the administration of criminal trials in magistrate's
TRANSCRIPT
THE ADMINISTRATION OF CRIMINAL TRIALS IN MAGISTRATE'S COURTS
IN UGANDA: AN EXAMINATION OF PROCEDURAL IRREGULARITIES
BY
ORYEM EMMY BERNARDS
LLB/335581111/D U
A DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL
FULFILMENT OF THE REQUIREMENTS FOR THEA WARD OF
THEDEGREEOFBACHELOROFLAWS OF
KAMPALA INTERNATIONAL
UNIVERSITY
AUGUST, 2015
APPROVAL
I declare that I have supervised and read this study and that in my opinion it conforms to
acceptable standards of scholarly dissertation in partial fulfillment for the award of the
degree of law of Kampala International University.
SUPERVISOR ................ ff}f}::?~ .......... -~~-..................... .
SIGNATURE ............... m .. ':' .. ~*-3. ................................................. .
\ ~\~ ~~0:::::~£ e:-Z Date: ...................................................... Month ........................................................... 2015
ii
DEDICATION
This research work is first and foremost dedicated to the Lord God almighty Jehovah and
Jesus Christ my Lord and savior; who against all odds made me experience their
unprecedented love, care and provision. To madam Joyce Acen; who in the face of
financial constraints, not only encouraged but helped me get sponsorship to further my
education and to Madam Harriet Apio; the coordinator of HRC Sponsorship scheme for
accepting to take me in and selflessly and tirelessly helping me get a benefactor. To my
wonderful grandmother; Awor Agnes ( aka. Agenisi) and my entire family for standing
with me in prayer, To my dearest God given friends Atim Caroline Robinah, Musafiri
Prosper, Waiwai Gabriel, Osinde Kasisi, Akatukunda Francis and Kasitye Enoch, among
others who in the face of adversities not only encouraged me but suppotied me selflessly
in eve1y way, to help me realize my dreams come true. I could never thank you enough
for all the love and support you have shown me throughout this period. May the almighty
God who's all knowing and all seeing bless you all abundantly and exceedingly everyday
of your lives.
iii
ACKN"oWLEDGEMENT
First and foremost, I would like to thank the Lord God ALMIGHTY my loving Father for
being my strength and source of wisdom. Without His love, guidance and provision I
would not have reached this far.
I am greatly indebted to my supervisor Mr. Masaba Peter, without whose guidance,
advice, constructive criticism and general supervision; this work would not have been
possible.
I also wish to express my sincere gratitude to Ms Joyce Acen and Harriet Apio who
selflessly and unreservedly helped me get a benefactor to further my studies; without
which all my efforts would have been a fiasco.
Special thanks go to my dearest God given friends; Musafiri Prosper, Waiwai Gabriel,
Akatukunda Francis, Kasilye Enock, Osinde Kasisi and Atim Caroline Robinah for all
the support and assistance they rendered during the tenure of my studies which made it
possible for me to have come this far.
iv
TABLE OF STATUTES
• The 1995 Constitution ofthe Republic of Uganda
• The Magistrate's Court Act Cap 16 (Laws of Uganda)
• The Criminal Procedure Code Cap 116 (Laws of Uganda)
• The Evidence Act Cap 6 (Laws of Uganda)
• The Oaths Act Cap 19 (Laws ofUganda)
• Criminal Procedure and Law in Uganda BY F.J A YUME
• Case Laws
v
LIST OF CASES
• Bhati vs R (1957) E.A 332
• R vs Shabrudin Merali M.B 28/63
• Kulukana Otim Vs R (1963) E.A 253
• Kibangeny Arap Kalik Vs R (1959) E.A 92
• R Vs Golder and others (1961)45 Cr. App R.5
• Batala Vs Uganda (1974) E.A 402
• Alowo Vs R (1972) E.A 324
• Mwangi and Others Vs R (1974) E.A 449
• Shiguye and another Vs Rep (1975) E.A
• Kaplotwa 8/o Tarino Vs (1957) EA 553
• Lelawan Leseroi Vs R (1946) E.A 111
• Black's Law Dictionary 81h Edition,2004
• Lujigana Vs Uganda (1973) J.U.R.R 25
• Uganda Vs Badrudin Adatia M.B 128/71
• Uganda Vs Yusufu Asii (1973) H.C.B 98
• RobertNdecho and Another Vs R (1951) E.A.C.A
vi
o M.C.A
o T.I.A
o E.A.C.A
o E.A
o D.P.P
o R.S.A
o Cr. App
o H.C.B
o A.E.R (E.R)
LIST OF ACRONYMS
vii
Magistrate's Court Act Capl6
Trials on Indictment Act Cap 23
East African Comt of Appeal
East Africa
Director of Public Prosecution
Resident State Attorney
Criminal Appeal
High Comt Bulletin
All England Law Reports
BIBLIOGRAPHY
Criminal Law and Procedure in Uganda, Francis J. Ayume
Elliot and Woods cases and materials on criminal law 11 111 Edition. Micheal J. Allen & Simon Cooper.
The Return to Retribution in Criminal Theory in Crime, Proof and punishment:
8 C.L.P, 107,128
viii
TABLE OF CONTENTS
Declaration
Approval
Dedication
Acknowledgment
Table of statutes
List of cases
List of acronyms
CHAPTER ONE
1.0 Introduction
1.1 Back Ground to the study
1.2 Statement of the problem
1.3 Objective of the study
1.4 Hypothesis
1.5 Scope of the study
1.6 Synopsis
1.7 Methodology of research
1.8 Literature review
CHAPTER TWO
2.0 Establishment of Magistrates comi
2.1 Introduction
2.2 Establishment
2.3 Institution of criminal proceedings
2.4 Trial Procedure
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CHAPTER THREE
3.0 Witnesses
3.1 Introduction
3.2 Competence of witnesses
3.3 Incompetent witnesses
CHAPTER FOUR
4.0 Procedure in case of insanity or other incapacity of an accused
4.1 Introduction
4.2 Procedure when an accused does not understand proceeding
CHAPTER FIVE
5.0 Adjournments
5.1 Introduction
5.2 Part heard cases
5.3 Interpretation
5.4 Audibility
CHAPTER SIX
6.0 Judgment
6.1 Introduction
6.2 Contents of judgment
6.3 Substituted conviction
6.4 Sentences and orders on conviction or acquittal
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CHAPTER SEVEN
7.0 Report to research finding
7.1 Introduction
7.2 Critical analysis of the research finding
7.3 Recommendation
7.4 Conclusion
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CHAPTER ONE
1.0 INTRODUCTION
The basis of this research work on the administration of criminal trials in Magistrate's
courts is on the general analysis; where both substantive and procedural laws are applied
for the execution of a sentence or acquittal of the accused alleged to have committed a
criminal offence.
The analysis focuses much attention from the time a criminal allegation is made against
an accused person, to the ensuing court proceedings until the time when the case is
disposed off promptly basing on facts on the ground established by the magistrate
presiding over the case in accordance with the laws applicable.
Precisely, this research looks at the procedure from the time an accused appears before
the magistrate, with the accused in the dock, the roles played by the prosecutor, the
defendant and/or his or her defense Counsel and the Magistrate as a mediator; who
examines the evidence presented to him or her by the party which asserts the existence of
the facts and finally comes out with a verdict.
The research on the administration of criminal trials also looks at the problems faced that
hinder the effective administration of criminal trial justice in magistrate's courts.
