegations are made.”
It is argued that while it is true that the courts must always be cautious about
refusing bail on this ground, it is doubtful whether the requirement that in
every case the prosecution should prove their assertion or allegation by
evidence on oath as a way of achieving this primary objective.
32 [1976] HCB 117.

33 [1973] EA 282.
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34
In the case of Uganda v Wilberforce Nadiope and 5 others bail was refused on
the ground that because of the accused person’s prominence and apparent
influence in life, there was every likelihood of his using his influence to
interfere with witnesses.
In Uganda v James Kalisa Kanamwangi35 while the court was cancelling the
accused person’s bail, court noted that “I cannot rule out a possibility that an
accused person of this category will always interfere with witnesses for the
prosecution.
It should be noted that the possibility of the accused interfering with
witnesses arises less frequently and may only be relevant when the alleged
offence is comparatively serious.
The fact that the police are pursuing enquiries about the accused’s possible
involvement in other offences may be advanced by the prosecution as a reason
for the refusal of bail.
It should be noted that, it is not justifiable to refuse bail so that the police
may gather evidence in respect of the offence with which the suspect is
charged, for an arrest and charge presupposes that there are reasonable grounds
for the arrest and charge, and, in any case, further enquiries are possible even if
the suspect has been released on bail.
The applicant should plead the following during an application for bail.
(a) Presumption of Innocence (under Constitution);
(b) Charge is bailable or has spent mandatory period on remand;
(c) Fixed abode within jurisdiction of court;
(d) No previous criminal record;
(e) No previous record of jumping bail;
(f) Sound sureties (with identification documents);
(g) No evidence that he/she will interfere with prosecution witnesses or has
capacity to do so;
(h) Applicant will attend court if released on bail and has been on police bond;
9.8 BAIL IN THE HIGH COURT

The Trial on Indictments Act governs criminal proceedings as conducted by
the High Court. The High Court may at any stage in the proceedings release
34 M.B 153/69 (quoted by FJ Ayume in Criminal Procedure and Law, LawAfrica Publishing, 2010).
35 Criminal Rev. Number 91 of 1972 (unreported).
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Bail 197
the accused on bail, that is to say, on taking from him or her a recognisance
consisting of a bond, with or without sureties, for such an amount as is
reasonable in the circumstances of the case, to appear before the court on such
a date and at such a time as is named in the bond.36
As noted earlier, bail becomes automatic under the Constitution after the
accused has spent or been remanded for a period of 180 days before the case is
committed to the High Court for trial. However, the High Court may
consider an application for bail before the expiration of 180 days.
The court may, refuse to grant bail to a person accused of an offence if he
or she does not prove to the satisfaction of the court:37
(a) that exceptional circumstances exist justifying his or her release on bail and
(b) that he or she will not abscond when released on bail
The use of the word ‘may’ as noted earlier, gives power to the courts to
determine whether an applicant for bail has complied fully with the
requirements.
It gives court discretion to consider the bail on such grounds as set out in
the law and the court must satisfy itself that all the provisions of the law have
been complied with the discretion exercisable in such circumstances is guided
and exercisable upon proof of exceptional circumstances and a determination
as to the likelihood of abscondment.
9.9 CONDITIONS FOR BAIL IN HIGH COURT EXCEPTIONAL

CIRCUMSTANCES
Under the trial on Indictments Act, exceptional circumstances have been
defined to mean any of the following:38
(a) 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;
(b) a certificate of no objection signed by the Director of Public Prosecutions
or
(c) the infancy or advanced age of the accused.
36 Section 14 Trial on Indictments Act.

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The court’s discretion is unfettered in the grant of bail and every case must be
decided on its own merits and circumstances. However, an applicant in any
case before court for bail must fulfill one of the conditions set out in the law.
9.9.1 Grave Illness

The courts have been hesitant to grant bail to any applicant on this ground
when they fail to prove to the satisfaction of the court that the illness
complained of is both grave and incapable of treatment at the place where
they are detained.
Courts have further held that, not every discomfort caused by diet or
congestion in accommodation amounts to exceptional circumstances within
39
the meaning of the law relating to grant of bail.
Grave illness has to be certified by the medical board constituted by the
chief medical treatment while the accused is in custody.40 Where satisfactory
evidence of AIDs is adduced, a court may consider the circumstances of the
case and in absence of a certificate from the medical board hold that AIDs is
not a grave illness. To justify grant of bail, the applicant has to prove to the
satisfaction of the court that he was incapable of getting adequate treatment
41
whilst in custody.
9.9.2 Infancy or Advanced Age

An infant is not defined under our criminal legislations, but an infant is a
person between the ages 0-12 years. There is a tendency of confusing an
infant with a child. A child is defined under the Constitution to mean any
person below 18 years of age.42
The term infancy is not legally defined anywhere under the law governing
grant of bail if the court has to resort to its own resources and discretion to it
in construction of the provisions of the section.
The term ‘infancy’ as used in the section is neither restricted to natural
infancy which is a period of no-responsible life which ends with the seventh
year nor does it denote the state of a person under the age of 12 years which is
39 Uganda v Golooba High Court Cr. Misc. Application 89 of 1995, Kandole Patrick v Uganda High
Court Cr. Misc. App. Number 198 of 1998.
40 Ahmed Sengendo v Uganda [1986] HCB 32, Goddie Mugume v Uganda [1992-1993] HCB 61.
41 Capt. Wilberforce Serunkuma v Uganda HC Misc. Cr. App. Number 129 of 1994 [1995] 1 KALR 32.
42 Article 257 (Interpretation).
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Bail 199
43
of criminal responsibility . The applicant who was aged 15 years and a student
in senior three at Mengo senior secondary school proved exceptional
44
circumstance of infancy to justify his being released on bail.
However in the case of A. Kamoga v Uganda45court noted that; Bail can be
granted on exceptional circumstances one being that the applicant is in infancy
or advanced age. Since the applicant who as 16 ½ years did not fall under the
definition of an infant and the ground that his schooling would be put in
jeopardy by staying in prison was not tenable, his application for bail was
dismissed.
However, the court released the applicant aged 15 years on lack of visible
progress towards his trial. The applicant was released on bail on account of his
46
education being a (pupil/student).
An applicant aged 17 years was charged with aggravated robbery and was
remanded at Luzira prison. The court refused him bail as the offence was
grave but ordered that he be remanded in a remand home pending his trial
than release him on bail.47
In case of old age, the courts have held in a number of cases that an
applicant of or above fifty years of age is deemed to be a person of advanced
48
age.
An age between 50 and 55 years may be regarded as advanced age for
purposes of bail applications.49
9.9.3 Abscondment
In considering whether the accused is likely to abscond, the court may 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;
43 Gerald Bakojja v Uganda [1996] HCB 4, section 88 of Children Act, the minimum age of criminal
responsibility shall be 12 years.
44 Ibid.
45 [1992-1993] HCB 57 Sunday Atanansio v Uganda HCMA 92197 [1997] V KALR 155.
46 Yuda Tadewo Muyanja v Uganda High Court Misc. Criminal Application Number 85 of 1995.
47 Hamujuni v Uganda Criminal Misc. App. Number 14 of 1999.
48 Chris Eyahura v Uganda H.C. Cri. App. 205 of 1998. [1998] III KALR 24.
49 Adimola and another v Uganda H.C. Misc. App. Number 9 of 1992, Erika Mutuba v Uganda Misc.
Cr. Appeal Number 4 of 1992, Oliver Zizinga v Uganda Cr. Misc. App. 202/1998, Gakyaro Pascheal
v Uganda Misc. Cr. App. Number 8 of 2003.
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(b) Whether the accused has sound securities within the jurisdiction to
undertake that the accused shall comply with the conditions of his/her
bail;
(c) Whether the accused has on a previous occasion when released on bail
failed to comply with the conditions of his or her bail and
(d) Whether there are other charges pending against the accused.
It has been noted by court in several cases that the High Court has a discretion
50
to grant bail even when exceptional circumstances do not exist.
Other considerations apart from exceptional circumstances include
inordinate delay on the part of the state to try the accused person.51
52
In the case of Okumu Reagan and Michael Ocula v Uganda, while granting
bail was satisfied that despite the fact that the applicants stood indicted for
murder they have proved that they will not abscond if granted bail. Indeed the
applicants are men of substance who hold very responsible position in society
in that both of them are Members of Parliament. They have both fixed places
of abode in Kampala and their constituencies. In addition, each of them
produced very substantial sureties (who were all Members of Parliament and
one prominent person).
Similarly, in the case of Col (RTD) Dr. Kizza Besigye v Uganda,53 the court
noted that the applicant was not likely to abscond from the jurisdiction since
he had so far demonstrated that he respected interim conditions for bail.
The restrictions to the right to bail should be construed from the
Constitution under article 23(6) and the restrictions in the Trial on
Indictments Act should be repealed and replaced with provisions consistent
with the Constitution.
9.9.4 Certificate of no Objection by DPP

The Director of Public Prosecutions may issue a certificate of no objection to
an application for bail in the High Court. However this power is rarely
exercised, and they usually object or seek for stringent conditions to be set by
court before grant of bail.
50 Janat Mureeba v Uganda Criminal case Number 0136 of 1999, Byaruhanga Rujema v Uganda H.C. Cr.
App. Number 97 of 1998, Baanabe Noah v Uganda Criminal Case Number 81 of 1998.
51 Ssewajjwa Abdu v Uganda Criminal Application Number 7 of 1998, Onyai Francis v Uganda Criminal
Case Misc. Application Number 10 of 1999, Musoke v Uganda [1972] EA 137.
52 Criminal Misc. Application Number 23 of 2005.
53 Criminal Miscellaneous Application Number 76 of 2006 [2006] HCB 17.
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Bail 201
9.10 BAIL IN THE GENERAL COURT MARTIAL

Bail in the military Courts is equally governed by the provisions of the
Constitution under article 23(6)(a) and (b) since it is the supreme law of the
land. It applies to every person awaiting trial for criminal offence without
exception.54
The Constitution guarantees to every person the enjoyment of the rights
under the Constitution except only in circumstances that are expressly
stipulated in the Constitution. The Constitution also commands the
government, its agencies and all persons without exception, to uphold those
rights. The General Court Martial is not exempted from the constitutional
command to comply with the provisions of article 23 (6) in particular, nor is a
person on trial before a military court deprived of the right to reclaim his/her
liberty through the order of habeas corpus or application for mandatory bail in
55
appropriate circumstances.
In addition, section 219(218)* of the Uganda Peoples Defence Forces Act
provides:
Subject to sections 230(231 and 247(248) a military court may grant bail to a
person charged with a service offence on the same considerations that govern the
grant of bail in civil courts.56
In exceptional circumstances, and on such conditions as it may impose, the
appellate court may grant bail pending appeal except in cases where the
appellant has been sentenced to death or to term of imprisonment exceeding
57
five years.
It is important to note that the General Court martial from which appeals
lie the Court Martial Appeal Court, is both a subordinate court within the
meaning of Article 129 (1) (d) and lower than the High Court in the appellant
hierarchy of courts.
Concurrency of jurisdiction with the High Court does not render such
court with the same power or level in hierarchy.
Where a person is charged with an offence in a military court martial, the
power to grant bail is with that court.
54 Attorney General v Joseph Tumushabe Supreme Court Constitutional Appeal Number 3 of 2005
decided 2008.
55 Ibid.
56 Act 7 of 2005 revised sections under the revised Edition by ULRC.
57 Section 230 UPDF Act similarly bail may be granted pending revision under section 247.
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Where the accused is charged before the military court and the High
court, bail granted by the High Court to such a person is superior to any
considerations in the court martial and the later court has no power to cancel
it.
Where bail is refused to a person charged before a court martial contrary to
provisions of article 23(6), the Magistrate Courts Act and Trial on Indictments
Act, then any aggrieved party can apply to the High Court under the
Judicature Act for a writ of habeas corpus and the High Court has the power
to inquire into the matter and to release the accused in accordance with that
law.
Where a person triable under military law has been placed under arrest for
a service offence and remains in custody for 48 hours without his or her trial
by a military court having commenced, his or her commanding officer shall
make a report to the service chief of personnel and administration and the
service chief political commissar stating the reasons for delaying the trial and
shall release the prisoner on conditional bond after 72 hours.58
A person held in custody in the circumstances mentioned in subsection 1,
shall be freed by his or her commanding officer when a period of ninety days
continuous custody from time of arrest has expired unless his or her trial by a
military court has commenced.59
9.11 BAIL AT THE POLICE STATION

Bail may also be granted by a police officer in respect of a suspect during an
investigation into an alleged offence or following a person’s being charged
with an offence.
Where someone is arrested without a warrant but the custody officer at the
police station to which he or she is taken and detained considers that there is
insufficient evidence of an offence to charge the detained person with offence
and is not prepared to hold the person for questioning or cannot legally do so,
then the police officer must release him/her.
A police officer on arresting a suspect without a warrant shall produce the
suspect so arrested before a magistrate’s court within 48 hours unless earlier
60
released on bond.
58 Section 189(1) Uganda People Defence Force Act.

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A police officer making an arrest without a warrant shall, without

unnecessary delay and subject to the provisions of this code as to bail, take or
send the person arrested before a magistrate having jurisdiction in the case or
before an officer in charge of a police station.61
Officers in charge of police stations shall report to the nearest magistrate
within twenty-four (24) hours) the cases of all persons arrested without
warrant within the limits of their respective stations, whether the persons have
62
been admitted to bail or otherwise.
However, the police officer may release the person on bail and subject to a
requirement to return to a police station at a later date.
The person to be released must be set free on a bail bond. No fee or duty
shall be charged, issued or taken by a police officer on a bail bond in a
63
criminal case.
Where a person is arrested for an offence or returns to a police to answer
to a bail the police office must as soon as practicable determine whether
he/she has sufficient evidence to charge that person with an offence for which
he was arrested and may detain him/her for such a short period as is necessary
for the purpose of producing him/her before court.
If he/she does not have sufficient evidence, the arrested person must be
released with or without bail unless the police officer has reasonable grounds
for believing that his/her detention is necessary to secure or preserve evidence
or to obtain evidence by questioning him/her.
A person arrested or detained by police must be released or brought to
court as soon as possible not later than 48 hours from the time of his or her
arrest.64
Where the person is not brought to court or released on bond, any person
may apply to the magistrate within 24 hours who shall order his/her release
65
unless charged.

62 Section 18 ibid.
63 Section 38(1)(a) Police Act.
64 Article 23(4) Constitution section 25 Police Act.
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9.12 BAIL UNDER THE CHILDREN ACT

Where a child appears before a court charged with any offence, the magistrate
or person presiding over the court shall inquire into the case and unless there
is a serious danger to the child, release the child on bail:
(a) on a court bond on the child’s own recognisance;
(b) with sureties, preferably the child’s parents or guardians who shall be
bound on a court bond, not cash.66
If bail is not granted, the court shall record the reasons for refusal and inform
the applicant of his or her right to apply for bail to a chief magistrate’s court or
to the High Court.67
Where a child is arrested with or without a warrant and cannot
immediately be taken before a court, the police officer to whom the child is
brought shall inquire into the case and, unless the charge is a serious one, or it
is necessary in the child’s interests to remove him or her from association with
any person, or the officer has reason to believe that the release of the child will
defeat the ends of justice, shall release the child on bond on his/her own
recognisance or on a recognisance entered into by the parent of the child or
68
other responsible person.
Where a child is not released on bail, the court may make an order
remanding or committing him or her in custody in a remand home to be
named in the order, situated in the same area as the court making the order.69
9.13 RECOGNISANCE
In most cases where bail is granted, the accused will be released on his/her
entering into a recognisance consisting of a bond for a fixed amount to appear
before the court on a date and time stipulated in the bond.70
The normal practice is for the court to fix the amount of the recognisance,
which must be reasonable and which may be cash or not cash. The amount
must be reasonable in the circumstances of the case.
The court should have regard to the seriousness or 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/she is unable to benefit from the

68 Section 89(6) Ibid .
70 Section 14 Trial on Indictment Act and section 75 Magistrate Court Act.
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Bail 205
grant of bail. While court should take into account the accused’s ability to
pay, while exercising its discretion to grant bail on certain conditions, the
court should not impose such tough conditions that bail looks like a
punishment to the accused. The court should properly exercise its discretion
when imposing a condition. The imposition of a condition that each accused
should pay two million shillings was a failure by the lower court to judicially
71
exercise its discretion.
A recognizance may be ordered to be entered into with or without
sureties. In minor cases where the accused lives in the area, sureties are not
always necessary.
9.14 DEPOSIT INSTEAD OF RECOGNISANCE

The court has power to allow an accused person to deposit a specific article or
a sum of money instead of executing a bond.
When any person is required by any court or officer to execute a bond,
with or without sureties, that court or officer may permit that person:
(a) to deposit any specific article or property; or
(b) to deposit a sum of money to such amount as the court may fix, in lieu of
executing such a bond.72
This section can be used with great advantage, for most people have some
article that they value which, if deposited, would ensure that they attend
court. The court must make suitable arrangements for the safe custody of the
articles deposited, since they have to be returned at the conclusion of the case.
9.15 SURETIES
A recognizance may be ordered to be entered into with or without sureties.
In minor cases where the accused lives in the area, sureties are not always
necessary.
A surety is a pledge by some other person guaranteeing that the accused
shall appear for his or her trial and if he/she does not then the surety shall pay
to the court a certain sum of money which has been fixed by court.
A bailed person may be required to provide one or more sureties i.e.
(someone other than the accused person to vouch for the accused’s attendance
in answer to bail on a pain of losing a sum of money fixed by court.
71 Charles Onyango Obbo and Andrew Mwenda v Uganda HCMA 145 of 1997 [1997] V KALR 25.
72 Section 78(a).
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Where the sureties are asked for by court, it is duty bound to investigate
their worth. In considering the suitability of a surety regard may be made to
the following:
(a) Financial (means) resource;
(b) Character and any criminal record or previous convictions;
(c) Proximity in line of kinship to bailed person;
(d) Place of abode/residence
(e) It is essential that the person giving bail should be interested in looking
after and if necessary using powers he/she has to prevent the accused from
escaping.
A surety is not merely there to assist a friend or a relative out of jail. He/she
has a duty to the court of ensuring that the accused does not abscond. It is
essential that the person being put forward as a surety should be interested in
looking and, if necessary, using powers he/.she has to prevent the accused
from escaping.
In fact he/she must personally be at the court ready to explain in the event
of the accused’s failure to attend. He/she can arrest him/her if he/she has
reason to believe that the accused is about to abscond.
Thus if it comes to the knowledge of the surety that the bailed person is
about to abscond, they should at once inform the police or court of the fact.
The surety is liable to pay the amount specified in the bond if the accused
does not appear to stand his/her trial.
In the case of Uganda v Hajj Abbas Mugerwa and another.73 It was held inter
alia:
“It was the responsibility of the sureties to secure the attendance of the accused in
court in terms of the bond and on hearing about his intention to leave the
jurisdiction of the court to report the matter and have the accused arrested, and
for them to ask to be discharged as none of them could secure his attendance
once he left jurisdiction.”
It is generally regarded improper for an advocate to be permitted to stand as a
surety for his or her client and inappropriate for a magistrate to offer
himself/herself as a surety for a friend.
If, through mistake, fraud, or otherwise, insufficient sureties have been
accepted, or if they afterwards become insufficient, the court may issue a
warrant of arrest directing that the person released on bail be brought before it
73 [1975] HCB 218.

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Bail 207
and may order him or her to find sufficient sureties and upon failure to do so
74
commit him/her to prison.
When an accused appears to command influence over those he presents as
sureties, the court ought to give him a big No.75
All or any of the sureties for the appearance and attendance of a person
released on bail may at any time apply to a magistrate to discharge the bond
76
either wholly or so far as it relates to the applicant.
On that application being made, the magistrate shall issue a warrant of
arrest directing that the person released be brought before him/her.77
On appearance the magistrate shall direct the bond to be discharged either
wholly or so far as it relates to the applicant and shall call upon that person to
find other sufficient sureties, and if he or she fails to do so may commit him or
78
her to prison.
Where a surety to a bond dies before the bond is forfeited, his/her estate
shall be discharged from all liability in respect of the bond, but the party who
79
gave the bond may be required to find a new surety.
9.16 INCREASE OR REDUCTION OF BAIL

In any case where a person has been released on bail, the High Court may if it
is of the opinion that or any reason the amount of bail should be increased:
(a) issue a warrant for the arrest of the person released on bail directing that he
or she be brought before it to execute a new bond or for an increased
amount; and
(b) commit that person to prison if he or she fails to execute a new bond for
an increased amount.80
81
In the case of Charles Onyango Obboand and Andrew Mwenda v Uganda the
accused were charged with publishing false news. They were released on cash
bail of UShs 2 million. Court held that the imposition of a condition that each

75 Haruna Kanabi v Uganda [1994-1995] HCB 45.
76 Section 80(1) Magistrates Courts Act. See also section18(1) Trial on Indictments Act, Mahmood v R
[1974] EA 300.
77 Section 80(2) Magistrates Courts Act. See also section 18(2) Trial on Indictments Act.
78 Section 80(3) Magistrates Courts Act. See also section18(3) Trial on Indictments Act.
79 Section 81 Magistrates Courts Act section 19 Trial on Indictments Act.
80 Section 75(5) Magistrates Courts Act and 14(2) Trial on Indictments Act.
81 Supra .
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accused should pay UShs 2 million was failure by the lower court to
judiciously exercise its discretion and it was excessive.
The High Court may, in any case where an accused person is appearing
before a magistrate’s court:
(a) Where the case is not one mentioned in subsection 2, direct any person to
whom bail has been refused by the magistrate’s court be released on bail or
that the amount required for any bail bond be reduced ; and
(b) Where the case is one mentioned in subsection 2, direct that the accused
person be released on bail82.
9.17 FORFEITURE OF A RECOGNISANCE

Whenever it is proved to the satisfaction of court that a recognizance has been
forfeited, the court shall record the grounds of that proof and may call upon
any person bound by the recognizance to pay the penalty thereafter or to
show cause why it should not be paid.83
If sufficient cause is not shown and the penalty is not paid, the court may
proceed to recover the penalty by issuing a warrant for the attachment and sale
of the movable property belonging to that person, or his or her estate if he or
she is dead.84 Evidence of breach of a recognizance must be given under
oath.85
A court has discretion to declare a recognizance entered into by a surety to
be forfeited. The principles to be applied to questions of forfeiture are as
follows:
1. When an accused for whose attendance a person has stood surety fails to
appear, the full recognizance should be forfeited, unless it appears fair and
just that a lesser sum should be forfeited.
2. The burden of satisfying the court that the full sum should not be forfeited
rests on the surety and is a heavy one. It is him or her to lay before the
court the evidence of want of culpability and of means on which he/she
reliefs.
3. Where a surety is unrepresented the court should assist by explaining the
principles in ordinary languages giving him the opportunity to call
evidence and advance argument in relation to them.

83 Section 21(1) Trial on Indictments Act and section 83(1) Magistrates Courts Act.
84 Nsubuga v Uganda [1968] EA 10.
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Bail 209
In addition, connivance or aiding and abetting the accused’s disappearance is a

proper reason for ordering forfeiture of the whole amount.
Such a warrant of attachment may be executed at any place in Uganda, and
it shall authorize the attachment and sale of the moveable property belonging
to such person.86
If the penalty is not paid and cannot be recovered by such attachment and
sale, the person so bound is liable, by order of the court, to imprisonment for
87
a period not exceeding six months.
In the case of Uxbridge ex parte Heward Mills88Donaldson LJ noted that:
“It has been said by this court and by other courts time and again that entering
into surety ship or going for bail for someone to use the common phrase, is an
extremely serious matter to be lightly understood. That if the accused fails to
surrender to his bail it is only in exceptional cases that the court will be prepared
to modify the prima facie position which is that the amount for which the person
concerned has stood surety will be forfeited in full.”
Where a surety to a bond dies before the bond is forfeited, his or her estate
89
shall be discharged from all liability in respect of the bond.
The obvious requirement of the rule of natural justice is that a person
against whom an adverse order is passed is given an opportunity of being
heard. Therefore, before forfeiting the surety bond, the court should give
notice to surety to show cause as to why surety bond should not be forfeited.
The court should adopt the following procedure in case of forfeiture of
recognizance:
(a) inform the person against whom the breach is alleged exactly what is the
complaint against him;
(b) hear and record evidence on oath in the usual way in support of the
complaint, if it is not unequivocally admitted;
(c) give the person complained against an opportunity of giving evidence or
making a statement explaining his conduct and of calling witnesses;
(d) record the decision recorded by the court and the reasons for the same.90
86 Section 21(3) Trial on Indictments Act and section 83(3) magistrates Courts Act.
87 Section 21(4) ibid and section 83(4) Ibid.
88 [1983] 1 All ER 530.
89 Section 91 Trial on Indictments Act and 81 Magistrates Courts Act.
90 Page 210 A Handbook for Magistrates (Revised Edition) 2004.
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9.18 CANCELLATION OF BAIL

Where the accused has failed to comply with the conditions of his/her bail,
such bail may be cancelled in addition to forfeiting his/her recognizance.
The court may direct the bond to be discharged either wholly or so far as
it relates to the applicant and shall call upon that person to find other sufficient
91
sureties, and if he or she fails to do so may commit him or her to prison.
It is not a correct statement of law that court is at liberty to cancel bail at
any stage. Evidence in favour of cancellation of bail must be evidence on oath
and the court must decide judiciously that it is justified in the interest of
justice to cancel the accused’s bail. The court should not cancel bail on mere
92
speculative information from the prosecution.
A magistrate could lawfully cancel bail granted by another magistrate
93
within his/her area jurisdiction based on cogent reasons.
In the case of Uganda v Quarish Ggolooba94 the respondent was charged on
two counts, treason and misprision of treason. After being on remand for over
a year, court released him on bail supported by two sureties and other
condition attached. He was eventually arrested at the border traveling to
Kenya. The state made an application for the cancellation of the bail of the
accused on grounds that the accused was caught about to abscond outside
jurisdiction.
The accused argued that he was just traveling to Kenya and would return.
That moreover, it was not a condition for his bail that he should not travel
outside jurisdiction. Court held that, even where court has not imposed it as a
condition for bail, an accused should not travel outside jurisdiction without
leave of court. Accordingly the bail was cancelled.
It is easier to reject a bail application than to cancel a bail granted.
Cancellation of bail necessarily involves the review of a decision already made
and can by and large be permitted only if, by reason of supervening
circumstances it would be no longer conducive to a fair trial to allow the
accused to retain his/her freedom during the trial.
91 Section 18(3) Trial on Indictments Act and section 80(3) Magistrate Courts Act.
92 Blasio Sengendo and another v Uganda HCCA 27 of 1990 [1993] IV KALR 113.
93 Uganda v Luzinda [1986] HCB 34.
94 HCMA Number 89 of 1998 [1998] 11 KALR 27.
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However, bail granted illegally or improperly by a wrong and arbitrary

exercise of judicial discretion can be cancelled even if there is absence of
95
supervening circumstances.
If there is no material evidence to prove that the accused abused his/her
freedom the court may not cancel the bail. Bail can only be lawfully cancelled
upon satisfaction of the court that granted it that there has been a breach of
96
the condition set by the court or the law.
Bail can only be cancelled for a very grave reason. It should never be
cancelled unless there is a breach of one of the terms under which it was
granted. Mere suspicion that some person was tampering with the
evidence without formal proof in open court is not reason grave enough
97
for cancellation.
It should be noted that an order for bail granted by a magistrate can be
challenged under the revisional jurisdiction of the High Court.
The basic difference between an application for cancellation of bail and
revisional application is that while in the former, the basic postulate is that the
order was valid when it was passed, but on account of supervening
circumstances it needed to be varied or modified or cancelled, in the latter
case of revision application the grievance is that the order was bad from its
inception.
The court has the discretion to cancel the bail but the law does not give
guidance as to that principles have to be applied before the court can exercise
such power.
It is submitted that the cancellation of bail must be directly related to the
grounds and conditions for the grant of bail:
(a) Where the person on bail, during the period on bail, commits the very
same offence for which he is being tried, or has been convicted, and
thereby proves his/her utter unfitness to be on bail,
(b) If he/she hampers the investigations as will be the case, when on bail,
forcibly prevents the search of places under his/her control for the corpus
delicti or other incriminating things.
(c) If he/she tampers with the evidence, as by intimidating the prosecution
witnesses, interfering with the scene of crime in order to remove traces or
proofs of crime.
95 Uganda v Mugerwa and another [1975] HCB 218.

96 Uganda v Luzinda 1986 HCB 33.
97 Florence Nansikombi v Uganda 1977 HCB 107.
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(d) If he/she runs away to a foreign country or goes underground, or beyond

the control of his/her sureties.
(e) If he/she commits acts of violence, in revenge, against the police and the
prosecution witnesses and those who have booked him or are trying to
book him.
9.19 RENEWED BAIL APPLICATION

Renewed or successive application for bail will be heard de novo, only if there
has been a change in circumstances. It has been suggested that only
circumstances which have occurred since the last hearing or matters not
brought to the attention of the court on the previous occasion, may be taken
98
into account.
Where bail is not granted, the court shall:
(a) record the reasons why bail was not granted; and
(b) inform the applicant of his/her right to apply for bail to the High Court or
to a chief magistrate, as the circumstances may require.99
However, it is permissible for an applicant to renew his application to the
same lower court after a lapse of the time and after correcting the reason that
led to the rejection of the initial application.100
The court should therefore start at the point when the matter as last
considered and need only investigate the matter further if there are new
circumstances or evidence of old circumstances not previously before the
101
court.
It should be noted that the mere passage of time is not itself evidence of a
change in circumstances.
An applicant whose application for bail has been rejected by a court
presided over by a chief magistrate may not renew the same before the lower
court. Such applicant should renew his/her application upon improved surety
102
before the same or another magistrate with the same jurisdiction.
There is no doubt however; that in some cases, the renewed or successive
application for bail may be hopeless and the reason(s) for refusing bail in the
last application may have been overwhelming;
98 Page 39 A Handbook on Criminal Procedure in Kenya by PLO Lumumba.

99 Section 77(3) Magistrate Courts Act.
100 Uganda v Luzinda [1986] HCB 33.
101 R v Nottingham Justices ex-parte Davies [1980] 2 All ER 775.
102 Uganda v Luzinda supra.
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Bail 213
“... A robust court should be able to control its proceedings, to get fairly but
expeditiously through bail applications, to shorten the prolix advocate, to express
displeasure at hopeless applications, to curb abuse? But none the less consider the
matter on its merit.”103
9.20 APPLICATION AND PROCEDURE

All applications to High Court in criminal cases shall be in writing and where
104
evidence is necessary, be supported by affidavit.
Although applications should always be in writing, an oral application
would be permissible provided no evidence is necessary, there must be an
affidavit accompanying the application. The absence of the affidavit in support
105
of an application for bail is fatal and renders the application incompetent.
Applications to magistrates for bail may be orally or in writing, and if in
writing, shall be supported by affidavit.106
Notice of an application to the High Court shall be given to the Director
of Public Prosecutions; and notice of an application to a magistrate shall be
given to the police; in each case the notice shall be given in time to permit the
Director of Public Prosecutions or the police, as the case may be, being
present at the hearing of the application.
Such notice may be dispensed with in urgent cases by special leave of the
court for reasons to be recorded by it in writing.107
Unlike a trial, a decision about bail is not a contest between the parties
with the court acting neutrally. The court is under a duty to consider the
question of bail whether or not this is raised by both party and it may grant
bail against the representations of the prosecutor as much as it may refuse bail
in their absence. In pursuance of its duty in regard to bail a court may seek
views not only from the prosecutor, but also anyone else it believes can offer
assistance i.e. probation officer.
The practice of reserving a ruling and remanding the accused on a bail
application should be avoided. Bail should be granted or refused immediately
and reasons may be given later if necessary.
103 “Bail,” Renewed Application”. The New Law Journal (1980) Volume 131, 132-133.
104 Rule 2 Judicature (Criminal Procedure) (Application) Rules.
105 In the Matter of Bail application by Balaki Kirya [1984] HCB 11.
106 Rule 3 supra.
107 Rule 4 supra.
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9.21 GENERAL COMMENTS ON THE BAIL SYSTEM

The courts try to apply the law on bail according to the circumstances in each
case and make the decision to grant or to refuse bail in a responsible manner.
Courts claim competence to deal with such cases as they deem fit because
they carry the burden of conscience bearing in mind the conflicting claims of
the accused and those of the state.
Delay in the criminal process is a common feature despite the fact it is
unconstitutional. While one cannot turn a blind eye to the fact that crime rate
is on the increase, which occasion’s pressure of work, one still feels that the
main cause of delay lies with those who are entrusted with the administration
of justice. Therefore, before there can be a just and effective system of bail,
there must first exist an effective system for controlling and monitoring the
pre-trial decisions of courts.
The economic well-being of the accused is not given requisite attention
and hence more often than not the amount fixed is excessive and accused
persons are unable to raise the bail amount.
These people are kept behind bars not because they were found guilty, but
because they were too poor to afford bail and the courts have no time to try
them.
In this context Bhagwati J observed in relation to Indian bail system as
follows:
“One reason why our legal and judicial system continually denies justice to the
poor by keeping them for long years in pre-trial detention is our highly
unsatisfactory bail system. It suffers from property-oriented approach which seems
to proceed on the erroneous assumption that risk of monetary loss is the only
deterrent against fleeing from justice. The Code of Criminal Procedure, even
after its re-enactment, continues to adopt the same antiquated approach as the
earlier code enacted towards the end of the last century and where the accused is
to be released on his personal bond, it insists that the bond should contain a
monetary obligation requiring the accused to pay a sum of money in case he fails
to appear at the trial. Moreover, as if this were not sufficient deterrent to the
poor, the courts mechanically and as a matter of courts insist that the accused
should produce sureties who will stand bail for him and these sureties must again
establish their solvency to be able to answer the charge. This system of bail
operates very harshly against the poor and it is only the non-poor who are able to
take advantage of it by getting themselves on bail. The poor find it difficult to
furnish bail even without sureties because very often the amount of the bail fixed
by the courts is so unrealistically excessive that in a majority of cases the poor are
unable to satisfy the police or the magistrate about their solvency for the amount
of the bail and where the bail is with sureties as is usually the case, it becomes an
almost impossible task for the poor to find persons sufficiently solvent to stand as
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Bail 215
sureties. The result is that either they are fleeced by the police and revenue
officials or by touts and professional sureties and sometimes they have even to
incur debts for securing their release or, being unable to obtain release, they have
to remain in jail until such a time as the court is able to take-up their cases for
trial, leading to grave consequences.108
It is high time that our parliament realise that the risk of monetary loss is not
the only deterrent against fleeing from justice but there are also other factors
which act as equal deterrents against fleeing. Parliament would do well to
consider whether …
Considerations such as family ties, roots in the community, job security,
and membership of stable organizations etc. should be determinative factors in
granting of bail and accused should in appropriate cases be released on his
personal bond without monetary obligation. Of course, it may be necessary in
such a case to provide by an amendment of the penal law that if the accused
willfully fails to appear in compliance with the promise contained in his
personal bond, he shall be liable to penal action. But even under the law as it
stands today, the courts must abandon the antiquated concept under which
109
pre-trail release is ordered only against bail with sureties.
The courts should exercise extreme caution in granting bail to persons
previously convicted of serious crime or for habitual offenders.
Michael King110 proposes the ideal model for bail system which is to have
four main tenets:
(i) Consideration be given on the number of defendants who can safely be
released pre-trial. This is to be a comparative safety taking into account the
other factors relevant to bail decisions. If, from the totality of the case it is
evident that the accused person’s incarceration is less when weighed against
the probable consequences of his release on bail, then bail will not be
appropriate step to take. However, if it is shown that it is ‘safe’ to grant it,
his continued incarceration is without merit.
(ii) There ought to be a very efficient mode of communication between the
people who are to make bail decision (invariably the court and police
officers) and those who are in possession, of information relevant to bail
application and decision. This information could include that which
regards the accused’s financial standing, his employment and community
ties.
(iii) It must be a ‘just’ system. ‘Just’ should be taken to refer to equality and
consistency. For instance there should be no discrimination against
108 [1980] SCC (Cri) 23 at pages 26-27 (1980) 1 SCC 81.

109 ibid page 29.
110 ‘ Bail Reform’ Criminal Law Review (1974) at 451.
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individuals or groups of individuals for reasons wholly unconnected with

their suitability for bail. Further, there should be safeguards to protect
defendants in their applications for bail against prejudices or even
eccentricities of individual courts or individual members of the judiciary.
(iv) There ought to be adequate compensation for those persons who spend
their time in jail awaiting trial and are then acquitted by the court or who
have the charges against them dropped.
CHAPTER TEN
CHARGES AND INDICTMENTS
10.1 INTRODUCTION
When an accused person is brought before court, he/she must be told the
charges against him/her. It is a basic requirement of a fair trial in criminal cases
to give precise information to the accused as to the accusation against
him/her.
Every person who is charged with a criminal offence shall be informed
immediately, in a language that the person understands, of the nature of the
offence.1
A charge serves the purpose of notice or intimation to the accused, drawn
up according to specific language of law giving clear and unambiguous or
precise notice of the nature of accusation that the accused is called upon to
meet in the course of a trial.
A charge is necessary in every proceeding and a trial without it is bad in
law because an accused would be prejudiced in his or her defence if he/she
did not know what case he/she is facing. In a criminal trial the charge is the
foundation of the accusation and every care must be taken to see that it is not
only properly framed but evidence is only tendered with respect to matters
put in charge and not the other matters. A formal charge is of the essence of
criminal procedure and the failure of the court to draw up and sign a formal
charge was a defect which rendered the trial a nullity.2
The Constitution gives credence to the charge by requiring such
information which constitutes an offence is availed before trial. Except for
contempt of court no person shall be convicted of a criminal offence unless
the offence is defined and the penalty for it is prescribed by law.3
It is an essential feature of the criminal law that the accused person should
be able to tell from the charge or indictment the precise nature of the charge
1 Article 28(3)(b) Constitution.

2 Republic v Tambukiza [1958] EA 212.
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or charges against him/her so as to be in position to put forward his/her

4
defence and to direct his/her evidence to meet them.
10.2 DEFINITION/MEANING
A charge is a formal written accusation of an offence drawn up either by a
police officer or magistrate and signed by a magistrate to be used in a
magistrate’s court as a basis for a trial or preliminary proceeding.
An Indictment is a formal written accusation of an offence drawn up and
signed by the Director of Public Prosecutions. An indictment can also be
defined as a written accusation preferred before a court, signed by the Director
of Public prosecution and charging one or more persons with the commission
of one or more offences triable in the High Court.
Apart from the form and the court in which they are used the only
difference between a charge and indictment is one of form and not substance.
Although the responsibility of preferring the appropriate charge is upon the
prosecution, it is the duty of the court to ensure that the charge is correctly set
5
out and is perfect in all respects.
However, the Court of Appeal has held that the responsibility for the
correctness of a charge is on counsel for the prosecution.6
10.3 FORM AND CONTENT OF CHARGE OR INDICTMENT

Every charge/indictment shall contain, and shall be sufficient if it contains, a
statement of the specific offence or offences with which the accused person is
charged, together with such particulars as may be necessary for giving
reasonable information as to the nature of the offence charged.7
10.3.1 Statement of Offence

A count of a charge/indictment shall commence with a statement of the
offence charged, called the statement of offence.8
4 Menzour Ahmed v Republic [1957] EA 386.

5 Uganda v Hadi Jamal [1964] EA 294, Naama Coffee Factory Ltd v Uganda [1997] HCB 16.
6 Chimilo s/o Bankunda v R (1951) 18 EACA 160.
7 Section 22 Trial on Indictment Act and S. 85 of Magistrate’s Courts Act. Henry Kayondo v Uganda
[1992-1993] HCB 41.
8 Section 25(a) ibid or section 88(a) ibid.
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Charges and Indictments 219
In cases where there are more than one case of each and every accused
individually for finding out as to which of the offence was prima facie made out
against each and all of the accused.
The statement of offence shall describe the offence shortly in ordinary
language, avoiding as far as possible the use of technical terms and without
necessarily stating all the essential elements of the offence, and it shall contain
9
a reference to a section of the enactment creating the offence.
If the law which creates the offence gives it any specific name, the offence
may be described in the charge by that name only.
If the law which creates the offence does not give it any specific name, so
much of the definition of the offence must be stated as to give the accused
notice of the matter with which he/she is charged.
The accused was charged with “Intermeddling with the property” of the
deceased contrary to section 12(i), (2) of the Penal Code Act and yet no
offence is created under this section. S.12 of the Penal Code Act concerns the
defence of insanity. This was a fundamental error of law in that the accused
was charged with non-existing offence and was not curable and was a material
10
irregularity.
The appellant was charged with failure to pay cess tax contrary to
regulations 13(i) and 18(1), (2)(a) and (b) of the fifth schedule to the Local
Government Act. The court found that the regulations cited did not create
the offence of failure to pay the cess tax nor did it provide for a punishment.
The charge sheet was therefore defective for being unlawful and
11
unconstitutional.
The accused was convicted of obtaining goods by false pretence while the
particulars of offence alleged the accused obtained money. Court held that the
statement of offence was incorrect as no goods were alleged to have been
12
obtained at all.
It is the primary duty of a magistrate to satisfy himself that the section of
the Penal Code which an accused is charged is correct before assuming
jurisdiction to try the case.13
9 Section 25(b) ibid or section 88(b) ibid.

10 Zakary Kataryeba and others v Uganda [1996] HCB 16.
11 Naama Coffee Factory Ltd v Uganda H.C.Cri.App. No. 85/97 [1998] IV KALR 119- [1997] HCB
16.
12 Uganda v James Bitambo [1983] HCB 17. See also Blasio Sengendo and another v Uganda HCCA
Number 27 of 1990 [1994] IV KALR 133 charge sheet referring to wrong subsection 257(c)
instead of 257(b) Uganda v Opidi [1965] EA 614.
13 Honesio Avone v Uganda Criminal Appeal Number 88 of 1967 [1969] EA 129.
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However, a charge is not a nullity or bad merely because the rules were
cited instead of the Act but would simply be defective or imperfect because a
charge would be disclosing no offence known to the law. For example it is
laid under a repealed statute, but as long as the particulars leave no doubt in
the accused as to the nature of the offence he is charged with the charge
would not be bad in law but defective.
The citation of the rules, instead of the sections of the Act was neither an
error material to the merit of the case and was a curable irregularity under the
Act.14
It is imperative to note that where there is procedural error, in citation of
wrong sections or subsections of the law, it may be cured by the particulars of
the offence which clearly indicate what sort of crime the accused was being
charged with and no miscarriage of justice was occasioned as a result of such a
15
mistake. The citation of a wrong paragraph was a mere technical error not
material to the merits of the case and did not involve a miscarriage of justice,
since all the accused knew what they were charged with and none was
embarrassed or prejudiced. The error did not make the charge bad but merely
16
defective or imperfect.
It must be noted that some sections create the offence, define it and
provide the penalty. In such a case, the statement of the offence will merely
recite a contravention section of the Penal Law. In other sections there is a
definition of the offence in one section and the penalty section somewhere
else. In such cases it is better to specify not the definition section but the
17
punishment section in the statement of offence. Where an accused pleads
guilty to a non existing offence, such accused is entitled to appeal where he is
convicted by the trial court.18 Where a person is charged before a non-existent
law or a statute not yet in force, the proceedings are a nullity.19
10.3.2 Particulars of Offence

After the statement of the offence, particulars of that offence shall be set out in
ordinary language, in which the use of technical terms shall not be necessary;
14 Uganda v B. Mpaya [1975] HCB 245.

15 Uganda v Emmanuel Yang [1984] HCB 25.
16 Uganda v Anyelo Kinya and others [1975] HCB 328.
17 Cosma s/o Nyadago v R (1955) 22 EACA 450.
18 Anthony Olutunde Olowe v Uganda H.C.Cr.App 93/97 [1997] IV KALR 7 where a section of an
enactment under which a charge is laid has been repealed, the charge is bad although in essence the
offence charged has been preserved by a later statute.
19 Republic v Robert [1969] EA 622.
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but where any written law limits the particulars of an offence which are
required to be given in an indictment or charge, nothing in this paragraph
20
shall require any more particulars to be given than those so required.
The particulars of the offence should contain the essential ingredients of
the offence. In cases involving complicated conspiracies to defraud, the
particulars of offence should contain considerable detail.
The charge is defective once it does not state the particulars of the
21
offence . However, where the accused appears to understand the substance of
the charge, the defect would not be fatal.22
In the case of Anthony Olotunde Olowe v Uganda23 The accused/appellant
was charged under section 17(2) of the Immigration Act. The basic
ingredients of the offence is that an accused must have illegally returned to
Uganda, when already ordered to leave and having left Uganda, under a
deportation order signed by the Minister of Internal Affairs under the Act or
other written law he must have returned without permission of the Minister.
The charge sheet only alleged that the appellant had illegally returned to
Uganda when he was previously deported. The charge sheet thus did not
sufficiently provide the appellant with reasonable information as to the nature
of the offence with which he had been charged the appellant was entitled to
know under which law he had been deported and the particulars of offence to
enable him sufficiently answer the charge.24
Where a section lists a number of situations like it does in section 17(2) of
the Immigration Act, and the accused commits an offence under anyone of
them, the charge and particulars of offence should be clear about which
particular situation applies to the accused. For lack of this information, the
charge sheet was defective and any proceedings taken thereon were a nullity
and would be quashed.25
In the charge of contempt of court through speech, the particulars of the
26
charge must provide and state the words uttered by the accused.
20 Section 25(c) Trial on Indictment Act and section 88(c) and (d) Magistrates Courts Act.
21 Uganda v Bambeijo [1981] HCB 4 Bhatt v R [1960] EA 654.
22 Uganda v Pattni Manish HCCA Number 1 of 1996 [1996] V KALR 96.
23 HCCA 93/97 [1997] IV KALR 7 or [1996] HCB 26 Wandera Reuben Kubanisa v R [1965] EA 572,
Yozefu and another v R [1969] EA 236.
24 Ibid.
25 ibid [1996] HCB 26 Ngige s/o Gatonye v R [1963] EA 663.
26 Criminal Revision Number 47 of 1980 [1981] HCB 6 (this case was cited in HCB without
parties).
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10.3.3 Description of Property

The description of property mentioned in the charge should be in ordinary
language, and such as to indicate with reasonable clearness the property
referred to except when required for the purposes of describing an offence
depending on any special ownership of property or special value of property,
to name the person to whom the property belongs or the value of the
27
property.
Where an accused would unlikely know the exact nature of the charged
alleged without particulars asserting the ownership of the property, such
particulars should be stated in the indictment/charge.
Where property is vested in more than one person, and owners of the
property are referred to in a charge, it shall be sufficient to describe the
28
property as owned by one of those persons by name with others.
Any property belonging to or provided for the use of any public
establishment, service or department may be described as the property of the
Government.29
However, in cases of stolen property, it is not fatal to omit the name of the
30
owner of property. This was stated in the case of Zaverchand Hemraj Shah v R
that a conviction based, on a charge that did not name the owner of the
property cannot be quashed on that premises so long as the property is proved
to have been stolen. A substantial misdescription of property, where a
description is essential, will unless amended render the charge bad.
10.3.4 Description of Accused Person

The description or designation in an indictment or charge of the accused
person or of any person to whom reference is made in indictment/charge,
shall be such as is reasonably sufficient to identify him or her, without
necessarily stating his or her correct name or his or her abode, style, degree of
occupation, or for any other reason, it is impracticable to give such a
description or designation. The description or designation shall be given as is
reasonably practicable in the circumstances, or the person may describe as “a
person unknown”.31
27 Section 25(g) Trial on Indictment Act and section 88(h) Magistrates Courts Act.
28 Section 25(h) Trial on Indictment Act and section 88(i) Magistrates Courts Act.
29 Section 25(i) Trial on Indictment Act and section 88(j) Magistrates Courts Act.
30 [1960] EA 562.
31 Section 25(l) Trial on Indictment Act and section 88(m) Magistrates Courts Act.
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Where more than one person is accused, all their names, if known, should
be included in the particulars of the offence.
It is not proper to start the particulars of offence “Charles Okumu and 3
others” even if their names have been given at the top of the charge sheet. If a
name is not known, the particulars of offence might read” Charles Okumu,
32
together with a person unknown”.
33
In the case of Major John Kazoora v Uganda Court noted that the law
requires that the charge sheet specifically names or describes the co-charged.
However by longtime practice it has become acceptable to mention in a
charge that somebody unnamed and or undescribed is not joined. Therefore
the non disclosure did not occasion injustice to the appellant in as much as the
charge sheet is not really evidence.
Where the second accused still at large a the time of the trial and has not
been committed to the High Court for trial, he/she cannot be tried by the
High Court in absentia. The inclusion of his name on the charge/indictment
is superfluous. The inclusion does not prejudice the accused in anyway.34
10.3.5 Particulars as to Place, Date and Time

It shall be sufficient to describe any place, time, matter, act or omission
whatsoever to which it is necessary to refer in the indictment/charge in
ordinary language in such a manner as to indicate with reasonable clearness the
35
place, time, thing, matter, act or omission referred to:
The time of the offence need not be stated unless the time is relevant to the
commission of the offence.
In the case of Uganda v Akai s/o Eloloyi and others36 the court found the charge
sheet defective,. because it did not state the date on which the theft was
committed as it ought to have done with reasonable clearness or if the date
was unknown, this fact should have been mentioned plus the earliest and latest
dates when offences would have been committed. The accused were
prejudiced because an accused is entitled to know the date on which it was
alleged that his conduct contravened the law, in order to defend himself. This
defect was not even cured by the evidence at the trial and therefore, the
conviction based on it was bad in law.
32 Yonasani Egalu and others v R (1951) 18 EACA 311.

33 Criminal Appeal Number 51 of 1991 [1994] 1 KALR 143.
34 Uganda v Kassim Musa Obura and Towill [1981] HCB 9.
35 Section 25(n) Trial on Indictment Act and section 88(o) Magistrates Courts Act.
36 [1979] HCB 8.
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A charge of murder is not defective for showing the wrong date of the
commission of that offence while it showed the date of the wrongful act from
which death resulted rather than the date when death occurred. The time to
be stated in a charge on homicide should be that date on which the wrongful
act was committed and not the date on which the death occurred.37
The correctness of an indictment is the sole responsibility of the
prosecution normally the place of the commission of the alleged offence
should always be stated if it is known. Failure to state the place of the alleged
offence may place the accused person at a disadvantage.38
Time is of the essence of the offence under the following circumstances:
(a) when an act is criminal only if done within a certain time of some other
act or event;
(b) when it is an essential ingredient of a particular offence that certain
consequences should follow a particular act;
(c) when it is an essential ingredient of a particular offence that the act alleged
was committed between certain hours of the day or night;
(d) when the prosecution for a particular offence must be commenced within
a certain time of the commission of the criminal act alleged i.e. treason39
sedition.40
10.3.6 Age of Accused or Victim

The age of the accused is normally irrelevant and need not be stated in the
particulars of the offence except where it is an essential ingredient of the
offence.
However, the age of the accused should be stated in his/her particulars, if
known.
The charge sheet to be properly drafted must show all the particulars of the
41
accused such as ages, occupation and address.
The minimum of age of criminal responsibility shall be twelve years.42
37 Uganda v John Nsubuga [1975] HCB 131.

