TOPIC ONE: JURISDICTION

What is criminal jurisdiction?

This is the power which the sovereign authority of the state has vested in the courts and other tribunals established by law, to determine questions or issues which arise out of crimes committed against a state. In other words, criminal jurisdiction determines whether an offence is triable in Uganda and by what court. (Refer to section 4 of the Penal Code Act)

CRIMINAL JURISDICTION OF COURTS

THE SUPREME COURT

According to Article 129 of the Constitution (Uganda) 1995 and section 3 of the Judicature Act, the Supreme Court is the superior court of record in Uganda. It has only appellate jurisdiction. For the purposes of hearing and determining an appeal, the court has all the powers vested in the High Court under any written law. (Judicature Act) The Supreme Court consists of the Chief Justice and other justices of the Supreme Court not less than six and at any sitting, not less than five, see Art 130 of the Constitution. According to Art 132 and Sec 4 of the Judicature Act, the Supreme Court is the last court of appeal.

In criminal matters where an offence is punishable by death, the Supreme Court may entertain an appeal under the following circumstances:

Where the Court of Appeal has confirmed a conviction and sentence of death passed by the High Court.

Where the High Court has acquitted an accused person, but the Court Of Appeal has reversed that judgment and ordered conviction of the accused.

Where the High Court has convicted a person but the Court of Appeal has reversed the decision / conviction and ordered the acquittal of the accused.

Where the Court Of Appeal has confirmed the acquittal of the accused by the High Court.

Other circumstances where the Supreme Court can entertain an appeal are as follows;

a) An appeal from a sentence or order other than one fixed by law

b) Where the appeal emanates from a judgment of a Chief Magistrate or Magistrate Grade One, in the exercise of their original jurisdiction and either the accused person or the D.P.P has appealed to the High Court or the Court Of Appeal, the accused or the D.P.P may lodge a third appeal. Here, the Supreme Court shall give a declaratory judgment. This is a judgment which conclusively declares pre-existing rights of the litigant without the appendage of any coercive decree.

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c) Where the person under the age of 18 is subject to the order of the minister having been found guilty of an offence punishable by the death sentence.

THE COURT OF APPEAL

This consists of the Deputy Chief Justice and Justices of appeal not less than 7. It shall be constituted of an uneven number not less than 3 (See Art 134 -136 of the Constitution and also Sections 9 -13 of the Judicature Act.) This court entertains appeals from the High Court.

HIGH COURT OF UGANDA

It is established under Art 138 of the Constitution and sec 15 of the Judicature Act. It consists of the Principle Judge and 25 or more judges as Parliament may prescribe.

ORIGINAL JURISDICTION OF THE HIGH COURT

The High Court has unlimited original jurisdiction throughout Uganda. Under Section 1 of the T.I.A, the High Court has jurisdiction to try any offence under any written law and may pass any sentence authorised by law. However no criminal case can be brought under the cognizance of the High Court for trial unless the accused person has been committed for trial to the High Court after holding preliminary or committal proceedings.

SENTENCING POWER

Under Sec 2 T.I.A, the High Court may pass any lawful sentence combining any of the sentences which it is authorised by law to pass.

APPELLATE JURISDICTION

The High Court entertains appeals from decisions of the Chief Magistrates who have determined appeals from Magistrates’ Grade 2. Appeals from Grade 1 Magistrate do not go to the Chief Magistrate, but rather to the High Court directly.

Other powers of the High Court include;

Revisionary powers provided under sec 47, 54 of the C.P.C.A Confirmation of sentences, section 173 of the M.C.A Transfer of cases, sec 41 M.C.A Reservation of questions of law, sec 206 M.C.A

THE CHIEF MAGISTRATES’ COURT

The original jurisdiction is provided under sec 161 MCA.

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Sentencing powers. This is provided under sec 162(a)

Appellate jurisdiction. The Chief Magistrate hears appeals from the decisions of magistrates grade 2.

Supervisory powers. See sec 221 M.C.A which provides that the Chief Magistrate shall exercise general powers of supervision of all magistrates’ courts with in the area of jurisdiction.

Transfer powers. Under sec 170 M.C.A a Chief Magistrate may transfer any case for trial to another magistrate in the area or to himself.

MAGISTRATE GRADE 1

Criminal jurisdiction; See sec 161 M.C.A which provides that a grade 1 magistrate may try offences other than offences whose maximum penalty is death or life imprisonment.

Sentencing powers of Grade 1; sec 162 of the M.C.A provides that a Grade 1 may pass a sentence of imprisonment not exceeding 10 yrs and a fine not exceeding 1 million or both such imprisonment and fine. NB Read together with the Amendment Act.

MAGISTRATE GRADE 2

Criminal jurisdiction; Sec 161(1)(c) M.C.A provides that a grade 2 may try any offence and shall have jurisdiction to administer and enforce any provision of any written law other than the offences and provisions provided under schedule 1 of the M.C.A.

Sentencing powers; Sec 162 (1)(c) provides that a grade 2 may pass a sentence of imprisonment for a period not exceeding 3yrs or a fine not exceeding 500,000/= or both such imprisonment & fine.

MAGISTRATE GRADE 3

This was the lowest class of magistrates. Criminal jurisdiction was provided under sec 161(1)(d) M.C.A which provided that a grade 3 might try any offence under the law and had jurisdiction to administer and enforce any provision of any written law other than offences and provisions as provided under schedule 1 & 2 of the M.C.A.

Sentencing powers; These were provided under sec 162(d) A grade 3 might pass a sentence for a period not exceeding 1 year or a fine not exceeding 250,000/= or both such imprisonment and fine.

NB The Amendment Act has removed this grade.

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TOPIC TWO: EXTRADITION

This applies when a suspect or an accused person flees Uganda and goes to another country. Such a person can be brought back by extraditing him to answer charges in Uganda.

Therefore, extradition is a process of surrendering a fugitive offender to the country in which he has committed the offence for the purpose of having him tried for the offence he has committed.

For an offender to be extradited from another state there must be a reciprocal arrangement either by agreement or by legislation. Whenever an extradition agreement is signed, the details as to the procedure of extradition are provided for in an Extradition Act.

In Uganda, the law applicable is the Extradition Act Cap 117 laws of Uganda. This Act consolidates the law relating to the extradition of persons accused or convicted of crimes committed with in the jurisdiction of another country. This Act contains two parts.

According to sec 3 of the Act, part 1 of the Fugitive Offenders Act 1881 of the U.K applies to the countries to which part 1 of the Uganda Fugitive Offenders Act applies.