1.1 BACKGROUND TO THE STUDY
The magistrate's courts and its styles is established under section 42 (1) (a-c) and (10) of1,
which describes places in which magisterial areas is to be established as the minister (of
justice) may, after consultation with the chief justice, by statutory instrument designate
magistrate's courts to be known as the magistrate's comi for the area in respect of which it
has jurisdiction.
1 MCA Cap 16 1
Criminal proceedings in magistrate's comts is instituted under Section 3 of2•
1.2 STATEMENT OF THE PROBLEM:
Many criminal cases in magistrate's cou1is take so long to come out with a justifiable and
legally binding conclusion; while some suspects are kept in remand beyond the time
prescribed by law. This has in most cases lead to a denial of justice for ''justice delayed is
justice denied"; which in essence is a direct contravention of the constitutional provision
of Article 28 (1) of the 19953, which states that in the determination of civil rights and
obligations or any criminal charge, a person shall be entitled to a fair, speedy and public
hearing before an independent and impru.iial comi or tribunal established by law. Article
126 (2)(bf also states that in adjudicating cases of both civil and criminal nature, the
comis shall subject to the law, apply the following principle among others, "justice shall
not be delayed" .It is a basic principle of the law that justice should not only be done but
must be seen to be done, the principle of which is contravened by the long periods spent
in remands by the accused. These as a result has left many people discontented and thus
develop a lot of mistrust in the judicial system; especially in as far as criminal trial
procedmes in the magistrate's courts is concemed, which justifies why many people
prefer mob justice which itself is a criminal act.
A simple example fi·om my observation during a criminal trial proceeding is where the
prosecution keeps praying for adjomnment because they either lack the police file of the
case brought for heru.·ing or simply in want of fiuiher investigation into the accused
alleged criminal offence, which tends to take excessively a longer period than it should
be. While the accused may remain in remand for all this while. In the long run in the
interest of justice, the trial magistrate is normally forced to dismiss such cases.
2 MCA Cap 16 3 Constitution of The Republic of Uganda 4 of the 1995 Constitution of The Republic of Uganda
2
1.3 OBJECTIVE OF STUDY:
The research on the administration of criminal trials in magistrate's courts is to examine
the delay in the trial procedure and to show how justice delayed is justice denied.
Corruption in the Uganda government parastatals bodies including the judicial systems
(magistrate's comis) is a commonly rumored phenomenon. Out of a sample of 20 litigants
I managed to ask what satisfaction they obtained from the judicial justice system, 17 of
them decried an appalling level of cotTuption among some judicial supp01i stuff and
judicial officers. The research therefore ascertains the role conuption plays in hindering
the criminal trial process in magistrate's comis.
Statistics obtained from the central police station; Kabalagala branch shows that criminal
offence cases are on the increase more than it was 30, 40 or 50 years ago. The research on
the administration of criminal trials in magistrate's comis therefore looks at the stuffing
of the criminal justice system in patiicular; that is to say whether the number of the
magistrates, clerks (interpreters) and prosecutors are enough to counteract the high levels
of criminal wrongs brought before the magistrate's comis to avoid unconstitutionally long
remands.
The study also analyses the question of motivation in terms of salary payments and other
allowances without which otherwise affects the criminal trial proceedings in magistrate's
COUli.
1.4 HYPOTHESIS:
Criminal trials in magistrate's comis tend to take so long to be disposed off promptly
which tantamount to a denial of justice, for "justice delayed is justice denied." which in
essence is a direct contravention of the constitutional provision of Article 28 (I) of the
19955, which states that in the determination of civil rights and obligations or any
criminal charge, a person shall be entitled to a fair, speedy and public hearing before an
5 Constitution of The Republic of Uganda 3
independent and impartial court or tribunal established by law. Article 126 (2)(bf also
states that in adjudicating cases of both civil and criminal nature, the courts shall subject
to the law, apply the following principle among others, "justice shall not be delayed"
The causes of this among other factors are what the research on the administration of
criminal trials in magistrate's court clarifies.
1.5 SCOPE OF THE STUDY:
The scope of study mainly focuses on the procedures in the criminal trials systems
strictly within the magistrate's court and the problems experienced which seemingly
impedes the effective administration of justice in criminal trial cases.
The research handles the administration of criminal trials in magistrate's comts and
patticularly in Buganda road chief magistrate's court and references are made from
various stah1tes and case laws.
1.6 SYNOPSIS:
Chapter one covers the introduction, background to the study, Hypothesis, Scope of the
study and Literature review.
Chapter two discusses the establishment of magistrate's courts, institution of criminal
proceedings and the trial procedure.
Chapter three looks at "Witnesses", competence of witnesses, incompetent witnesses as
in the case of insane persons, deaf mute persons, persons of extreme old age, hostile
witnesses and the spouse as witness.
Chapter four discusses procedure in case of insanity or other incapacity of an accused
person and the procedure when an accused does not understand proceedings.
Chapter five discusses Adjournments, Part Heard cases, interpretation and audibility.
6 of The 1995 Constitution of The Republic of Uganda 4
Chapter SIX basically looks at Judgment, contents of judgment, substituted conviction
and sentences and orders on conviction or acquittal.
Finally chapter seven critically analyses the factors that seem to bog down the
administration of criminal trials in magistrate's courts, recommendations suggested to
these problems and the final conclusion given in retrospect to the subject of the research
findings.
1.7 METHODOLOGY OF STUDY:
This research is carr-ied in various forms which includes observation, interviewing and
library methods of research.
a) OBSERVATION METHOD:
The importance of this method is basically to help in gathering information concerning
the rights of the individual who is alleged to have committed a criminal wrong and how
he or she is treated before the courts of law before he or she is convicted or acquitted.
b) INTERVIEWING METHOD OF RESEARCH:
The interviewing method has the importance of being able to get the gist of and details of
the proceedings especially where observation alone cannot give crystal clear reasons why
certain protocols are adhered to in the event of the criminal trial proceedings. For
instance an interview with the magistrate or the prosecutor gives clear answers in any
matter of doubt in the criminal trial procedure.
c) LIBRARY METHOD OF RESEARCH:
The library method of research gives an insight on the topic under study and focuses on
the close analysis of all the available relevant literatures in relation to the topic under
study in support of the fmdings especially where case laws and authorities are cited in
reference to the topics under study.
5
1.8 LITERATURE REVIEW:
The research seeks to cany out an analysis on the process and procedures in the criminal
trial cases in magistrate's comts and the problems that tend to hinder a speedy, fair and
fi·ee trial.
By this research work, I do make a simple attempt to explain the practical working of
substantive criminal law by the examination of the procedures laid down in various
statutes and the judicial pronouncements thereon in an intelligible manner.
Francis J. Ayume7, states that apart from case law, the procedure for the administration
of criminal justice in Uganda is to be found scattered in various statutes such as the
Magistrates Comt Act, now cap 16, the Criminal Procedure Code Act now cap 116, the
Trial on indictment Act now cap 23 and a host of others.
Micheal J. Allen and Simon Cooper8 states on the introductmy page that criminal law is
replete with inconsistencies and incongruities with the result that discovering what the
law is on any point ( rather than where it is to be found) can be an immensely difficult
task with an uncertain outcome. While this makes the study of criminal law both
challenging and interesting, it leaves the practice of law fraught with difficulty and the
risk of injustice all the greater as prosecutors, defense advocates, trial judges and juries
grapple to discover and apply elusive and even ephemeral principles.