38 Uganda v Paulo Muwanga [1988-90] HCB 72.
39 Section 28 Penal Code Act- sets time within which to commence prosecution for treason (section
23(i)(b) 24, 25, or 27 Penal Code) within 5 years after the commission of the offence.
40 Section 43 Penal Code provides- No prosecution for sedition unless within six months after the
offence is committed.
41 Uganda v William Ibwokital [1980] HCB 3.
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In case of certain offences against minors, the age is very important. Such
as in case of defilement of person under 18 years.
Any person, who performs a sexual act with another person who is below
the age of eighteen years, commits a felony known as defilement and is on
conviction.43 Similarly, in cases of child to child sex where both or either
44
accused and victim are children under the age of 12 years.
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 in lieu of
the sentence of death the court shall order that person to be detained in safe
custody pending an order made by the Minister.45
10.3.7 Previous Convictions

Where a previous conviction of an offence is averred in an indictment/charge,
it shall be averred at the end of the indictment or charge by means of a
statement that the accused has been previously convicted of that offence at a
46
certain time and place without stating the particulars of the offence.
In some cases, a person is statutory liable to enhanced punishment in the
event of the subsequent convictions.
If the offender, before committing theft, had been convicted of a theft he
or she is liable to imprisonment for seven years.47
The purpose of this provision on previous conviction is to inform the
accused adequately about the allegations regarding previous convictions which
would expose him/her to enhanced punishment if found guilty of the offence
charged. The accused would by knowing of this contingency get an
opportunity to give his/her defence, if any, against these allegations.
10.3.8 Mental Element

It shall not be necessary in stating any intent to defraud, deceive or injure, to
state an intent to defraud, deceive or injure any particular person, where the
42 Section 88 Children Act. This is a condition of criminal liability common to all offences. A child
under 12 years may not be convicted of an offence.
43 Section 129(1), (2), (3), (5) section 144 Penal Code (Amendment) Act 8 of 2007.
44 Section 129A(1), (2) Ibid see also sections 147, 156, 157, 159, Penal Code Act.
45 Section 105(1) Trial on Indictment Act.
46 Section 25(p) Trial on indictment Act and section 88(q) Magistrates Courts Act.
47 Section 273 Penal Code Act see also Habitual Criminals (Preventive Detention) Act Chapter 118.
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enactment creating the offence does not make an intent to defraud, deceive or
48
injure a particular person as an essential ingredient of the offence. It is
unnecessary to include in the particulars the expression with intent to
defraud.49
However, an intent to destroy or damage, as the case may be, another
person’s property, or recklessness as to whether such property would be
destroyed or damages as the case may be, must be alleged.
Where in an indictment for conspiracy to defraud it was held that
particulars of offence alleged that the accused conspired together to cheat and
defraud such persons as might be induced to part with money to certain
named companies ‘by false representations and other false and fraudulent
50
devices’.
10.4 SIGNING OF INDICTMENT/CHARGE

All indictments shall be in the name of and subject to section 135, signed by
the Director of Public Prosecutions.51
The Deputy Director of Public Prosecutions, a State Attorney or State
Prosecutor may exercise any of the powers vested in the Director of Public
Prosecutions by this Act, except the power to enter a nolle prosequi.52
The charge sheet should be signed by the police officer who brings the
charge and the magistrate should not accept and proceed with the charge until
53
it is signed.
A charge sheet submitted by the police is neither proper nor complete, if it
is unsigned by a police officer.54 Signature by the proper officer of the court is
mandatory, rather than directory requirement.55
The normal practice is for the signature to be placed immediately after the
last count and to be dated; any departure from this practice is to be strongly
discouraged but does not of itself invalidate the indictment.
48 Section 25(o) Trial on indictment Act and section 88(p) Magistrates Courts Act.
49 Opiyo v Republic [1970] EA 319.
50 R v Addis [1965] 2 All ER 794.
51 Section 26 Trial on indictment Act.
52 Section 135 Trial on indictment Act.
53 Uganda v S. Byaruhanga [1975] HCB 258.
54 Uganda v Ocilaje s/o Eragu [1977] HCB 9.
55 R v Morais [1988] 2 All ER 161.
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“The High Court observed that:- The charge sheet was clearly defective
and deficient and I see it was drawn up and signed by a mere detective
corporal which probably explains its defects. Such a low ranking police officer
could not, in my view, be capable of drawing up a proper charge sheet and
should not be allowed to do so, especially as he has most probably never been
trained to do so.”56
10.5 JOINDER OF OFFENCES/COUNTS

Any offences, whether felonies or misdemeanours, may be charged together in
the same indictment or charge if the offences charged are founded on the
same facts or form or are part of a series of offences of the same or a similar
57
character. In order to be founded on the same facts’ charges must have a
common factual origin; it is not necessary, however that the facts should be
identical in substance or contemporaneous. This section of the law is intended
to avoid multiplicity of the proceedings.
Whether a transaction can be regarded as the same would necessarily
depend upon the particular facts of each case.
However, same transactions are generally thought that where there is
proximity of time or place or unit of purpose and design or continuity of
action in respect a series of acts, it may be possible to infer that they from part
of the same transaction. It is however, not necessary that every one of these
elements should coexist for a transaction to be regarded as the same.
Accordingly, charges which may properly be joined in one indictment or
charge ought in general to be so joined.
But if several acts committed by a person show a unity of purpose or
design that would be a strong circumstance to indicate that these acts form
part of the same transaction. The connection between a series of acts seems to
be an essential ingredient for those acts to constitute the same transaction.
Therefore, the prosecution should join in on indictment/charge all the
charges that he/she wishes to prefer in respect of one incident.
Where several offences are committed in the course of the same
transaction, they may be tried jointly and it is immaterial whether the offences
are of the same land or not, or whether their number exceeds three or not. In
58
the case Rex v Dalip Singh The appellant and another had been charged with
56 Rwabitontoli s/o Bidabali and Yowasi Kinyonyi v Uganda [1979] HCB 2.

57 Section 23(i) Trial on Indictment Act and section 86 (1) Magistrates Courts Act, Yorekamu Oketcho
and Isaka Okumu v Uganda [1977] HCB 270, Cosma s/o Nyadago v R (1955) 22 EACA 450.
58 (1943) 10 EACA 121 Nathan v R [1965] EA 777.
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the theft of property belonging to the then Kenya and Uganda Railways
although they were eventually convicted of having conveyed property
reasonably suspected of having been stolen. In a second count the appellant
alone was charged and convicted of giving a bribe to a police officer in order
to procure his release from arrest and prosecution for the theft. There was
evidence that the bribe had been offered very shortly after the arrest of the
two men. On appeal to the Court of Appeal for Eastern Africa, it was argued
on his behalf that there had been an improper joinder of charges as the stealing
and the bribery were not “offences of the same or similar character” nor were
they “founded on the same facts”. It was held that although the two offences
were different in character they were founded on the same facts” for evidence
showed that the bribe was offered within a very short time after the appellant
and Sikinda had been arrested with the wood and sufuria in their possession,
and while they were still on the way to the police station”
The Court of Appeal observed that if a person at a substantial interval of
time after his arrest offers a bribe in order to secure his release, a charge of
giving bribe would have to be made the subject of a separate trial. It means
that the test used in determining whether the two offences were founded on
the same facts, was the proximity in time between the commissions of the two
offences.
Therefore, offences cannot be joined in the same indictment unless they
arise out of the same facts and are part of a system of conduct.59
It is important to note that there must be words in one count which
connect it to the other count in order to bring about the nexus between the
60
counts.
Misjoinder of counts is not fatal, where no injustice has resulted from the
improper joinder and did not occasion a miscarriage of justice to the accused61.
In deciding whether offences are similar in character, both law and the
62
facts must be taken into account. Joinder of two or more murders in one
indictment is undesirable. However, where there were four counts of murder
founded on the same facts and formed a series of offences of a similar
character, the court found that a single trial did not occasion any failure of
justice.63
59 Uganda v Paulo Muwanga [1988-90] HCB 72.

60 Joseph s/o Odoro v Regina (1954) 21 EACA 311.
61 Mutia (Kamwana) v R [1958] EA 471 see also R v Muir [1938] 2 All ER 516, Kityo v Uganda [1967]
EA 23.
62 Ludlow v Metropolitan Police Comr [1971] AC 29 at 39.
63 Mfaume v Republic [1973] EA 563.
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64
In the case of Alikaeli v R, there were five counts, two for manslaughter,
one for assaulting a police officer, another for driving a motor vehicle while
drunk and the last for driving a defective motor vehicle – all arising out of a
motor accident. It was held that no other count should be joined with a
charge of murder or manslaughter and that the basis of this rule is that a trial
on charge of that nature was so serious and complicated that the defence
should be embarrassed by the necessity of having to deal at the same time with
other matters. The court said that although this ought to be regarded as a rule
of law, the failure to comply with it would not necessarily result in quashing
the conviction unless the accused was prejudiced at his trial.
If, however, the additional charge is based on precisely the same facts as the
more serious offence for example, where murder resulted from arson, the
65
court may exercise its discretion and allow the charges to be tried together.
Two charges of murder may properly be joined in one indictment and
tried together where they both exhibit such similar and unusual features that
the interests of justice will best be served by a joint trial.66
The earlier rule of practice that counts for other offences should not be
included in an indictment for murder or manslaughter no longer applies, it is
for the prosecution to frame the indictment as it thinks appropriate while the
court has a complete discretion to direct that the accused be tried separately
on any count or counts.
It should be noted that under no circumstances should offences committed
by two different individuals on different occasions at different places be joined
in the same charge merely because the complainant is the same. Such
67
misjoinder would no doubt, render the trial a nullity.
Where more than one offence is charged in an indictment/charge, a
description of each offence so charged shall set out in a separate paragraph of
68
the indictment or charge called a count.
Inclusion of two or more offences in one count constitutes duplicity,
which is a ground for quashing the charge.
64 (1954) 21 EACA 371 it was a rule laid down in R v Jones [1918] 1 KB 416 and R v Large [1939] 1
All ER 753.
65 Yowana Sebuzukira v R [1965] EA 684.
66 R v Kray [1970] 1 QB 125.
67 Yakobo Uma and another v R [1963] EA 542.
68 Section 23 (2) Trial on Indictment Act and 86(2) Magistrates Courts Act Mwaitige v R [1961] EA
470
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69
In the case of Uganda v Katabazi the accused was charged with burglary in
count 1 and theft in count 2. He admitted the charge on both counts and was
convicted by a Grade II Magistrate who sentenced him to 15 months on the
first count and 9 months on the 2nd count and to run concurrently.
The court noted that the charge was defective because the two offences
though separate, should have been charged in one count, in keeping with the
common practice of courts.
10.6 SEPARATE TRIAL OF COUNTS

Where, before trial, or at any stage of a trial, the court is of opinion that a
person accused may be embarrassed in his/her defence by reason of being
charged with more than one offence in the same charge, or that for any other
reason it is desirable to direct that the person should be tried separately for
anyone or more offences charged in a charge, the court may order a separate
trial of any count or counts of the charge.70
The court will have regard to whether the overt acts relied on in support
of the offences charged in various counts are in substance the same in relation
to each offence.
In the case of Uganda v Milenge71 Court noted that it is undesirable to join a
count of conspiracy with other counts charging specific offences if the specific
offences are based on the same evidence as the conspiracy charge. It must be
emphasized that such joinder is not illegal and would not necessarily lead to
ordering a separate trial unless the court is satisfied that the accused would be
embarrassed.
There must be some special feature of the case which would render a joint
trial of several counts prejudicial or embarrassing to the accused, requiring
separate trials in the interests of justice. For example, it might be that offences
charged are too numerous or complicated or difficult to disentangle, or that
one of the counts is of a scandalous nature.
The mere fact that evidence is admissible on one count and inadmissible
on another is not by itself a ground for separate trials unless the prejudice
created by that evidence would be improper and too great to be overcome by
the accused.
69 [1978] HCB 67.

71 [1970] EA 269 Musinga and 7 others v R (1951) 18 EACA 211.
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In general, if offences are properly joined, the accused has no right to have
the indictment severed merely because he/she may wish to give evidence in
respect of one count but not another.
A court has got the discretion to order a separate trial even though the case
is covered under the provisions of the law. A joint trial under the large
number of charges is very much to be deprecated even though it is not
prohibited by law. A separate trial is always desirable whenever there is a risk
of prejudice to the accused in a joint trial.
10.7 JOINDER OF PERSONS

Where two or more persons join in the commission of an offence, all or any
number, of them may be charged/indicated for that offence jointly in one
charge sheet or indictment. As a general rule it is not proper for court to try
several accused together on charges of committing individual offences that
have nothing to do with each other. Where, however, the matters which
constitute the individual offences of the several alleged offenders are on the
evidence so related, whether in time or by other facts, that the interests of
justice are best served by their being tried together, they may be tried
together.
This rule is not limited to cases where there is evidence that several alleged
offenders acted in concert.
Charge sheets or indictments should be kept as short as possible; and no
more accused should be tried together on one charge sheet/indictment than is
necessary for the presentation of the case against the principal accused.
Necessity not convenience is the guiding factor.
The following persons may be joined in one indictment and may be tried
together:72
(a) Persons accused of the same offence committed in the course of the same
transaction;
(b) Persons accused of an offence and persons accused of abetment or of an
attempt to commit that offence
(c) Persons accused of more offences than one of the same kind. (that is to say,
offences punishable with the same amount of punishment under the same
section of the Penal Code Act or of any other written law). Committed by
them jointly within a period of 12 months.
72 Section 24 trial on Indictment Act and section 87 Magistrates Courts Act.

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(d) Persons accused of different offences committed in the course of the same
transaction.
(e) Persons accused of any offence under Chapter XXV to XXIX of the Penal
Code Act and persons accused of receiving or retaining stolen property,
possession of which is alleged to have been transferred by any such offence
committed by the first- names persons, or of abetment of or attempting to
commit either of the last-named offences.
(f) Persons accused of any offence relating to counterfeit coin under Chapter
XXXV of the Penal Code Act, and persons accused of any other offence
under that Chapter relating to the same coin or of abetment of, or
attempting to commit, any such offence.
This section permits a joint trial of several persons in specified cases because of
some basic connection between the various offences committed by them.
The various clauses of the section need not be treated as mutually
exclusive, and it is permissible to combine the provisions, of two or more
clauses. The joint trial of several persons partly by applying one clause and
partly by another clause is authorized.
73
In the case of Uganda v Akai s/o Eloloyi Court noted that the trial
magistrate failed to evaluate and assess the evidence before him and to
consider the case against each separately, as it was his duty to do, because
criminal liability is basically individual and not collective or joint and several
except in certain cases where common intention is proved against the accused.
A joinder of offenders is a practice of convenience for the trial of accused
persons who participated in the commission of one offence. It is not intended
that all the accused tried jointly must be convicted or acquitted. It is still the
duty of the prosecution to prove their case against each of the accused to the
required standard.
Where two or more persons are jointly charged with an offence alleged to
have been committed by each on the same and not separate occasions, and
when they were together, it is not essential for the prosecution to establish
that each was acting in concert with the other, it is open to court to convict
each of having committed independently the offence which is the subject
matter of the joint charge.74
Therefore, where one of two persons jointly charged with an offence is
acquitted, the other may be convicted of that offence as if he had been
75
charged in a separate count with a separate offence.
73 [1979] HCB 8.
74 Director of Public Prosecutions v Merriman [1973] AC 584.
75 R v Rowlands [1972] 1 QB 424.
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There is no rule of law which deprives a court of jurisdiction to try two

accused persons together on the same charge sheet or indictment containing
76
only two separate counts, each being a count against one accused alone.
In the case of Nathan v Republic,77 the court has set out the test to be
applied in order to determine whether different offences have been committed
in the course of the same transactions being whether it was inherent in the
acts constituting the offence, that from the very beginning of the earliest act
the other acts were either in contemplation or necessarily arose- there from,
or whether from the very nature of the transaction in view, they formed
component parts of the one whole transaction.
Therefore the expression same transaction as used in the provisions may be
understood to mean; a transaction consisting of an isolated act or a series acts;
the series of acts which constitute a transaction must of necessity be connected
with one another and if some of them stand out independently they would
not form part of the same transaction but would constitute a different
transaction or transactions.
78
In case of Uganda v Nikolla and another court held that a man who
commits adultery and a woman who commits adultery with him contrary to
section 150A(2) Penal Code, cannot be joined in the same count, if they are
jointly charged in the same charge sheet there must be separate counts for
each offender.
It is important to note that only if the offenders are joined in one charge
can they be tried together at the same trial. It is not possible to try two or
79
more persons together if they are charged separately. Therefore, separate
cases cannot be consolidated and heard together however convenient the
course might seem, even if only one accused person involved.
In the case of Yakobo Uma and another v R,80 two appellants were charged
and tried jointly. The offence against each was “doing an act intended to cause
nd
grievous harm”. The first appellant alone was charged on the 2 count. The
particulars of each alleged offence showed that the incident said to involve the
first appellant had occurred on a different date at a different place and with a
different weapon from the one said to involve the second appellant. The
complainant was the same in each count. They appealed against convictions.
Sir Udo Udoma CJ ruled that the charge as laid was bad in law for misjoinder.
76 R v Assim [1966] 2 QB 249.

77 [1965] EA 777 Said Nsubuga v R (1941) 8 EACA 81.
78 [1966] EA 345.
79 R v Christofa Male and another (1934)’ EACA 151.
80 [1963] EA 542.
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In sum, therefore, the law relating to joinder of persons is that those who
join in the commission of an offence may jointly be charged and tried or each
of them may be indicted separately. When persons are charged jointly with
the same offence, convictions cannot stand against both of them on evidence
that an offence of that nature was committed by each of them independently.81
It bears emphasis however, that a misjoinder of persons is not fatal since it
is a mere defect or irregularity and cannot be treated as having the effect of
making the trial a nullity.
The significance of this is that while an irregularity may not necessarily
result in a conviction being quashed on appeal, what is a nullity cannot be
rectified and must inevitably lead to the quashing of the conviction.
10.8 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. This does not mean that the prosecution can, at their whim,
drag a person to court when they are not sure whether the evidence in their
possession discloses a criminal offence.
This normally arises where broad facts concerning an offence are, or can be
established by evidence but not all the incidents or circumstances are known.
In such cases it is permissible to charge the accused with having committed all
or any of different but connected offences. This is sometimes done by way of
a single charge containing charges which are alternative to each other.
The condition on which alternative charges come into operation must be
complied with and there must be a single act or series of acts of a certain
nature, and that nature must raise doubt about several offences the facts of
which can be proved will constitute. But that doubt may include a doubt as to
what exact facts within the ambit of the series of acts postulated can be
proved.
At the time the charge is framed, the prosecution can never know exactly
what facts they will succeed in establishing. The rule on alternative charge
appears to provide that an offender can be alternatively or cumulatively
charged when it is doubtful whether the facts proved are capable of holding
the offender guilty either of the principal offence or abetment of the offence
when he/she is charged with the commission of principal offence. Where an
accused person is charged with an offence, he might be convicted of a minor
offence although not charged with it, if that minor offence was not of a
81 R v Scaramaga [1963] 2 All ER 582.

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cognate character, that is to say of the same genus species as the major
82
offence.
When a person is charged with an offence and facts are proved which
reduce it to a minor cognate offence, he or she may be convicted of the
minor offence although he or she was not charged with it.83 There are several
sections under the Magistrates Courts Act which empower court to convict a
person of a different offence although was originally charged with a different
84
offence.
An accused person cannot be convicted on both the main count and its
alternative; court 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.85
It must be emphasized that except in very exceptional circumstances it is
undesirable to lay charges in the alternative in which the burden of proof
differs. The reason being that the accused might be prejudiced in preparing
his/her defence to meet them. Where they are so laid, the court should direct
that they be tried separately. In the case of Mohamed v Republic86, the appellant
had been charged with stock theft and in the alternative with possession of
stock which may be reasonably suspected of having been stolen. He was
convicted on the alternative charge. Court was of the view that since the
alternative charge required the accused to prove to the satisfaction of the court
that he had come by the stock lawfully, it had the effect of forcing the accused
to give evidence which became available against him on the primary charge of
theft. The court said that this was embarrassing to the accused when defending
himself.
87
In the case of Harry Isiko v Uganda court held that section 151 of
Magistrates Courts Act empowers court hearing a charge of obtaining money
by false pretence to convict on the alternative charge of theft even though the
accused was not so formally charged. But this can only be so where the facts
of the case support the theft. In the instant case, the particulars of the offence
of obtaining by false pretence did not reflect the possible offence of
conversion. The situation could have been saved by having theft as an
alternative charge to appear formally as such charge or for the court to bring it
to the attention of the accused that he may be convicted of theft and therefore
82 Mohamed Kayiwa v Uganda [1975] HCB 67.

84 Sections 146,147,148,149,150,151,152,153,154,155 Magistrates Courts Act.
85 R v Nassa Ginners (1955) 22 EACA 434, Mbithi s/o Kisoi and others v R (1955) 22 EACA 84
Mwandalafu v R [1966] EA 459.
86 [1971] EA 42.
87 [1993] 111 KALR 71 Uganda v Yang [1984] HCB 25.
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to have the defence prepared to this effect. Therefore the court misdirected
itself to convict the accused on an issue where there was no proper trial.
The offence of theft is minor and cognate to that of embezzlement as both
belong to the same family. Theft is minor in the sense that the gravity of
punishment therefore prescribed is minor to that of embezzlement and the
two offences are cognate because both offences involve fraudulent taking away
88
of someone’s property.
However, it should be noted that an alternative charge need not be minor
and cognate.89
The general principle to be applied is that an accused person should not be
convicted of an offence with which he/she was not charged unless he/she had
a fair opportunity of making his/her defence to the alternative offence, even if
90
the later offence is minor and cognate.
10.9 DUPLICITY OF CHARGES

The material allegations in a charge or indictment must be positive and direct
and free from duplicity and repugnancy. Therefore a count in a charge
sheet/indictment may not charge an accused with one or other of two
offences, and must not be capable of being construed as applying to two
different offences without stating which one is charged.
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. Two or more
offences may be charged in one charge provided they are contained in separate
counts.
Where an enactment creates a duty to do either of two things, there must,
to constitute an offence, be a failure to do both acts91. It is a question of the
construction of each particular enactment whether a single provision creates
mutually exclusive offences.
Whether an enactment creates one or more offences is a matter of statutory
interpretation.
88 Richard Ogola v Uganda [1992] 111 KALR 64.

89 Henry Kayondo v Uganda SCCA Number 35/92 [1995] 111 KALR 118.
90 Ndecho v R (1951) 18 EACA 171, Dracaku s/o Afia v R [1963] 363, Funo v Uganda [1967] EA 632,
Ali Muhamed Hassani Mpanda v Republic [1967] EA 294.
91 Field v Hopkinson [1944] 1 KB 42.
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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.
Duplicity may also occur where the charges are framed in the alternative.
There will be only one offence if it was clearly the intention of parliament
to create one offence embracing the commission of numerous offences, which
92
themselves, if the details were known, could be individual charged.
The question whether a provision creates one or more offence was
93
answered in Uganda v Amisi where court while interpreting section 116(1) of
the Traffic and Road Safety Act 1970 which provided:
“Every person who causes bodily injury to or the death of any person by the
driving of a motor vehicle, trailer or engineering plant recklessly or at a speed or
in a manner which, having regard to all the circumstances of the case, is
dangerous to the public or to any person commits an offence” held that the use of
disjuncture “or” is an indication that more than one offence is created so that in
the above section a person may cause bodily injury or death either by driving
recklessly or at a speed or in a manner which having regard to circumstances of
the case, is dangerous to the public or any person.
However, there are some cases which can be charged together without
94
rendering the charge duplex. In Mwangi v R the appellant was found in
possession of a revolver and eight rounds of ammunition which had been
stolen 13 months earlier at a time when he was in prison. He was convicted
on a single charge of being in possession of the revolver knowing it to have
been stolen. On appeal it was contended that the first charge was duplex in
that the fire arm and ammunition should have been charged separately.
Bennett J held that the fire arm and the ammunition may be charged in one
count.
Where offences otherwise properly chargeable in one count are subject to
different penalties, they must be charged in separate counts to avoid
95
duplicity.
Duplicity does not render a charge bad in law to justify setting aside the
96
conviction. The test is whether it has occasioned a miscarriage of justice. In
discussing the meaning of the expression of ‘Miscarriage of Justice’ in Uganda v
92 R v Asif (1985) 82 Cr. App. Rep. 123.

93 [1970] EA 291.
94 [1974] EA 108.
95 Mutherigi v Republic [1972] EA 260.
96 Laban Koti v Republic [1962] EA 439.
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97
Borespeyo Mpaya court cited with approval the following passage from
Archbold, (38 ed) paragraph 925:
“A miscarriage of justice within the meaning of the proviso has occurred where
by reason of a mistake, omission or irregularity in the trial the appellant has lost a
chance of acquittal which was fairly open to him. The court may apply the
proviso and dismiss the appeal if they are satisfied that on the whole of the facts
and with correct direction the only proper verdict would have been one of
guilty.”
In the case of Saina v Republic98 The appellant was charged on a single count
with the offence of housebreaking, theft and handling stolen property. The
magistrate found he had committed all the offences and sentenced him for
handling. On appeal, court found that each offence must be set out in a
different count and that failure to do so is an incurable illegality.
In most cases duplicity affects the legality of the proceedings substantially,
because charging more than one offence in one count tends to affect the
accused’s ability to defend himself/herself.99
10.10 AMENDMENT OR ALTERATION OF CHARGES

Where, at any stage of a trial, it appears to a magistrate’s court that:
(a) the evidence discloses an offence other than the offence with which the
accused is charged;
(b) the charge is defective in a material particular or
(c) the accused desires to plead guilty to an offence other than the offence
with which he or she is charged, then the court, if it is satisfied that no
injustice to the accused will be caused thereby, may make such order for
the alteration of the charge by way of its amendment or by the substitution
or addition of a new charge as it thinks necessary to meet the
circumstances of the case.100
The court has very wide power to alter the charge; however the court is to act
judiciously and to exercise the discretion wisely. In the case of Maulidi Abdalla
Chengo v Republic,101 a new charge was amended at the close of the case for the
defence with the result that a new charge with heavier penalty was
97 [1975] HCB 245.

98 [1974] EA 83 see also Cherere Gukuli v R (1955) 22 EACA 478.
99 Naama Coffee Factory Ltd v Uganda [1997] HCB 16, Uganda v Lino Ocen [1998] 111 KALR 103
Rwabitontoli and another v Uganda [1979] HCB 2.
100 Section 132(1) Magistrates Courts Act section 50(2) of Trial on Indictment Act.
101 [ 1964] EA 122.
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introduced. Court held inter alia that a charge can be substituted even after the
close of defence, but the substituted charge can only be allowed if it will not
occasion injustice to the accused person.
In view of the fact that justice lies at the back of the considerations and no
amendment is to be made if it cannot be made without injustice. An
amendment during the course of the trial is likely to prejudice the accused,
and the long the interval between arraignment and amendment, the more
likely it is that injustice will be caused.
Where the amendment results in a totally different offence from that
originally charged, it must prejudice the accused. Similarly, where further
counts are added to the original charge, it is likely to prejudice the accused if
he/she is not informed of his rights of adjourning the case or recalling the
102
witnesses.
The power to amend is not limited to those cases in which the
charge/indictment is bad on its face and, provided the amendment causes no
injustice to the accused; alterations in matter of particulars may be made.103
In practice, the amendment of the charge/indictment is made at the
request or application of the prosecutor and the court has discretion to permit
the amendment or not. Where the 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”.
Where a charge/an indictment charges an offence which is not, and omits
to charge an offence which is, disclosed in the depositions, there can be no
objection in principle to adding another count provided no injustice is caused
to the accused, although it is not a practice to be encouraged.104 A charge or
indictment which discloses no offence in law and cannot be sufficiently
amended and cannot sustain a conviction.105
Where a charge is altered:
(a) the court shall thereupon call upon the accused person to plead to the
altered charge.
(b) the accused may demand that the witnesses for the prosecution or any of
them be recalled and be further cross-examined by the accused or is or her
102 Kabigabwa v R [1963] EA 530, Lodovico v R [1967] EA 673.

103 R v Pople [1951] 1 KB 53 Alteration on matters in description, and probably in many other
respects, may be made in order to meet the evidence in the case, so long as it causes no injustice to
the accused. R v Nyamitare (1956-1957) 8 ULR 292.
104 R v Martin [1962] 1 QB 221.
105 S. Malu s/o Gichimu v R (1951) EACA 311.
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advocate, whereupon the prosecution shall have the right to re-examine

any such witnesses on matters arising out of such further cross-
examination; and
(c) the accused shall have the right to give or to call such further evidence on
his or her behalf as he or she may wish.106
Where an alteration of a charge is made, the court shall, if it is of the opinion
that the accused has been prejudiced by the alteration, adjourn the trial for
107
such period as may be reasonably necessary.
However, a trivial amendment should not provoke an application from the
defence for an adjournment which might result in a heated debate. An
amendment which may in no way embarrass the accused would not justify the
postponement of the trial to some future date.
When a charge is amended during the trial, the accused should be advised
that he may seek an adjournment and that he may recall prosecution witnesses
for further cross examination. Failure to advise the accused is prejudicial and
amounts to a fatal irregularity.108
Amendment of the charge solely intended to deny a person bail is highly
suspect and should be investigated by court to avoid abuse of suspect’s right to
bail and abuse of powers to prosecute vested in the Director of Public
prosecutions.109
Where the amendment or alteration of the charge has the effect of
introducing a new offence or provision of the law, the accused must be
110
invited to plead afresh to the new amended charge. An amendment after
111
conviction is not allowed since court is functus officio.
10.11 EFFECT OF DEFECTIVE CHARGES/INDICTMENTS

The validity of any proceedings instituted under subsection (i) shall not be
affected by any defect in the charge or complaint or by the fact that a
summons or warrant was issued without any complaint or charge or, in the
case of a warrant, without a complaint on oath.112
106 Section 132(2) Magistrates Courts Act, Uganda v Isaka Irumba and 4 others [1978] HCB 229.
108 Musoke v R (1956-1957) 8 ULR 108.
109 Musoke v Uganda [1972] EA 137.
110 Zachary Kataryeba v Uganda [1997] 1 KALR 94.
111 Yusuf Maumba v R [1966] EA 167, R v Guest [1964] 3 All ER 385.
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No judgment 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.113
The above provisions envisage the occurrence of defects in a charge or
indictment which may be curable.
Whatever defect or error there may be, the validity of the proceedings
cannot be questioned unless such error is material to the merits of the case and
involves a miscarriage of justice.
In the case of Uganda v Dickens Elatu114 court noted:
“It is not every obvious irregularity and defect in the charge sheet that makes it
bad in law, and thus renders ensuring proceedings a nullity. The criterion which
has to be applied in such cases is now well established. The test which must be
applied to answer the question, what has been the effect of the defect in the
charge on the trial and conviction of the accused, must be whether there has in
fact been a failure of justice.”
The defects in a charge/indictment that do not affect or cause a miscarriage of
justice especially where there has been only technical breach of rules not
going to the root of the case ought to be ignored.
In order to decide whether the error or omission has resulted in a failure of
justice the court should have regard to the manner in which the accused
conducted his/her defence and to the nature of the objection.
It should be noted that procedural laws are designed to sub serve the ends
of justice and not to frustrate them by mere technicalities. This is buttressed by
the Constitution which provides that:115
Substantive justice shall be administered without undue regard to technicalities.
The major object of the charge is to give an accused notice of the matter
he/she is charged with. Where the necessary information is conveyed to him
or her no prejudice is caused to him or her because of the charges. The
accused cannot succeed by merely showing that the charges framed were
defective.
An indictment/charge is open to objection if it contravenes or fails to
comply with the provisions of any enactment.

114 High Court Criminal Revision Number 71 of 1972.
115 Article 126(2)(e).
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However this objection should be taken on arraignment and before the

116
accused’s plea is taken.
The real problem is, when an express provision regarding
charge/indictment has been violated, what are the consequences of such
violation? Does it result in an illegality that strikes at the root of the trial and
cannot be cured or is it an irregularity that is curable?
Once a charge or indictment is before court it must be tried except in the
following cases:
(a) if it is defective;
(b) if a nolle prosequi is entered;
(c) if the court has no jurisdiction;
(d) if the charges are found on the same facts as those on which a previous
charge/indictment is based.
A stayed charge or indictment will not be proceeded with, if to do so would
be an abuse of the process of the court.
116 Uganda v Amisi [1970] EA 291.

CHAPTER ELEVEN
PLEAS
11.1 INTRODUCTION
A plea is an answer to a charge made by someone (accused) in a criminal case.
It may be an admission or a denial of the charge. It may also be a defence
or objection to the charge being brought.
It is therefore the assertion by an accused at arraignment or otherwise in
respect to a criminal charge.
After the framing of the charge it shall then be read and explained to the
accused.
When the person appears in court, the magistrate must read out the charge
to the accused in the language he/she understands and where services of an
interpreter are employed, this fact should be reflected in the proceedings1due
to the vitality of the plea taking exercise. Where an accused does not plead to
a charge then the trial is a nullity.2
11.2 TYPES OF PLEAS

(a) Plea of guilty
(b) Plea of not guilty
(c) Plea of autrefois acquit or convict
(d) Plea of pardon
(e) Plea bargaining
Who must plead?

The accused must plead personally, and it is not sufficient for his/her counsel
3 4
to do so on his/her behalf, or to indicate that accused wishes to plead guilty.
1 Desai v Republic [1971] EA 416.

2 Criminal Revision Number 47 of 1980 [1981] HCB 6 (no parties indicated in the HCB).
3 Vasanyi Ganji v R (1910-1920) 2 ULR 101.
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However, there is an exception where a Corporation is charged.

A corporation may enter a plea in writing by its representative a plea of
guilty or not guilty. In such a case appearance before court must be by an
advocate or an officer of the corporation5. Therefore, where an advocate duly
instructed appears for the corporation, he/she may plead guilty or not guilty
to the charge for the corporation.
Where the corporation does not appear by a representative or though it
does so appear, fails to enter any plea, the court must order a plea of not guilty
to be entered and the trial proceeds as though the corporation had duly
entered a plea of not guilty.
A written plea of guilty may be accepted in court in absence of the
6 7
accused. The Uganda legislation provides:
“When a magistrate issues a summons in respect of any offence other than a
felony, the magistrate may, if he/she sees reason to do so, dispense with the
personal appearance of the accused, subject to the accused pleading guilty in
writing addressed to the court prior to the trial or to his or her appearance at the
trial by an advocate.”
Similarly, where the personal attendance of the accused has been dispensed
with and he is allowed to appear by his/her advocate, the accused person may
plead through his/her lawyer.
11.3 REFUSAL TO PLEAD

If an accused person refuses to plead, the court shall order a plea of not guilty
8
to be entered for him or her.
However, the court must make sure that the accused is not, for example
deaf and dumb. If he/she cannot be made to understand the proceedings, the
9
magistrate must follow the procedure set out in the Act .If an accused person
being arraigned upon an indictment stands mute of malice, or neither will, nor
by reason of infirmity can, answer directly to the indictment, the court if it
thinks fit, shall enter a plea of not guilty on behalf of the accused person, and
the plea so entered shall have the same force and effect as if the accused person
had actually pleaded not guilty; or else the court may if it has reason to believe
4 R v Heyes [1951] I KB 29 at 34.

5 Section 53(1) Magistrates’ Courts Act.
6 R v Hussein Mohamed Moti (1953) 20 EACA 16.
9 Section 118 ibid R v Kateete and others (1936) 6 ULR 200.
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that the accused person is of unsound mind and cannot be made to understand
the nature of the proceedings, act in accordance with either S. 45 or 49 as the
10
circumstance may require.
It is imperative to note that refusal to plead does not amount to contempt
of court.11
11.4 UNFITNESS TO PLEAD

If the court has reason to believe that a person is of unsound mind and
consequently incapable of making his/her defence, the court is charged with
the responsibility in inquiring into the matter.12
In the case of Kaplotwa s/o Tarino v R the issue of fitness to plead arose.
The material evidence showed that due to senility and hardening of the
arteries of the brain, the accused at times appeared to be “wanting” but would
be capable of understanding the nature of the charge in his more lucid
moments. The accused was found fit to plead and convicted of murder. On
appeal it was held that the point for determination was not whether the
appellant was sufficiently sane to understand the charge but whether he/she
was at the time of the trial “ of unsound mind and consequently incapable of
making his defence”. A retrial was ordered since there was nothing in the
evidence to indicate that the appellant at the time of his/her trial was enjoying
one of his lucid moments and the trial Judge had not considered whether he
was capable of making his defence.
11.5 RECORDING OF PLEAS

Plea taking is one of the principles of a fair trial under our criminal justice
system, where a person charged with a criminal offence is presumed to be
innocent until proved guilty or until that person has pleaded guilty.13
This part of the proceeding is so important, especially when an accused
intends to plead guilty and the court must take great caution and care before
recording what it considers is the plea of the accused.
Usually it is unlikely that a problem will arise where the accused does not
want to plead guilty. Where the accused intends to plead guilty or the court
thinks he/she is pleading guilty, problems may arise which affect the

11 Uganda v Antonio Okello MB 127 of 1967, Wachira s/o Murage and others v R (1950) 23 EACA 562.
12 Section 113 Magistrates Courts Act and section 45 Trial on Indictment Act.
13 Article 28(3) 9.
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administration of justice if the court is not cautious while recording the plea.
It is therefore important that a plea of guilty must be recorded with great care
and the accused should not be convicted on his/her plea of guilty unless the
court is sure that he understood the charge and had no defence to it.
The procedure of recording pleas has been set out in the case of Adan v
14
Republic:
“When a person is charged with an offence, the charge and the particulars thereof
should be read out to him, so far as possible in his own language, but if that is not
possible, then in a language which he can speak and understand. Thereafter the
court should explain to him the essential ingredients of the charge and he should
be asked if he admits them. If he does not admit, his answer should be recorded
as nearly as possible in his own words and a plea of guilty formally entered. The
prosecutor should then be asked to state the facts of the case and the accused
should be given an opportunity to dispute or explain the facts or to add any
relevant facts he may wish the court to know. If the accused does not agree with
the facts as stated by the prosecutor or introduces additional facts which, if true,
might raise a question as to his guilt, a change of plea to one of not guilty should
be recorded and the trial should proceed. If the accused does not dispute the
alleged facts in any material respect, a conviction should be recorded and further
facts relating to the question of sentence should be given before sentence is
passed.”
This procedure enables court to satisfy itself that the plea of guilty is
unequivocal and that the accused has no defence, but it also gives the court
the necessary material on which to assess sentence and it eliminates or
15
minimizes the chance of subsequent complaint.
The procedure for calling upon an accused to plead requires the accused
admits to all the ingredients constituting the offence charged before a plea of
guilty could be entered against him/her. The words “it is true” standing on
their own did not constitute an unequivocal plea of guilty. It was desirable
that every constituent of the charge be explained to the accused and that he
16
should be required to admit or deny every constituent.
Where possible the court should ask or encourage the accused to give
reasons for his actions which are admitted because they could include
justification in the form of self defence.17
14 [1973] EA 445 Uganda v Olet aand 4 others [1991] HCB 13, Uganda v Oyang [1980] HCB 4.
15 Mathias Kauma v Uganda [1997] HCB 12, Anthony Olutunde Olowe v Uganda [1996] HCB 26.
16 Mose v Republic [2002] 1 EA 165, Kato v Republic [1971] EA 542, Wanjiru v Republic [1975] EA 5.
17 Uganda v Londoma Feremino [1995] 1 KALR 15.
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11.6 PLEA OF NOT GUILTY

The substance of the charge shall be stated to the accused person by court, and
the accused person shall be asked whether he/she admits or denies the truth of
the charge.18
If the accused person does not admit the truth of the charge, the court shall
19
record a plea of not guilty and shall proceed to hear the case .After listening
to what the accused has to say, if what he or she says amounts to a plea of not
guilty, the court should simply record “not guilty”.
The accused under these circumstances is entitled to deny the truth of the
charge and allow the prosecution to prove their case against him/her.
An accused may plead not guilty of the offence specifically charged in the
charge/indictment, but guilty of another offence of which he/she might be
found guilty on that charge/indictment. The prosecution ought not to accept
the plea of guilty of that lesser offence; even where he/she proposes to accept,
the court has a discretion whether to accept the plea or not.20 If the accused’s
plea of guilty of that other offence is accepted, his/her conviction for it
constitutes an acquittal of the offence which he/she pleaded not guilty,
whether or not the two offences are separately charged in distinct counts.
11.7 PLEA OF GUILTY

A person charged with an offence is presumed innocent until he/she has been
21
proved guilty or he/she has pleaded guilty. This therefore means that an
accused must have a free choice of plea. He/she is not to be taken to admit an
offence unless he/she pleads guilty to it in unmistakable terms with the
appreciation of the essential elements of the offence.
If the accused person admits the truth of the charge, the admission shall be
recorded as nearly as possible in the words used by him or her, and the court
shall convict him or her, and pass a sentence upon or make an order against
22
him or her, unless there shall appear to it sufficient cause to the contrary.
The direct effect and consequence of a plea of guilty once properly
received and recorded, results in the conviction of the accused and the offence
does not have to be proved by the prosecution.
18 Section 124(1) Magistrates Courts Act and section 60 Trial on Indictment Act.
19 Section 124(3) Magistrates Courts Act and section 65 Trial on Indictment Act.
20 R v Soanes [1948]1 All ER 289.
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It is important to note that a plea of guilty must be in unambiguous terms;

otherwise such a plea is considered as equivalent to a plea of not guilty.
The procedure for entering a plea of guilty has been set out by court in
several cases:23
“The procedure to record a plea of guilty is that; when a person is charged, the
charge and particulars should be read to him, so far as possible in his own
language, but if it is not possible, then in a language which he can understand.
The magistrate should then explain to the accused person all the essential
ingredients of the offence charged. If the accused admits all those essential
elements, the magistrate should record what the accused has said, as nearly as
possible in his own words, and then formally enter a plea guilty.
The magistrate should next ask the prosecutor to state the facts of the alleged
offence, and should give the accused an opportunity to dispute or explain the
facts or add any relevant facts. If the accused does not agree with the statement of
facts or asserts additional facts which if true might raise the question of guilt the
magistrate should record a conviction and proceed to hear any further facts
relevant to sentence. The state of facts and the accused’s reply must, of course, be
recorded”
In case of unrepresented accused, care must be taken to ensure that he/she
fully understands the elements of the offence to which he/she is pleading
guilty, and this is particularly the case where a possible defence is disclosed in
his/her answer (plea). The court has got discretion to accept the plea of guilty
and convict the accused thereon. However, this discretion is to be used with
care and circumspection and on sound judicial principles bearing in mind the
ultimate objective to do justice to the accused.
Therefore, the question whether the words used by the accused amount in
law to a plea of guilty is very vital.24 It is therefore desirable to record the exact
words of the accused.
The accused might have admitted all the facts alleged against him or her
and yet, the acts alone being not adequate to constitute an offence under the
Penal section, the accused cannot be held to have pleaded guilty of the offence
under that particular section.25Where an accused pleads guilty to a non existing
offence, such accused is entitled to appeal where he is convicted by the trial
26
court. Where an accused originally pleads guilty to an offence but after court
23 Anthony Olutunde Olowe v Uganda [1996] HCB 26 at 27, Adan v Republic Supra.
24 Uganda v Paul Lwanga [1984] HCB 20.
25 Anthony Olutunde Olowe v Uganda [1997] IV KALR 7 [1996] HCB 26.
26 Ibid see also Republic v Robert [1969] EA 622.
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Pleas 249
has recited the facts of the case; denies original statement, then the accused
27
cannot be said to have pleaded guilty.
Where an accused pleads not guilty of an offence specifically charged but
guilty of some other offence of which he/she might be found guilty on that
charge, and he/she is convicted upon that plea of guilty without trial for the
offence charged, then his/her conviction of the offence is an acquittal of the
other; and this is so whether or not the two offences are charged in separate
28
counts.
Where the accused is charged on two counts and is convicted on the more
serious charge and pleads guilty to the less serious charge, he should not be
sentenced for the less offence but the plea of guilty should remain on the
court’s file.
The court ought to refuse to accept a plea of guilty, if he/she is of the
opinion that it proceeds from fear, duress or ignorance.29
In the case of Uganda v Joseph Nviiri and another;30 the accused persons were
charged with adultery and it appeared from the record that they pleaded
guilty. While sentencing the accused to five months imprisonment, the trial
magistrate stated thus:
“After the court has observed the character in court of the complainant, a security
officer in the Uganda Armed Forces and more so that the only security the court
could give to the A1 was that, there was no alternative but have (him) be given
an imprisonment rather than a fine.
The court hopes that the accused is safer while serving a sentence in prison
than the temper of the aggrieved party might cause which the court thinks is the
best way of safe guarding the accused.”
On revision, the High Court found that the pleas were not in fact voluntary
from what was stated during sentencing.
Where it is alleged that a plea of guilty has been entered into under duress
or coercion, the High Court has jurisdiction to inquire into the matter,
notwithstanding the fact that sentence has been passed by the magistrate.31
27 Abdi Ali Ahmed v Uganda [1995] V KALR 63.

28 R v Soanes (Supra) Uganda v Patrick Musoke [1979] HCB 6.
29 R v Cole [1965] 2 QB 388.
30 [1979] HCB 3 see also Kagube Mohamed v Uganda [1995] VI KALR 1 No evidence of duress during
plea taking.
31 R v Rochdale Justices, ex parte All work [1981] 3 All ER 434.
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An accused person cannot plead guilty to a charge that has not provided
32
any particulars of offence, and the same way a plea of guilty based on facts
33
which are at variance from the charge cannot be upheld by courts.
In sum therefore, a plea of guilty and its procedure of recording it must be
handled with a lot of care and this care need not simply satisfy technical rules.
The major rationale is that if court records a plea of guilty in such a way
that an appellant court will be satisfied that the accused fully understood the
charge and admitted every element of the offence unequivocally so as to attain
the following benefits:
(a) no one can be convicted in error;

(b) no one who really intended to plead guilty will be able to take advantage
of the courts incompetence and pretend to an appellate court (where there
is no material on the record to contradict him) that he or she did not really
understand the offence. This often happens when an accused person
receives a severer sentence than he or she expected; and
(c) the public will have confidence in the administration of justice.
No appeal shall be allowed in the case of any person who has pleaded guilty
and has been convicted on that plea by a magistrate’s court except as to the
legality of the plea or to the extent or legality of the sentence.34
11.8 PLEA OF AUTREFOIS CONVICT OR AUTREFOIS ACQUIT

This plea is based on the principle that a ‘person may not be put twice in
jeopardy of the same offence’. The principle of double jeopardy under the
Constitution provides that:35
“A person who shows that he or she has been tried by a competent court for a
criminal offence and convicted or acquitted of that offence shall not again be tried
for the offence or for any other criminal offence of which he/she could have
been convicted at the trial for that offence, except upon an order of a superior
court in the course of an appeal or review proceedings relating to the conviction
or acquittal.”
In addition, the Penal Code equally provides in similar terms:36
32 Luyinda Joseph v Uganda [1998] V1 KALR 125.

33 Joseph Kamuroro v Uganda [1996] IV KALR 47.
34 Section 204(3) Magistrates Courts Act and section 132(3) Trial on Indictment Act, Yakubu Nabala v
Uganda [1995] II KALR 124, Shaban Mugabi v Uganda [1995] III KALR 87
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Pleas 251
A person shall not be punished twice either under the Code or under any other
law for the same offence.
The pleas are taken as a bar to criminal trial on the ground that the accused
person had been once tried for the same alleged offence and was either
acquitted or convicted.
The pleas of autrefois acquit or convict aver respectively that the accused
has been previously convicted or acquitted on a charge for the same offence as
that in respect of which he/she is arraigned.
In such circumstances the accused is entitled to plead autrefois convict or
acquit. The procedure to follow is set out under the legislations as thus:37
“If the accused pleads that he or she has been previously convicted or acquitted,
as the case may be, of the same offence, the court shall try whether that plea is
true in fact or not, and if the court holds that the facts alleged by accused do not
prove the plea or if it finds that it is false in fact, the accused shall be required to
plead to the charge.”
There is need to appreciate the basic rules underlying this principle of double
jeopardy such as what amounts to an acquittal, trial of same offence.
The term ‘acquittal’ has been explained and understood in negative terms
by saying that the dismissal of a complaint or the discharge of the accused is
not ‘acquittal’. The reason is the dismissal of a complaint or the discharge of
the accused is not considered as the final decision regarding the innocence of
the accused person.
The word “tried” as used under the Constitution does not necessarily
mean tried on merits. Sometimes the wording of the provision in the creation
of an offence or the procedure to be followed in prosecution of such offence
may result in a withdrawal from the prosecution by the public prosecutor,
would result in an acquittal of the accused even though the accused is not
tried on merits. Such an acquittal would be a bar for a trial of the accused on
the same facts on a subsequent complaint.
A trial is deemed to be commenced once the court has taken cognisance of
a complaint or a criminal case and has ordered issue of process for the accused
to appear, it has taken steps towards the trial and what it has done is
proceedings in the nature of a trial.
In addition, in order to take benefit of the plea, it is necessary for an
accused person to establish that he/she had been tried by a “Competent
Court” for an offence.
37 Section 124(5))a) Magistrates Courts Act and section 61(1)(a,), (2), (3) Trial on Indictment Act.
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This expression “Competent court” to try an offence should not be

narrowly interpreted as to involve merely the consideration of the status or the
character of the court, but in determining the competence it must also be
considered whether the court though otherwise qualified to try the case, could
not have done so because certain precedent for the exercise of jurisdiction
(e.g. previous consent to prosecute) had not been fulfilled.
Similarly, in order to apply the principle of autrefois acquit, it is not enough
that the court which acquitted the accused in the first trial had in fact the
jurisdiction and competence to try the case. It is also necessary that the court
believed that it had such jurisdiction and competence.38
The plea must be based on the ‘same offence’ i.e. they should be identical.
It is therefore necessary to analyse and compare not the allegations in the two
complaints but the ingredients of the two offences and see whether their
identity is made out.
However, the protection of autrefois acquit is sometimes extended by
courts to cases of discharge in order to stop the harassment of the accused or
prevent the abuse of the process of the law.
Therefore, the burdens of proving the plea of autrefois acquit or convict is
upon the accused. He/she must establish that judgment of conviction or
acquittal has been legally given. The accused must prove to court on the
balance of probabilities as the proper standard and put forward a reason why
he/she should not be tried.
A judgment of conviction which has been reversed as erroneous in law is
no bar to a subsequent charge nor is an acquittal before a court which had no
jurisdiction to try the offence charged. Where a judgment of conviction is
quashed on the facts, this will support a plea of autrefois acquit.39
It has been held in an Irish case that, where a conviction by justices was
quashed by certiorari on the ground that it was bad on its face for want of
jurisdiction, this did not constitute an acquittal entitling the accused to plead
autrefois acquit in subsequent proceedings; but it would seem to be otherwise if
such conviction were to be quashed on the merits e.g. where it was founded
on insufficient evidence.40
38 Uganda v Bosco Okello [1987] HCB 13, Uganda v Magogwa Paskali [1979] HCB 7, Uganda v Yowana
Wanerera [1979] HCB 170
39 R v Barron [1914] 2 KB 570.
40 Conlin v Patterson [1915] 2 I R 169.
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Pleas 253
The accused may establish a plea of autrefois acquit or convict by producing

a certificate of convict or acquit or by such other evidence like judgment or
order of court that he has been convicted or acquitted.
The fact that an outstanding offence is taken into consideration at the
request of the accused does not constitute a conviction in respect of that
41
offence upon which as plea of autrefois convict can be sustained.
It is, however, the practice not to proceed on any case already taken into
consideration, because of the danger of the accused being twice punished for
the same offence.
The question before court in deciding the issue is whether the accused has
previously been in jeopardy in respect of the charge upon which he/she is
now charged.
The test is whether the evidence which is necessary to support the second
charge, or whether the facts which constitute the second offence, could have
procured a legal conviction upon the first charge, either for the offence
charged or for an offence of which the accused could on that charge have
been found guilty.
The principle as laid down on a plea of autrefois acquit or convict is that the
test is not whether the facts relied upon are the same at the two trials, but
whether the acquittal or conviction on previous charge necessarily involved an
acquittal or conviction on the subsequent charge.42
However, although an acquittal or conviction on a charge of murder is a
bar to subsequent charge of manslaughter since the accused could properly
have been convicted or acquitted of manslaughter at the first trial
notwithstanding the fact that he was not charged with it, it is not a bar for a
subsequent charge of arson which could have been charged in the first
charge/indictment.
Thus a conviction for assault is no bar to an indictment for murder if the
43
victim later dies. The court should stay a charge or indictment when it is
satisfied that the charges are founded on the same facts as the charges in a
previous indictment on which the accused has been tried, or form or are part
of a series of offences of the same or similar character as the offences or
charges in the previous case.
41 R v Nicholson [1947] 2 All ER 535.

42 R v Daudji (1948) 15 EACA 89.
43 R v Thomas [1950] 1 KB 26.
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11.9 PLEA OF PARDON

44
No person shall be tried for a criminal offence if the person shows that he or she
has been pardoned in respect of that offence.
The President may, on the advice of the committee grant to any person
45
convicted of an offence a pardon either free or subject to lawful conditions.
If the accused pleads that he or she has obtained a pardon for his or her
offence, the court shall try whether that 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 it is false in fact, the accused shall be required to plead to the charge.46
Any accused person against whom an indictment is filed may plead that
47
he/she has obtained the President’s pardon for his or her offence.
Therefore, it can be deduced from the above provisions that the President
can exercise his/her prerogative of mercy by granting pardon to a person
concerned and convicted of a criminal offence.
A pardon must be specifically and specially pleaded at the first opportunity
the accused has of doing so. If the plea is successful the accused is not
acquitted but discharged.
At the trial, the plea of pardon must be made after the indictment or
charge is read over to the accused.
48
In the case of Re Balaki Kirya court noted that:
“it was premature for this court to entertain what amounted to a special plea of
the presidential pardon under the prerogative powers of mercy, exercisable by the
president as an indictment had not been filed and the trial had not commenced”.
This is an important preliminary issue because it decides whether or not the
accused will be tried for the offence with which he/she is charged. If the court
finds that the plea is not supported by evidence, it shall require the accused to
plead to the charge or indictment.
In the case of Smith Opon Acak and Ahmed Ogeny v Uganda,49 the appellants
appealed against the refusal of the High Court to accept that they had been

46 Section124(5)(b) Magistrates Courts Act.
47 Section 61(1)(b) Trial on Indictment Act.
48 [1984] HCB 12.
49 Supreme Court Criminal Appeal.
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Pleas 255
pardoned by a general presidential pardon. They had pleaded in bar at the

High Court that they had been pardoned under a General Presidential Pardon.
The High Court rejected their plea contending that there was no evidence
to that effect hence this appeal. The Supreme Court held that the President
may grant pardon under the Constitution but it does not state that the pardon
must be in writing but the fact that the exercise of the presidential prerogative
has to be acted upon by offices of government prison authorities. It means that
the pardon must be a signed instrument. It must be incumbent upon the
appellants to prove on the balance of probabilities whether they had been
pardoned by the General Presidential Pardon. The appellants had failed to
prove this.
If an accused has obtained a pardon before arraignment and instead of
pleading it, pleads only the general issue, he/she is deemed to have waived the
benefit of the pardon. If a pardon is granted after plea pleaded, advantage of it
may be taken at any time.
11.10 AMNESTY
Under the Uganda Criminal Justice System, there exists another form of
pardon known as Amnesty.
Amnesty is defined to mean a pardon, forgiveness, exemption or discharge
from criminal prosecution or any other form of punishment by the state.50
An amnesty is declared in respect of any Ugandan who has at any time
since the 26 January 1986, engaged in or is engaging in war or armed
rebellion against the Government of the Republic of Uganda by:
(a) actual participants in combat.
(b) collaborating with the perpetrators of the war or armed rebellion;
(c) committing any other crime in the furtherance of the war or armed
rebellion; or
(d) assisting or aiding the conduct or prosecution of the war or armed
rebellion.51
A person referred to above shall not be prosecuted or subjected to any form of
punishment for the participation in the war or rebellion for any crime
52
committed in the cause of the war or armed rebellion.
50 Section 1(a) Amnesty Act Chapter 294.