This means that Uganda adopted extradition agreements signed by the U.K and other countries before her independence. A list of countries where Uganda is a party is provided for under Statutory Instrument No. 103 of 1966.

Part 2 applies to East African countries by virtue of S.I 235 of 1964. We do not have extradition agreements with countries like Sudan and DRC. What happens when an offender runs to such countries? Sec 5 of the Penal Code Act will apply.

PROCEDURE OF EXTRADITION

Restrictions on surrender of criminals;

This is provided under sec 2 of the Act, a fugitive criminal will not be surrendered if the offence for which the extradition is sought is one of a political character.

What is the meaning of an offence of a political character?

The Act does not define what an offence of political character is all about. This depends on the discretion of the Court or the Minister. The test of what amounts to an offence of

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a political character was applied in the case of RE CASTON, Lord Denning in defining an offence of a political character held that in order to bring the case in the words of the Act and to exclude extradition offences, it must be shown that the Act is done in furtherance of, done with the intension of assistance or as a sort of act, in sort of acting in a political manner.

Apolitical rising, a dispute between 2 parties in the state as to which to have the government in its hands, therefore, it can be brought with in the meaning of the words in the Act. Parkinson J held that the expressions ‘political Expression’ / ‘political character’ mean incidental or forming part of a political disturbance.

The procedure

Say if a Ugandan has committed an offence in Kanungu Rukungiri and thereafter runs to Kenya, a magistrate in Kanungu will issue a warrant of arrest on the application by the police.

The warrant of arrest is brought to the CID head quarters. After perusal, at the CID, it is forwarded to the AG for authentication. The file is then sent to Interpol, who will then organise to bring the fugitive criminal back to Uganda. The Interpol officer will go to Kenya and report to their Interpol office. The police there will peruse through the file to determine whether the offence is extraditable, and whether it is stipulated under the Treaty and their laws.

Thereafter, the Kenyan police will apply to court for a provisional warrant of arrest on which the fugitive is to be arrested. The issue of an offence of political character normally arises at this point. After arrest, the fugitive is taken to court, where he will be handed over to Uganda for trial. See s.15, 17 & 18 of the Extradition Act.

Extraditable offences are covered under Schedule 1 of the Extradition Act. See also offences agreed upon in the Treaty. Bigamy is extraditable.

CRIMINAL SUMMONS

This is one way of compelling an accused person to appear in court to answer charges. In other words summons is a document issued by a court not by a person, calling upon a person to whom it is directed to appear before a judge or officer of the court.

FORM & CONTENT OF SUMMONS

These are covered under sec 44 of the M.C.A. Every summon issued by a Magistrates’ Court must be in writing, in duplicate , signed and sealed by a magistrate or by such other officers as the Chief Justice may direct from time to time. It must be directed to the person summoned with his name and should require him to appear at a time and a place therein appointed before a court having jurisdiction to inquire into and deal with

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the complaint or charge. It must state shortly the offence against which the person summoned is charged.

SERVICE OF SUMMONS.

This is covered under sec 45 of the M.C.A, under this section, summons are served by a police officer or by an officer of the court issuing it or other public servant. If practicable, the summons must be served to the accused personally by delivery or tendering to him the duplicate of the summons, then the accused must sign a receipt thereon at the back of the original of the summons.

What happens if a person can not be traced?

Under sec 46 M.C.A, where the person summoned can not be traced after the exercise of due diligence, the summons may be served by leaving the duplicate with any adult member of the family, by leaving it with another member of the family or with a servant living with him or with his employer. This person is also required to sign at the back of the original summon and if he cannot afford signing may be due to incapacity, the serving officer can swear an affidavit to that effect.

What if the procedure of service is not effected?

This is provided under sec 47 M.C.A. The serving officer shall affix the duplicate of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides. By doing this, the summons shall be deemed to have been duly served.

What if the person summoned cannot be traced?

Section 50 of the M.C.A provides that summons can be served at any place in Uganda. How does one do this practically? How would u serve a government servant? This is provided under sec 48 M.C.A, that service can be effected by issuing summons and sending it in duplicate to the head of department where the person is employed. The head of department should also sign and the signature shall be the evidence of service of the summons.

How would you serve a soldier who committed an offence in Uganda and has been deployed in Congo? You serve the commanding officer.

SERVICE ON A COMPANY

This is provided under sec 49 M.C.A, where by service of summons on an incorporated company or any other body corporate may be effected by serving it to the Company Secretary, Manager or a Principle Officer and by a registered letter addressed to the

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Chief Officer of the corporation at the registered office of the company. It is deemed to be effected when the letter would arrive in ordinary course of post.

How do you serve an un incorporated company?

How do you prove that summons were effected?

By calling the Process Server to give evidence on oath that service was effected ( Affidavit)

By calling the person with whom the summons were left and by producing the original summons dully endorsed (Signed).

By swearing an affidavit to prove certain facts such as the affixation of the duplicate to some conspicuous part of the accused residence, hiding or refusal to sign the person summoned.

ARRESTS

To arrest a person is to deprive him of his liberty by a lawful authority for the purpose of compelling his appearance to answer a criminal charge or as a method of execution. Arrest involves the taking of the person arrested in custody whereby the person is detained or confined in a certain place.

CONSTITUTIONAL PROVISIONS FOR ARREST

According to Art 23 of the Constitution, no person should be deprived of personal liberty. Once restricted or detained, one has to be kept in a place authorised by law. The Constitution further requires that a person arrested or detained should be informed immediately in a language he understands, the reasons for his arrest and his right of a lawyer of his own choice.

CIRCUMSTANCES UNDER WHICH A PERSON CAN BE ARRESTED:

1. For purposes of bringing him to court or before court in execution of a court order.2. Where there is reasonable suspicion of his / her having committed or being about to commit an offence under the laws of Uganda.

What happens after the person accused has been arrested?

The accused if not released earlier, the arrested person must be brought to court as soon as possible but in any case not latter than 48 hrs from the time of arrest.

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What if the accused person is arrested on a Friday? What is the remedy if you are unlawfully arrested? Under Art 23(7), a person who is unlawfully arrested or detained by any other person or authority shall be entitled to compensation from that other person or from the state.

What if you are arrested and not brought to court? Art 23(9) provides that a person has a right for an order of habeas corpus. This is basically a prerogative writ directing a person who has been detaining another person in custody commanding him to produce or have the body of the person arrested and produced in court.

WAYS OF ARRESTING A PERSON

a) Arrest with warrants of arrest;

This is provided under sec 56 of the M.C.A or sec 5 of the T.I.A. The warrant must be in writing as per sec 56 M.C.A, signed by the judge / magistrate issuing it and must bear the seal of court. It must be directed to a person ordering him to arrest a person described in the warrant to bring him before the court having jurisdiction and it must state briefly the charge against that person and describe his details.