D.J. Galligan9 states if one were to explain the principle functions of that complex
amalgam of institutions, person, rules, and practices which we loosely refer to as the
system of criminal justice, then two pmticular things would seem to call out for special
attention. First criminal justice is concerned centrally with trying, convicting, and
7 Criminal Procedure and Law in Uganda 8 Elliott and Woods cases and materials on Criminal Law 11'h Edition. 9 "The return to Retribution in Criminal theory" in crime, Proof and Punishment: Essays in memory of Sir Rupert Cross (London: Butterworths, 1981), pp, 144, 146 and following.
6
punishing those who are guilty of breaking the criminal law. Secondly, such systems are
concerned to punish those who are convicted with a view to upholding the authority and
effectiveness of the criminal law by sanctions that seek to deter, to prevent, to reform, or
to incapacitate. These two tasks will often, but not necessarily, be compatible with each
other. One view of criminal justice is to emphasize the forward-looking or utilitarian
functions while another view sees the backward-looking or retributive aspect as primary.
Utilitarian accounts usually begin with the assumption that the central purpose of
criminal of justice is to reduce crime. This purpose is achieved by taking coercive action
against selected individuals, usually those who have broken the law and who can be held
personally responsible for doing so. There is an increasing body of offense, but
nevertheless, with respect to the main corpus of criminals there is still a meticulous
concern to be sure that before a person is punished he is guilty in the sense that he is
responsible.
More substantial is the point made by Williams/0 that if we are going to define crime by
reference to procedure, we ought to make use of the whole law of procedure, not just one
item of it- the power to remit the sanction. If the court has to decide whether a particular
Act which has been prohibited by parliament is a crime, it may be guided by a reference
in the statute to any element which exists only in civil or only in criminal procedure as
the case may be. He therefore defined a crime as
"an act that is capable of being followed by criminal proceedings, having one of
the types of outcome {punishment etc) known to follow the proceedings"
10 8 C.L.P. 107 at 128 7
CHARPTER TWO
2.0 ESTABLISHMENTS OF MAGISTRATE'S COURTS
2.1 INTRODUCTION.
In examining the procedural irregularities in the administration of criminal trials in
Magistrates com1s, one cannot dispense with reflecting on the enabling law that
establishes and vests such powers to it. It's therefore imperative to reflect on the Law that
establishes the Magistrates Com1s as hereunder.
2.2 ESTABLISHMENT
The magistrate's com1s and it's styles is established under section 3n, which describes
places -in which magisterial areas is to be established as the minister [of justice] may,
after consultation with the chief justice, by statutory instrument designate magistrate's
com1s to be known as the magistrate's courts for the area in respect of which it has
jurisdiction.
Section 412, the courts are sub-divided into three different grades required for the efficient
administration of justice, namely
a) The chief magistrate's courts
b) Magistrate grade I;
c) Magistrate grade 2;
The provision of section 4(3/3, stipulates their powers and jurisdiction that is determined
by the grade of his or her appointment and the powers and jurisdiction confetTed upon the
grade by the Chief Magistrate's Com1 Act and other written Laws.
Under section161(1)(a)14, a magistrate's com1 presided over by the chief magistrate may
try any offence other than the offence in respect of which the maximum penalty is death;
11 of the MCA, cap 16, 12 of the MCA, cap 16 13 of the MCA,cap 16
8
Under section 161 (1) (b) 15, a magistrate grade 1 may try any offence other than the
offence in respect of which the maximum penalty is death or imprisonment for life.
The provision of section 161 (1)(c/6, lays down the powers under which a grade 2
magistrate may have jurisdiction to administer and enforce any of the provision of any
written law other than the offences and provisions specified in the first schedule of the
Chief Magistrate's Court Act.
Therefore a magistrate's court shall be deemed to be duly constituted when presided over
by anyone magistrate lawfully empowered to adjudicate in court, according to the
sections of the MCA as above provided.
2.3 INSTITUTION OF CRIMINAL PROCEEDINGS:
Section 42(1)( a-c), 17 states that the institution of criminal proceeding may be done in the
following ways:-
a) By a police officer bringing a person aJTested with or without a waiTant before a
magistrate upon a charge.
b) By a public prosecutor or a public officer laying a charge against a person before a
magistrate and requesting the issue of a wan·ant or a summons; or
c) By any person other than a public prosecutor or police officer, making a complaint
as provided for in subsection (3/8 and applying for the issue of a wanant or a
summons in the manner hereafter mentioned.
Any person, other than a public prosecutor or a police officer, who has reasonable
and probable cause to believe that an offence has been committed by any person may
make a complaint 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
14 of the MCA, cop 16 15 Of the MCA, cap 16 16 of the MCA, cap 16 17 of the MCA, cap 16 18 of the MCA, cap 16
accused person is alleged to reside or be. Every such complaint may be made orally or
in writing signed by the complaint, but if made orally is reduced in writing by the
magistrate and when so reduced in writing is signed by the complainant. Upon
receiving a complaint under subsection (3/9, the magistrate consults the local chief of
the area in which the complaint arose and puts on record the gist of that consultation;
but where a complaint is supported by a letter from the local chief, the magistrate may
dispense with the consultation and thereafter put that letter on record.
Normally where a criminal offence is reported to the police, the police investigates into
the matter of the said offence while the accused will be arrested if possible and detained
in police custody pending investigation in order to gather evidence on the said offence
committed by the accused.
When the police establishes and/ or gathers evidence to the said offence committed by the
accused person(s), a charge sheet is drafted; in which it contains the description of the
offence the accused committed and the place, time, date and month on which the accused
is alleged to have committed the said offence, the name of the accused, his, her or their
place of residence, tribe, age and district.
The charge sheet also gives the statement of the offence which clarifies the offence
committed contrary to a given statute; say for instance contrmy to the Penal Code Act.
And the particulars of the offence stating the name( s) of the accused person( s ), date, time
and the month on which he or she or they are alleged to have committed the said offence
and the value of the subject matter.
The drafted charge sheet is then sent to the office of the Director of Public Prosecution
(D.P.P) or the residence State Attorney (R.S.A), whereupon the D.P.P/R.S.A sanctions it
or sends it back to the police for further investigation if there is found to be no sufficient
evidence to sustain an action.
19 of the MCA cop 16 10
Where the charge sheet is sanctioned, when there is found to be sufficient evidence, the
D.P.PIR.S.A sends the file to the criminal registry department for registration. After
registration, and giving it a file number, the file is then forwarded to the Chief magistrate
for allocation to the appropriate couti vested with the jurisdiction to try a given offense
upon which a charge has been brought. The chief Magistrate upon consulting the law
under which the accused was charged and the magnitude of the crime, may then establish
whether the charge falls under his or her jurisdiction or not. If not then the magistrate
commits the accused person(s) to the appropriate court or jurisdiction.
Where the charge falls under his jurisdiction, the accused is committed to court and after
the Chief magistrate satisfying himself that prima facie the commission of an offence has
been disclosed and that the complaint is not frivolous or vexatious, the Chief magistrate
draws up and signs up a formal charge containing a statement of the offences alleged to
have been committed by the accused in accordance with section 42{5)/0
However there are two ways of committing the accused to court. That is to say by the use
of criminal summons or an·est warrants. Under section 42 (6/1 where a charge has been
laid under the provisions of sub-sections (I) (b); or drawn up under the provisions of sub
section (5/2 the magistrate issues a summons or a warrant, as he or she deems fit, to
compel the attendance of the accused person(s) before the couti over which he or she
presides or if the offence alleged appears to be one which the magistrate is not
empowered to try or inquire into, before a competent couti having jurisdiction; except
that a warrant is not to be issued in the first instance unless the charges is suppOiied by
evidence on oath, either oral or by affidavit.