52 Section 2(2) ibid
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There are conditions which must be satisfied before a person seeks an

amnesty.
A reporter (person seeking Amnesty) shall be taken to be granted the
amnesty declared if such reporter (person):
(a) reports to the nearest army or police unit, a chief, a member of the
executive committee of a local government unit, a magistrate or a religious
leader within the locality.
(b) renounces and abandons involvement in the war or armed rebellion;
(c) surrenders at any such place or to any such authority or person any
weapons in his/her possession; and
(d) is issued with a certificate of amnesty.53
Where a person seeking amnesty is charged with or is under lawful detention
in relation to any offence under the Act, such person shall be deemed to be
granted the amnesty if he/she:
(a) declares to a prison officer or to a Judge or magistrate before whom he/she
being tried that he/she has renounced the activity referred to in Section 2,
and
(b) declares his/her intention to apply for amnesty under the Act.54
A person seeking amnesty under subsection 2 shall not be released from
custody until the Director of Public Prosecutions has certified that he/she is
satisfied that
(a) the person falls within the provisions of section 2 of the Act
(b) he/she is not charged or detained to be prosecuted for any offence not
falling under section 2.55
Persons to whom section 2 applies and who are living outside Uganda shall be
deemed to have been granted amnesty if:
(a) they renounce all activities in section 2 and
(b) report to any Uganda Diplomatic Mission, consulate or any International
Organization which has agreed with the Government of Uganda to
receive such persons.56

54 Section 3(2) Amnesty Act.
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Pleas 257
It should be noted however, that this Act granting amnesty has duration of six
57
months but on expiry of period, the Minister extends that period .
11.11 CHANGE OF PLEA

Where the accused has pleaded not guilty and during the middle of the trial
wishes to change his or her plea from one of not guilty to one of guilty, the
court has the power to record such change of plea by following the normal
procedure of taking a plea of guilty.
This therefore means the court should recharge the accused and take down
his or her plea in the usual way.
Similarly an accused may also change his/her plea of guilty to one of not
guilty. There is nothing in law which forbids the withdrawal of a plea of
guilty by an accused person. However, this must only be done in very clear
cases i.e. where the accused due to language problem, the accused may have
misunderstood the charge.
If during the course of a trial, it appears that a plea of guilty has been
58
entered in error, it should be withdrawn and a plea of not guilty entered. A
plea of guilty may with the leave of the trial court be withdrawn at any time
before sentence59 but not after when the court becomes functus officio.
However, in the case of Uganda v Henry Ochwo Nathan60 court noted that;
A plea of guilty followed by a conviction can be changed to one of not guilty
by a trial magistrate in the exercise of his discretion and this discretion can
even be exercised after sentence in exceptional circumstances. This discretion
must however be exercised judicially otherwise the proceedings that follow
are a nullity. The court must record reasons why such leave is granted and it
must record such reasons as the accused used to persuade it to use its
discretion in the accused’s favour. It would be much more in the interest of
justice especially to make such record where the discretion was exercised
against the accused.
In the instant case, the discretion granted to the accused, when he took a
month to make up his mind to change his plea was not exercised judicially
and therefore the proceedings that followed the conviction was a nullity.
57 Section 16 op.cit ( this is usually by statutory instrument).

58 R v Durham Quarter Sessions, ex parte Virgo [1952] 2 QB 1, Uganda v Christopher Mukiibi Cr. App.
Number 511 of 1972, Joseph Mugola s/o Pudha v R (1953) 20 EACA 171, Uganda v Henry Ochwo
Nathan [1977] HCB 267
59 R v Plummer [1902] 2 KB 339 1 All ER 602.
60 [1977] HCB 267.
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The Court of Appeal rightly noted that there is no provision under the law
providing for a plea to be changed, but equally there are no provisions to
61
prevent a plea being changed before the court becomes ‘functus officio’
Therefore the court could properly permit a plea of guilty to be changed to a
plea of not guilty and proceeded to the trial of the case for the proof of guilt
of the accused.62
When an accused person pleads not guilty, any prior admission of guilt or
any statement he makes during the plea cannot be considered against him, first
because it is not evidence and second it is inconsistent with a plea of not guilty
which put all prosecution case in issue.63 It bears emphasis however, that a plea
of guilty entered by a court was not a conviction. Therefore an accused could
be allowed to change his/her plea for cause any time before conviction.
A court had to indicate its finding based on a plea of guilty by convicting
64
the accused of the offence charged.
If there is no change of a plea, a conviction should be recorded and a
statement of the facts relevant to sentence together with the accused’s reply
65
should be recorded.
11.12 PLEA BY SEVERAL ACCUSED

Where more than one accused is charged in the same count or in different
counts of the same charge sheet, they must of course each be asked to plead
individually and the principles above apply just as if they were charged in
separate cases.
If there are a number of accused persons, the plea of each of the accused
should be separately recorded and, in his /her own words after the accusation
was read over to each one of them. Where there are a number of accused
persons and the accusation is read over to them jointly and the magistrate
records their plea jointly, such a plea is bad in law.
With regard to proceedings to sentence, where more than one accused is
involved in the same incident it is usually better to postpone sentence on the
one who has pleaded guilty until the case is heard and determined in respect
of the other accused.
61 David Kamundi Gatihi v Republic [1973] EA 540.

62 Uganda v Okwang Michael [1992-93] HCB 62.
63 Luusi Mibuulo v Uganda [1985] HCB 5.
64 Uganda v Matovu [1973] HCB 195, Mwakera v R [1972] EA 366.
65 Bizangande v Uganda [1976] HCB 9.
M Ssekaana
Pleas 259
Thus the relative degree of guilty, of each accused depending on the part
played by him/her in the commission of the offence, can be taken into
consideration for the purpose of assessing sentence.
However, where the prosecution intends to call one of the accused who
has pleaded guilty as a witness, he/she ought to be convicted and sentenced at
once so that there can be no suspicion that his/her subsequent evidence is
coloured by the fact that he/she hopes to get lighter or higher sentence by
66
reason of the evidence he/she gives.
11.13 PLEA TO ALTERNATIVE COUNTS

Where more than one count is included in a charge sheet and they are
expressed to be in the alternative, if the accused pleads guilty to one of the
67
counts, these is no need to take a plea on the other.
Similarly, the plea to all counts should not be omnibus since a plea must be
for each count separately.68
11.14 PLEA BARGAINING

Plea bargaining is not practised in Uganda although it is contemplated as an
area of reform that can be introduced in our criminal justice system.
Plea bargain is an agreement in a criminal case whereby the prosecution
offers the accused the opportunity to plead guilty, usually to a lesser charge or
to the original criminal charge with a recommendation of a lighter than the
maximum sentence.
A plea bargain is a deal offered by a prosecutor as an incentive for an
accused to plead guilty.
The justification for plea bargaining is rooted in the fact that if every case
in the justice system went to trial, the courts would be so overloaded that they
would effectively breakdown.
Therefore, plea bargaining allows, the prosecutor to obtain guilty pleas in
cases that might otherwise go to trial.
In sum, plea bargaining is an essential and desirable part of the criminal
justice system.
66 Uganda v Lawrence Onyang and Maria Awidi [1980] HCB 4, Karuna Bukenya v R (1952) 19 EACA
235.
67 Kagube Mohamed v Uganda [1995] VI KALR 1.
68 Uganda v Mucoori Francis [1996] III KALR 13.
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Plea bargaining is beneficial in the following regards:

(a) it is a relief of court congestion;
(b) alleviates the risks and uncertainties of trial;
(c) it offers an information gathering value.
A plea bargaining is a contract between the prosecutor and the accused and
both parties are required to comply with the terms of their contract. Once an
accused has a plea bargain with the prosecution, he/she is required to perform
particular tasks (such as pleading guilty on a particular date, cooperating in the
investigation of another offence or testifying against a co-accused), the
prosecution may revoke the plea bargain where an accused fails to satisfy
his/her duties.
In similar vein, where the prosecutor breaks a deal with the accused, the
accused may seek to have his/her plea set aside, or may seek a court order
requiring the prosecutor to respect the plea bargaining.
However, some legal scholars argue that the whole notion of plea
bargaining in our adversarial system of litigation is unconstitutional because it
takes away a person’s right to a fair trial or presumption of innocence.
In some instances, plea bargaining is criticized for being coercive such that
it infringes on the person’s rights.
Plea bargaining has been introduced in some common law jurisdictions
and is permitted only to the extent that the prosecutors and the defence can
agree that the accused will plead to some charges and the prosecution will
drop the remainder. No bargaining usually takes place over the penalty.
Plea bargaining was introduced in India in 2005 in respect of cases in
which maximum punishment is imprisonment for seven years.
11.15 PRELIMINARY PLEAS TO BAR TRIAL

In every type of trial when the accused appears or is brought before court,
he/she may raise certain preliminary pleas and object to his/her being tried by
the court.
11.15.1 Plea to the Jurisdiction

A plea to the jurisdiction raises an objection to the jurisdiction of the court. It
is a duty to the prosecution and defence to bring to the attention of the court
on arraignment, or, if not known then, as soon as known, any query there
may be as to the jurisdiction.
M Ssekaana
Pleas 261
Therefore any party to the criminal proceedings can take the plea that the
court has no jurisdiction to try the case. The jurisdiction of criminal court is
of two kinds i.e. the power of the court to try particular kinds of offences and
then the other type of jurisdiction of the court called the territorial or local
jurisdiction.
11.15.2 Plea to Lack of Counsel

Where an accused is entitled to legal representation by counsel, then such
person may raise a plea of lack of counsel. The Constitution provides that:69
“Every person who is charged with a criminal offence; in the case of any offence
which carries a sentence of death or imprisonment for life, be entitled to legal
representation at the expense of the state.”
Any such person who falls within that category can legitimately object to the
commencement or continuance of the trial in absence of his/her counsel. The
noncompliance with this constitutional provision before or at commencement
of the trial vitiates the criminal proceedings.
11.15.3 Plea of Limitation

There are certain offences which are supposed to be prosecuted within a
certain period. In such circumstances the expiry of time is allowed to operate
as a bar to prosecution. It is generally agreed that statutes of limitation shut out
belated and dormant claims in order to save the accused from unnecessary
harassment. They may also save the accused from the risk of having to face a
trial at a time when his/her evidence might have been lost because of the
delay on the part of the prosecutor.
The law on limitation confers a right on the accused to plead that an
offence or offences disclosed in a complaint should not have been taken
cognizance of as the prosecution was barred by limitation. Therefore the
accused can plead limitation at any time during the trial.
There are specific legislations or penal provisions which require
prosecution to be conducted within a specified period after the commission of
the offence and failure of which they cannot institute the criminal charges.
No person shall be tried for an offence under section 23, except an offence
under subsection (1)(b) of that section, or under sections 24, 25 or 27, unless
the prosecution is commenced within five years after the commission of the
offence.
69 Article 28(3)(e) Constitution Article 28(3)(d).

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No prosecution for an offence under section 40 shall begin except within

six months after the offence is committed; except where a person:
(a) commits such offence from outside Uganda or
(b) leaves Uganda within six months of committing such an offence.70
Proceedings against a person in respect of any offence under this Act shall be
commenced within three months after the offence which is alleged to have
been committed or within one month after court finds, on trial of a petition,
71
that an offence may have been committed.
In addition, the Magistrate Courts Act provides:
“Except where a longer time is specially allowed by law, no offence, the
maximum punishment for which does not exceed imprisonment for six months
or a fine of one thousand shillings, shall be triable by a magistrate’s court, unless
the charge or complaint relating to it is laid within twelve months from the time
when the matter of the charge or complaint arose.72

71 Section 81 Presidential Elections Act See also, section 88 of Parliamentary Elections Act. However
the Local Government Act omitted a similar provision for similar offences but section 172 could be
applied for purposes of such offences.
CHAPTER TWELVE
TRIAL PROCEDURE
12.1 DISPOSAL WITHOUT FULL TRIAL

Where the criminal proceedings are initiated, they may not necessarily lead to
a full-fledged trial resulting in the judicial determination of the guilt or
innocence of accused. It may not be expedient or advisable to allow the
criminal process to run its full course.
This may result from different circumstances that may halt the criminal
proceedings through reconciliation, withdrawal of suits, dismissal for non
action, and death of the accused etc.
It is imperative to note that unlike in civil cases, there are usually no
preliminary points that may halt criminal proceedings and especially as to the
propriety of proceedings. There is no provision in law providing for
preliminary objection as to whether a charge disclosed an offence or not.1
12.2 RECONCILIATION
A crime is essentially a wrong against society. Therefore any compromise
between the accused and the individual victim of the crime should not absolve
the accused from criminal responsibility.
However, where the offences are essentially of a private nature and
relatively not serious, the law allows court to encourage reconciliation.
“In criminal cases, a magistrate’s court may promote reconciliation, and
encourage and facilitate the settlement in an amicable way, of proceedings for
assault or for any other offence of a person or private nature, not amounting to
felony and not aggravated in degree, in terms of payment of compensation or
other terms approved by the court, and may, thereupon, order the proceedings to
be stayed.”2
3
In the case of Uganda v D Kaya, The accused was charged of stealing from a
motor vehicle and receiving or retaining stolen property. At the trial the
1 Henry Kayondo v Uganda SC Cri.A Number 35 of 1995 [1995] III KALR 118.
3 [1979] HCB 35 see also Uganda v Odura [1974] EA 553.
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complainant told court that he did not want to proceed with the case. The
trial court ruled that the proceedings be stayed and accused be discharged.
The High Court on revision held that:
(a) Proceedings can only be stayed if the complainant and the accused have
reconciled under section 156 (MCA) (now section 160).
(b) Section156 (now160) is not applicable here as reconciliation is permitted
only in proceedings not amounting to a felony but the offences charged
here were felonies.
(c) Before stay of proceedings, the court ought to be satisfied that the
complainant has been substantially compensated.
Where reconciliation is reached on a case which is a felony, the prosecution
4
may withdraw the case instead of moving court for reconciliation.
In such cases, it is the duty of the public prosecutor to consider and decide
whether to withdraw from prosecution or not.
A case may be reconciled or compromised at any time before the sentence
is pronounced. However, what is not clear is whether parties can comprise a
case while it is on appeal or revision. It is submitted that, if the complainant
still consents to the compromise through reconciliation, the court should
gladly close the case.
Once parties have reconciled and as soon as it is recorded by court, it has
an immediate effect of an acquittal.
While granting permission to reconcile and facilitate a settlement of a
criminal case, the court should act judicially and should exercise a sound and
reasonable discretion.
The safeguard of the court’s permission is to prevent an abuse of the right
to compound and to enable the court to take into account the special
circumstances of the case which may justify composition.
When an acquittal is based on the reconciliation and settlement of an
offence and such reconciliation and settlement is invalid under the law, set-
aside by the High Court in exercise of its revisional jurisdiction.5
4 Uganda v Swaibu Mukidi and another [1995] III KALR 135.

5 Ibid.
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Trial Procedure 265
12.3 WITHDRAWAL OF COMPLAINT

This is the alternative way of reconciliation and settlement. In practice, the
complainant may withdraw a complaint by making an additional statement at
police which would be a way of indicating to the state, that such a person has
no further interest in the prosecution of the accused.
This procedure has no basis in law and is permissible where the type of
offence is a misdemeanor otherwise a crime is a wrong against the society and
country at large and any withdrawal of complaint by the complainant should
not absolve the accused from criminal responsibility.
The general effect of withdrawal of complaint is to facilitate the
prosecution in withdrawing the case before court on ground that such
complainant may be unwilling to testify in court and is usually the key witness
for the prosecution.
Where the criminal case was initiated on a police report and not on a
complaint the accused may not be discharged. It bears emphasis however that
the complainant must satisfy the prosecution that there are sufficient grounds
for withdrawing the complaint. Otherwise the prosecution is at liberty to
proceed with the trial and summon the complainant as its witness on
summons and if he/she disobeys the summons can be arrested and brought
before court to give evidence.6
12.4 WITHDRAWAL FROM PROSECUTION

The law allows and enables the public prosecutor to withdraw from the
prosecution of any person with the consent of the court or on instructions of
the Director of Public Prosecutions. The withdrawal from prosecution of any
person may be justified on broader considerations of public peace, larger
considerations of public justice and even deeper considerations of promotion
of long lasting security in a locality, of order in a disorderly situation or
harmony in a faction milieu, or for halting a false and vexatious prosecution.
In any proceeding before a magistrate’s court the prosecutor may, with the
consent of the court or on the instructions of the Director of Public
Prosecutions at any time before judgment is pronounced, withdraw from the
prosecution of any person; and upon that withdraw:
(a) If it is made before the accused person is called upon to make his or her
defence, he or she shall be discharged, but the discharge of the accused
shall not operate as a bar to subsequent proceedings against him or her on
account of the same facts.
6 Sections 94-97 Magistrates Court Act.

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(b) If it is made after the accused person is called upon to make his or her
defence, he or she shall be acquitted7.
The power to withdrawal from the prosecution is only exercisable by the
Director of Public Prosecutions and such power is non delegatable to any
other officer in the Directorate of Public Prosecution.8 However, where the
prosecution is conducted by the complainant on a private prosecution without
9
the consent of the court, the withdraw from the prosecution may be in
respect of any offence for which a person is charged.
The withdrawal from the prosecution can be sought at any time before the
judgment is pronounced by the trial court. An application for withdrawal
from prosecution can be moved even during the pendency of the committal
proceedings in the court of a magistrate in a case in which the offence is only
triable by the High Court, and the magistrate is competent to give such
10
consent to such withdrawal.
The discretion of Director of Public Prosecutions and of court in the
matter of withdrawal must be exercised on sound reasons and with precaution
to inform the court and it is the duty of the court to appraise itself of the
reasons which prompt the DPP to withdraw from the prosecution. The court
has a responsibility and stake in the administration of criminal justice and so
has the DPP. Both have a duty to protect the administration of criminal
justice against possible abuse or misuse by the Executive. The independence of
the court requires that once the case has traveled to the court, the court and
its officers alone must have control over the case and decide what is to be
11
done in each case.
The discretion to withdraw from the prosecution is that of the DPP and
none else, and so, he/she cannot surrender it to someone else. The
Government may suggest to the DPP that he/she may withdraw from the
prosecution but none can compel him/her to do so.
The Constitution clothes him/her with autonomy:
In the exercise of the functions conferred on him or her by the Constitution, the
Director of Public Prosecutions shall not be subject to the direction or control of
any person or authority.12
7 Section 121 Magistrates Court Act section 134 Trial on Indictment Act.
10 Rajender Kumar Jain v State (1980) 3 SCC 435.
11 Ibid see 1980 SCC (Cri) 757 at 767 1980 Cri LJ 1084.
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Trial Procedure 267
In sum therefore, the Director of Public Prosecutions is an officer of the court

and is accountable and responsible to court.
The discretion vested in the Director of Public Prosecutions is neither
absolute nor reviewable but it is subject to the courts supervisory functions.
Since the decision to withdraw is an executive function, it would be subject
to judicial review on certain grounds. The major consideration which is
implicit in the grant of the power to withdraw from prosecution is that it
should be in the interest of the administration of justice. This is wholly
premised on the fact that the Director of Public Prosecutions will not be able
to produce sufficient evidence to sustain the charge or that subsequent
information before the prosecuting agency would falsify the prosecution
evidence or any other similar circumstance which it is difficult to predict as
they are dependent entirely on the facts and circumstances of each case.
When the Director of Public Prosecutions does not take an independent
decision to withdraw from the prosecution but blindly follows the
government’s instructions the result would be disastrous not only for the
accused but also for the administration of justice.
The court must consent to the withdraw of the prosecution this is the basic
safeguard to the complainant whose interests are being compromised by the
DPP.
The court may accord consent only if it is satisfied on the materials placed
before it that the grant of permission would sub-serve the administration of
justice and that the administration of justice and that the permission is not
being sought covertly with an ulterior purpose unconnected with the
vindication of the law which the executive organs are in duty-bound to
further and maintain.
However, like all judicial discretion it must not be exercised arbitrarily or
fancifully but only on sound legal principles. Consent must emerge from an
opinion formed by the court that may be connected with the case.
The court performs a supervisory role or function in granting its consent to
the withdrawal. The court’s duty is not to re-appraise the grounds which led
the DPP to request withdrawal from the prosecution, but to consider whether
the DPP applied his/her mind as a free agent, uninfluenced by irrelevant and
extraneous considerations.
The court has a special duty in this regard as it is the ultimate repository of
legislative confidence in granting or withholding its consent to withdraw from
the prosecution.
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If the view of the DPP is one which could in the circumstances be taken
by any reasonable man, the court cannot substitute its own opinion for that of
the DPP.
12.5 NON-APPEARANCE OR ABSENCE OF COMPLAINANT

If in any case which a magistrate’s court has jurisdiction to hear and
determine, the accused person appears in obedience to the summons served
upon him or her at the time and place appointed in the summons for the
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, the court shall dismiss the charge, unless for
some reason it shall think it proper to adjourn the hearing of the case until
some other date, upon such terms as it shall think fit, in which event it may,
pending such adjourned hearing, either admit the accused to bail or remand
the accused to prison, or that such security for his or her appearance as the
court shall think fit.13
The final responsibility for the conduct of criminal prosecution vests on
the state. The prosecution must ensure that the complainant is in attendance
and if he/she is absent, then the court has got the discretion to discharge the
accused.
The words ‘is absent’ indicate some sort of willful act on the part of the
prosecutor/complainant or at least, a culpable negligence in keeping himself
away from court.
Though the provision, provides that dismissal of a case hereunder must be
such that the prosecutor having had notice of the date of the case, the
appearance in court envisaged is not merely physical presence but appearance
with readiness and capacity to proceed to prosecute the case. Appearing in
court without a police file is no appearance. A prosecutor must proceed with
the case i.e. police file, report on progress made on investigations, proposed
hearing dates and possible number of witnesses. Short of these the prosecutor
would be said to be absent even if he/she is physically present.14
The discretion given to the magistrates to discharge the accused is to be
exercised judicially and not arbitrarily. He/she has to examine the facts of the
case before he/she proceeds to discharge the accused.
The order of discharge passed under this section is not one passed on the
consideration of the merits of the case, and so it shall not operate as a bar to

14 Uganda v RA 14839, Mawanda Stephen [1996] HCB 40 [1998] I KALR 35.
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Trial Procedure 269
subsequent proceedings against the accused person on account of the same

15
facts.
The object of the section is to prevent the complainant/prosecution being
dilatory in the prosecution of his/her case.
But it nowhere lays down that in all cases, where the prosecution is found
to be absent on the date of hearing, the case has to be dismissed. On the other
hand it vests discretion in the magistrate to adjourn the hearing of the case to
some other date, or to proceed with the case even if the prosecutor is not
present at the trial.
As noted earlier, prosecution is vested in the state and therefore the section
is misleading by referring to the complainant in the head note but in the body
it makes reference to prosecutor.
There may be situations, where the complainant is present in court but the
prosecutor is absent, which may be unfair to the complainant who is let down
by the prosecutor for whatever reasons he/she may have for his/her absence.
In sum therefore, the power under this section has to be used judicially and
judiciously and not in a manner that makes the remedy worse that the disease.
It is not proper to throw out a case in a hasty or thoughtless manner when the
prosecutor/complainant has proved his/her bona fides and shown
himself/herself vigilant in prosecuting the accused.
Absence of the complainant/prosecutor could be for several reasons. It
could be because he/she suddenly fell ill or met with an accident on his way
to court and could reach the court only late. It could also be that he/she
wanted to harass the accused, his enemy by dragging him/her to court
successively or it could be that he/she filed the complaint only for the devilish
pleasure of seeing his/her adversary, an apparently respectable person as an
accused in the criminal court. It could also be that he/she was not aware of
the responsibility that he owed to the court and of the waste of public time
inherent in every adjournment of the case. In all such cases, the magistrate is
expected to take stock of the whole situation before he/she uses his/her
discretion and decides the course to be followed. He/she should not view the
absence of the prosecutor as a shortcut for the disposal of the case.
It should be noted that non appearance of the complainant/prosecution is
only applicable in the magistrate’s court and any proceedings in the High
Court no such power is vested in court due to the gravity of such offences.

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12.6 DEATH OF ACCUSED

The ultimate object of the criminal proceedings against an accused person is to
determine whether he/she is guilty, and if found guilty, to punish him/her.
Therefore, if the accused dies during the pendency of such proceedings, it
is but reasonable that proceedings should abate, as their continuance after the
accused’s death will be meaningless.
This position being self-evident the legislations have not made any specific
provision regarding the abatement of criminal proceedings after the death of
the accused person before or during trial.
The prosecution can only withdraw a case of a living person. Thus a dead
person cannot be discharged. In such circumstances the case abates when an
16
accused dies. There is no specific provision in the criminal procedure law
dealing with accused persons who die before their cases are completed.
However, in case of an appeal, the law provides for abatement of an appeal
upon death of an appellant.17
12.7 SUMMARY TRIAL FOR PETTY CASES

In any case where a person is charged with an offence under the Traffic and
Road Safety Act or with any other offence under any other written law which
the Minister, after consulting the Chief Justice, has by Statutory Instrument,
declared may be dealt with under this section, if the magistrate is satisfied by
the evidence on oath that the accused has been served with a summons
relating to the offence in question then the magistrate, if the accused does not
appear on the date and at the time he or she has been summoned, may, in the
absence of the accused person, hear the evidence for the prosecution and if
satisfied that the evidence proves that the accused person committed the
18
offence with which he/she is charged convict and sentence him or her.
The object of the above provision is obviously to avoid unnecessary
trouble to accused persons who have committed petty offence and are willing
to pay the penalty.
The courts should insist upon the appearance of the accused only when it
is in his/her interest to appear or when the court feels that his/her presence is
necessary for the effective disposal of the case.
16 Msiwa v Republic [1999] 2 EA 190.

17 Section 43 Criminal Procedure Code, rule 71 of Court of Appeal Rules, rule 67 Supreme Court
Rules, Akol Patrick v Uganda [2006] HCB 4.
18 Section 125(i) Magistrates Court Act.
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Trial Procedure 271
12.8 TRIAL
A criminal trial commences when an accused is called to take his/her place in
the dock. When an accused person appears before a court for his/her trial and
while in the dock, the substance of the charge should be stated to him/her by
the court and he/she should be asked to plead to it; It is the duty of the court
to ensure that the charge is properly laid, it is also the duty of the court to
explain the charge to the accused so that he/she knows what offence he/she is
pleading to. In the High Court this part of the proceedings is referred to as
arraignment.
Where the accused appears or is brought before a magistrate at the
commencement of the trial, the magistrate must satisfy himself/herself that the
relevant provisions of the law are complied with.
Ordinary evidence at a trial in the High Court must be given in the
presence of the accused except where he/she does not conduct himself
properly.19 In a Magistrates Court unless otherwise expressly provided all the
evidence must be taken in the presence of the accused or that of his/her
20
advocate. If his/her presence has been dispensed with, it is usually taken
down in writing and, except in petty cases tried under the Magistrate Courts
Act, it must be recorded in full in the language of court and in a narrative
form21.
In sum therefore, the accused has a right to hear all the evidence both for
the prosecution and the defence. In the case of R v Suke d/o Samwe and others22
the three appellants were jointly tried and convicted for murder. During the
trial and after giving evidence in his defence, the second appellant sought leave
to call, at a later stage, a witness to testify on his behalf. The trial Judge
granted leave and instead of adjourning the case proceeded to hear the defence
for the third appellant. He convicted both the first and third appellants and
deferred sentence until the completion of the second appellant’s case. It was
held that in joint trials all the accused persons have a right to hear all the
witnesses for the defence, to cross examine them and address court on the
evidence of all such witnesses. The Court of Appeal found that the irregularity
was incurably fatal as it may in fact have occasioned a miscarriage of justice.
Accordingly, the entire proceedings were declared a nullity.
It is therefore imperative that all evidence must be taken in the presence of
the accused. Failure to do so would vitiate the trial, and the fact that no
19 Section 54 Trial on Indictments Act see article 28(3) Constitution

22 (1947) 14 EACA 134.
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objection was taken by the accused is immaterial. However, in as much as this

confers a right on the accused, it presupposes that the accused accepts it and
does not render its fulfillment an impossibility. This obligation or the right is
not so absolute in character that its requirement cannot be dispensed with
even in a case where the accused by his own conduct renders it impossible to
comply with its requirements.
To interpret the section (that requires the presence of an accused to be
present at the trial) to cast an obligation as would require the evidence to be
taken in the presence of the accused even where the accused by his/her
presence an impossibility, is to sanction a right in favour of the accused to
frustrate the trial at his or her own option.
This would not only mean negation of a fair trial but would mean end of
all trial at the choice of the accused. Such a position could never have been
intended by the provisions which require presence of the accused.
Therefore, if the accused is obstructing the smooth conduct of the trial, the
court may expel him/her after an appropriate warning and proceed with the
23
trial in his/her absence. However, the accused should be able to regain
his/her right to be present at the trial if he/she expresses bona fide willingness
to conduct himself/herself in such a manner as to allow the court to proceed
with the trial smoothly in his or her presence.
12.8.1 Duty of an Advocate

An advocate who is appointed to defend an accused person has a duty to
ensure that the client’s case is presented and conducted with scrupulous
fairness and integrity in accordance with the instructions and professional
ethics.
The duty of every advocate is to press for rational consideration of
evidence in favour of his or her client whether he or she is guilty or not or his
or her client should be acquitted if the evidence falls short of establishing the
charge against him or her. This cannot be effectively done if the evidence at
the trial is admitted without being challenged.
The reasons as to why advocates are hired on behalf of an accused person
who is charged with an offence (punishable by death) are not difficult to find.
Quite a number of people in this country have no skills in the science of law.
The majority of them are incapable of determining for themselves whether the
indictment is good or bad. They are unfamiliar with rules of evidence.
Therefore, if they are left without the aid of an advocate they may be put to

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Trial Procedure 273
trial without a proper charge and convicted upon incompetent evidence or

24
evidence irrelevant to the issues or otherwise inadmissible.
25
Counsels have a duty to conduct the defence of their clients diligently.
12.9 WITNESSES
All persons shall be competent to testify unless the court considers that they
are prevented from understanding the questions put to them, or from giving
rational answers to those questions, by tender year’s, extreme old age and
disease whether of body of mind or any other cause of the same kind.26
There is no particular number of witnesses required to prove a case.27
However, there are exceptions where in certain offences there can be no
conviction on the evidence of a single witness i.e. no person shall be
convicted of an offence under section 40 (seditions offences) on
uncorroborated testimony of one witness.28
It is the duty of the prosecution or defence to call its witnesses in support
of its case or defence.
12.9.1 Evidence to be Given on Oath

Every witness in a criminal cause or matter shall be examined upon oath and
the court before which any witness shall appear shall have full powers and
29
authority to administer the usual oath.
The Oaths Act provides for the form of oaths to be administered as set out
in the First Schedule to the Act. The ‘Evidence Oath’ reads as follows:
“I swear by Almighty God that the evidence I shall give shall be the truth the
whole truth and nothing but the truth.”30
Any witness who objects to taking an oath before giving evidence either on
ground that he or she has no religious belief or that the taking of an oath is
24 Mwanga Francis and two others v Uganda C.A. Cr.App Number 88 of 1999.
25 Kawoya Joseph v Uganda S.C.C.A 59 of 1999.
28 Section 44 Penal Code Act see also section 98, section 131(2) of Penal Code Act.
29 Section 101(1) Magistrates Court Act and section 40(ii) Trial on Indictments Act.
30 Section 3 Oaths Act.
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contrary to his/her religious belief must be permitted to make a solemn

31
affirmation to tell the truth and nothing else.
12.9.2 Witnesses Out of Court

The general rule and practice in criminal cases is that witnesses as to fact
32
should remain out of court until they are required to give evidence.
In order to ensure that a witness testifies only to facts within his/her
knowledge and is not influenced by what others have said earlier in the course
of the trial, it is obviously desirable in the interest of justice that both
prosecution and defence witnesses waiting for their turn, are asked to leave the
court while a witness is giving evidence.
33
It was held in Anywar and another v Uganda, while it is advisable that
persons whom the prosecution or defence intend to call as witness should not
be present in court till it is desired to call them, there is no rule of that which
either precedes them from giving evidence or vitiates their evidence although
the weight to be attached to such evidence is a matter for the trial court.
Apart from practice, there was no rule of law or procedure or evidence
that requires potential witnesses for either the prosecution or the defence not
to sit in court and listen to the evidence of other witnesses prior to giving
their own testimony. Though article 28(2) of the Constitution permitted a
court to exclude people from court proceedings, that power was discretionary.
The lapse that led to the presence of a witness in court while other witnesses
for the prosecution were testifying was a mere irregularity and called for the
court, in considering her evidence, to warn itself and give itself due allowance
for this fact in deciding what weight to give to her evidence.34
In sum therefore, if a witness remains in court in breach of the rule,
his/her evidence, though open to criticism on that ground, is not rendered in
35
admissible.
However, if a witness disobeys an order of court and remains in court, it
seems that he/she may be punished for contempt of court.
31 Section 101(2) Magistrates Courts Act and section 40(2) Trial on Indictments Act.
32 R v Smith [1968] 2 All ER 115.
33 (1936-51) 6 ULR 264.
34 Semande v Uganda [199] I EA 321 (SCU).
35 Moore v Registrar Lambeth County Council [1969] I All ER 782.
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Trial Procedure 275
12.9.3 Single Witness

Before court can convict on a single witness, it must satisfy itself of the
truthfulness of the witness and that there is no danger in acting on such
evidence. In the case of Abdulla Bin Wendo and another v R court held that:
“Subject to certain well known exceptions it is trite law that a fact may be proved
by the testimony of a single witness but this rule does not lessen the need for
testing with greatest care the evidence of a single witness respecting identification
especially when it is known that the conditions favouring correct identification
were difficult. In such circumstances what is needed is other evidence, whether it
be circumstantial or direct, pointing to the guilt, from which a Judge or jury can
reasonably conclude that the evidence of identification, although based on
testimony of a single witness, can safely be accepted as free from the possibility of
error.”
Usually, there are certain offences which are committed in circumstances
where the possibility of mistaken identity cannot be ruled out and the danger
of convicting on such evidence is great if the guilt of the accused is sought to
be proved by the evidence of a single witness.
The trial court must first warn itself of the danger of convicting on such
evidence. Having done so the court should not base its decision merely on
truthfulness and reliability of the witness.
The court noted that in the case of Kiwanuka and another v Uganda36 that a
witness may be truthful and yet there is still the risk of an honest mistake,
particularly in identification. In such cases it is necessary to look for some
other evidence pointing to guilt, showing that the evidence of identification is
free from the possibility of error.
The Evidence Act rightly provided that; subject provisions of any other
law in force, no particular number of witnesses shall in any case be required
37
for the proof of any fact.
A prosecutor is not required to call all the witnesses that may be available
but those that are considered sufficient to prove his/her case.
The graver the charge, the heavier the burden of proof and the
prosecution should endeavour to adduce cogent and convincing evidence to
satisfy the court about the guilt of the accused beyond any reasonable doubt.
36 [1977] HCB 1.
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12.10 ORDER OF PRODUCTION AND EXAMINATION OF

WITNESSES
The Order in which witnesses are produced and examined shall be regulated
by law and practice for the time being relating to civil and criminal procedure
respectively, and, in the absence of any such law, by the discretion of the
38
court.
The sequence of witnesses for the prosecution is very important for a
successful prosecution of the case, and usually consists of the following Order:
(a) Witnesses who can testify to events leading up to the crime;
(b) Witnesses who can tell how and when the crime was discovered;
(c) Witnesses who can testify as to the defendant’s (accused’s) whereabouts;
(d) Police officers and investigators who collected physical evidence;
(e) Criminalists, medical examiners and general experts;
(f) Background witnesses on the accused;
(g) Witnesses who can speak to the motive and possible means;
(h) Witnesses who can speak to accused’s behaviour during arrest.
12.11 CALLING WITNESSES

After opening his/her case, the prosecutor or prosecuting counsel calls his/her
witnesses. Witnesses shall be first examined-in-chief. The examination of a
witness by the party who calls him or her shall be called his/.her examination-
39
in-chief.
When a witness is called, objection may be taken to his/her competence;
and he/she may then be examined as to his/her competence before he/she is
sworn or affirmed. Once the issue of competence has been raised, it is for the
prosecution to prove that the person is competent to testify.
This may be done either by examining the witness on the voire dire, or
calling other evidence.
It is normal to take the objection when the witness is called, but there may
be cases in which the incompetence of the witness appears only in the course
of his evidence and the objection may be taken at this stage. Evidence is
admissible to show that a witness is suffering from a disease of the mind etc.
which affects the reliability of his evidence. It is upon the prosecution to call

39 Section 136(1) Evidence Act.
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Trial Procedure 277
as many witnesses as he /she wishes or as available to prove his/her case

Where there is no such objection, or if it is made and rejected, each
witness in turn takes the oath or affirmation, and is examined-in-chief, and
may be cross-examined by the adverse party (accused or his/her counsel) then
40
he/she may be re-examined by the party calling them.
12.11.1 Examination-in-Chief
This may also be known as direct examination of a witness. The prosecution
or the person calling evidence is not allowed to ask any leading questions that
is, anything which might suggest an answer (unless, the witness is called as a
41
(‘hostile witness). The objection to leading question is based on the weight
to be attached to the answers given to them, not on any basis of admissibility.
The court shall permit leading questions as to matters which are introductory
or undisputed, or which have, in its opinion been already sufficiently proved.42
The purpose of examination-in-chief is to ask simple background questions
to help introduce each witness, and allow each witness to testify what he or
she knows, seen, heard, tasted, touched, or came to from one of their senses.
What witnesses are expected to say has, of course, been determined before
hand by their statements at police, and although no one has ‘coached’ the
witnesses on how to say something, it is often the case that witnesses and the
person calling them as witnesses have rehearsed the form of questions and
answers that will take place.
It is no doubt the duty of the prosecution to examine all material witnesses
essential to the unfolding of the narrative on which the prosecution is based,
whether in the result the effect of that testimony is for or against the case for
the prosecution.
The prosecution may produce all such witnesses necessary for the proof of
its case even though they did not make statements at police.
It is not a rule of law that only witnesses who have made statements during
the course of investigations must be called as witnesses.
The general effect of non examination of a particular witness will depend
upon the facts and circumstances of each case. Incase enough number of
witnesses have been examined with regard to the actual occurrence and their

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evidence is reliable and sufficient to base the conviction of the accused

thereon, the prosecution may well decide to refrain from examining the other
witnesses.
It is as much the duty of the prosecution as of the court to ensure that full
and material facts are brought on the record so that there may be no
miscarriage of justice. The discharge of such a duty cannot be affected by the
consideration that some of the facts if brought on record would be favourable
to the accused.
12.11.2 Cross-Examination
The examination of a witness by the adverse side shall be called his/her cross-
43
examination.
The examination and cross-examination must relate to relevant facts, but
the cross-examination need not be confined to the facts to which the witness
testified on his or her examination in chief.44
45
In cross-examination, leading questions are allowed for the reason that a
witness might not be inclined to respond favourably to a lawyer from the
other side.
The court may, in its discretion permit the cross-examination of any
witness to be deferred until any other witness or witnesses have been
examined or recall any witness for further cross-examination.
Although objections could have been raised during examination-in-chief,
it is entirely possible that the first objections in the trial will come from the
prosecution who objects to the way the other side is handling one of their
witnesses.
When a witness is cross-examined, he or she may, in addition to the
questions herein before referred to, be asked any questions which tend:
(a) to test his or her veracity;
(b) to discover who he or she is and what his or her position in life; or
(c) to shake his/her credit, by injuring his or her character;
(d) although the answer to those questions may tend directly or indirectly to
46
expose him or her to a penalty or forfeiture.

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Trial Procedure 279
The adverse lawyer will usually try to impeach or discredit the prosecution’s
witness in one way of another through close observation of the witness during
47
examination in chief.
These observations will consist of looking for the following things to probe
for:
(a) the witness’s demeanour-nervousness, defensiveness;
(b) the character of the testimony- is it something they know;
(c) the extent of their ability to perceive or recollect;
(d) the opportunity they had to perceive or register the event;
(e) their character for honesty;
(f) the existence of any bias, interest or other motive;
(g) previous consistency-with other cases, in their testimonies;
(h) accuracy – if they would contradict themselves given other facts;
(i) attitude toward the case – if they want the accused found guilty.
In an effort to attain the major objectives of cross-examination, the party
conducting cross examination will use all ways and means available but it is
the duty of the counsel to provide protection to his/her witness asked to the
witness in cross examination.
12.11.3 Objections to Cross-Examination

The following are some of the particular objections which may be raised
during cross examination to protect the witness.
(a) Ambiguous, confusing misleading or unintelligible

Objection the question is confusing ambiguous vague unintelligible or
misleading.
Any of these is a proper objection to a question not posed in a clear and
precise manner so that the witness knows with certainty what information is
sought.

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(b) Argumentative
Objection – the question is argumentative.
An argumentative question is where counsel states a conclusion and then
asks the witness to argue with it, often in an attempt to get the witness to
change their mind.
(c) Asked and Answered

Objection- the question has already been asked and answered.
Lawyers will often try to emphasize a point by repeating the question that
elicited a crucial answer. Some limited repetition is allowed, but most courts
will sustain an objection if the question has been asked two or three times.
(d) Best Evidence Rule

Objection – offered exhibit fails to meet the best evidence rule.
Applies to writings, such as documents, which are not the original
writings:
that is, the best evidence. Requiring the original document insures that nothing
has been altered in any way.
(e) Calls for Conclusion

Objection – counsel’s question call for a conclusion.
Conclusions regarding the end result of reasoning flowing from a series of
facts are left to court. Normally, the witness should not draw conclusions, but
rather present facts.
However, expert witnesses present conclusions and lay witnesses are
allowed to under certain conditions.
(f) Calls for Speculation

Objection – the question calls for speculation.
Anything that invites a witness to guess is objectionable. Speculation as to
what possibly could have happened is of little probative value. Some lee way is
allowed for the witness to use their own words, and greater freedom is
allowed with expert witnesses.
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Trial Procedure 281
(g) Compound question

Objection – compound question.
A compound question asks two or more separate questions within the
framework of a single question. Generally reserved for situations if the witness
answers ‘NO’, it is confusing as to which part of the question is being
answered.
(h) Cumulative
Objection – this evidence is cumulative.
Cumulative evidence repeats evidence already introduced. It is up to the
court’s discretion when to stop production of the same evidence by one
witness after another, or the introduction of similar exhibits if no new
information is being offered.
(i) Facts stated will not be proved

Objection – facts stated will not be proven by evidence adduced at trial.
Counsel cannot allude to evidence which, though true, is incapable of
being proven at trial because of a pre-trial ruling or some other test of
admissibility.
(j) Hearsay
Objection – the question calls for hearsay.
Hearsay is a statement made by someone other than the witness testifying
and offered to prove its own truth.
There are exceptions to the hearsay rule, but it exists because second hand
statements are unreliable and cannot be tested by cross-examination
(k) Misstating the Evidence

Objection – counsel is misstating the evidence offered at trial.
While reasonable inferences may be drawn, it is objectionable if the
evidence is misstated or the testimony misquoted.
(l) Non- responsive answer

Objection – the answer is non-responsive.
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This is used when an answer does not directly answer the question. And if
the answer goes beyond the question, the excess is objectionable.
(m) Opinion by an unqualified witness

Objection – counsel’s question calls for an improper opinion.
Opinion testimony is proper only in the area of expertise or specialised
knowledge that an expert witness is qualified in.
Lay witnesses may give opinions only when their perception is helpful to
court e.g. time, distance speed, sobriety.
(n) Personal Opinion by Counsel

Objection – counsel is giving his/her personal opinion.
Any statement based on a counsel’s personal belief that something is or is
not true is strictly forbidden. Lawyers can only comment on the credibility of
a witness, the weight of the evidence, and arguments about the evidence, not
if anything is true or false. This objection is also used when a lawyer expresses
their personal opinion about the integrity of opposing counsel, the accused or
any witness. Attacks on credibility should never become personal.
(o) Personal attacks on Counsel, Accused or Witness

Objection – counsel is personally attacking (me) (accused) (witness).
This is usually reserved for cases when a lawyer acts like a bully. It is
improper to attack testimony or credibility, but personal attacks, in an effort to
vent or inflame emotions, is forbidden.48
(p) Prejudicial or Inflammatory remarks

Objection – Counsels question is solely designed to prejudice the assessors or
court. Improper statements, questions or remarks include anything devised to
appeal to the assessors or courts sympathy, passions or prejudice. For example,
it is improper for a prosecutor to say that the court has a moral obligation to
protect society from the accused or that the accused may strike back at court.
48 Section 151 Evidence Act, section 150 Evidence Act.

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Trial Procedure 283
(q) Relevance
Objection – the question calls for an irrelevant answer.
Something is irrelevant if it does not serve, by any natural pattern of
inference, to establish an issue of fact. The court is bound by efficiency and
must prevent distractions on extraneous issues that do not have a relationship
49
to the trial.
(r) Narrative called for

Objection – counsels question calls for a narrative.
This is used when there is a danger of a witness running away with their
story, or to start pounding out their testimony. There are times when a
narrative is appropriate, and better than question and answer, but in this case,
the objection is to prevent inadmissible evidence pouring out before counsel
has a chance to object.
12.11.4 Re-Examination
The examination of a witness, subsequent to the cross-examination, by the
party who called him or her, shall be called his or her re-examination.50
The re-examination shall be directed to the explanation of matters referred
to in cross-examination; and if the new matter is, by permission of court,
introduced in re-examination, the adverse party may further cross- examine
51
upon that matter.
In re-examination, the prosecution or party calling the witness will try to
rehabilitate the credibility of their witness or restore the weight of the
testimony given.
It is important to understand that with re-examination that a party cannot
keep going over old territory. They must confine the purpose of re-
examination and re-cross examination to only new or surprising issues that
came out in cross examination.
Therefore, permissible questions during cross, redirect, and re-cross must
relate solely to information gathered during examination in chief. Questions
during reexamination cannot go beyond the scope of cross examination and

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questions during re cross-examination cannot go beyond the scope of re-

examination.
12.12 POWER OF COURT TO SUMMON WITNESSES

The role of court is primarily to supervise and guide the conduct of the trial
and pronounce the verdict on whatever evidence the two sides have adduced
before it.
However, the court has a duty to ensure that full and material facts are
brought on record so that there is no miscarriage of justice. The discharge of
such a duty cannot be affected by the consideration that some of the facts if
brought on record would be favourable to either party. This position enables
court to summon any witness who might give evidence in order to ensure
that the ends of justice are met.
Section 100 provided as follows:52
Any magistrate’s court may, at any stage of any trial or other proceeding
under this Act, 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 such person if that person’s evidence appears to it essential to the
just decision of the case; but the prosecutor or the defendant’s advocate shall
have the right to cross-examine any such person, and the court shall adjourn
the case for such time, if any, as it thinks necessary to enable that cross
examination to be adequately prepared if in its opinion either party may be
prejudiced by the calling of any such person as a witness.
This power must therefore be exercised sparingly otherwise the court will
be tempted to descend into the arena.
It bears emphasis however, that the duty of course arises only if the court
has come to the conclusion that the evidence is essential to the just decision of
53
the case.
In case the court finds that the prosecution had not examined witnesses for
reasons not tenable or proper, the court may be justified in drawing an
inference adverse to the prosecution.
It is mandatory upon the court to call or recall a witness if his evidence, in
the opinion of the court, is essential to the just decision of the case. There is
no injustice in the court calling a witness to supplement a gap or at any rate a
52 Section 100 Magistrates Court Act and section 39 of Trial on Indictments Act.
53 Kulukana Otim v R [1963] EA 253.
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Trial Procedure 285
technical gap in the prosecution evidence after a submission of no case to

54
answer.
The requirement of a just decision of the case does not limit the action to
something in the interest of the accused only but equally benefits the
prosecution.
In certain cases witnesses can be recalled and the parties or the counsel
asked to pay up the cost.
What amounts to “essential to the just decision of the case” is a question of
fact depending on the peculiar circumstances of the case. But the court has to
form a bona fide opinion as to the necessity of making such an order to call
witnesses.
What is sufficient for that necessity- cannot be enumerated exhaustively or
with any precision. The paramount consideration is doing justice to the case
and not filling in the gaps in the prosecution or defence evidence.
Therefore, where the prosecution or defence fails to examine its witnesses
properly it’s requests for recalling such witnesses will not be allowed.
The trial of a criminal case comes to an end only after pronouncement of
judgment.
Therefore the court can summon and examine any witness as a court
witness at any stage till it pronounces the final judgment.
When a witness examined by the court is questioned by the parties, it
cannot strictly be said that he/she is cross-examined. For cross examination is
examination of a witness by the adverse party. When a court calls a witness
he/she does not become a witness called by any party to the litigation.
12.13 ADJOURNMENT
An important aspect of fair trial is the expeditious conduct of trial proceedings.
The Constitution specifically provided for a speedy hearing in determination
of any criminal charge.55
The Constitution further provides that:56
Every person who is charged with a criminal offence shall; be given adequate
time and facilities for the preparation of his or her defence.
54 Eriezari Mungono v R [1959] EA 177.

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As it can be deduced from the above provision, an adjournment is granted to

the parties to enable them prepare and present their cases in court. However,
an adjournment may be refused if good reasons are not given by the party
seeking to have it.
It should be noted that a protracted trial punctuated with a number of
adjournments could easily make it difficult for a trial court, when it comes to
judgment, to recall its impressions as to the credibility of witnesses who have
testified before it. Equally, the accused might be hampered in his/her defence
by his failure to properly cross examine prosecution witness whose testimony
might not remember due to lapse of memory.
Before or during the hearing of any case, the court may adjourn the
hearing if sufficient cause is shown, on due application made in open court for
the adjournment; but when the hearing of evidence has first begun the trial
shall be continued from day –to-day until the trial is concluded, unless the
trial beyond the following day to be necessary for reasons to be recorded.57
This provision gives a clear direction to every court in charge of criminal
proceedings to conduct the same as expeditiously as possible. It further directs
in particular that when the examination of witnesses has once begun, the same
shall be continued from day-to-day until all the witnesses in attendance have
been examined. However, if the court considers it necessary to adjourn the
case, it can do so after recording reasons for the same.
The section does not provide any remedy or sanction if the general or
particular direction is not followed by the courts.
The rationale for such a provision is that once the cognizance of the
accusations of a criminal nature is taken by the competent court, the trial has
to be held with all expedition so as to bring to book the guilty and absolve the
innocent. This has to be achieved with speed and without loss of time in the
interest of public justice.
The basis object is to avoid loss of evidence by passage of time and
unnecessary harassment to the accused.
It is a known fact that if the prosecution is kept pending for an indefinite
or for a long time, important evidence may be obliterated by mere lapse of
time with the result that the evidence would not be available at the time of
the trial as key witnesses may have moved away from the jurisdiction of court.
57 Section 122(1) Magistrates Court Act, section 53 Trial on Indictments Act.

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Trial Procedure 287
There are, however, several good reasons why the court might find it
necessary to adjourn a trial, especially where it is at the request of an accused
person.
Where an adjournment is sought by an accused on the ground that he or
she has briefed an advocate to defend him/her the court ought to grant an
adjournment.
58
In the case Mugema v R, the magistrate refused to grant an adjournment at
the request of one of the accused to enable his advocate to defend him shortly
after the close of the prosecution case thereby forcing the accused to give his
evidence undefended. On appeal it was held that the refusal was improper
despite the fact that the accused had the opportunity of cross-examining the
witnesses.
Under this section for adjournment, the court has power to impose such
terms as it thinks fit on either party while granting an adjournment or
postponement at its instance.
The adjournment can be for such time as the court considers reasonable for
matters before the high court.
What is reasonable time in a given case will depend upon the facts and
circumstances of the case. However in case of matters before a magistrate
court an adjournment shall not before more than thirty (30) clear days or if
the accused person has been committed to prison or other place of security,
for more than fifteen (15) clear days.
This seems to be a check on magistrate although there is no such inhibition
on cases before the High Court. Therefore any order of remand for more than
15 days becomes illegal and bad on expiry of 15 days.
The court can pass on order of remand even if the accused is not present in
court. Courts may find it necessary to order a remand in absence of the
accused, when an accused is so seriously ill that the trial has to be adjourned
and he cannot be brought to court and in such case the order made without
production of the accused will not be invalid.
In a criminal trial, adjournment should not be granted sine die. In Uganda v
Badrudin Adatia,59 the prosecutor applied for an adjournment sine die on the
ground that the principal witness had gone to India for a specialist treatment
and the date of his return was unknown. The application was granted by the
trial court on the terms asked for. Exercising its revisional powers the High
58 [1967] EA 676 see also Seremosi Rwamukaaga v Uganda [1998] V KALR 61.
59 M.B. 128/71.
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Court held that there was no provision in law for an adjournment sine die:
obviously, because it would be monstrous to hold a charge above an accused’s
head indefinitely.
In sum therefore, although the decision to grant or not to grant
adjournment is discretionary, the discretion must be exercised judicially and
not arbitrary and court has to take into account the interest of both the
accused and the prosecution.
60
In the case of Wavamuno v Uganda the Supreme Court noted that:
The trial Judge had exercised her discretion in refusing the appellant further
adjournments to call his witness. Such discretion would only be interfered with if
there had been a failure to exercise it judicially and it was not sufficient that other
members of the court would have exercised the discretion differently.
The appellant had been given sufficient time to call his witnesses and the
failure to grant him an adjournment did not occasion a failure of justice.
12.14 CLOSE OF PROSECUTION CASE

When counsel for the prosecution or prosecutor has called all his witnesses or
failed to call all his witnesses within the time granted by court, then the
prosecution is entitled to close its case in the interest of justice.61
It is a general principal of practice, though not of a rule of law, that all
evidentiary matter then available, on which it is intended to rely as probative
of the guilty of the accused, should be adduced before the close of the
prosecution case.
It is a matter for the discretion of the trial court whether evidence which
subsequently becomes available to the prosecution should be introduced at any
later stage.
It is just standard practice for the defence to move for an immediate
dismissal. This is to give the impression that the state lacks sufficient evidence.
The defence may be full well that the assertion that the evidence was
inadequate, but it also reinforces the idea that the defence did some damage
during cross-examination.
However, where the prosecution cannot proceed because of absence of
witnesses who though summoned, have not attended, the proper course is
60 [2001] 2 EA 608 (SCU).