A warrant of arrest may be directed to the following people:

A specific police officer or generally all police officers or a chief (individual chief) or a private person eg land holder, farmer or manager of land with in the local limits of the jurisdiction of the chief magistrate. See sections 58, 59 and sec 7 T.I.A.

How then does one define local council officials? They can arrest as private persons.

DURATION OF A WARRANT

Under sec 56(3) and 57(3) T.I.A, a warrant of arrest remains in force until it is executed or cancelled by the court which issued it. A warrant may be executed at any place in Uganda or out side under extradition, see sec 61 M.C.A & sec 11 T.I.A.

PROCEDURE OF EXECUTING A WARRANT OF ARREST

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Under sec 61 M.C.A or sec 10 T.I.A when executing a warrant, a police officer or other person executing it is required to inform the person to be arrested the substance of the warrant.

The arresting officer must take the person arrested to custody or to court without un necessary delay.

Under sec 63 M.C.A, where the arrest is made out side the local limits of the jurisdiction of the court which issued it, and more than 20 miles from the court, the arrested person should be taken before the magistrate within the local limits of whose jurisdiction the arrest was made. This is to prevent prejudice or unfairness to the accused.

METHODS OR WAYS OF ARRESTING A PERSON.

According to sec 2(1) C.P.C.A, in making an arrest, the police officer making the same shall actually touch or confine the body of a person to be arrested unless there is submission to the custody by word or action.

What if the person resists arrest?

Under sec 2(2), if a person forcibly resists the Endeavour to arrest him or attempts to evade the arrest, such police officer may use all the means necessary to effect arrest. However, the force used in the circumstances should be reasonable, what is reasonable is a question of fact. Therefore only reasonable force is allowed in order to effect an arrest. Otherwise excessive force is unlawful. In determining the degree of force to be used, the arresting officer needs to consider the following;

The seriousness of the offence committed. The manner in which the offence was committed. Under sec 29 of the Police Act

Cap 303, a police officer may use a fire arm under the following circumstances;

a) where the person charged with or convicted of a felony escapes from lawful custodyb) The person who through force rescues another from lawful custody.c) The person who through force prevents the lawful arrest of himself or another person.

In using force, the police officer must have the following grounds;

The police officer has reasonable grounds to believe that he cannot otherwise prevent any act or effect the arrest.

The police must have issued a warning to the offender that he is going to resort to the use of arms and the offender does not heed to the warning.

That the police officer has reasonable grounds to believe that he or any other person is in danger of grievous bodily harm if he does not resort to the use of arms.

ARREST WITHOUT A WARRANT

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There are several circumstances under which a person can be arrested without a warrant;

By a police officer. A police officer is defined as any attested member of the police force as per sec 3(d) of the Police Act. Under sec 24 Police Act and sec 10 C.P.C.A, a police officer can arrest a person without a warrant under the following circumstances;

a) Where he suspects upon reasonable grounds that such a person has committed a cognizable offence (chapter 28 of the Penal Code Act)b) Where a person commits a breach of peace in his presencec) Where a person obstructs a police officer in the execution of his duties or a person who has escaped from lawful custody or has attempted to escape from lawful custodyd) Where a police officer suspects upon reasonable grounds that such a person is a deserter from the armed forces of Uganda (sec 10 C.P.C.A) and any person a police officer finds on a high way or any other place during the night and whom the police officer suspects of having committed a crime.e) Any person whom the police officer suspects upon reasonable grounds of having been concerned in any criminal act committed out side Uganda.f) Any person having in his possession with out lawful excuse, implements for house breaking.g) Any person to whom the police officer on reasonable grounds believes that a warrant of arrest has been issued.h) Where a person is in possession of property suspected of having been stolen or who may reasonably be suspected of having committed an offence with reference to such a thing.i) Other circumstances under which a police officer can arrest with out a warrant are provided for under sec 11 C.P.C.A eg vagabond or habitual robbers (criminals).

A police officer can also arrest a person who commits an offence in his presence and refuses to give his name and residence or he gives a wrong name and address. See S. 13 C.P.C.A. Read the case of Joseph Byaruhanga, where this person shot at suspects and the issue was whether a person arrested should always be in hand cuffs? He was not charged hence sec 13 did not apply. Appeal; was dismissed too.

A magistrate, under sec 19 of the C.P.C.A. It provides that a magistrate may arrest a person who commits an offence in his presence with in the local limits of his jurisdiction.

Arrest by local administration police

These powers were given under the Police Act. However whenever these officers of the local administration are required to operate under the immediate direction and control of the officer in charge of Uganda police force.

Arrest by a chief

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Chiefs were given powers of arrest by the Local Administration Act 1967. Under sec 40, every chief is required to obey all orders issued and warrants issued to him by any court or any competent authority responsible for law and order. However, this Act was repealed by the Local Government Act 1997. A chief is required to collect and communicate intelligence affecting public peace, prevent the commission of an offence and public nuisance and to detect and bring offenders to justice and apprehend those for whose apprehension he has sufficient grounds to do.

Arrest by private persons

Under sec 15(1) C.P.C.A, a private person may arrest any person who, in his view commit a cognisable offence or whom he suspects of having committed a felony. Secondly the owner of property or his servants or persons ordered by him may arrest a person being arrested with out a warrant in any of the above situations has a right to know why he is being arrested. Under sec 16 C.P.C.A. any person arrested must be handed over to the police. It is not necessary to tell the reason of arrest where the reason of arrest is obvious.

SEARCHES

A search is an inspection made on a person, in a building or a place for ascertaining whether there is any evidence for criminal prosecution.

Why do we search?There are 2 main reasons why there is a search;

a) To collect evidence and exhibit to be used in criminal proceedingsb) To make an arrest on suspicion and establishing the evidence after the search.

Section 69 M.C.A provides that when a police officer has reason to believe that material evidence has to be obtained in connection with an offence for which an arrest has been made or authorised, any police officer may search any place or place of business for the person arrested or for the person for whom a warrant of arrest has been issued. He can take anything which might reasonably be used as evidence in any proceedings.

PROCEDURES OF CONDUCTING A SEARCH

1. Search of arrested person

The procedure here is provided under sec 6(2) CPCA which provides that a police officer may search any person who has been arrested and may take possession of anything found on such a person that may be used as evidence against the arrested person.

2. Search of vehicles and parcels

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The procedure is provided under sec 7 of the C.P.C.A. Under this section any police officer may stop and search any person or vehicle on reasonable suspicion that anything stolen or unlawfully obtained may be found.