In this context, a warrant means a written order of court which is made on behalf of the
state and is based upon a complaint issued pursuant to statute and or court mle and which
commands law enforcement officers to arrest a person and bring him before the
20ofthe MCA. cap 16 21ofthe MCA, cap 16 22ofthe MCA, cap 16
11
magistrate, whereas a summons is a written order notifYing an individual that he she has
been charged with an offence. A summons directs the person to appear in court to answer
the charge and it is used primarily in instances of low risks, where the person will not be
required to appear at a later date.
Sometimes while more investigations are being conducted against the accused when a
criminal case has been filed against him in court, he she is brought to court for mention
which is normally prayed for by the prosecution and a hearing date is fixed by the trial
magistrate. The accused is either remanded which, remand ordered by court normally
takes two weeks with the accused in the prison custody, or granted bail if the offence the
accused is charged with is bailable after producing substantial sureties; after which the
accused is again brought to court to be infmmed of the case and to be further remanded.
When the prosecution is ready to produce evidence against the accused, he or she prays
for a hearing date to be fixed on a convenient date for both the prosecution and the
accused so that both can be able to appear and proceed with the hearing. After the hearing
date has been fixed, the prosecution applies for the issue of a witness summons if the
witnesses are not present in court to enable the accused call their witnesses. If the hearing
date is found to be unsuitable for either pa1iy or the witnesses cannot attend comi on that
date, an application for adjournment is prayed for by the prosecution to another hearing
date which is decided at the comi's discretion to either deny or accept such an
application.
2.4 TRIAL PROCEEDURE:
In a criminal proceeding, when an accused person appears before the magistrate for trial,
his or her file number and name is read out aloud and he she is asked to stands in the
dock. For purposes of confirming whether the accused in the dock is the rightful person
brought to answer the charges under inquiry, the accused name is re-read, his or her age,
place and district of residence and he or she is asked to affirm to it. When the confirms
the truth of the reading, the substance of the charge is then read and explained to him so
that the accused knows the nature of the offence or offences he or she is pleading to. This
12
is done to observe the constitutional requirement of article 28(3) (b) where, every person
who is charged with a criminal offence is infmmed immediately in a language that the
person understands, of the nature of the offence or offences he she is being charged with.
The accused is then asked if he understands the nature of the charge; if he or she admits
to have understood, the accused is then asked whether he she admits or denies the truth of
the charge; if the accused admits to the truth of the charge, the admission is recorded in as
nearly as possible in the words used by the accused, and the court convicts the accused on
his or her own plea of guilt. He is then sentenced after the prosecutor has addressed the
court about the accused records of previous conviction or makes an order against him or
her unless there appears sufficient cause to the contrary.
But if the accused person does not admit the charges and pleads not guilty, the trial
magistrate records a plea of not guilty or if the accused person refuses to plead, the trial
magistrate orders or records a plea of not guilty to be entered for him or her, and the court
proceeds to hear evidence for the prosecution. Where the trial magistrate is unable to
proceed immediately with the hearing, the case is adjourned to a later date hearing and
the accused is either remanded or granted bail which is a guarantee under pecuniary
liability to appear in person at the appointed time.
The prosecutor leads the evidence for the prosecution by first calling the prosecution
witness to stand in the witness box to testify against the accused. The prosecution witness
is then asked to give evidence on oath if they so wish depending on their religious beliefs
which normally goes as.
"I, (the prosecution witness mentions his or her name) Swear by the almighty
God that the evidence I shall give shall be the truth, the whole truth and nothing
but the truth"
However if the accused p~;rson does not believe in God as is the case with the atheist,
they are simply asked to affirm to the truth. The witnesses are examined- in-chief by the
prosecutor, and the accused or his advocate cross-examines the prosecution witness at the
13
end of his testimony; however where the accused is not represented by counsel, the court
asks him or her whether he or she wishes to put questions to any of the prosecution
witnesses. This is normally done to test the credibility of the prosecution witness by the
defense cross-examining him as to his lmowledge of the facts which he has testified, his
veracity and impartiality in the matter under Inquiry; because despite the fact that a
witness swears to tell the whole tmth, he may tell only part of the tmth or absolute lies.
The prosecution then re-examines the witness to explain those facts or any ambiguity that
may have come about as a result of the cross-examination.
In the interest of justice, during the criminal trial proceedings, both prosecution and the
defense witnesses waiting for their turn are asked to leave the court room while another
witness is testifYing or giving evidence. This is done normally in order to ensure that a
witness testifies only to the facts within his or her knowledge and is not influenced by
what others have said earlier during the trial.
At the close of the case for the prosecution, the court considers and rules whether a prima
facie case is made out against the accused to justify putting him or her on his or her
defense.
A prima facie case can be defined as one on which a reasonable tribunal properly
directing its mind to the law and evidence can convict if no explanation is offered by the
defense. This can be seen in the case of Bhati v R 23•
Under section 12 724, if at the close of the evidence in support of the charge, it appears to
the court that a case is not made out against the accused sufficiently to require him or her
to make a defense, the court dismisses the case and acquits the accused. This dismissal
however differs from dismissing a charge unheard due to the absence of witnesses or
undue delay in prosecution provided for under Section 11 tY5•
23 {1957} E.A 332 24 of theM CA cap 16 25 of the MCA cap 16
14
According to the case of R v Shabrudin Merali26: a submission of no case to answer
could be upheld:-
(e) Where there has been no evidence to prove an essential element in the alleged
offence.
(f) Where the prosecution evidence has been so discredited in cross-examination or is so
manifestly unreliable that no reasonable tribunal could safely convict on it.
But if the trial magistrate rules that there is a case against the accused, the provision of
Section 12827 is applied accordingly. That is to say; the court is duty bound to again
explain the substance of the charge to the accused and informs him or her of his or her
rights namely; to remain silent, to give evidence on oath fi·om the witness box in which
case he will be liable to cross-examination or to make unsworn statement without cross
examination by the prosecution.
Whichever method the accused chooses to do, he or she is required to produce his or her
witnesses. Although the accused has a right to give evidence on his behalf, he or she does
not bear the burden of proving his or her own innocence or disapproving the charge.
However if an accused chooses to make an unsworn statement he or she is required to do
so before calling his or her witness. The reason for this is that the accused unsworn
statement will caiTy more weight if supported by sworn evidence of witnesses who will
not have heard it than if it were made after he had listened to such evidence. And where
there are several accused persons being tried jointly and each one of them wishes to give
evidence, their evidence is taken in turn before witnesses are called.
If in any case the accused person(s) adduces evidence introducing new matters which the
prosecutor could not have foreseen by the exercise of reasonable diligence, the court
exercises its discretionary powers to allow prosecution to adduce further evidence in
rebuttal.
26 MB 28/63 27 of the MCA cap 16
15
The court then hears the defense case after which the prosecutor and defense may address
the court after the accused has closed his case. The purpose of the final submissions is to
enable the accused and the prosecution to present to court a comprehensive summary of
the case and the relevant law and to try to persuade the court to believe and accept each
party's case.