61 Uganda v Milenge and another [1970] EA 269, Uganda v Okot [1974] EA 8.
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Trial Procedure 289
either to grant an adjournment or dismiss the charge unheard but not to close
the prosecution case unless some witnesses have already testified.
12.15 NO CASE TO ANSWER

At the close of the case for the prosecution the accused, or if he/she is
represented, his/her counsel, may submit that there is ‘no case to answer’ or
‘no prima facie case’. It is rare that the accused will venture to make such a
submission of no case to answer.
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 person sufficiently to
require him or her to make a defence, the court shall dismiss the case and shall
62
forthwith acquit him or her.
63
Similarly the Trial on Indictment Act also provides:
When the evidence of the witnesses for the prosecution has been concluded, and
the statement or evidence, if any, of the accused person before the committing
court has been given in evidence, the court, if it considers that there is no
sufficient evidence that the accused or any one of several accused committed the
offence, shall, after hearing the advocates for the prosecution and for the defence,
record a finding of not guilty.
In the case of Uganda v Alfred Ateu court noted that:64
The principles upon which a submission that there is no case to answer may
properly be made and upheld were well stated by Lord Parker C.J in Practice
Note [1962] 1 All ER 448 as follows:
(a) when there has been no evidence to establish an essential ingredient of
alleged offence
(b) when the prosecution evidence has been so discredited as a result of cross
examination or is so manifestly unreliable that no reasonable tribunal can
safely convict on it.
Therefore, it must be emphasized that when the court considers that there is
no sufficient evidence to require the accused to defend himself/herself, the
decision of court must be to dismiss the case and acquit the accused because
he/she has no case to answer.
The submission is properly made and may be upheld if there is no
evidence to prove that the crime has been committed by the accused or where
62 Section 127 Magistrates Court Act.

64 [1974] HCB 179.
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there is some evidence but it is of a tenuous character and, taken at its highest,
it is such that a court properly directing its mind could not convict on it. Thus
the court will find that there is no case to answer if there is in sufficiently
cogent evidence to require the defence to present its case.
In criminal cases, the onus is on the prosecution to prove its case beyond
reasonable doubt when all the evidence has been heard. At the time of the
submission of no case to answer, however, the prosecution need not have
proved their case beyond reasonable doubt to prevent the submission being
accepted.
They must merely prove a prima facie case in order to put the accused to
his/her defence.65 The question for court is whether, in respect of every
element of the offence charged there is some evidence which, if accepted,
would either prove the element directly or enable its existence to be inferred.
A prima facie case cannot be one that merely might possibly be sufficient to
sustain a conviction. A mere scintilla of evidence could not suffice; nor could
any amount of discredited evidence.
Therefore a prima facie case must mean one where a reasonable tribunal,
properly directing its mind to the law and evidence could convict if no
66
explanation is offered by the defence.
It is a right of the defence to move court on a motion of no case to
answer. Where the defence chooses not to make the submission of no case to
answer, it does not preclude the trial court to rule that there is a case to
67
answer or not.
There is a duty cast on the court not to wait for a submission of ‘no case’.
The court has a duty to consider and decide whether there is sufficient
evidence that the accused committed the offence before calling for his/her
defence.68
The evidence adduced by the prosecution must of the type that can sustain
69
a conviction.
When the defence makes a submission of no case to answer, the trial court
is not entitled to rule or find that the prosecution had proved its case beyond
65 Criminal Revision [1981] HCB 7.

66 Ramanlal Trammbaklal Bhatt v R [1957] EA 332, Uganda v Manuel Okethi [1992-1993] HCB 63.
67 Fred Sabahashi v Uganda [SCCA 23 of 1993 [1994] V KALR, 127 1977], Teopista Tusingwire and
Another v Uganda [1996] VI KALR 75.
68 Esparito Wasswa v Uganda [1977] HCB 299, Oduol v R [1969] EA 373.
69 Uganda v Manuel Okethi [1992-1993] HCB 63.
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Trial Procedure 291
reasonable doubt while rejecting the submission of no case to answer but

rather that a prima facie case has been made out.
This may be prejudicial to the accused since he/she may believe that the
court has formed an opinion that the accused is already guilty before hearing
his/her defence.70
Where the court decides not to uphold the submission of no case to
answer it should not express any opinion, other than by way of generality
upon the evidence already adduced.
It is the duty of the court to consider the submission of no case to answer
in general terms, paying particular attention to any point of law raised and
argued. The court is not expected at this stage to express any opinion, or to
make any finding, on the evidence of the prosecution unless intended to
uphold the submission. Where it is intended to reject the submission, the
usual practice was to express the ruling in general terms and to give reasons at
the conclusion of the trial.
Where a prima facie case is found or made out, it is correct not to give any
reasons in order to avoid prejudicing the final judgment or pre-judging issues
without having heard all the evidence.
In the case of Benjamin Kiviri v Uganda71 Sir Udo Udoma CJ stated that
where the court was of the view that a prima facie case had been made out by
the prosecution and defence intended to call evidence, it was usual to reserve
detailed reasons for over-ruling the submission of no case to answer and set
out such reasons in detail in the Judgment.
Where the court upholds the submission of no case to answer, it must give
reasons in detail for such decision, this acts as a final ruling of court which is
appealable to the appellate court.
The ruling should embrace as in case of Judgment, the points for
determination, the decision thereon and the reasons and any relevant law and
authority referred to (if any).
If a submission is made to many several counts and is upheld in respect of a
particular count, it is the duty of the court to direct a verdict of not guilty on
that count, even though there is no formal verdict is taken there and then, the
accused has succeeded on one of several counts is to be treated during the rest
72
of the trial as being no longer charged on that count.
70 Ali Fadhul v Uganda SCCA Number 30 of 1989 [1994] III KALR 6.

71 MB 134/67.
72 R v Plain [1967] 1 All ER 614.
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Where at the close of the prosecution case there is no evidence to warrant

a conviction, but no submission is made as to whether or not there is no case
to answer, the court may still convict if what was wanting in the prosecution
case is supplied by evidence adduced by the defence, and this is so whether
the accused was represented or not.
If an accused incriminates himself he may be committed for trial or
convicted as the case may be, even though the evidence at the close of the
73
prosecution was insufficient to warrant a conviction.
In addition, whereas according to the evidence on record after the
prosecution evidence, there might have been no case to answer but
nevertheless the trial court rules that there is a case to answer and the defence
presents its evidence which only affords to strengthen the prosecution case,
the trial court is entitled to act on the evidence as a whole including that of
the defence to convict the accused.
In the case of Teopista Tusingwire and another v Uganda,74 the prosecution
had not made out a prima facie case on the original charge of the offence of
attempted murder. However, when the trial court ruled that there was a case
to answer, and indeed the appellants presented the evidence which showed
that they had indeed burnt the complainant, the court was entitled to treat the
evidence as a whole and find that in fact an indictable offence had been
committed.
12.15.1 Where an Accused brings his/her own Conviction

In the course of a trial, it can sometimes happen that the accused is
erroneously put on his/her defence and, if in his/her defence he/she
incriminates himself/herself, the court will perfectly be entitled to convict
him/her solely on his or her evidence if it is sufficient.
Where at the close of the prosecution case there is no evidence to support
a case to answer and no submission is made to effect, the court may still
convict if what was wanting in the prosecution case is supplied by evidence
adduced by the defence.
Where an accused has been put on his own defence and by his own
evidence has brought about his own conviction, an appellate court will set
73 R v Kinanda (1939) 6 EACA 105, Karioki v R (1934) 1 EACA 160, Patel v R (1951) 18 EACA
contrast Murimi v R [1967] EA 542 court wrongly called a witness to establish a prima facie case
74 [1996] VI KALR 75.
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aside the conviction solely on the ground that the trial court should have held
75
that there was no case to answer.
Similarly, in the case of Murimi v R,76 the appellant was wrongly put on his
defence because no prima facie case was made out against him warranting his
being put on his defence. The Court of Appeal held that it would consider the
whole evidence adduced at the trial and will not reverse a conviction on
account of any error unless it has occasioned a failure of justice.
If a submission of no case is wrongly rejected by the trial court, the
appellant court will not look at evidence adduced subsequently in order to
support a conviction for that particular offence.77
12.16 DEFENCE CASE

When court finds that the accused has a case to answer, it is for the accused, if
he/she wishes to give evidence.
Where an accused is unrepresented, the trial court ought to inform the
accused of his/her right to give evidence on his or her own benefit or to
remain silent, and of his right to call witnesses in his/her own defence.
At the close of the evidence in support of the charge, if it appears to the
court that a case is made out against the accused person sufficiently to require
him or her to make a defence, the court shall again explain the substance of
the charge to the accused, and shall inform him or her that he or she has the
right to give evidence on oath from the witness box and that, if he or she does
so, he or she will be liable to cross-examination, or to make a statement not
on oath from the dock and shall ask the accused whether he or she has any
witnesses to examine or other evidence to adduce in his or her defence; and
the court shall then hear the accused and his or her witnesses and other
evidence.78
1216.1 Accused Remains Silent

The accused is at liberty not to give any evidence before court and remain
silent in his/her defence by not making a defence.79 In such circumstances the
75 Rama Ohani v R [1962] EA 686.

76 [1963] EA 542.
77 R v Abbo H [1955] 2 QB 497.
78 Section 128(1) Magistrates Courts Act section 73(2) Trial on Indictments Act.
79 Uganda v Baitwababu [1981] HCB 7, Uganda v Kizza Besigye High Court Criminal session Number
149 of 2005 [2006] HCB 12 Accused elected not to say anything by way of his defence or to call
witnesses.
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trial court must proceed to evaluate the evidence of the prosecution as a

whole and if satisfied on that evidence that the prosecution has proved its case
against the accused beyond reasonable doubt he then should go on to convict
the accused.80
Failure of the accused to give evidence shall not be made the subject of any
comment by any of the parties or the court or give rise to any presumption
81
against himself and other co-accused.
Where prosecution has found a case to answer, it is advisable that the
accused must make a statement in rebuttal otherwise he/she stands to be
convicted in absence of any explanation.
12.16.2 Accused as a Witness

An accused person is a competent witness in his/her criminal case. The
Magistrate’s Courts Act provides that:82
Every person charged with an offence shall be a competent witness for the
defence at every stage of the proceedings, whether the person so charged is
charged solely or jointly with any other person except that:
(a) a person so charged shall not be called as a witness in pursuance of this
section except upon his or her own application.
It is also not clear as to what is the scope of the cross examination of the
accused when he/she offers himself or herself as witness. Can questions
regarding his/her character or impeaching his/her credit be put in cross-
examination or to what extent can he/she be questioned in respect of previous
convictions.
In criminal proceedings an accused giving evidence may be asked any
question in cross-examination that would tend to incriminate him or her as to
83
the offence with which he/she is charged.
The accused can only avoid the rigours of cross examination by giving an
unsworn evidence but when he/she gets in the witness box/dock as a witness
in defence, he/she is in the same position as ordinary witness and is therefore
subject to cross examination by the prosecution and evidence brought out in
such cross-examination can be used against his/her co-accused.
80 Ibid.
81 Section 110(b) Magistrates Courts Act.
82 Section 110(a).
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Trial Procedure 295
Where such a witness incriminates his/her co-accused, the other accused

jointly tried with him has the right to cross examine him/her if he/she wants
to do so.
Where the only witness to the facts of the case called by the defence is the
person charged, he/she must be called as a witness immediately after the close
84
of the evidence for the prosecution.
If at the trial of any person for an offence the defence intends to call two or
more witnesses to the facts of the case, and those witnesses include the
accused, the accused must be called before the other witness or witnesses85
unless the court in its discretion otherwise directs.
In any case where there is more than one accused person the court may
either hear each accused person and his/her witnesses, if any in turn or may, if
86
it appears more convenient, hear all their witnesses.
Where there are more accused persons, they may cross examine and give
evidence in the order in which their names appear on the indictment, or in
any other order which the trial court thinks proper.
12.16.3 Court’s Power and Duty to Examine the Accused

The court is under an obligation to render necessary assistance in presenting its
evidence and give an accused an opportunity to explain the circumstances
appearing in evidence against him/her.
This is especially so where the accused person is not represented by a
lawyer. It should be remembered that most of the accused persons are poor,
uneducated and helpless.
Usually an ignorant uneducated person has the greatest possible difficult in
collecting his/her ideas, and seeing the bearing of facts alleged.
He/she is utterly unaccustomed to sustained attention or systematic
thought and the criminal trial proceedings which to an experienced person
appear plain and simple, must be passing before the eyes and mind of the
accused like a dream which he/she cannot grasp.
It therefore requires the courts to question the accused properly and fairly
so that it is brought home to the accused in clear words, the exact case that

85 R v Ezeberi Ekolit and others (1948) 15 EACA 63.
86 Section 128(2) Magistrates Courts Act, section 74(2) Trial on Indictments Act.
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the accused will have to meet, and thereby an opportunity is given to the
accused to explain such point.
This power or duty to examine an accused should not be regarded as
authorizing an inquisitorial interrogation of the accused nor is it necessary to
put each and every piece of evidence to him/her.
It is not intended to enable the court to cross-examine the accused for the
purpose of trapping him/her or beguiling him/her into an admission of a fact
which the prosecution has failed to establish.
The accused person usually do not have a summary of the evidence given
for the prosecution, the courts are expected to take care to put all the relevant
material circumstances appearing in evidence to the accused so as to enable
him/her to say in his/her defence what he/she wants in respect of the
prosecution case and explain any circumstances appearing in evidence against
him/her.
It is not sufficient to generally ask the accused that, having heard the
prosecution evidence what he/she has to say about it. The accused must be
questioned separately about each material circumstance which appears against
him/her.
While examining the accused, every incriminating circumstance appearing
from the prosecution evidence must be put to the accused. It is, however,
open to the prosecution to invite the attention of the court, if any
incriminating circumstance is left out and not put to the accused.
12.16.4 Accused Person’s Right to give Unsworn Evidence

Where a person is being tried for a criminal offence neither that person nor the
spouse of that person shall be compelled to give evidence against that person.87
This is one of the cardinal principles of a fair trial and the accused should be
made to understand this right. Therefore the witness can only give evidence
without incriminating himself/herself by giving unsworn evidence, which will
not be subject to cross-examination.
However, the court has power to ask the accused questions
notwithstanding that he/she has made an unsworn statement.
88
The Evidence Act provides that:

88 Section 164 Evidence Act, Cheruiyot v R [1976-1985] EA 47.
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Trial Procedure 297
The Judge may, in order to discover or to obtain proof of relevant facts, ask any
question he or she pleases, in any form, at any time, of any witness, or of the
parties about any fact relevant or irrelevant; and may order the production of any
document or thing; and neither the parties nor their agents shall be entitled to
make any objection to any such question or order, nor without leave of the
court, to cross examine any witness upon any answer given in reply to any such
question; but:
(a) the judgment must be based upon facts declared by this Act to be relevant,
and duly proved;
(b) this section shall not authorize any Judge to compel any witness to answer
any question, or to produce any document which that witness would be
entitled to refuse to answer or produce under sections 119 to 130, both
inclusive, if the questions were asked or the documents were called for by
the adverse party; nor shall the Judge ask any question which it would be
improper for any other person to ask under sections 147 to 148; nor shall
he or she dispense with primary evidence of any document, except in case
hereinbefore excepted.
No questions should be asked of an accused person who has not given
evidence on oath unless for the purpose of explaining or clarifying something
89
obscure or ambiguous in his unsworn statement.
The option for an accused person not to give evidence under oath should
not lead to an influence of guilt.
What is not clear from this right as enshrined in the Constitution is
whether a spouse can also give unsworn evidence in favour of a partner.
The major reason would be that once such spouse gets in the witness box
he/she will be cross-examined and he/she is duty bound to answer questions
which would incriminate the spouse in this process.
The court may inform the accused that evidence on oath may carry more
weight than unsworn statement. However, there is no justification for telling
the accused that an adverse inference may be drawn from electing to make
unsworn statement. To say that guilty knowledge can be inferred from such a
step is a grave misdirection which would be fatal to the conviction.90
Such an inference would prejudice the accused’s free will to choose the
course of defence he/she considers suitable in the circumstances. In fact it is
not necessary to an accused person’s advantage in every case to give evidence
under oath.
89 R v Pirman bin Kunjanga (1935) EACA 64.

90 Wilson s/o Mbaza v R [1961] EA 274.
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What would otherwise be a weak prosecution case could be strengthened

for a conviction as a result of searching and vigorous cross-examination of the
accused by the prosecution should he or she elect to give sworn testimony.
In the case of Lubogo and others v Uganda91 the trial Judge had remarked in
his judgment that one of the accused persons had not given evidence but had
contented himself with making an unsworn statement and that although the
two had called witnesses they dared not themselves give evidence, it was held
that in assessing the evidence in order to arrive at its verdict a court has a right
to comment on and can take into account the fact that an accused person has
given evidence on oath, but this must be exercised with great caution and
must not be used to bolster up a weak prosecution case or be taken as
admission of guilt on the part of the accused. The use of phrases such as
“dared not give evidence” or “refused to give evidence” obviously implied a
duty on the part of the accused to give evidence and his failure to do so would
mean he is the guilty party and has something to hide such a proposition
would be contrary to the presumption of innocence.
It bears emphasis however, that where an accused person elects to make an
unsworn statement he/she must do so before calling his/her witness. The
reason for this is that his unsworn statement will carry more weight if
supported by the sworn evidence of witnesses who will not have heard it then
if it were made after he has listened to such evidence.92
Where there are several accused persons tried together or jointly and each
desire to give evidence, the better practice is that their evidence should be
93
taken in turn before the witnesses are called.
94
In the case of Shama and another v Uganda the Supreme Court noted
Obiter:
Where an accused person chooses not to give sworn evidence, it is absolutely
wrong to allow the accused person to be led by his/her counsel while making of
unsworn statement.
91 [1967] EA 440 R v Mutch [1973] 1 All ER 178.

92 Andiazi and other v Republic [1967] EA 813.
93 R v Ezeberi Ekolit and others (1948) 15 EACA 63.
94 [2002] 2 EA 589 (SCU).
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Trial Procedure 299
12.17 DEFENCE WITNESSES

After the accused has given evidence, or forthwith, if he/she does not
himself/herself give evidence, the witnesses for the defence are called and
examined; they may be cross-examined by the prosecutor. The witnesses for
the defence shall be examined in the prosecution witnesses.
The defence witnesses should always be lined-up in the following order:
1. Witnesses who can attack police handling of the evidence.
2. Expert witnesses who can counter the prosecution’s evidence.
3. Witnesses who can make the accused look good/good character.
4. Witnesses who can shed light on alternative theories.
This strategy of lining up witnesses in the above order will assist the defence in
making out a case and casting reasonable doubt.
Where two or more accused are tried together, and one calls a witness
whose evidence may affect another accused, that other may cross-examine the
witness.
95
Every person who is charged with a criminal offence shall be afforded facilities to
examine witnesses and to obtain the attendance of other witnesses before the
court.
In light of the above provision which is part of the right to a fair trial, the
court is under a duty to assist the accused person who may not know the
process of calling evidence and who may still be in prison and cause the
attendance of the accused’s witnesses.96
If the accused applies for the issue of any process for compelling the
attendance of any witness or the production of any document or thing, the
court shall issue process (witness summons) unless court considers for reasons
to be recorded, that any such application should be refused on the ground that
it is delaying the ends of justice.
The accused is entitled to have his/her defence, however improbable it
may appear, put on record without so much unnecessary interruptions from
court.
95 Article 28(3)(g) Constitution

96 Sections 94 -97 Magistrates Courts Act, sections 33 -38 Trial on Indictments Act, section 75 Trial
on Indictments Act, witnesses for the defence must only be those who were mentioned and named
during the committal proceedings before magistrate.
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12.18 SUBMISSIONS
After the prosecution and the defence have closed their cases the law permits
them to make a final address through submissions.
At the close of the accused person’s case, the accused person shall be
entitled to address the court, and the prosecutor shall then be entitled to reply;
but if the accused person adduces no evidence or no evidence other than
evidence given by himself or herself, the accused shall subject to section
97
112(3), entitled to the right of reply.
The above provision is not clear on the mode of addressing court after the
close of the evidence has been given i.e. whether it may be inform of oral
arguments or written submissions.
In practice, counsels for the defendant apply to court to allow them file
written submissions. This is considered necessary and desirable as it would
enable the counsel to present his/her arguments cogently and to ensure that
the court considers all the arguments advanced by him or her.
However, in the High Court, this practice has not been used and lawyers
always make oral arguments in open court.
98
In the Kenya case of Ahkuya v Republic the trial court (magistrate) directed
that the prosecution and defence file written submissions at the court registry.
On the final appeal to Court of Appeal, it noted that submissions are part of
trial procedure. Further it held that final submissions in criminal trials must be
made orally in open court in the presence of the accused.
It is a rule of practice for the trial Judge to record submissions of counsel
and when counsel’s submission raises issue of law and fact and the trial Judge
does not consider the issues in his judgment, and then such an omission is
relevant to the merits of an appeal. However in this case since the submission
of counsel were made and closed in the morning and the judgment delivered
3 hours later, it means that the submissions were fresh in the mind of the
Judge when he was writing judgment. Therefore the omission to record the
submissions did not occasion a miscarriage of justice.99

98 [2002] 2 EA 322 (CAK).
99 Jackson Zita v Uganda SCCR.A 19/95 [1996] IV KALR 61.
CHAPTER THIRTEEN
ASSESSORS
13.1 INTRODUCTION
All trials before the High Court must be with the aid of assessors, whose
number must be two or more.1
13.1.1 Definition
Assessors are lay persons selected in the locality of Chief Magistrates.
An assessor is also understood to refer to:
“a person usually an expert in the subject matter under consideration who sits
2
with the Judge and assists him from his special knowledge.”
Trial with the aid of assessors is a substitute of trial by jury. Therefore, in order
to understand the role of assessors in Uganda, reference to the history of trial
by jury in England is necessary.
In United Kingdom, the practice of trial by jury was conceived as a
bulwark serving to protect the accused individual against oppressive executive
action and rigid legal forms, elements which are unacceptable to current
3
general opinion.
During colonialism, the introduction of trial by jury proved unsuitable
because of the heterogeneous nature of Uganda and lack of common lingua
franca.
In 1902, the East Africa Order–in Council introduced the current legal
order. This order provided inter-alia that:
“In all cases civil and criminal to which natives are parties every court:
(a) Shall be guided by the native law so long as it is applicable and is not
repugnant to justice and morality or inconsistent with any orders in
1 Section 3 Trial on Indictments Act, Rex v Yowasi (1939) 6 EACA 126 A High Court decision
without assessors will be reduced to a nullity.
2 A EW Park in his treatise sources of Nigerian Law at 8.
3 Morris and Read. Indirect Rule and the Search for Justice Oxford Clarendon Press 1972 page 322.
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council or ordinances or any regulation or rule made under any order in

council or ordinance.
(b) And shall decide all such cases according to substantial justice without
undue regard to technicalities or procedure and without delay.
The use of assessors was introduced in the colonies through India as one of the
leading former colonies.
The role of assessors was that of expert witnesses in assisting a trial Judge in
customary laws because the judicial officers then where of English origin and
did not know the customs and ways of life of the Africans.
The position as to the role of the assessors in India was succinctly put by an
4
Indian Judge in King Emperor v Tirumali Redd; when he noted at pages 543
and 544:
“But in my opinion, assessors are analogous to expert witness and in principle the
opinion of an assessor is substantially on the same footing as the opinion of expert
witness …
Thus it will be seen that provision was made by the legislature for Europeans
administering justice in foreign land and therefore deficient in their knowledge of
the customs and habits of the parties and witnesses appearing before them, and
also deficient in judging their demeanour in the witness box, having the benefit
of the opinion of two or more respectable natives of the land as assessors
possessing such knowledge and judgment.
Such being the principle underlying the institution of assessors in India …
the opinion of an assessor given upon the whole case tried before a court of
session or any portion of such case is, in principle, on the same footing as the
opinion evidence of a person especially skilled in foreign law, science and art”.
The assessor system was introduced as a substitute for the more rigorous
system of the jury. Following the failure of this system in the colonies of
British West Africa, it was found necessary to introduce a system benefiting
the Africans. The system had worked in the British India and it was
meticulously argued that there was no reason why the system could not work
5
among the natives or Africa.
6
This was best illustrated in the case of Benjamin Pande s/o Mawuku v R. In
the course of a murder trial an assessor drew the attention of the trial Judge to
4 24 Madras 523 as quoted by FJ Ayume, Criminal Procedure and Law in Uganda, LawAfrica
Publishing, 2010, page 129.
5 Dr. PLO Lumumba; A Handbook Criminal Procedure in Kenya, LawAfrica Publishing, 2008 at page
114.
6 (1951) 18 EACA 263.
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Assessors 303
a Teso native custom that blood stained rags of a wife could not be placed on
the man’s shorts contrary to the Teso tribal custom.
7
The Court of Appeal cited the case of Mutwiwas s/o Mangi v R with
approval in which the court held that one of the objects in having assessors
was to assist the court on questions which might arise as to the law or customs
of any tribe, caste, or community. The court further pointed out that
provision was made by the legislature for Europeans administering justice i.e.
judges in a foreign land whereas there was deficiency in their knowledge of
the customs and habits of the parties and witnesses appearing before them and
were hence deficient in judging the demeanor of the witness in the witnesses
box. It was thus necessary for them to be assisted by native assessors possessing
such knowledge and judgment as a safeguard to the natives accused of crime
and a guarantee that their own customs and habits of life which were alien to
8
colonial judges were misunderstood.
In addition, the introduction of the system of assessors was clearly political.
9
In the case of M. Dhalamini and others v The King. The Privy Council ruled
that the institution of assessors, apart from assisting the judge, was intended to
operate as a safeguard to natives accused of crime and also as a guarantee to the
native population that their customs and habits of life were not
misunderstood.
The system of assessors as it existed during the colonial period was part and
parcel of the British colony policy of indirect rule.
The practice was fully in operation in the Buganda Kingdom despite the
10
fact that the Kabaka of Buganda had his own courts.
The assessor system was retained even after the attainment of independence
and still forms part of the criminal justice system in Uganda.
13.2 IMPORTANCE OF ASSESSORS

Apart from assisting the trial Judge in their historical role as expert witnesses in
customary law and local ways, they may also assist the trial Judge in the
assessment of demeanuor of the witnesses.
The Constitution of Uganda provides that:11
7 (1935) 2 EACA 66.

8 Mahlikilili Dhalamini v The King [1942] AC 583.
9 [1942] AC 583.
10 BKM Kiwanuka v Yosefu Waswa [1959] EA 533.
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Judicial power is derived from the people and shall be exercised by the courts
established under this Constitution in the name of the people and in conformity
with law and with the values, norms and aspirations of the people.
The use of assessors in criminal trials in the High Court is aimed at achieving
the objectives of the Constitution of applying the law with the values, norms
and aspirations of the people.
The institution of assessors gives the ordinary members of the public a
share in the running of the government. It also provides an opportunity for
the members of the public to learn the law and therefore it creates the respect
for it which is essential in the maintenance of law and order.
Parliament has been enjoined by the Constitution to make law providing
12
for participation of the people in the administration of justice by the courts.
The existing law on assessors has already assisted parliament in ensuring the
participation of the people in the administration of justice by the courts. The
ends of justice shall only be conveniently arrived at if the role of assessors is
taken seriously.
Lastly, the use of assessors should be encouraged in all magistrates’ courts as
one way of involving members of the public in the administration of justice
which in turn will be educative. This will assist in the development of the law
in compliance with the aspirations of the Uganda public and will reduce the
degree of its ignorance.
However, the importance of assessors has greatly waned in the criminal
trial. It changed from the pre-independence period when the colonialists were
trying to integrate our customs and customary law in the criminal justice
system. Above all the assessors came in handy to assist the judicial officials’-
judges and magistrates who did not have African background knowledge
about our customs. After 40 years since we got independence do the assessors
have any role to play in the criminal justice system or should it be improved
in its application.
The role of assessors has been underscored by the judges who disregard
their opinion and proceed on the basis that the opinion of assessors is not
binding on them.
The contradiction underlying the assessors system is only a reflection of the
inherent flaws in the entire criminal justice system as adopted from the
colonial government.

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Assessors 305
13.3 SELECTION OF ASSESSORS

All citizens of Uganda between the ages of twenty one and sixty, who are able
to understand the language of the court with a degree of proficiency sufficient
to be able to follow the proceedings shall be liable to serve as assessors at any
trial held before the High Court.13
Assessors are lay persons selected in the locality of the Chief Magistrate and
14
must be able to follow with a degree of proficiency the English language.
They must be persons of integrity and good reputation since they are
representative of society in court.
The fact that assessors should be common people is aptly demonstrated by
the exclusion of certain categories of persons from serving as assessors.
15
The following persons are exempt 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) Members of the police forces and prison services;
(f) Persons exempted from personal appearance in court under the provision
of any written law for the time being in force, relating to civil procedure;
(g) Persons disabled by mental or bodily infirmity;
(h) Persons exempted from liability to serve as assessors by statutory instrument
made by the Minister.
It can be seen from this list, that those exempted are such persons whose
profession or callings require active or full attention, and it may not be easy
for them to perform fully their duties as assessors which frequently involve
long hours of sittings, without causing serious disruptions in their normal
duties.
Likewise, those persons who are not physically fit cannot stand long hours
of court sittings.
13 Rule 2(i) of the schedule to Trial on Indictment Act.

14 Section 56(2) Trial on Indictment Act-Evidence at trial must be given in English Article 6(1)
Constitution.
15 Rule 2(2) of the Schedule.
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The Chief Registrar shall ordinarily, seven days before the day which may
be fixed for holding particular sessions of the High Court, send a letter to a
magistrate having jurisdiction in the area in which the sessions are to be held
requesting him or her to summon as many persons from the list of assessors
settled under rules 3 and 4 as seem to the Judge who is to preside at the
sessions to be needed for trials at the sessions.16
The assessors are to be summoned in writing and their attendance required
17
in the summons to be at a stated place and time.
A Judge of the High Court may, for reasonable cause, excuse any assessor
from attendance at any particular sessions, and may, at the conclusion of any
trial direct that the assessors who have served at the trial shall not be
summoned to serve again as assessors for such period as may appear
18
reasonable.
The law imposes a penalty for non attendance of an assessor:19
Any person summoned to attend as an assessor who, without lawful excuse, fails
to attend as required by the summons, or who, having attended, departs without
having obtained permission of the court, or fails to attend after an adjournment of
the court after having been ordered to attend, is liable by order of a Judge of the
High Court to a fine not exceeding four hundred shillings.
At the commencement of the trial and, after the preliminary hearing has been
concluded, each assessor shall take oath impartially to advise the court to the
best of his or her knowledge, skill and ability on the issues pending before the
20
court.
Omitting the oath and proceeding to trial with unsworn assessors therefore
constitutes an irregularity in the trial proceedings. However, the omission does
not go to competence or jurisdiction since an assessor did not become an
assessor by reason of taking the assessor’s oath but rather took the oath because
he was an assessor, duly listed and selected to serve as such. Therefore any
irregularity in taking the oath fell within the ambit of section 139 of the Trial
on Indictments Act, which is whether or not the omission occasioned a
miscarriage of justice.21
16 Rule 5.
17 Rule 6.
18 Rule 7.
19 Rule 9(1).
20 Section 67 Trial on Indictments Act, Ndaula v Uganda [2002] 1 EA 214, Emmanuel v Uganda
Criminal Appeal Number 43 of 1996 CA (unreported)
21 Ndaula v Uganda [2002] 1 EA 214.
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Assessors 307
Similarly, assessors are public officers whose acts done without taking oath
22
are by virtue of section 6 of the Oaths Act, not invalid.
However, before assessors are sworn the accused or his/her advocate and
the prosecutor have a right to challenge the assessor for cause on any of the
following grounds:23
(a) Presumed or actual impartiality
The court should ascertain from each potential assessor whether he/she
knows the accused or anything about the circumstances of the offence.
Obviously, an assessor who goes to court with a pre-conceived idea
as to what the Judgment of the court should be even before hearing the
evidence, is not what is expected of an assessor.
Similarly, an assessor who has some interest in the case for one reason
or another is unlikely to appear impartial before those who know his
interest even if in fact he acted impartially in arriving at his decision.
“Justice must not only be done but must be seen to be done”
The importance of this was seen in the case of Laurent Busolo s/o
24
Makumba v R in which it came to light, in the course of a murder trial,
that one assessor had taken part in the search of articles that later became
exhibits and was present when a panga and shaft were recovered. This
forced the trial Judge to discharge the assessor and, although the accused
was subsequently convicted, the Court of Appeal ruled that the
participation of this assessor rendered the trial a nullity and a retrial was
ordered.
It can be deduced from the above that this sieving process is to ensure
that an assessor has an impartial and fair mind as is required of the trial
judge.
(b) The competence of an assessor may also be challenged on the ground that
he/she is not of age, deafness, blindness or infirmity.
(c) An assessor can be challenged on the ground of his or her character, in that
he or she has been convicted of an offence which, in the opinion of the
judge, renders him or her unfit to serve as an assessor.
The person’s character and record of criminality are important yardsticks in
selection of an assessor. It reflects on the type of advice that may be given
by a particular, especially where his/her criminal record is that of a convict
in any criminal case.
22 Emmanuel v Uganda Criminal Appeal Number 43 of 1996 CA (unreported).

24 [1957] EA 298.
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(d) His/her inability adequately to understand the language of the court. The
issue whether an assessor has a full comprehensive command of the
language of the court namely English is very important.25
When a challenge is disputed, the issue shall be tried by the Judge and the
person challenged may be examined on oath.26
27
In the case of R v W.Y. Wilken, the accused was charged with murder of
an African by confining him in a box with insufficient air until he could be
handed over to the police. Counsel for the accused objected to the panel of
assessors submitting that the practice of selecting assessors of the same race as
the accused should now extend to the accused. He submitted further that the
Judge should exercise his or her discretion in the accused’s favour as the court
will always apply the test of what is fair to an accused person keeping in mind
the principles of natural justice. The court observed in dismissing the
objection that although the practice had been to try Asians Assessors and
Africans with the aid of three African assessors:
“all this has not conferred upon an accused of any race the right to be tried with
the aid of assessors exclusively of his own race, nor has it, to my mind, established
a principle that it is necessary, just and essential that a man should be so tried. It
would be wrong I think that any such principle should be established …
Certainly I think the judge’s powers of selection should not be governed or
fettered by considerations of race.”
When the challenge of an assessor is made, the court should investigate such
objection. The trial Judge should inquire into the allegation through a kind of
a trial within a trial. If he or she finds that the complaint is unfounded he may
order the trial to proceed. If the objection is valid he/she should adjourn the
28
hearing to pave way for another assessor to be summoned.
It would appear that according to the case of Ndirangu s/o Nyangu v R29
that an appellant court will investigate the truth of an objection even though it
is taken for the first time on appeal, especially when it is on behalf of the
accused. The appellant in this case was convicted of murder. Throughout the
trial he chose to remain mute and took no part whatsoever in his trial. On
appeal he argued that the wife of one of the assessors at his trial was the sister
of the deceased’s wife and he complained that this prejudiced him. The court
concerned itself with grounds on which the objection to an assessor is made. If
25 R v Wilken [1965] EA 286.

27 [1965] EA 286.
28 Andiazi v R [1967] EA 813.
29 [1959] EA 875.
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Assessors 309
an injustice will be occasioned by an assessor sitting with the judge, such

ground is feasible and he should be dismissed.
After the assessors have been selected, the trial Judge explains their role in
the trial; they will assist him/her in deciding the guilt innocence of the
accused. In so doing, they are warned not to discuss the case with any person
and will return their verdict upon the evidence tendered in court only.
13.4 ASSESSORS AT TRIAL

After the assessors are selected and have taken oath, the trial commences.
Before the plea is taken the advocate for the accused is asked whether there is
any point of law which may arise in taking the plea i.e. changes of plea or
plea bargain.
At this stage, the advocate applies to the trial Judge to order the assessors to
leave the court room. In case there is a successful change of plea and it ends
with the conviction and sentencing of the accused, the assessors are recalled
into court and discharged.
Where it is otherwise the assessors are recalled into court and a plea of
guilty is recorded in the presence of assessors.
This procedure is designed to avoid prejudicing the minds of assessors and
hence protects the accused in case he/she pleads guilty then retracts his plea.
Above all, in a plea of guilty the role of assessors, as expert witnesses in
customs and local habits and in assessment of demeanour of witnesses, has no
place in such a procedure.
The assessors are entitled to ask questions from witnesses through the Judge
as the latter has a right to do so.
Where in the course of the trial, an accused makes a complaint against an
assessor the trial Judge is free to hold a trial within a trial to determine the
30
validity, or otherwise, of the complaint. If he finds that the complaint is
unfounded he may order the trial to proceed. If the complaint is valid he/she
should adjourn the hearing to pave way for another assessor to be
summoned.31
At the close of the prosecution case, the prosecutor (State Attorney) and
defence counsel are entitled to make submissions on a ‘no prima facie case’ in
presence of the assessors. The “no prima facie case” submission is a submission
of law that on evidence as it stands the accused cannot lawfully be convicted.
30 Andiazi v R [1967] EA 813.

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The question for the court is whether, in respect of every element of the
offence charged, there is some evidence which, if accepted, would either
prove the element directly or enable its existence to be inferred.
If the trial Judge rules that there is no case to answer, he/she will proceed
to acquit and discharge the accused.
The assessors have no input at this stage since this is a finding of law which
is within the exclusive province of the trial judge.
When the Judge rules that there is a case to answer, the accused is put on
his/her defence and is informed of his/her right to call witnesses.
It should be noted that the accused has a number of options open to him
or her:
(a) he/she may give evidence on oath.
(b) he/she may make unsworn statement from the dock. or
(c) he/she may say nothing; and he/she may also call other witnesses on
his/her behalf.
After the defence has closed its case and counsel for the prosecution and
defence have made their submissions the Judge proceeds to sum the evidence
and explains the law applicable in simple language for the benefit of the
assessors,32 otherwise the trial becomes a nullity.33
13.5 ABSENCE OF ASSESSORS

If, in the course of a trial before the High Court at any time before the
verdict, any assessor is for sufficient cause unable to attend throughout the
trial, or absents himself or herself, and it is not practicable immediately to
enforce his or her attendance, the trial shall proceed with the aid of the other
34
assessors. The law presupposes that the court has had more than two
assessors, such that it can proceed within the trial with the other two assessors.
The trial court must however be satisfied that the assessor is absent for
good reason or that he cannot be found without necessarily delaying the
trial.35
32 Section 82 (1) Trial on Indictments Act.

33 Sam Ekolu alias Obote v Uganda [1996] HCB 3.
34 Section 69(1) Trial on Indictments Act, Kenga v Republic [1999] I EA 145, Muthemba v Republic
(1954) 21 EACA 234.
35 Abdu Komakech v Uganda [1992-93] HCB 21 (SC).
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Assessors 311
If more than one of the assessors is prevented from attending, or absent

themselves, the proceedings shall be stayed, and a new trial shall be held with
36
the aid of different assessors.
However, what is not clear under the law is whether the court can
proceed in presence of one assessor.
The Court of Appeal for East Africa interpreted the word “assessors” to
mean “assessors” or “assessor” as the case may be basing on the interpretation
37
Decree which provided that expressions in plural include the singular.
It is submitted that the legislation was quite express and clear while using
the two words “assessors” and “assessor”. The law intended to have a
minimum of two assessors at any trial and in absence of one or two assessors,
then the proceedings are supposed to be stayed and a retrial is held with
different assessors.
Similarly, where the assessor is absent from part of the trial and misses the
evidence of one witness, such assessor should not be permitted to resume
participation or give an opinion in the case. If such assessor resumes
participation in the proceedings then it is a fundamental irregularity fatal to the
38
trial.
13.6 SUMMING UP TO ASSESSORS

At the close of the case on both sides, the trial Judge sums up the law and
39
evidence in the case to the assessors by giving them directions on the matter
in issue and on the points of law applicable and other assistance as may help
them in giving an informed opinion.
In the case of Andrea Kulinga v R40 the court observed:
“The opinion of the assessors can be of great value and assistance to a trial Judge
but only if they fully understand the facts of the case before them in relation to
the relevant law. If the law is not explained and attention not drawn to the salient
facts of the case, the value of the assessor’s opinion is correspondingly reduced”.

37 Moses Kashaija and 2 others v Uganda [1977] HCB 50.
38 Bwenge v Uganda [1999] 1 EA 25 (CA) Where a person impersonates another assessor then it is an
irregularity that is fundamental and goes to the jurisdiction of the court. Abdu Komakech v Uganda
[1992-1993] HCB 21.
39 Section 82 (1) Trial on Indictments Act.
40 [1958] EA 684.
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Every summing up must be regarded in light of the course and conduct of the
trial and the matters raised by counsel for the prosecution and the defence
respectively.
A summing up does not follow a stereotyped pattern, nor need it contain
any set form of words. Every case has its own features and the summing up
must be related to its features and to its particular problems.
However, BJ Odoki (now Chief Justice) has set out some of the matters
41
which the Judge should direct the assessors on during summing up:
(a) Contradictions and inconsistencies in the evidence of the prosecution
witnesses and their effect on credibility;
(b) The weight to be given to certain pieces of evidence e.g. of hostile
witnesses or an accomplice.
(c) The need for corroboration incase of unsworn evidence of a child of
tender years42and other instances where corroborations is required as matter
of practice e.g. in sexual offences, and the nature of corroboration
required43;
(d) When a court may base a conviction on identification by a single witness;
(e) When a court may act on circumstantial evidence;44
(f) The alternative defences that are open to the 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. minor cognate offence.
(h) On which party the burden of proof lies and standard of proof required in
the case.45
Apart from directing the assessors on the nature of the evidence brought in
support of the indictment against the accused, it is equally essential that the
46
ingredients of the offence are explained. In the case of Msaro Galime v R the
question of provocation was not put to the assessors by the trial judge. The
evidence of the appellant that he was assaulted by the deceased, which was
supported by medical evidence, was not put to the assessors. Consequently,
the appellant was convicted of murder.
41 B.J Odoki-A Guide to Criminal Procedure in Uganda (2 ed) page 132.

42 Evidence Act.
43 Jackson Zita v Uganda [1996] IV KALR 61.
44 Kayamba v Uganda [1987] HCB 2
45 Byamugisha v Uganda [1987 HCB 4
46 [1964] EA 488.
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Assessors 313
On appeal, the court substituted a conviction of manslaughter and

observed that if this provocation had been put to the assessors a verdict of
manslaughter might have been returned by the assessors.
Where there is a positive misdirection to the assessors, it will lead to a
conviction being quashed.47
It is not proper for the trial Judge to inform the assessors of his/her
decision on the case at the stage of summing up. The Judge should sum up the
48
case and evidence for the assessors fairly and impartially.
A Judge should not put the case to the assessors in such a way as to leave
them little room for reaching independent conclusion on the evidence and
49
circumstances of the case. Therefore the summing up to the assessors must
not leave room for a reasonable man to think that the Judge did favour one
50
side unfairly. There is no objection to the trial Judge putting specific
questions to the assessors provides that they are first reminded of the salient
points in evidence.
Although a trial Judge is at liberty to put questions to assessors they should
be confined to matters in issues peculiarly within their knowledge and in
respect of which the trial Judge should have their opinion. The questions and
51
answers occurring thus should be of the nature of examination of evidence.
But where the opinion of the assessors is recorded in the form of specific
questions, they must also be asked to state their opinion on the case as a whole
52
and the general issue as to the guilt or innocence of the accused person.
When the Judge allows the defence counsel to address the court after
obtaining answers to questions put to the assessors on matters raised on address
and then record their opinions as failure to do so might prejudice the
accused.53
In addition, where further evidence comes to light after the assessors have
given an opinion and before verdict, the proper procedure is for the court to
54
take their opinion afresh.
47 Wafula v Republic [1957] EA 498.

48 Kasule v Uganda [1992-93] HCB 38 (SC).
49 Ibid.
50 Godfrey Tinkamalirwe v Uganda [1993] VI KALR 57 (SCCRA Number 5 of 1988) .
51 Rajabu Salum v R [1965] EA 555.
52 Washington s/o Odindo v R (1954) 21 EACA 392, Lumabutu Mokalya v R [1958] EA 706.
53 R v Dinu d/o Sombi (1947) 14 EACA 136.
54 Mulaba Mageni v Republic [1964] EA 518.
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Although summing up is not part of a Judgment, the Judge should always

make notes of his/her summing up and the evidence which he/she has stated
55
as supporting each point. This must appear on the record just in case it
becomes necessary on appeal to decide on the propriety of a conviction based
on a judgment which is lacking in many essentials.56
If the trial Judge is to introduce an issue into the summing up which has
not been actively canvassed in the course of the hearing, he/she should give
ample warning of his/her intention.
A trial Judge must inform the assessors that he/she is the Judge of the law and
that any statement of legal principle made by him/her is binding on them.
In summing up at a joint trial great caution must be exercised by the trial
judge, i.e. the facts relevant to the charges against each accused must be
carefully distinguished. The assessors should be specifically told of the case
each individual and given appropriate instruction on the relevant legal
principle.
It should be noted that the accused is not bound to give evidence i.e.
he/she can sit back and see if the prosecution have proved their case. While
the assessors are deprived of hearing his/her story tested in cross-examination,
the one thing that they must not do is to assume that he/she is guilty because
he/she has not gone into the witness box.
The Judge may make the comment that an inference may be drawn from
uncontested or clearly established facts which point so strongly to guilt as to
call for an explanation and, if no explanation is forthcoming when the
circumstances are such that an innocent man would be expected to give an
explanation or deny the basic facts, this is a factor which can be taken into
consideration.
The trial Judge should not seek to bolster up a weak prosecution case by
strong comments and, he/she must be careful to avoid suggesting to the
assessors that absence from the witness box is to be equated to guilt.
Where the accused gave an unsworn statement, the trial Judge may refer to
the making of the statement but what the Judge may say is closely
circumscribed i.e. a statement to the assessors by the trial Judge on the weight
they may give to an unsworn statement untested by cross-examination
compared to the evidence given by witnesses rather than a statement by the
trial Judge that the accused had the right to give sworn evidence but failed to
55 R v Lule s/o Luzala (1934) 1 EACA 106.

56 Mukono v Uganda [1965] EA 491.
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Assessors 315
exercise that right; the first statement is permissible but the second statement is
not permissible.
13.7 OPINION OF ASSESSORS

After summing up by the trial judge, the assessors are expected to consider
their verdict. The statutory provision is that assessors are to give their opinions
57
orally and individually.
It is the duty of each assessor to state specifically whether he/she considers
the accused person guilty or not guilty on each count on which he/she is
required to state his/her opinion. Even where the assessor’s opinion is
unanimous and is delivered by one assessor in terms that “we, ‘I’ agree that
[the] accused is guilty” the other assessors must be asked to confirm this
statement individually.
Where assessors hold the same opinion, one of them should state to the
trial Judge what the joint opinion is. The other assessor or assessors should
then confirm the position by expressly saying so in his or her own words such
58
confirmation should be recorded by the learned trial Judge separately. But
such omission of requiring each assessor to state his opinion individually and
59
orally is a curable defect.
The opinion should be given in open court in presence of the accused and
both defence and prosecution counsels since the credibility of assessors’
opinion depends on reasons behind it, it has been required that assessors
should give reason or reasons for their opinion. This is very relevant in the
60
criminal justice system if the case goes on appeal.
The assessors are required to consider the evidence and then weigh it
together as laid down in the often cited case of Okethi Okale and others v R61
and then return a verdict of guilty or not guilty.
Unlike other expert witnesses, assessors are not required to lay foundations
for their opinions, if their opinions are favourable to the accused, the court
will rely and act on them without problems but if they are prejudicial to the
accused, the trial Judge is put in a dilemma. There arises the question whether
to act on the opinions without the accused having the opportunity to test or

58 John Kuka v Uganda [1994-1995] HCB 8.
59 Francis Juma s/o Musungu v R [1958] EA 192.
60 Paulo Lwevola v R (1943) 10 EACA 63.
61 [1965] EA 555.
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challenge them by cross-examination or to ignore them yet the court is

enjoined by law to take them into account.
In the case of R v Gusambizi Wesonga,62 the protective role of the assessors
was reiterated and the court observed that, in examining the function of
assessors, the court will always apply the test of what is fair to an accused
person keeping in mind the principles of natural justice. Allowing assessors to
give opinion evidence on matter of customs and habits that is prejudicial to an
accused violates the rules of natural justice and does not protect the accused as
required by law. It is likely that a trial court faced with prejudicial evidence
emanating from the opinion of assessors will ignore it in order to protect the
accused and be in compliance with the time honoured rules of natural justice.
It is imperative to note that the opinions of the assessors on the case in
general or on specific questions are not binding on the trial judge. Their
63
opinions are merely advisory in nature. But in the case of Baland Singh v R
the court held that it is most desirable that a Judge should record his reasons
where he disagrees with the assessors, particularly if the assessors have given
reasonable grounds for their opinions despite the fact that the Judge is the
ultimate Judge of facts and law. It I also good practice for the Judge to state in
64
his judgment his reasons for disagreement with them.
62 (1948) 15 EACA 65.

63 (1954) 21 EACA 209.
64 Fred Sabahashi v Uganda SCCA 23/93 [1994] V1 KALR 27, R v Mwita (1948) 15 EACA 128.
CHAPTER FOURTEEN
PRE- HIGH COURT TRIAL PROCEEDINGS
14.1 INTRODUCTION
Preliminary proceedings are related to cases triable by the High Court. These
are held here any person is charged with an offence not triable by a
Magistrate’s Court and therefore triable by the High Court or where the case
is triable by a magistrate court, the D.P.P is of the opinion that it should be
1
tried by the High Court.
The major pre-trial proceeding is the preliminary enquiry which was
preceded with committal proceedings. Commenting on preliminary enquiry.
Hogorth J said:
“To be of practical value to the court. Pre-trial information should pass four tests
namely, reliability, validity, relevance and efficiency.”2
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 is the sufficiency test which is
the basis of preliminary inquiries. To be sufficient the information ought to be
valid, reliable and relevant to the objectives of court. It was this test of
sufficiency of information or evidence that a preliminary inquiry needed to
pass in order to warrant a committal.
There were preliminary hearings conducted by Chief magistrates or
magistrates grade one for case triable by the High Court which was also
referred to as a pre-trial disclosure.
The purpose of the preliminary hearings was to screen out those cases
where the prosecution evidence was too weak to justify a trial.
In the preliminary hearings, the prosecution would produce its full
evidence before the magistrates who would record it in the presence of the
accused person. That was in fact a pre-trial disclosure. Where the evidence
1 Section 167 and section 169 Magistrates Courts Act.