BAIL

This is an agreement between the accused and the court that the accused will pay a certain amount of money fixed by court should he fail to attend court for trial on a certain date. This agreement includes sureties.Bail is a constitutional right under

Art 23(6) of the Constitution which provides that a person is entitled to apply for bail if the offence is triable by the High Court as well as a subordinate court.

A person shall be released on bail on such conditions as court considers reasonable. If a person has been remanded in custody in respect of an offence before trial for 120 days counsel should move court to release that person (automatic release). In case of an offence triable by the High Court, the days are 360 days. However, in both cases the person is released on such conditions as court considers reasonable eg court can not release a person who may or is likely to escape or interfere with prosecution witnesses.

REASONS FOR GRANTING BAIL

The reason is to ensure that a person appears to answer the charge against him without being detained in prison on remand, It is vital to note that bail is a temporary release and not an acquittal. Two points must be noted before granting bail.

1. The presumption of innocence, the accused is presumed innocent until proved guilty. He should therefore not be imprisoned.

2. It is unfair in certain circumstances to keep the accused person in custody without trial.

POWERS OF GRANTING BAIL

1. High Court – Sec 14 T.I.A. the High Court can grant bail.

2. Magistrates’ Court except where the accused is charged with an offence that is triable only by the High Court.

APPLICATION FOR BAIL

In Magistrate courts, bail application is normally made orally or in writing and if it is done in writing, it is supported by an affidavit.

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In the High court, it is usually in writing by notice of motion supported by an affidavit. Notice of an application to the High Court must be given to the D.P.P and to the Police in the Magistrates’ court. (SEE r.3 of the Judicature (Criminal Procedure Application rules SI 13-8)

CONDITIONS CONSIDERED FOR GRANTING BAILThese are provided for under sec 77 of the M.C. A.

1. The nature of offence (capital offences or misdemeanors)2. The gravity of the offence and severity of the sentence3. The antecedents of the applicant as far as they are known, behavior, previous

convictions eg looking at the criminal case registry for these convictions4. Whether the applicant has a fixed place of abode with in the area of courts

jurisdiction.5. Whether the applicant is likely to interfere with witnesses eg bribing them,

intimidating them. You can prove this by showing that the applicant is a man of great influence.

REFUSAL OF BAIL APPLICATION BY SURBODINATE COURTS.

An application can be made to the high court or Chief Magistrate where bail has been refused by a subordinate court. See sec 75(3, 4) M.C.A. However it is important to note that this is not an appeal. Court has powers also to reduce the amount of bail bond (sec 75(3) M.C.A.) In case of a Chief Magistrate refusing bail, an application can be made to the High Court. It is vital to note that the accused may reapply before the same court when conditions for bail application change eg sickness, fixed place of abode etc. see Livingstone Mukasa & others v Ug (1976) HCB 117, Banju v R (1973) EA, Jeffer v R (1973) EA 39, Onyango v Ug (1967) EA, Kityo v R (1967) EA.

WHERE BAIL APPLICATION IS NOT OPPOSED

What if the bail application is not opposed by the prosecution? The court may try to investigate.

SURETY

Section 80 M.C.A and sec 18 T.I.A, a surety is a person who binds himself to satisfy the obligation of another if the latter fails to do so.

A surety is a legal responsibility; there fore it means one is not assisting a friend or a relative to be released. A surety has to ensure that the accused does not abscond or jump bail. In case the accused fails to attend, the surety must answer or explain as per the case of Uganda v Haji Abasi Mugerwa (1975) HCB 216.

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A surety can arrest the accused if he has reasons to believe that the accused is about to disappear or abscond. In case he absconds, the surety will be called in court to show why the recognizance should not be forfeited.

The following are the stages under which bail can be granted:

1. At any stage in the proceedings by the court having criminal jurisdiction. Sec 14 T.I.A & sec 75 M.C.A

2. A chief magistrate may grant bail under the following circumstances:

a) Where an accused has been committed for sentencing by grade 1, 2, 3 to his court and the chief considers conviction illegal, he can grant bail.

b) Where the chief magistrate forwards a record to the High Court in the exercise of his supervisory power or when he feels it is in the interest of justice to do so. See sec 221 M.C.A

CIRCUMSTANCES UNDER WHICH BAIL IS NOT GRANTED.

1. Where court considers that it has no power to sentence the accused or commits the offender for sentence to a higher court. (S. 161 M.C.A)

2. Where the accused committed an offence triable by High Court and is remanded

to appear before a magistrate with jurisdiction to conduct committal proceedings.

3. When the magistrate has committed the accused to the High Court for trial THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT JINJA MISC. APPLICATION NO. 21/95

BIJJA ROBBERT……………………………………………………….APPLICANT VERSUS

UGANDA…………………………………………………………….RESPONDENT BEFORE: THE HONOURABLE JUSTICE C.M.KATO

RULING

This ruling refers to an application for bail. The applicant Robert Bijja is charged with the offence of Defilement c/s 123(1) of PCA. He is seeking for a release on bail pending his trial. The application is by notice of motion dated 17-11-95 and it is supported by the applicant’s own affidavit also dated 17-11-95.By provisions of section 14A of TID as amended by statutes 5 and 6 of 1990 a person charged with defilement can only be released on bail if he proves to the satisfaction of the court that special circumstances do exist to warrant his being released on bail. The circumstances which are regarded a special include grave sickness, infancy or old age, the fact that the applicant has been on remand for over 12 months as per article 23(6)(c) of the new Constitution and that the state does not oppose the applicant being released on bail.

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In the present case the applicant who appeared in person has stated that he is a young boy of 17 years and that he also suffers from chest pain. The learned counsel for the respondent has not objected the accused being released on bail provided that stringent conditions are imposed to compel the applicant to attend court. The mere fact that the applicant is having chest pain is not a good ground to have him released on bail in the absence of any medical report, but in view of the fact this is a school boy aged 17 years and in view of the fact that the state does not oppose his being released on bail I will grant this application for being released on bail. He is accordingly released on bail on the following conditions: 1. He is to produce 100,000/= cash as deposit.

2. He is to produce 2 sureties who will be approved by the District Registrar Jinja and each of them will Sign a bond of 200,000/= not cash.

3. The applicant will appear in the Chief Magistrates court Jinja once a month for extension of his bail starting from 28-12-95 until another lawful order to the contrary has been given.

4. The above conditions will have to he complied with and failure to do so without any reasonable ground will automatically result in the bail being cancelled.