Under section 13128, both the prosecutor and the accused are entitled to address the court
at the commencement of their respective cases if they so wish. The purpose of the address
is to give court the brief f~cts of the case so that it may follow evidence adduced. After
the close of therefore the defense they also address the court, highlighting the evidence in
their respective cases. If the accused does not give evidence but calls no witness, the
prosecution takes him or herself to address the court first and the accused or his advocate
will have the right to reply. But where the accused has called witnesses to testify on his
behalf, then the prosecution is mandated to reply.
28ofthe M. C.A cap 16 16
CHAPTER THREE
3.0 WITNESSES:
3.1 INTRODUCTION
In criminal proceeding, for the prosecution to prove its case beyond reasonable doubt, the
circumstantial account of the criminal offence by way of witness testimonies come into
play. The prosecution is not normally limited to a particular number of witnesses to prove
its case. There are of course, exceptions where in certain offenses there can be no
conviction on the evidence of a single witness.
Although under Section 1 Orf9, the court has the discretion to call any one as a witness. It
is entirely on the prosecution to choose which witness to call to prove its case. The
magistrate's role is majorly to supervise and guide the conduct of the trial and pronounce
the verdict on whatever the two sides have adduced before him. Therefore a witness
whose testimony is geared towards establishing specific facts must be relevant to the
facts in issue. The prosecution is required beforehand to determine all the essential
ingredients of the offense charged and lead his or her witness to prove those specific
ingredients. It must however be emphasized that the duty of course arises only if the
magistrate has come to the conclusion that the evidence is essential to the just decision of
the case as seen in the case of Kulukana Otim v Jii0 • Therefore the credibility or lack of
it, of the witness testimony to the offence charged is determined the type of witness
called upon to testifY. These include:-
3.2 COMPETANCE OF WITNESSES:
In a criminal case, a witness can only be called or compelled to testifY in court only if he
or she is competent with the necessary capacity to testifY in court. In this context a
competent witness is one who is permitted by the law to give evidence in court, while a
"of the M.CA, 30 (1963}E.A 253.
17
compellable witness is one who can be forced or legally obliged to give evidence, and if
he refuses to testifY can be sent to prison. It follows that an incompetent witness is not a
compellable witness.
The general rule of the law according to section 11731, is that persons are competent to
testifY in court unless the comi considers that they are prevented from understanding the
question put to them, or giving rational answers to those questions, by reasons of
a) Children of tender years
b) Extreme old age
c) Disease, whether of the body or mind, or any other cause of the same kind; which
includes insanity, deaf and mute persons.
As discussed earlier, in a criminal proceeding an accused person is afforded every
oppotiunity to call witnesses if he or she so wishes. Infact under Section 128 (1/2, the
court is duty bound at the end of the case for the prosecution to ask the accused if he
wishes to call any witness. Under Section 7533 the accused is entitled as of right to call
and examine any witness whose name he must have given to the committing magistrate.
Otherwise if he intends to call a witness not named in the committal proceedings he is
required to do so with the permission of the comi.
3.3 INCOMPETENT WITNESSES:
a) YOUNG CHILDREN:
Where a child of tender years is brought in comi to testifY, the trial magistrate first
establishes if the child is below the age fomieen years and if he or she does understand
the nature of the oath, if not, the said child is not allowed to testifY unless the trial
magistrate is absolutely convinced that the child possesses sufficient intelligence to
justifY the reception of his or her evidence and that he or she understands the duty of
31 of the Evidence Act cap 6 32 of the M.C.A cap 16 33 of the T.I.A cap 23
18
speaking the t:J.uth Sections 1 OJ (3) or 40 (3/4• However if the child is allowed to give
unsworn evidence for the prosecution, the accused is not convicted unless such evidence
is con·oborated by some other material evidence in supp01i thereof implicating him or
her. In any case, a child purported to be of tender years appears to have been left to the
courts good sense of judgment as was held in the case of Kibangeny A rap Kalik v R35 it
is the duty of the court to asce1iain the age of a witness, who is apparently, a child in
order to satisfY itself of his or her capacity to testify. This is normally done by putting
questions to test the child's general knowledge and perception to find out if the child
understands the difference between the truth and lies which is called a voire dire. This
procedure is normally observed because young children are in most cases considered
incompetent witness because of their immature intellect.
• Because of this immaturity, they may not be able to observe and report physical facts
rationally and have the ability to understand the nature of oath or the duty to speak the
t:J.·uth. Even then a child who gives evidence not on oath is cross- examined just like any
other witnesses.
b) INSANE PERSONS:
An insane person is considered incompetent if he or she is incapacitated to such an extent
that he or she is unable to understand the subject in reference to which he is called as a
witness. The explanation to Section 11 i 6 provides that a lunatic is not incompetent to
testifY; unless he or she is prevented by his or her lunacy from understanding the
questions put to him and giving rational answers to them.
An insane person therefore may be considered incompetent when he is in his moment of
lucidity when he or she is temporarily insane.
34 of the M.C.A cap 16 or of the T.I.A, cap 23 35 {1959) E.A 92, 36 of the Evidence Act cap 6
19
c) DEAF-MUTE PERSONS:
Under Section 1Jtf7, a witness who is unable to speak may give his or her evidence in
any manner in which he can make it intelligible, as by writing or by signs. But that such
writing must be written and the signs made in open court. Such evidence is deemed to be
oral evidenced thereby making such evidence eligible to be deemed competent. However
a dumb person is considered incompetent to give evidence if he or she cannot
communicate to the court by writing and signs.
d) PERSONS OF EXTREME OLD AGE.
Persons of extreme old age are considered by court to be incompetent to testifY as witness
because of their physical and mental disabilities when such persons are incapable of
understanding and answering questions put to them due to old age; and most especially
when some of their senses of sight, hearing, memory and judgment may be seriously
impaired. They may also lack the physical strength to undergo the rigorous examination
in court.
e) SPOUSES AS WITNESS:
When a spouse appears in comi to give evidence for the prosecution, he or she is asked
whether he or she is willing to give evidence against their pariner and if he declines to do
so, he or she cannot be compelled to testifY. Therefore a spouse of an accused is a
competent but not a compellable witness for the prosecution without the consent of the
person accused under Sect; on 120 (l)(a/8•
But Section 120(1)(b/9 clarifies that a husband or wife are both competent and
compellable witness for the defense whether the accused person is charged alone or
jointly with other persons. Under this provision husband and wife are defined to mean
couples of a subsisting marriage recognized as such by any written law or customary law
37 of the Evidence Act" cap 6 38 of the Evidence Act cap 6 39 of the Evidence Act cap 6
20
whether of polygamous or monogamous nature as long as the marriage is valid under the
laws of Uganda. Therefore boyfriends and girlfriends are not considered as spouses in
criminal proceedings.