2 Hogorth J. Sentencing as a Human Process, Toronto, Toronto University Press 1971 at 46 as
quoted by Dr. PLO Lumumba in his book A Handbook on CriminalPprocedure in Kenya page 81.
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was found insufficient the conducting magistrate had powers to discharge the
3
accused.
In 1967, the Criminal Procedure (Summary of Evidence) Act was enacted.
This changed the purpose of preliminary hearing from screening to disclosure.
The purpose became to give the accused advance knowledge of the
prosecution case. The Director of Public Prosecution was required under this
Act to file with the Magistrates Court a proper Indictment and a Summary of
Evidence containing the substance of the evidence of each would-be witness
for the prosecution.
In the summary of evidence, reference was made of exhibits intended to be
produced by the prosecution at the trial.
These exhibits would be produced in court at the committal proceedings,
marked and taken in custody of the court. Copies of the summary of evidence
would be given to the accused. This too was full-pre-trial disclosure.4
It was only upon the enactment of the Magistrates Courts (Amendment)
Statute Number 6 of 1990 that trial by “ambush” was introduced in criminal
trial by the High Court in this country.
Therefore, committal procedure or proceedings 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 a trial by the High Court.
It was intended to be given quicker and less expensive in order to expedite
trials of serious cases in the High Court.
14.2 COMMITTAL PROCEEDINGS

Committal proceedings are proceedings held by a subordinate
court/magistrate court for the purpose of committing an accused person for
trial before the High court.
The Director of Public prosecution is required to file in a magistrate court
an indictment and a summary of the case by him or her or by an officer
authorized by him or her.5
3 Soon Yeon Kong Kim v Attorney General Constitutional Reference Number 6 of 2007 decided on (7
March 2008).
4 Ibid.
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Pre-High Court Trial Proceedings 319
The summary of the case shall contain such particulars as are necessary to
give the accused person reasonable information as to the nature of the offence
6
with which he or she is charged.
A summary of evidence is prepared from statements of witnesses recorded
by the police. It is prepared by a State Attorney and contains a summary of
admissible evidence which the prosecution intends to adduce at the trial of the
accused.
The summary of evidence must contain the ‘substance’ and not the
‘shadow’ of the evidence the witnesses shall give in court7. It is for this reason
that care must be taken to ensure that a proper summary of such evidence is
made. The evidence of all material witnesses must be included and evidence
of witnesses who may be of assistance to the defence should be included and if
the prosecutor does not wish to call them he/she can offer them to the
defence.
The rationale for this procedural requirement is to afford the accused an
opportunity to know the case against him or her and prepare his defence.
It also gives an equal opportunity for the prosecution to prepare its case
well in time. Similarly, by reading the summary of evidence before hand, the
trial Judge will have the opportunity of acquainting himself/herself with some
of the problems which are likely to arise at the trial.
Thus, a summary of the evidence is a brief but accurate account of the
material evidence which the Director of Public Prosecutions proposes to
adduce at the trial.
Objections against the manner in which committal proceedings were
conducted should be raised at the earliest opportunity. Though the committal
proceedings were irregular in that and indictment and summary of the case
were missing, they were not a nullity as the magistrate had jurisdiction and
had actually made a committal order. The appellant was not prejudiced in any
8
way at his trial and the error did not occasion a miscarriage of justice.
14.3 PROCEDURE AT PRELIMINARY PROCEEDINGS

When a person charged with an offence to be tried by the High Court appears
before a magistrate and the Director of Public Prosecutions has complied with
subsection (1), the magistrate shall:

7 BJ Odoki :A Guide to Criminal Procedure in Uganda (2 ed) page 120.
8 Wavamuno v Uganda [2001] 2 EA 608, Asenua v Uganda Criminal Appeal Number 1 of 1998, R v
Singh (1934) 1 EACA 110.
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(a) give the accused person a copy of the indictment together with the
summary of the case.;
(b) read out the indictment and the summary of the case and explain to the
accused person the nature of the accusation against him or her in a
language he or she understands and inform him or her that he or she is not
required to plead to the indictment;
(c) commit the accused person for trial by the High Court and transmit to the
Registrar of the High Court copies of the indictment and of the summary
of the case.9
At the time the indictment is read out to the accused, the court should address
him or her with the following words:
“This is your trial. You will be tried in the High Court where the evidence
against you will be adduced. You will then be able to make your defence and call
witnesses on your behalf.”
Similarly, after reading the summary of evidence to the accused the court must
address the accused in the following words:
“You have now heard the substance of the evidence that the prosecution intends
to call at your trial. Unless you wish to reserve your defence, which you are at
liberty to do, you may now either make a statement not on oath or give evidence
on oath. If you give evidence on oath you will be liable to cross-examination.
Anything you say whether on oath or not will be taken down and may be used in
evidence at your trial.”
The purpose of this statement to the accused is to ensure that the accused who
is usually not legally represented at this stage, does not prejudice his/her case
by making incriminatory statements which he/she would not make if he/she
had services of counsel.
The committal proceeding is a significant step in the criminal prosecution
process. A properly conducted committal can be integral to the prospect of a
fair trial. These proceedings constitute such an important element in the
protection of the accused that a trial held without antecedent proceedings,
unless justified on strong and powerful grounds, must necessarily not
considered unfair.
Courts have acknowledged that the denial of a proper committal can, and
usually does amount to serious injustice to an accused. The committal
proceeding thus remains an important mechanism in the criminal justice
system and there is a greater likelihood of an accused receiving a fair trial if
one is properly conducted than if one is not. A thorough understanding of the

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purpose and function of committal proceedings is an essential prerequisite to

adequately representing an accused person.
However, the procedure as applied in Uganda leaves a lot to be desired
and it seems to be a mere formality though the accused is given some
information in form of summary of evidence and indictment. The accused is
not availed the prosecution statements as given at the police during the course
of investigation unless requested for by the accused’s lawyer.
It bears emphasis that the criminal justice system is an adversarial one
where the prosecution must establish at this stage a prima facie case in order for
the prosecution to proceed and the accused is entitled to the benefit of
knowing what that case is before entering any plea. There is often a need to
test the evidence to assess the strength of the prosecution case.
14.4 POWERS OF THE COMMITTING MAGISTRATE

The law seems to provide mandatory terms to the committing magistrate to
commit any suspect once the Director of Public Prosecutions has complied
with the provisions of the law on committal by especially filing an indictment
and a summary of the case.
The earlier procedure which was provided for by the Criminal Procedure
(Summary Evidence) Act Number 10 of 1967 was more elaborate and both
the prosecution and defence gave evidence and could be cross-examined on it
as if it were a full trial.
The presiding magistrate could discharge the accused, if at the close of the
prosecution case or after hearing the evidence in defence it was of the opinion
that the evidence was not sufficient to put him or her at trial.
It is submitted that the main intention for the repeal of the existing
procedure and introduction of committal proceedings was to cut down the
unnecessary delays in the trial of accused persons which was characterized by
the system of preliminary enquiries. Therefore from this point of view it
would seem the committing magistrate has no power or discretion not to
commit an accused person once there is an indictment and summary of
evidence.
However, does this mean that even if the summary discloses no offence the
magistrate must commit the accused for trial as long as the mechanical steps of
taking him/her for committal proceedings have been taken?. Is the
committing magistrate supposed to act as a mechanical device to enable the
accused reach the High Court for his/her trial?
M Ssekaana
10
In the case Uganda v Yonasani Lule and six others Goudie J. noted:
“It is not entirely clear from the Act the amount of discretion a committing
magistrate has in deciding whether or not a prima facie case has been made out on
the summary. There is no specific provision empowering the committing court
to discharge the accused if the evidence is not sufficient to put him on trial as is
contained in section 227 of the Criminal Procedure Code in regard to
preliminary enquiries. Nevertheless the committing magistrate in committing the
accused for trial is performing a judicial discretion.
I think committing magistrates should commit if there is a reasonably arguable
prima facie case, and should not delve too deeply into the weight of the
evidence. If, however, it should happen that in the exceptional case the
summary discloses no reasonably arguable prima facie case, in my view, the
magistrate would then be well within his rights in refusing to commit. The
matter would then be referred back to the Director of Public Prosecutions and
if he was still of “the view” that there was sufficient evidence on which to
commit he would ask the High Court for directions in revision under section
341 of the Criminal Procedure Code. This court does not take the view that a
committing magistrate is a mere a cipher who is bound to commit if he is
presented with an entirely defective summary of evidence or one which does
not comply with the provisions of the above Act or which does not establish a
reasonably arguable prima facie case”.
It is argued that the discretionary power to discharge during the committal
proceedings was taken away based on the fact that the prosecution is a sole
responsibility for the Director of Public Prosecutions being an independent,
11
highly qualified professional having a status equivalent to a judge.
Where the necessary evidence of all the material witnesses is contained in
the summary of evidence the committing magistrate is bound to commit.
He/she is not supposed to delve into the evidence however he/she may hold
about the content of the summary of evidence and the offence charged in the
indictment.
Otherwise to allow him/her exercise any power or discretion in
questioning the evidence however slight, would amount to deciding the
merits of the case, a power specifically reserved for the trial court.
The importance of committal proceedings should not be underscored
especially in third world democracies. It can act as a screen against “wanton”
and “misconceived” prosecutions ensuring that no person needlessly stands
10 M.B 17 of 1969 unreported. Cited by FJ Ayume, Criminal Procedure and Law in Uganda, LawAfrica
Publishing, 2010, page 122.
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trial for indictable offences and providing an opportunity at an early stage for a
magistrate to discharge an accused person provided such a power of discharge
or discretion is available to the committing magistrate.
14.5 CRITIQUE OF COMMITTAL PROCEEDINGS

The committal proceedings as conducted in Uganda seem to serve no purpose
and it may not be as such an important element in our criminal justice system.
The summary of evidence as is presented to court is selectively prepared by
the Director of Public Prosecution, who does not; give the source of the
evidence contained therein. It would make better sense to avail the accused
with all the statements in support of the indictment and this should form part
of the file for committal such that court can draw its own conclusions as to
whether there would be sufficient evidence to sustain the charges and the type
of witnesses that will be called at the trial.
In as much as the Director of Public Prosecutions has the power to
prosecute and determine whether the case should is a proper one for trial, a set
standard of “a reasonable prospect of conviction should be applied so as to
sieve out cases which may not pass the test of committal unless it has been
shown publicly that there is a prima facie case against him or her. Even though
the power to prosecute is vested in a person whose qualification, experience
and integrity are not doubted, the power is usually not exercised by the
Director of Public prosecutions. The practical reality however is that no
matter how competent a Director of Public Prosecutions may be, he/she will
only be able to examine a small portion of proposed prosecutions.
The summary of evidence presented at trial is not subjected to cross
examination to ascertain its veracity. The committing magistrate may not be
able to determine its sufficiency. So the committing magistrate merely rubber
stamps any such prosecution. The individual witness’s credibility is untested,
so the court only has a virtue of simplicity in determining the sufficiency of
evidence to support a conviction.
Committal proceedings permit an accused to discover the nature of the
prosecution evidence and allow both the prosecution and the defence an
opportunity to discover and remedy any weaknesses in their cases. However,
the accused would derive greater benefit when if he/she is given witness
statements than the summary of evidence prepared Director of Public
Prosecutions and above all it is not made under oath to bind the prosecution.
Those supporting the retention of committal proceedings are not sanguine
enough to believe that the procedure was currently fulfilling its purpose with
optimum efficiency.
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In sum therefore, whoever seeks to abolish or curtail the process which has
formed an integral part of the criminal justice system for many years must bear
the onus not only of justifying the necessity for change but demonstrating that
the new mechanisms which they advocate do not increase the possibilities of
injustice.
The committal proceedings play a significant role in the operation of the
criminal justice system in Uganda. This significance will be better attained if
all the participants in the system utilize this legal process for the purpose for
which it was designed. Inadequate disclosure in the summary of evidence
presented by the prosecution and the inappropriate application of the standard
of proof are some of the practices with the capacity to erode the effectiveness
and hence fuel arguments for its abolition or replacement.
14.6 PRELIMINARY HEARING

This procedure is restricted to trials before the High Court. 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.
If an 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 or her advocate and of the advocate/lawyer
for the prosecution to consider such matter as will promote a fair and
expeditious trial.12
At the conclusion of a preliminary hearing held under this section, the
court shall prepare a memorandum of matters agreed; and the memorandum
shall be read over and explained to the accused in a language that he/she
understands, signed by the accused and his or her advocate and by the
advocate for the prosecution, and then filed.13
Any fact or document admitted or agreed (whether the fact or document is
mentioned in the summary of evidence or not) in a memorandum under this
section shall be deemed to have been duly proved; but if, during the course of
the trial, the court is of the opinion that the interests of justice so demand, the
court may direct that any fact or document admitted or agreed in a
memorandum filed under this section be formally proved.14
12 Section 66(1) Trial on Indictments Act Komakech v Uganda [1992-1993] HCB 21.
13 Section 66(2) ibid Jackson Zita v Uganda [1996] IV KALR 6 1 (SC) court noted that there was a
failure to comply with this provision of the law. However, since the contested medical report was
after being admitted, signed by both counsel for the prosecution and accused and the trial judge,
the report became part of the record of court.
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Whenever possible, the accused person shall be tried during sessions at

which he or she is arraigned, and if a case has to be adjourned to the next
session due to the absence of witnesses or any other cause, nothing shall be
read as requiring the same Judge who held the preliminary hearing under this
section to preside at the trial.15
Any facts or documents admitted or agreed on, must of course be read
16
over to the assessors as these form part of the evidence in the trial.
In addition any fact agreed must be set out in the memorandum and not
left to a reference to the summary of evidence which does not form part of
the record of the trial.17
The preliminary hearing is a good innovation and an advance in the due
administration of evidence. It provides for a more expedition and efficient
criminal trial by providing for the admission of facts not in dispute.
14.7 VOIR DIRE

The question whether a confession was made voluntarily arises when
objection is taken by the accused to the admission of the confession into their
evidence.
In a trial before the High Court the assessors shall not be required to leave
the court while the issue of the admissibility of confession is being tried, and
the Judge may seek their opinions on any fact relevant to that issue; but the
decision of any question of fact or of law upon which the admissibility of a
18
confession depends shall be for the Judge alone.
Where the trial is before the High Court, the question whether a
confession is voluntary is argued in the assessor’s presence by a procedure
known as voir dire, or a trial within a trial.19
Witnesses for the prosecution, usually police officers, give evidence how
the confession was obtained and then are cross-examined on that evidence.
The accused may also give evidence (and be cross-examined on it) and call
witnesses in support. It is then for the Judge to consider whether or not the
confession should be admitted. The Judge will have to consider, for example,
whether the words used emanated from “a person in authority”, whether they

16 Kanyakole v Republic [1972] EA 308.
17 Ibid.
19 Lubwama David v Uganda Supreme Court Criminal Appeal Number 4 of 2003 [2005] 1 ULSR 42.
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are in law capable of being an inducement, and whether the prosecution has
proved that the accused’s confession was not induced by them.
In resolving the issue of voluntary confession, the trial Judge will consider
the general circumstances of the interrogation. He/she will weigh up matters
such as the relative position of the accused and the persons to whom the
confession was made, the age and situation in life of the accused, the hour of
the night or morning when the interrogation took place, the period of the
interrogation, and whether there is evidence of threats, pressure, violence,
unjustified or long incarceration, undue deprivation of food, or a refusal to
permit the accused to see his/her relatives or lawyer.
Once a real question as to the voluntariness of a confession tendered in
evidence arises the trial Judge has a duty to satisfy himself/herself of the
voluntariness of the confession, even though the accused does not object to
20
the tender or seek a voir dire.
Similarly, a voir dire is required not only where the accused admits that he
made a confession and alleges that he was offered an inducement or subjected
to pressure, but also where he alleges misconduct by the police and claims that
the confession tendered was not made at all.
On the voir dire the onus of proof as to the voluntariness of a confession is
on the prosecution and the standard of proof is “the balance of probabilities”.
However, the House of Lords held in DPP v Ping Lin21 that the appropriate
standard of proof was proof beyond reasonable doubt.
The gravity of the issues in a criminal trial requires guilt to be proved
beyond reasonable doubt. It would be erroneous to lower standard in regard
to confession when such a confession is generally of such critical significance
in the determination of guilt.
Therefore where the circumstances surrounding a confession raise a doubt
as to its voluntariness, it is incumbent upon the prosecution to remove the
doubt in order to render the confession admissible.
Even though the obtaining of a confession may not attract the operation of
the voluntary confession rule, the trial Judge has discretion to reject the
confession if in his/her opinion the admission would operate unfairly against
the accused.
20 Lutwama David v Uganda (ibid).

21 [1976] AC 574.
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The court with guidance of assessors may make a finding as to the

admissibility of a given confession as the Judge may seek their views on any
relevant fact to their admissibility.
The assessors may advise on the propriety or otherwise of the manner in
which a confession was obtained especially so when in course of challenging a
confession the accused raises matters pertaining to custom.
CHAPTER FIFTEEN
JUDGMENT
15.1 INTRODUCTION
In a criminal case the issue in dispute is whether the accused is guilty or not
guilty of the offence with which he/she is charged. So the criminal court has
to decide the guilt or innocence of the accused person tried before it. Where
such person is found guilty of any offence, such court must determine the
appropriate punishment or other method of dealing with him/her.
Therefore, if the accused is found guilty the court will proceed to
conviction and sentence and if he/she is found not guilty the court will
proceed to acquit and discharge him/her.
When the case for the prosecution and the case for the defence have been
heard, the Judgment of the court is delivered, leading to the decision in the
case.
The delivery of judgment is an integral part of the trial process so that at
the end of the case for the prosecution and the defence, the court will deliver
a judgment leading to the final verdict of the court as to the guilt or
innocence of the accused.
The court having heard the evidence called by the prosecution and by the
accused person shall either convict the accused and pass sentence upon, or
make an order against, him or her according to law, or shall acquit him or
1
her.
15.2 DEFINITION
A judgment may be defined as a reasoned pronouncement by a Judge or
magistrate on a disputed legal question which has been presented before him
or her by the parties. It may be a reasoned decision by a court and it may be
in a form of a ruling or an order.
Judgment means the adjudication by the court that the accused is guilty or
not guilty.
1 Section 133(1) Magistrates Courts Act, section 82 (2) Trial on Indictments Act.
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2
According to the writer on judgments, a judgment of conviction may be
said to consist of two parts:
(i) the facts judicially ascertained together with the manner of ascertaining
them, entered on record,
(ii) the recorded declaration of the court pronouncing the legal consequences
of the facts thus judicially ascertained.
A judgment is only written and delivered after witnesses have testified and all
evidence is recorded in a case. This does not happen when an accused pleads
guilty right at the start.3 A judgment is only written after there has been a trial
and evidence adduced and heard. There is no need for a judgment after a plea
4
of guilty.
15.3 FORM OF THE JUDGMENT

Every Judgment shall be written in the language of the court which is English
and should be written down by the Judge or magistrate who heard the case or
by another person under the judge’s personal direction and supervision. It
must be dated and signed otherwise its authenticity may questioned and it may
5
render a trial a nullity.
Where one of the judges of the panel dies, the majority can read the
judgment.6
7
In the case of Misango v R it was held that a judgment is not a judgment
until it is reduced in writing and delivered in open court. This is an essential
and intangible ingredient of a judgment; the reasons for the decision must be
delivered in open court on the day of judgment. Where the reasons are
written subsequent to the conclusion of the trial, they are not considered as
part of the Judgment.
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
superior court decisions found in innumerable volumes of the law reports.
2 Freeman “Judgments” (5 ed) 1925 page 99 as quoted by PLO Lumumba in Criminal Procedure in
Kenya page146.
3 Uganda v Pampilio Edebu [1979] HCB 209.
4 Uganda v Yusuf Kasanda and 3 others [1978] HCB 223.
5 Mugema v Republic [1967] EA 676.
6 Chali v Republic [2006] 2 EA 30 One of the judges (Lugakingira JA) died before the composition
and signing of the judgment.
7 [1969] EA 538.
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Judgment 331
A good judgment should follow some logical framework or order. Most

judgments follow a framework which is more or less along the following
8
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; and
(g) The finding or decision.
(h) The date on which it is delivered and signature by the Magistrate.9
As regards language, the judge/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 i.e. the orders should be speaking, good
paragraphing and punctuation are essential.
Any disorderly manner in writing a judgment may create ambiguities or
vagueness in the subsequent orders that the court may have given.10
11
In the case of Uganda v Lawrence Oyang and Maria Awidi court noted per
curiam;
“… it is undesirable, in a case which had gone to trial to the end for the court
merely to write; “A1 Acquitted”. A full judgment needs to be written, even if the
accused is to be acquitted, although if there is no question of guilt it need not be
an exhaustive judgment. But at least in the event of an appeal or revision, the
appellate court or provisional court, for that matter should have before it some
materials to look at.”
It is obvious that a judgment which is skeletal and lacking in so many
essentials will present difficulty on appeals as the appellate court will not be in
a position to review the evidence properly to enable it reach its own
conclusions. In other words it should not leave the appellate court wondering
8 Odoki – Guide to Criminal Procedure (2 ed) page 137.

11 [1980] HCB 4.
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whether the trial court was alive to the law or whether it relied on some
inadmissible evidence.
However, where there is a judgment, although defective one, it does not
follow that a trial is a nullity.12
15.4 CONTENTS OF JUDGMENT

Every judgment shall contain the point or points for determination, the
decision thereon and the reasons for the decision.13
In summary, a judgment must contain the following:
(a) The points of determination;
(b) The decision on the points;
(c) The reason for decision;
(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 an acquittal, the judgment should state the offence with 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 passed together with the reason for
passing a particular sentence.
A judgment must set out the point or points for determination which must
14
cover the essential ingredients of the offence.
In the case of a finding of guilty the basic constituent elements of the
judgment are the conviction and sentence.15 Court further noted however,
that failure of the trial court to set out the point or points of determination
and the reason for the decision will not be a ground for allowing an appeal.
Failure to comply with these requirements is an irregularity which will
entitle and oblige the Court of Appeal to examine the facts of the case with a
view to determining whether there has been a failure of justice. In the case of
Baland Singh v R,16 it was held that a judgment includes conviction and
12 R v Abdulla Shirazi and another (1956) 23 EACA 550.

13 Section 136 Magistrates Courts Act and section 86 Trial on Indictments Act, Kigotho v R [1967]
EA 445.
14 Livingstone v Uganda [1972] EA 196.
15 Confiance v R [1960] EA 567.
16 (1954) 21 EACA 209.
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Judgment 333
sentence and so long as these two elements are present other deficiencies are
mere irregularities that are curable.
However, where the material on record is not sufficient to enable the
Court of Appeal to determine the appeal on merit and where the judgment
does not set out the point or points of determination, the decision taken and
17
the reasons for the decision, the appeal will be allowed and a retrial ordered.
A magistrate is not required in case of an acquittal to deal with every point
which would have to be decided in case of a conviction but when a judgment
acquitting the accused fails to deal at all with one of the main ingredients
constituting the offence that is a substantial error of law.18
Usually the judgment in a criminal case should commence with a
statement of facts in respect of which the accused person is charged. The
judgment should indicate a careful analysis and appraisement of the evidence
while reaching the conclusions regarding the proof of facts. It is the duty of a
trial court to produce a judgment in a case coming before it which is self-
contained and which would show that it has intelligently applied its mind to
the facts of the case and the evidence led therein by the respective parties and
a criticism of this evidence justifying the conclusion to which the trial Judge
or magistrate feels persuaded to come.
It is important that a judgment should amount to a reasoned decision. The
Judge or magistrate must identify the issues for determination, make clear and
precise findings of facts on those issues and apply the law to those facts in
order to reach a sound decision.
19
In the case of Samwiri Senyange v R, the trial court convicted the appellant
but did not give reasons on the day of conviction and instead indicated that
reasons would be given later. Such reasons appeared in the record but were
never delivered in open court. The Court of Appeal for East Africa held that,
it could not look at reasons written by the trial Judge after the conclusion of
the trial.
The Supreme Court of Uganda also noted that the Trial on Indictments
Act does not permit a trial Judge to reserve reasons for his judgment to be
given later.20
17 Kagoye s/o Bundala v R [1959] EA 900.

18 R v Philleious Mallo [1958] EA 11.
19 (1953) 20 EACA 277 However see also Desiderio Kawunya v R (1953) 20 EACA 281, Ratilal Shah v
Republic [1958] EA 3.
20 Karim Bagenda and 3 others v Uganda Supreme Court Criminal Appeal Number 10 of 1994.
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The justification for giving reasons in the judgment is to enable the parties
and the public at large to know why the accused is either convicted or
acquitted.
In addition, it enables the parties to lodge an appeal or apply for revision
before the higher court.
The reasons for judgment are as a result of review, evaluation and making
definite findings of fact on important aspects of the case. In arriving at the
conclusion about the guilt of the accused, the court has to Judge the evidence
by the yard stick of probabilities, its intrinsic worth and the animus of
witnesses. Every case in the final analysis would have to depend upon its own
peculiar facts.
Each piece of evidence must be considered and assessed on its own merits
and then accepted or rejected. The weight to be attached to the testimony of
a witness depends in a large measure upon various situations. The trial Judge
or magistrate may state the law applicable to the case both in regard to the
criminal law and the law of evidence. The magistrate or Judge must know the
ingredients of the offence and discuss whether they have been proved. The
findings of court must be based on considering the entire evidence on record.
It is improper to consider the evidence of the prosecution in isolation from
that of the defence.
Convictions could only be based on the weight of the actual evidence
adduced and it was dangerous and inadmissible for a trial for a trial Judge to
21
put forward a theory not canvassed in evidence or counsel’s speeches. The
findings must also be based on the evidence adduced and not on speculation.
In the case of Okethi Okale and others v R,22 the trial court after rejecting
the evidence of a prosecution witness as false as to what caused the fatal head
injury, proceeded to state that it was a case in which reasoning has to play a
greater part than actual evidence. The Court of Appeal ruled that a conviction
had to be based on actual evidence adduced and not on any fanciful theories
or attractive reasoning. The trial court further considered the unsworn
evidence of the accused but held that it was not sufficient to displace the case
built up by the prosecution or to produce reasonable doubt. The Court of
Appeal noted that this was the wrong procedure of assessing evidence. All the
evidence had to be considered as a whole and that it was for the prosecution
to prove its case beyond reasonable doubt.
21 Njenga and another v Republic [2006] 1 EA 297.

22 [1965] EA 555.
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Judgment 335
23
In Sulumani Oyo v Uganda after Court stated that it had believed the main
prosecution witness who was the complainant in a rape case, the Judge went
on to say:
“I now turn to consider the accused’s defence and ask myself whether his versions
either acceptable to me or at least creates doubt in my mind as to whether the
complainant’s and the prosecution accounts of what happened are true.”
While commenting on this the Court of Appeals observed:
“With respect, this is a wrong approach to a decision in a criminal case, in which
the burden of proof remains on the prosecution throughout, and no finding as to
credibility, guilty, or fact should be arrived at until the evidence of both sides has
been submitted to scrutiny. Such an approach implies that there is some sort of
onus on an accused person to put forward an acceptable version such as to rebut a
prosecution case already found to be true. No such onus of course exists”
The Court referred to its earlier decision in another case in which it had said:
“Moreover, we think the learned Judge fell into error in looking separately at the
case for the prosecution and the case for the defence. In our view, it is the duty of
the trial judge, both when he sums up to the assessors and when he gives
judgment, to look at the evidence as a whole. We think it is fundamentally
wrong to evaluate the case for prosecution in isolation and then consider whether
or not the case for defence rebuts or casts doubt on it. In deed we consider that
no single piece of evidence should be weighed except in relation to all the rest of
the evidence.”
Similarly, while assessing evidence, the court is duty bound to consider the
case for defence even if it is weak.
24
In Macharia v R the appellant was convicted of careless driving and the
trial court found the evidence for the defence to be weak and failed to
consider it. The High Court ruled that this was an erroneous approach as
every defence, however weak, had to be considered. The court must give
reasons for not accepting the defence evidence.
In cases depending upon circumstantial evidence, there is always the
danger that conjecture or suspicion may take the place of legal proof.
Therefore, the circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established, and all the facts so
established should be consistent only with the hypothesis of the guilt of the
25
accused.
23 EACA Crim App Number 150 of 1971 (unreported).

24 [1975] EA 193 Bwire v Uganda [1965] EA 606.
25 Uganda s/o Kisongo v R [1960] EA 780.
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The circumstances should be of a conclusive nature and tendency and they

should be such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that within all human
probability the act must have been done by the accused.
In addition, while assessing the evidence given by a witness the magistrate
or Judge should express his/ her opinion in temperate language usually
associated with and reflecting the impersonal dignity of judicial restraint.
Sarcastic and denigratory remarks about the defence are out of place in a
judgment.26 It should be borne in mind that in all parties are equal and
therefore the defence evidence must be considered on equal footing with that
of the prosecution.
A ruling holding that there is no case to answer is in effect a judgment and
must be in writing stating points for the decision and reasons for the
decision.27
Where the court visits the scene of crime, this is intended to enable such
court understand evidence given in court and not to form its own opinions. In
28
Nzioka v R, the trial Magistrate visited the scene of the crime and noted that
a witness pointed out the said marks were clearly caused by the chassis. This
was held to be improper and inadmissible. The reasons for this requirement
has been explained in the case of MPs Boghan v R in which the Court of
Appeal for East Africa ruled that it was not the role of the court to investigate
when visiting a scene of crime but rather enable it understand the evidence by
an actual inspection of the scene. If the court forms an opinion of a scene of
crime it places itself in the position of a witness or investigators thus denying
the parties to the case an opportunity to cross- examine and ask questions on
what basis the opinion is based.
15.5 DELIVERY OF JUDGMENT

The judgment of the trial court represents the final episode in the trial of the
accused. The court is required to pronounce the judgment in open court.
The judgment in every criminal trial in a magistrate’s court in the exercise
of its original, jurisdiction shall be pronounced or the substance of the
judgment shall be explained, in open court either immediately after
26 Okeno v R [1972] EA 32, Wahome v Republic [1969] EA 580.

27 R v Amirali [1971] EA 116, Attorney General v Sykes [1957] EA 257.
28 [1973] EA 91.
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Judgment 337
termination of the trial or at subsequent times of which notice shall be given

to the parties and their advocates, if any; except that the whole judgment shall
be read out by the magistrate if he or she is requested so to do either by the
prosecution or the defence.29
A judgment in this context is the final decision of the court intimated to
the parties and the world at large by formal “pronouncement” or “delivery”
30
in open court. The rules related to delivery or pronouncement of the
judgment is mainly intended to secure certainty in the ascertainment of what
the judgment was.
Therefore, until the judgment is delivered and pronounced in compliance
with such procedure and rules, it is strictly speaking no ‘judgment” and the
Judge or magistrate can at such a stage change his/her mind and make
alterations in the judgment.
The accused person shall, if in custody, be brought up or if not in custody,
be required by the court to attend to hear judgment delivered, expect where
his or her personal attendance during trial has been dispensed with and the
31
sentence is one of fine only or he or she is acquitted.
No judgment delivered by a magistrate’s court shall be deemed to be
invalid by reason only of the absence of any party or his or her advocate on
the day or from the place notified for the delivery of the judgment or of any
omission to serve or defect in serving on parties or their advocates, or any of
them; the notice of that day or place.32
The expression “after the termination of the trial” in section 135(1) only
means after the entire evidence both on behalf of the prosecution and on
behalf of the defence is recorded and arguments heard.
Small irregularities in the manner of pronouncement or the mode of
delivery do not matter but the substance of the thing must be there; that can
neither be blurred nor left to inference and conjecture nor can it be vague.
Where there has been a verdict of guilty on more counts than one, the
proper course is to deliver and enter up a separate judgment on each count.
Similarly, where several accused are charged jointly, sentence on any who
pleaded guilty should normally be postponed until those who pleaded not
29 Section 135 Magistrates Courts Act 85 Trial on Indictments Act.

30 Samwiri Ssenyange v R (1953) 20 EACA 277.
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guilty have been tried, when all who are guilty should be sentenced together,
33
because the court will then be able to assess the degree of guilty of each.
Where, however, an accused who has pleaded guilty is to give evidence for
the plaintiff against his/her co-accused, he should be sentenced before giving
evidence, but if the court is of the opinion that he/she cannot properly assess
the degree of culpability of that accused until he/she has heard all the
evidence, he/she may postpone sentence until verdicts have been returned on
all the accused.
Evidence given in the trials of co-accused may be taken into account by
the court when assessing the culpability of an accused who has pleaded guilty.
The conviction or order may, if required be afterwards drawn up and shall
be signed by the court making the conviction or order, by the clerk or other
officer of the court.
15.6 MINOR AND COGNATE OFFENCES

The general principle of law is that an accused person should not be convicted
of an offence with which he/she was not charged unless he/she has had a fair
opportunity of defending himself/herself against the alternative offence.
However, in the course of the trial it may come to light that the evidence
adduced does not support the complete offence charged but rather a minor
and cognate offence to the major one.
The Magistrate Courts Act and Trial on Indictments Act both contain
specific provisions for instances where a person can be convicted of an offence
with which he was not charged.
When a person is charged with an offence and facts are proved which
reduce it to a minor cognate offence, he or she may be convicted of the
34
minor offence although he/she was not charged with it.
An offence is minor to another within the above provision, if the
punishment for it is less than the punishment for that other offence. In other
words, to find whether an offence is minor or not vis-à-vis another the test is
the gravity of the punishment prescribed for that offence in relation to the
punishment for that other offence.
An offence is “Cognate” to another if it is of the same genus or species
35
with that other.
33 R v Payne [1950] 1 All ER 102.

34 Section 145 Magistrate Courts Act, section 87 Trial on Indictments Act.
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Judgment 339
The offence for which a person can be convicted, without amending the
charge must be both minor and cognate, i.e:
(a) a person charged with assault occasioning actual bodily harm contrary to
section 236 Penal Code Act can be convicted of common assault contrary
to section 235 Penal Code Act.
(b) a person charged with wounding with intent to maim, disfigure or disable
or … contrary to section 216(a) can be convicted of unlawful wounding
contrary to section 222 Penal Code Act.
(c) a person charged with robbery can be convicted of theft from the person
contrary to section 267(a).
(d) a person charged with disabling in order to commit a felony or
misdemeanor may be convicted of theft from the person contrary to
section 267(a) Penal Code Act.
The general principle to be applied is that an accused person should not be
convicted of an offence with which he or she was not charged unless he or
she had a fair opportunity of making his/her defence to the alternative
36
offence, even if the latter offence is minor and cognate.
Where there are alternative counts and a conviction is recorded on one, a
verdict should not be given to the other. Before a conviction for a minor
offence can be substituted for a major offence charged, the form of the charge
must necessarily give the accused notice of all the allegations going to
constitute the minor offence; it not being a question whether the form of the
charge in a particular case, in fact, gives the accused notice of such
37
allegations.
Similarly, where in the course of hearing an appeal it comes to light that
the evidence adduced does not support the complete offence charged but
rather a minor or cognate offence to the major one, an appellate court has a
discretion to substitute a conviction for the offence proved and proceed to
acquit the appellant of the major offence. In the exercise of such discretion,
38
the court will have to ensure that no injustice is caused to the appellant.
Examples of substituted convictions are:
35 Robert Ndecho and another v R (1951) 18 EACA 171.

36 Dracaku s/o Afia v R [1963] EA 363, R v Nasanaeri Mayanja (1936-51) 6 ULR Funo v Uganda [1967]
EA 632, Ali Mohamed Hassani Mpande v Rep [1963] EA 294.
37 Wachira s/o Njenga v R (1954) 21 EACA 398.
38 R v Cheya and another [1973] EA 500.
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(a) Section 149 of Magistrate Courts Act, a person charged with manslaughter
in connection with the driving of motor vehicle, he/she may be convicted
of any other offence under the Traffic and Road Safety Act.
(b) Person charged with rape may be convicted of Indecent assault (contrary
to section 128 PC) defilement of girl (contrary to section 129 PC)
Procuring defilement by threats (contrary to section 132 PC) Incest
(contrary to section 149 PC).39
(c) Person charged with incest may be convicted of unlawful carnal
knowledge (defilement of girl contrary to section 129 PC) defilement of
idiot contrary to section 130 PC).40
(d) Person charged with defilement of a girl may be convicted of an offence of
(Indecent assault contrary to section 128 PC) of (Procuring defilement
41
contrary to section 132 PC).
(e) Person charged with burglary may be convicted of kindred office42 (house
breaking and burglary contrary to section 295 PC) entering a dwelling
house with intent contrary to section 296 PC) (breaking into a building
and committing a felony contrary to section 296). (breaking into a building
with intent contrary to section 296) (persons found armed with intent
contrary to section 300).
(f) Person charged with stealing may be convicted of receiving or retaining
(contrary to section 314 PC) or obtaining by false pretences or possessing
or conveying stolen property (contrary to section 315 PC) or Unlawful
possession of government etc stores (contrary to section 316 PC).43
(g) Receiving stolen property contrary to section 314 may be convicted of
retaining stolen property.44
(h) Retaining stolen property contrary to section 314 may be convicted of
receiving stolen property.45
(i) Obtaining by false pretences contrary to section 304 may be convicted of
stealing.46
(j) It should be noted however, that a substituted conviction cannot be
entered where the charge on which the accused is tried, is incurably
defective.47
39 Section 150 Magistrate Courts Act.

44 Section154(2) Ibid.
45 Section 154(3).
46 Section 155 (1).
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Judgment 341
15.7 ALTERATION OF JUDGMENT

There is no provision under Magistrates Courts Act and Trial on Indictments
Act which provides for the correction of errors after judgment has been
delivered as it is the case for a civil judgment under the Civil Procedure Act.48
A judgment pronounced in open court is final only when the transcript is
signed by the magistrate or the Judge who delivered it. Until then it can be
altered without causing any legal problems.
The Court of Appeal rules and Supreme Court rules provide for correction
of errors in a judgment as:
A clerical or arithmetical mistake in any judgment of court or any error arising in
it from accidental slip or omission may, at any time, whether before or after the
judgment has been embodied in an order, be convicted by the court, either of its
own motion or on the application of any interested person so as to give effect to
what was the intention of the court when the judgment was given.49
An order of the court may at any time be corrected by the court, either of its
own motion or on the application of any interested person, if it does not
correspond with the order or judgment it purports to embody or, where the
judgment has been so corrected under sub-rule (1) with the judgment so
50
corrected.
In light of these rules, it can be inferred there from that equally the lower
courts, High Court and Magistrate Courts also possess inherent powers to
make corrections to clerical and arithmetical errors arising out of accidental
slip in the judgment.
A clerical or arithmetical error is an error occasioned by an accidental slip
or omission of the court. It represents that which the court never intended to
say. It is an error-apparent on the face of the record and does not depend for
its discovery on argument or disputation. An arithmetical error is a mistake of
calculation, and a clerical error is a mistake in writing or typing.
Any alteration which tends to change the original decision of court that is
not intended to correct clerical or arithmetical errors would amount to gross
professional misconduct. The court has no power to review or revise its earlier
judgment except to correct clerical errors. Even an alteration or modification
in the sentence passed earlier would amount to review in the eyes of the law.
Therefore, the magistrate or Judge must be clear and to the point. This will
47 Uganda v Amisi [1970] EA 291.

48 Section 100 Civil Procedure Act Chapter 71.
49 Rule 36(1) Court of Appeal Rules and rule 35(1) Supreme Court Rules.
50 Rule 3(2) Supreme Court Rules.
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ensure that ambiguity is not created. In case of ambiguity, Sir Udo Udoma CJ
51
in Eneriko Lutalo v R considered the consequences:
The appellants were charged jointly on two counts of robbery with violence and
were found guilty and convicted. They were sentenced to five years
imprisonment each with fourteen strokes of the cane with an approved
instrument.
The incidents in respect of which they were charged took place at the same
time but as two persons where attached, two separate counts were brought.
Both appellants appealed against conviction and sentence. Their appeal
against conviction was dismissed as without merit. As to sentence, counsel for
the respondent submitted that it was ambiguous and the High Court had
power to clarify it on looking at the proceedings to ascertain the Magistrate’s
intention. Sir Udo Udoma was of the opinion that if the sentence passed on
the appellants was legal, then the ambiguity according to him was simply a
question of construction.
He noted in his judgment that:
“Although the order capable of a number of meanings, in an attempt to make
sense out of it, it is the duty of this court (High Court) to give the best possible
construction to the order.”
In sum therefore, Court orders must be clear, precise and lawful.52
15.8 COPY OF JUDGMENT TO ACCUSED

The right to a fair hearing to an accused person demands that he/she be
availed a copy of the judgment. The Constitution provides that:53
A person tried for any criminal offence, or any person authorized by him or her,
shall, after the judgment in respect of that offence, be entitled to a copy of the
proceedings upon payment of a fee prescribed by law.
54
Similarly, the Trial on Indictments Act also provides that:
If any person affected by any judgment or order passed in any proceedings under
this Act desires to have a copy of the judgment or order or any part of the record,
he/she shall, on applying for the copy be furnished with it if he or she pays for it,
unless the court for some special reason thinks fit to furnish it free of cost.
51 [1966] EA 328 see also Recasting (1958) Criminal Appeal Reports 132.
CHAPTER SIXTEEN
SENTENCES
16.1 INTRODUCTION
The law provides that in every trial, when the accused is found guilty and
convicted, the court shall proceed to pass sentence on him or her.
The court having heard the evidence called by the prosecution and the
accused shall either convict the accused and pass sentence upon or make an
1
order against him or her according to law or shall acquit him.
Before the court passes a sentence, it will have to first hear the prosecution
giving information regarding the character and other background of the
accused as well as the prosecution ‘s submission about the nature of the
sentence that should be imposed on the accused and his or her advocate may
address the court usually in mitigation of sentence.
The accused person may also be allowed to say something personally on
his or her own behalf before the court passes the sentence.
2
Therefore, any order of the court made as a consequence of conviction is
understood to mean a sentence.
16.2 INQUIRY BEFORE SENTENCING

The court, before passing any sentence other than a sentence of death, may
make such inquiries as it thinks fit in order to inform itself as to the proper
sentence to be passed, and may inquire into the character and antecedents of
the accused either at the request of the prosecution or the accused person and
may take into consideration in assessing the proper sentence to be passed such
character and antecedents including any other offences committed by the
accused whether or not he or she has been convicted of those offences; except
that:
(a) an accused person shall be given an opportunity to confirm, deny or
explain any statement made about him or her and in case of doubt the
1 Section 133 Magistrates Courts Act or section 82(5), (6) Trial on Indictment Act.
2 Uganda v Hadi Jamal [1964] EA 294.
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court shall in the absence of legal proof of the statement ignore the
statement;
(b) no offence of which the accused has not been convicted shall be taken into
consideration in assessing the proper sentence unless the accused person
specifically agrees that the offence shall not be taken into consideration and
a note of that request shall have been recorded in the proceedings; and
(c) if for any reason the sentence passed by court is set aside, the accused
person 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 above provision, buttresses the view that the proper sentence in any
given case has no mathematical formula and is often the most difficult task of
the court.
The law fixes the ceiling beyond which a court must not go when
imposing a penalty though there are cases where the minimum penalty is
prescribed. However, in the majority of those cases where the court has
power to impose either a term of imprisonment or a fine or both, there is
usually room for discretion in assessing the appropriate sentence in the
circumstances of a particular case.
There is an increasing emphasis on the reformation and rehabilitation of
the accused or offender as a useful and self reliant member of society without
subjecting him or her to the deleterious effects of jail life. On the other hand
there are occasions when an offender is so anti-social that his or her immediate
and sometimes prolonged confinement is the best assurance of society’s
protection. In such cases, the consideration of rehabilitation has to give way,
because of the paramount need for the protection of society.
Therefore, these conflicting demands make the exercise of the discretion,
to punish or not punish and the nature of sentence exceedingly difficult.
It is important that before sentence is passed the accused person is asked to
say whatever he/she wishes to say in mitigation of sentence (allocutus). This
should be strictly adhered to even if the accused person wishes to say nothing
regarding sentence, this fact should be recorded.4
3 Section 98 Trial on Indictment Act and 133(2) Magistrate Court Act.

4 Uganda v Bambeijo and another [1981] HCB 4.
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16.3 FACTORS INFLUENCING SENTENCING
16.3.1 Antecedents of the Accused

Where an accused has previous convictions the court will tend towards
imposing a severe sentence especially if the previous convictions are relevant.5
16.3.2 First Offender

It is the practice of the courts not to sentence a first offender to the maximum
sentence unless there is a good reason to do so.6
16.3.3 Ignorance of Law

Ignorance is not a defence to a criminal charge unless knowledge of the law is
expressly declared to be an element of the offence.7 However, it is well
known that not every person knows all the law of the land. So in such
circumstance the court may be lenient with an accused who was not aware
that it was an offence.
16.3.4 Good Motive

Motive is generally an irrelevant consideration in determining criminal
responsibility.8 But it is sometimes considered when determining the intention
of the accused in committing the crime. When an offence is committed with
good motive, this may be a mitigating factor.
16.3.5 Necessity
Necessity is also not a defence to a criminal charge. But in certain
circumstances, it may be a mitigating factor.
16.3.6 Drunkenness
Drunkenness or Intoxication does not constitute a defence to a criminal
charge unless it amounts to insanity.9 It can be taken into account in
5 Uganda v CPL Lenox Omara [1992-1993] HCB 77, Uganda v Amona Sieto [1991] HCB 2.
6 Arissol v R [1957] EA 447, Mavuta v R [1973] EA 89.
8 Section 8(3) Penal Code.
9 Section 12 Penal Code.
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determining whether the accused had a specific intent required in commission

of an offence. Drunkenness may be a mitigating factor where the offence is
committed under the influence alcohol or drug not amounting to insanity.
16.3.7 Loss of Self Control

A person who commits a crime when he or she has lost his self-control
deserves leniency because of the reduced moral blame worthiness.
16.3.8 Restitution
Where an accused has returned the property stolen to the complainant this is a
factor to be taken into account as part of the convicts mitigating factors.
16.3.9 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 into the crime, is a
relevant factor.
16.3.10 Remand Period

The fact that an accused person has been on remand for a long period is a
mitigating factor. The court is entitled to take into consideration the period
10
the accused has been in custody pending his or her trial.
16.3.11 Co-operation with the Police

Cooperation 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 in public interest that such an offender should
receive an allowance for leniency on this score to encourage others to assist
the police in their enquiries.
16.3.12 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 ore treatment than punishment. Likewise, old age is also a

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Sentences 347
mitigating factor, since courts are reluctant to send very old man die in
11
prison.
16.3.13 Sickness/Illness
Medical evidence of illness of a convict should be brought to the attention of
the trial before sentencing. However, where the medical treatment and
medical facilities are available in prison then this may not be a factor.
16.3.14 The Prevalence of a Particular Crime

This is a factor that the court may take into account. However the court must
desist from making the offender a scapegoat for others who have committed
similar offences and have not been convicted.
16.3.15 The Vvalue of the Property Stolen or Damaged

The fact that the property which is the subject of the dispute is of trifling
value may be a factor to consider.
16.3.16 A Plea of Guilty

This tends to make the court rather more lenient. A plea of guilty indicates
acceptance of blame and normally reflects remorse on behalf of the accused.
16.4 OBJECTIVES OF SENTENCING

Sentencing is the specification of the punishment or criminal sanction which is
to be imposed upon a convict for the crime committed. The major aim of
sentencing is to protect innocent citizens of society from harmful acts of the
criminals.
Therefore, the object of punishment is the prevention of crime, and every
punishment is intended to have a double effect:
(a) To prevent the person who has committed a crime from repeating the act
or omission.
(b) To prevent other members of society from committing similar crimes.
Since punishment is preventive, the penal policy of any country should be to
protect the citizenry and society at large. Sentencing justice is a facet of social
justice.
11 Uganda v Otim s/o Engodu [1980] HCB 2, Uganda v Dirisa Ziraba [1979] HCB 168 .
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The courts should never lose sight of the fact that even the convicted
persons despite having been convicted, still remains a member of society
unless the convict has been sentenced to death.
The protection of society and determining the criminal is the avowed
object of law and that is required to be achieved by imposing appropriate
punishment of such nature which may reflect the social conscience of the
society.
In light of this, true dictates of justice seem to demand that all the
attending relevant circumstances should be taken into account for determining
the proper and just sentence. The sentence should bring home to the guilty
party the consciousness that the offence committed by him or her was against
his/her own interest as also against the interests of the society of which he/she
happens to be a member.
In considering the adequacy of the sentence which neither be too severe
nor too lenient the court has, therefore to keep in mind the motive and
magnitude of the offence, the circumstances in which it was committed and
the age and character (including his/her antecedents) and station in life of the
offender.
Sentences may be divided into two types; punitive sentences (e.g. death,
imprisonment and imposition of fines) and non-custodial sentences (e.g.
community service, probation, caution, discharge, costs compensation and
forfeiture). These types of sentences are derived from the four different
12
theories of punishment which include:
Deterrent, Retributive, Preventive and Reformative theories.
16.5 THEORIES RELATED TO SENTENCING
16.5.1 Deterrent Theory

According to this theory, the punishment is given to deter people from
committing the crime. Emotion of fear plays a vital role in a person’s life.
People fear to commit offence because it will render them to suffer. The fear
of punishment puts a check not only on criminal from committing further
crime but also on all other evil minded. In spite of its weaknesses this has not
entirely been eliminated from the policy of modern court of criminal
jurisdiction. Protection of society and deterring the criminal is the avowed to
be achieved by imposing an appropriate punishment.
12 Principles of Criminal Law O.P Srivastava (4 ed) Eastern book company page 94.
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Sentences 349
The principle aim of punishment was generally accepted to be deterrence,

although one might subscribe to some other principles. The deterrent effect of
a punishment could only be achieved if the sentence imposed for a particular
offence had a proportionate relationship with the gravity of that offence.13
16.5.2 Retributive Theory

This theory is based on the principle of an eye for an eye and a tooth for a
tooth. It is based on the primitive nature of vengeance against the wrongdoer.
The aim was to assuage the angry sentiments of the victim and the society.
The accused should be punished according to the nature of the injury caused
by him/her to the victim. In simple terms, punishment should be in
proportion to the injury caused by the accused.
This theory does not look to the motive but to the intention in
committing the crime. However, in modern times it has lost much of its
efficacy.
16.5.3 Preventive Theory

This theory is also known as “Theory of disablement” as it aims at preventing
the crime by disabling the criminal. In order to prevent the repetition of crime
the offenders are punished with death or imprisonment for life. It has been
criticized by many legal authors, on ground that prevention of crime can also
be done by reforming the behaviour of criminals.
16.5.4 Reformative Theory

The object of punishment according to this theory should be to reform
criminals. The crime is a mental disease which is caused by different anti-social
elements. Therefore, there should be mental cure for criminals instead of
sentencing them to severe punishment. The law should rehabilitate rather
than to avenge the commission of crime.
Therefore, justice demands that all attending relevant facts should never be
ignored while determining the proper and just sentence the punishment
should be curative and corrective because nobody can cure by killing. In
modern times much importance is given to reformation or rehabilitation of
criminals especially young offenders in whose case this theory has very
successfully been applied. However, this theory has failed in cases of
professional and habitual criminals/offenders.
13 Uganda v Adoba [1974] HCB 229.

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In sum, the objectives as seen from the different theories do overlap quite a
great deal. There is neither that can be adopted as sole standard of
punishment. Therefore, it is submitted that the perfect system of criminal
justice is the result of compromise between the underlying principles of all the
theories. The punishment/sentence given should be commensurate with the
gravity of the misconduct. Protection of society and stamping out criminal
proclivity must be the object of the law which can be achieved by imposing
appropriate sentence.
A sentence or a system of sentencing which does not work properly can
undermine respect for law. In order to deter other potential criminals and to
meet social necessity the imposition of appropriate punishment is desirable.
Although it is not possible to formulate any cut and dry formula or
mathematical formula in this respect but object should be to see that crime
does not go unpunished and victim of the crime and society have satisfaction
that justice has been done to them. Aggravating factors cannot be ignored and
mitigating circumstances should get due weight.
16.6 CONVICTION FOR SEVERAL OFFENCES

When an accused is convicted of two or more offences at the same trial the
problem arises as to how he/she should be sentenced. A single sentence
designed to embrace all convictions in respect of different counts is termed as
‘omnibus’ sentence which has repeatedly been held to be illegal.14
If there has been a verdict of guilty on more counts than one, the proper
course is to deliver and enter up a separate judgment on each count.
Where an accused is sentenced on more than one count, it should be
expressly stated in his/her presence and entered on the indictment whether
the sentenced are to be concurrent or consecutive.
Similarly, when an accused is sentenced to punishment of imprisonment in
two or more cases decided at once, the imprisonment should commence “the
one after the expiration of the other” unless the court directs that such
punishment shall run concurrently.15
14 Mohamed Warsama v R (1956) 23 EACA 576, Mwaka Resile (Burton) v R [1965] EA 407.
15 Uganda v Pampilio [1979] HCB 209.
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Sentences 351
16.7 CONSECUTIVE AND CONCURRENT SENTENCES

The general rule is that where a person commits more than one offence at the
same time and in the same transaction, concurrent sentences of imprisonment
should be imposed.16
According to the provisions of Trial on Indictments Act:17
When a person is convicted of one trial of two or more distinct offences, the
High Court may sentence him or her for those offences to the several
punishments prescribed for them which the court is competent to impose, those
punishments, when consisting of imprisonment, to commence the one after the
expiration of the other, in such order as the court may direct, unless the court
directs that the punishments shall run concurrently.
There are, of course, instances where although two or more distinct offences
are committed by an accused, what was involved was really one single
transaction. In such circumstances, it would be improper to award two
sentences to be served concurrently or consecutively.18
An accused should not be put in double jeopardy. He/she can only be
19
convicted and sentenced once. In the case of Muiruri v R , the accused was
st
convicted and sentenced on two counts, shop-breaking and theft (1 count)
nd
and robbery (2 count).On appeal, the conviction and sentenced on the first
count was quashed because theft was an ingredient of both offences arising out
of a single act.
Where the court imposes a sentence of imprisonment on a person who is
serving another term of imprisonment the subsequent sentence will run
consecutively unless the court directs that it shall be executed concurrently
with the former sentence.20
Where an accused is indicted and convicted on more than one count, each
count should normally carry a sentence or penalty. But it is improper where
the offences carry death sentences for the trial court to impose multiple death
sentences. The correct course is for the trial court to pass the death sentence
21
on all the counts but then suspend them except one only.
16 R v Sowedi Mukasa (1946) 13 EACA 97, R v Fulabhai Patel (1946) 13 EACA 179 at 186.
17 Section 2(2) Trial on Indictments Act, section 175(1) Magistrates Courts Act.
18 Seifu s/o Bakari v R [1960] EA 338.
19 [1973] EA 86.
21 Amos Binuge and others v Uganda [1992-93] HCB 29 (SC).
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16.8 DISPARITY IN SENTENCES

Where two or more accused persons are convicted in the same trial similar
sentences should be imposed unless this is precluded by the antecedents of a
particular convict.
Similarly, when two persons are jointly charged and convicted for having
committed an offence it is not always necessary that the sentences imposed
upon them should compare. This is rooted in the fact that although they may
have committed the offence jointly and under the same circumstances,
mitigating factors in respect of each of them might differ considerably.
In the case of Marando v R,22 the appellant and co-accused were convicted
of manslaughter. The appellant, who was a first offender, was sentenced to
four (4) years imprisonment and his co-accused to one day imprisonment. The
trial Judge gave no reasons for the disparity in the sentences. On appeal, the
sentence of four (4) years imprisonment was reduced to three (3) months
imprisonment. The court took into account the fact that the appellant had
been in pre-trial custody for 14 months. The court also observed the appellant
would suffer justifiable feeling that he has been a victim of injustice.
However, the fact that one accused has received a much shorter sentence
than his co-accused is not necessarily a ground, on appeal for interfering with
long sentence imposed on the other unless the appellant shows that he/she has
particularly received too long a sentence.
Where several accused are charged jointly, sentence on any who plead
guilty should normally be postponed until those who pleaded not guilty have
been tried, when all who are guilty should be sentenced together, because the
court will then be able to assess the degree of guilty of each.
When an accused who has pleaded guilty is to give evidence for the
prosecution against his co-accused he/she may be sentenced before giving
23
evidence . However, where the Judge is of the opinion that he cannot
properly assess the degree of culpability of that accused until he/she has heard
all the evidence, he/she may postpone sentence until verdicts have been
returned on all the accused.
Evidence given in the trials of co-accused may be taken into account by
the Judge when assessing the culpability of an accused who has pleaded guilty.
An accused who is sentenced before giving evidence may be brought back
to have his sentence increased or decreased at the end of the trial, but the basis
22 [1980] KLR 114.