C.M. KATO JUDGE

28-11-1995

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA

MISC. CR. APPL. NO. 185/1989 BUMBAKALI :::::::::::::::::::::APPLICANT.

VERSUS UGANDA ::::::::::::::::::::::RESPONDENT,

BEFORE:— The Honourable Mr. Ag. Justice J.WN. Tsekooko R U L I N G

The accused is charged with the offence of Murder c/s 183 of penal Code. He first appeared in Court on the said charge on 2nd January, 1987 and has been on remand since then. I gather from the learned State Attorney that Wandegeya Police Station has not submitted to the D.P.P. the police file for perusal and decision as to the fate of the charges against the accused. He therefore does not oppose release on bail.

The accused has been on remand for an aggregate period of 38 months. There is no prospect of his being committed to the High Court for trial soon, in the circumstances the accused qualifies for release on bail in terms of Section 14A of the T.I.D. 1971 as amended.

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As the Sate Attorney does not oppose the application the accused is released on bail on the following conditions:—

(a) He shall deposit cash Sh5. 50,000/= in Court. (b) His two sureties are to be bound in the sum of Shs. 200,000/= not cash. (c) Accused to report to Buganda Road Chief Magistrate’s Court after every 30 days from the date he fulfills these conditions until his case is otherwise dealt with.

If he does not fulfill these conditions he is to go back on remand. J .W.N. TSEKOOKO AG. JUDGE 19/3/1990

THE REPUBLIC OF UGANDAIN THE HIGH COURT OF UGANDA HOLDEN AT GULU

HCT – 02 – CO – MA – 0056 – 2008and

HCT – 02 – CO – MA – 0058 - 2008(Arising from Gulu Criminal Case No. 910/2008)

1. JAMES OKECH 2.CHRISTOPHER LAGAI OYON :::::::::::::::::APPLICANTS/ACCUSED

VERSUSUGANDA:::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT/PROSECUTION

BEFORE: HIS HON. JUSTICE REMMY KASULE

RULING

This ruling is in respect of two bail applications in this court: Numbers 56/2008 and 58/2008; both arising from Gulu Chief Magistrate’s Court Criminal Case Number 910/2008.

In the Criminal Case Number 910/2008, James Okech, applicant in number 56/2008 and Christopher Lagai Oyon, applicant in Number 58/2008, are both charged with two others of causing financial loss c/s 269 (1) of the Penal Code. In the same case Christopher Lagai Oyon is further charged with two other charges of abuse of office c/s 87(1) and conspiracy to commit a felony c/s 390 of the Penal Code. In this ruling James Okech shall be refereed to as “the first applicant” and Christopher Lagai Oyon as the “second applicant.”

The charges with which the two applicants are respectively charged are alleged to have been committed between April and March 2008 at Amuru District Local Government, Amuru District. The first applicant is said to have committed the same by virtue of his office of employment as Chief Finance Officer, while the second applicant is

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alleged to have committed the charges, by virtue of his office of employment of senior personnel officer attached to Amuru District Local Government.

The essence of the charges is that the applicants, and others on the charge sheet, in the performance of their respective duties of office, while attached to Amuru District Local Government, created ghost teachers by helping to enter their names in the Teachers payroll and failing to delete their names from the payroll, knowing or having reason to believe, that such act would cause financial loss, be prejudicial to the interest of Amuru Local Government.

Each of the applicants deponed to an affidavit in support of his application.The first applicant, who resides at Lacor Trading Centre, Layibi Division, Gulu

Municipality, is a family person with a wife and six children and three dependants. His wife is expected to deliver soon. He presented Mr. Ochola Patrick, a business man and a brother in law to applicant, and Mr. Lalonyo David, an accountant, professional colleague and friend as his sureties.

First applicant was arrested on 20.08.2008, charged in Chief Magistrate’s court, Gulu, pleaded guilty, and remanded at Gulu Government Central Prison.

The second applicant resides at Acholi Road, plot 22 Pece Division, Gulu Municipality. He is married with one wife, has one child aged ten and supports four other dependants. Mr. Ochaya Gabriel, a programme Co-ordinator with Dyero Tek Community Organization, elder brother to second applicant, and Mr. Ongom Apollo, Accountant, Gulu Independent Hospital, younger brother to applicant, were presented to court as sureties to the second applicant.

On 27.08.2008 second applicant was charged before the Chief Magistrate’s Court, Gulu, pleaded not guilty and was remanded to Gulu Government Central prison.

The second applicant claims and attached medical notes and communication from Dr. Engenye Charles, Ag. Medical Superintendent, Gulu Regional Hospital, that he is a hypertensive patient.

According to paragraph 1 and 6 of second applicant’s affidavit of 28 th

August, 2008, on 22.08.2008, second applicant was admitted to hospital and was discharged on 26.08.2008. On 28.08.2008, while in prison, his temperature rose and was admitted to Gulu Referral Hospital.

It was submitted for both applicants that they be released on bail as they both had established residence within the jurisdiction of the court and had provided substantial sureties. For the first applicant, it was submitted that the fact that his wife was about to deliver, was a matter for the court, to exercise its discretion and release the first applicant to provide the necessary presence and consortium to her. For the second applicant, it was submitted that his grave illness, is an exceptional circumstance, justifying his being released on bail.

The state opposed the applications for bail as no exceptional circumstances had been proved, and at any rate the state was ready for trial, investigations having been completed.

Any accused person has a constitutional right to apply to a court of law to be released on bail. This right is given by Article 23 (b) (a) of the Constitution.

It is however not a constitutional right that every accused person must be granted bail. The court has a discretion to grant or to refuse to grant bail: See Constitutional Court of Uganda Constitutional Reference No. 20 of 2005:

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Uganda (DPP) vs Col. (Rtd) Dr. Kiiza Besigye. See also Constitutional Court of Uganda Constitutional Petition No. 20 of 2006 Foundation For Human Rights Initiatives vs Attorney General.

While considering an application for bail, court has to consider the need to balance the constitutional rights of the applicant together with the needs of society to be protected from lawlessness; and the fact that the criminal justice system, an essential component of the Rule of law, is effective. Court therefore, considers a number of factors, such as weighing the gravity of the offence, the risk of the accused absconding, interference with the course of justice, the likelihood of the applicant offending while on bail, indication of violence or threatening behaviour by the accused, the status of the offence and the stage in the proceedings and the extent to which evidence pointing to proof of guilty or innocence of applicant, once that evidence is placed before court by the investigating officer. The court may also consider the possible penalty that the applicant may suffer, in case of conviction.

The court considering bail, must be conscious, all along, that the applicant is presumed innocent until proved guilty or until the applicant pleads guilty.