t) HOSTILE WITNESSES:
During a criminal proceeding, there are instances where a witness called by the accused
to testifY in their favor, testifies in a deliberately conflicting statement of an earlier
statement made by him or her during the police investigation. In snch a situation where a
party finds that his witness has tumed hostile to him or her, he she may apply to the court
under Section 12940 the court then exercises its discretionary powers to allow that party
to conduct examination-in- chief of that witness as if it were a cross-examination which is
refen-ed to in Sections 144,153 and 15441•
The provision of Section 15342 gives court the discretion to permit a person who calls a
witness to put any questions to him or her which might be put in cross-examination by
the adverse party, and according to Section 15~3 the court may permit a party who calls
a witness to impeach his credibility; which is the purpose for cross-examining of the
witness so as to discredit his or her testimony and so no reliance is placed on the evidence
of a hostile witness. Neither his or her previous statements nor any evidence that he or
she gives before being declared a hostile witness is acted upon as was pointed out in the
case of R v Golder & Others 44•
According to Batala v Uganda 45 the giving of leave to treat a witness as hostile is
equivalent to a finding that a witness is unreliable. In this case the trial judge had ruled in
his judgment that the evidence of the witness before he was declared hostile could be
considered and relied upon. Holding that this was a serious misdirection the court of
40 of the M. CA. cap 16 41 of the Evidence Act cap 6 42 Section 153 of the Evidence Act (cape 6} 43 section 154 of the Evidence Act, cap 6 44 (1961} 45Cr. App. R. 5 45 (1974} E.A 402,
21
appeal said, "if a witness is unreliable, non 'of his evidence can be relied on whether given
before or after he or she was treated hostile, and it can be given little, if any weight. Other
related cases on how hostile witnesses are handled can be seen in Alowo v Republic,
Mwangi and Others v Republic and Shiguye & Another v Rep46
46 {1972} E.A 324, (1974} E.A 449, {1975} E.A 22
CHAPTER FOUR
4.0 PROCEDURE INCASE OF INSANITY OR OTHER INCAPACITY OF AN
ACCUSED PERSON
4.1 INTRODUCTION
In this chapter, I do make a simple attempt to explain the practical working of substantive
criminal law by the examination of the procedures laid down in various statutes, in case
of insanity or other incapacity of an accused person and what happens when the accused
does not understand proceedings.
As already described, when an accused is brought before court to answer against a
criminal charge laid against him or her, the substance of the charge is read to him or her
by the trial magistrate and he or she is questioned whether he or she has heard and
understood the charges. This procedure is normally followed to observe the constitutional
requirement of Article 28(3)(b)47• However when in the course of a trial or preliminary
proceedings, the accused appears to be of unsound mind and consequently incapable of
making his or her defense, the court makes inquiry into the facts of such unsoundness as
provided for under Section 113(1) and Section 45(1/8• "According to the holding in the
case of Kaplotwa S/o Tarino v R 49, if the comt has reason, in any patticular case to
doubt the accused unfitness, it is the duty of the court to inquire into the matter and the
onus is on the crown to begin and prove fitness".
It is a cardinal principle of criminal justice that a person is not criminally responsible for
an act or omission if at the time of doing the act or making the omission he or she is
t!u·ough any disease affecting his or her mind making him or her incapable of
understanding what he or she is doing, or of knowing that he ought not to do the act or
47 of the 1995 Uganda Constitution "of the M.C.A cap 16 and of the T.I.D cap 23 49 {1957) E.A 553
23
make the omission. The principle of insanity as reflected in Section 1150 was debated in
the case of Me Naghten
If in the course of the proceeding the trial magistrate establishes that the offence for
which an accused is charged is bailable, the comi immediately exercises its powers at this
stage to release the accused on bail provided the court is convinced that sufficient
security is given that proper care will be taken of the accused and that he will be
prevented from injuring him or herself or to any other person. 51 In a case for which bail
cannot be granted to the accused or where sufficient security is not f01ihcoming, the comi
orders the accused to be detained in a safe custody in a suitable place and there after
transmits the court record or a cetiified copy of it to the minister52
4.2 PROCEDURE WHEN AN ACCUSED DOES NOT UNDERSTAND
PROCEEDING.
There are situations where the accused person brought before the trial magistrate to
answer against criminal charges; by reason of total deafness or incapacity other than
mental illness cannot be made to understand the proceedings. This includes cases of deaf
mme and of persons who through total ignorance of any language spoken in Uganda, and
in the absence of an interpreter, cannot be communicated with; according to section
118(1)(a/3, if the accused is triable by a magistrate's court, the court is given powers to
proceed to hear all the evidence available both for the prosecution and the defense and if
satisfied that the accused is guilty of the offense charged is ordered to be detained in a
safe custody pending an order made by the minister, to whom the record of the
proceedings, or cetiified copy thereof must be transmitted for consideration. 54
50 of the P.C.A Cap 120, {1843}8 E.R 718. 51 Sec. 113(3) of the M.CA) 52 (Sec. 113(4) of the ,MCA) or (sec.45(4) of the T.I.D) 53 of the MCA Cap 16 54 (Sectian:118 (1}(3) of the MCA or section 49(1} of the T.I.A}.
24
• Upon consideration of the record transmitted to him by the magistrate's court, as the case
may be, the minister exercises his discretion to order the detention of the person
convicted in prison or other place of custody as he specifies in his orders or altematively
order for his or her release altogether. The procedure of dealing with the accused persons
of this nature is laid down in the case of Lelawan Leseroi v R55•
55 {1946} E.A 111 25
CHAPTER FIVE.
5.0 ADJOURNMENT:
5.1 INTRODUCTION
According to Black's Law Dictionmy56, the term adjournment is defined as the act of
adjourning; specifically, a putting off of a court session or other meeting or assembly
until a later time.
Sometimes during the trial proceedings, the prosecutor, the accused persons or his
advocate may pray for adjoumment; and this is due to several reasons. For instance if the
accused wishes to seek the assistance of an advocate, he or she is not arbitrarily denied
this right. An accused has the right to engage an advocate at any stage of the proceedings
provided the trial magistrate is convinced that sufficient cause is shown. Again in a
criminal trial, the accused has a right to call and have summoned any person who can
give evidence relevant to the charge under inquiry and for this reason; the accused may
pray for adjournment and is granted by court if asked for by the accused for that purpose.
But before granting adjoumment to call the defense witness, the court should be satisfied
that there is likelihood that they could, if present give material evidence on behalf of the
accused person. 57
The trial magistrate then records down the request and sets the time, date, and place of
hearing to a latter date as requested or as decided by the presiding magistrate. In the mean
time, the court may subject to Section 75(Ii8, suffer the accused person to go at large or
may, by wanant, remand him or her in some prison, remand home, or other suitable
place, or release him or her upon entering a cognizance with or without sureties, at the
discretion of the court, condition for his or her appearance at the time and place to which
the hearing or further hearing shall adjourn. Thus the decision to grant or not to grant
56 B'h ed, 2004 57 (Sec.128 (3) MCA); and as seen in the case of Lujigana v Uganda (1973) J. U.R.R 25. 58 M.C.A Cap16
26
adjoumment is discretionary, the decision is exercised judicially and is not granted
indefmitely or sine die as was the case in Uganda v Badrudin Adatia59 where the - .
prosecutor applied for an adjoumment "sine die" on the ground that the principle 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 court held, per Saldanha. J., that there was no provision in law for an
adjoumment sine dies; obviously because it would be monstrous to hold a charge above
an accused person's head indefinitely.
5.2 PART HEARD CASES:
In a situation where the magistrate who has partly heard and recorded the whole or any
part of a criminal case, transfers to another geographical area, resigns from his judicial
duty or even dies and is succeeded by another magistrate, Section 144 (1)60 clarifies that,
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 resummon the witness and recommence the trial; except that in any trial
the accused may, when the second magistrate commences his proceedings, demand that
the witnesses or any of them be resummoned and reheard;
Or where the evidence is wholly recorded by his predecessor but judgment is not written
or written but not delivered, the successor magistrate may act on such evidence and write
a judgment himself and deliver it; or if the evidence is partly recorded by his predecessor,
the successor magistrate proceeds to record the rest of the evidence and then write a
judgment.