23 R v Payne [1950] 1 All ER 102.
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Sentences 353
that the evidence he gives differs from that raised by way of mitigation in his
24
own trial.
16.9 TYPES OF SENTENCES

Criminal Courts have powers to pass only such sentences as are authorised by
law. The Ugandan Penal Code provides for the following punishments death,
imprisonment for life, imprisonment, forfeiture of property, compensation
caution and fine.
16.9.1 Death Sentence

Under the Penal Code there are certain crimes for which death is the only
sentence or one of the sentences to be given to an accused person i.e. murder,
Treason, Aggravated robbery, Aggravated defilement. It is believed that these
classes of convicts are very dangerous and should be permanently kept way
from society. The provisions that provide for death sentences are couched in
mandatory terms and it does not give the court any sentence; for example:
25
(a) “Commits an offence and shall suffer death”
(b) “Any person convicted of murder shall be sentenced to death”26
The sentence of death shall be carried out by hanging.27
When any person is sentenced to death, the sentence shall direct that he or
28
she shall suffer death in the manner prescribed by law.
Where a woman convicted of an offence punishable by death is found to
be pregnant, the sentence to be passed on her shall be a sentence of
imprisonment for life instead of death.29
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
30
offence was committed he/she was under the age of 18 years.
The mandatory nature of a sentence of death has been challenged in the
case of Kigula and 417 others v A.G,31 all those then 417 death row inmates
24 R v Stone [1970] 2 All ER 594

25 Section 23 (Treason ) Penal Code.
26 Section 189 Murders PC, section 286(2) This was amended to “shall be liable to suffer death”.
29 Section 102 Ibid.
30 Section 105 Ibid.
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brought proceedings challenging the mandatory death sentences imposed on

them. The petitioners relied on three issues:
(a) Whether death penalty is inhuman and thus contravenes the Constitution.
(b) Whether the automatic or mandatory nature of sentence of death is
arbitrary and disproportionate.
(c) Whether the delay in execution was cruel and in-human and degrading.
Although the court did not strike the death penalty down, it found that the
mandatory nature of its imposition was unconstitutional because it did not
provide the individuals concerned with an opportunity to mitigate their
sentences. The Supreme Court of Uganda sitting as the constitutional appeal
court has upheld the decision of the constitutional court on similar grounds
and found that death sentence was constitutional.
This decision has noted that the discretion of court has been taken away by
the mandatory provisions. The courts have acknowledged that there may be
several mitigating factors to the death penalty. The following are relevant
aggravating and mitigating factors in sentencing of murderers:
(a) Type and gravity of murder;
(b) Mental state including degree of diminishing responsibility;
(c) Other partial excuses i.e. provocation or undue influence
(d) Lack of premeditation;
(e) Character and social inquiry reports;
(f) Remorse;
(g) Capacity for reform and continuing dangerousness;
(h) Views of the victim’s family;
(i) Delay up until time of sentence and prison conditions;
(j) Guilty pleas;
(k) Prison conditions;
The Supreme Court has set a precedent which may be re-enacted in different
legislations of commuting death sentence if the death sentence could not be
carried out for sometime due to the delays of the criminal justice system. It is
submitted that the sentence of death in a given case must consider several
factors surrounding the case but basically must depend upon the atrocity of the
31 Constitution Court Petition Number 6 of 2003.

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Sentences 355
crime, the conduct of criminal and the defenseless and unprotected state of the
victim.
In some jurisdictions, where death penalty was attracted earlier, like India,
the court has refused to fetter its discretion. It seems the court has been
limiting the number of death sentence by evolving what is called “rarest of
rare cases”. Only in the rarest of the rare cases do the courts award death
32
penalty.
In order to safeguard against the misuse of the discretion, the courts should
state the reasons for the sentence in their judgment i.e. special facts and
circumstances in a given case.
The requirement that the judgment shall state the reasons for the sentence
awarded would be a good safe guard to ensure that the lower courts examine
the case s elaborately from the point of view of sentence as from the point of
view of guilt.
It would also provide good material at the time when the person’s file is
forwarded to the Advisory Committee on the Prerogative of Mercy.33 It
would further increase the confidence of the people in the courts by showing
that the discretion is judicially exercised.
Honourable Abdulai O Conteh Chief Justice of Belize has noted34 that
various guidelines for sentencing are emerging from different cases and
practice directions in respect of death sentence:
1. There need to give prior notice by the prosecution that at the trial; if
conviction ensures, it will call for the death penalty and state the reasons
for doing so.
2. There must, after conviction, be held a sentencing hearing by the trial
Judge in open court.
3. There is emerging under the discretionary regime, the position that the
death penalty is reserved for only the worst cases of murders, often without
any or significant mitigating factors. That is the worst of the worse.
4. There is an emerging recognition that the sentence should as far as possible
be in favour of life; there is no longer any presumption in favour of the
death penalty.
32 Shivaji Jaising Babar v State of Maharashtra (19991)4 SCC 375, Daya Suigh v Union of India (1991) 3
SCC 471.
34 A Paper/address delivered at Judicial Colloquium and Sentencing Training in Uganda Sheraton
Hotel 4-5 September 2007 by Honourable Abdulai O Conteh Chief Justice of Belize.
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5. The prosecution must make out its case that the death penalty is the only
appropriate penalty. The burden of proof is therefore on the prosecution
and standard of proof is beyond reasonable doubt.
6. The sentencing court has power to call for or receive social inquiry report
on the person on whom sentence is to be passed.
7. The sentencing Judge must of course; state his/her reasons for sentence, in
particular the grounds on which the death penalty should be imposed.
8. Life imprisonment in lieu of the death penalty is not the only term of
punishment available under the discretionary sentencing system.
16.9.2 Imprisonment
An imprisonment occurs when the sentencing orders commit a person into
custody at a prison for a specified period of time.
The judicial basis of imprisonment is premised on punishing those who
wronged society by inflicting suffering of the body. It is therefore, the first
thing that springs into mind when listing consequences of a person being
found guilty of a crime by the court.
In the case of a large majority of offences the Ugandan Penal Code and
other Penal laws provide punishments of imprisonment of varying terms.
Normally these laws prescribe the maximum term of imprisonment awarded
in respect of any offence.
The law does not, except in very exceptional circumstances, prescribe the
minimum term of imprisonment that the court must, in the least award for an
offence.
Where the offence is punishable with imprisonment the policy of our law
is to give adequate discretion to the court awarding a suitable term of
imprisonment.
Imprisonment is intended to rehabilitation and deterrence as well as
punishment for the offender.
The sentencing powers of magistrates are provided for under section 162:35
1. Subject to any limitation contained in any written law, on conviction the
following provision shall have effect:
(a) A Chief magistrate may pass any sentence authorised by law;
35 Magistrate Courts Act Chapter 16.

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Sentences 357
(b) A magistrate grade I may pass a sentence of imprisonment for a

period not exceeding ten years or a fine not exceeding one million
shillings both such imprisonment and fine.
(c) A magistrate grade II may pass a sentence of imprisonment for a
period not exceeding five hundred thousand shillings or both such
imprisonment and fine.
The High Court may pass any sentence authorised by law.
Life Imprisonment
This is a sentence for a serious crime often for most or even the entire
criminal’s remaining life, but in fact it is usually for a specified period.
In all jurisdictions without capital punishment (death penalty) life
imprisonment (especially without the possibility of parole) - constitutes the
most severe form of criminal punishment. As the country moves towards
abolition of mandatory death sentence, the trend will automatically indicate an
increase in sentence to life or life imprisonment for such offences that are
supposed to carry a death sentence.
In Uganda, the maximum sentence of life imprisonment is equivalent to a
sentence of 20 years.36
The Prisons Act provides that:37
For purposes of remission of sentence, imprisonment for life shall be deemed to
be twenty years imprisonment
16.9.2(a) Mitigation of Penalties

The court exercises discretion in awarding a suitable term of imprisonment. In
exercising this discretion the court takes into consideration several factors,
such as the gravity of the offence, the motive of the offender, the harm caused
to the victim, the circumstance in which the offence was committed, age,
character and antecedents of the offender e.t.c
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.
36 Wasaja v Uganda [1975] EA 181, Yunus Wanaba v Uganda C.O.A. Cr. Appeal 156/2001 reported in
[2001- 2005] HCB 25.
37 Section 86(3) Prisons Act 17 of 2006.
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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
38
where the offence is particularly grave or aggravated or prevalent in the area.
The tendency is to be more lenient to an offender who appears likely to
reform than to a hardened criminal. Naturally, a first offender who pleads
guilty attracts sympathy and is entitled to a degree of leniency.
The judicial discretion in awarding the sentence of imprisonment is to an
extent canalised and guided by law. For instance, by prescribing the maximum
term of imprisonment awardable in respect of any offence, the law thereby
indicates to the court the punishment which is to be awarded for the offence
of its gravest kind. Therefore it is rarely necessary in practice to go up to the
maximum.
In this connection it must be emphasized that it is now settled law that the
expression “shall be liable to” appearing in any provision of the law
prescribing a penalty for an offence, in no way means that the sentence
prescribed is mandatory. In other words, the court still has discretion to
39
impose a lesser penalty.
A person liable to imprisonment for life or any other period may be
40
sentenced for any shorter term.
A person liable to imprisonment may be sentenced to pay a fine in addition
to or instead of imprisonment.41
Imprisonment in Uganda is only served from a prison. A prison is a place
of confinement for those accused or convicted of contravening the laws of the
country after conviction.
A person can also be understood to refer to a gazetted place in which
individual are deprived of a range of personal freedoms.
Every sentence of imprisonment passed by a court shall be served in a
42
prison administered by the Government or by the administration of a district.
38 R v Yozefu Maria Matovu Crim Rev Number 36 of 1961 ( unreported).

39 Opoya v Uganda [1967] EA 752.
40 Section 178(1) Magistrates Courts Act or section 108(1) Trial on Indictment Act.
41 Section 178(2) ibid or section 108(2) ibid.
42 Section 177(1) ibid or section 107(1) ibid.
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Sentences 359
16.9.3 Fine
Fines are usually prescribed as a punishment for offences which are not of a
serious nature. Fine is sometimes provided as a punishment to be imposed in
addition to imprisonment or as an alternative to sentence of imprisonment. A
sentence of imprisonment without the option of a fine, even though it is
allowed by the Act, should be exercised with great caution.
Usually the law prescribes the maximum limit to which the fine may
extend; the minimum is not normally fixed. The sentencing powers of
magistrates are provided for under the Magistrate Courts Act as noted earlier
in this chapter.43
The court while exercising the discretion in fixing the amount of fine will
take into consideration several circumstances. The law has set some guidance
44
on such limitations as follows:
Where a fine is imposed by a magistrate’s court under any law, in fixing the
amount of fine, the court shall take into consideration among other things, the
means of the offender so far as they are known to the court; and in the absence of
express provisions relating to the fine in any such law, the following shall apply-
(a) Where no sum is expressed to which the fine may extend, the amount of
fine which may be imposed is unlimited, but shall not be excessive;
(b) In the case of an offence punishable with a fine or a period of
imprisonment, the imposition of a fine or a period of imprisonment shall
be a matter of discretion of the court;
(c) In case of an offence punishable with imprisonment as well as a fine in
which the offender is sentenced to a fine with or without imprisonment,
and in every case of an offender punishable with a fine only in which the
offender is sentenced to a fine, the court passing sentence may in its
discretion:
(i) direct by its sentence that in default of payment of the fine the
offender shall suffer imprisonment for a certain period, which
imprisonment shall be in addition to any other imprisonment to
which he or she may have been sentenced or to which he or she
may be liable under a commutation of sentence; and also
(ii) issue a warrant for the levy of the amount on the immovable and
movable property of the offender by distress and sale under warrant;
except that if the sentence directs that in default of payment of the
fine the offender shall be imprisoned; and if the offender has
undergone the whole of such imprisonment in default, no court

44 Section 180.
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shall issue a distress warrant unless for special reasons to be recorded

in writing it considers it necessary to do so;
(d) the period of imprisonment ordered by court in respect of nonpayment of
any sum of money adjudged to be paid by conviction or in respect of the
default of a sufficient distress to satisfy any such sum shall be such term as
in the opinion of the court will satisfy the justice of the case, but shall not
exceed in any case the maximum fixed by the following scale:
Amount Maximum Period
Not exceeding UShs 2 000 7 days
Exceeding UShs 2 000 but 1 month

not exceeding 10 000
Exceeding 10 000 but not 6 weeks

exceeding 40 000
Exceeding UShs 40 000 but 3 months

not exceeding 100 000
Exceeding 100 000 12 months
(e) The imprisonment which is imposed in default of payment of a fine shall

terminate whenever the fine is either paid or levied by process of law.
New legislation on Fines

The existing law on fines has been revised by The Law Revision (Fines and
45
other Financial amounts in Criminal Matters) Act, 2008.
It is provided that; In any written law to which this Act applies and in
force immediately before the commencement of this Act, Where a fine is
prescribed in relation to a term of imprisonment, the ratio of the fine to
46
imprisonment shall be two currency points to each month of imprisonment.
Section 180(d) of the Magistrates Courts Act has been amended as
follows:47
45 Act 14 of 2008.
46 Section 3(1) The Law Revision (Fines and other Financial amounts in Criminal Matters) Act,
2008.
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Sentences 361
“Amount Maximum period

Not exceeding 0.5 of a currency point 7 days
Exceeding 0.5 of a currency point but not
exceeding one currency point 14 days
Exceeding one currency point but not exceeding
two currency points 1 month
Exceeding two currency points but not
exceeding three currency points 6 weeks
Exceeding three currency points but not exceeding
six currency points 3 months
Exceeding six currency points 12 month”
Similarly, section 110(d) of the Trial on Indictment Act relating to
imprisonment for non-payment of fines shall have effect with substitution for
48
fines and periods as specified here in below:
“Amount Maximum period
Not exceeding 0.5 of a currency point 7 days
Exceeding 0.5 of a currency point but no
exceeding one currency point 14 days
Exceeding one currency point but not exceeding
two currency points 1 month
Exceeding two currency points but not
exceeding three currency points 6 weeks
Exceeding three currency points but not
exceeding six currency points 3 months
Exceeding six currency points 12 months”
A currency point is equal to twenty thousand shillings (20 000).
The imprisonment awarded by a magistrate in accordance to the above scale
may be in addition to a substantive sentence of imprisonment for the
maximum term awardable by the magistrate where the earlier sentence was
both for imprisonment and a fine.

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Where the offence is punishable with the fine only, imprisonment which
the court imposes in default of payment of the fine shall be simple and the
term for which the court directs the offender to be imprisoned in default of
payment of fine shall not exceed what is provided for under the scale.
The courts prefer to award a fine in place of imprisonment where the
offence carries an option for a fine or imprisonment. This is intended to
address the issue of congestion of the prison. Imposition of a fine is to be
preferred irrespective of the accused’s earning capacity.
In Mita v R,49 the trial magistrate sentenced the appellant to two months
imprisonment although she was a first offender because he did not think a fine
would serve any purpose as the appellant appeared to be earning a lot of
money. On appeal, the High Court set aside the custodial sentence and held
that it was not wrong to impose a fine unless the circumstances of the case
irresistibly precluded this mode of punishment irrespective of a man’s earning
capacity;
“… the contrary cannot be correct otherwise every well-paid accused person,
irrespective of the nature of the offence would be sent to prisons by the courts
without the option of a fine.”
50
Similarly in the case of Chander Kanta Sethi v R, imprisonment without the
option of a fine was imposed on the sole consideration that the accused should
not be allowed to buy her way out. On appeal, the Supreme Court of Kenya
held inter alia that the magistrate was not correct in holding that if a fine was
imposed the offender was being allowed to buy her way out of the
consequences of the act for which she had been convicted.
As per Rudd Ag CJ:
“… We do not consider that this is a proper way of deciding the nature of the
sentence which should be imposed … We consider it irrelevant that any fine that
might be imposed would be paid by the appellant’s husband and relations …”
It has been specifically provided that where no sum is expressed to which a
fine may extend, the amount of fine shall not be excessive. In the case of
Mohamed v R,51 it was held that a fine twice the value of property under
litigation was excessive and the fine was reduced to the corresponding value of
the chattel.
49 [1969] EA 598.
50 [1962] EA 523.
51 [1969] EA 287 See also Ahmed Hirsi Mohamed v R [1958] EA 63 the appellant should not be
sentenced to both imprisonment and a fine.
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Sentences 363
The court should exercise the discretion to impose a fine with a judicial
52
mind . The test a trial court should apply is whether justice would be better
53
served by a fine or imprisonment. In the case of R v Ratila A. Lakhan, the
appellant was bankrupt and was convicted on two counts of failing to keep
any books of accounts of his kerosene business and failing to keep the same in
respect of his shop. He was sentenced to a fine of Kshs 500 on each count.
The official receiver applied for the revision of the sentence to the Supreme
Court urging that the fine was either to be paid out of the general funds in the
hands of the official receiver, in which his creditors would suffer, or it would
be paid by his or her relatives. The Supreme Court held that it was wrong in
principle to impose a fine for bankruptcy offences because the bankrupt
cannot pay his debts and hence cannot pay a fine without further prejudicing
his creditors.
16.9.4 Probation
This type of sentence is geared towards reforming the offender and
rehabilitating him or her into society. It is therefore a combination of both
treatment and punishment in the context of community corrections. The idea
of the probation system is that an offender, instead of being imprisoned or
fined or bound over, is placed under the supervision of a probation officer so
that his/her rehabilitation is the main object. A probation order helps the
offender to help himself or herself, for without his or her willing cooperation
the order will fail to achieve any results.
It is governed by the Probation Act which provides that; Every court has
jurisdiction to use the Act where a person has been convicted of any offence
the sentence for which is not fixed by law.
The following have been stated as being the positive advantages of the
probation system:54
(a) The stigma of imprisonment is avoided, at what might be a vital stage of
the person’s development;
(b) He or she is saved from the contamination that is inevitable if he or she is
sent to prison;
(c) If he or she behaves himself or herself the probationer will not have a
conviction recorded against him or her which might prevent him or her
from getting a good job in the future;
52 Mwaitebele v R [1970] EA 659.

53 [1958] EA 140.
54 A Handbook for Magistrates Revised Edition 2004 page.279 Published by Law Development Centre.
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(d) He or she can continue his or her education or work.

(e) Youthful offenders can continue to help elderly parents; a mother can
continue to look after her children.
(f) A probationer will have a “ father figure” who will listen to his or her
troubles and help him/her to avoid the kind of temptations that got
him/her into trouble in the first place;
(g) The overcrowded prison will not be burdened with extra prisoner who if
he/she responds to probation will never see the inside of a prison.
The first consideration for placing a person on probation is that he/she is
repentant or remorseful for what he has done and is willing to learn and
reform in order to become a good citizen for the future. The court should
exercise sensible discretion in deciding whether a case is suitable for probation
or not.
The law requires court to take into account all circumstances, including
the nature of the offence and the character of the offender before the order is
made.55 It is essential that due inquiries be made available from available
56
sources. This will usually require asking the local probation officer for a
report. The report may reveal any information about the reasons why the
particular crime was committed which would never be revealed to court or to
the police.
A court should only put a person on probation if it is satisfied that he or
she was likely to benefit from it.
57
In the case of Kabeni v R, the appellant pleaded guilty to a charge of
attempted suicide and was sentenced to six months imprisonment in allowing
the appeal against sentence, Trevelyan J noted:
“It would have been far better had the magistrate realized that an accused such as
the appellant in this case needs sympathy and help rather than punishment. What
useful purpose can a period of six months imprisonment serve in circumstances
such as we have here? A probation officer’s report should be obtained as a matter
of course before a person convicted of such an offence is dealt with”
The court is required to explain to the accused the effect of the order and
inform him/her of the consequences of any breach.
After this careful inquiry the court may then make an order subjecting the
probationer to supervision for a probation period of not less than one year and
55 Section 2(1) Probation Act Chapter 122.

57 [1970] EA 503.
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Sentences 365
58
not more than three years from the date of the order . The law thus
recognises that a very short period of probation is likely to be of little use.
Therefore, the probation period should be reasonably long so as to give the
forces of rehabilitation sufficient time to work and attain the desired result
where possible.
A probation order shall contain such requirements as the court considers
59
necessary for securing the supervision of the offender. However, the court
may at its discretion, impose additional conditions such as residence or other
matters as the court thinks fit, to secure the good conduct of the offender and
to prevent the repetition of the offence for which he/she stands convicted, or
the commission of other crimes.60 Therefore, the probationer must be within
the jurisdiction of the court and within reach of the probation officer so as to
ensure effective supervision.
If at any time during the probation period, it appears that the probationer
has failed to comply with any of the requirements of the order, the court may
issue a summons requiring the probationer to appear at the place and time
specified therein, or may if there is information on oath; issue a warrant61.
Where failure to the requirement of a probation order is alleged against a
probationer, it must be clearly put to him and if he or she does not admit the
breach unequivocally, the issue must be tried just as if the probationer were
charged with an offence.62
If it appears to a magistrate that a person in whose case a probation order
has been made has been convicted by a court in any part of Uganda of an
offence committed during the probation period, and has been dealt with in
respect of the offence, the magistrate may issue summons requiring that person
to appear at the place and time specified therein.63
Where it is proved to the satisfaction of the court by which a probation
order was made (or of the supervising court) that the person in whose case an
order was made has been convicted and dealt with in respect of an offence
committed during the probation period, the court may deal with him or her
58 Section 3(1) Probation Act.

62 R v Devine [1956] 1 All ER 548, R v Chapman and Pidley [1960]1 All ER 452 Practice Number
[1965] I WLR 1512.
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for the offence for which the order was made, in any manner in which it
64
could if he or she had just been convicted by that court of that offence.
The court by which a probation order was made may upon an application
made by the probation officer, or the probationer, discharge the order65. The
probation officer in charge of the case may consider that the probationer has
responded so well to his supervision that there is no further point in order
66
being continued.
16.9.5 Preventive Detention

In order to prevent the commission of certain offences provisions have been
made to enable the authorities to keep a watch on the whereabouts of persons
indulging in such crimes. This preventive detention is intended to protect the
public from the menaces of a habitual criminal. Public interest demands that
criminal offenders who prefer to make crime their business and are not
prepared to reform should be kept away from society for longer periods.
The law provides for preventive detention in order to achieve the above
object. A magistrate grade I, on conviction, pass a sentence of preventive
detention in accordance with the Habitual Criminals (Preventive Detention)
67
Act.
The eligibility of a convicted prisoner to preventive detention is provided
under section 2(1).68
When a person who in the opinion of the court is not less than thirty (30) years
of age:
(a) is convicted of an offence punishable with imprisonment for a term of two
years or more.
(b) has been convicted on at least three previous occasions since reaching, in
the opinion of court, the age of sixteen years, of offences punishable with
such a sentence, and was on at least of those occasions sentenced to
imprisonment, then, if the court is satisfied that it is expedient for the
protection of the public, that he or she should be detained in custody for a
substantial time the court may pass on him, in addition to, or in lieu of any
other sentence, a sentence of preventive detention for such term of not less
than five nor more than fourteen years as the court may determine.

65 Section 10 ibid.
66 Ibid.
68 Habitual Criminals (Preventive Detention) Act Chapter 118.
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Sentences 367
Provided that where a sentence of preventive detention is passed in addition

to any other sentence, the total term of preventive detention and
imprisonment shall not exceed fourteen years.
Under section 1(2)(a),69 a person cannot be sentenced to preventive
detention unless the Director of Public Prosecutions has asked for such a
sentence in person or in writing. However, the proviso to this subsection
makes it clear that the Director of Public prosecutions’ request does not fetter
the discretion of the court whether preventive detention should or should not
be imposed.
Therefore, the court has the discretion to impose a sentence of preventive
detention.
70
In the case of Uganda v Yosefu Ojok court noted that it is not the law that
simply because the Director of Public Prosecutions has applied for a sentence
of preventive detention, it must automatically follow. It still remains the duty
of the court to exercise its discretion judicially whether or not a sentence of
preventive detention should be imposed.
In deciding whether to order a sentence of prevention detention the court
should give consideration to the period between the current conviction of the
accused and the time he/she was last discharged from prison. If the accused
has been for a long period without conviction, this is an indication that he/she
has made an effort to live a straight life. To justify a sentence of preventive
detention the offence he/she is convicted of, must have been a serious one
71
and not trivial.
Even if the accused has had a series of previous convictions his/her last
conviction must not only be the same in character as the current one but also
proximate in time.
The law enjoins the Director of Public Prosecutions to give at least three
days notice in writing to the offender that it is intended to prove his/her
72
previous convictions. The service must be proved and the previous
73
convictions must be proved or expressly admitted by the offender. .
Where a sentence of preventive detention is passed on addition to an
ordinary term of imprisonment it takes effect immediately on the expiration of
the ordinary sentence of imprisonment. Thus, the court has no power to
69 Ibid.
70 [1970] EA 575.
71 Uganda v Patrick Lutaya MB 65 of 1970.
72 Section 1(2)(b) Habitual Criminals (Preventive Detention) Act.
73 Mustafa Hussein v Uganda MB 182 of 1968.
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order a sentence of preventive detention to run concurrently with a sentence

of imprisonment imposed at the same time.
Section 4 provides that:74
A sentence of preventive detention passed in addition to a term of imprisonment
shall take effect immediately on the determination of the sentence of
imprisonment, whether that sentence is determined by effluxion of time or by
order of the President.
75
The Prisons Act also provides that:
Habitual criminals are supposed to be released on licence only.
16.10 ORDERS RELATED TO SENTENCING

There are certain orders which a court is empowered to make after or even
before convicting or acquitting the accused. Although some of these orders
may not be necessarily punitive in nature they are connected with the
sentencing process.
In fact, some of these orders are compensatory in nature in that someone,
whether complainant or the accused or a witness, will enjoy material benefit
in consequence of the order.
There are, of course, others whose main purpose is to rehabilitate the
criminal offender and make him a good citizen.
16.10.1 Compensation
The courts are empowered to order compensation to be paid by an accused in
the event of a conviction to any person, whether or not he/she is a prosecutor
or witness, who appears from the evidence to have suffered material loss or
personal injury in the consequence of the offence committed by the accused
and who, in the courts opinion would be entitled to substantial compensation
in civil proceedings.
Section 197(1) of the Magistrate’s Court Act provides:76
When any accused person is convicted by a magistrate’s court of any offence and
it appears from the evidence that some other person, whether or not he or she is
the prosecutor or a witness in the case, has suffered material loss or personal
injury in consequences of the offence committed and that substantial
74 Habitual Criminals (Preventive Detention) Act.

75 Section 87 Prisons Act.
76 See also section 126 of trial on Indictments Act.
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Sentences 369
compensation is in the opinion of the court, recoverable by that person by civil

suit, the court may, in its discretion and in addition to any other lawful
punishment, order the convicted person to pay to that other person such
compensation as the court deems fair and reasonable.
Any victim of robbery must be compensated and payment of compensation is
77
mandatory . Therefore, the court can order such compensation to be paid in
addition to any other punishment. It is solely in the discretion of the court to
order compensation and decide what is fair and reasonable in the
circumstances.
In the case of Mukindi v R,78 the court made this observation on the power
to award, compensation.
“… Should only be used in the dearest, cases as when a person has suffered a
comparatively minor physical, injury or has been deprived of property or whose
property has suffered damage, and such deprivation or damage is of readily
ascertainable and comparative small value.”
Before an order of compensation can be made it would appear that three
conditions must be satisfied:
(a) someone must have suffered material loss or personal injury.
(b) substantial compensation in the opinion of the court must be recoverable
by that person by way of a civil suit.
(c) the court must in the inquiry give the persons likely to be affected by the
order, especially the convicted person, an opportunity of being heard.
He/she should be called upon to show cause why an order for
compensation should not be made. To proceed without such a hearing
would amount to unfair trial or denial of natural justice.79
The expressions ‘material loss’ and ‘substantial compensation’, have not been
defined in the legislation. But the correct meaning of these expressions was
80
given by Saied Ag CJ (as he then was) in Uganda v Silvano Okanytho.
When he noted:
“I respectively agree that substantial compensation, read in the full context of the
section must mean a relatively large sum of money and in weighing the
circumstances of the case, the trial court must inevitably consider whether the
personal injury which the complainant suffered is of such a nature as will enable
him to recover such a relatively large sum of money by an award in a civil action.
77 Byamugisha v Uganda [1987] HCB 4, Nkera v Uganda [1984] HCB 3.

78 [1966] EA 425.
79 Haining and others v Republic [1972] EA 133, Selemani v Republic [1972] EA 269.
80 Criminal Revision Number 239 of 1975 (unreported).
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It follows in my opinion, that where the personal injury complained of is minor,

as it seems to be in this case, or of such a nature that in the opinion of the court it
cannot or will not attract substantial compensation in a civil action, then the
provisions of section 209(1) (now section197) will not apply. In other words, just
because someone has been injured and another convicted of assaulting him is not
in itself the sole intention for the application of this section; to think it is of
universal application in such cases is a manifest fallacy.”
The court must, therefore make the necessary inquiry in order to satisfy itself
that circumstances exist that justify an order of compensation.
However, it bears emphasis that a criminal court should be left free to
concentrate on deposing of criminal cases and this cannot be achieved if it
were involved in quantifying monetary damages for major injuries.
In addition, it must be clearly understood that an order for compensation
does not in any way fetter the victim’s right to subsequently proceed against
the convicted person by way of civil action if he/she so wishes.
The function of a criminal court is to punish the offender while that of a
civil court is to make the wrong doer compensate for the loss or injury caused
to the aggrieved party. However, if these two procedures can be combined
without affecting the criminal and civil process, it would be just and expedient
to do so as it would save money in seeking remedies in two different courts
and it would save court’s valuable time.
16.10.2 Mandatory Compensation

There are certain offences in the Penal Code where it is mandatory upon the
court to order compensation. These are offences where even the amount to
be awarded is fixed and the court has no discretion in determining the amount
awardable.81
This means that compensation is part of the sentence and is mandatory.
The amount of compensation is unlimited provided, of course, that it is
just having regard to the injury or loss suffered by the victims. In case more
than one accused are convicted in the course of a joint trial, they are jointly
and severally liable to pay the compensation awarded.82 It should be noted that
under the same provision payment can be enforced by way of execution of
the orders as if it were a decree in a civil suit.
81 Section 286(4), section 270.

82 Uganda v Yozefu Nsekuye Crim Rev Number 74 of 1970, R v Grungy Moorhouse [1974] 1 All ER
292.
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Sentences 371
The order of compensation should state specifically to whom

compensation is to be paid. Any order for compensation shall be subject to
appeal and no payment of compensation shall be made before the period
allowed for presenting the appeal has elapsed or, if an appeal is presented
before the determination of the appeal.83
16.10.3 Restitution
The court has a discretionary power to make orders disposing of the exhibits
in cases where some goods or property are produced as exhibits. Whenever
property is brought before a court in connection with an offence, the court
has power, in appropriate cases, to order that the property be restored to the
original owner or any person entitled to it.
Where a person has been convicted (on a plea of guilty or after trial of
stealing, taking, obtaining, extorting, converting or disposing of or receiving
any property and the time owner has been ascertained a restitution order shall
be made.84 It seems proper to order restitution where the accused is not
claiming ownership of the property in question. If goods (as defined in the
Sale of Goods Act) have been obtained by fraud or other wrongful means, not
amounting to stealing, then the property in such goods does not revert in the
person who was the owner of the goods by reason merely of conviction.85 The
section does not apply where any valuable security is involved which was
taken or received in good faith for just and valuable consideration without
86
notice or reasonable cause to suspect that it was stolen.
The court also has special powers in respect of any property found on an
accused person charged with an offence, upon his/her arrest. The property (or
a part thereof) can be ordered to be restored to the person who appears to the
court to be entitled thereto, if it is not the accused. If the court considers that
the accused is the true owner, it may direct that the property be resorted to
him/her or to such other person that the accused might authorise to receive
87
it.
In addition, the court has discretion to direct that any property found on
the accused be applied to the payment of any fine, costs or compensation
directed to be paid by him/her.88
83 Section 197(3) MCA and section 126(3) TIA.

84 Section 201(1) MCA or 130(1) TIA Shaban Mugabi v Uganda [1995]111 KALR 87.
85 Section 201(2)(a) ibid and section 130(2 (a) ibid.
86 Section 210(2)(b) ibid and section 130(2)(b) ibid.
87 Section 200(a) MCA or section 129(9) TIA.
88 Section 200(b) MCA or section 29(b)TIA.
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16.10.4 Forfeiture
Orders of forfeiture are automatic upon conviction of an offender for such
crimes where it is prescribed. It follows that the convicting court is not in law
required to make an order of forfeiture. The basic idea of forfeiture is either to
deprive the accused of the fruits of his crime or to remove from his possession
instruments or materials which would aid him in committing further crimes.
The court has powers to order the disposal by way of forfeiture,
confiscation or otherwise of any property produced before it regarding which
any offence appears to have been committed or which has been used for the
commission of or to facilitate the commission of any offence.89
It would appear that there need not have been a conviction before an
order of forfeiture can be made. Indeed, the order can even be made before
the conclusion of the trial.
In addition, the language of the provision is such that the property in
connection with which the order is being made need not necessarily have
been used to commit or facilitate the commission of the offence being tried.
Provision is also made for the order of forfeiture of property in respect of
which no evidence has been called during the trial. But this is only so after the
accused has been convicted and the prosecution has produced the property
before the court.90
In the case of Saleh v R91 an appellant was convicted under the Customs
and Excise Act for unlawfully keeping the spirituous liquor (chang’aa). Both
the chang’aa and the vehicle in which it was carried were forfeited. On appeal
it was contended that the owner of the car should have been given the
opportunity of showing cause against the forfeiture. It was held that forfeiture
was not discretionary and the conviction acted as forfeiture without further
order. The remedy available to an owner of a vehicle used without his
knowledge is to apply to the relevant Minister. The Court of Appeal further
held that there was no power for the making orders of for feature as it was
authorise on conviction.
The courts power to order forfeiture should be exercised judicially and not
arbitrary since forfeiture is a penalty. The court should before making any
order of forfeiture make an inquiry as to whether or not the property about
which an order of forfeiture, confiscation etc is being contemplated belongs to
the accused or to some other person privy to the commission of the offence. If
89 Section 131(1) TIA and 202(1) MCA.

90 Section 131(2) ibid and 202(2) ibid.
91 1975] EA 251.
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Sentences 373
in fact it belongs to some person other than the accused, that person must be
given an opportunity to show cause why an order of forfeiture should not be
92
made before the order can be made.
The property used in the commission of the offence may have been stolen
or taken without the knowledge or authority of the true owner who may not
have been a party to the commission of the offence. To order the forfeiture of
such property without the owner being asked to say something would
tantamount to condemning him/her unheard amounting to a denial of natural
justice. Accordingly, the owner must be given an opportunity of being heard
and the question of ownership is a very relevant factor.93
Where the property cannot be found or cannot be forfeited for whatever
reason, the court will assess the value of the property which ought to have
been forfeited and order such sum to be forfeited.
Where an appeal lies in any case in which an order of forfeiture has been
made under these provisions, the order must be stayed until the expiration of
the period allowed for appealing, or if an appeal has been filed until the
determination of the appeal. If, however, the property involved is livestock or
one that is subject to speedy and natural decay, the order can be executed
94
immediately.
It bears emphasis however, that unless a court acts under an express
provision or statutory power when making a forfeiture order, the order will
be illegal. There is no inherent jurisdiction to make such an order. Though
95
sometimes, the law gives court discretion in imposing such order.
Unless specific provision for the disposal of forfeits etc is made by any
particular law, the order must direct that the thing adjudged to be forfeited
should be so forfeited to the Government.96
Some of the provisions for forfeiture are set out under the following
legislations:
(a) Uganda Wildlife Act;
(b) The Firearms Act section 32;
(c) The Pharmacy and Drugs Act;
92 Nicholas K Musoke v Uganda Crim Rev Number 216 of 1967 (MB 18 of 1968) (unreported)
Shedrack Kabai v R (1956) 23 EACA 604 Nyanza Motor Spares v R (1954) 21 EACA 345.
93 Kashariwa and Co v R MB 26 of 1959.
94 Section 131(5) Trial on Indictments Act and 202(5) Magistrates Courts Act.
95 Opoya v Uganda [1967] EA 752. See discretionary provisions sections 42 (1), 17(3) , 303 Penal
Code.
96 Section 36 Interpretation Act.
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(d) The Penal Code Act sections 35(2), 36(3), 40(3), 169(4), 170(4), 374, 375
and 380.
16.10.5 Costs
Although there are statutory provisions permitting the award of costs in
criminal proceedings, costs are always discretionary.
A court may order the payment of costs in any of the following
97
circumstances:
(a) to the prosecutor, whether public or private, by a person convicted of any
offence by the court;
(b) to any person acquitted of any offence by the court, by the prosecutor,
whether public or private, if the court considers that the prosecutor had no
reasonable grounds for prosecuting that person;
(c) to the respondent by an appellant whose appeal fails if the appeal 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 court
considers that the respondent had no reasonable grounds for contesting the
appeal at the hearing thereof.
(e) to any person in any matter of an interlocutory nature, including a request
for an adjournment, if that person has been put on any expense when in
the opinion of the court the applicant had no reasonable or proper grounds
for making the application;98
(f) to any accused person where the prosecution against him or her has been
withdrawn, by the prosecutor, if the court considers that the prosecutor
had no reasonable grounds for prosecuting that person.99
When an application for costs is made by a party the court must first decide
100
whether the circumstances of the case justify the award of costs . Even where
an accused has been acquitted, he/she cannot be sure that he will be awarded
costs if he asks for it. It must be emphasized that costs can only be awarded to
an accused on acquittal if the court considers that there were no reasonable
grounds for prosecuting the accused. In Leonard John Reay v Uganda,101 the
High Court upheld an award of costs made on an acquittal, where the only
evidence against the accused was that of an accomplice who had a grievance
97 Section 195(1) Magistrates Courts Act and 125 Trial on Indictments Act.
98 Uganda v Lazarus Senzira MB 110/70.
99 Uganda v Muwonge and another MB 2/70.
100 Harbans Singh v R [1958] EA 199.
101 MB 39 of 1962.
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Sentences 375
against the accused, and whose evidence could not, in important respects, be
reconciled with the relevant documentary evidence. The prosecution had no
reasonable grounds for prosecuting the accused.
In the case of Uganda v Keizironi Bushaija102 the court noted:
“It is fairly obvious that it was never intended, and it would be quite wrong that
costs and compensation should be awarded as a matter of course to every
defendant who is acquitted.”
Similarly it must be in very exceptional circumstances that an accused person
is ordered to pay costs to a public prosecutor.103 It is rare that costs are awarded
against the state in criminal proceedings. Although the matter is entirely at the
discretion of court, but this power is rarely invoked because of the long
standing common law practice that the state, neither pays nor receives costs
unless the case is governed by statute or there are exceptional cases justifying a
104
departure from the said rule.
It is submitted that the rule is designed to make the administration of
justice and access to justice to both the poor and the rich.
In sum, the mere fact that the prosecution has failed to secure a conviction
or that there could not be possibly a conviction by reason of poor
performance by prosecution witnesses at trial, does not necessarily mean that
there was no reasonable grounds for prosecuting the accused. Even where the
reason for withdrawal was that the charge was defective the court should not,
without more, conclude that the prosecution had no reasonable grounds for
prosecuting.
105
In the case of Uganda v Bernard Katerama Katarikawa, the respondent was
charged with an offence before the magistrate’s court. The prosecution
withdrew because there was a mistake on the documents relevant to a charge.
The defence counsel applied for costs. The trial magistrate ruled that he was
satisfied that the prosecution brought the charge without reasonable grounds
and accordingly awarded costs. On appeal by the DPP, the High Court held
that the reason given by the trial magistrate was quite insufficient to justify an
order for costs. The court observed that the fact that the charge was defective
in itself by no means proved that the prosecutor had no reasonable grounds for
prosecuting. On defence submission that this provision was intended to at
protecting people from frivolous accusations, the court said that there was
102 [1973] 1 U.L.R 40.

103 Municipal Council of Dar-es-salaam v Almeida [1957] EA 244.
104 Ibid.
105 Crim. App. Number 676 of 1970 (unreported).
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nothing frivolous or vexatious in the prosecution even though it was true that
on the facts it would never have succeeded.
16.10.6 Police Supervision

Where any person (who is convicted of robbery) is convicted and sentenced
to imprisonment for a term less than life, the High Court shall at the time of
passing sentence, order that he or she shall be subject to police supervision for
a period not exceeding five years from the date of the expiration of the
sentence.106
A person under police supervision is furnished with an identity card and is
required to report himself/herself to the police personally at certain intervals
of time. He or she must also notify the place of his or her residence and any
107
change of it in such a manner.
If any person subject to police supervision who is at large in Uganda
refuses or neglects to comply with any requirements prescribed, that person
shall, unless he or she proves to the satisfaction of the court before which he
or she is tried that he or she did his or her best to act in conformity with the
law, commit an offence and is liable to a period of imprisonment not
108
exceeding two years. There is no power to order police supervision for first
109
offender.
In the case of Ssentamu John v Uganda110 the Supreme Court noted that
defilement was not one of the offence for which police supervision maybe
imposed. Thus the imposition of police supervision on the appellant was
found to be illegal and was set aside.
In Uganda police supervision is only applicable to a person convicted of
robbery contrary to section 285 or any other person convicted of an offence
declared by the Minister by a statutory order.111
106 Section 124(1) Trial on indictments Act and section 194(1) Magistrates Courts Act.
107 Section 124(2) ibid and section 194(2) ibid.
108 Section 124(3) ibid and section 194(3) ibid.
109 Osman v R [1972] EA 429, Kimanzia v R [1972] EA 495.
110 Supreme Court Criminal Appeal Number 34 of 1995, Bakari s/o Bakari v R [1962] EA 466 Police
supervision must be for offences punishable for three years and above (Tanzania).
111 Section 124(4) Trial on Indictment Act and section 194(4) Magistrates Courts Act.
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16.10.7 Deportation
This affects only foreigners’ or aliens and may be in addition to any other
sentence imposed. The courts can make a recommendation to the minister.112
(See also Uganda Immigration and Citizens Control Act).
The deportation order may be set aside if it is made without according the
deportees a right to be heard. A decision arrived at in breach of the Audi
Alteram Partem rule is void absolutely and of no consequence at all the
113
deportation orders were thus void and of no consequence.
16.10.8 Disqualification from Driving

This arises from driving, where a person’s driving permit is suspended if in
114
breach of traffic offences. The Traffic and Road Safety Act provides for
115
mandatory cancellation or suspension of driving permit.
An appeal shall lie against an order made by court under for cancellation or
suspension of the driving permit. If an appeal is lodged, the court making the
order or the court to which the appeal lies may suspend the operation of the
116
order pending the determination of the appeal.
16.11 FUNCTUS OFFICIO

Functus officio (means in Latin) “having performed his/her office”.
It refers to a legal term used to describe court not retaining any legal
authority because its duties and functions have been completed.
The general rule is that a final decision of court cannot be re-opened.
The rule applies only after the formal judgment had been drawn-up, issued
and entered. However this rule is subject to two exceptions; where there has
been a slip in drawing it up, and where there was an error in expressing the
manifest intention of the court.
112 Samuel v R [1968], section 60 Uganda Immigration and Citizenship Control Act Chapter 66.
113 Arinze Emmanuel Chukuma Onuaha and another v the Commandant of Aviation Police Entebbe [2006]
HCB 154.
114 Khalif v R [1973] EA 364.
115 Sections 46, 48 The Traffic and Road Safety Act, R v Anael [1967] EA 378.
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The court becomes functus officio the moment the Judge or magistrate signs
the order disposing of a case. The court has no power to amend the charge
117
after the conviction as it is functus officio.
However, a Judge or magistrate may allow a plea of guilty to be
withdrawn at any time before sentence is passed on the application of the
accused if the circumstances warrant such a course. It is trite law that a
magistrate does not become functus officio until he or she has sentenced the
118
accused.
Where the Judge or magistrate announces his/her sentence, he/she ceases
to have jurisdiction. He /she cannot increase or reduce the sentence for
whatever compelling reason as he/she is functus officio in the matter,119 except
on such matters as the court is given specific legislative authority to act such as
the power to allow time to pay a fine or to admit a convicted person pending
120
the determination of his/her appeal.
16.12 SENTENCING MINORS

A Family Children Court shall have jurisdiction to hear and determine all
criminal charges against a child except:
(a) any offence punishable by death.
(b) any offence for which a child is jointly charged with a person over 18 years
of age.121
The purpose of sentencing young offenders is purely to reform or rehabilitate
them into society. Punitive and deterrent sentences have no place in respect of
young offenders unless special circumstances exist for their application.
A Family and Children Court shall have the power to make any of the
following orders where the charges have been admitted or proved against a
child:
(a) Absolute discharge;
(b) Caution;
(c) Conditional discharge for not more than 12 months;
117 Yusuf Maumba v Republic [1966] EA 167.

118 Uganda v Paskali Magogwa [1979] HCB 7.
119 Uganda v Kilama Geofrey [1994-1995] HCB 38.
120 Mahuku v Uganda [1970] EA 495.
121 Section 93 Children Act.
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Sentences 379
(d) Binding the child over to be of good behaviour for a maximum of 12

months;
(e) Compensation, restitution or fine, but no order of detention shall be made
in default of payment of a fine;
(f) Probation order for not more than 12 months.
(g) Detention for a maximum of three months for a child under sixteen years
of age and maximum of 12 months for a child above sixteen years of age
and in case of an offence punishable by death, three years in respect of any
child.122
It can be deduced from the above provision that teenagers should not be sent
123
to prison if it can be avoided, they should be sentenced to non custodial
sentences.
124
In Kaisa v R, it was held that any person below 14 years old cannot be
imprisoned, for rehabilitation is the most important factor when sentencing
any one young person.
Detention shall be a matter of last resort and shall only be made after
careful consideration and after all other reasonable alternatives have been tried
125
and where the gravity of the offence warrants the order.
16.13 COMMUNITY SERVICE

This is another form of punishment that was introduced to Ugandan legal
system as an option available to court to cater for minor offenders.
The Community Service Act defines community service as a non-custodial
punishment by which, after conviction the court with consent of the offender
makes an order for the offender to serve the community rather than
undergoing imprisonment.126
A Community Serve Order on the other hand is also defined as an order
imposed by the court requiring the convicted person to perform unpaid work
which is of the benefit to the community for a specific period of time.
There has been a tendency by courts acting on pressure from the public to
send every person who is convicted to prison regardless of the offence he/she

123 Uganda v Paulo Kawesi and 2 others [1980] HCB 46.
124 [1975] EA 260, Maina v R [1970] EA 370, Kateta v R [1972] EA 532.
126 Section 2 Community Service Act
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has committed. There arose a need to treat offenders differently based on the
gravity of the offence committed.
The need for community service almost became necessary and inevitable in
Uganda due to the congestion of prisons.
Honourable Lady Justice Bbosa,127 states that the problem of overcrowding
has shown the lead to great violation of prisoners rights:
“Overcrowding not only violates prisoners rights, it also hampers rehabilitation of
offenders who are serving long jail sentences/terms it has lead to mixing up of
hard core criminals with petty offenders who thus grilled in masterminding bigger
criminal projects. The result is recidivism and transformation of petty offenders
into hardcore criminals.”
Prisons are not a good solution to crime because imprisonment is often unjust
in our criminal justice system which is so slow and people are held for so
many years as they await trial. Imprisonment also causes fundamental abuse of
human rights because most prisons are inhabitable. Therefore, once the
prisons are decongested with minor offenders being diverted from prison by
serving community service orders, the prison population will drastically
reduce. The few serious crime offenders who remain in prison will get better
attention.
Community service in Uganda is intended to benefit society at large with
the following benefits:
1. Community service saves the souls of small offenders, particularly if their
offending has been brought about by social or economic circumstances
beyond their control, by keeping them out of prison.
This will enhance rehabilitation of offenders.
2. It is cheaper compared to maintaining offenders in prison thus saving the
tax payers money;
3. It is a means of providing reparation from the offender to community, i.e.
the community is able to see the offender doing something useful to pay
for the wrongdoing committed. This therefore promotes reconciliation of
the offender with both the victim and the community.128
4. It promotes involvement of the community in the criminal justice
system.129
127 Honourable Lady Justice, S. B Bbosa ; Community Service as an alternative to imprisonment. The
journal of the Uganda Judicial Officers Association, December 2000 Volume 7 page 109.
129 Article 127 of Constitution – provides for participation of the people in the administration of
justice by the courts.
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Sentences 381
5. The offenders serve their sentence under supervision of community service

officers who are also probation officers thus ensuring extensive
rehabilitation through counseling.
6. It protects the community by exerting more control over offenders than
traditional parole.
Court is also required before passing a community service order to take into
account the circumstances, character and antecedents of the offender. The
court must satisfy itself after receiving a re-sentence report from a probation
officer or any other competent authorized official that the offender is a suitable
person for community service.
An offender who is prone to committing crime should not be sentenced to
community service even if the offence in question is a minor one. This is
because such a habitual criminal may be a threat to community. However, an
offender who appears likely to reform is likely to benefit from a community
service order.
Similarly, the offenders moral responsibility for the offence committed may
also be a material factor in determining whether or not to pass a community
service order. Therefore, an offender who pleads guilty attracts sympathy and
should benefit from a community service order.
Community service orders are only available to persons who have
committed minor offences.130 A minor offence is also defined to mean an
offence for which a court may pass a sentence not more than two years
131
imprisonment.
In consideration of community service orders, the following facts must be
obtained by the probation officer from the police:
(a) where the offender lives, works, age, whether he/she has been convicted
before.
(b) the health status, if suffering from disability;
(c) whether there was any damage or harm caused on either side.
(d) if he/she has any skills useful to the community;
(e) whether he or she has a fixed place of abode;
(f) the domestic situation and whether the offender has sole responsibility for
the dependants.
130 Section 3(1) Community Service Act.

131 Section 2 ibid.
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However, the probation officer has to make sure that there is no risk to the
community if the offender is awarded community service. In addition, the
probation officer has to assess whether there is any risk to law and order if the
offender is awarded community service. Such risk may include revenge to the
person, family or property of an offender or mob justice or harassment.
The court should specify in the community service order the nature of
work to be performed by the offender and that work has to be reasonable and
not beyond the capacity, physical performed strength and actual ability of the
offender.
Offenders who have been sentenced to community service carry out their
sentence in authorized places by courts which are known as Placement
Institutions. Placement Institutions mean a place or organization where the
132
offender is sent to perform the community service order.
Placement Institution includes health institutions, school, local councils,
court premises, police premises.
While serving this sentence of community service, all offenders sentenced
will be supervised by the heads of institutions in which the orders are to be
carried out. These include; LC officials, head teachers, religious leaders and
medical personnel.
The law does not prescribe any tasks that are to be performed by the
offenders. Therefore it is at the courts discretion to award any orders that be
performed in a particular area.
The common tasks that courts give to offenders include:
(a) Cleaning
(b) Brick making
(c) Road maintenance
(d) Building and construction
The community service order shall be performed for a period of not more
than six months and the offender shall not work for more than eight hours a
day.133
If at any time during the community service period, the offender fails to
comply with the requirements of the community service order, the court may
134
issue a summons requiring the offender to appear before it.
132 Rule 2(1)(e) Community Service Regulations 2001.