The legislature in its wisdom, has, because of the gravity to society of some criminal offences, imposed restrictions as to bail in respect of those specific offences. Section 15 of the Trial on Indictments Act, Cap. 23, provides that court may refuse to grant bail to a person accused of a specified offence, if that person does not prove to the satisfaction of the court that an exceptional circumstance exists justifying release on bail.

Section 15(2) (d) and (f) of the same Act specifies the offences of abuse of office and causing financial loss as some of the offences where proof of an “exceptional circumstance” is required before applicant is released on bail.

The exceptional circumstances that have to be proved are according to section 15 (3) of the Act, grave illness certified by a medical officer of the prison where applicant is detained, as being incapable of adequate medical treatment while the accused is in custody, or a certificate of no objection to bail from the DPP or infancy or advanced age of the applicant.

The first applicant has not proved any exceptional circumstance in his application.

As to the second applicant, there has been an attempt to prove grave illness. There is however no certification by a medical officer of Gulu Central Prison, where second applicant is on remand, to the effect of that prison being incapable of making provision for second applicant to receive adequate medical treatment for his sickness. In Miscellaneous Application Number 30 of 2003 at High Court, Kampala, Immaculate Lugolobi vs Uganda: Bamwine; J. stated:-“ In my view in a bail application of this nature, nothing should be left to guess work. At this stage of the proceedings, what this court requires is information, not so much that the applicant is sick, because the applicant can give that information and has done so in her affidavit, but certification by a medical officer of the prison where the accused is detained that the applicant is so gravely ill that her condition warrants release from custody for better management of the said health condition. Such a certificate has not been furnished”

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The above holding applies with equal force and effect to the second applicant’s application. This court holds that the second applicant has not proved to the satisfaction of court, grave illness, as an exceptional circumstance.

It therefore remains to court to determine whether, in the exercise of its discretion, any of the applicants, or both of them, may be released on bail.

Judicial discretion is the power of the court to act in accordance with the dictates of its own judgment and conscience in accordance with well laid down principles of law. Its exercise must not be arbitrary, capricious or unrestrained. It must be the exercise of judicial judgment based on facts and guided by law or the equitable decision of what is just and proper under the circumstances. It must be exercised according to the rules of reason and justice and must be based on judicial grounds: See Hon.Justice Benjamin J. Odoki: The Uganda Living Law Journal vol. 1 No. 1 June 2003 p.3

This court has held in High Court at Gulu Miscellaneous Application No. 166/2008: Bongomin Richard Akal vs Uganda: that:-“The burden is upon the applicant to satisfy court by putting forth before court a set of facts, beyond the ordinary consideration, upon which the court can act, in the exercise of its discretion to admit the applicant to bail”.The above applies to this application.

The first applicant has asserted that his wife is about to deliver and therefore he should be granted bail to provide the necessary support and consortium as the husband.

There is no affidavit from the wife of the applicant as to her state of health, and as to why, apart from the normal consortium that a spouse gives to the other, the first applicant’s presence is particularly required at this material time in particular. There is no medical evidence at all to support the assertion of the first applicant.Indeed court was not in any way given any particulars of the first applicants’ wife, such as names, residence, work and work place, age of pregnancy, and whether or not there are any peculiar health problems with her pregnancy. The burden lies upon the applicant. This burden has not been discharged.As to the second applicant, there are no special facts, other than grave illness, which he did not prove, for court to exercise its discretion upon, so as to grant bail to him.

The offences with which the applicants are charged are very grave offences. That is why the legislature saw it fit to isolate them by section 15 of the Trial on Indictments Act, Cap. 23, from the ordinary offences where bail is granted on proof of the ordinary normal requirements for bail.

Both applicants have failed to prove exceptional circumstances or to put forward a set of facts upon which this court can exercise its discretion and grant bail to each one of them. The applications for bail therefore fail. Both stand dismissed. Since the state is ready with its witnesses, the trial court is urged to commence the hearing of the case at earliest.

....................................Remmy Kasule

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Judge12th September, 2008.

CHARGES AND INDICTMENTS (Pg 65 - 84 AYUME)

Note that before an accused is tried in a court, he must be informed of the charges against him. A charge is a written statement containing the accusation against a person alleged to have committed an offence. The charge must be drawn up by a police officer or a magistrate and signed by a magistrate.

An indictment is a formal written accusation drawn up, signed and filed by the DPP in the registry of the High Court, to be used in the trial by that court. Apart from the form and court in which they are used, there is no difference between a charge and an indictment.

THE CONTENTS OF A CHARGE / INDICTMENT

The charge must contain a statement of the offence with which the accused is charged. It must contain particulars of the offence giving the accused person reasonable information as to the nature of the offence he is charged with. (See sec 85 M.C.A & 22 T.I.A.)

RULES OF DRAFTING CHARGES

1. There must be a title of criminal proceedings.

2. The form of the charge or an indictment is as follows:

- There must be a count which must commence with the statement of offence charged and it is called “statement of the offence”, which must state the offence briefly, in an ordinary language, and avoiding as far as possible the use of technical terms and without stating all the essential elements of the offence. A reference must be made to the Statute that creates the offence.

- Particulars of the offence. This should set out in ordinary language the particulars of the offence. The use of technical terms is avoided. When a charge contains more than one count, the counts should be numbered consecutively.

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- The charge should be signed by the officer preferring it before forwarding it to court for authentication.

- After it has been presented to court, the magistrate should sign the charge before the accused is called upon to plead to it. In other words if it is not signed by the magistrate it becomes defective.

JOINDER OF CHARGES

A charge may contain one or several counts. There are two types of joinder of charges;

a) Joinder of offences / countsb) Joinder of persons or defendants.

JOINDER OF OFFENCES (Pp 70 – 75 AYUME)

This is covered under sec 23 TIA and 86 MCA. Under these sections, offences may be charged in the same charge if they are found on the same facts or form or are part of offences of the same or similar character. As a matter of practice, no count can be joined to the offence of murder. Several factors must be considered when joining these offences ie;

a) proximity between the commission of the two offencesb) The scene of the crime where the offence took place. See Rv Dalei Singh

(1943) EACA 121, Jozef s/o Odoro v R (1954) 21 EACA 311.

See Lundow v m.p.c (1970) 54 Cr. App 233. In this case, the accused was charged with attempted theft in a public place and robbery at a different public house in one charge. The second offence occurred 16 days after the first. The House of Lords held that the 2 offences can constitute a series for purposes of rule 9 of the indictment rules. Court further held that in deciding whether the 2 offences are similar in character, both the law and character should be taken into account. For the offences to be similar there must be a nexus. Thus the offences in this case were similar in law and fact, they had the same neighbourhood and the time interval was only 16 days.