However jurisdiction is conferred upon the successor magistrate only after judgment is
delivered by the outgoing magistrate. Before that he or she has no jurisdiction to take
cognizance of a signed but undelivered judgment of his or her predecessor. In the case of
59 M.B. 128/71, 60 Of the M.C.A, Cap
27
Uganda v Yusufu Asii61 where judgment wts written and signed by the magistrate but
delivered and sentence passed by his successor, Russell Ag. J. quashed the conviction
and set aside the sentence of 24 months imprisonment, saying, that inegularity was so
grave that the judgment was a nullity.
5.3 INTERPRETATION:
Uganda being a heterogeneous nation with q~er 30 different tribes; most of whom speak
absolutely different languages with a few having a related dialect, the need for
interpretation during the court proceedings arises because whereas the official language
of the court is English, the majority of the population do not understand or speak English.
It is therefore not surprising that the accused persons and or his or her witnesses may only
speak and understand their vernaculars which of course it is as adverse as there are tribes.
This is why it is constitutionally required und~r Article 28 (3)(3), 62 that every person who
is charged with a criminal offense shall be informed immediately, in a language that the
person understands, of the nature of the offense.
Normally when the substance of the charge is being read out to the accused by the trial
magistrate; which of course is conducted in English, the court will ensure that the
accused is provided with an interpreter in order to follow the court proceedings. 63 Incase
of a deaf-mute accused, the court obtains a person who can communicate to the accused
by way of sign language: 64
5.4 AUDIBILITY:
In Uganda comi proceedings; whether in civil or criminal matters is under the general
rnle to be heard in open court, to ensure it is free fair and speedy so that justice may not
61{1973) H.CB 98 62 Article 28{3) (b) of the 1995 Ugandan constitution, 63 (Sections 139 and 140 of the M.CA and sections56 and 57 of the T.I.A).
64 Article 28 {3) (f) of the 1995 Ugandan constitution 28
only be done but seen to done" where the public is free to attend, except for reasons of
morality, public order or national security. For this reason therefore, the trial magistrate,
prosecutor, defense counsel, interpreters, the accused persons and or his witnesses are
expected to be audible enough.
However there are instances where the accused and or his witnesses, the defense counsel
and the prosecutor when addressing the court or answering questions directed to them,
don't speak loud enough to be heard by the audience and are at times constantly reminded
by the trial magistrate to speak up.
29
CHAPTER SIX.
6.0 JUDGEMENT:
6.1 INTRODUCTION
A judgment may be defined as the reason decision of the court as to the guilt or
innocence of the accused arising from a disputed legal question which has been presented
before the magistrate or judge by the parties. Accordingly, Black's Law Dictiona~y65
defines it as a couti's final determination of the rights and obligations of the parties of the
parties in a case.
After the comi has heard the evidence called by the prosecution and the accused or his
advocate, the trial magistrate then identifies the legal issues under disputation for
determining a clear and precise finding of facts on those issues, and applies the law to
those facts in order to reach a verdict which is always put in writing. When the accused is
found not to be guilty, he or she is henceforth acquitted, but where the court is convinced
that the accused is guilty, the accused is usually asked to mitigate before judgment is
passed. When he or she is through with the mitigation, the substance of the charge is
explained to him or her in open couti either immediately after termination of the trial or
at a future date set and decided by the trial magistrate; notice of which is given to the
parties and their advocate, if any. 66
The accused person all this while if in custody is brought to comi, or if not in custody is
required by couti to attend to hear judgment being delivered, where his or her personal
attendance during the trial has been dispensed with and sentence is one of fine only or he
is acquitted.
65 s'h Edition, 2004
66 Section 135{1) M.CA. 30
6.2 CONTENTS OF JUDGEMENT:
Every judgment delivered under Section 13567 is written by the magistrate or reduced to
writing under his or her personal superintendence and direction in the language of court
which is English, and normally contains the points for determination, the decisions
thereon and the reason fc•r decision (ratio decidendi) the judgment states clearly the
offence of which the accused is convicted of or acquitted. If it is acquittal, the court
directs that the accused be set at liberty f01thwith and this is signed and dated on the day
it is delivered.
In the case of conviction, judgment is followed by a note of the steps taken by the court
prior to sentence and by a note of the sentence passed together with the reasons for the
sentence when there are special reasons for passing a patticular sentence.
Judgment can however be altered; unlike in the civil procedure code, there are no
provisions in the Magistrate's Comt Act and the Trials on Indictment Decree providing
for the conections of error after judgment has been delivered. Equally so, there is no
provision expressly prohibiting it. The court becomes functus officio, under the civil
procedure code, once the final judgment has been pronounced and it cannot amend or
alter it except to conect clerical arithmetical mistakes or enors arising from accidental
slips or omission in the judgment
6.3 SUBSTITUTED CONVICTION:
This particular case is a situation where any person who is charged with a criminal
offence and facts are proved which reduced the said offence to a "minor or cognate one is
convicted on a minor offence although he or she was not charged with it. An offence is
said to be minor to another within the meaning of the provisions of the section just cited
if the punishment for it is less than the punishment prescribed for that offense in relation
to the punishment for that other offence is the test that distinguishes. While an offense is
said to be "cognate" to another if it is of the same genus or species with that other. For
67 of the M.C.A 31
instance a person charged with murder may be convicted of manslaughter or one of
defilement may be convicted of procuring defilement.
In the case of Robert Ndecho and Another v R, 68 the appellants were tried with others,
on an indictment charging them with murder of a police constable. The trial judge found
that the prosecution had failed to prove common intention to kill or to do grievous harm
to the deceased. Accordingly, he convicted only one of the accused of murder and found
the appellant guilty of willfully obstructing the police in due execution of their duty or of
person acting in their aid, contrary to section 248(b) of the Kenya Penal Code Act which
is substantially the same as section 138(b) of the Uganda Penal Code Act cap 120. On
appeal it was held that where an accused person is charged with an offence, he may be
convicted of a minor offence, although not charged with it, if that minor offence is of a
cognate character
6.4 SENTENCES AND ORDERS ON CONVICTION OR ACQUITTAL:
After conviction the court having heard the evidence called by the prosecution and the
accused either convicts the accused and passes a sentence upon him or her or makes an
order against him or her according to the law, or on the contrary acquits the accused
person. The purpose of sentencing those found to be guilty is greatly inspired to reduce
the rate of crime commission by way of fine, imprisonment or both in order to create law
and order in the society.
But 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 defense, the court dismisses the case and acquits the accused in accordance with the
provision of Section 12769•
68 (1951) E.A.CA 171, 69 of the M.C.A
32
CHAPTER SEVEN:
7.0 REPORT TO RESEARCH FINDING
7.1 INTRODUCTION
Uganda's criminal justice system in the Magistrates courts and its styles are adversarial in
nature based on the English Law; with the accused brought in the dock upon a charge;
ironically presumed innocent until proven guilty. The prosecution is tasked with the onus
of proving his or her case beyond reasonable doubt against the accused for the crime
charged. The accused however on his part has no duty to prove his or her innocence.
My analysis therefore focuses much attention from the time a criminal charge is made
against the accused person, to the ensuing court proceedings until the time when the case
is promptly disposed off basing on the facts on the ground established by the trial
Magistrate over the case in accordance with the laws applicable.