133 Section 5(1) Community Service Act.
CHAPTER SEVENTEEN
APPEALS
17.1 INTRODUCTION
An appeal is a corrective device premised on the fact that human judgment is
not infallible. Despite all the provisions for ensuring a fair trial and a just
decision, mistakes are possible and errors can never be ruled out.
An appeal is simply a means:- a complaint to a superior court of an
injustice done or error committed by an inferior court, whose judgment or
decision the court above is called upon to correct or reverse.1
The major rationale of an appeal or revision is that it assuages the mind of
the litigants. The very fact that the decision of the lower court is duly
scrutinized by a superior court by way of an appeal or revision gives certain
satisfaction to the party aggrieved by that decision. The review of the case by
superior courts, in a way, assures the aggrieved party that all reasonable efforts
have been made to reach a just decision free from plausible errors, prejudice
and mistakes. The appeal procedures are therefore importantly useful to
inspire in the public mind a better confidence in the administration of justice.
In addition to correcting errors committed by the trial court, an appeal also
allows the appellate court to interpret the law including statutory
interpretation and case law with a view to setting precedents to be followed
by subordinate courts.
There is no automatic right of appeal from a judicial decision. An appeal is
a creature of statute and there is no inherent right of appeal from any
judgment or determination unless an appeal is expressly provided for by the
law itself.2 There is no such thing as inherent appellate jurisdiction.3
1 Black’s law Dictionary (4 ed) page 124.

2 Article 13(2), 139 Constitution, sections 4, 5, 10, 16 Judicature Act, section 132 Trial on
Indictments Act section 204 Magistrates Court Act R v Dunn [1965] EA 567, Alinyo v Rep [1974]
EA 544.
3 Attorney General v Shah [1971] EA 50.
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Therefore, before any party to criminal proceedings seeks to appeal it must

first be in position to say not only that such right exists, but also that the court
4
appealed to has the necessary jurisdiction.
The court has no inherent power to exercise jurisdiction where no right of
appeal is provided.5
Similarly, there is no right of appeal from interlocutory rulings of Chief
6
Magistrates and Magistrates Grade I. In the case of Twagira v Uganda the
Supreme Court noted:
“Judgment means a final decision of a Chief Magistrate or Magistrate Grade I, but
not a discretionary order or ruling given in an interlocutory matter such as a
finding that there is a prima facie case to answer.”
However, when the court finds that there is no case to answer, this will mean
that this finding is final and brings criminal proceedings to an end before that
court.
This final decision gives the crown a right to appeal.7 The practice that is
followed when court finds a case to answer is for the person dissatisfied with
the trial court’s ruling is to appeal at the conclusion of the full trial and include
in the grounds of appeal any complaints about wrong finding that there was
8
no case to answer.
The appeal as a corrective procedure would obviously be far less relevant
in cases where chances of error in the judgment of the final court are very
remote like where an accused pleads guilty. Similarly, in petty cases where the
possible error in the decision of the lower court is more likely to be of
insignificant nature, it would be inexpedient to allow appeals in such cases.
These considerations have found expressions in the provisions of criminal
proceedings legislations:
No appeal shall be allowed in the case of any person who has pleaded guilty and
has been convicted on that plea by a Magistrate’s court except as to the legality of
the plea or to the extent or legality of sentence.9
4 Uganda v Lule [1973]1 EA 362 (CAK).

5 Ibid.
6 Charles Harry Twagira and Uganda Supreme Court Criminal Appeal Number 27 of 2003 decided 2
August 2005.
7 Mohamed Taki v R Criminal Appeal Number 397 of 1959.
8 Jethwa v Rep [1969] EA 459, Republic v Wachira [1975] EA 262 Republic v Kidasa [1973] EA 368,
Merali v Uganda [1963] EA 647.
9 Section 132(3) Trial on Indictments Act and section 204(3) Magistrate’s Court Act.
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Appeals 385
The rationale is that a person who deliberately pleads guilty cannot be

aggrieved by being convicted when a person is convicted by any court on the
basis of his own plea of guilty, he/she cannot and should not have any grouse
against the conviction and hence is not entitled to appeal.
No appeal shall be allowed in a case where a court presided over by a
Chief magistrate or a Magistrate Grade I has passed a sentence of
imprisonment not exceeding one month only, or a fine not exceeding One
10
Hundred Shillings Only.
A right of appeal carries with it a right of rehearing on the law as also on
facts. Most appeals are based on errors in the admission or rejection of
evidence, misapplication of the law occasioning miscarriage of justice or
misdirection in summing-up constitute the bulk of modern day appeals.
The convicted person is entitled to appeal against matter of fact or law or
mixed law and fact.11 It is difficult to demarcate the boundary between matters
of law and fact.
In case of Kamau v R12 it was held that it was a question of mixed law and
fact as to whether a conviction based on the identification of a single witness
could be sustained.
In cases of second appeals in the Supreme Court, an appellant may lose
his/her right of appeal unless he/she can show that the appeal is on a question
of law, a second appeal lies on a question of law.13.The reason for this is that
the Court of Appeal is bound by concurrent findings of fact of the two courts
14
below.
17.2 GROUNDS OF APPEAL

The appellate court may interfere with the findings of the lower court on any
of the following general grounds:
1. That the conviction should be set aside on the ground that it is not
supported by evidence or unreasonable.
2. That the conviction should be set aside on the ground that the judgment
of the trial court was based on a wrong decision on any question of law.
10 Section 204(4) Magistrates Courts Act Mwangi Njoki v R [1964] EA 665, GM Daya v R [1964] EA
529.
11 Section 132(1)(a), (c) Trial on Indictments Act and section 204(2) Magistrates Court Act.
12 [1975] EA 139.
13 Patel v Uganda [1966] EA 311.
14 Uganda v Kabali [1975] EA 185.
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3. That there was a material irregularity in the course of the trial which
caused a miscarriage of evidence.
The above grounds of appeal are derived from the Criminal Procedure Code.
Section 34 which provides:15
The appellate court on any appeal against conviction shall allow the appeal if it
thinks that the judgment should be set aside on the ground that it is unreasonable
or cannot be supported having regard to the evidence or that it should be set
aside on the ground of a wrong decision on any question of law if the decision
has in fact caused a miscarriage of justice or on any other ground if the court is
satisfied that there has been a miscarriage of justice, and in any other case shall
dismiss the appeal; except that the court shall notwithstanding that it is of the
opinion that the point raised in the appeal might be decided in favour of the
appellant dismiss the appeal if it considers that no substantial miscarriage of justice
has actually occurred.
17.2.1 Meaning of “Question of Law”

The exact boundary between a question of law and a question of fact is not
always easy to determine. A question of law will be raised where it is
contended that a court of trial wrongly admitted evidence, that there was no
evidence at all to support a finding of fact or that upon the evidence the court
was bound to come to a certain conclusion and no other.
The question of the meaning of an ordinary English word or phrase in a
statute is one of fact, not law, and this question is to be resolved by the
relevant court/tribunal by considering the word in its context with the
assistance of dictionaries and other books, not by expert evidence. A word has
no absolute meaning except that a meaning is relative to the context. In the
case of Shire v Republic16 the case depended on the interpretation of the word
meat under the Eldoret Municipal by-laws. The High Court held that the
word meat includes meat; and offal of any animal intended for human
consumption irrespective of whether it has first to be cooked or not.
By contrast, the meaning of a technical legal term is a question of law, and
evidence is receivable as to its meaning. The question whether particular
words or phrases come within the description of such a word or phrase is one
of fact.17
15 Section 34 Criminal Procedure Code Act Chapter 116.

16 [1967] EA 39.
17 Girls Public day Trust v Ereaut [1931] AC 12 at 35.
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Appeals 387
18
In the case of Bracegirdle v Oxley the issue of question of law and fact were
given an elaborate judicial treatment by Denning J (as he then was) he said:
“The question whether a determination by a tribunal is a determination in point
of fact or in point of law frequently occurs. On such a question there is one
distinction that must always be kept in mind, namely, the distinction between
primary facts and conclusions from those facts. Primary facts are facts which are
observed by the witness and proved by testimony; conclusions from those facts are inferences
deduced by a process of reasoning from them.
The determination of primary facts is always a question of fact. It is
essentially a matter for the tribunal who sees the witness to assess their credibility
and to decide the primary facts which depend on them. The conclusions from
these facts are sometimes conclusions of law. In a case under the Road Traffic
Act, the question whether a speed is dangerous is a question of degree and a
conclusion on a degree is conclusion of fact. The court will only interfere if the
conclusion cannot reasonably be drawn from the primary facts.”
The court always has to ask the question whether the determination is one
which could be reached by a reasonable tribunal applying its judicial mind.
17.2.2 Meaning of ‘cannot be Supported or Unreasonable’

The appellate court may allow an appeal if it considers that the
conviction/acquittal of the lower court should be set aside on the ground that
cannot be supported by evidence or is unreasonable that there is
overwhelming evidence to convict.
Therefore, where two views of the evidence are reasonably possible, one
supporting an acquittal and the other indicating conviction, the appellate court
should not interfere merely because it feels that it would, sitting as a trial
court, have taken the other view.
Two views and conclusions cannot be right and one in favour of the
acquittal of the accused must be preferred over the other because our criminal
jurisprudence demands that the benefit of doubt must prevail.
Where two reasonably probable and evenly balanced views of the evidence
are possible, one must necessarily concede the existence of reasonable doubt.
But fanciful and remote possibilities must be left out of consideration. A
judgment may properly be said to be ‘unreasonable’ if it is characterized
exclusively or predominantly by logical inconsistency for example where two
verdicts on the same indictment or charge are inconsistent, or it manifests
perverseness for example, where the verdict represents a finding contrary to an
overwhelming of obviously credible evidence.
18 [1947] 1 All ER 126.

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On the other hand, a judgment is deemed to be unsupported by evidence

if it is based on evidence that is plainly defective, or is so weak or obviously
unreliable that reasonable doubt as to guilt must necessarily exist where the
trial court allows itself to be beset with fanciful doubts, rejects creditworthy
evidence for slender reasons and takes a view of the evidence which is but
barely possible, it is not only open to the appellate court but it is also its
obvious duty to interfere with the order of acquittal in the interest of justice,
lest the administration of justice be brought to ridicule.
The test to be applied is whether the appellant has satisfied the court that
no reasonable court/tribunal properly directing its mind to the evidence could
have found such person guilty on the evidence before it, had it applied itself to
its task in a proper manner, making in his favour the presumption of
innocence to mind that it is necessary for the charge to be proved beyond
reasonable doubt.
The appellate court has wide powers in the matter of appreciation of
evidence as that of the trial court.19
This therefore means that, if the trial court has resorted to perverse
application of the principles of evidence or show lack of appreciation of
evidence the appellate court may re-appreciate the evidence and reach its
conclusion.
The function of a court of criminal appeal is not confined to a
consideration of the question whether there is evidence upon which the trial
court might reasonably have found an issue in favour of the party on whom
the burden of proof rests. A judgment may be set aside if it is “against the
evidence”, that is to say, the judgment is one which viewing the whole of the
evidence reasonably the trial court could not properly find.
A court of criminal appeal has the responsibility of taking the facts to be as
the trial court were entitled to accept them and also satisfying itself on the
facts as so found that in the administration of justice in criminal matters it
would not be dangerous to allow the conviction or acquittal to stand. The
appellate court must ask itself the subjective question whether it is content to
let the matter stand as it is or whether there is not some lurking doubt making
it wonder whether an injustice has been done.20 In some cases misdirection on
21
the law may not necessarily occasion any failure of justice.
19 Sections 11 and 16 of Judicature Act.

20 R v Cooper [1969] 1 QB at 271 Stafford v DPP [1974] AC 878.
21 Mbunde v Republic [1969] 1 EA 475.
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17.2.3 Meaning of ‘Miscarriage of Justice’

Most judgments may be set aside if on any ground whatsoever there is found
to be a “miscarriage of justice”. This general ground of appeal for setting aside
a conviction or acquittal is additional to the specific grounds that a trial court
made a wrong decision on a question of law, or that a conviction or acquittal
was unreasonable or unsupportable. Undoubtedly, the ground of “miscarriage
of justice” was designed as a ‘catch-all’ to include all the unpredictable
circumstanced that may create an injustice.
The inclusion of an omnibus category means that there can be no closed
list of cases in which a miscarriage of justice may be established.
Some of the appeals are put on the grounds that the trial court failed to
exercise correctly one or more of his/her discretions. Such grounds may
include refusal of adjournment; refusal to withdraw a plea; failure to order
separate trials; interfered with cross-examination; erred in admitting or
refusing evidence and grounds are by far the most common grounds on which
the exercise of judicial discretion is challenged.
Though the judicial discretions subject to appeal may be many and varied,
the judgments of appellate courts reviewing the exercise of those discretions
feature one general theme; namely, the court on appeal will not interfere with
a judge’s exercise of his/her discretion, even though the individual members
of the court may thin that had they been in his/her position they might have
exercised it differently, unless they are of the opinion that his/her decision was
plainly wrong.
The manner in which an appeal against an exercise of discretion should be
determined is governed by established principles. It is not enough that the
judges composing the appellate court consider that, if they had been in the
position of the trial judge, they would have taken a different course. It must
appear that some error has been made in exercising the discretion.
Where the Judge acts upon a wrong principle, if he/she mistakes the facts,
if he/she does not take into account some material consideration, then his/her
determination should be reviewed and the appellate court may exercise its
own discretion in substitution for his/her if it has the materials for doing so.
The appellate court will entertain a procedural ground of appeal if a failure
22
or a miscarriage of justice has been occasioned.
Therefore, the procedural propriety is very important to our criminal
justice system since the rules of procedure are framed to provide a fair trial.
22 ‘Murimi v R [1967] E A 542.

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Any breach of the procedural rules therefore, raises a presumption that there
has been an unfair trial.
The appellate court should seek an answer to the question whether the
findings of the trial court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court answers the above questions
in the negative the order of acquittal is not to be disturbed.
Conversely, if the appellate court holds, for reasons to be recorded, that
the order of acquittal cannot at all be sustained in view of any of the above
infirmities it can then and then only reappraise the evidence to arrive at its
own conclusion.
17.3 POWER OF FIRST APPELLATE COURT

Section 34 of the Criminal Procedure Code confers adequate powers on the
appellate court for the proper disposal of different kinds of appeals. The
appellate court may (a) reverse the finding and sentence, and acquit or
discharge the appellant, or order him or her to be tried or retried by a court of
competent jurisdiction; (b) 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; or (c) with or without any reduction or increase and
with or without altering the finding, alter the nature of the sentence.23
The appellate court in exercise of its appellate jurisdiction has full powers
to review the evidence upon which an order of acquittal is founded.
The appellate court should give proper weight and consideration to such
matters as, the review of the trial Judge as to the credibility of the witnesses,
the presumption of innocence in favour of the accused, the right of the
accused to the benefit of doubt and the slowness of an appellate court in
disturbing the finding of fact arrived at by a trial court who had the advantage
24
of seeing the witnesses.
The appellate court in coming to its conclusion should not only consider
every matter on record having a bearing on the questions of fact and the
reasons given by the court below in support of its order of acquittal or
conviction, but should also express those reasons to hold that the acquittal or
conviction was not justified. The appellate court should deal with each one of
the reasons which prompted the trial court to record the acquittal or
23 Section 34(2) Criminal Procedure Code See also section 132 Trial on Indictments Act.
24 Okeno v Republic [1972] EA 32 , Arum v Republic [2006] 2 EA 10.
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conviction and should point out how, if at all, those reasons were wrong or
incorrect.
While dealing with an appeal against acquittal the appellate court has to
bear in mind; first that there is a general presumption in favour of the
innocence of the person accused in criminal cases and that presumption is only
strengthened by the acquittal. The second is every accused is entitled to the
benefit of reasonable doubt regarding his/her guilt and when the trial court
acquitted him/her; he/she would return the benefit in the appellate court also.
The appellate court must appreciate evidence and the power to do so is as
wide as that of the trial court. Where the trial court had resorted to perverse
application of the principles of evidence or show lack of appreciation of
evidence the appellate court may re-appreciate the evidence and reach its
25
conclusion.
If the appellate court finds the accused guilty it may reverse the order of
acquittal and pass sentence on him according to law.26 But in such a case as the
appellate court is to do what the trial court ought to have done, it should not
impose a punishment higher than the maximum that could have been
imposed by the trial court.
An appeal court is after all “a court of error”, that is, a court established for
correcting errors.
A first appellate court must consider and weigh the evidence, understand
and evaluate the same and come to its own conclusions without disregarding
the findings of the trial court. However, even where the High Court does not
subject the evidence before the subordinate court to fresh scrutiny and thus
errs, an appeal on that point may be dismissed if the Court of Appeal considers
that no substantial miscarriage of justice has in fact occurred27.
Similarly, not every misdirection or non-direction that would entitle an
appellate court to upset a finding of fact by the trial court or the first appellate
28
court:
The powers of the appellate court were considered in the case of Serapio Barbara
and others v Uganda,29 in that case the accused were indicted for murder but were
found guilty of manslaughter. They appealed against both conviction and
sentence. On appeal, their appeals were dismissed. However the court found that
25 Rule 30(i)(a) Court of Appeal Rules Pandya v R [1957] EA 336.

26 Uganda v Tigawalana Ikoba and others CA Criminal Appeal … decided December 2009.
27 Omusa v Republic [2003] 1 EA 230 Pandya v R (supra).
28 Kiarie v Republic [1976-1985] 1 EA 213.
29 Court of Appeal Criminal Appeal Number 50 of 1987.
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there was overwhelming evidence in support of the case for Murder but since the
DPP had not cross-appealed; the Court of Appeal would not interfere with the
conviction. In a dissenting Judgment, Justice Twinomujuni, reviewed the
provisions of section 331(i) (now section 34(i)) of the criminal procedure code
and rule 31 (now rule 30) of Court of Appeal rules;
“In my humble Judgment the powers vested in this court by the two a
foregoing provisions of the law are very clear. They must be used whenever court
thinks on any appeal that a miscarriage of justice has occurred. This court does
not need the prompting from the DPP or anyone else to use these powers”.
The appellate court has wide powers and may substitute a conviction for some
other offence if it is satisfied that there is sufficient evidence to support it.
The Court of Appeal may also dismiss an appeal where, although there has
been a wrong decision on a part of law or an irregularity in the trial, the court
considers that no miscarriage of justice has actually occurred.
Section 139(i) provides that:30
Subject to the provisions of any written law, no finding, sentence or order passed
by the High Court shall be reversed or altered on appeal on account of any error,
omission, irregularity or misdirection in the summons, warrant, indictment,
order, Judgment or other proceedings before or during the trial unless the error
has, in fact, occasioned a failure of justice.
2. In determining whether any error, omission, irregularity or misdirection
has occasioned a failure of justice, the court shall have regard to the
question whether the objection could and should have been raised at an
earlier stage in the proceedings.
In addition, the appellate court has power to enhance the sentence or reduce
the sentence. An appellate court is not to inflict greater punishment for the
offence which in its opinion the accused has committed, than might have
been inflicted for that offence by the court passing the order.
If a substantial punishment has been given for the offence of which a
person is found guilty, after taking due regard of all the relevant circumstances,
normally there should be no interference by an appellate court. On the other
hand, interference will be justified when the sentence is manifestly inadequate
or unduly lenient in the particular circumstances of the case. The interference
will also be justified when the failure to impose a proper sentence may result
in miscarriage of justice.
Furthermore, the appellate court may alter the finding and maintain the
sentence or alter the nature or the extent or the nature and the extent of the
30 Trial on Indictments Act.

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sentence but not so as to enhance the same; or the appellate court may even
without altering the finding, alter the nature or the extent or the nature and
the extent, of the sentence but not so as to enhance the same.
A sentence is said to be enhanced when it is made more severe. Where the
sentence of fine is changed into one of imprisonment it would amount to
enhancement of the sentence. The sentence should not be enhanced unless
the accused has had an opportunity of showing cause against such
enhancement.
17.3.1 Additional Evidence

The appellate court has power to obtain further evidence. Section 41 of the
Criminal Procedure Code Act provides:
(a) In dealing with an appeal from a lower court, the appellate court, if it
thinks additional evidence is necessary, may record its reasons and may
take that evidence itself or may direct it to be taken by the lower court.
(b) When the additional evidence is taken by a lower court that court shall
certify the evidence to the appellate court which issued the direction
which shall thereupon proceed to dispose of the appeal.
(c) Unless the appellate court otherwise directs, the accused person or his or
her advocate shall be present when the additional evidence is taken.
(d) Evidence taken and this section shall be taken as if it were evidence at a
trial before the lower court.
31
Rule 30(1)(b) provides:
On any appeal from the decision of the High Court acting in exercise of its
original jurisdiction, the court may:
In its discretion, for sufficient reason take additional evidence or direct that
additional evidence be taken by the trial court or by a commissioner.
The object of these provisions is to ensure that justice is done between the
prosecutor and the person prosecuted. The appellate court has to exercise
discretion vesting in it to permit additional evidence on sound judicial
principles. It is not an arbitrary discretion as is manifest by the provision that it
“shall record its reasons”.
However, an appellant who desires to adduce fresh evidence must satisfy
some strict requirements.
31 The Judicature (Court of Appeal) Rules.

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The power to take additional evidence should be exercised sparingly and

only in suitable cases. Since a wide discretion is conferred on appellate courts,
the limits of such courts’ jurisdiction must obviously be dictated by the
exigency of the situation, and fair play and good sense appear to be the only
safe guides.
The discretion to receive additional evidence must be exercised along
well-defined guidelines. The said principles were enunciated by the Court of
32
Appeal for East Africa in the case of Elgood v Regina. The appellant doctor
was charged in the supreme court of Seychelles with several counts of
procuring for women drugs knowing that the drugs were intended to be used
to procure miscarriages contrary to law. He was convicted upon medical
evidence given, for the prosecution by three doctors.
There was considerable disagreement between medical witnesses, only one
of whom had special qualification in the particular field concerned, and that
one had only limited specialist knowledge. On appeal the appellant applied to
call additional evidence, which was not available in Seychelles, from a highly
qualified and experienced specialist in obstetrics and gynecology.
This evidence was admitted, and it was to the effect that the treatment
given by the appellant was perfectly legitimate-therapeutic treatment which
would not possibly lead to an abortion. The appeal was allowed and the court
made the following observation, namely, the principles upon which additional
evidence may be admitted:
1. The principles upon which an appellate court in a criminal case will
exercise its discretion in deciding whether or not to allow additional
evidence to be called for purposes of the appeal are:
(a) the evidence it is sought to call must be evidence which was not
available at the trial;
(b) it must be evidence relevant to the issues;
(c) it must be evidence which is credible in the sense that it is well
capable of belief;
(d) the court will, after considering that evidence, go on to consider
whether their might have been a reasonable doubt in the minds of
the jury as to the guilt of the appellant if that evidence had been
given together with the other evidence at the trial.
2. It is only in very exceptional cases that the Court of Appeal will permit
additional evidence to be called.
32 [1968] EA 274 Mudasi v Uganda [1999] 1 EA 193, R v Parks [1969] All ER 365.
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3. The affidavit in support of an application to admit additional evidence

should have attached to it a proof of the evidence sought to be given.
It should be noted that there is no limit to the kind of evidence which may be
received.33 The evidence should be received in such a way as to cause no
prejudice to the accused, as for example, it should not be received as a disguise
for a retrial or to change the nature of the case against him/her.
Therefore the order for additional evidence must not ordinarily be made, if
the prosecution has had a fair opportunity and has not availed of it, unless the
requirements of justice dictate otherwise. The provisions for additional
evidence are not meant to remedy the negligence or filling the latches left in
the prosecution case34or for allowing the prosecution to indulge in fishing of
evidence. It is also not meant to make out a case different from one already on
record.
The appellant who seeks additional evidence must show; that the projected
evidence is material evidence, that it is likely to produce a different verdict if
placed before a new trial court and that it could not by reasonable diligence
have been obtained beforehand.
Such fresh evidence must be admissible and cogent. If the character of a
proposed new witness is such that no reasonable jury would be likely to regard
him/her as “credible” that constitutes a strong reason for rejecting the new
evidence. It has been held that “credible” means well capable of belief in the
context of the circumstances as a whole, including the other evidence in the
35
case directed to the issue under consideration.
It follows that in judging the weight of the fresh evidence the probative
value and nature of the evidence given at the trial must be a matter of great
importance.
Within the context of the whole evidence the appellate court has a duty to
examine the probative value of the new evidence and, to this end, may
receive evidence that tends to support, contradict or diminish the effects of the
new evidence and the matters that will be inferred from it.
A conviction will not be quashed merely because the new evidence is
admissible and of some weight; it is essential for the court to find that the
evidence, if given at the trial, would probably have produced a different result.
33 Yokobo v R (1945) 12 EACA 60. The appellant court may call for additional evidence to elucidate
evidence already on record.
34 Sirasi v R (1936) 3 EACA 40.
35 R v Parks [1961] 3 All ER 633.
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The fresh evidence must be of such a character that, if considered in

combination with the evidence already given upon the trial, the result ought,
in the minds of reasonable men, to be affected.
The appellate courts are reluctant to find that a different verdict would
have been reached if the evidence in question had been available at the trial. If
the fresh evidence is likely to produce a different verdict, a new trial will be
ordered as a remedy for the miscarriage of justice that has occurred.
The appellant must also be able to offer to the court a satisfactory
explanation for the fresh evidence not being called at the trial. A new trial will
not be ordered unless it is shown that reasonable diligence was exercised to
obtain the evidence for the trial.
A trial will not become unfair because the appellant of his own volition has
not called evidence which was available to him at the time of trial or of
which, bearing in mind his circumstances as an accused, he could reasonably
have been expected to become aware and to produce at the trial where
evidence was apparently available at the trial and no reason is given why it was
36
not called an application to seek to rely upon the evidence is usually refused.
In sum therefore, the strict rules governing the admissibility of fresh
evidence on appeal are based on important principles of public policy. There
would be grave risk of impeding the administration of criminal justice if new
trials were readily available or granted on the basis that new evidence had
been discovered. If persons who become subject to the process of the law are
allowed to try again using evidence which is of little significance, or which
was either available or with reasonable diligence could have been discovered
at time of the trial, legal proceedings would be interminable. An easy attitude
to the adducing of fresh evidence may also encourage perjury.
17.3.2 Summary Dismissal of Appeal

The law allows the appellate court in some instances to dismiss the appeal
summarily. The appellate courts allowed under the provision are the ones
heard by Chief Magistrate and High Court.37
The section provides:38
36 R v Melville [1976] 1 All ER 395 at 399.

37 Section 32(4) Criminal Procedure Code, it is not applicable to appeals to the Court of Appeal and
the Supreme Court.
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Appeals 397
(1) One receiving a notice or grounds of appeal under section 28, the
appellate court, or a Judge of that court, shall peruse it and after perusing
the record of the trial court:
(a) in the case of an appeal against sentence only, where it considers
that the sentence is not excessive; or
(b) in any other case, where it considers that no question of law is
raised proper 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 led the court to consider that
the sentence ought to be reduced.
It may dismiss the appeal summarily without hearing the appellant
(2) Notwithstanding subsection (1):
(a) nothing in this section shall be read as preventing the appellate
court, or a judge of that court, from dismissing an appeal summarily
where subsection (1)(b) applied with regard to conviction and
directing that it be heard as regards sentence only; and
(b) no appeal shall be summarily dismissed where the notice or grounds
of appeal has been signed by an advocate, unless the advocate has
had an opportunity of being heard in support of the notice or
grounds of appeal.
Dismissing the appeal summarily means dismissing it in an informal manner
and without the delay of formal proceeding.
The summary dismissal of appeal is as much adjudication as an order of
dismissal after a full hearing so far as the accused is concerned. The power to
dismiss the appeal summarily should be exercised judicially and with great
care. If arguable and substantial points are raised the appellate court should not
dismiss the appeal summarily.
39
In the case of Arnold Pudo s/o Aranda v R The appellant was convicted by
a Magistrate of shop breaking and theft and was sentenced to six years
imprisonment. The Supreme Court summarily rejected the appellant’s appeal
against conviction and sentence without the appellant or his advocate being
heard in support of it. On a second appeal it was contended that the Supreme
Court was not entitled to summarily reject an appeal under section 352(2) of
the CPC except where the grounds of appeal are that the conviction is against
the weight of evidence, or that the sentence is excessive whereas in the instant
case a ground of appeal was that “the magistrate erred, both on a point of law
and facts” It was held, in dismissing the appeal, that; firstly, the ground of
appeal, that “the magistrate erred on both point of law and facts” was too
39 [1960] EA 380m
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vague to constitute such a ground of appeal as to take it (appeal) outside

section 352(2) and in view of the mandatory requirements of section 350(2),
the supreme court quite properly ignored it as being no proper ground of
appeal, at all and would have been within its rights to have struck it out.
Therefore, if the Memorandum of Appeal raises no specific question or
40
point of law or fact; it will squarely fall within summary rejection .Courts
deprecate the indiscriminate use of a form of memorandum in terms so
general as to be considered as grounds of appeal. It has been pointed out by
the Court of Appeal in Rutehendra s/o Mutemba v R41 that:
“such … must be intelligently applied to the facts of the case as revealed by the
evidence and not degenerate into drafting a stereotyped form of memorandum
…”
An appeal can only be summarily dismissed if the court considers that the
evidence before the lower court leaves no reasonable doubt as to the accused’s
guilt and that the appeal is frivolous or without substance.42
It is true that the appellate court has the undoubted power to dismiss an
appeal summarily. But it must be realized in a criminal case the accused has
only one right of appeal where evidence will be re-evaluated on findings of
facts and that should not be denied to him.
Where arguable questions of fact are involved or a prima facie case for
investigation is made out, the appellate court should be careful in exercising its
43
discretion in dismissing appeals summarily. The summary decision dismissing
an appeal is a judicial decision which vitally affects the convicted appellant and
in a fit case, it is also open to be challenged on an appeal before another
appellant court. The appellant court dismissing an appeal summarily must give
some indications of its view or reasons for summary dismissal of the appeal.
The interest of justice and fair play require that in such cases an indication
must be given by the appellate court of its views on the point argued before it.
40 Karioko s/o Gichohi v R (1950) 17 EACA 141, Lighton alias Magege v R (1951) 18 EACA 309,
Mulakh v R (1954) 21 EACA 383.
41 (1953) 20 EACA 276.
42 Kuyate v R [1967] EA 815.
43 Kamau v R [1975] EA 139.
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17.4 SECOND APPEAL
17.4.1 High Court

The decisions of any court lower than the High Court shall be appealable to
the High Court.44
The High Court shall have jurisdiction to hear and determine appeals
which lie to it by virtue of any enactment from decisions of magistrates’ court
and other subordinate courts in exercise of their original or appellate
jurisdiction.45
Any party to an appeal determined by a Chief Magistrate may appeal to the
High Court against his/her decision on a matter of law not including severity
of sentence.
Section 201(6) provides that:46
Any party to an appeal determined by a Chief Magistrate under subsection (1)(b)
may appeal against the decision of the Chief Magistrate to the High Court on a
matter of law (not including severity of sentence) but not on a matter of fact.
47
Section 204(7) also provides that:
The Director of Public Prosecution may appeal to the High Court from the
decision of a Chief Magistrate on an appeal under subsection (5)(b) on the ground
that it is erroneous in law.
17.4.2 Court of Appeal

An appeal lies from the High court’s decision in its appellate jurisdiction to the
Court of Appeal as a second appeal.
An appeal shall lie to the Court of Appeal from such decisions of the High
48
Court as may be prescribed by law.
An appeal shall lie to the Court of Appeal from decisions of the High
Court prescribed by the Constitution, this act or any other law.49
Section 45(1) provides:50
44 Article 13(a), (2) of Constitution.

46 Magistrates Courts Act.
47 Ibid.
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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 Court of Appeal on a matter
of law, not including severity of sentence, but not on a matter of fact or mixed
fact and law.
It is important to note that the right of either party to appeal to the Court of
Appeal from the appellate decisions of the High Court does not entitle them
to appeal from orders of the High Court which are incidental to an appeal and
51
not involving the decision of the appeal.
For the purpose of hearing and determining an appeal, the Court of Appeal
shall have all the powers, authority and jurisdiction vested under any written
law in the court from the exercise of the original jurisdiction of which the
52
appeal originally emanated.
On any such appeal, the Court of Appeal may, if it thinks that the
Judgment of the Magistrate’s court or the High Court should be set aside or
varied, make any order which the magistrates court or the High Court could
have made, or remit the case, together with its judgment or order on it to the
High Court or to magistrates court for determination whether or not by way
53
of rehearing, with directions as the Court of Appeal may think necessary.
But where it dismisses the appeal and confirms the conviction it has no
power to increase, reduce or alter the nature of the sentence of the court of
first instance or the High court, where it thinks such sentence was unlawful in
which case it may substitute the appropriate sentence.54
If it appears to the Court of Appeal that a party to an appeal has not been
properly convicted in one count though properly convicted in another count,
it has power to vary the sentence imposed either by substituting a less or more
severe penalty as it considers proper.55
Where a party to an appeal has been convicted of an offence and it appears
to the Court of Appeal has all facts as found by the magistrate or the High
Court as properly proved show that he/she could have been guilty of some
other offence, the Court of Appeal may instead of allowing or dismissing the
appeal, substitute and record a conviction for that other offence and pass the
appropriate sentence as warranted in law for that other offence.56
50 Criminal Procedure Code Act.

51 Uganda v Lule [1973] EA 362.
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The Court of Appeal notwithstanding that it may be of the opinion that

the point raised in the appeal might be decided in favour of the appellant,
dismiss the appeal if it considers that no substantial miscarriage of justice has
occurred.57
On any second appeal from a decision of the High Court acting in the
exercise of its appellate jurisdiction, the court shall have power to appraise the
inference of facts drawn by the trial court, but shall not have discretion to hear
58
additional evidence.
17.4.3 Supreme Court

A second appeal also lies to the Supreme Court as the highest court from
appeals emanating from the Court of Appeal as the first appellate court.
59
The Supreme Court shall be the final Court of Appeal. An appeal shall lie
to the Supreme court from such decisions of the Court of Appeal as may be
prescribed by the law.60
Similarly, the Judicature Act also provides that:
An appeal shall lie to the Supreme Court from such decisions of the Court of
Appeal as are prescribed by the Constitution, this Act or any other law.61
There is an automatic right of appeal to the Supreme Court for offences
punishable by death.
Section 5(1) of the Judicature Act provides that:
(a) Where the Court of Appeal has confirmed a conviction and sentence of
death passed by the High court, the accused may appeal as of right to the
Supreme Court on a matter of law or mixed law and fact;
(b) Where the High Court has acquitted an appeal has reversed that judgment
and Ordered the conviction of the accused, the accused may appeal to the
Supreme Court as of right on a matter of law or mixed law and fact;
(c) Where the High Court has convicted an accused person, but the Court of
Appeal has reversed the conviction and ordered the acquittal of the
accused, the Director of Public Prosecutions may appeal as of right to the

58 Rule 32(2) Judicature (Court of Appeal) rules Bagatayira v Uganda [2005] 2 EA 1 (SCU), Besigensi v
Uganda [2005] 2 EA 37, Otule v Uganda [2005] 2 EA 253.
60 Article 132(2).
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Supreme Court for a declaratory judgment on a matter of law or mixed

law and fact;
(d) Where the Court of Appeal has confirmed the acquittal of an accused by
the High Court, the Director of Public Prosecutions may appeal to the
Supreme Court on a matter of law of great public importance.
An appeal shall lie to the Supreme Court from a conviction and sentence or
acquittal in a case of an offence not punishable by a sentence of death, in
respect of convictions and acquittal is by the High Court and the Court of
Appeal; except that in any such case, an appeal shall lie on a matter of law
only.62
In the case of an appeal 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, not including the severity of the
63
sentence.
Where the Supreme Court varies a conviction, by reducing the offence,
thereby necessitating a variation of sentence or any order, including the
imposition of a statutory order, the Supreme Court shall impose such term of
imprisonment or fine or both and make any such order as is prescribed by
64
law.
If the Court of Appeal has acquitted the person (below 18 years), there
shall be no further Appeal.65
17.4.4 Powers of Supreme Court

The Supreme Court may, in an appeal before it, confirm, vary, or reverse the
conviction and sentence appealed against or confirm or reverse the acquittal of
the accused person66.
On any appeal the court may, so far as its jurisdiction permits, confirm,
reverse or vary the decision of the Court of Appeal with such directions as
may be appropriate, or order the rehearing of the appeal before the Court of
Appeal; and as the justice of the case demands, the court may order a trial de
novo in the court of first instance, including a constitutional matter, and may
62 Section 5(2) Judicature Act.

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Appeals 403
make any necessary, incidental or consequential orders; including orders as to

67
costs.
Where the Court of Appeal has reversed, affirmed a decision of the High
Court acting in its original jurisdiction, the court may decide matters of law or
mixed law and fact, but shall not have discretion to take additional powers.68
For purposes of hearing and determining an appeal, the Supreme court
shall have all powers, authority and jurisdiction vested under any written law
in the court from the exercise of the original jurisdiction of which the appeal
originally emanated.69
17.4.5 Powers of the Second Appellate Court

The procedure and principles in dealing with second appeals are somewhat
different from those obtaining in a first appellate court. When proceeding on a
second appeal the court is not concerned with rehearing, i.e. reconsidering the
evidence, as was the first appellate court. Therefore, if the first appellate court
had carefully considered the evidence and confirmed the correctness of the
findings of the trial court, then on second appeal the court will not examine
70
the evidence again with a view of interfering.
It should be noted that it is not every misdirection or non-direction that
would entitle an appellate court to upset a finding of fact by the trial court or
the first appellate court and misdirection or non-direction as to the evidence
to be of any avail to an appellant must be of such a nature, and the
circumstances of the case must be, that it is reasonably probable that the court
trying the facts would not have returned the verdict complained of had there
been no misdirection or non-direction.71
Where there was no misdirection relating to concurrent findings of fact by
the trial court as well as the first appellate court on second appeal, only issues
72
of law can be considered.
If the is a misdirection or non direction by the first appellate court on the
material facts, the second appellate court is entitled to evaluate the evidence
and come to its own conclusions.73
67 Rule 31 The Judicature (Supreme Court) Rules.

68 Rule 30(1) ibid
70 Ruwala v R [1957] EA 570.
71 Kiarie v Republic [1976-1985] EA 213.
72 Maina v Republic [1976-1985] EA 286.
73 Ali v Republic [2003] EA 373.
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A second appeal lies on the ground that there was no evidence to support a
finding of each, but once it has been established that there was some evidence
to a finding of facts, it was not open to the court to go into sufficiency of that
evidence.74
The right of appeal conferred on the Supreme Court on second appeals
does not give an appellant the same latitude to re-open a case as an appeal to
the Court was not required to re-evaluate the evidence like a first appellate
75
Court.
Moreover, on appeal, the Court has evidence to support those findings,
even though it would not have itself come to the same conclusion. It could
only interfere where it is considered that there was not enough evidence to
76
support the finding of fact and this was a question of law.
On second appeal the court will not interfere with concurrent findings of
fact, if there is evidence to support them.77
But if the first appellate Court erred in law by failing to treat the evidence
given before the trial court to that fresh and exhaustive scrutiny which the
appellant was entitled to expect, the second appeal court is likely to intervene
78
and quash the conviction.
The Court on second appeal has no jurisdiction to deal with severity of
sentence as long as the sentence is lawful.79
17.5 THIRD APPEALS

A third appeal lies from Magistrates Grade I/Chief Magistrate to the Supreme
Court. Similarly a third appeal can lie from Magistrate Grade II to the Court
of Appeal.
Where the appeal emanates from a judgment of the Chief Magistrate or
Magistrate Grade I in the exercise of his or her original jurisdiction, and either
the accused person or the Director of Public Prosecutions has appealed to the
High Court and the Court of Appeal, the accused or the Director of Public
Prosecutions may lodge a third appeal to the Supreme Court, with the
certificate of the Court of Appeal that the matter raises a question of law of
74 Mkurya v Republic [1995-1998] EA 194.

75 Kifamunte v Uganda [1999] 2 EA 127, Kisembe v Uganda [1999] EA 158.
76 Ibid.
77 Uganda v Kabali [1975] EA 185.
78 Nyanzi v Uganda (1999) EA 228, Galgalo v R[2005] EA 63, Okale v Republic [1965] EA 555.
79 Ngure v Republic [2003] 1 EA 202, Desai v R [1971] EA 416.
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great public or general importance or if the Supreme Court, in its overall duty
to see that justice is done, considers that the appeal should be heard, except
that in such a third appeal by the Director of Public prosecutions, the
Supreme Court shall only give a declaratory judgement.80
On any third appeal, the court shall decide the question of law which is
81
put before it.
82
In the case of Namuddu v Uganda , the applicant and another were jointly
charged and convicted of causing financial loss and abuse of office. They
appealed successfully to the High Court against their convictions and sentence
but this appellate decision was overturned on second appeal by the Court of
Appeal. Despite not having requisite leave of the Court of Appeal, the
appellants lodged a third appeal to the Supreme Court. Thereafter, they
applied to the Court of Appeal for a certificate to enable them pursue their
appeal to the Supreme Court. The Court of Appeal declined to grant leave on
the grounds that the issues raised in the application were not points of law of
considerable public or general importance and were not novel.
The applicant, decided to apply for leave for a third appeal to the Supreme
Court.
The Supreme Court held that; the Court of Appeal may grant a Certificate
for a third appeal to the Supreme Court only when it is satisfied that the
appeal raises a question or questions of law of great public importance or that
it raises a question or questions of general importance.
However, section 6(5) (now section 5(5) of the Judicature Act empowers
the Supreme Court to grant leave for a third appeal, if in its overall duty to see
that justice is done, it considers that the appeal should be heard. Therefore,
when hearing an application for a third appeal, the Supreme Court is not
bound by the above restrictions imposed on the Court of Appeal when it is
considering an application for a certificate. While the Court of Appeal is
restricted to questions of law, the Supreme Court has power to consider other
matters.
For an appeal to publicly raise a question of great general or public
importance, that question should be sufficiently general or public in outlook.
80 Section 5(5) Judicature Act. See section 46 Criminal Procedure Code Act for third appeals to
Court of Appeal
81 Rule 32(3) Judicature (Court of Appeal) Rues.
82 [2004] 2 EA 207 (Scu) SC CR. APP. 3 of 1999.
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17.5.1 Procedure
Where an appeal lies if the Court of Appeal certifies that a question or
questions of great public or general importance arise, applications to the Court
of Appeal shall be made informally at the time when the decision of the Court
of Appeal is given against which the intended appeal is to be taken; failing
which a formal application by Notice of Motion may be lodged in the Court
of Appeal within fourteen days after the decision, the Costs of which will lie
83
in the discretion of the Court of Appeal.
If the Court of Appeal refuses to grant a Certificate of importance, an
application may be lodged by Notice of Motion in the Court within fourteen
days after the refusal to grant the Certificate by the Court of Appeal, for leave
to appeal on the ground that the intended appeal raises one or more matters of
public or general importance which would be proper for the Court to review
84
in order to see that justice is done.
17.6 PROCEDURE FOR FILING/LODGING OF AN APPEAL
17.6.1 Notice of Appeal in Non Capital Offences

The Criminal Procedure Code Act provides for the procedure of filing an
appeal to the next appellate court. Every appeal shall be commenced by a
notice in writing which shall be signed by the appellant or an advocate on his
or her behalf, and shall be lodged with the registrar within fourteen days of
85
the date of judgment or order from which the appeal is preferred.
Every notice of appeal shall state shortly the effect of the judgement or
order appealed against and shall:
(a) Contain a full and sufficient address at which notices or documents-
connected with the appeal may be served on the appellant or his or her
advocate; and
(b) except where subsection 3 applies, state the general grounds upon which
the appeal preferred.86
83 Rule 38(1)(a) Judicature (Supreme Court) rules See also Rule 39(1)(a) Judicature (Court of Appeal)
Rules.
84 Rule 38(1)((b) Judicature (Court of Appeal) Rules.
86 Section 28(2) ibid also Rule 60 The Judicature (Court of Appeal) Rules Directions, Rule 57 The
Judicature (Supreme Court) Rules Directions.
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17.6.2 Notice of Appeal in Capital Offences

In the case of an offence punishable by a sentence of death:
(a) Where the court has passed or confirmed the sentence of death, unless the
convict objects, the convict shall be taken to have given notice of appeal to
the Supreme Court as from the date that sentence was passed; and the
presiding Judge of the court shall note on the record that notice has been
given; and the registrar shall register the date that the notice of appeal has
been given and the notice shall institute the appeal;87 and
(b) the registrar shall draw up a notice of appeal in conjunction with the
advocate who defended the appellant, and the notice shall:
(i) state shortly the nature of the conviction, sentence and finding
against which it is desired to appeal; and
(ii) contain the address at which any documents connected with the
appeal may be served on the appellant and shall be in six copies.88
Where two or more persons have been convicted at the same trial and any
two or more of them desire to appeal to the court, they may, at their option,
lodge separate notices or a joint notice of appeal; and where a joint notice of
appeal is lodged, it may include, in addition to the appellants, grounds peculiar
89
to one or more of them.
Where an appeal has only with leave, or on a certificate that a point of law
of general public importance is involved, it shall not be necessary to obtain the
90
certificate or leave before lodging the notice of appeal.
Where the notice of appeal is signed by or on behalf of an appellant who is
in prison, it shall include a statement that the appellant intends or does not
intend, as the case may be, to appear at the hearing of his or her appeal.91
Where a notice of appeal is signed by an advocate, the advocate shall add
after his or her signature, the words “Retained only to prepare this notice”.
“Retained to appear at the hearing of the appeal” or “Assigned to appear at
92
the hearing of the appeal” as the case may be.
87 Rule 59(1)(a) The Judicature (Court of Appeal ) rules see also Rule 56(1)(a) Supreme Court Rules.
88 Rule 59(1)(b) ibid see also Rule 56(1)(b) Supreme Court Rules.
89 Rule 59(2) ibid see also Rule 56(2) Supreme Court Rules.
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A notice of appeal shall be substantially in Form B I the first schedule to

93
these rules and shall be signed by or on behalf of the appellant.
17.6.3 Notice of Appeal from Acquittals

Apart from the third appeal to the court being final, whenever, the court
acquits or confirms the acquittal of an accused, the Director of Public
Prosecutions as empowered by the Judicature Act, may give notice of appeal
94
as provided by rules 60(1) and (2) of these rules.
Where the Director of Public Prosecutions gives notice of appeal in the
event of an accused person being acquitted by the High Court, at the time
that the decision is given, the accused person shall give his or her address for a
service on him or her of the notice of hearing of appeal; or if the Director of
Public Prosecutions gives notice of appeal in writing within fourteen days after
the decision. The director shall notify the court of the address of the accused
person for service of the notice of appeal upon him or her, and the notice of
the date of hearing, which notices shall be substantially in the forms prescribed
95
in respect of the appeals against conviction.
The accused shall, as soon as possible, be informed that if he or she does
not attend the hearing of the appeal, the appeal will be heard in his or her
absence and that he or she may be liable to be arrested if the appeal of DPP is
successful.96
Sub-rules (1), (2) and (3) of this rule (61) shall apply to the case where the
court confirms or orders the acquittal of an accused person and the DPP gives
97
notice of appeal to the Supreme Court.
Appeal against an order of acquittal is an extra ordinary remedy. Where the
initial presumption of innocence in favour of the accused has been duly
vindicated by a decision of a competent court, an appeal against such a
decision of acquittal means putting the interests of the accused once again in
serious jeopardy.
94 Rule 61(1) The Judicature Court of Appeal Rules) Directions SI-13-10 see also rule 58 (1) The
Judicature (Supreme Court Rules) Directions S I-13-11.
95 Rule 61(2) Ibid see also Rule 58(2) Supreme Court Rules.
96 Rule 61(3) Ibid see also Rule 58(3) Supreme Court Rules but the wording of Rule differs from
Court of Appeal.
97 Rule 61(4) ibid.
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17.7 SERVICE AND TRANSMISSION OF NOTICES OF APPEAL

On receipt of notice of appeal, the registrar of the High Court shall
immediately send a copy of the notice to the registrar and one to the
respondent names in it.98
17.8 FEE ON APPEAL

Except in so far as it is waived or reduced, the fee prescribed for filing the
notice of appeal shall be paid at the time of lodging the notice and if the fee, if
any is not paid the notice shall not be received.99
No fees shall be payable upon any appeal from the High Court acting in its
original jurisdiction in a criminal case, or on any application in connection with
100
any such appeal or for the supply of the record of appeal;
No fees shall be payable by the Government in respect of any criminal appeal
or application;101
If in any appeal from the High Court acting in its appellant jurisdiction in
any criminal matter a judge of the High Court is satisfied on the application of
the appellant:
(a) that the appeal raises one or more questions of law proper for
determination by the court; or
(b) that the appellant ought not, by reason of poverty, to be required to pay
the whole of the fees ordinarily payable, including the fees for preparing
the record of appeal,
(c) he or she, by order, direct that the whole or any part of the fees be
waived.102
17.9 EXTENSION OF TIME

An application to extend the time for lodging a notice of appeal or grounds of
appeal under section 28(1) or (3) shall be made in writing to the registrar of
the appellant court and shall be supported by an affidavit specifying the
grounds for the application.103
98 Rule 63 ibid.
100 Rule 103 (2)(a) Court of Appeal Rules see also Rule 99(2( (a) Supreme Court Rules.
101 Rule 103 (2)(b) ibid Rule 99(2)(b) Supreme Court Rules.
102 Rule 111 Court of Appeal Rule 107 Supreme Court Rules.
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Except in the case of the Court of Appeal or the Supreme Court, the
appellate court may summarily reject an application of the kind mentioned in
subsection 7 without hearing the applicant or his or her advocate if, on
perusing the supporting affidavit, it is of the opinion that no grounds for
granting the application are disclosed.104
The court may, for sufficient reason, extend the time limited by these
Rules or by any decision of the court of the High Court for the doing of any
act authorized or required by these rules, whether before or after expiration of
that time and whether before or after the doing of the act; and any reference
in these rules to any such time shall be construed as a reference to the time as
extended105.
It should be noted that the power to extend the time within which to
appeal is discretionary and such discretion must be exercised judicially. There
is no unqualified right to extension of time for appealing. One of the
important questions the court should ask is whether the application for
extension of time was promptly made and whether good cause has been
shown for the delay. The fact that an appeal appears likely to succeed cannot
of itself amount to a good cause to attract the court’s sympathy to extend time
for appealing.
An appellate court will be reluctant to extend time until it has considered
all other factors and the burden is on the applicant to show sufficient reason
that it was not possible for the appeal to be lodged in time.106
107
In the case of Abdulla Lule v R the appellant who was unrepresented in
the lower court, was granted leave to file an appeal out of the prescribed time
because the advocate he briefed after conviction did not get the record of the
trial court in time to enable him lodge the appeal and hence the delay was
occasioned by this inability.
Application for leave to appeal out of time may also be granted if there is a
108
point of law of public importance involved in the case.

105 Rule 5 of the Judicature (Court of Appeal Rules) Directions see also Rule 5 of the Judicature
(Supreme Court ) Rules.
106 Charles Kangamiteto v Uganda [1978] HCB 124.
107 [1960] EA 21.
108 Esso Standard Eastern Inc v Income Tax [1971] EA 127
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Appeals 411
17.10 CONTENTS OF RECORD OF APPEAL

For the purpose of an appeal from the High Court in its original jurisdiction,
the record of appeal shall contain copies of the following documents order:109
(a) an index of all documents in the record with the numbers of the pages at
which they appear, showing also under the reference to the trial judge’s
notes and under the reference to the transcript, if any, of short hand notes,
names of the witnesses and pages of the record at which their evidence
appears;
(b) the information, indictment or charge;
(c) the trial judges notes of the hearing, including the proceedings on and after
sentence;
(d) the transcript of any short hand notes taken at the trial;
(e) a list of all exhibits put in at the trial;
(f) all documentary exhibits, photographs and plans put in at the trial and all
depositions read in consequence of the absence of intended witnesses;
except that the registrar of the High Court may, in his or her discretion,
omit copies of documents which are of great length or other exhibits
which are difficult to reproduce or any include copies of the relevant parts
only of any such documents.
(g) the summing-up to the assessors, if there is a record of it or of the judges
notes on which he or she based his or her summing-up and the opinion of
assessors;
(h) the judgment;
(i) the order if any, giving leave to appeal or the certificate, if any, that a point
of law of general public importance is involved;
(j) the notice of appeal; and
(k) any other documents which the trial judge may order to be included,
which may include additional grounds or explanation of his or her
decisions which he or she considers would be of assistance to the court, or
which appear to the registrar of the High Court to be necessary for the
proper disposal of the appeal; and those documents may include a report
made after sentence on appellant’s health.
For purposes of an appeal from the High Court in its appellate jurisdiction,
the record of appeal shall contain documents relating to the proceedings in the
trial court corresponding as nearly as may be, to those set out in sub rule 64(2)
109 Directions Rule 64(2) However the record is prepared by the registrar of the High Court see also
Rule 60 Supreme Court Rules
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and shall contain also copies of the following documents relating to the
110
appellant to the first appellate court:
(a) The petition of appeal;
(b) The record of proceedings;
(c) The judgment;
(d) The order, if any;
(e) The notice of appeal; and
(f) In the case of a third appeal to the court, the record shall contain also the
corresponding documents in relation to the second appeal and the
certificate of High Court that a point of law of general public importance
is involved.
For purposes of an appeal from the Court of Appeal, the record of appeal shall
contain documents relating to the proceedings in the trial court and shall
contain copies of the following documents relating to the appeal to the first
appellant court:111
(a) The petition of appeal;
(b) The record of proceedings;
(c) The judgment
(d) The order, if any;
(e) The notice of appeal; and
(f) In the case of a third appeal, it shall contain also corresponding documents
in relation to the second appeal and the certificate of the Court of Appeal
that a point of law of great public importance or general importance is
involved.
There is a duty of the trial court to record the explanation of the accused’s
rights on conviction. Even though, there was no miscarriage of justice
112
occasioned by the failure to record such explanation .
An appellant is entitled to have at his or her disposal, the entire record of
proceedings under which his or her conviction is founded in order to
challenge the conviction and sentence. Moreover the appellate court would
110 Rule 64(4) ibid.