JOINDER OF DEFENDANTS

Persons accused of the same offence committed in the course of the same transaction may be joined together in one charge and tried together. It does not matter whether one was a principle offender and another one is the accessory. (see Section 87 MCA and 24 T.I.A.) The most vital aspect in joining defendants is whether the offence was committed in the same transaction. Read the case of Nathan v R (1965) EA 777 in order to understand what amounts to same transaction.

ALTERNATIVE CHARGES OR COUNTS

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This is an additional count laid against the accused in the same charge where the prosecution is not sure which offence in law the evidence will prove. Usually the offence must be one of a serious nature and a less serious offence that are related.

DEFECTIVE CHARGES OR INDICTMENTS

A charge or indictment may be defective. One major defect of charges is duplicity of charges. In other words, each count must, on the face of it allege only one offence. If 2 or more offences are put in one count, that count is bad for duplicity. The defense counsel can bring a motion to quash that count. Duplicity may arise due to failure to follow the rules for framing the charges as provided under sec 86(b) MCA or 23 (b) TIA.

OVER LOADING A CHARGE / INDICTMENT

This may happen in 2 situations;

1. Where different defendants or offences are included in one charge so that there is un necessarily long and complex issues at the trial.2. Where the defendant may be made guilty of a number of offences as a matter of strict law e.g. conspiracy and a substantive offence in the same charge or ‘attempted theft’ and ‘theft’.

The effect of defective charges or indictment.

A defect that cannot be cured by correction makes a charge bad in law. However, not all defects affect the validity of criminal proceedings. (See sec 42 (2) MCA and 139 TIA) The most vital aspect is whether there is a miscarriage of justice (see Uganda v Amisi (1970) EA 291 and Opio v R EA 319.)

REMEDIES OF DEFECTIVE CHARGES

1. Amendment of charges (sec 132 MCA) A magistrate is empowered to amend the charge at any stage of trial if it appears that it is defective. He can amend the charge under the following circumstances;

a) The evidence discloses an offence other than one with which the accused is charged.

b) The charge is defective in a material particular.

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c) The accused desires to plead guilty to an offence other than the offence he is charged with.

After amending the charge, the magistrate must do the following as per sec 132 MCA;

- Call upon the accused to plead to the altered charge- Give an opportunity to an accused person to further cross-examine any prosecution witness who will be in court- To give an opportunity to the accused to give further evidence if he so wishes.

Under sec 50 TIA, the High Court can amend a defective indictment as the circumstances may require. There must be a defect in an indictment or charge before it is amended. The following are the defects:

a) Non-disclosure of the offence b) An omission on matters of detail such as incorrectly describing the subject matter of the offence against the accused. c) Citing a wrong section of the statute which creates the offence.

See Uganda v Katabazi (1978) HCB 67. The accused was charged with burglary contrary to section 295 (2) in count 1 and theft contrary to sec of the 261 Penal Code in count 2. He admitted the charge on both counts and was convicted by a Grade 2 magistrate who sentenced him to 15 months imprisonment on the first count and nine months on the 2nd

count and both to run concurrently. The charge was held to be defective because the 2 offences though separate, should have been charged in one count, in keeping the common practice of the courts (see decision of Mayindo J)

TRIAL PROCEDURE

PLEAS

This is an answer to a charge. The various types of pleas include;1. Plea of guilty2. Plea of not guilty3. Plea of utrafois acquit or convict4. Plea of pardon5. Plea of bargain6. Plea of jurisdiction (court has no powers to try one)7. Ambiguous plea (where the accused remains silent)

PLEA OF GUILTY

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This is covered under sec 124(1) MCA. It provides that after the substance of the charge has been explained to the accused by court, he shall be asked whether he admits or denies the charge. There will be no more issues for trial because the issue of whether he is guilty or not will be settled by his admission. Under sec 124(1), if the accused admits the truth of the charge, his admission should be recorded as nearly as possible in the words used by him after having fully explained the details of the charge, the court shall then convict him unless there is any reason to the contrary. On recording, see Adan v R (1973) EA 445.

PLEA OF NOT GUILTY

This is provided for under sec 126 MCA. If a person does not admit the truth of the charge, then court shall record a plea of not guilty and shall proceed to hear the case. Sec 126 MCA provides for the procedure.

PLEA OF ULTRA FOIS CONVICT OR ACQUIT

Sections 89,124 (5) MCA and sections 28, 31 TIA and Article 28(9) of the Constitution provide that a person who has once been tried of an offence and convicted or acquitted of it by a court of competent jurisdiction shall not be tried again of the same offence, on the same facts where such conviction or acquittal has not been reversed or set a side (double jeopardy). This is a special plea and can only succeed where the accused was first in jeopardy. R v Danji (1948) 15 EACA, Connije v DPP

PLEA OF PARDON

Under the Constitution, the President can exercise his prerogative power and grant pardon. This is under sec 122 (5)(b) MCA and s. 61 (1)(b) of the TIA, the accused can plead in answer to a charge that he has obtained a pardon to his offence. Once this plea has been raised, it up to court to investigate whether it was given or not.

PLEA OF BARGAIN

This is an arrangement by which the defendant to criminal proceedings may agree to plead guilty to one or more charges in exchange of the prosecution extending some advantage to him eg dropping another charge or if the defendant pleads guilty to a less serious charge. This plea must be under scrutiny by the court and it should endeavour not to indicate what sentence it has in mind in order not to induce the defendant to change his plea. See R v Turner (1970) 2 QBD 321

PLEA OF JURISDICTION

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Here the accused pleads that the court has no jurisdiction to try the offence. See sec 161 MCA.

AMBIGUOUS PLEAS

In some cases, an accused may give an ambiguous answer eg crying or ‘I killed this man but I did not mean to kill him.’ Before the magistrate enters plea of guilty or not guilty he must explain the ambiguity to the accused.

REFUSAL TO ENTER PLEA

This is covered under sec 124(4) MCA and 68 TIA. If the accused refuses to plead, court shall enter a plea of not guilty for him for instance where the accused keeps quite.

UNFITNESS TO PLEAD

The accused may be unfit due to insanity or any other incapacity. In such cases, sec 45 – 49 TI A or sec 113 – 118 MCA will apply.