However in my observation and interviews I can-ied at Buganda road Chief Magistrate's
court with some of the relatives of the accused persons and I or the accused themselves, a
few disturbing setbacks were established which forms the basis of my research analysis.
These includes cases that are unnecessarily adjourned for long periods for reasons of luck
of proper investigation or the absence of major witnesses, a few complaints of inadequate
man power in the field of interpreters. This is not made favorable considering the fact that
the language of court is English; which is foreign as opposed to over 30 different tribes
speaking different or related dialect existing in Uganda's ten-itoriai boundaries, the public
outcry of con-uption, political interference and lack of motivation among others
33
7.2 CRITICAL ANALYSIS OF THE RESEARCH FINDINGS:
In canying out the research on the administration of criminal trials in magistrate's courts;
where both substantive and procedural laws are applied in administering justice, a few
critical observations can be pointed out either within or outside the confines of criminal
trial procedure that in a way in essence impedes a fair, speedy and public hearing before
an independent and impattial court established by law as required by article 28 (1) of the
1995 Ugandan constitution. These include:
Inadequate man power especially in the field of interpreters. The judiciary seems not to
put much consideration in facilitating the comts of law with interpreters of different
languages that exist within the territorial boundaty of Uganda and or other intemational
languages. As a result, those who are alleged to have committed crimes whose languages
cannot be understood by the court, due to lack of an interpreter to such language, their
cases tend to take so long to be disposed off. This means that the accused may not be
informed immediately in the language he or she understands, of the nature of offense
which he or she is alleged to have committed as required by under Article 28(3)(b), 70 or
be afforded, without payment by that person, the assistance of an interpreter if that person
cannot understand the language of comt71 and so the alleged criminal may be kept in
remands for so long; especially in a situation where they cannot be granted bail due to the
nature of their crime.
There are also commonly rumored cases of CotTuption in the Magistrates comts which is
a public outcry. From an interview conducted randomly at Buganda road Chief
magistrates comt, about eight out of every ten people interviewed, pointed out that the
alleged criminals considered to be wealthy, brought before court for trial, hardly face
justice as they tend to bribe their way out; however serious their crime may be and some
have tried to give a few examples to substantiate their claims. However from my personal
observation during court proceedings, there are instances the prosecutor keeps praying for
70 of the 1995 Uganda Constitution 71 Article 28 (3}{f) of the 1995 Uganda Constitution
34
adjoumment because they either don't have the police file, their copy of the file
disappeared from their chambers or actually not delivered to them. Sometimes there are
situations where files diszppear from the court which evidently from my observation
tends to frustrate the magistrate's works. If this then is a result of corruption, then it
impedes the administration of criminal trial justice since in the interest of justice, the
presiding magistrate tend to dismiss such cases or the charge unheard.
Political interference and intimidation of magistrates in the execution of their duties by
the members of the executive arm of govemment; with vested interests in some cases for
political reasons, is a major setback to the administration of criminal trial justice in
magistrate's comts in Uganda today.
Lack of motivation of the magistrates in monitory terms in a way appears to impede the
administration of criminal justice trials in magistrate's courts. Although the magistrates
try their best to work hard in spite of the back log of criminal cases, notwithstanding the
inadequate stuffing of judicial officers in any given magisterial area, they would do better
if they were well motivated financially. This is because out of the salaries they are paid,
some have to be spent on transport to and from comt; because unlike the judges, not all
magistrates are availed with transpmt facilities in the effmt to try to ease their work.
Therefore in case of any delays, the trial magistrates may not be in position to dispose off
all the cases to be heard since the rate of crimes are on the increase by the years as the
population increases. Apatt fi·om spending patt of their salaries on transpmt, they also
have to pay for house rents for those without permanent houses and on top of that they
have to meet their domestic needs. In the end they are left with hardly enough to properly
motivate them.
There are also tendencies of cases not being fully investigated by the police or the
prosecutor despite the fact that the burden of proof of a charge lies majorly on the
prosecution. As a result cases that could have been heard, judgment delivered and
sentence passed are prayed for adjoumment by the prosecutor, pending investigation,
which tends to frustrate comt from administering justice "for justice delayed is justice
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denied." which in essence is a direct contravention of the constitutional provision of
Article 126 (2)(b/2 which states that in adjudicating cases of both civil and criminal
nature, the comis shall subject to the law, apply the following principle among others,
"justice shall not be delayed" According to the chief magistrate, in the past, the trial
magistrates acted as umpires but this was found to be wrong. Today the presiding
magistrate has to be more knowledgeable in order to be able to try cases.
7.3 RECOMMENDATIONS:
In an eff01i to curb down the delay in administering justice in especially criminal cases,
arising from lack of an interpreter for the alleged criminal offender brought to comi under
such a charge or charges; whose native language cannot be understood by the court and
where the accused cannot understand the language of court or any other comi other than
his or her own, the judiciary needs to consider taking rigorous prophylactic measures in
equipping the courts of law with enough interpreters in the different existing languages so
that the accused person if found not to understand the language used at the trial, may be
afforded, without payment by the accused, the assistance of an interpreter and to be
informed, immediately, in a language that he or she understands, of the nature of the
offence which he or she is alleged to have committed, or in the alternative; the judiciary
should consider hiring the interested members of the public at a fee, should any need
arise to avoid unnecessary adjournments which creates more case back log.
More court prosecutors should also be urgently trained and posted to the gazzeted areas
of the chief magistrate's jurisdiction in order to rectifY the existing inadequate number to
have a speedy criminal trial cases. Language banier could also be reduced by
encouraging the teaching and learning of Swahili language which is evidently more wide
spread than any native language.
The common rumor of conuption within the magistrate's comi can be reduced; just like
in Uganda Revenue Authority (URA), if the chief magistrate's court stuffs are well
72 of The 1995 Constitution of The Republic of Uganda 36
motivated financially and well facilitated with security and a vehicle like it is with the
case of the high court judges and other superior court judges. But most importantly, the
judiciary must devise some monitmy and control mechanism and means of taking sterm
disciplinary action against any stuffmember(s) from the chief magistrate's court found to
be corrupt.
Criminal cases not fully investigated by the police must not be sanctioned by the Director
of Public Prosecution (DPP) which would otherwise waste courts time from hearing
genuine and fully investigated cases. This would put the prosecutor at cross roads with
the presiding magistrate if the prosecutor is unable to prove its case beyond reasonable
doubt that the offence was actually committed. However those are minor cases resulting
from an error of reasonable diligence in canying out a duty.
With exception of Kampala district, The area in respect of which other chief magistrate's
court has jurisdiction is quite too large for all civil and criminal cases to be promptly
disposed off in a fair, speedy and public hearing as required by law. Although the
govemment once established the land tribunal to relieve the magistrate's court on civil
matters arising from land disputes, this is no longer functional. There is therefore urgent
need to establish and designate another magistrate's comi in other areas for which it will
have jurisdiction.
7.4 CONCLUSIONS:
The administration of criminal trials in magistrate's courts as laid down in this research
work clarifies the procedures and protocols observed in ca!'l'ying out criminal trial
proceedings in its substantive and procedural form. The research also points out and
analyses the problems encountered by the trial magistrates that seemingly impedes their
work in administering a fair, speedy and public trial as constitutionally required under
article 28(1) of the 1995 Ugandan constitution and recommendations suggested to these
problems; which is the primaty focus of this research finding.
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