111 Rule 60(2) The Judicature (Supreme Court Rules) Directions.
112 Bwanika v Uganda [1967]1 EA 768 (HCU).
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Appeals 413
be unable to satisfy themselves that the trial court was correct in reaching its
113
decision.
In addition, when alterations are made in a typed record of proceedings
such alterations must be initiated by the person making them.114
A record of appeal which reaches an appellate court must be a full and
faithful record of the trial fully comprehensive without a need arising to make
115
extraneous references.
The fact that the record of trial magistrate was gibberish and utterly
incomprehensible did not by its self make the original trial illegal or defective,
and was not a ground for ordering retrial.116
Where there is no record of the decision of the High Court, or any reasons
for the decision, the proper course was to remit the matter to the High Court
117
for the original appeal to be reheard.
17.11 SERVICE AND TRANSMISSION OF RECORD OF APPEAL

As soon as the record of appeal has been prepared, the registrar of the High
Court shall cause a copy to be served on the appellant and a copy on the
118
respondent and shall send four copies to the registrar.
The registrar of the High Court shall at the same time send to the registrar
the original record of proceedings in the High Court and the original
documentary exhibits in the High Court, other than any of great bulk, but
shall not send any exhibits other than documentary ones, unless requested to
119
do so by the registrar.
As soon as the record of appeal has been prepared the registrar of the Court
of Appeal shall cause a copy of it to be served on the appellant and a copy on
the respondent and shall send sufficient copies for each member of any
120
particular bench and the registrar as provided by rule 14 of these rules.
113 Omiat v Uganda [2003] 1 EA 226.

114 ibid See also Aloysious Byaruhanga v The Rukurato [1963] EA 680 Record before African District
court recorded in English not in Lutoro but appellant did not protest at any time over the record
being in English.
115 Cheruiyot v Republic [1976-1985] 1 EA 47.
116 Otieno and another v Republic [1990-1994] 1 EA 510, R v Abdi Moge (1948)15 EACA 86.
117 Misana v Republic [1967] EA 334, Zaver v Rex (1952) 19 EACA 244, Yosefu Muwonge v Uganda
Criminal Appeal Number 86 of 1965.
118 Rule 65(1) Court of Appeal Rules.
119 Rule 65(2) Court of Appeal Rules.
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The registrar of the Court of Appeal shall at the same time send to the
registrar the original record of proceedings in the trial court, the original
documentary exhibits in the trial court, other than documentary ones, unless
requested to do so by the registrar.121
17.12 MEMORANDUM OF APPEAL

Every appellant shall, within fourteen days after service on him or her of the
record of appeal, lodge a Memorandum of Appeal in nine copies with the
registrar or the deputy registrar at the place where the appeal is to be held by
the court.122
The Memorandum of appeal shall set forth concisely and under distinct
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 or mixed law and fact and in the case of a
second appeal, the points of law or mixed law and fact, which are alleged to
have been wrongly decided, and in a third appeal the matter of law of great
123
public or general importance wrongly decided.
The registrar or the deputy registrar; as the case may be shall as soon as
practicable, cause a copy of the Memorandum of Appeal to be served on the
respondent.124
If no Memorandum of Appeal is lodged within the prescribed time, the
court may dismiss the appeal or may direct that it be set down for hearing;
except that this sub rule, the appellant, if he or she can show cause; may apply
125
to the court to restore it for hearing.
17.13 SUPPLEMENTARY MEMORANDUM

The appellant may, at any time, with leave of the court, lodge a
126
supplementary Memorandum of Appeal.
An advocate who has been assigned by the Deputy Chief Justice or the
Presiding judge to represent an appellant may, within 14 days after the date
when he or she is notified of his or her assignment, and without requiring the

122 Rule 66(1) Court of Appeal Rules See also Rule 62(1) Supreme Court Rules.
123 Rule 66(2) ibid- See also Rule 62(20 Supreme Court Rules.
124 Rule 66(3) supra –See also Rule 62 (3) ibid.
125 Rule 66(5) supra – See also Rule 62(5) Supra.
126 Rule 67(1) Court of Appeal Rules See also Rule 64(1) Supreme Court Rules.
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Appeals 415
leave of the court, lodge a Memorandum of Appeal on behalf of the appellant

as supplementary to or in substitution for any memorandum which the
127
appellant may have lodged.
Any person lodging a supplementary memorandum under this rule shall
cause a copy of it to be served on the respondent.128
17.14 CONSOLIDATION OF APPEALS

Where two or more appeals are brought from convictions, acquittals or
sentences passed at the same trial, they shall unless the court otherwise orders
be consolidated and shall proceed as one appeal.129
Where two or more persons convicted by a subordinate court have
appealed to the High Court where their appeals were consolidated, and any
two or more of them give notice of appeal to the court, their appeals shall
unless the court otherwise orders be consolidated and shall proceed as one
appeal.130
17.15 APPELLANT’S RIGHT TO BE PRESENT AT APPEAL

An appellant who is in custody shall be entitled to be present at the hearing of
the appeal.131
The right of an appellant who is in custody to be present at hearing of the
appeal shall subject to his or her paying all expenses incidental to his or her
transfer to and from the place where the court sits for the determination of the
appeal; except that the court may direct that the appellant be brought before
the court in any case where in the opinion of the court his or her presence is
advisable for the due determination of the appeal, in which case the expenses
shall be defrayed out of the consolidated fund.132
The appellant and respondent shall be entitled to be present at the hearing
133
of the appeal.
An applicant other than an appellant under sentence of death or
imprisonment for life, or a respondent, if either is imprisoned and represented
127 Rule 67(2) ibid –See also rule 64(2) Supreme Court Rules.
128 Rule 67(3) supra –See also rule 64(3) Supreme Court Rules.
129 Rule 62(1) Court of Appeal Rule. See also rules 59(1) Supreme Court Rules.
130 Rule 62(2) ibid –See also 59(2) Supreme Court Rules.
133 Rule 73(1) Court of Appeal Rules, rule 69(1) Supreme Court Rules.
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by an advocate, shall, unless in any particular case the court otherwise directs,
if he or she wishes to be present, be responsible for paying the expenses of his
134
or her transport and that of his or her escort to and from court.
Where an appellant is represented by an advocate or has lodged a statement
under rule 68 of these rules or is in prison, then subject to Article 28(5) of the
Constitution, it shall not be necessary for him or her to attend personally
135
hearing of his or her appeal, unless the court orders his or her attendance .
If an appellant is on bail, he or she shall attend the hearing of his or her
appeal or, with the leave of the registrar, shall before the time of hearing,
attend the High Court at the place where the bail bond was executed and
submit him or herself to the order of that court pending disposal of the
136
appeal.
Where an appellant is in prison and has stated that he or she does not
intend to appear at the hearing of his or her appeal, the appeal shall be heard
in his or her absence unless the court orders attendance.137
17.16 WITHDRAWAL OF APPEAL

An appeal may be withdrawn at any time before hearing by notice in writing
to the registrar signed by the appellant; and upon notice being given the
appeal shall be taken to have been dismissed.138
When an appeal is withdrawn, the registrar shall immediately notify the
139
respondent and the registrar of the High Court.
An appeal which has been withdrawn may be restored by leave of the
court on the application of the appellant if the court is satisfied that the notice
of withdrawal was induced by fraud or mistake and that the interests of justice
requires that the appeal be heard.140
The appellant courts in Uganda have an important jurisdiction to allow an
abandoned appeal to be restored, if it can be shown that the notice of
134 Rule 73(2) Ibid – rule 69(2) Supreme Court Rules.

135 Rule 73(2) Ibid – rule 69(2) Supreme Court Rules.
136 Rule 73(3) supra see also rule 69(3) Supreme Court Rules.
137 Rule 73(5) supra see also rule 69(5) Supreme Court Rules.
138 Rule 70(1) Court of Appeal Rule see also rules 66(1) Supreme Court Rules.
139 Rule 70(2) ibid See also rule 66(2) ibid Supreme Court Rules.
140 Rule 70(3) ibid see also rule 66(3) Supreme Court Rules.
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Appeals 417
abandonment was given by mistake or fraud such as to involve a possible

141
failure of justice in the event of the appeal not being resorted.
An application to withdraw notice of abandonment is not necessarily an
abuse of legal process because there may be cases in which, although functus
officio an appellant tribunal will use its inherent jurisdiction to declare such a
142
notice a nullity and allow the appeal to be restored.
17.17 ABATEMENT OF APPEALS

Every appeal from a magistrate’s court, except an appeal from a sentence of
fine shall finally abate on the death of the appellant.143
If after diligent search, any document relevant to an appeal cannot be
served upon an appellant, the appellant court may order that the appeal be
144
deemed to be abated or may give such directions as it thinks fit.
An appeal, other than an appeal against a sentence if a fine or an order for
costs, compensation or forfeiture, shall abate on death of the appellant or
145
where the appellant is the state; on the death of the respondent
Where an appellant died before his appeal could be heard by the Court of
Appeal, the proper course of action was to rule that his appeal had abated
pursuant to rule 70 of Court of Appeal rules (now rule 71) it was irregular for
the court to strike out the appeal.146
17.18 DISMISSAL OF APPEAL FOR WANT OF PROSECUTION

147
The appellant court may dismiss an appeal for want of prosecution:
(g) If the appellant, at any time before the appeal is determined, escapes from
custody or fails to appear after he or she has been released on bail;
(h) If the appellant fails to take any necessary step in prosecuting his or her
appeal within the time allowed and has not made an application for extension
of time.
141 Seristie Luyombya v Uganda [1965] EA 698.

142 Ibid.
145 Rule 71 Court of Appeal rules See also Rule 67 of Supreme Court Rules, Akol Patrick and 3 others
v Uganda [2006] 1 HCB 4.
146 Semande v Uganda [1999]1 EA (SCU).
147 Section 44(1) Criminal Prosecution Code Act.
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Notwithstanding Subsection1 appellant court may consider and determine an

appeal in the absence of the appellant and may make such order as it thinks
148
fit.
Where on the dismissal of an appeal under section 42 of this section any
sentence of imprisonment or of a fine remains to be served or paid, the
appellant court may issue a warrant of arrest or macth such other order as it
149
deems necessary to enforce the execution of the sentence.
An appellant may, at any time before the hearing, abandon his or her
appeal by giving notice in writing abandonment to the registrar of the
appellate court; and upon the notice being given the appeal shall be deemed
to have been dismissed by the appellant court.150
If no Memorandum of Appeal is lodged within the prescribed time, the
court may dismiss the appeal or may direct that it be set down for hearing;
except that where an appeal is dismissed under this sub rule; the appellant, if
he or she can show sufficient cause, may apply to the court to restore it for
hearing.151
Subject to sub rule 5 of this rule if on the day fixed for the hearing of an
appeal, the appellant does not appear in person or by an advocate and has not
lodged a statement under rule 68 of these rules, or having been in prison has
escaped from custody; the appeal may be dismissed or be heard in his or her
absence.152
Where an appeal has been dismissed under sub rule 6 of this rule, the court
may restore it for hearing if it is satisfied that the appellant was prevented by
153
any sufficient cause from appearing when the appeal was called for hearing .
If on the day fixed for the hearing of an appeal the respondent does not
appear in person or by advocate the appeal shall proceed unless the court sees
fit to adjourn hearing.154
155
In the case of Kinoti v Republic, the appellants’ advocate instructed
someone to apply for an adjournment on her behalf. The court declined the
applicator and proceeded to dismiss the appeal for non-prosecution. The

151 Rule 66(5) Court of Appeal Rules see also 62(5) of Supreme Court Rules.
152 Rule 73(6) Court of Appeal Rules see also rule 69(6) Supreme Court Rules .
153 Rule 73(7) ibid see also rule 69(7) Supreme Court Rules.
154 Rule 73(9) supra see also rule 69 (9) Supreme Court Rules.
155 [2005] 1 EA 209.
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Appeals 419
appellant appealed to the Court of Appeal. The court held that; the proper
course of the appellant was to appeal against the dismissal of his appeal for
want of prosecution. Under the Criminal Procedure Code, there is no
provision for determination of appeal that has been admitted to hearing
without consideration by the court of the merits or demerits thereof.
While there is no requirement that either the appellant or his advocate, or
the state must address the court, it is nonetheless incumbent on the court to
consider the appeal and make a determination.
In addition, in the Kenyan case gives a similar position of the law that is
applicable to Uganda. In Taro v Republic.156 The appellant appealed to Superior
Court. On the day for hearing only state counsel appeared, the court therefore
dismissed the appeal for non attendance by counsel. On appeal court held that
on a criminal appeal to the Superior court, the appellant court or his advocate
may address the court in support of the ground set out in the Petition. The
appellant who is in custody is however not always required nor entitled to be
present at the hearing of the criminal appeal. He is entitled to be present if he
desires to attend unless the appeal is on a ground involving a question of law
only, in which case leave of the court must be sought. The right to be present
is also subject to the appellant paying transport charges unless he/she
exempted by the court from so doing. Thus an appeal may be heard in
Superior Court even in absence of the appellant.
Where the appellant and /or his advocate fail to attend the hearing of the
appeal, the only recourse of the court is to either adjourn the appeal to
another day or hear the appeal in the appellant’s absence. There is no
provision allowing dismissal of appeal for non attendance.
17.19 ARGUMENTS AT HEARING

157
At the hearing of an appeal:
(i) The appellant shall not, without leave of the court, argue any ground of
appeal not specified in the Memorandum of Appeal or in any
supplementary memorandum lodged under rule 67 of these rules.
(ii) The arguments contained in any statement lodged under rule 68 of these
rules shall receive the same consideration as if they had been advanced or
rally at hearing.
An appellant or, where the appellant is the state, a respondent who does not
intend to appear in person or by advocate at the hearing of appeal may lodge
156 [2005]1 EA 380.

157 Rule 74 Court of Appeal Rules see also rule 70 Supreme Court Rules.
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with the registrar or with the deputy registrar at the place where the appeal is
to be heard a statement in writing of his or her arguments in support of or in
158
opposition to the appeal, as the case may be.
Every statement referred to in sub rule (1) of this rule shall be signed by or
on behalf of the appellant or respondent, as the case may be, and shall be
lodged in nine copies at time of or within fourteen days after lodging the
159
memorandum of appeal.
A person who has lodged a statement under this rule shall not except with
the leave of court, address the court at the hearing of the appeal.160
On receipt of a statement under sub rule (1) of this rule the registrar or
161
deputy registrar shall immediately send one copy of it to the other party.
17.20 LIST OF AUTHORITIES AND COPIES OF JUDGMENTS

An advocate who intends at the hearing of any application or appeal to rely on
the judgment in any reported case or to quote from any book shall lodge with
the registrar at the place where the application or appeal is to be heard a list
containing titles of those case with their citations and the names authors and
editions of any such books and shall serve a copy of the list on the other party
or on each other party appearing in person or separately representing, as the
case may be.162
A supplementary list may, when necessary, be produced at the time of the
163
hearing.
158 Rule 68(1) Court of Appeal Rules rule 64(1) Supreme Court Rules.
159 Rule 68(2) ibid –rule 64(2) Supreme Court Rules.
160 Rule 68(3) supra rule 64(3) Supreme Court Rules.
161 Rule 68(4) supra rule 64(4) Supreme Court Rules.
162 Rue 27(1) Court of Appeal Rules. See also rule 27(1) Supreme Court Rules.
163 Rule 27(2) ibid See also rule 27(2) Supreme Court Rules.
CHAPTER EIGHTEEN
REVISION
18.1 INTRODUCTION
Powers of revision are solely vested in the High Court the purpose of which is
to enable it to effectively supervise the subordinate courts with the object of
correcting their errors or wrongs. The powers of revision conferred on the
higher courts are very wide and are purely discretionary in nature.
Therefore, no party has any right as such to be heard before any court
exercising such powers. The revision powers, though quite wide, have been
circumscribed by certain limitations.
For instance, (a) in cases where an appeal lies but no appeal is brought,
ordinarily no proceeding by way of revision shall be entertained at the
instance of the party who could have appealed; (b) the revisional powers are
not exercisable in relation to any interlocutory order passed in any appeal,
inquiry or trial; (c) the court exercising revisional powers is not authorised to
convert a finding of acquittal into one of conviction;
The revisionary powers of the High Court are supplementary to its
appellate powers. It is for this reason that the courts have stressed the need to
make enquiries as to whether an appeal has been lodged before revising any
order.
18.2 FEATURES OF REVISIONARY PROCEEDINGS

There are certain distinction features about revision:
(i) The High Court has complete discretion in revision (i.e. it is not bound to
revise) because the revisionary power is discretionary.
(ii) In exercise of these powers no party or person is entitled, as of right, to
appear before the High Court but the court may invite a party to be
present at the hearing.
(iii) There is no time limit between which order may be revised, unlike appeals
which have to be brought within a specified period.
(iv) In revising orders, the High Court may act on its own motion (i.e.
without being moved by either party to the matter.
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It is these features that distinguish revisionary proceedings from appellate

proceedings.
18.3 RELATIONSHIP BETWEEN APPEALS AND REVISIONS

Both the appellate and revisionary powers of the High Court are aimed at
correcting errors of subordinate courts. The basic difference between the two
modes lies in the methods of bringing the matter complained of before the
High Court.
In the case of appeals it is the duty of the aggrieved party to prefer an
appeal to the High Court in which the grounds of appeal have to be specified
whereas in the case of revision all that an applicant needs to do is to bring the
matter complained of to the attention of the High Court which has discretion
to revise or not to revise.
The High Court, in exercise of its revisionary powers, has the same powers
as when it hears appeals from subordinate courts.1 The High Court has such
power to affirm or quash the conviction and sentence, to release an appellant
on bail pending appeal and to take further evidence.
For all practical purposes revisionary proceedings are in law deemed to be
appellate proceedings. It is for this reason that they should not be undertaken
until a period allowed for appeal has expired. Similarly, there should be an
inquiry as to whether an appeal has been or is likely to be filed before
revisionary proceedings are initiated because revisionary powers are exercised
before an appeal is disposed of, the potential appellant may lose his right of
2
appeal.
Revision is important in cases where no right of appeal is provided for. In
the case of R v Dunn3 the trial magistrate made an order that the commissioner
of police should pay costs and compensation to the respondent on the ground
that the prosecution of the respondent was vexatious in that the charge against
the accused was vexatious. The Republic applied for revision of the order for
payment of costs and compensation. The High Court set aside the said order
and overruled an objection by the respondent that the applicant should have
appealed because there was no right of appeal against the order.
An appeal may have been lodged but it is subsequently withdrawn. This
does not deny the High Court competence to exercise its revisional
jurisdiction if it considers that the order or sentence is illegal. In the case of
1 Uganda v Baguma [1970] EA 169.

2 Michael s/o Meshaka v R [1962] EA 81 (CA).
3 [1965] EA 567 (HCK).
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Revision 423
4
Uganda v Polasi, the accused was sentenced to an illegal term of
imprisonment. He filed an appeal but withdrew it and it was thereby deemed
to have been dismissed. The sentence was subject to confirmation and had not
been confirmed. The High Court held that it had power to revise the illegal
sentence. Dickson J noted that an abandoned appeal may be restored in a
proper case on application by an appellant. He observed that in this case the
appellant had not applied and a pertinent question to be asked was whether
the court can of its own motion, restore an abandoned appeal. He took the
view that in as much an abandoned criminal appeal may be restored where;
the court is functus officio, the High Court can of its own motion, in exercise of
its revisional powers under the criminal procedure code, where there is a
fundamental illegality make a revisional order without an accused applying in
the case where an appeal had been previously dismissed by the mere operation
of the law.
The court noted:
“The case has come to this court’s notice of its functions. The accused, it would
seem, was unaware of the illegality of the sentence … Once this state of affairs has
come to the notice of the High Court, what must it do when it is enjoined to
exercise general powers of supervision and control over the magistrate’s court,
coupled with the specific powers of revision, under … Criminal Procedure
Code?
The court is clothed with authority to correct errors … Here the accused is
sentenced to undergo imprisonment for seven years, a sentence which exceeds
the legal limits of five years and, accordingly, there is a gross illegality. In these
circumstances, the clear duty of this court, notwithstanding the fact that the
accused has abandoned his appeal, is to invoke … the Criminal Procedure Code
and cure the illegality. I would hold that in the circumstances of this case even if
this court is functus officio, it has jurisdiction under its revisional powers to correct
the formidable error of the trial magistrate which has already occasioned an
injustice.”5
The court once it has exercised its powers of revision is ‘functus officio ’and has
no authority to subsequently revise its own order. Once a case has been
revised by the High Court that court becomes “Functus officio” and the
revision is final unless there is an appeal to the Court of Appeal.6
4 [1970] EA 638.
5 Ibid 640.
6 Kiwala v Uganda [1967] EA 758.
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18.4 POWERS OF COURT ON REVISION

The High Court may call for and examine the record of any criminal
proceedings before a magistrate’s court for the purpose of satisfying itself as to
the correctness, legality or propriety of any finding, sentence or order
recorded or passed, and as to the regularity of any proceedings of the
7
magistrate’s court.
The Judicature Act equally provides that: The High Court shall exercise
8
general powers of supervision over the magistrates courts.
Similarly, the Magistrates court has power to call for records of inferior
courts and report to the High Court. A Chief Magistrate shall exercise general
powers of supervision overall magistrates courts within the area of his or her
9
Jurisdiction.
Any magistrate may call for and examine the record of any criminal
proceedings before a magistrates court inferior to the court which he or she is
empowered to hold, and situate within the local limits of his or her
jurisdiction for the purpose of satisfying himself or herself as to the correctness,
legality or propriety of any finding, sentence or order recorded or passed and
10
as to the regularity of any proceedings of the inferior magistrate court.
If any magistrate acting under subsection (1) considers that any finding,
sentence or order of the inferior magistrate’s court is illegal or improper, or
that any such proceedings are irregular, he or she shall forward the record with
11
such remarks on it as he or she thinks fit, to the High Court.
In accordance with subsection (2), where a Chief Magistrate forwards to
the High Court the record of a case in which a convicted person is
undergoing a sentence of imprisonment which the Chief Magistrate considers
to be illegal or improper, he or she may release that person on bail pending
the determination of the High Court.12
Under the above provisions of the law, the High Court is empowered to
call for and examine the record of any proceedings before any inferior court
and satisfy itself as to the correctness, legality or propriety of any order passed
by the inferior court.

8 Section 17(1) Judicature Act.
10 Section 4(1) Criminal Procedure Code see section 221(2) Magistrate Courts Act.
11 Section 49(2) ibid see also section 221(3) Magistrates Courts Act.
12 Section 49(3) supra see also section 221(4) Magistrates Courts Act.
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Revision 425
If any defect, irregularity or illegality justifying corrective action, is found

on the examination of the record the subsequent sections empower the High
Court to pass suitable orders to remove the miscarriage of justice.
The main object or rationale for revision jurisdiction is to confer upon
High Court, a kind of paternal or supervisory jurisdiction.
In the case of any proceeding 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 those proceedings an error
material to the merits of any case or involving a miscarriage of justice has
occurred, the High Court may:13
(j) in the case of a conviction, exercise any of the powers conferred on it as a
Court of Appeal by sections 34 and 41 and may enhance the sentence.
(k) in the case of any other order, other than an order of acquittal, alter or
reverse the order.
No order under this section shall be made unless the Director of Public
Prosecutions has had an opportunity of being heard, and no order shall be
made to the prejudice of an accused person unless he or she has had an
opportunity of being heard either personally or by an advocate in his or her
14
own defence.
The High Court should not enhance a sentence without giving the
accused an opportunity of showing case against enhancement as this would be
in breach of the fundamental principle of natural justice that no person should
15
be condemned without being heard.
Where the sentence dealt with under this section has been passed by a
magistrates court, the High Court may inflict a greater punishment for the
offence, which in the opinion of the High Court the accused has committed
16
than might have been inflicted by the court which imposed the sentence.
Nothing in this section shall be deemed to authorise the High Court to
convert a finding of acquittal into one of conviction; except that when any
person is acquitted of the offence with which he or she was charged but is
convicted of another offence, whether charged with that other offence or not,
the High Court may, if it reverses the finding of conviction, itself convert the
17
finding of acquittal into one of conviction.

15 Amratlal v Uganda [1970] EA 401.
17 Section 50(4) op. cit.
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Any person aggrieved by any finding, sentence or order made or imposed

by a magistrate’s court may petition the High Court to exercise its powers of
revision under this section, but no such petition shall be entertained where the
petitioner could have appealed against a finding, sentence or order and has not
appealed.18
In dealing with a case under this section, the High Court may, if it thinks
fit, call for and receive from the magistrate’s court before which the case was
19
heard a report on any matter connected with the case.
Where an application is made by the Director of Public Prosecutions under
subsection (7) to make an order to the prejudice of an accused person, the
application shall be lodged with the registrar within thirty days of the
imposition of the sentence unless good cause shown, the High Court extends
20
the time.
From the nature of the powers given to the High Court on revision, it
seems to follow that the revisional court can act either on its own motion or
on the motion of even a stranger who may be instrumental in bringing to
knowledge of the revisional court a matter which otherwise the High Court
may not have known.
Of course, the normal course of the High Court to be seized with a matter
is either at the instance of the prosecution or the accused or the High Court
itself, but in some rare cases information may be received by High Court even
from a stranger.
It therefore follows that, the High Court as a revisional court can interfere
on information contained in newspaper or media or a placard on a wall or on
an anonymous postcard, provided it considers that sufficient ground has been
established to justify its doing so.
At the same time the revisional court has to be loath to take action on an
application for revision presented by a third party on its own responsibility and
without authority from either of the parties. It becomes the duty of the
revisional court to see that a stranger to the proceedings does not employ his
or her information as an instrument of vengeance on the accused or attempt
to serve his/her own private end.
In addition, the extent to which a court may revise records has also been
the subject of judicial determination. In the case of Nathan Godfrey Odhiambo

20 Section 50(8) op cit.
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Revision 427
21
Obiro v R, the appellant was convicted of forging contrary to section 352 and
356 of the Penal Code, and was given, an absolute discharge under section 35
of the Penal Code. The Supreme Court called for the proceedings under
section 362 of the Criminal Procedure Code and the case was listed for
argument whether the sentence or final order should be altered under the
powers of revision vested in court. It was submitted for the appellant that an
order of absolute discharge under section 35 is not a sentence and that there
was no power in revision to set aside an order such as that. The crown
submitted that order absolute, discharge is technically a sentence in as much as
it is a definite judgment pronounced in criminal proceedings. The Supreme
Court of Kenya made the following findings:
(i) an order of absolute discharge under a sentence and may be enhanced in
revision under the powers contained in section 364(1) of the Criminal
Procedure Code:
(ii) even if the absolute discharge were not technically a sentence it would be
an “other order” and could be altered in revision under section 364(1) of
the Criminal Procedure Code.
The High Court has power in revision to enhance a sentence on the ground
that it is so inadequate, having regard to the seriousness of the offence as to
22
amount to a miscarriage of justice.
As noted earlier, where an appeal has been withdrawn by the appellant it
would mean the appeal stands dismissed, the High Court may still go ahead
and revise an illegal sentence. In other words, the withdrawal of an appeal
does not render the High Court functus officio as regards its powers of revision.
The exercise of jurisdiction under section 50 of the Criminal Procedure
Code is discretionary and such powers are to be used only in exceptional cases
where there is a gating defect in procedure or there is manifest error on point
of law and consequently there has been a flagrant miscarriage of justice.
The exercise of revisional power is justified only to set right grave injustice
and not merely to rectify every error however inconsequential. Merely
because the lower court has taken a wrong view of law or misapprehended
the evidence on the record cannot by itself justify interference or revision
unless it has also resulted in grave injustice.
It is not possible and practicable to set or lay down any rigid test of
uniform application and the matter has to be left to the sound judicial
21 [1962] EA 650.
22 Fatehali v Republic [1972] EA 158, Uganda v Polasi [1970] EA 638.
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discretion of the High Court in each case to determine if it should exercise its
extra ordinary power of revision to set right injustice.
The High Court while exercising revision jurisdiction, would not and does
not interfere with the concurrent findings of the courts below on a question
of fact but where the finding is vitiated so as to cause miscarriage of justice as,
for instance, when it is based on no evidence, or where vital evidence has
been overlooked or evidence has not been considered in its true perspective
the court will and must – interfere.
18.5 REVISION AND INTERLOCUTORY ORDERS

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.
In the case of Musoke v Uganda,23 court noted that there could be no
revision against a ruling but only against a final order when the proceedings in
the lower court are concluded.
It is submitted that, if the law could allow revision against interlocutory
orders, it would not only delay justice but might sometimes defeat it. What
amounts to an interlocutory order is not defined. But a reasonable
interpretation of the term would suggest that an interlocutory order is one
which is passed at some intermediate stage of a proceeding generally to
advance the cause of justice for the final determination of the rights between
24
the parties.
The test in determining the final or interlocutory nature of an order is one
and the same both in civil as well as criminal cases. That test is whether or not
the order in question finally disposes of the rights of the parties or leaves them
to be determined by the court in the ordinary way. If the order does not
finally dispose of the parties and the matters in dispute, and leaves the suit or
case still a live suit in which the rights of the parties have to be determined,
the order will remain interlocutory irrespective of the stage at which it is
passed and also irrespective of the conclusive decision of the subordinate
matters with which it deals.
Therefore, generally speaking, the test for determining whether an order is
of a final or interlocutory nature, is whether or not the order in question
finally disposes of the rights of the parties or leaves them to be determined by
the court in any ordinary way. The term “Interlocutory Order” is not to be
23 Criminal Revision Number 81 of 1963 (unreported).

24 Charles Harry Twagira v Uganda Criminal Appeal Number 27 of 2003 decided on 2 August 2005.
M Ssekaana
Revision 429
understood in any broad or artistic sense; it merely denotes orders of a purely

interim or temporary nature which do not decide or touch the important
rights or liabilities of the parties.
It should be noted that the restriction on revisional power in relation to
interlocutory order is not applicable in respect of interlocutory order passed
without jurisdiction. If interlocutory orders passed without jurisdiction cannot
be interfered with by the High Court on revision at any earlier stage, then the
harassment would be much greater and would be more oppressive.
Interlocutory orders which are made without jurisdiction are nullities and
have no existence in the eyes of the law. The litigants cannot escape
harassment merely by ignoring them and that is why the jurisdiction of the
High Court is invoked to quash such orders.
A question may arise as to whether the bar on revision of interlocutory
orders can be circumvented by the aggrieved party invoking the inherent
powers of the High Court under section 17.25 If the order assailed is purely of
an interlocutory character, the High Court will refuse to exercise its inherent
power. However, in case the impugned order clearly brings about a situation
which is an abuse of the process of the court or for the purpose of securing the
ends of justice interference by the High Court is absolutely necessary, then
nothing shall limit or affect the exercise of the inherent power of the High
Court.
One of such case would be desirability of the quashing of the criminal
proceedings initiated illegality, vexatiously or as being without jurisdiction.
26
In the case of Uganda v Dalal, a trial magistrate made an order that the
particulars of a charge were bad for being duplex and thereafter the
prosecution applied for adjournment to amend it. Subsequently, the Director
of Public Prosecutions made an application to the High Court for revision of
the order. In revision it came to light that the criminal charge was pending
before the trial magistrate. The High Court refused to revise the order holding
that it is only final orders that can be revised.
18.6 AUTREFOIS ACQUIT AND REVISION

The issue of whether it is competent for a court to revise an acquittal has been
27
considered. In the case of R v Telenga, the respondent was prosecuted on a
charge of corruption. After the prosecution and defence had given evidence,
25 Judicature Act Chapter 13.

26 [1970] EA 355.
27 [1967] EA 407.
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but before judgement was delivered, the magistrate realized that that consent
to prosecute, which was mandatory, had not been obtained from the Attorney
General. As a result, the prosecution applied to withdraw and since the
accused had been put on his defence and had closed his case, the accused was
acquitted. The Director of Public Prosecutions applied for revision to the
High Court with a view to setting aside the acquittal order.
The High Court refused to do so because an acquittal could not in law be
revised.
As can be deduced from the above decision, the High Court does not
enjoy jurisdiction to revise proceedings culminating in an acquittal.
However, a finding of “Autrefois acquit” is treated differently. In the case of
28
Semuyaga v Uganda, it was held that a finding of autrefois acquit is a final
finding but subject to revision.
The case of R v Telenga, places limitations on the power of the High Court
to set aside a finding of acquittal in revision, particularly when the Director of
Public Prosecutions had not thought fit to appeal to the High Court against
the finding of acquittal and when the High Court is exercising the revisional
jurisdiction at the instance of the private parties.
The revisional power of the High Court to set aside the order of acquittal
at the instance of the private persons or busy bodies should be exercised only
in exceptional cases where there is some glaring defect in the procedure or
there is a manifest error on a point of law and consequently there has been a
flagrant miscarriage of justice.
29
In the Indian case; K Chinnaswamy Reddy v State of A.P the Supreme
Court has observed:
“It is not possible to lay down the criteria for determining such exceptional cases
which would cover all contingencies. We may however indicate some cases of
this kind, which would in our opinion justify the High Court in interfering with
a finding of acquittal in revision These cases may be: where the trial court has no
jurisdiction to try the case but has still acquitted the accused or where the trial
court has wrongly shut out evidence which the prosecution wished to produce;
or where the appeal court has wrongly held evidence which was admitted by the
trial court to be inadmissible; or where material evidence has been overlooked
either by the trial court or by the appeal court; or where the acquittal is based on
a compounding of the offence which is invalid under the law. These and other
cases of similar nature can properly be held to be cases of exceptional nature
where the High Court can justifiably interfere with an order of acquittal and in
28 [1975] EA 186.
29 1963) Cri LJ 8: AIR 1962 SC 1788.
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Revision 431
such a case it is obvious that it cannot be said that the High Court was doing
indirectly what it could not do directly …”
It therefore follows from the above decision that where an acquittal is based
on the compounding of an offence and the compounding is invalid under the
law; the acquittal would be liable to be set aside by the High Court in the
exercise of its revisional jurisdiction.
18.7 DISCRETION TO HEAR PARTIES

The Criminal Procedure Code Act provides:
Except as provided in section 50, no party has any right to be heard either
personally or by advocate before the High Court when exercising its powers of
revision, but that court may, if thinks fit, when exercising those powers hear any
party either personally or by advocate, and nothing in this section shall be
deemed to affect section 50(2).30
Section 50(2) provides:31
No order under this section shall be made unless the Director of Public
Prosecutions has had an opportunity of being heard, and no order shall be made
to the prejudice of an accused unless he or she had an opportunity of being heard
either personally or by an advocate in his or her own defence.
These provisions connote to the principle of fair trial as enshrined in the
Constitution and also the common law principle audi alteram partem which
simply means “No man should be condemned unheard”.
What is required by this principle is that a party must have an opportunity
of presenting his/her case or showing cause against the order. It is, however,
not necessary that a party must be heard either personally or through his/her
advocates.
18.8 HIGH COURT ORDER TO BE VERIFIED TO LOWER COURT

When a case is revised by the High Court, it shall certify its decision or order
to the court by which the sentence or order revised was recorded or passed,
and the court to which the decision order is certified shall then make such
orders as are conformable to the decision certified, and, if necessary the record
32
shall be amended in accordance with the decision or order.
30 S.ection 51 Criminal Procedure Code Act.

31 Criminal Procedure Code Act.
CHAPTER NINETEEN
RETRIAL
The expression retrial is used in an unlimited or unrestricted sense. In absence

of any indication to the contrary it can be taken to mean partial retrial also.
An appellate court reversing an order of conviction or acquittal may order a
retrial; such a retrial can be ordered from the stage at which an error or
illegality has crept in.
The law provides for a retrial or a new trial where the appellate court
considers a miscarriage of justice has occurred, and that, having regard to all
circumstances, the miscarriage of justice can be more adequately- remedied by
an order for a new trial than by any other order that the court is empowered
to make.
1
The appellate court on any appeal may:
Reverse the finding and sentence, and acquit or discharge the appellate, or order
him or her to be tried or retried by a court of competent jurisdiction.
Under the above provision of the law, when the court reverses the finding
and sentence, it has two options available to it; it may acquit or discharge the
accused, or it may order the accused to be retried or committed for trial.
The power to order a retrial is discretionary and, needless to say, it should
be exercised judicially, bearing in mind the important principle of law that a
person should not be put in jeopardy twice for the same offence. It would be
wrong for the court to lay down any general proposition to be taken to
govern each class of case. Whether or not an order for retrial should be made
depends on the particular facts and circumstances of the case. A retrial should
2
be ordered only where it is unlikely to cause injustice to the accused person.
A retrial is not to be ordered merely to enable the prosecution to adduce
additional evidence for filling up gaps or lacunae left at the trial.3 Where
however, the defects in the original trial were in no way the fault of the
1 Section 34(2) Criminal Procedure Code.

2 Ahmed Sumar v Republic [1964] EA 481-Njenga v R [2006] 1 EA 297.
3 Aloys v Uganda [1972] EA 469 (HCU).
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prosecution and the interests of justice require that the appellant should be
4
retried, the court should not hesitate to accede to a request for a retrial.
An order for trial of a criminal case is made in exceptional cases, and not
unless the appellate court is satisfied that the trial court had no jurisdiction to
try the case or that the trial was vitiated by some serious illegality or
irregularity, or on account in substance there had been no real trial, or that the
prosecutor or an accused was, for reasons over which he had no control,
prevented from leading or tendering evidence material to the charge and in
the interests of justice the appellate court deems it appropriate, having regard
to all the circumstances of the case, that the accused should be put on his trial
again.
5
In the case of Fatehali Manji v Republic the court noted:
“In general, a retrial will be ordered 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 first trial; 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 depend on its own facts and circumstances and an order for
retrial should only be made where the interests of justice require it.”
It bears emphasis, that the strength of the case against the appellant is a
legitimate matter to be taken into consideration in deciding whether or not to
order a new trial, and it is indeed a very important or perhaps in most cases a
decisive factor.
In exercising the discretion given by the law, not only the interests of the
accused, but of the efficient administration of justice ought to be considered,
always providing that no injustice is done to the accused.
The order of retrial which the appellate court can pass in the context of an
appeal from a conviction is retrial for the same offence for which the accused
was convicted and not of another offence since it would be wrong for the
appellate court to assume that the whole case is before it.
Where the record of the trial court was gibberish and utterly
incomprehensible does not by itself make the original trial illegal or defective
6
and was not a ground for ordering a retrial.
4 M’kanake v Republic [1973] EA 67.

5 [1966] EA 343 see also Irungu v Republic.
6 Othieno and another v Republic [1990 -1994] 1 EA 510.
M Ssekaana
Retrial 435
A retrial may be ordered if the court finds that an accused person was convicted
of an offence other than the one which was charged or ought to have been charged
with.
In Tamano v R,7 the accused was charged with driving a vehicle whilst under the
influence of drink section 44(1) of the Traffic Act provides for three different
offences, ‘driving’, ‘attempting to drink’ and ‘being in charge of” a motor vehicle
whilst under the influence of drink to such extent as to be incapable of proper
control of the vehicle, and the accused was convicted and sentenced.
On appeal Trevelyan J set both the conviction and sentence set aside and the
accused ordered a retrial on the ground that the accused was never charged with
“being in charge” of a motor vehicle, and accordingly the conviction and sentence
should be set aside. The court in its discretion therefore ordered a retrial.
There are several factors operating in favour and against exercise of the power to
order a retrial:
(a) The strength of the prosecution case is one of the many considerations.
(b) The seriousness or otherwise of the offence may be a relevant factor, as may its
prevalence.
(c) Where the trial was prolonged and complex the expense of a new trial may be
relevant.
(d) The consideration that any criminal trial is an ordeal for the accused, who ought
not to be made to suffer a second trial through no fault of his own unless the
interests of justice so require.
(e) The length of time between the offence and the new trial may mean that
evidence will not be available at the new trial.
It should be noted however that, there is no exhaustive list of these considerations.
Nor is it possible to say that one consideration is more important than another, the
nature and strength of the individual factors varying from case to case. Each matter
must be considered in context and in conjunction with the strength of the
prosecution case, which will generally remain the ethical consideration.
A court cannot order a retrial in a vacuum. A retrial had to be upon a valid
charge. In this case, there was no charge and consequently no basis for an order for a
retrial. If a retrial had to be ordered, there had also to be an order to amend the
charge and for court to do so would be to assume the role of prosecution thereby
depriving the accused the umbrella of impartiality to which he was entitled to in a
8
court of law.
7 [1969] EA 176.
8 Uganda v Oyat and 2 others [1973] HCB 170.
INDEX
against acquittal, 408

A out of time, 410
Abatement, 417 extension of time, 409
of appeal, 417 first, 390
of trial on death of accused, second, 399
270 third, 404
Abduction, 36 summary dismissal, 396
Abscondment, 199 withdrawal, 416
Accused, 55, 58 additional evidence, 393
Acquit, 250, 429 grounds of miscarriage of
Autrefois, 250, 429 justice, 389
Acquittal, 408 notice of memorandum of, 414
Additional Evidence see Evidence, service of record, 413
Adjournment, 285 consolidation, 415
Advocate, 272 revision,
duty of, 272 Appellate Court, 390
Alibi, powers of, 390
Alternative Counts/Charge see Supreme Court-powers, 402
Charges, 234 Court of Appeal, 399
Amendment of High court, 399
Charge/Indictments, 238
Magistrates court,
Amnesty, 255
First, 390
Appeals,383
second, 403
abatement of, 417
third,
arguments at hearing ,
summary dismissal, 396
against Conviction,
M Ssekaana
Arraignment, stop and, 132

commencement of trial, warrant of, 134
multiple accused, Assessors,
multiple offences, advisory opinions of, 316
Arrest, 123 importance, 303
by local district administration role of, 301, 309, 304, 302
police, 144
selection, 305
by magistrate, 140
absence of, 310
by Police, 137
attendance at adjourned sitting,
by private person, 141 310
by prison officer, 145 summing up, 311
by Army/Military, 147 Autrefois Convict or Acquit, 250
by parliamentary official, 145 Revision, 429
with a warrant, 133 Pleas, 250
without a warrant, 136
force, 155 B
forms of, 134
Bail, 181
manner, 127
automatic bail, 186
reasons for, 156
cancellation of, 210
place of, 153
definition, 181
power of re-arrest, 132
object, 182
rights, 130, 142
pending appeal, 192
procedure after arrest, 142
discretion in granting, 186
reasonable suspicion , 139
refusal of, 196
powers of police, 137,
at police (police bond), 202
privilege, 125
for children, 204
member of parliament, 125
death of surety, 205
President, 125
discharge of surety, 205
Diplomats, 126
right to, 184
M Ssekaana
Index 439
magistrate, 191 Cognate offences, 338

high court, 196 Committal proceedings, 318
court martial, 201 power of court, 321
increase/reduction, 207 procedure, 319
recognisance, 204 critique of, 323
Community service, 379
C Compensation, 368
Complainant, 268
Caution, 109
Complaint, 265
charge and caution statement,
109 Compounding of offences, 430,
431
when required, 109
Concurrent sentences, 351
significance, 109
Confessions, 111
Charge, 217
caution, 113
framing of, 243
police recording, 114
sheet, 226
admissibility, 76
particulars, 223
Judges rules, 310
duplicity, 236
voluntary rules, 111
joinder of persons or offences,
227, 231 Consecutive sentences, 351
mis-joinder, 228, 229, 233, Consent to prosecute, 88
234, 236 Consolidation of Appeals, 415
amendment, 238 Constitution, 41
police, 226 bill of rights, 42, 49, 53
substitution, 238 equal protection, 41-42
alternative, 234 trial in reasonable time, 43
withdrawal of, 265 presumption of innocence, 45
Children, 204 remain silent, 48
bail, 204 legal representation, 49
sentencing, 378 double jeopardy, 51
M Ssekaana
self incrimination, 56 Director of Public Prosecutions,

68
public hearing, 57
powers, 72
accused at trial, 58
duty, 69
Conviction, 225, 350
nolle prosequi, 85
Costs, 374
prosecutors, 76
Criminal summons, 120
decision to prosecute, 75
service, 121
evaluation of evidence, 76
disobedience, 123
state attorneys, 76
Cross examination, 278
police prosecutors, 79
witnesses, 278
Discharge of offender,
objections to, 279
Disqualification from driving, 377
Double jeopardy, 51, 33
D
Double criminality, 32
Death, 270 Duplicity see charge, 236
of accused, 270
of appellant, 270
E
Death sentence see sentence, 353
Evidence, 393
Defence, 299
Additional, 393
Witnesses, 299
witnesses at trial,
Defence case, 293
statements,
unsworn statement, 296
self incriminating, 56
sworn,
on oath, 273
witnesses, 299
Examination,
Deportation, 36, 377
in chief, 277
Deposit instead of recognizance,
cross, 278
Detention, 154
re-examine, 283
Deterrent theory, 348
Execution of search warrant, 170
Diplomat, 126
Entry – see Search and Arrest, 155
M Ssekaana
Index 441
Extension of time see appeals, 409 H

Extra-territorial Jurisdiction, 37
High Court, 9, 196
Extradition, 27
meaning, 27
I
justification, 27
reciprocal 28-29 Identification parade,
extraditable offence, 32 Immunity, 18
political offence, 32 diplomatic, 18
abduction, 36 president, 20
double jeopardy, 33 Imprisonment, 356
double criminality, 32 Life, 357
specificity 34 Indictment, 217-242
political asylum 37 Inherent jurisdiction, 22

Inquiry, 343
F Insanity, 345-346
International Criminal Court, 14
Fair trial,
genocide, 14
Fine, 359
war crimes, 14
First information, 101
crime of aggression, 14
Forfeiture, 372
International Tribunal, 39
Functus officio, 377
Interlocutory orders, 428
Force, 155
Revision, 428
Arrest 155
Interrogation,
Investigation, 95
G
police, 102, 195
Guilty, 247 conduct, 99
plea of, 247 magistrate,
General Court Martial, 13, 201
M Ssekaana
J M
Joinder, 227 Magistrate,

of counts, 227 arresting,
of persons, 231 magistrate’s court, 191, 10
misjoinder, 228, 229, 233, 234, appeal,
236
assessors,
Judges rules, 310
committal proceeding,
Judgment, 329
jurisdiction,
content, 332
trial,
copy of, 342
witnesses,
language, 330
Medical report, 164
modes of delivering, 336
Minor and Cognate offence, 338
alteration of, 341
Miscarriage of Justice, 389
Jurisdiction, 25
Mitigation, 357
inherent, 22
N
L
Nolle Prosequi, 85
Legal aid, 49-50
Non- Cognizable offence,
Legal representation, 49
Non-Custodial Sentence, 348, 379
Limitation of time, 91
Non- Compellability, 55
to prosecute, 91
to appeal,
O
Limitation, 261
plea of, 261 Oaths, 273
Life imprisonment, 357 Open Court,

Opening of Case,
for defence,
for the prosecution,
M Ssekaana
Index 443
Opinion of assessors, 316 forms, 115

functions of, 96
P taking statements, 105, 110
confessions, 111
Pardon, 254
powers, 96
plea of, 254
search,
presidential, 254
investigation, 99, 102
Particulars, 220, 223
bond, 202
Penalties, 357
duty to prevent,
Personal attendance, 123, 133,
244, 337 report, 101
Petty Offences, 93 scene of crime, 114
Plea, 247 exhibits, 116
of guilty, 247, 347 sketch plan, 117
not guilty, 247 technical evidence, 115
pardon, 254 Police Supervision, 376
refusal to plead, 244 Police Station, 202
unfitness to plead, 245 Political asylum, 37
autrefois convict, 250 Political Offence, 32
by several accused, 258 Pre-trial hearing, 317
to alternative counts, 259 Preliminary- hearing, 324
bargaining, 259 Presidential pardon see pardon,
254
to bar trial, 260
Preventive theory, 349
to jurisdiction, 260
Preventive detention, 366
to lack of counsel, 261
Prima facie case,
of limitation, 261
Private person, 141
change of, 257
arresting, 141
recording of, 245
Private prosecution, 83
Police, 95-110
charges,
arrest, 137
M Ssekaana
control, 84 supplementary record, 414

institution/procedure, 83 service of record, 413
prosecutor, 80 Reformative theory, 349
compensation, 85 Restitution, 371
Private Prosecutor, 80 Retrial, 433
Probation, 363 Retributive theory, 349
Prosecute, Revision, 421
decision to, 75 Appeals, 422
summary proceedings, interlocutory Orders, 428
Prosecutor, powers, 424
private, 80 features of, 421
police, 79 discretion to hear parties, 431
state other role of, 69 Search and Seizure, 159
qualification, of person, 160
appointment, 79 at arrest, 160
powers of, 72 place and property, 165
Prosecution see Director of Public warrant, 169
Prosecutions, 67
without warrant, 168
Punishment,
justification, 159
Punitive Sentence, 348
personal, 162
execution of search warrant,
Q 170
privilege from, 176
Question of law, 386
in Army, 176
of women, 165
R
Recognisance, 204
Reconciliation, 263
Record of Appeal, 411
M Ssekaana
Index 445
S criminal,
witness,
Seizure, 178
service, 121
power of police, 180
form of,
Self incrimination, 56
Supervision see police supervision,
Sentence, 343 376
inquiry before, 345 Supreme Court see appeals, 401
factors influencing, 345 Surety, 205
objectives, 347 role of,
consecutive and concurrent, discharge of, 205
351
power to reject,
types of, 353
transfer of cases, 15
imprisonment, 356
life, 357
T
death, 353
fine, 359 Trial, 271
probation, 363 magistrate,
preventive detention, 366 High Court,
restitution, 371 pre-hearing, 317
forfeiture, 372 summary trial, 270
costs, 374 fair,
police supervision, 376 re-trial, 433
minors, 378
Statements, 102 U
Submissions, 300
Unfitness to Plead, 245
Summary proceedings,
Universal Jurisdiction, 38
Summary disposal,
Summary offences, 270
V
Trial, 270
Summons, 119 Voire Dire, 325
M Ssekaana
War crimes, 14
Warrant, 133
of arrest, 133
search, 169
contents, 134
duration,
power to issue, 169
Witness, 273
accused as, 294
court witnesses (power of
court), 284
examination, 277
cross-examination, 278
re-examination, 283
single, 275
order of calling, 276
out of court, 274

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CHAPTER ONE

NATURE OF CRIMINAL PROCEDURE

1 Section 2(s) Penal Code Act.

2 Criminal Procedure and Practice in Uganda

1.2 PURPOSE OF CRIMINAL PROCEEDINGS

Nature of Criminal Procedure 3

4 Criminal Procedure and Practice in Uganda

(c) The Trial on Inductiveness Act

6 Criminal Procedure and Practice in Uganda

be tried in Uganda as if the offence had been committed entirely within

8 Criminal Procedure and Practice in Uganda

2.2 HIERARCHY OF COURTS

2.2.1 The Supreme Court

13 Article 126 Constitution.

2.2.2 The Court of Appeal

2.2.3 The High Court

17 Article 134(2) Constitution.

10 Criminal Procedure and Practice in Uganda

2.2.4 Magistrates Courts

22 Article 139(2), Section 204 Magistrate’s Court Act.

However, Magistrate grade III was abolished by the Magistrate’s Court

2.2.4(a) Chief Magistrate

29 Section 1 of Act 7 of 2007 assented to on 17 August 2007.

12 Criminal Procedure and Practice in Uganda

Chief Magistrates have jurisdiction over some offences likely to be

2.2.4(b) Magistrate Grade I

2.2.4(c) Magistrate Grade II

33 Section 161 Magistrates Courts Act.

The sentencing power of a Magistrate grade II is three years imprisonment

2.2.4(d) Family and Children Court

2.2.4(e) General Court Martial

39 Section 162(1)(c) ibid.

14 Criminal Procedure and Practice in Uganda

2.2.4(f) International Criminal Court

(d) The Registry.

2.3(a) Transfer of Cases

2.3(b) Reasons for Transfer of Cases

51 Sections 170, 171, 41 Magistrates Courts Act.

16 Criminal Procedure and Practice in Uganda

2.4 PART-HEARD CASES

55 Section 144(1) Magistrates Courts Act.

18 Criminal Procedure and Practice in Uganda

2.5 DIPLOMATIC IMMUNITY

may have committed an offence. This easily affects the government

62 Article 31(4) Diplomatic Privileges Act (Vienna Convention).

20 Criminal Procedure and Practice in Uganda

2.6 PRESIDENTIAL IMMUNITY

Should the president be put above the Constitution or laws and on a

67 Clinton v Jones 1997 US.

22 Criminal Procedure and Practice in Uganda

The choice of whether to exercise the privilege or to waive it is solely the

2.7 INHERENT JURISDICTION

68 United States v Nixon 418 US 638 (1974).

24 Criminal Procedure and Practice in Uganda

exercised in matters specially covered by the criminal procedure laws

3.2 JUSTIFICATION FOR EXTRADITION

28 Criminal Procedure and Practice in Uganda

3.3 LEGAL BASIS

1 Chapter 117 Laws of Uganda.

3 Section4 Extradition Act Chapter 117.

30 Criminal Procedure and Practice in Uganda

3.4 PROCEDURE FOR ENDORSEMENT OF WARRANT

6 Section 22 Extradition Act.