CHANGE OF PLEA

There is nothing in law that prevents a person to change his plea at any stage in the trial. The defendant may change plea from not guilty to guilty. This has to be before sentence is passed. In case of change of plea, the charge is put before the accused, so that he pleads again. See Adan v R (1973) EA 445, R v Guest (1964) 3 ALLER 385, Yusuf v Mawumba (1966) EA 383

TRIAL PROCEDURE IN THE MAGISTRATES’ COURT

See sections 119 – 160 of the MCA

When the accused is informed or arraigned of the charge against him, he is asked to plead. Section 124 MCA, if the accused pleads guilty, the prosecutor will outline the facts upon which a charge is founded and then the accused will be convicted and sentenced.

If the accused pleads not guilty as per sec 126 MCA which provides the procedure that is as follows;

- The prosecutor will proceed with his case by calling witnesses to give evidence against the accused. The witnesses are examined in-chief by the prosecutor and cross-examined by the accused or his advocate, see sec 126 (2) MCA.

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- The prosecutor will lastly re examine the witnesses and after this, court will rule whether there is a prima facie case to answer, for the meaning of a prima facie case.

Read the following cases;

Kayemba v Uganda (1983) HCB 32Espanto Waswa v Ug (1977) EA 299Uganda v Stephen Onyango ( 1979) HCB 89Bahati v R (1958) EA 332

Under sec 127 MCA, Court must dismiss the case or acquit the accused if there is no prima facie case or case to answer. When there is a prima facie case, sec 128 MCA will apply. The accused is informed of his right for instance the right to remain silent, right to give evidence on oath, right to make an un sworn statement.

Under sec 129 MCA, the court will proceed to hear evidence of the accused, then the prosecutor and the advocate will make their submissions on the evidence and law accordingly.

FINAL SUBMISSIONS

Section 131 MCA gives the prosecutor and the advocate for the accused a right to address court after the accused has closed his case. The order of submission is as follows:

1. Where the accused adduces evidence but calls no witness, the prosecutor is entitled to address court first and the accused replies, see sec 129 MCA.

2. Where the accused adduces evidence or makes statements under oath or calls witnesses, the accused begins to address court and the prosecutor replies.

3. The same order applies where the accused has not adduced evidence but calls witnesses (does not testify himself).

Section 131(4) MCA, the right of address may be exercised by any advocate representing the accused person or the prosecutor.

THE PROCEDURE IN THE HIGH COURT

The conduct of trial proceedings in the High Court is governed by the TIA.

COMMITTAL PROCEEDINGS

Under sec. 1 of the TIA, no criminal case shall be brought under the cognizance of the High Court for trial unless the accused has been committed to the High Court for trial in accordance with the provisions of the MCA. The procedure of committal proceedings is as follows:

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Section 167 (a) MCA provides that when an accused person is committed to the Magistrate with an offence triable by the High Court, the DPP shall file in the High Court an indictment and the summary of the case. The summary of the case must contain the particulars of the offence which shall give the accused reasonable information as to the nature of the offence with which he is charge. For the rationale of preliminary proceedings or committal proceedings see sec 66 of the TIA. At the conclusion of committal proceedings, the court shall prepare a memo of the matters agreed. This memo must be read over and explained to the accused in a language he understands. It is signed by the accused or his advocate and then the prosecution. It is then filed.

ASSESSORS

These are people who assist court in trying technical, scientific, cultural, economic or social issues, but their views do not bind the court. Sec 3 TIA provides that all trials in the High Court must be held with the aid of assessors. The number shall be 2 or more as the court thinks fit. The selection of assessors is covered under sec 3. Assessors are lay persons selected in the locality by the Chief Magistrate. According to rule 1 of the schedule (Assessor’s rules), the Chief Magistrate must select the assessors before the first day of March in each year and prepare lists of suitable persons in his magisterial area to serve as assessors.

QUALIFICATION OF ASSESSORS

Under rule 2 of the Assessor’s Rules, all citizens of Uganda between the ages of 21 – 60 years who are able to understand the language of court with a degree of proficiency, able to follow the proceedings can be selected as assessors at any trial before the High Court, the following are the exempted categories;

- Persons actively discharging the duty of priests or ministers of their respective religions

- Legal practioners in active practice, members of the armed forces on full pay, members of the police force or prisons service, persons exempted from personal appearance in court under rules relating to civil procedure, persons disabled by mental or physical or body infirmity and those exempted by a Statutory Instrument made by the Minister.

LIABILITY TO SERVE AS ASSESSORS

Under Rule 5 of the Assessor’s Rules, assessors are summoned by the Magistrate of the area on notification by the Chief Registrar 7 days before holding of a particular session of the High Court. The Chief Registrar notifies the Magistrate of the area with a written letter. Under Rule 9, an assessor who fails to attend as required by the summons or having attended, he departs with out the permission of the court, is liable by the order of the court to a fine not exceeding 400 shillings.

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Under sec 67 TIA, at the commencement of the trial and after the preliminary hearing has been concluded, each assessor shall take an oath to impartially advise the court to the best of his knowledge skill and ability on the pending issues. The effect of not telling the truth under oath is perjury.

Challenging the choice of assessors;

Under sec 68 TIA, the accused or his counsel or the prosecutor may, before the assessors is sworn in, challenge the assessor on the following grounds;

1. presumed or actual partiality2. personal causes such as infancy, old age, deafness, blindness or infamity3. His character such as previous convictions which in the opinion of the court renders

him unfit to serve as an assessor.4. The person’s ability to understand the language of the court. What is the language of

the court? When a challenge or objection is disputed then the issue must be tried by the judge and the person challenged must be examined on oath if necessary. Read the case of Ndingangu v R (1959) EA 875

THE ROLE OF ASSESSORS

Under sec 82 of TIA, when both sides have closed their case, the judge shall sum up the law and the evidence to the assessors and then shall require each assessor to give his opinion depending on the language of the court. The judge should direct the assessors on the following;

1. Weight to be given to certain pieces of evidence of the prosecution witnesses and their effect on credibility.

2. The need of corroboration evidence especially after the evidence of a child of tender age.

3. When a court may base a conviction on identification of a single witness.4. Alternative defences that are open to the accused5. Any other offence that the accused may be convicted of if the main charge is not

proved6. On which party the burden of proof lies and the standard of proof required in that

case.7. That they can consult each other before reaching an opinion. The judge is not

bound by the opinion of the assessors.

In summary, the role of assessors is to advise a judge where they have special knowledge and to give their views in abstract of what they think about a particular custom. They have a duty of weighing the evidence as a whole and decide whether it is the accused that committed the offence or not in light of their special knowledge as to the habit, custom, experience etc.

QN. Assuming that there are two assessors and one dies, what happens?

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The opinion of each assessor should be recorded separately, but where a single opinion for all or both of them, others should be asked to confirm it.

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